CLASS,CLOSED,MASTER
U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:15−cv−04479−SSV−JCW

Cain et al v. New Orleans City et al Assigned to: Chief Judge Sarah S. Vance Referred to: Magistrate Judge Joseph C. Wilkinson, Jr Case in other court: Fifth Circuit Court of Appeal, 18−30352
USCA, 18−30955 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/17/2015 Date Terminated: 08/03/2018 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Alana Cain

represented by William Patrick Quigley Loyola New Orleans College of Law 7214 St. Charles Ave., Box 902 540 Broadway New Orleans, LA 70118 504−710−3074 Email: quigley77@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alec George Karakatsanis Civil Rights Corps 1601 Connecticut Ave. NW Washington, DC 20009 202−844−4975 Email: alec@civilrightscorps.org ATTORNEY TO BE NOTICED

Anna Lellelid Law Office of Anna Lellelid, LLC 2415 Bienville Street New Orleans, LA 70119 305−721−7777 Email: alellelid.law@gmail.com ATTORNEY TO BE NOTICED

Christine Elizabeth Hanley Orrick, Herrington & Sutcliffe, LLP (Seattle) 701 Fifth Avenue Suite 5600 Seattle, WA 98104 206−839−4300 Email: chanley@orrick.com PRO HAC VICE ATTORNEY TO BE NOTICED

David P. Fuad Orrick, Herrington & Sutcliffe, LLP (Los Angeles) 777 South Figueroa St. Suite 3200 Los Angeles, CA 90017 213−629−2020 Email: dfuad@orrick.com PRO HAC VICE ATTORNEY TO BE NOTICED

Emily Faye Ratner Emily Faye Ratner, Attorney at Law 7214 St. Charles Ave Campus Box No. 913

New Orleans, LA 70118 504−864−7861 Email: msemilyfaye@gmail.com TERMINATED: 09/19/2016
Hallie Nodgaard Ryan Lawyers Committee for Civil Rights 1401 New York Avenue N.W. Suite 400 Washington, DC 20005 202−662−8600 Email: hryan@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Hsiwen Lo Orrick, Herrington & Sutcliffe, LLP (Irvine) 2050 Main Street Suite 1100 Irvine, CA 92614 949−567−6700 Email: hlo@orrick.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum Lawyers Committee for Civil Rights 1401 New York Avenue N.W. Suite 400 Washington, DC 20005 202−662−8600 Email: jgreenbaum@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy Orrick, Herrington & Sutcliffe, LLP (Washington) 1152 15th Street, NW Washington, DC 20005 202−339−8400 Email: jguy@orrick.com PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan Orrick, Herrington & Sutcliffe, LLP (San Francisco) The Orrick Building 405 Howard Street San Francisco, CA 94105 415−773−5444 Email: jkwan@orrick.com TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan Orrick, Herrington & Sutcliffe, LLP (San Francisco) The Orrick Building 405 Howard Street San Francisco, CA 94105 415−773−5887 Email: kmantoan@orrick.com PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez

Plaintiff Ashton Brown

Civil Rights Corps 910 17th Street NW Second Floor Suite 200 Washington, DC 20006 202−643−9148 Email: marco@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley Lawyers Committee for Civil Rights 1401 New York Avenue N.W. Suite 400 Washington, DC 20005 202−662−8321 Email: mkelley@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Christine Elizabeth Hanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David P. Fuad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 09/19/2016
Hallie Nodgaard Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hsiwen Lo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy

Plaintiff Reynaud Variste

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan (See above for address) TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Christine Elizabeth Hanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David P. Fuad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 09/19/2016
Hallie Nodgaard Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hsiwen Lo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address)

Plaintiff Reynajia Variste

PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan (See above for address) TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Christine Elizabeth Hanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David P. Fuad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 09/19/2016
Hallie Nodgaard Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hsiwen Lo (See above for address) PRO HAC VICE

Plaintiff Thaddeus Long

ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan (See above for address) TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Christine Elizabeth Hanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David P. Fuad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 09/19/2016
Hallie Nodgaard Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Vanessa Maxwell

Hsiwen Lo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan (See above for address) TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Christine Elizabeth Hanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David P. Fuad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 09/19/2016

V. Consol Plaintiff Joseph T Lafrance 16−14439
V. Defendant New Orleans City TERMINATED: 05/13/2016

Hallie Nodgaard Ryan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Hsiwen Lo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon M. Greenbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Phillip Guy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Kwan (See above for address) TERMINATED: 07/05/2017 PRO HAC VICE
Kathryn Grzenczyk Mantoan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marco Antonio Lopez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mateya Beth Kelley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by William Patrick Quigley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
represented by Adam J. Swensek City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504−658−9810 Fax: 658−9868

Defendant
Orleans Parish Criminal District Court TERMINATED: 05/11/2016

Email: ajswensek@nola.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cherrell Simms Taplin Liskow & Lewis (New Orleans) One Shell Square 701 Poydras St. Suite 5000 New Orleans, LA 70139−5099 504−556−4025 Email: cstaplin@liskow.com ATTORNEY TO BE NOTICED
Churita H. Hansell City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504−658−9850 Email: chhansell@nola.gov ATTORNEY TO BE NOTICED
Sharonda R. Williams Fishman Haygood, LLP (New Orleans) 201 St. Charles Ave. Suite 4600, 46th Floor New Orleans, LA 70170−4600 504−556−5506 Email: swilliams@fishmanhaygood.com ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 (504) 836−2220 Email: dphayer@burglass.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz Cooper Law Firm, LLC 1525 Religious Street New Orleans, LA 70130 504−399−0009 Fax: 504−309−6989 Email: cbrustowicz@clfnola.com ATTORNEY TO BE NOTICED
Christopher Kent Tankersley Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 (504) 836−2220 Email: ctankersley@burglass.com ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 504−836−0428

Defendant Marlin N. Gusman Orleans Parish Sheriff TERMINATED: 04/24/2018
Defendant

Email: edoubleday@burglass.com ATTORNEY TO BE NOTICED
represented by Blake J. Arcuri Orleans Parish Criminal Sheriff's Office 2800 Perdido St. New Orleans, LA 70119 504−202−9404 Email: arcurib@opso.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Freeman Rudolph Matthews Orleans Parish Criminal Sheriff's Office 2800 Perdido St. New Orleans, LA 70119 504−343−4424 Fax: 504−202−9454 Email: petematthewslaw@gmail.com ATTORNEY TO BE NOTICED
Inemesit U. O'Boyle Chehardy,Sherman,Ellis,Murray,Recile,Stakelum&Hayes, LLP One Galleria Blvd. Suite 1100 Metairie, LA 70001 504−833−5600 Fax: 504−556−4108 Email: iuo@chehardy.com ATTORNEY TO BE NOTICED
James McClendon Williams Chehardy,Sherman,Ellis,Murray,Recile,Stakelum&Hayes, LLP One Galleria Blvd. Suite 1100 Metairie, LA 70001 504−833−5600 Fax: 504−456−8624 Email: jmw@chehardy.com ATTORNEY TO BE NOTICED
Matthew Arthur Sherman Chehardy,Sherman,Ellis,Murray,Recile,Stakelum&Hayes, LLP One Galleria Blvd. Suite 1100 Metairie, LA 70001 504−833−5600 Email: mas@chehardy.com ATTORNEY TO BE NOTICED
Timothy R. Richardson Usry & Weeks, APLC 1615 Poydras St., Suite 1250 New Orleans, LA 70112 504−592−4600 Email: trichardson@usryweeks.com ATTORNEY TO BE NOTICED
represented by

Arthur A Morrell Clerk of Court TERMINATED: 11/17/2015
Defendant Robert J. Kazik Judicial Administrator TERMINATED: 12/13/2017
Defendant Laurie A White Judge Sect. A of the Orleans Parish Criminal District Court

Michael Charles Darnell Murray, Darnell & Associates, L.L.C. 1540 N. Broad New Orleans, LA 70119 504−945−0042 Fax: 504−942−5968 Email: mdarnell@murraydarnell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham MG&M Law Firm 365 Canal Street Suite 3000 New Orleans, LA 70130 504−535−2880 Fax: 504−535−2886 Email: ecunningham@mgmlaw.com ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 504−836−0423 Email: mnunezduffourc@burglass.com ATTORNEY TO BE NOTICED

Defendant Tracey Flemings−Davillier Judge Sect. B of the Orleans Parish Criminal District Court
Defendant Benedict Willard Judge Sect. C of the Orleans Parish Criminal District Court
Defendant Dennis Waldron Ad Hoc Judge Sect. D of the Orleans Parish Criminal District Court TERMINATED: 05/19/2016

represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address)

Defendant Keva Landrum−Johnson Judge Sect. E of the Orleans Parish Criminal District Court
Defendant Robin Pittman Judge Sect. F of the Orleans Parish Criminal District Court

ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED

Defendant Byron C. Williams Judge Sect. G of the Orleans Parish Criminal District Court
Defendant Camille Buras Judge Sect. H of the Orleans Parish Criminal District Court
Defendant Karen K. Herman Judge Sect. I of the Orleans Parish Criminal District Court

Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Darryl Derbigny Judge Sect. J of the Orleans Parish Criminal District Court
Defendant Arthur Hunter Judge Sect. K of the Orleans Parish Criminal District Court

Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED

Defendant Franz Zibilich Judge Sect. L of the Orleans Parish Criminal District Court
Defendant Harry E. Cantrell Magistrate Judge of the Orleans Parish Criminal District Court

Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) TERMINATED: 05/08/2018 ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
Erika Mullenbach Cunningham (See above for address) ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address)

V. Consol Defendant New Orleans City 16−14439 Consol Defendant Orleans Parish Criminal District Court 16−14439
Consol Defendant Robert Kazik Judicial Administrator; 16−14439
Consol Defendant Marlin Gusman Orleans Parish Sheriff; 16−14439 TERMINATED: 02/24/2018
Movant Jeff Landry in his official capacity as

ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz (See above for address) ATTORNEY TO BE NOTICED
Christopher Kent Tankersley (See above for address) ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday (See above for address) ATTORNEY TO BE NOTICED
represented by Blake J. Arcuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Freeman Rudolph Matthews (See above for address) ATTORNEY TO BE NOTICED
Timothy R. Richardson (See above for address) ATTORNEY TO BE NOTICED
represented by Emily G Andrews Louisiana Department of Justice

Attorney General for the State of Louisiana

1885 North. 3rd. Street. Baton Rouge, LA 70802 225−326−6000 Email: andrewse@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Madeline S. Carbonette Louisiana Department of Justice (Civil Div −Baton Rouge) 1885 N. 3rd Street Baton Rouge, LA 70802 226−326−6030 Fax: 225−326−6099 Email: carbonettem@ag.louisiana.gov ATTORNEY TO BE NOTICED

Date Filed 09/17/2015
09/17/2015 09/17/2015 09/18/2015 09/18/2015
09/18/2015 09/21/2015 09/22/2015 09/22/2015

# Docket Text
1 COMPLAINT with jury demand against All Defendants (Filing fee $ 400 receipt number 053L−5027824) filed by A Brown, Alana Cain, Vanessa Maxwell, Reynaud Variste, Reynajia Variste, Thaddeus Long. (Attachments: # 1 Civil Sheet, # 2 Exhibit, # 3 Exhibit, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summ 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summons, # 15 Summons, # 16 Summons, # 17 Summons, # 18 Summons, # 19 Summons, # 20 Summons, # 21 Summons)Attorney Anna Lise Lellelid−Douffet ad party Ashton Brown(pty:pla), Attorney Anna Lise Lellelid−Douffet added to party Alana Cain(pty:pla), Attorney An Lellelid−Douffet added to party Thaddeus Long(pty:pla), Attorney Anna Lise Lellelid−Douffet added to party Vane Maxwell(pty:pla), Attorney Anna Lise Lellelid−Douffet added to party Reynajia Variste(pty:pla), Attorney Anna Li Lellelid−Douffet added to party Reynaud Variste(pty:pla).(Lellelid−Douffet, Anna) (Main Document 1 replaced on 9/18/2015) (mmm). (Entered: 09/17/2015)
2 Initial Case Assignment to Chief Judge Sarah S. Vance and Magistrate Judge Joseph C. Wilkinson, Jr. (djg) (Entered 09/17/2015)
3 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Alec Karakatsanis (Filing fee $ 100 receipt number 053L−5029300) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Vari (Attachments: # 1 ECF Registration, # 2 Certificate of Good Standing, # 3 Certificate of Good Standing, # 4 Propose Order)(Lellelid−Douffet, Anna) (Attachment 1 replaced on 9/18/2015) (mmm). (Entered: 09/17/2015)
4 ORDER granting 3 Motion to Appear Pro Hac Vice as to Alec George Karakatsanis.. Signed by Chief Judge Sarah S Vance on 9/18/15. (jjs) (Entered: 09/18/2015)
5 Summons Issued as to Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Marlin N. Gu Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Arthur A Morrell, New Orleans City, O Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia Franz Zibilich. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summo Summons, # 8 Summons, # 9 Summons, # 10 Summons, # 11 Summons, # 12 Summons, # 13 Summons, # 14 Summ 15 Summons, # 16 Summons, # 17 Summons)(mmm) (Entered: 09/18/2015)
6 Correction of Docket Entry by Clerk re 3 MOTION to Appear Pro Hac Vice Alec Karakatsanis. Filing attorney did properly format the pdf. For future filings, the pdf should not have the green header nor the 3 red buttons at the botto IMPORTANT: When using a FORM, fill in the applicable fields then click the red PRINT button at the bottom to pr document to pdf format. Clerk has taken corrective action.(mmm) (Entered: 09/18/2015)
7 First AMENDED COMPLAINT with Jury Demand against All Defendants filed by Ashton Brown, Alana Cain, Van Maxwell, Reynaud Variste, Reynajia Variste, Thaddeus Long. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Lellelid−Douffet, Anna) (Entered: 09/21/2015)
8 MOTION for Preliminary Injunction by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste. Motion(s) will be submitted on 10/28/2015. (Attachments: # 1 Memorandum in Support, # 2 Exhib Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 E # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Notice of Submission, # 18 Proposed Order)(Lellelid−Do Anna) (Entered: 09/22/2015)
9 EXPARTE/CONSENT MOTION for Leave to File Excess Pages by Ashton Brown, Alana Cain, Thaddeus Long, V Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Lellelid−Douffet, Anna) Modified 9/22/2015 (mmm). (Entered: 09/22/2015)

09/22/2015 09/24/2015
10/03/2015
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10 ORDER granting 9 Motion for Leave to File a Memorandum in Support of Preliminary Injunction 8 in Excess of the Limits. Signed by Chief Judge Sarah S. Vance on 9/22/15. (jjs) (Entered: 09/22/2015)
11 ORDERED that a status conference will be held 10/20/15 at 2:30 p.m., in the Chambers of United States District Jud Sarah S. Vance, 500 Poydras Street, Room C255, New Orleans, Louisiana. Counsel shall be prepared to discuss with Court the pending motion 8 for preliminary injunction. Plaintiffs' counsel is ordered to serve defendants and their co with a copy of this order.. Signed by Chief Judge Sarah S. Vance on 9/24/15.(jjs) (Entered: 09/24/2015)
12 MOTION to Dismiss for Failure to State a Claim by Marlin N. Gusman. Motion(s) will be submitted on 10/28/2015 (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)Attorney Blake J. Arcuri added to party Marl Gusman(pty:dft).(Arcuri, Blake) (Entered: 10/03/2015)
13 SUMMONS Returned Executed; New Orleans City served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet (Entered: 10/06/2015)
14 SUMMONS Returned Executed; Marlin N. Gusman served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffe Anna) (Entered: 10/06/2015)
15 SUMMONS Returned Executed; Arthur A Morrell served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, (Entered: 10/06/2015)
16 SUMMONS Returned Executed; Dennis Waldron served on 9/23/2015, answer due 10/14/2015. (Lellelid−Douffet, (Entered: 10/06/2015)
17 SUMMONS Returned Executed; Orleans Parish Criminal District Court served on 9/22/2015, answer due 10/13/201 (Lellelid−Douffet, Anna) (Entered: 10/06/2015)
18 SUMMONS Returned Executed; Robert J. Kazik served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, A (Entered: 10/06/2015)
19 SUMMONS Returned Executed; Laurie A White served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, A (Entered: 10/06/2015)
20 SUMMONS Returned Executed; Tracey Flemings−Davillier served on 9/23/2015, answer due 10/14/2015. (Lellelid−Douffet, Anna) (Entered: 10/06/2015)
21 SUMMONS Returned Executed; Benedict Willard served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, (Entered: 10/06/2015)
22 SUMMONS Returned Executed; Keva Landrum−Johnson served on 9/23/2015, answer due 10/14/2015. (Lellelid−D Anna) (Entered: 10/06/2015)
23 SUMMONS Returned Executed; Robin Pittman served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, An (Entered: 10/06/2015)
24 SUMMONS Returned Executed; Byron C. Williams served on 9/23/2015, answer due 10/14/2015. (Lellelid−Douffe Anna) (Entered: 10/06/2015)
25 SUMMONS Returned Executed; Camille Buras served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, An (Entered: 10/06/2015)
26 SUMMONS Returned Executed; Karen K. Herman served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet (Entered: 10/06/2015)
27 SUMMONS Returned Executed; Darryl Derbigny served on 10/6/2015, answer due 10/27/2015. (Lellelid−Douffet, (Entered: 10/06/2015)
28 SUMMONS Returned Executed; Arthur Hunter served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, An (Entered: 10/06/2015)
29 SUMMONS Returned Executed; Franz Zibilich served on 9/23/2015, answer due 10/14/2015. (Lellelid−Douffet, An (Entered: 10/06/2015)
30 SUMMONS Returned Executed; Harry E Cantrell served on 9/22/2015, answer due 10/13/2015. (Lellelid−Douffet, (Entered: 10/06/2015)
31 EXPARTE/CONSENT MOTION for Extension of Time to Answer by New Orleans City. (Attachments: # 1 Propos Order)Attorney Adam J. Swensek added to party New Orleans City(pty:dft).(Swensek, Adam) (Entered: 10/13/2015
32 ORDER granting 31 Motion for Extension of Time to Answer re 7 Amended Complaint, 1 Complaint. Signed by Ju Sarah S. Vance on 10/14/2015. (mmm) (Entered: 10/14/2015)

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33 ORDER: Status Conference reset for 11/5/2015 10:00 AM before Judge Sarah S. Vance. FURTHER ORDERED tha Franz L. Zibilich, as a party to the litigation and as an officer of the Orleans Parish Criminal District Court, may par in the status conference. FURTHER ORDERED that defendants shall submit any opposition to plaintiffs' Motion fo Preliminary Injunction to the Court by Tuesday, October 20, 2015 at 9:00 a.m. Signed by Judge Sarah S. Vance on 10/15/2015.(mmm) (Entered: 10/15/2015)
34 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Camille Buras, Harry E Cantrell, Darryl Der Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Pa Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Fra Zibilich. (Attachments: # 1 Proposed Order)Attorney Elizabeth A. Doubleday added to party Camille Buras(pty:dft) Attorney Elizabeth A. Doubleday added to party Harry E Cantrell(pty:dft), Attorney Elizabeth A. Doubleday added Darryl Derbigny(pty:dft), Attorney Elizabeth A. Doubleday added to party Tracey Flemings−Davillier(pty:dft), Atto Elizabeth A. Doubleday added to party Karen K. Herman(pty:dft), Attorney Elizabeth A. Doubleday added to party Hunter(pty:dft), Attorney Elizabeth A. Doubleday added to party Robert J. Kazik(pty:dft), Attorney Elizabeth A. Doubleday added to party Keva Landrum−Johnson(pty:dft), Attorney Elizabeth A. Doubleday added to party Orlean Parish Criminal District Court(pty:dft), Attorney Elizabeth A. Doubleday added to party Robin Pittman(pty:dft), Att Elizabeth A. Doubleday added to party Dennis Waldron(pty:dft), Attorney Elizabeth A. Doubleday added to party L White(pty:dft), Attorney Elizabeth A. Doubleday added to party Benedict Willard(pty:dft), Attorney Elizabeth A. Doubleday added to party Byron C. Williams(pty:dft), Attorney Elizabeth A. Doubleday added to party Franz Zibilich(pty:dft).(Doubleday, Elizabeth) (Entered: 10/15/2015)
35 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 12 MOTION to Dismiss for Failure to State . (Lellelid−Douffet, Anna) (Entered: 10/16/2015)
36 Letter to Judge Vance from Dennis Phayer dated 10/8/15 (jjs) (Entered: 10/19/2015)
37 ORDER granting 34 Motion for Extension of Time to Answer as to Camille Buras answer due 11/3/2015; Harry E C answer due 11/3/2015; Darryl Derbigny answer due 11/3/2015; Tracey Flemings−Davillier answer due 11/3/2015; K K. Herman answer due 11/3/2015; Arthur Hunter answer due 11/3/2015; Robert J. Kazik answer due 11/3/2015; Ke Landrum−Johnson answer due 11/3/2015; Orleans Parish Criminal District Court answer due 11/3/2015; Robin Pittm answer due 11/3/2015; Dennis Waldron answer due 11/3/2015; Laurie A White answer due 11/3/2015; Benedict Wi answer due 11/3/2015; Byron C. Williams answer due 11/3/2015; Franz Zibilich answer due 11/3/2015.. Signed by J Sarah S. Vance on 10/19/15. (jjs) (Entered: 10/19/2015)
38 RESPONSE/MEMORANDUM in Opposition filed by New Orleans City re 8 MOTION for Preliminary Injunction (Williams, Sharonda) (Entered: 10/20/2015)
39 RESPONSE/MEMORANDUM in Opposition filed by Defendants re 8 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit List Supporting Opposition, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 E 5)(Brustowicz, Celeste) Modified on 10/20/2015 (mmm). (Entered: 10/20/2015)
40 RESPONSE/MEMORANDUM in Opposition filed by Marlin N. Gusman re 8 MOTION for Preliminary Injunction (Arcuri, Blake) (Entered: 10/20/2015)
41 ORDER: IT IS ORDERED that a conference by telephone is set in this matter on OCTOBER 21, 2015 at 2:30 p.m. Magistrate Judge Joseph C. Wilkinson, Jr. The purpose of the conference is to discuss settlement possibilities. Coun must participate in the conference by contacting my chambers at 504−589−7630 at the appointed time.Signed by Ma Judge Joseph C. Wilkinson, Jr on 10/20/2015.(my) (Entered: 10/20/2015)
42 Correction of Docket Entry by Clerk re 39 Response/Memorandum in Opposition to Motion. Filing attorney incorre selected "All Defendants" as filer(s), but do not represent New Orleans City, Marlin N. Gusman and Arthur A. Morr future filings, please select appropriate parties. Clerk took corrective action. (mmm) (Entered: 10/20/2015)
43 EXPARTE/CONSENT MOTION for Leave to File Reply to Plainitff's Opposition to Motion to Dismiss by Marlin N Gusman. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Reply to Plaintiffs' Opposition)(Arcuri, Blake) (Entered: 10/21/2015)
44 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/21/2015. After discussions, it appears that the parties are close to reaching an agreement that will render further proceedings concerning the pending motion for preliminary injunction,Record Doc. 8 , unnecessary. Counsel for the defendant judges will circulate a draft of the proposed agreement to all counsel and to me for review as soon as poss and further discussions may then occur. Settlement discussions concerning possible resolution of the case as a whole deferred at this time pending resolution of the subject matter jurisdictional issue raised by defendants in their Octobe 2015 opposition memorandum, Record Doc. 39 , which defense counsel advised will also be the subject of a motion dismiss that they are in the process of preparing. (my)(NEF:SSV) (Entered: 10/22/2015)
45 ORDER granting 43 Motion for Leave to File Reply Memorandum.. Signed by Judge Sarah S. Vance on 10/22/15. ( (Entered: 10/22/2015)

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46 REPLY to Response to Motion filed by Marlin N. Gusman re 12 MOTION to Dismiss for Failure to State a Claim . (Entered: 10/22/2015)
47 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/22/2015. At the request of plaintiffs' counsel, a telephone conference was conducted by me on this date. Participa were: Bill Quigley, Alec Karakatsanis, representing plaintiffs; Adam Swensek, Blake Arcuri, Celeste Brustowicz an Dennis Phayer, representing defendants. Discussions concerning a potential agreement that may render further proce on the pending motion for preliminary injunction unnecessary are continuing. Counsel will inform me no later than Wednesday, October 28, 2015, whether an agreement along the lines discussed during the conference may be finaliz (my)(NEF:SSV) (Entered: 10/22/2015)
48 EXPARTE/CONSENT MOTION for Leave to File Sur Reply in Opposition to Defendant Gusman's Motion to Dism Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # Memorandum in Support, # 2 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 10/27/2015)
49 ORDER denying 48 Motion for Leave to File Sur−Reply.. Signed by Judge Sarah S. Vance on 10/27/15. (jjs) (Main Document 49 replaced on 10/27/2015) (jjs). (Entered: 10/27/2015)
Correction of Docket Entry by Clerk re 49 Order denying Motion for Leave to File Sur−Reply. Correct image attach NEF resent to all counsel. (jjs) (Entered: 10/27/2015)
50 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 7 Amended Complaint, by Arthur A Morrell. (Attachments: # 1 Proposed Order Granting Extension of Time)Attorney Michael Charles Darnell added to party Ar Morrell(pty:dft).(Darnell, Michael) (Entered: 10/27/2015)
51 ORDER granting 50 Motion for Extension of Time to Answer as to Arthur A Morrell answer due 11/17/2015.. Sign Judge Sarah S. Vance on 10/28/15. (jjs) (Entered: 10/28/2015)
52 MOTION to Dismiss for Lack of Jurisdiction by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) will be submitted on 12/9/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Brustowicz, Celeste) (Entered: 11/02/2015)
53 MOTION to Dismiss for Failure to Join Required Parties by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tra Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) will be submitted on 12/9/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # Exhibit 1, # 4 Exhibit 2)(Brustowicz, Celeste) (Entered: 11/02/2015)
54 MOTION to Dismiss on Grounds of Absolute & Qualified Immunity by Camille Buras, Harry E Cantrell, Darryl Der Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Pa Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Fra Zibilich. Motion(s) will be submitted on 12/9/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Subm # 3 Exhibit 1)(Brustowicz, Celeste) (Entered: 11/02/2015)
55 MOTION for More Definite Statement by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Dav Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. Motion referred to (2). Motion(s) will be submitted on 12/9/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Brustowicz, Celeste) Modified on 11/3/2015 (mmm). (Entered: 11/02/2015)
56 DEFICIENT: Request by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. H Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court, Robin Pittman, De Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich for (Attachments: # 1 Memorandum Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Doubleday, Elizabeth) Modified on 11/3/2015 (mmm). (Entered 11/02/2015)
57 Correction of Docket Entry by Clerk re 55 MOTION for More Definite Statement. This motion will be decided by th magistrate judge. Clerk took corrective action. (mmm) (Entered: 11/03/2015)
58 MOTION to Dismiss for Failure to State a Claim by New Orleans City. Motion(s) will be submitted on 11/25/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Swensek, Adam) (Entered: 11/03/2015)
59 MOTION Pursuant to Fed.R.Evid. 201 to Take Judicial Notice by Camille Buras, Harry E Cantrell, Darryl Derbigny Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Pa Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Fra Zibilich. Motion(s) will be submitted on 12/9/2015. (Attachments: # 1 Memorandum in Support, # 2 Notice of Subm # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Doubleday, Elizabeth) (Entered: 11/03/2015)

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60 ORDER − Today, the Court held a status conference in this matter. This status conference has been scheduled since October 15, 2015. Counsel for all parties, except the City of New Orleans, were present. Counsel for the City of New Orleans is admonished that any failure to appear at a previously scheduled conference, hearing, or other proceeding future will result in sanctions.. Signed by Judge Sarah S. Vance on 11/5/15.(jjs) (Entered: 11/05/2015)
61 ORDER − Considering the attached agreement entered into by the parties, IT IS ORDERED that plaintiffs' motion 8 preliminary injunction is hereby dismissed without prejudice.. Signed by Judge Sarah S. Vance on 11/5/15. (Attachm 1 Letter) (jjs) Modified on 11/5/2015 (jjs). (Main Document 61 replaced on 11/5/2015) (jjs). (Entered: 11/05/2015)
Correction of Docket Entry by Clerk re 61 Order on Motion for Preliminary Injunction − Attached corrected image a corrected entry to reflect Preliminary Injunction Motion is dismissed without prejudice. (jjs) (Entered: 11/05/2015)
62 SCHEDULING ORDER: Final Pretrial Conference set for 8/4/2016 03:30 PM before Judge Sarah S. Vance. Jury Tr days) set for 8/22/2016 08:30 AM before Judge Sarah S. Vance. All discovery must be completed by 7/5/2016.. Sign Clerk for Judge Sarah S. Vance. (Attachments: # 1 Pretrial Notice Form)(jjs) (Entered: 11/05/2015)
63 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record Emily Faye Ratner by Ashton Brown, Alana Cain Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 11/16/2015)
64 ORDER granting 63 Motion to Enroll as Counsel of Record for Attorney Emily Faye Ratner for Ashton Brown,Emi Ratner for Alana Cain,Emily Faye Ratner for Thaddeus Long,Emily Faye Ratner for Vanessa Maxwell,Emily Faye R for Reynajia Variste,Emily Faye Ratner for Reynaud Variste. Signed by Judge Sarah S. Vance on 11/17/15. (jjs) (En 11/17/2015)
65 NOTICE of Voluntary Dismissal without prejudice as to Arthur Morrell by All Plaintiffs. (Quigley, William) Modif 11/18/2015 (mmm). (Entered: 11/17/2015)
66 EXPARTE/CONSENT MOTION for Leave to File Excess Pages for Omnibus Response to Judges' Motion to Dismi Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # Proposed Order)(Lellelid−Douffet, Anna) (Entered: 12/01/2015)
67 RESPONSE/MEMORANDUM in Opposition filed by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxw Reynajia Variste, Reynaud Variste re 58 MOTION to Dismiss for Failure to State a Claim . (Lellelid−Douffet, Anna (Entered: 12/01/2015)
68 RESPONSE/MEMORANDUM to Motion filed by All Plaintiffs re 59 MOTION Pursuant to Fed.R.Evid. 201 to Tak Judicial Notice . (Lellelid−Douffet, Anna) (Entered: 12/01/2015)
69 RESPONSE/MEMORANDUM to Motion filed by All Plaintiffs re 55 MOTION for More Definite Statement . (Lellelid−Douffet, Anna) (Entered: 12/01/2015)
70 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 53 MOTION to Dismiss for Failure to Join Required Parties, 52 MOTION to Dismiss for Lack of Jurisdiction , 54 MOTION to Dismiss on Grounds of Absolut Qualified Immunity . (Lellelid−Douffet, Anna) (Entered: 12/01/2015)
71 Request/Statement of Oral Argument by All Plaintiffs regarding 53 MOTION to Dismiss for Failure to Join Require Parties, 58 MOTION to Dismiss for Failure to State a Claim , 12 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction , 54 MOTION to Dismiss on Grounds of Absolute & Qualified Immun (Lellelid−Douffet, Anna) (Entered: 12/01/2015)
72 ORDER granting 66 Motion for Leave to File Excess Pages. Signed by Judge Sarah S. Vance on 12/1/15. (jjs) (Ente 12/01/2015)
73 ORDER denying 71 Request/Statement of Oral Argument, filed by Thaddeus Long, Reynaud Variste, Vanessa Max Alana Cain, Reynajia Variste, Ashton Brown. The Court is currently reviewing the pleadings. If oral argument is dee necessary, the parties will be notified accordingly.. Signed by Judge Sarah S. Vance on 12/1/15.(jjs) (Entered: 12/01
74 ORDER AND REASONS regarding 59 Motion to Take Judicial Notice. See document for specific ruling. Signed by Sarah S. Vance on 12/2/15. (jjs) (Entered: 12/03/2015)
75 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum to Plaintiff's Response to Criminal Court Defendants' Motion for More Definite Statement by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Order, # 2 Reply Memorandum)(Doubled Elizabeth) (Entered: 12/07/2015)

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76 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum to Plaintiff's Response to OPCDC Defenda Motion to Dismiss by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herm Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court, Robin Pittman, De Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Proposed Order, Reply Memorandum)(Doubleday, Elizabeth) Modified on 12/7/2015 (mmm). (Entered: 12/07/2015)
77 ORDER granting 76 Motion for Leave to File Reply Memo.. Signed by Judge Sarah S. Vance on 12/7/15. (jjs) (Ente 12/07/2015)
78 REPLY to Response to Motion filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davill Marlin N. Gusman, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, New Orleans City, Orleans Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C Williams, Franz Zibilich re 54 MOTION to Dismiss on Grounds of Absolute & Qualified Immunity. (jjs) (Entered: 12/07/2015)
79 ORDER granting 75 Motion for Leave to File Reply Memorandum. Signed by Magistrate Judge Joseph C. Wilkinso 12/8/2015. (my) (Entered: 12/08/2015)
80 REPLY to Response to Motion re 55 MOTION for More Definite Statement by Camille Buras, Harry E Cantrell, Da Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia Franz Zibilich. (my) (Entered: 12/08/2015)
81 ORDER DENYING 55 Motion for More Definite Statement. Rule 12(e) permits the court to order plaintiffs to file a definite statement of their claims if the complaint is so vague or ambiguous that the party cannot reasonably prepare response. The complaint in this case is not such a pleading because lack of detail prompting a more definite statemen this complaints problem. The complaint sets out plaintiffs' claims in sufficient detail to permit defendants to respond Defendants can reasonably be required to prepare an answer or other appropriate response to the complaint. If the pe Rule 12 motions to dismiss relating to these movants are denied, these defendants must answer no later than fourteen days from entry of the court's order denying all pending Rule 12 motions to dismiss relating to these movants. Signe Magistrate Judge Joseph C. Wilkinson, Jr on 12/9/2015. (my) (Entered: 12/09/2015)
82 DEFICIENT: Notice of Related Case(s) and Supplemental Authority by All Plaintiffs of related case(s) 3:15−cv−010 (Attachments: # 1 Exhibit, # 2 Exhibit)(Lellelid−Douffet, Anna) Modified on 12/22/2015 (mmm). (Entered: 12/21/2
83 EXPARTE/CONSENT MOTION for Leave to File Notice of Supplemental Authority by Alana Cain, Ashton Brown Vanessa Maxwell, Reynaud Variste, Rynajia Varitse, Thaddeus Long. (Attachments: # 1 Proposed Order, # 2 Propo Pleading, # 3 Proposed Pleading Exhibit A, # 4 Proposed Pleading Exhibit B)(Ratner, Emily) Modified on 12/23/201 (gec). (Entered: 12/22/2015)
84 ORDER denying 83 Motion for Leave to File Notice of Supplemental Authority.. Signed by Judge Sarah S. Vance o 12/23/15. (jjs) (Entered: 12/23/2015)
85 MOTION for Extension of Time to Complete Discovery by Camille Buras, Harry E Cantrell, Darryl Derbigny, Trac Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) will be submitted on 2/3/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Brustowicz, Celeste) Modified on 1/15/2016: Referral Mag (2) (mmm). (Entered: 01/14/2016)
86 MOTION for Protective Order Staying Discovery by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) will be submitted on 2/17/2016. (Attachments: # 1 Memorandum in Support, # 2 Rule 26(C) Certification Notice of Submission, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6)(Brustow Celeste) Modified referral on 1/20/2016 (mmm). (Entered: 01/19/2016)
87 Correction of Docket Entry by Clerk re 86 MOTION for Protective Order Staying Discovery. This motion will be de by the district judge. Clerk took corrective action. (mmm) (Entered: 01/20/2016)
88 EXPARTE/CONSENT MOTION to Dismiss Motion for Protective Order Staying Discovery as Moot by Camille B Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, K Landrum−Johnson, Orleans Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Bened Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 01/2
89 ORDER granting MOTION 88 to Dismiss Motion for Protective Order Staying Discovery as Moot filed by defenda Signed by Judge Sarah S. Vance on 1/21/16.(jjs) (Entered: 01/21/2016)

01/22/2016 90 Letter to Hon. Joseph C. Wilkinson, Jr. from Celeste Brustowicz dated 1/21/2016 (my) (Entered: 01/22/2016)

01/22/2016

91 ORDER GRANTING 85 Motion for Extension of Time to Complete Discovery. Celeste Brustowicz, counsel for mo has advised the court (by letter filed separately in the record), and Alec Karakatsanis, counsel for plaintiffs, has conf that the parties have reached an agreement concerning the referenced motion in that plaintiffs are amenable to an ext of the deadline for defendants to respond to the plaintiffs' discovery to the March 15, 2016, date requested in [defend motion. Accordingly, IT IS ORDERED that defendants respond to plaintiffs' discovery requests fully and in writing accordance with Fed. R. Civ. P. 33 and 34; and make all responsive documents available to plaintiffs' counsel, no lat March 15, 2016.Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/22/2016. (my) (Entered: 01/22/2016)

02/18/2016 92 MOTION to Dismiss Party by Orleans Parish Criminal District Court. Motion(s) will be submitted on 3/16/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Brustowicz, Celeste) (Entered: 02/18/2016)

02/26/2016 93 NOTICE by All Plaintiffs of Constitutional Question. (Attachments: # 1 Exhibit)(Lellelid−Douffet, Anna) (Entered: 02/26/2016)

03/07/2016

94 ORDER − Pursuant to 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 5.1(b), the Court hereby certifies to Attorney General of Louisiana that the constitutionality of Louisiana Revised Statutes §§ 13:1381.5, 22:822 has bee into question. The Attorney General may intervene in this case, if he so chooses, regarding the question of constituti If the Attorney General chooses to intervene, he must do so no later than thirty (30) days from entry of this Order. T Clerk of Court is directed to serve a copy of this Order upon the Attorney General of Louisiana, 1885 North Third S Baton Rouge, Louisiana 70804.. Signed by Judge Sarah S. Vance on 3/7/16. (jjs) (Entered: 03/07/2016)

03/07/2016

95 Second MOTION to Take Judicial Notice Pursuant to FRE 201 by Camille Buras, Harry E Cantrell, Darryl Derbign Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Pa Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Fra Zibilich. Motion(s) will be submitted on 3/30/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Subm # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Brustowicz, Celeste) (Entered: 03/07/2016)

03/08/2016 96 RESPONSE to Motion filed by All Plaintiffs re 92 MOTION to Dismiss Party Orleans Criminal District Court. (Lellelid−Douffet, Anna) (Entered: 03/08/2016)

03/11/2016

97 MOTION to Dismiss Pursuant to FRCP 12(b)(6) by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili Motion(s) will be submitted on 4/13/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Brustowicz, Celeste) (Entered: 03/11/2016)

03/21/2016 98 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 95 Second MOTION to Take Judicial Notice Pursuant to FRE 201 . (Lellelid−Douffet, Anna) (Entered: 03/21/2016)

04/05/2016 99 ***DEFICIENT*** EXPARTE/CONSENT First MOTION for Extension of Time to File Response/Reply as to 94 by Jeff Landry. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Proposed Order)Attorney Emil Andrews added to party Jeff Landry(pty:unk).(Andrews, Emily) Modified on 4/6/2016 (ajn). (Entered: 04/05/2016)

04/05/2016 100 RESPONSE/MEMORANDUM to Motion filed by All Plaintiffs re 97 MOTION to Dismiss Pursuant to FRCP 12(b (Lellelid−Douffet, Anna) Modified text on 4/6/2016 (ajn). (Entered: 04/05/2016)

04/06/2016 101 First MOTION for Extension of Time to File Response/Reply as to Notice of Deficient Filing, 94 Order,, by Jeff La Motion(s) will be submitted on 4/27/2016. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Pro Order, # 4 Notice of Submission)Attorney Emily G Andrews added to party Jeff Landry(pty:unk).(Andrews, Emily) (Entered: 04/06/2016)

04/06/2016 102 EXPARTE/CONSENT First MOTION to Expedite Motion for Extension of Time to Intervene by Jeff Landry. (Attachments: # 1 Proposed Order)(Andrews, Emily) (Entered: 04/06/2016)

04/06/2016 103 ORDER granting 101 Attorney General's Motion for Extension of Time to Intervene. The Attorney General is grante days from the filing of the Notice of Constitutional Question, or until April 26, 2016, to intervene.. Signed by Judge S. Vance on 4/6/16. (jjs) (Entered: 04/06/2016)

04/06/2016 104 ORDER finding as moot 102 Motion to Expedite. Signed by Judge Sarah S. Vance on 4/6/16. (jjs) (Entered: 04/06/2

04/07/2016 105 MOTION to Strike 7 Amended Complaint, Class Action Allegations, MOTION to Dismiss Class Action Allegations Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, R Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A Benedict Willard, Byron C. Williams, Franz Zibilich. Motion(s) will be submitted on 4/27/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Brustowicz, Celeste) Modified on 4/8/2016 (clc). (Entered: 04/07/2016)

04/11/2016 106 EXPARTE/CONSENT MOTION Status conference by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili (Attachments: # 1 Proposed Order)(Phayer, Dennis) (Entered: 04/11/2016)
04/19/2016 107 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 105 MOTION to Strike 7 Amended Complai Class Action Allegations MOTION to Dismiss Class Action Allegations . (Lellelid−Douffet, Anna) (Entered: 04/19/
04/20/2016 108 MOTION to Dismiss for Failure to State a Claim (No Due Process Violations) by Camille Buras, Harry E Cantrell, D Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia Franz Zibilich. Motion(s) will be submitted on 5/11/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice o Submission, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3)(Brustowicz, Celeste) (Entered: 04/20/2016)
04/21/2016 109 ORDER AND REASONS denying 52 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Sarah S. Vance 4/21/16. (jjs) (Entered: 04/21/2016)
04/22/2016 110 ORDER AND REASONS granting in part 95 Motion to take Judicial Notice. Signed by Judge Sarah S. Vance on 4/ (jjs) (Entered: 04/22/2016)
04/22/2016 111 ORDER AND REASONS denying 53 Motion to Dismiss for failure to join indispensable parties.. Signed by Judge S Vance on 4/22/16. (jjs) (Entered: 04/22/2016)
04/29/2016 112 RESPONSE/MEMORANDUM in Opposition to Motion filed by All Plaintiffs re 108 MOTION to Dismiss for Failu State a Claim (No Due Process Violations) . (Lellelid−Douffet, Anna) Modified on 5/2/2016 (mmm). (Entered: 04/2
04/29/2016 113 EXPARTE/CONSENT MOTION to Continue Scheduling Deadlines by Ashton Brown, Alana Cain, Thaddeus Long Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 04/29/2016)
05/02/2016 114 Correction of Docket Entry by Clerk re 112 Response to Motion; 113 MOTION to Continue Scheduling Deadlines. Document does not contain the Magistrate Judge. All future pleadings must reflect Section R, Judge Sarah S. Vance Division 2, Magistrate Judge Joseph C. Wilkinson, Jr. (mmv) (Entered: 05/02/2016)
05/02/2016 115 EXPARTE/CONSENT Motion for Leave to File Reply Memorandum filed by Camille Buras, Harry E Cantrell, Dar Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia Franz Zibilich re 108 MOTION to Dismiss for Failure to State a Claim No Due Process Violations . (Attachments: # Proposed Pleading, # 2 Proposed Order)(Brustowicz, Celeste) Modified event/text on 5/3/2016 (mmv). (Entered: 05/02/2016)
05/03/2016 116 Correction of Docket Entry by Clerk re 115 Reply to Response to Motion. **Filing attorney selected incorrect event Correct event is Motion for Leave to File. Clerk took corrective action by changing the event.** (mmv) (Entered: 05/03/2016)
05/03/2016 117 ORDER granting 115 Motion for Leave to File Reply Memo. Signed by Judge Sarah S. Vance on 5/3/16. (jjs) (Ente 05/03/2016)
05/03/2016 118 REPLY to Response to Motion filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davill Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich re 108 MOTION to Dismiss for Failure to State a Claim (No Due Process Violations). (jjs) (Entered: 05/03/2016)
05/03/2016 119 ORDER AND REASONS granting in part and denying in part defendants' motion 54 to dismiss on grounds of absol qualified immunity.. Signed by Judge Sarah S. Vance on 5/3/16. (jjs) (Entered: 05/03/2016)
05/03/2016 120 ORDER − Having reviewed the parties' motion 106 , the Court has determined that a status conference is unnecessa Local Civil Rule 23.1(B) shall not apply to this case, and the Court will schedule a class certification hearing in due Accordingly, the judicial defendants' motion 105 to dismiss plaintiffs' class action allegations is DENIED at this tim the Court resolves defendants other motions to dismiss, it will notify the parties regarding when a motion for class certification is appropriate. In addition, the Court GRANTS the parties' motion 113 to continue all pretrial deadlines Signed by Judge Sarah S. Vance on 5/3/16. (jjs) (Entered: 05/03/2016)
05/03/2016 121 SCHEDULING ORDER: Considering the Court's order on file herein, Final Pretrial Conference set for 12/21/2016 PM before Judge Sarah S. Vance. Jury Trial (3 days) set for 1/9/2017 08:30 AM before Judge Sarah S. Vance. All discovery must be completed by 11/9/2016.. Signed by Judge Sarah S. Vance on 5/3/16. (Attachments: # 1 Pretrial N Form)(jjs) (Entered: 05/03/2016)

05/05/2016 122 ORDER − Defendants have filed numerous motions to dismiss in this matter. Since plaintiffs filing of their First Am Complaint, defendants have had sufficient time to evaluate the substance of plaintiffs' allegations. As of May 5, 201 Court will not consider any newly filed motions attacking the face of plaintiffs' complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.. Signed by Judge Sarah S. Vance on 5/5/16.(jjs) (Entered: 05/05/2016)
05/11/2016 123 ORDER AND REASONS granting 92 Motion to Dismiss and dismisses plaintiffs' claims against the Orleans Parish Criminal District Court. The Court also dismisses plaintiffs' claims against the court's Judicial Administrator, Robert in his official capacity because when a civil rights plaintiff's claims against an entity "fail for a jurisdictional, proced pleading defect," any official capacity claim against an individual representative of that entity also fails. The only re claims against the "judicial defendants" are the declaratory relief claim against Kazik, in his individual capacity, and declaratory relief claims against the thirteen Criminal District Court judges.. Signed by Judge Sarah S. Vance on 5/1 (jjs) (Entered: 05/11/2016)
05/11/2016 124 ORDER AND REASONS denying 108 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah S. Va 5/11/16. (jjs) (Entered: 05/11/2016)
05/13/2016 125 ORDER & REASONS granting 12 Motion to Dismiss for Failure to State a Claim. Party Marlin N. Gusman (Orlean Parish Sheriff) dismissed. Signed by Judge Sarah S. Vance on 5/13/2016. (mmm) (Entered: 05/13/2016)
05/13/2016 126 ORDER granting 58 Motion to Dismiss for Failure to State a Claim. Party New Orleans City dismissed. Signed by J Sarah S. Vance on 5/13/2016. (mmm) (Entered: 05/13/2016)
05/13/2016 127 DEFICIENT: EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Jon Marshall Greenbaum, Lawyers Comm Civil Rights Under Law (Filing fee $ 100 receipt number 053L−5408546) by Ashton Brown, Alana Cain, Thaddeus Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Lellelid−Dou Anna) Modified on 5/16/2016 (mmm). (Entered: 05/13/2016)
05/13/2016 128 DEFICIENT: EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Mateya Beth Kelley, Lawyers Committee fo Rights Under Law (Filing fee $ 100 receipt number 053L−5408550) by Ashton Brown, Alana Cain, Thaddeus Long Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Lellelid−Douffet, Anna) Modified on 5/16/2016 (mmm). (Entered: 05/13/2016)
05/17/2016 129 ORDER: As requested by Celeste Brustowicz, counsel for defendants, a Status/Settlement Conference is set in this c JUNE 7, 2016 at 3:00 p.m. before Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Build Room B409, New Orleans, Louisiana.Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/17/2016.(my)(NEF: (Entered: 05/17/2016)
05/18/2016 130 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Mateya Beth Kelley, Lawyers Committee for Civil Rights Law (Fee previously paid) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Rey Variste. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lellelid−Douffet, Anna) (Entered: 05/18/2016)
05/18/2016 131 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Jon Marshall Greenbaum, Lawyers Committee for Civil Under Law (Fee previously paid) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Varis Reynaud Variste. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit)(Lellelid−Douffet, Anna) (Entered: 05/18/2016)
05/19/2016 132 EXPARTE/CONSENT MOTION to Dismiss Party Honorable Dennis Waldron, Judge Ad Hoc by Dennis Waldron. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) (Entered: 05/19/2016)
05/19/2016 133 ORDER granting 132 Motion to Dismiss Party. Party Dennis Waldron (Ad Hoc Judge Sect. D of the Orleans Parish Criminal District Court) dismissed. Signed by Judge Sarah S. Vance on 5/19/16. (jjs) (Entered: 05/19/2016)
05/20/2016 134 ORDER granting 130 Motion to Appear Pro Hac Vice as to Mateya Beth Kelley.. Signed by Judge Sarah S. Vance o 5/20/16. (jjs) (Entered: 05/20/2016)
05/20/2016 135 ORDER granting 131 Motion to Appear Pro Hac Vice as to Jon M. Greenbaum.. Signed by Judge Sarah S. Vance on 5/20/16. (jjs) (Entered: 05/20/2016)
05/23/2016 136 ORDER & REASONS denying 97 Motion to Dismiss. Signed by Judge Sarah S. Vance on 5/23/2016. (mmm) (Ente 05/23/2016)
05/26/2016 137 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Hallie Nodgaard Ryan, Laywers Committee for Civil Rig Under Law (Filing fee $ 100 receipt number 053L−5445489) by Ashton Brown, Alana Cain, Thaddeus Long, Vanes Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lellelid−Douffet, Anna) (Entered: 05/26/2016)
05/26/2016 138 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Jonathan P. Guy, Orrick, Herrington and Sutcliff, LLP (F fee $ 100 receipt number 053L−5445491) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reyna

Variste, Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order, # 4 Exhibit)(Lellelid−Douffet (Entered: 05/26/2016)
05/26/2016 139 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Judy Kwan, Orrick, Herrington & Sutcliff, LLP (Filing fe receipt number 053L−5445493) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 05/26/2016)
05/26/2016 140 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice David P. Fuad, Orrick, Herrington & Sutcliffe, LLP (Fili $ 100 receipt number 053L−5445494) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 05/26/2016)
05/26/2016 141 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Christine E. Hanley, Orrick, Herrington & Sutcliffe, LLP fee $ 100 receipt number 053L−5445495) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reyna Variste, Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Lellelid−Douffet (Entered: 05/26/2016)
05/26/2016 142 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Hsiwen Lo, Orrick, Herrington & Sutcliffe, LLP (Filing f 100 receipt number 053L−5445499) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Va Reynaud Variste. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 05/26/2016)
05/27/2016 143 Correction of Docket Entry by Clerk re 141 MOTION to Appear Pro Hac Vice Christine E. Hanley, 138 MOTION t Appear Pro Hac Vice Jonathan P. Guy, 140 MOTION to Appear Pro Hac Vice David P. Fuad, 142 MOTION to App Pro Hac Vice Hsiwen Lo, 139 MOTION to Appear Pro Hac Vice Judy Kwan. ***Documents do not contain Section Magistrate Judge. All future pleadings must reflect Section "R" Sarah S. Vance and Magistrate Judge (2) Joseph C. Wilkinson, Jr.*** (ajn) (Entered: 05/27/2016)
05/31/2016 144 ORDER granting 137 Motion to Appear Pro Hac Vice as to Hallie Nodgaard Ryan.. Signed by Judge Sarah S. Vanc 5/27/16. (jjs) (Entered: 05/31/2016)
05/31/2016 145 ORDER granting 138 Motion to Appear Pro Hac Vice as to Jonathan Phillip Guy.. Signed by Judge Sarah S. Vance 5/27/16. (jjs) (Entered: 05/31/2016)
05/31/2016 146 ORDER granting 139 Motion to Appear Pro Hac Vice as to Judy Kwan.. Signed by Judge Sarah S. Vance on 5/27/1 (Entered: 05/31/2016)
05/31/2016 147 ORDER granting 140 Motion to Appear Pro Hac Vice as to David P. Fuad.. Signed by Judge Sarah S. Vance on 5/2 (jjs) (Entered: 05/31/2016)
05/31/2016 148 ORDER granting 141 Motion to Appear Pro Hac Vice as to Christine Elizabeth Hanley.. Signed by Judge Sarah S. V on 5/27/16. (jjs) (Entered: 05/31/2016)
05/31/2016 149 ORDER granting 142 Motion to Appear Pro Hac Vice as to Hsiwen Lo.. Signed by Judge Sarah S. Vance on 5/27/16 (Entered: 05/31/2016)
06/01/2016 150 ORDER: As requested by Dennis J. Phayer, counsel for defendants, the Status/Settlement Conference previously set matter before me on June 7, 2016 at 3:00 p.m. is hereby POSTPONED to be rescheduled at the request of counsel.S by Magistrate Judge Joseph C. Wilkinson, Jr on 6/1/2016.(my)(NEF:SSV) (Entered: 06/01/2016)
06/14/2016 151 ORDER − As requested by Celeste Brustowicz, counsel for defendants, a Settlement Conference is set in this case o 27, 2016 at 3:00 p.m. before Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, R B409, New Orleans, Louisiana. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/13/2016. (NEF: Judge Van Chambers)(bwn) (Entered: 06/14/2016)
06/26/2016 152 ***DEFICIENT*** EXPARTE/CONSENT MOTION for Leave to File Excess Pages for Motion for Leave to file S Amended Complaint by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud (Attachments: # 1 Proposed Order)(Lellelid−Douffet, Anna) Modified on 6/27/2016 (ajn). (Entered: 06/26/2016)
06/26/2016 153 ***DEFICIENT*** MOTION to Amend/Correct 7 Amended Complaint, by Ashton Brown, Alana Cain, Thaddeus Vanessa Maxwell, Reynajia Variste, Reynaud Variste. Motion(s) will be submitted on 7/20/2016. (Attachments: # 1 of Submission, # 2 Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Ex 10 Memorandum in Support)(Lellelid−Douffet, Anna) Modified on 6/27/2016 (ajn). (Entered: 06/26/2016)
06/28/2016 154 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Settlement Conference held on 6/28/2016. Settlement discussions are continuing. (my) (Entered: 06/28/2016)

06/29/2016 155 EXPARTE/CONSENT MOTION for Leave to File Excess Pages Memorandum in Support of Motion to Amend Com by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. Motion(s) re to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 06/29/2016)
06/29/2016 156 MOTION for Extension of Deadlines by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste. Motion(s) will be submitted on 7/20/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice Submission, # 3 Proposed Order)(Lellelid−Douffet, Anna) (Entered: 06/29/2016)
06/29/2016 157 ***DUPLICATE OF REC. DOC. 159*** MOTION to Amend/Correct 7 Amended Complaint, by Ashton Brown, A Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkin Motion(s) will be submitted on 7/20/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # Proposed Order, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Lellelid−D Anna) Modified on 6/30/2016 (ajn). (Entered: 06/29/2016)
06/29/2016 158 ***DUPLICATE OF REC. DOC. 159*** MOTION to Amend/Correct 7 Amended Complaint, with re−filed Exhibi (redlined version of proposed amended complaint) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwe Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion(s) will be submitted on 7/20/2016. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Proposed Order, # 4 Exhibit, Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Lellelid−Douffet, Anna) Modified on 6/30/2 (ajn). (Entered: 06/29/2016)
06/29/2016 159 MOTION to Amend/Correct 7 Amended Complaint, by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxw Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion(s) will be submitted on 7/20/2016. (Attachments: # 1 Proposed Order, # 2 Notice of Submission, # 3 Memorandum in Support, # 4 Exhibit, Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Lellelid−Douffet, Anna) (Entered: 06/29/20
06/30/2016 160 ORDER denying 155 Motion for Leave to File Excess Pages re Memorandum in Support of Motion to Amend Com Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/30/2016. (my) (Entered: 06/30/2016)
07/06/2016 161 MOTION for Leave to File Second Amended Complaint by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa M Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion(s) will be submitted on 8/ (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission, # 4 Proposed Pleading, Exhibit 2 Redline Version of Proposed Amended Complaint, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit Exhibit 7)(Lellelid−Douffet, Anna) (Entered: 07/06/2016)
07/07/2016 162 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 156 MOTION for Extension of Deadlines . (Attachm 1 Exhibit)(Brustowicz, Celeste) (Entered: 07/07/2016)
07/07/2016 163 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 159 MOTION to Amend/Correct 7 Amended Compl 161 MOTION for Leave to File Second Amended Complaint . (Brustowicz, Celeste) Modified to correct linkage on 7/8/2016 (ajn). (Entered: 07/07/2016)
07/08/2016 164 Correction of Docket Entry by Clerk re 163 Response/Memorandum in Opposition to Motion. ***Filing attorney incorrectly linked document to documents 153, 157 and 158. Document #153 is deficient, documents #157 & #158 a duplicates of document #159.*** Clerk took corrective action. No further action is necessary. (ajn) (Entered: 07/08/
07/20/2016 165 DEFICIENT: REPLY to Response to Motion filed by All Plaintiffs re 161 MOTION for Leave to File Second Amen Complaint . (Lellelid−Douffet, Anna) Modified on 7/21/2016 (mmm). (Entered: 07/20/2016)
07/20/2016 166 DEFICIENT: REPLY to Response to Motion filed by All Plaintiffs re 156 MOTION for Extension of Deadlines . (Lellelid−Douffet, Anna) Modified on 7/21/2016 (mmm). (Entered: 07/20/2016)
07/25/2016 167 EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Opposition to Plaintiff's Motion to File Sec Amended Complaint by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Pleading, # 2 Proposed Order)(Lellelid, A (Entered: 07/25/2016)
07/25/2016 168 EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Opposition to Plaintiff's Motion to Extend Scheduling Deadlines by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Pleading, # 2 Proposed Order)(Lellelid, Anna) (Entered: 07/25/2016)
07/26/2016 169 ORDER granting 167 Motion for Leave to File Reply. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/26/ (my) (Entered: 07/26/2016)

07/26/2016 170 REPLY to Response to Motion filed by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud re 161 MOTION for Leave to File Second Amended Complaint. (my) (Entered: 07/26/2016)
07/26/2016 171 ORDER granting 168 Motion for Leave to File Reply. Signed by Judge Sarah S. Vance. (bwn) (Entered: 07/26/2016
07/26/2016 172 REPLY to Response to Motion filed by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste re 156 MOTION for Extension of Deadlines . (bwn) (Entered: 07/26/2016)
07/26/2016 173 RESPONSE/MEMORANDUM in Opposition filed by New Orleans City re 161 MOTION for Leave to File Second Amended Complaint . (Swensek, Adam) (Entered: 07/26/2016)
07/26/2016 174 RESPONSE/MEMORANDUM in Opposition filed by Marlin N. Gusman re 161 MOTION for Leave to File Second Amended Complaint . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Arcuri, Blake) (E 07/26/2016)
08/03/2016 175 EXPARTE/CONSENT MOTION for Leave to File Reply in Support of Motion to Amend Complaint by Ashton Bro Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Lellelid, Anna) (Entered: 08/03/2016)
08/03/2016 176 EXPARTE/CONSENT MOTION for Leave to File Reply to Sheriff's Opposition by Ashton Brown, Alana Cain, Tha Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachm # 1 Proposed Order)(Lellelid, Anna) (Additional attachment(s) added on 8/4/2016: # 2 Proposed Pleading) (mmm). (Entered: 08/03/2016)
08/03/2016 177 ERROR: DOCKETED AS SEPARATE DOCUMENT. RESPONSE/MEMORANDUM in Opposition filed by Asht Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste re 161 MOTION for Lea File Second Amended Complaint . (Lellelid, Anna) Modified on 8/4/2016 (mmm). (Entered: 08/03/2016)
08/04/2016 178 Correction of Docket Entry by Clerk re 177 Response/Memorandum in Opposition to Motion. Document 177 was incorrectly filed as a separate document instead of an attachment to document 176. Clerk took corrective action. (mm (Entered: 08/04/2016)
08/04/2016 179 ORDER DENYING 161 Motion for Leave to File Amended Complaint. Signed by Magistrate Judge Joseph C. Wilk Jr on 8/4/2016. (my) (Entered: 08/04/2016)
08/04/2016 180 ORDER denying 175 Motion for Leave to File Reply. The motion was decided before this was received by me. My would not change given the arguments contained herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/4 (my) (Entered: 08/04/2016)
08/04/2016 181 ORDER denying 176 Motion for Leave to File Reply. The motion was decided before this was received by me. My would not change given the arguments contained herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/4 (my) (Entered: 08/04/2016)
08/11/2016 182 ANSWER to 7 Amended Complaint, with Jury Demand by Camille Buras, Harry E Cantrell, Darryl Derbigny, Trac Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich.(Brustowicz, Celeste) (Entered: 08/11/2016)
08/18/2016 183 First MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on M for Leave to File Amended Complaint by Alana Cain. Motion(s) will be submitted on 9/14/2016. (Attachments: # 1 Memorandum in Support, # 2 proposed Second Amended Complaint (Clean), # 3 proposed Second Amended Comp (Redline), # 4 Notice of Submission)(Kelley, Mateya) (Entered: 08/18/2016)
08/19/2016 184 Request/Statement of Oral Argument by All Plaintiffs regarding 183 First MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Leave to File Amended Complain (Lellelid, Anna) (Entered: 08/19/2016)
08/25/2016 185 MOTION for Protective Order by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, K Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willar Byron C. Williams, Franz Zibilich. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion(s) will be submitted on 9/28/2016. (Attachments: # 1 Memorandum in Support, # 2 Exhibit List, # 3 Rule 37 Certificate, # 4 Exhibit 1, # 5 E 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhib 14 Exhibit 11, # 15 Notice of Submission)(Brustowicz, Celeste) (Entered: 08/25/2016)
08/29/2016 186 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Settlement Conference held on 8/29/2016. An in−person settlement conference was conducted on June 27, 2016, before the undersigned magistrate After numerous follow up discussions via telephone, I conducted two settlement conferences on this date separately representatives of both sides.Participating were: Alex Karakatsanis, counsel for plaintiffs (via telephone); Celeste Brustowicz, counsel for the judicial defendants, with defendant Honorable Franz Zibilich, Judge of the Orleans Paris Criminal District Court (both in person). Each side has submitted to the court written settlement position papers/prop

The competing proposals contain little common ground and not much basis to conclude that the parties would reach compromise, if left to their own devices. Accordingly, I outlined for each side a twelve−point "mediator's proposal" out a framework for possible settlement between plaintiffs and the judicial defendants only. Counsel for both sides w consider the "mediator's proposal," discuss it with their clients and report their responses orally to me. (my) (Entered 08/30/2016)
09/06/2016 187 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 183 First MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Leave to File Amended Complain (Attachments: # 1 Exhibit Exh. 1 − Docket Sheet, # 2 Exhibit Exh. 2 − Audit Report, # 3 Exhibit Exh. 3 − Table − Changes)(Brustowicz, Celeste) (Entered: 09/06/2016)
09/06/2016 188 RESPONSE/MEMORANDUM in Opposition filed by New Orleans City re 183 First MOTION for APPEAL/REVI MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Leave to File Amended Complain (Swensek, Adam) (Entered: 09/06/2016)
09/06/2016 189 RESPONSE/MEMORANDUM in Opposition filed by Marlin N. Gusman re 183 First MOTION for APPEAL/REV OF MAGISTRATE JUDGE DECISION to District Court re 179 Order on Motion for Leave to File Amended Comp (Arcuri, Blake) (Entered: 09/06/2016)
09/12/2016 190 EXPARTE/CONSENT MOTION to Vacate 121 Scheduling Order, and schedule Status Conference, by Alana Cain. (Attachments: # 1 Proposed Order)(Kelley, Mateya) (Entered: 09/12/2016)
09/12/2016 191 EXPARTE/CONSENT MOTION Status Conference by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Proposed Order)(Brustowicz, Celest (Entered: 09/12/2016)
09/12/2016 192 First MOTION to Compel Responses to Written Discovery by Alana Cain. Motion(s) referred to Joseph C. Wilkinso Motion(s) will be submitted on 9/28/2016. (Attachments: # 1 Memorandum in Support of Plaintiffs Motion to Comp Table of Plaintiffs Requests, Defendants Deficient Responses, and Desired Relief, # 3 Proposed Order, # 4 Notice of Submission, # 5 First Requests for Production to Judges, # 6 First Requests for Production to Kazik, # 7 First Set of Interrogatories to Judges, # 8 First Set of Interrogatories to Kazik, # 9 Defendant Judges Response to Plaintiffs Requ Production, # 10 Defendant Kaziks Response to Plaintiffs Requests for Production, # 11 Defendant Judges Response Plaintiffs Interrogatories, # 12 Defendant Kaziks Response to Plaintiffs Interrogatories, # 13 Brustowicz−Karakatsan Email Exchange of May 14−15, # 14 Declaration of Mateya Beth Kelley, # 15 June 10 Letter from Karakatsanis to Defendants regarding Discovery Deficiencies, # 16 July 3 Letter from Brustowicz to Plaintiffs regarding Discovery Deficiencies, # 17 Defendants Revised Privilege Log, # 18 July 27 Letter from Karakatsanis to Defendants regarding Discovery Deficiencies, # 19 Lellelid−Brustowicz Email Exchange of August 2, # 20 Kelley−Brustowicz Email Exc of August 2−5, # 21 Defendants list of Exhibits produced in response to Plaintiffs Written Discovery, # 22 Kelley−Brustowicz Email Exchange of August 31−September 1, # 23 List of Exhibits to the Motion)(Kelley, Matey (Entered: 09/12/2016)
09/13/2016 193 ORDER − Plaintiffs and Judicial Defendants have filed separate consent motions to set a status conference 190 191 Accordingly, the Court HEREBY SCHEDULES a status conference in this matter before Judge Vance and Magistra Judge Wilkinson. The Court ORDERS counsel for plaintiffs and Judicial Defendants to appear in Judge Vance's cha on Tuesday, October 4, 2016 at 11:00 a.m. to discuss matters raised in the parties' motions. Plaintiffs' September 14, expert report deadline is stayed pending further order of this Court.. Signed by Judge Sarah S. Vance on 9/13/16. (N Mag 2)(jjs) (Entered: 09/13/2016)
09/16/2016 194 EXPARTE/CONSENT MOTION to Withdraw Emily Faye Ratner as Attorney by Alana Cain, Thaddeus Long, Van Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Ratner, Emily) Modified on 9/16/2 (cg). (Entered: 09/16/2016)
09/16/2016 195 RESPONSE/MEMORANDUM in Opposition to Motion filed by All Plaintiffs re 185 MOTION for Protective Orde (Attachments: # 1 Exhibit 1_Plaintiff's Notice of Deposition of Kazik 8/2/16, # 2 Exhibit 2_Plaintiff's Notice of Dep of Judge Laurie White 8/2/16, # 3 Exhibit 3_Plaintiff's Notice of Deposition of Judge Arthur Hunter 8/2/16, # 4 Exh 4_Plaintiff's Notice of Deposition of Judge Franz Zibilich 8/2/16)(Kwan, Judy) Modified on 9/19/2016 (mmm). (En 09/16/2016)
09/19/2016 196 ORDER granting 194 Motion to Withdraw as Attorney. Attorney Emily Faye Ratner terminated. Signed by Judge S Vance on 9/19/16. (jjs) (Entered: 09/19/2016)
09/19/2016 197 DEFICIENT: RESPONSE to Motion filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 192 First MOTION to Compel Responses to Written

Discovery, 185 MOTION for Protective Order . (Attachments: # 1 Memorandum in Support)(Brustowicz, Celeste) Modified on 9/19/2016 (mmm). (Entered: 09/19/2016)
09/19/2016 198 EXPARTE/CONSENT MOTION to Continue Discovery Related Motions by Camille Buras, Harry E Cantrell, Darr Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Pittman, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. Motion(s) referred to Joseph C. Wilk Jr. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Brustowicz, Celeste) (Entered: 09/19/2016)
09/19/2016 199 ORDER re 198 Judicial Defendants' Motion to Continue Discovery Motion withOpposition. Written opposition to th motion, if any, must be filed no later than September 22, 2016. Signed by Magistrate Judge Joseph C. Wilkinson, Jr 9/19/2016.(my) (Entered: 09/19/2016)
09/20/2016 200 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 192 First MOTION to Compel Responses to Written Discovery . (Brustowicz, Celeste) (Entered: 09/20/2016)
09/22/2016 201 RESPONSE to Motion filed by All Plaintiffs re 198 MOTION to Continue Discovery Related Motions . (Kwan, Jud (Entered: 09/22/2016)
09/27/2016 202 MOTION for Summary Judgment by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Wil Byron C. Williams, Franz Zibilich. Motion(s) will be submitted on 10/26/2016. (Attachments: # 1 Memorandum in Support, # 2 Statement of Contested/Uncontested Facts, # 3 Notice of Submission, # 4 Exhibit 1, # 5 Exhibit 2, # 6 E 3, # 7 Exhibit 4, # 8 Exhbit 5, # 9 Exhibit 6)(Doubleday, Elizabeth) (Entered: 09/27/2016)
09/28/2016 203 ORDER Granting 198 MOTION to Continue Discovery Related Motions. Judicial Defendants' Motion for Protective 185 Plaintiffs' Motion to Compel, 192 . The scope, timing and necessity of the discovery that is the subject of these m will be discussed and possibly addressed at the status conference set to occur before Judge Vance and me on Octobe 2016. 193 . Accordingly, determination of these motions is continued to my October 19, 2016 motions docket, pend outcome of the conference.Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/28/2016.(my)(NEF: HON. SAR VANCE) (Entered: 09/28/2016)
10/04/2016 204 Minute Entry for proceedings held before Judge Sarah S. Vance and Magistrate Judge Wilkinson: Status Conference on 10/4/2016. (jjs) (Entered: 10/04/2016)
10/04/2016 205 ORDER suspending trial date until reset by Court. All discovery stayed until 1/1/2017. Deadlines on all other pendin motions are suspended pending further orders. In Chambers Status Conference set for 1/6/2017 11:00 AM before Ju Sarah S. Vance. Signed by Judge Sarah S. Vance on 10/4/2016.(mmm) (Entered: 10/04/2016)
10/04/2016 206 ORDER DISMISSING WITHOUT PREJUDICE 185 Motion for Protective Order; 192 Motion to Compel. The mot dismissed without prejudice in light of the discovery stay imposed at the status conference conducted on October 4, and the parties' ongoing efforts to confect a stipulation of facts. The motions may be reurged after the stay is lifted, i necessary, by simply renoticing them for submission. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/4/2 (my) (Entered: 10/04/2016)
10/04/2016 207 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 10/4 Today I participated in a status conference in which Judge Vance presided. At the conclusion of the status conferenc separately conducted a settlement conference. Further settlement discussions will be conducted as follows: Plaintiffs formulate a proposed settlement agreement and a response to defendants' proposed stipulation of facts for submissio and defense counsel. Thereafter, I will conduct further discussions, including an in−person settlement conference, if appropriate. (my)(NEF: HON. SARAH S. VANCE) (Entered: 10/04/2016)
10/27/2016 208 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 10/27/2016. ORDERED that a follow−up telephone conference will be conducted by me on on November 2, 2016 a a.m. (Central Standard Time). Counsel must participate in the conference by contacting my office at 504−589−7630 appointed time. (cms) (NEF: Judge Vance) (Entered: 10/28/2016)
11/02/2016 209 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 11/2/2016. The parties' previously filed discovery motions, Record Doc. Nos. 185 and 192, which were dismissed w prejudice, Record Doc. No. 206, are hereby re−noticed for submission and determination on my November 30, 2016 motions docket. Counsel may file supplemental memoranda, either in support of or in opposition to these motions, n than November 15, 2016. Further efforts to reach a stipulation of facts that may eliminate or streamline the need for and permit resolution of all or a substantial portion of the asserted claims and defenses through dispositive motion p are ongoing. Counsel will exchange and discuss further stipulation proposals between themselves, and an in−person conference concerning stipulations will be conducted by me beginning at 10:00 a.m. on November 28, 2016. (my)(NEF:HON. SARAH S. VANCE) (Entered: 11/02/2016)

11/15/2016 210 Supplemental Memorandum filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Wil Byron C. Williams, Franz Zibilich, in support of 185 MOTION for Protective Order and in Opposition to Plaintiffs' to Compel. (Doubleday, Elizabeth) (Entered: 11/15/2016)
11/15/2016 211 Supplemental Memorandum filed by All Plaintiffs, in support of 192 First MOTION to Compel Responses to Writte Discovery and opposition to 185 MOTION for Protective Order. (Kelley, Mateya) (Entered: 11/15/2016)
11/28/2016 212 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Pursuant to my previous order, Doc. 209 , a conference was conducted by me on this date. Participating were: Mateya Kelley, representing plaintiff Celeste Brustowicz, representing defendants. Substantial progress was made on counsel's efforts to reach a stipulatio facts that may eliminate or streamline the need for trial and permit resolution of a substantial portion of the asserted and defenses through dispositive motion practice, and counsel are continuing their efforts to do so. Discovery issues addressed. Counsel will advise me in writing no later than November 30, 2016, what issues raised in plaintiffs' pend motion to compel, Record Doc. 192 , remain to be determined by the court. Settlement possibilities were discussed. (my)(NEF: HON. SARAH S. VANCE) (Entered: 11/29/2016)
11/30/2016 213 Supplemental Memorandum filed by All Plaintiffs, in update of 192 First MOTION to Compel Responses to Written Discovery per JCW Order of Nov. 28. (Kelley, Mateya) (Entered: 11/30/2016)
12/08/2016 214 ORDER AND REASONS DENYING 185 Motion for Protective Order; GRANTING IN PART AND DENYING IN PART 192 Motion to Compel as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/8 (mmv) (NEF: J. Vance) (Entered: 12/08/2016)
01/04/2017 215 ORDER: The Status Conference scheduled for Friday, January 6, 2017 at 11:00 a.m. is continued to be rescheduled Court. Signed by Judge Sarah S. Vance on 1/4/2017. (cc: Mag. Wilkinson)(mmm) (Entered: 01/04/2017)
01/06/2017 216 DEFICIENT: MOTION for Reconsideration re 214 Order on Motion for Protective Order, Order on Motion to Com MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 214 Order on Motion Protective Order, Order on Motion to Compel by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Memorandum in Support)(Phayer, D Modified on 1/9/2017 (mmm). (Entered: 01/06/2017)
01/08/2017 217 DEFICIENT: NOTICE by All Plaintiffs Notice of New Authority. (Attachments: # 1 Exhibit Exhibit 1: ODonnell Opinion)(Karakatsanis, Alec) Modified on 1/9/2017 (mmm). (Entered: 01/08/2017)
01/09/2017 218 ORDER: As ordered by Judge Vance, Record Doc. No. 215, a telephone conference is set in this matter before me o JANUARY 10, 2017 at 2:00 p.m. "to confer with counsel to determine the status of their efforts to reach a settlemen stipulation of facts that may facilitate resolution of this case and streamline motions practice." Counsel must particip the conference by contacting my office at 504−589−7630 at the appointed time. Signed by Magistrate Judge Joseph Wilkinson, Jr on 1/9/2017.(my)(NEF:HON. SARAH S. VANCE) (Entered: 01/09/2017)
01/09/2017 219 EXPARTE/CONSENT MOTION for Leave to File Notice of New Authority by Ashton Brown, Alana Cain, Thadde Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Notice of New Authority, # 2 Exhib 1−−ODonnell Opinion, # 3 Proposed Order)(Karakatsanis, Alec) (Entered: 01/09/2017)
01/09/2017 220 MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 214 Order on Motion Protective Order, Order on Motion to Compel by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich. Motion(s) will be submitted on 2/1/2017. (Attachments Memorandum in Support, # 2 Notice of Submission)(Doubleday, Elizabeth) (Entered: 01/09/2017)
01/10/2017 221 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 1/10/2017. IT IS ORDERED that formal discovery,further briefing concerning pending dispositive motions, and fili new dispositive motions remains STAYED, pending issuance of a new scheduling order after a future status confere be conducted by the court.Status Conference by telephone set for 2/2/2017 10:30 AM before Magistrate Judge Josep Wilkinson Jr. (my)(NEF: HON. SARAH S. VANCE) (Entered: 01/11/2017)
01/11/2017 222 ORDER granting 219 Motion for Leave to File Notice of New Authority. Signed by Judge Sarah S. Vance on 1/11/2 (mmm) (Entered: 01/11/2017)
01/11/2017 223 NOTICE of New Authority by All Plaintiffs. (Attachments: # 1 Exhibit)(mmm) (Entered: 01/11/2017)
01/19/2017 224 ORDER: As an exception to the stay on further motion briefing ordered in Record Doc. 221 , IT IS ORDERED that plaintiffs are directed to file their written memorandum in opposition to the Judicial Defendants' Motion for District Review and Reversal of Magistrate's Order Pursuant to Fed. R. Civ. P. 72, Record Doc. 220 .Signed by Magistrate J Joseph C. Wilkinson, Jr on 1/19/2017.(my)(NEF: HON. SARAH S. VANCE) (Entered: 01/19/2017)

01/24/2017 225 ORDER denying without prejudice 202 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 1/24/20 (mmm) (Entered: 01/24/2017)
01/24/2017 226 RESPONSE/MEMORANDUM in Opposition to Motion filed by Ashton Brown, Alana Cain re 220 MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to District Court re 214 Order on Motion for Protectiv Order on Motion to Compel . (Kwan, Judy) (Entered: 01/24/2017)
02/02/2017 227 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 2/2/2017. IT IS ORDERED that before transcription of these proceedings is obtained, defense counsel must obtain a faith estimate of the costs of producing those transcripts and provide that estimate in writing to plaintiffs' counsel wi copy to me. After the amount of those costs is estimated, I will determine whether the costs of those transcripts shou borne by plaintiffs' counsel. (cg)(cc:HON. Sarah S. Vance) (Entered: 02/02/2017)
02/03/2017 228 ORDER AND REASONS − the Magistrate Judge's order is MODIFIED as follows. Plaintiffs' motion to amend is GRANTED as to the amendments regarding Counts Four and Seven against Sheriff Gusman. Plaintiffs' motion to am DENIED as to the amendments regarding: Counts One, Two, and Three against Sheriff Gusman; Claims against the New Orleans; Claims against Judicial Administrator Robert Kazik; Claims against Orleans Parish Criminal District Plaintiffs' motion for extension of deadlines is DENIED AS MOOT. The Court will issue a new scheduling order se after a status conference with all counsel. Signed by Judge Sarah S. Vance on 2/3/17. (NEF: Mag 2) (jjs) (Entered: 02/03/2017)
02/07/2017 229 ORDER: Status Conference set for 2/21/2017 10:30 AM before Judge Sarah S. Vance. Signed by Judge Sarah S. Va 2/7/2017. (cc: Mag.Wilkinson)(mmm) (Entered: 02/07/2017)
02/10/2017 230 MOTION to Certify Class by Ashton Brown, Alana Cain. Motion(s) will be submitted on 3/15/2017. (Attachments: Memorandum in Support, # 2 Notice of Submission, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order)(Lellelid, Anna) (E 02/10/2017)
02/16/2017 231 EXPARTE/CONSENT First MOTION to Continue Feb. 21 Status Conference by Ashton Brown, Alana Cain. (Attachments: # 1 Proposed Order)(Kelley, Mateya) (Entered: 02/16/2017)
02/16/2017 232 ORDER granting 231 First MOTION to Continue Feb. 21 Status Conference. Status Conference reset for 3/10/2017 PM before Judge Sarah S. Vance. Signed by Judge Sarah S. Vance on 2/16/2017.(mmm) Modified on 2/17/2017 (jjs reflect (NEF: Mag 2). (Entered: 02/16/2017)
02/21/2017 233 EXPARTE/CONSENT MOTION to Continue Plaintiffs' Motion for Class Certification by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachm 1 Proposed Order)(Doubleday, Elizabeth) (Entered: 02/21/2017)
02/22/2017 234 ORDER granting 233 Motion to Continue. A new submission date and date for consideration of the plaintiffs' motio be determined during or after the status conference on March 10, 2017. Signed by Judge Sarah S. Vance on 2/22/201 (Entered: 02/22/2017)
03/07/2017 235 ORDER & REASONS denying 220 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Co Signed by Judge Sarah S. Vance on 3/7/2017. (mmm) (Entered: 03/07/2017)
03/10/2017 236 Minute Entry for proceedings held before Judge Sarah S. Vance: Status Conference held on 3/10/2017. (mmm) (Ent 03/10/2017)
03/14/2017 237 ORDER denying without prejudice 230 Motion to Certify Class. Counsel are to comply with deadlines set forth with document. Signed by Judge Sarah S. Vance on 230. (mmm) (Entered: 03/14/2017)
04/05/2017 238 Response/Reply in Opposition to Consolidation of LaFrance Suite by Camille Buras, Harry E Cantrell, Darryl Derbi Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pitt Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich (Attachments: # 1 Exhibit 1)(Brustowicz, Cel Modified text on 4/6/2017 (cg). (Entered: 04/05/2017)
04/11/2017 239 Judicial Defendants' ANSWER with Jury Demand to Second Amended Class Action Complaint by Camille Buras, H Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich.(Brustowi Celeste) Modified text/filers on 4/12/2017 (mmm). (Entered: 04/11/2017)
05/09/2017 240 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference by telephone on 5/9/2017. Substantial progress toward formulation of a stipulation of facts has been made, particularly given the Herculean task of doing so in light of the large number of cases and persons involved. To facilitate and expedite that process, IT IS ORDERED that defendants must provide their anticipated supplemental discovery responses and affid related to their proposed fact stipulations no later than May 16, 2017. As to those areas as to which fact stipulations be possible, counsel were encouraged to limit those to truly material facts and consider posing them in a separate sec

their submissions as assumptions to be deemed true, solely for purposes of particular limited areas of anticipated dis motion practice. (my)(NEF: HON. SARAH S. VANCE) (Entered: 05/10/2017)
05/10/2017 241 Deficient: EXPARTE/CONSENT MOTION for Extension of Deadlines by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia Franz Zibilich. (Attachments: # 1 Proposed Order)(Brustowicz, Celeste) Modified on 5/11/2017 (cg). (Entered: 05/1
05/15/2017 242 MOTION for Extension of Deadlines by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davil Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. Motion(s) will be submitted on 6/7/2017. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission)(Brustowicz, Celeste) (Entered: 05/15/2017)
05/15/2017 243 EXPARTE/CONSENT MOTION to Expedite by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Brustowicz, Celeste) (Entered: 05/15/2017)
05/15/2017 244 RESPONSE to Motion filed by All Plaintiffs re 243 MOTION to Expedite Consenting to Motion. (Kelley, Mateya) (Entered: 05/15/2017)
05/15/2017 245 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 242 MOTION for Extension of Deadlines Consenting to Two Week Extension. (Kelley, Mateya) (Entered: 05/15/2017)
05/18/2017 246 ORDER granting 242 Motion for Extension of Deadlines; granting 243 Motion to Expedite. The Court's scheduling March, 14 2017 is MODIFIED as follows: (1) the parties shall file cross−motions for summary judgment on Counts 5 and 6 on or before June 20, 2017; (2) responses to these motions shall be submitted on or before July 5, 2017; (3) r shall be submitted on or before July 19, 2017. All other provisions of the Court's March 14, 2017 order remain unch Signed by Judge Sarah S. Vance on 5/18/2017. (cg) (Entered: 05/18/2017)
05/23/2017 247 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 5/23 At my direction, a status conference was conducted on this date in this case. Participating were Alec Karakatsanis an Mateya Kelley, representing plaintiffs; Celeste Brustowicz, representing defendants. The parties have crafted an exte stipulation of facts upon which they will base dispositive motions. They cannot agree upon a few additional stipulati proposed by defendants. I have conferred with Judge Vance concerning these matters. While full dispositive motion practice and briefing might conceivably indicate otherwise at some later date, it appears at this time that the propose as to which agreement cannot be reached are not material to most of what is anticipated to be addressed by the motio to defendants' proposed facts relating to its anticipated "voluntary cessation" motion, defendants are instructed to sup their motion addressed to that issue with one or more affidavits or other evidentiary materials, and plaintiffs may res any manner they deem appropriate, including the procedure contemplated by Fed. R. Civ. 56(d). (my)(NEF: HON S S. VANCE) (Entered: 05/23/2017)
06/16/2017 248 NOTICE by All Plaintiffs of Joint Fact Stipulations for Purposes of Summary Judgment. (Attachments: # 1 Exhibits (1−8))(Kelley, Mateya) (Entered: 06/16/2017)
06/19/2017 249 ORDER AND REASONS − Dismissing Claims and Consolidating Cases. For the foregoing reasons, the following c are DISMISSED:(1) Count One, against the City of New Orleans, the Orleans Parish Criminal District Court, Rober and Sheriff Gusman in his official capacity; (2) Count Two, against Sheriff Gusman is his official and individual cap (3) Count Three, against the Orleans Parish Criminal District Court and Robert Kazik; (4) Count Four, against the O Parish Criminal District Court and Robert Kazik; (5) Count Five, against the Orleans Parish Criminal District Court Robert Kazik. It is further ORDERED that this case be consolidated with Cain v. City of New Orleans, 15−4479. M Case will be 15−4479. Signed by Judge Sarah S. Vance on 6/19/2017.(cg) (Entered: 06/19/2017)
06/19/2017 250 Joint MOTION for Summary Judgment by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Da Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Criminal District Court Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Memorandum in Support, # 2 Statement of Contested/Uncontested Facts, # 3 Affidavit, # 4 Affidavit)(Reference: 15−4479)(Brustowicz, Celeste) (Entered: 06/19/2017)
06/20/2017 251 MOTION for Partial Summary Judgment by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reyna Variste, Reynaud Variste. Motion(s) will be submitted on 7/19/2017. (Attachments: # 1 Memorandum in Support, # Statement of Contested/Uncontested Facts, # 3 Notice of Submission, # 4 Request for Judicial Notice, # 5 Exhibit (1 through 34 Combined))(Reference: 15−4479)(Kwan, Judy) (Entered: 06/20/2017)
06/26/2017 252 ***DEFICIENT*** RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Parish Criminal District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Willia

Franz Zibilich re 251 MOTION for Partial Summary Judgment Request for Judicial Notice. (Reference: 15−4479)(Brustowicz, Celeste) Modified on 7/5/2017 (ajn). (Entered: 06/26/2017)

06/30/2017 253 DEFICIENT: EXPARTE/CONSENT MOTION to Join (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Reference: All cases)(cg) (Entered: 06/30/2017)

07/03/2017 254 EXPARTE/CONSENT MOTION to Withdraw Judy Kwan as Attorney by Ashton Brown, Alana Cain, Thaddeus Lo Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Reference: 2:15−cv−04479)(Kwan, Judy) (Entered: 07/03/2017)

07/03/2017 255 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Robin Pittman, La White, Benedict Willard, Byron C. Williams, Franz Zibilich re 251 MOTION for Partial Summary Judgment Pltf's M Facts Statement. (Attachments: # 1 Exhibit 1 − Kazik Affidavit, # 2 Exhibit 2 − Statistical Data, # 3 Exhibit 3 − Tra of Plea (5/30/13), # 4 Exhibit 4 − Transcript of Plea (12/16/13))(Reference: 4479)(Brustowicz, Celeste) (Main Docu 255 replaced on 7/5/2017) (ajn). (Additional attachment(s) added on 7/5/2017: # 5 Statement of Contested/Uncontes Facts) (ajn). (Entered: 07/03/2017)

07/03/2017 256 ***FILED IN ERROR − ADDED AS MAIN DOCUMENT TO REC. DOC. 255.*** RESPONSE/MEMORANDU Opposition filed by All Defendants re MOTION for Partial Summary Judgment. (Reference: 4479)(Brustowicz, Cel Modified on 7/5/2017 to remove link (ajn). (Entered: 07/03/2017)

07/05/2017 257 Correction of Docket Entry by Clerk re 255 Response/Memorandum in Opposition to Motion, 256 Response/Memo in Opposition to Motion. ***These filings should have been filed as one with the Response Memorandum as the ma document and the Statement of Facts as an attachment as well as the exhibits. Rec. Doc. 256 is now the main docum Doc. 255 and the Statement of Facts is an attachment. No further action is necessary.*** (Reference: 15−4479)(ajn) (Entered: 07/05/2017)

07/05/2017 258 ORDER granting 254 Motion to Withdraw as Attorney. Attorney Judy Kwan terminated. Signed by Judge Sarah S. on 7/5/2017. (Reference: 15−4479)(ajn) (Entered: 07/05/2017)

07/05/2017 259 RESPONSE/MEMORANDUM in Opposition filed by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxw Reynajia Variste, Reynaud Variste re 250 Joint MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Affidavit of Mateya Kelley)(Reference: 15cv4479)(Fuad, David) (Entered: 07/05/

07/10/2017 260 REPLY to Response to Motion filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davil Marlin N. Gusman, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Crim District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili 250 Joint MOTION for Summary Judgment . (Reference: 15−4479)(Brustowicz, Celeste) Modified on 7/11/2017 (c (Entered: 07/10/2017)

07/11/2017 261 Correction of Docket Entry by Clerk re Notice of Deficient Filing. Disregard−Leave was granted on 5/15/2017. Doc will stand as is. (Reference: 15−4479)(cg) (Entered: 07/11/2017)

07/19/2017 262 REPLY to Response to Motion filed by All Plaintiffs re 251 MOTION for Partial Summary Judgment . (Reference: 15−cv−04479)(Kelley, Mateya) (Entered: 07/19/2017)

07/20/2017 263 MOTION by David Christenson to Join. Set for submission on August 30, 2017 before Judge Sarah S. Vance. (Attachments: # 1 Motion, # 2 Exhibit 1, # 3 Exhibit 2)(Reference: All Cases)(cg) Modified on 7/21/2017 (jjs). (Ent 07/20/2017)

07/20/2017 264 NOTICE OF APPEAL by David Christenson. (Reference: All Cases)(cg) Modified on 7/21/2017 (jjs). (Entered: 07/20/2017)

07/21/2017

Correction of Docket Entry by Clerk re 263 MOTION by David Christenson to Join. Set for submission without ora argument on 8/30/17. (Reference: ALL CASES)(jjs) (Entered: 07/21/2017)

07/27/2017 265 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Robert J. Kazik, Keva Landrum−Johnson, Orleans Parish Cr District Court, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibili 263 MOTION to Join . (Reference: 15−4479)(Brustowicz, Celeste) (Entered: 07/27/2017)

08/03/2017 266 DEFICIENT: REPLY to Response to Motion re 263 MOTION to Join by David Christenson. (Reference: all cases)( (Entered: 08/03/2017)

08/03/2017 267 NOTICE OF DEFICIENT DOCUMENT: re 266 Reply to Response to Motion. Please see attached letter for steps n to remedy deficiency. Deficiency remedy due by 8/24/2017. (Reference: all cases)(cg) (Entered: 08/03/2017)

08/07/2017 268 EXPARTE/CONSENT MOTION for Leave to File Response to Defendant's Opposition filed by David Christenson (Attachments: # 1 Proposed Pleading)(Reference: all cases)(cg) (Entered: 08/07/2017)

08/08/2017 269 ORDER granting 268 Motion for Leave to File Reply. Signed by Judge Sarah S. Vance on 8/8/2017. (Reference: all cases)(cg)(cc David Christenson via us mail). (Entered: 08/08/2017)

08/08/2017 270 REPLY to Response to Motion re 263 MOTION to Join by David Christenson. (Reference: all cases)(cg) (Entered: 08/08/2017)

08/11/2017 271 ORDER denying 263 Motion to Join filed by David Christenson. Signed by Judge Sarah S. Vance on 8/11/2017. (Reference: all cases)(cg)(cc: David Christenson via US Mail) (Entered: 08/11/2017)

09/06/2017 272 ORDER Setting ORAL ARGUMENT − IT IS ORDERED that oral argument is hereby set for WEDNESDAY, OCT 11, 2017 at 10:30 a.m. on the motion by the Judicial Defendants and the Sheriff for Summary Judgment (Rec. Doc. N 250) and the motion by plaintiffs for partial summary judgment (Rec. Doc. No. 251). Signed by Judge Sarah S. Van 9/6/2017.(Reference: All Cases)(cg) (Entered: 09/06/2017)

09/11/2017 273 Motion for Reconsideration of the Court's order 271 denying Motion to Join by David Christenson. Motion set for submission on 1/31/18 at 10:00 a.m. before District Judge Sarah S. Vance. (Attachments: # 1 Exhibit # 2 Notice of Submission (jjs). Modified on 9/18/2017 (jjs). (Entered: 09/13/2017)

09/18/2017

Correction of Docket Entry by Clerk re 273 MOTION for Reconsideration by Christenson. Document re−docketed a Motion for Reconsideration set for submission on 1/31/2018. (Reference: ALL CASES)(jjs) (Entered: 09/18/2017)

09/19/2017 274 ORDER RESETTING MOTION SUBMISSION DATE − IT IS ORDERED that the Motion for Reconsideration fil David Christenson (Rec. Doc. No. 273) presently set for submission on January 31, 2018 is hereby reset for submiss OCTOBER 25, 2017. The motion will be decided on the briefs without oral argument. Opposition memoranda, if an be filed no later than Tuesday, October 17,2017. Signed by Judge Sarah S. Vance on 9/19/2017.(Reference: All Cas (Entered: 09/19/2017)

10/03/2017 275 ORDER − The parties' cross−motions for summary judgment are scheduled for oral argument on October 11, 2017, 10:30 a.m. The Court ORDERS that the parties limit their arguments to the following issues: 1. Whether the named plaintiffs' claims are moot because their court debts have been suspended, waived, or paid.2. Whether defendants' vo conduct has mooted any claims. 3. Whether plaintiffs are entitled summary judgment on Counts One, Two, Four, Fi Six. Signed by Judge Sarah S. Vance on 10/3/2017.(Reference: All cases)(cg) (Entered: 10/03/2017)

10/11/2017 276 Minute Entry for proceedings held before Judge Sarah S. Vance: Motion Hearing held on 10/11/2017 re 251 MOTIO Partial Summary Judgment and 250 Joint MOTION for Summary Judgment. Motions taken under advisement after argument. (Court Reporter Toni Tusa) (Reference: ALL CASES)(jjs) (Entered: 10/11/2017)

10/17/2017 277 EXPARTE/CONSENT First MOTION for Leave to File Sur−reply as to 251 Partial Motion for Summary Judgmen Ashton Brown, Alana Cain. (Attachments: # 1 Exhibit 1− Sur−reply (Proposed), # 2 Proposed Order)(Reference: 15−cv−04479)(Kelley, Mateya) Modified link on 10/17/2017 (cg). (Entered: 10/17/2017)

10/18/2017 278 ORDER denying 277 Motion for Leave to File Sur−Reply. Signed by Judge Sarah S. Vance on 10/18/2017. (Refere cases)(cg) (Entered: 10/18/2017)

12/13/2017 279 ORDER AND REASONS granting in part and denying in part 250 and 251 Motion for Partial Summary Judgment. foregoing reasons, the Court GRANTS plaintiffs' motion for summary judgment on Count Five. The Court GRANT defendants' motion for summary judgment on Counts One, Two, and Four. The parties' motions are otherwise DENI Counts One, Two, and Four are DISMISSED AS MOOT. Administrator Kazik is DISMISSED from this case. Signe Judge Sarah S. Vance on 12/13/2017. (Reference: 15−4479)(cg) (Entered: 12/13/2017)

01/02/2018 280 Request by All Plaintiffs for Schedule or Status Conference (Reference: 15−cv−4479)(Kelley, Mateya) (Entered: 01/02/2018)

01/05/2018 281 ORDER − The Court will hold a status conference in the courtroom on Thursday, February 1, 2018, at 2:00 p.m. On before the status conference, counsel will file letters with the Court with their proposals on a schedule for the dispos remaining issues. Signed by Judge Sarah S. Vance on 1/5/2018.(Reference: 15−4479)(cg) (Entered: 01/05/2018)

01/25/2018 282 Response/Reply by All Plaintiffs to Order of Jan. 5, 2018 (Attachments: # 1 Appendix OPCDC Response, # 2 Appe Sheriff Response)(Reference: 4479)(Kelley, Mateya) (Entered: 01/25/2018)

01/30/2018 283 ORDER − Because of a conflict in the Court's calendar, the status conferencescheduled on Thursday, February 1, 20 hereby continued to 3:00 p.m. on the same date. Signed by Judge Sarah S. Vance on 1/30/2018.(Reference: all cases (Entered: 01/30/2018)

01/30/2018 284 ORDERED that the Court's January 30, 2018 order 283 resetting the February 1, 2018 status conference to 3:00 p.m hereby withdrawn. The conference will go forward at 2:00 p.m. that day as originally set. Signed by Judge Sarah S. on 1/30/18.(Reference: ALL CASES)(jjs) (Entered: 01/30/2018)

02/01/2018 285 Minute Entry for proceedings held before Judge Sarah S. Vance: Status Conference held on 2/1/2018. (Reference: A CASES)(jjs) (Entered: 02/01/2018)
02/05/2018 286 ORDER: A telephone status conference will be conducted on February 7, 2018 at 3:00 p.m. to discuss settlement possibilities. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/5/2018.(Reference: 15−4479)(clc) (Entered: 02/05/2018)
02/05/2018 287 ORDER − The Court enters the following briefing schedule to dispose ofoutstanding issues in this case. The parties have 45 days to negotiate a consent decree or otherwise seek settlement. For good cause, the parties may seek additi time for these negotiations. The parties shall have 30 days after the conclusion of these negotiations to file motions o remaining issues (if any), including class certification, summary judgment on Counts 6 and 7 of the Cain complaint, summary judgment on Count 5 of the LaFrance complaint. The parties shall have 15 days to respond to these motion 7 days to reply. Signed by Judge Sarah S. Vance on 2/5/2018.(Reference: all cases)(cg) (Entered: 02/05/2018)
02/07/2018 288 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Status Conference held on 2/7/ Further settlement discussions will occur as set forth herein. (Reference: ALL CASES)(caa) (Entered: 02/08/2018)
02/28/2018 289 ORDER: As requested by the parties, a Settlement Conference is set in this case on MARCH 19, 2018 at 2:00 p.m. b Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, Room B409, New Orleans, Lo The conference will include only the following participants: William Quigley and Alec Karakatsanis, counsel for pla Blake Arcuri, counsel for defendant Sheriff Marlin Gusman; and defendant New Orleans City's attorney. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/28/2018.(Reference: All Cases)(mmv) (NEF: HON. SARAH S. VAN (Entered: 02/28/2018)
03/05/2018 290 ORDER denying 273 Motion for Reconsideration. IT IS ORDERED that the motion is DENIED. Signed by Judge S Vance on 3/5/2018. (Reference: all cases)(cg) (Entered: 03/05/2018)
03/12/2018 291 NOTICE OF APPEAL by David Christenson. (Reference: all cases)(cg) (Entered: 03/13/2018)
03/19/2018 292 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Settlement Conference held on 3/19/2018. Settlement discussions concerning the individual claims of the eight named plas against the Sheriff are on Counsel for the Sheriff will advise me no later than Friday, 3/23/2018, of the sheriffs settlement position. (NEF: Sec (Reference: ALL CASES) (caa) (Entered: 03/20/2018)
04/16/2018 293 ORDER − On February 5, 2018, the Court entered a briefing schedule for motions on remaining issues in this case. A motions are due on April 23, 2018. The Court will not reconsider any previous rulings, and the parties shall not reurg previously rejected arguments. Responses shall be due on May 8. The parties may file reply briefs by May 15. The C will hear oral argument on these motions at 10:00 a.m. on June 20, 2018. Signed by Judge Sarah S. Vance on 4/16/2018.(Reference: all cases)(cg) (Entered: 04/16/2018)
04/16/2018 294 USCA Case Number 18−30352 appealed to Fifth Circuit Court of Appeal for 264 Notice of Appeal, 291 Notice of A (Reference: All)(sbs) (Entered: 04/16/2018)
04/23/2018 295 MOTION for Summary Judgment by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillie Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byro Williams, Franz Zibilich. Motion(s) will be submitted on 6/20/2018. (Attachments: # 1 Memorandum in Support, # Statement of Contested/Uncontested Facts)(Reference: 2:15−cv−04479)Attorney Erika Mullenbach Cunningham ad party Camille Buras(pty:dft), Attorney Erika Mullenbach Cunningham added to party Harry E. Cantrell(pty:dft), Att Erika Mullenbach Cunningham added to party Darryl Derbigny(pty:dft), Attorney Erika Mullenbach Cunningham a party Tracey Flemings−Davillier(pty:dft), Attorney Erika Mullenbach Cunningham added to party Karen K. Herman(pty:dft), Attorney Erika Mullenbach Cunningham added to party Arthur Hunter(pty:dft), Attorney Erika Mullenbach Cunningham added to party Keva Landrum−Johnson(pty:dft), Attorney Erika Mullenbach Cunningham to party Robin Pittman(pty:dft), Attorney Erika Mullenbach Cunningham added to party Laurie A White(pty:dft), A Erika Mullenbach Cunningham added to party Benedict Willard(pty:dft), Attorney Erika Mullenbach Cunningham a party Byron C. Williams(pty:dft), Attorney Erika Mullenbach Cunningham added to party Franz Zibilich(pty:dft).(Cunningham, Erika) (Entered: 04/23/2018)
04/23/2018 296 MOTION to Certify Class by Ashton Brown, Alana Cain. Motion(s) will be submitted on 6/20/2018. (Attachments: Memorandum in Support of Plaintiffs' Motion to Certify a Class, # 2 Notice of Submission, # 3 Affidavit of Alec Karakatsanis, # 4 Affidavit of Jon M. Greenbaum, # 5 Affidavit of David P. Fuad, # 6 Affidavit of William P. Quigl Proposed Order)(Reference: 15cv4479)(Fuad, David) (Entered: 04/23/2018)
04/24/2018 297 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: After follow−up settlement discussions by telephone, the court has been advised by Blake Arcuri, counsel for Sheriff Gusman, that a settlement been reached between plaintiffs and the Orleans Parish Sheriff. By copy of this minute entry, Judge Vance is advised she may enter an appropriate partial conditional dismissal order as to the claims against the Sheriff only. (Reference Cases)(mmv) (NEF: HON. SARAH S. VANCE) (Entered: 04/24/2018)

04/24/2018 298 ORDER of PARTIAL DISMISSAL − The Court having been advised by counsel that the plaintiffs and the Orleans Sheriff have firmly agreed upon a compromise in both matters; IT IS ORDERED that this action be and it is hereby dismissed as to the Orleans Parish Sheriff only in both Civil Action 15−4479 and 16−14439, without costs and witho prejudice to the right, upon good cause shown, within sixty days, to reopen the actions against the Orleans Parish Sh settlement is not consummated. In addition, the Court specifically retains jurisdiction to enforce the settlement agree settlement is not consummated in sixty days. Signed by Judge Sarah S. Vance on 4/24/2018.(Reference: 15−4479, 16−14439)(cg) (Entered: 04/24/2018)
05/04/2018 301 ORDER of USCA as to 264 Notice of Appeal. Under 5TH CIR. R. 42.3, the appeal is dismissed as of May 3, 2018, want of prosecution. The appellant failed to timely pay the fee, and to order transcript and make financial arrangeme with the court reporter. (Reference: 15−4479)(cg) (Entered: 05/08/2018)
05/07/2018 299 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Be Willard, Byron C. Williams, Franz Zibilich re 296 MOTION to Certify Class . (Reference: All Cases)(Cunningham, Modified text on 5/8/2018 (am). (Entered: 05/07/2018)
05/07/2018 300 EXPARTE/CONSENT MOTION to Withdraw Celeste Brustowicz as Attorney by Camille Buras, Harry E. Cantrell Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, L White, Benedict Willard, Byron C. Williams, Franz Zibilich. (Attachments: # 1 Proposed Order)(Reference: All Cases)(Phayer, Dennis) Modified text on 5/8/2018 (am). (Entered: 05/07/2018)
05/08/2018 302 Correction of Docket Entry by Clerk re 300 MOTION to Withdraw Celeste Brustowicz as Attorney .**In Consolida Matters, the caption must list all case(s) that are consolidated together and include a separate reference to list the cas which the pleading pertains and that same case number(s) must be referenced in the docket entry. If the caption does specifically state the case(s) to which the pleading pertains, then all cases will be listed. Please follow this requireme all future filings.** (Reference: All Cases)(am) (Entered: 05/08/2018)
05/08/2018 303 Correction of Docket Entry by Clerk re 299 Response/Memorandum in Opposition to Motion.**In Consolidated Ma the caption must list all case(s) that are consolidated together and include a separate reference to list the case(s) to w pleading pertains and that same case number(s) must be referenced in the docket entry. If the caption does not specif state the case(s) to which the pleading pertains, then all cases will be listed. Please follow this requirement for all fut filings.** (Reference: All Cases)(am) (Entered: 05/08/2018)
05/08/2018 304 ORDER granting 300 Motion to Withdraw as Attorney. Attorney Celeste Brustowicz terminated as counsel of recor Judicial Defendants, Honorable Judge Laurie A. White, Honorable Judge Tracey Flemings−Davillier, Honorable Jud Benedict Willard, Honorable Judge Keva Landrum−Johnson, Honorable Judge Robin Pittman, Honorable Judge Byr Williams, Honorable Judge Camille Buras, Honorable Judge Karen K. Herman, Honorable Judge Darryl Derbigny, Honorable Judge Arthur Hunter, Honorable Judge Franz Zibilich, and Magistrate Judge Harry Cantrell. Signed by Ju Sarah S. Vance on 5/8/2018. (Reference: all cases)(cg) (Entered: 05/08/2018)
05/08/2018 305 RESPONSE/MEMORANDUM in Opposition to Motion filed by Ashton Brown, Alana Cain re 295 MOTION for Summary Judgment . (Reference: (Reference: 15cv4479))(Fuad, David) Modified text on 5/9/2018 (am). (Additiona attachment(s) added on 5/9/2018: # 1 Statement of Contested/Uncontested Facts) (am). (Entered: 05/08/2018)
05/08/2018 306 FILED IN ERROR: Statement of Facts by Ashton Brown, Alana Cain regarding 295 MOTION for Summary Judgm (Plaintiffs' Statement of Material Facts in Opposition to Defendants' Motion for Summary Judgment on Count Six) (Reference: (Reference: 15cv4479))(Fuad, David) Modified text on 5/9/2018 (am). (Entered: 05/08/2018)
05/09/2018 307 Correction of Docket Entry by Clerk re 305 Response to Motion. **Filing attorney selected incorrect event. Correct "Response/Memorandum in Opposition to Motion." Clerk took corrective action by changing the event. Also, Statem Facts was incorrectly filed as a separate document instead of an attachment to document 305. Clerk took corrective a No further action is needed.** (Reference: 15−4479)(am) (Entered: 05/09/2018)
05/14/2018 308 REPLY to Response to Motion filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davil Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byro Williams, Franz Zibilich re 295 MOTION for Summary Judgment . (Reference: 15−4479)(Cunningham, Erika) (Ent 05/14/2018)
05/15/2018 309 REPLY to Response to Motion filed by Ashton Brown, Alana Cain re 296 MOTION to Certify Class . (Reference: 15cv4479)(Fuad, David) Modified text on 5/16/2018 (am). (Entered: 05/15/2018)
05/16/2018 310 Correction of Docket Entry by Clerk re 309 Reply to Response to Motion. **Please, disregard previous deficiency n regarding doc 309. Document is acceptable.** (Reference: 15−4479)(am) (Entered: 05/16/2018)
05/23/2018 311 EXPARTE/CONSENT MOTION to Continue June 20, 2018 Hearing Until The Afternoon by Ashton Brown, Alana Joseph T Lafrance, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Propo Order)(Reference: 15−4479, 16−14439)(Lellelid, Anna) (Entered: 05/23/2018)

05/23/2018 312 Correction of Docket Entry by Clerk re 311 MOTION to Continue June 20, 2018 Hearing Until The Afternoon. *** Consolidated Matters, the caption must include a separate reference to list the case(s) to which the pleading pertains same case number(s) must be referenced in the docket entry. Please follow this requirement for all future filings.** (Reference: All Cases)(am) (Entered: 05/23/2018)
05/29/2018 313 ORDER granting 311 MOTION to Continue June 20, 2018 Hearing Until The Afternoon. IT IS ORDERED that the Arguments currently set for 6/20/2018 at 10:00 a.m., Doc. 295 Motion for Summary Judgment and 296 Motion to C Class, are RESET for 6/20/2018 at 2:00 p.m. before Judge Sarah S. Vance. Signed by Judge Sarah S. Vance on 5/29/2018.(Reference: All Cases)(sa) (Entered: 05/29/2018)
06/09/2018 314 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Kathryn G. Mantoan (Filing fee $100 receipt number 053L−6935199) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Vari (Attachments: # 1 Exhibit, # 2 Affidavit, # 3 Exhibit, # 4 Proposed Order)(Reference: 15−4479)(Lellelid, Anna) (En 06/09/2018)
06/11/2018 315 Correction of Docket Entry by Clerk re 314 MOTION to Appear Pro Hac Vice Kathryn G. Mantoan (Filing fee $10 receipt number 053L−6935199). **Document does not contain Section and/or Magistrate Judge. All future pleading reflect Section R and Magistrate (2). ALSO, the title of the attached proposed order should not include the word Pro but only reflect Order on the actual document.** (Reference: 15−4479)(sbs) (Entered: 06/11/2018)
06/11/2018 316 ORDER granting 314 Motion to Appear Pro Hac Vice as to Kathryn Grzenczyk Mantoan. Signed by Judge Sarah S. on 6/11/2018. (Reference: all cases)(cg) (Entered: 06/11/2018)
06/20/2018 317 Minute Entry for proceedings held before Judge Sarah S. Vance: Motion Hearing held on 6/20/2018 re 295 MOTIO Summary Judgment and 296 MOTION to Certify Class. Motion are taken under advisement. (Court Reporter Jodi S (Reference: all cases)(cg) (Entered: 06/20/2018)
08/02/2018 318 ORDER AND REASONS granting 295 Motion for Summary Judgment and 296 Motion to Certify Class. For the fo reasons, the Court GRANTS defendants' motion for summary judgment on Count Six. Count Six is DISMISSED W PREJUDICE. Plaintiffs' motion for class certification is GRANTED. The following class is certified as to the first p Count Five: all persons who owe or will incur court debts arising from cases adjudicated in OPCDC. The following subclass is also certified as to the second part of Count Five: all class members whose debts are at least partly owed OPCDC Judicial Expense Fund. Signed by Judge Sarah S. Vance on 8/2/2018. (Reference: All cases)(cg) (Entered: 08/02/2018)
08/03/2018 319 DECLARATORY JUDGMENT. Signed by Judge Sarah S. Vance on 8/3/2018.(Reference: 15−4479)(cg) (Entered: 08/03/2018)
08/21/2018 320 NOTICE OF APPEAL by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byron C. Will Franz Zibilich as to 319 Judgment. (Filing fee $ 505, receipt number 053L−7071330.) (Reference: 2:15−cv−04479)( Dennis) (Entered: 08/21/2018)
08/27/2018 321 USCA Case Number 18−30955 appealed to 5th Circuit Court of Appeals for 320 Notice of Appeal, filed by Tracey Flemings−Davillier, Franz Zibilich, Darryl Derbigny, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Byr Williams, Harry E. Cantrell, Arthur Hunter, Camille Buras, Benedict Willard, Karen K. Herman (Reference: 15−447 (Entered: 08/27/2018)
09/05/2018 322 APPEAL TRANSCRIPT REQUEST by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davi Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byro Williams, Franz Zibilich re 320 Notice of Appeal,. (Transcript is unnecessary for appeal purposes) (Reference: 2:15−cv−04479)(Phayer, Dennis) (Entered: 09/05/2018)
10/01/2018 323 APPEAL TRANSCRIPT REQUEST by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste for proceedings held on 10/11/2017 re 320 Notice of Appeal,. (Transcript(s) ordered) (Court Repor Toni Tusa noticed) (Reference: 15−4479)(Fuad, David) (Entered: 10/01/2018)
10/01/2018 324 APPEAL TRANSCRIPT REQUEST by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia V Reynaud Variste for proceedings held on 6/20/2018 re 320 Notice of Appeal,. (Transcript(s) ordered) (Court Reporte Simcox noticed) (Reference: 15−4479)(Fuad, David) (Entered: 10/01/2018)
11/05/2018 325 Electronic Record on Appeal Access Granted to Mindy Duffourc re 320 Notice of Appeal,. USCA Case Number 18− Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of− (Reference: 15−cv−4479)(adp) (Entered: 11/05/2018)
12/27/2018 326 Electronic Record on Appeal Access Granted to Ethan Fallon re 320 Notice of Appeal,. USCA Case Number 18−30 Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of−

(Reference: 15−cv−4479)(adp) (Entered: 12/27/2018)
01/08/2019 327 Electronic Record on Appeal Access Granted to Jeff Rowes re 320 Notice of Appeal,. USCA Case Number 18−3095 Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of− (Reference: 15−cv−4479)(adp) (Entered: 01/08/2019)
02/14/2019 328 **DEFICIENT**EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L−7429029) by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Vari (Attachments: # 1 Proposed Order, # 2 Exhibit, # 3 Affidavit, # 4 Appendix)(Reference: 2:15−cv−4479)(Lellelid, A Modified text on 2/15/2019 (am). (Entered: 02/14/2019)
02/21/2019 329 **DEFICIENT** MOTION for Supplemental Relief by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxw Reynajia Variste, Reynaud Variste. (Attachments: # 1 Exhibit A to Supplemental Motion, # 2 Exhibit B to Supplem Motion, # 3 Notice of Submission in Support of Supplemental Motion)(Reference: 2:15−4479)(Fuad, David) Modifi on 2/22/2019 (am). (Entered: 02/21/2019)
02/25/2019 330 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Fee previously paid) by Ashton Brown, Alana Cain, Jos Lafrance, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order Affidavit, # 3 Exhibit, # 4 Appendix)(Reference: 2:15−04479;2:16−14439)(Lellelid, Anna) (Entered: 02/25/2019)
02/25/2019 331 MOTION for Supplemental Relief by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Var Reynaud Variste. Motion(s) will be submitted on 3/27/2019. (Attachments: # 1 Memorandum in Support, # 2 Exhibi Exhibit B, # 4 Notice of Submission)(Reference: 15−cv−4479)(Fuad, David) Modified text on 2/26/2019 (am). (Ent 02/25/2019)
02/26/2019 332 Correction of Docket Entry by Clerk re 330 MOTION to Appear Pro Hac Vice.**The title of the attached proposed should not include the word Proposed but only reflect Order on the actual document.** (Reference: 15−4479)(am) (Entered: 02/26/2019)
02/26/2019 333 Correction of Docket Entry by Clerk re 331 MOTION for Supplemental Relief.**Filing attorney should have entere Submission Date. Clerk took corrective action to set motion for submission on 03/27/2019 before Judge Sarah S. Va further action is necessary.** (Reference: 15−4479)(am) (Entered: 02/26/2019)
02/26/2019 334 ORDER granting 330 Motion to Appear Pro Hac Vice as to Marco Antonio Lopez. Signed by Judge Sarah S. Vance 2/26/2019. (Reference: 15−4479)(cg) (Entered: 02/26/2019)
03/18/2019 335 EXPARTE/CONSENT MOTION to Enroll as Additional Counsel of Record Mindy Nunez Duffourc by Camille Bur Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Byron C. Williams, Franz Z (Attachments: # 1 Proposed Order)(Reference: 15−4479)(Phayer, Dennis) Modified text on 3/19/2019 (am). (Entere 03/18/2019)
03/18/2019 336 RESPONSE/MEMORANDUM in Opposition filed by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur Hunter, Keva Landrum−Johnson, Robin Pittman, Laurie A White, Be Willard, Byron C. Williams, Franz Zibilich re 331 MOTION for Supplemental Relief . (Attachments: # 1 Exhibit A)(Reference: 15−4479)(Phayer, Dennis) (Entered: 03/18/2019)
03/19/2019 337 ORDER granting 335 Motion to Enroll as Counsel of Record for Attorney Mindy Nunez Duffourc for Judicial Defe Signed by Judge Sarah S. Vance on 3/19/2019. (Reference: All cases)(cg) (Entered: 03/19/2019)
03/27/2019 338 EXPARTE/CONSENT MOTION for Leave to File Reply in Support of Motion for Supplemental Relief, Rec. Doc. 3 All Plaintiffs. (Attachments: # 1 Proposed Pleading, # 2 Proposed Order)(Reference: 2:15−4479)(Lopez, Marco) Mo text on 3/28/2019 (am). (Entered: 03/27/2019)
03/28/2019 339 Correction of Docket Entry by Clerk re 338 Reply to Response to Motion. **Filing attorney selected incorrect event Correct event is Motion for Leave to File Document. Clerk took corrective action by changing the event.** (Referen 15−4479)(am) (Entered: 03/28/2019)
03/28/2019 340 ORDER granting 338 Motion for Leave to File Reply. Signed by Judge Sarah S. Vance on 3/28/2019. (Reference: 15−4479)(cg) (Entered: 03/28/2019)
03/28/2019 341 REPLY to Response to Motion filed by All Plaintiffs re 331 MOTION for Supplemental Relief . (Reference: 15−44 (Entered: 03/28/2019)
04/17/2019 342 ORDER of USCA: IT IS ORDERED that appellants' opposed motion to supplement the record on appeal to include and fees assessment and collection reports from the years 2016, 2017, and 2018 is CARRIED with the CASE. (Attachments: # 1 Transmittal Letter) Entered at the Direction of USCA, by USCA Clerk.(Reference: 15−4479)(mm (Entered: 04/17/2019)

10/08/2019 343 USCA JUDGMENT issued as mandate on 10/8/2019 as to 320 Notice of Appeal. It is ordered and adjudged that the judgment of the District Court is affirmed. IT IS FURTHER ORDERED that defendants−appellants pay to plaintiffs−appellees the costs on appeal to be taxed by the Clerk of this Court. USCA judge names: Haynes, Graves, Ho. (Attachments: # 1 USCA Opinion, # 2 Transmittal Letter)(Reference: 15−4479)(mm) (Entered: 10/08/2019)
01/30/2020 344 DEFICIENT: Request by All Plaintiffs for Status Conference (Reference: 15−4479)(Mantoan, Kathryn) Modified te 1/31/2020 (mm). (Entered: 01/30/2020)
02/04/2020 345 EXPARTE/CONSENT MOTION for Status Conference by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa M Reynajia Variste, Reynaud Variste. (Attachments: # 1 Proposed Order)(Reference: All Cases)(Mantoan, Kathryn) M text on 2/5/2020 (mm). (Entered: 02/04/2020)
02/05/2020 346 Correction of Docket Entry by Clerk re 345 MOTION for Status Conference. **1. The title of the attached proposed should not include the word Proposed but only reflect Order on the actual document. 2. In Consolidated Matters, the must list all case(s) that are consolidated together and include a separate reference to list the case(s) to which the ple pertains and that same case number(s) must be referenced in the docket entry. If the caption does not specifically sta case(s) to which the pleading pertains, then all cases will be listed. Please follow this requirement for all future filing (Reference: All Cases)(mm) (Entered: 02/05/2020)
02/07/2020 347 ORDER denying 345 MOTION for Status Conference, but ORDERS the parties to brief by 2/21/2020, whether the C has jurisdiction to decide the motion for supplemental relief. Signed by Judge Sarah S. Vance on 2/7/2020. (Referen Cases)(mm) (Entered: 02/07/2020)
02/21/2020 348 Brief by Camille Buras, Harry E. Cantrell, Darryl Derbigny, Tracey Flemings−Davillier, Karen K. Herman, Arthur H Keva Landrum−Johnson, Robin Pittman, Laurie A White, Benedict Willard, Byron C. Williams, Franz Zibilich re 34 Order. (Reference: 15−4479)(Phayer, Dennis) (Entered: 02/21/2020)
02/21/2020 349 Brief by Ashton Brown, Alana Cain, Thaddeus Long, Vanessa Maxwell, Reynajia Variste, Reynaud Variste re 347 O (Reference: All Cases)(Mantoan, Kathryn) Modified text on 2/24/2020 (mm). (Entered: 02/21/2020)
02/24/2020 350 Correction of Docket Entry by Clerk re 349 Brief. **In Consolidated Matters, the caption must list all case(s) that ar consolidated together and include a separate reference to list the case(s) to which the pleading pertains and that same number(s) must be referenced in the docket entry. If the caption does not specifically state the case(s) to which the p pertains, then all cases will be listed. Please follow this requirement for all future filings.** (Reference: All Cases)(m (Entered: 02/24/2020)
03/30/2020 351 ORDER AND REASONS granting 331 MOTION for Supplemental Relief as stated herein. Signed by Judge Sarah S Vance on 3/30/2020.(Reference: All Cases)(mm) (Entered: 03/30/2020)

 
 Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

)

ALANA CAIN, ASHTON BROWN,

)

REYNAUD VARISTE, REYNAJIA

)

VARISTE, THADDEUS LONG,

)

VANESSA MAXWELL, et al.

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF NEW ORLEANS; ORLEANS )

PARISH CRIMINAL DISTRICT COURT; )

MARLIN GUSMAN, ORLEANS PARISH )

SHERIFF; ARTHUR MORRELL, CLERK )

OF COURT; ROBERT KAZIK, JUDICIAL )

ADMINISTRATOR;

)

SECTION “A” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE LAURIE A. WHITE; )

SECTION “B” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE TRACEY

)

FLEMINGS- DAVILLIER;

)

SECTION “C” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BENEDICT WILLARD;

)

SECTION “D” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

AD HOC JUDGE DENNIS WALDRON; )

SECTION “E” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE KEVA LANDRUM-JOHNSON; )

SECTION “F” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE ROBIN PITTMAN;

)

SECTION “G” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BYRON C. WILLIAMS;

)

SECTION “H” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE CAMILLE BURAS;

)

SECTION “I” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

Case No. 15-4479

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 2 of 42

JUDGE KAREN K. HERMAN;

)

SECTION “J” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE DARRYL DERBIGNY; )

SECTION “K” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE ARTHUR HUNTER;

)

SECTION “L” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE FRANZ ZIBILICH;

)

MAGISTRATE OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE HARRY CANTRELL

)

)

Defendants.

)

___________________________________ )

(Complaint: Class Action)

CLASS ACTION COMPLAINT

Introduction

Despite longstanding Supreme Court precedent that the Government cannot imprison

people just because they are poor, New Orleans officials routinely use jail and threats of jail to

collect court debts from thousands of the City’s poorest people. The result is an illegal,

unconstitutional, and unjust modern debtors’ prison. To make matters worse, officials in the

Collections Department of the Orleans Parish Criminal District Court have admitted under oath

that they have been issuing arrest warrants for unpaid debts by signing themselves the signatures of judges without first presenting any information to the judge or even notifying the judge.1 The

Defendants use their unconstitutional scheme of arresting and jailing people for their inability to

pay and keeping them in jail until they come up with money to fund themselves off the backs of

New Orleans’ poorest.

The Plaintiffs in this case are each victims of this illegal scheme. They each live in

poverty and each has been jailed for unpaid or late court debts. Although the Plaintiffs pleaded

1 See Transcript of Evidentiary Hearing in State of Louisiana v. Michael Addison, No. 426-246J, Jan. 30, 2015, attached as Exhibit 1.
2

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 3 of 42
that they were unable to pay due to their indigence, they were all arrested on an illegal warrant, and all languished in jail for nonpayment without receiving notice of how or when they would be released or when a hearing would be held. None was afforded the inquiry into their ability to pay that the United States Constitution requires.
Once locked in jail, each person was told that they had no court date set and that they would not be released until they paid the entirety of their debts or posted a preset $20,000 secured money bond.2 No inquiry was made into their individual circumstances, their ability to pay, or whether they constituted a danger to the community or a risk of flight prior to the setting of this secured money bond. Some languished in jail for days and others remained locked up for weeks.
The environment of threats of jail and actual jailing creates a culture of fear among indigent people and their families, who borrow money at high interest rates, divert money from food for their children, and cash their family members’ disability checks in a desperate attempt to pay the Collections Department to avoid indefinite confinement.
The policies and practices that led to the jailing of the Plaintiffs and to the creation of a local debtors’ prison are part of a broader breakdown of fairness and neutrality in the local criminal legal system, where financial conflicts of interest have derailed the pursuit of justice. When an indigent defendant appears in court, every government entity—the jailor who brought her there, the lawyer assigned to represent her, the prosecutor arguing against her, and the judge ruling on her case—funds its own budget in part based on the decisions made in her case. Each of them takes a percentage of every money bond that is required for release after arrest. Each also partially funds their own budgets through fees that are assessed only upon conviction.
2 All named Plaintiffs had to seek the help of family members or others in jail with them to contact the clerk of court and find out why they were locked up to begin with. At no time did anyone come to them and tell them why they were locked up or when or how they could be released.
3

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 4 of 42
This Court struck down elements of these financial conflicts of interest over two decades ago. And yet, the system has persisted, with devastating consequences for the bodies and minds of the poorest people in New Orleans and for the dignity of the justice system. These conflicts of interest are out of line with fundamental principles of due process as those concepts have been understood throughout American legal history. Officials involved in every area of the local legal system, including law enforcement, lawyers, and judges, acknowledge and complain that these financial incentives have corrupted the basic delivery of justice in the City.
The treatment of Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, Vanessa Maxwell, and each of the other Plaintiffs reveals systemic illegality perpetrated by the Defendants against some of the poorest people in the community. The Defendants, as a matter of policy and practice, engage in the same conduct against many other human beings on a daily basis, unlawfully jailing people if they are too poor to pay debts from prior convictions, including the associated fees, costs, and surcharges that the Defendants ultimately use for their own benefit.
Poverty is widespread in New Orleans. The United States Census Bureau reports that 104,919 people in New Orleans live in poverty.3 That is more than one in four people (27%). Though millions of people work full-time and are still struggling to subsist below the federal poverty line, many people are living in extreme poverty: national statistics show that over 1.5 million families get by on less than $2 a day.4 There are countless people in our community who have nearly no source of income at all. In New Orleans, about half of the adult men in the African American community are unemployed and receive no unemployment compensation.5
3 United States Census Bureau, Quick Facts, available at http://quickfacts.census.gov/qfd/states/22/22071.html. 4 http://www.cbsnews.com/news/the-surging-ranks-of-americas-ultrapoor/. 5 http://allthingslocalnola.info/yahoo_site_admin/assets/docs/RecognizingPotential.170111053.pdf.
4

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 5 of 42
The Defendants know that most people appearing before them are impoverished because eighty-five percent of the people appearing in Orleans Parish Criminal District Court have been determined to be indigent for purposes of appointment of the Orleans Public Defenders. Plus, Louisiana Law Revised Statute 15:175 defines indigency for purposes of criminal proceedings as people who earn less than 200% of the Federal Poverty Guidelines or receive food stamps, Medicaid, or disability benefits. And yet, impoverished people represent the large majority of people who owe debts to the Collections Department. The burden of court debts increases recidivism, blocks productive reentry, devastates families who have to make hard choices about debt payments or food, inhibits mental health care, and makes it harder for people to obtain housing and employment.6 It is therefore from those among us who are least able to pay that the Court’s Collections Department attempts to fund its own budget through jailing and threats of jailing for nonpayment.
By and through their attorneys and on behalf of themselves and all others similarly situated, the Plaintiffs seek in this civil action the vindication of their fundamental rights, compensation for the violations that they suffered, injunctive relief assuring that their rights will not be violated again, and a declaration that the Defendants’ conduct is unlawful. In the year 2015, these practices have no place in our society.
Nature of the Action7 1. Defendants fund themselves through the collection of money from the people that they process and judge. The pursuit of that money has corrupted the basic delivery of justice and
6 See generally, Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry (2010), available at https://www.brennancenter.org/publication/criminal-justice-debt-barrier-reentry. 7 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
5

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 6 of 42
resulted in pervasive conflicts of interest and rampant constitutional violations in the procedures for collecting those debts after cases are closed.
2. The Orleans Parish Criminal District Court and the City of New Orleans jointly fund the Collections Department as part of their efforts to supplement the City and Court budgets with the debts collected from mostly indigent people. Defendants act in concert to implement a regime of debt collection premised on assessing high amounts of court costs and discretionary fees and then collecting money from impoverished former defendants in a manner that deliberately ignores longstanding constitutional and statutory protections.
3. This scheme is accomplished by threatening indigent people with jailing if they or their families do not pay, issuing invalid arrest warrants, wrongfully imprisoning court debtors, delaying any hearing in court indefinitely, charging preset secured money bonds for those arrested on Collections Department warrants (from which the judges, the District Attorney, the Public Defender, and the Sheriff each take a percentage), and failing to perform any inquiry into an individual’s ability to pay when they are finally brought to court for debt-collection proceedings. When released from jail, former defendant debtors who have not paid their debts in their entirety are returned to a cycle of debt and threats.
4. Plaintiffs seek declaratory, injunctive, and compensatory relief.
Jurisdiction and Venue 5. This is a civil rights action arising under 42 U.S.C. § 1983, § 1988 and 28 U.S.C. § 2201, et seq., and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has pendant jurisdiction over the state law claims under 28 U.S.C. § 1367.
6

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 7 of 42
6. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Parties
7. Plaintiff Alana Cain is a 26-year-old resident of New Orleans. Plaintiff Ashton Brown is a 21-year-old resident of New Orleans. Plaintiff Reynaud Variste is a 26-year-old resident of New Orleans. Plaintiff Reynajia Variste is a 21-year-old resident of New Orleans. Plaintiff Thaddeus Long is a 33-year-old resident of New Orleans. Plaintiff Vanessa Maxwell is a 49-year-old resident of New Orleans. The named Plaintiffs represent themselves as individuals and a Class of similarly situated people all subject to the Defendants’ debt-collection scheme.
8. Defendant City of New Orleans is a municipal government entity, organized under the laws of the State of Louisiana. Among other things, the City of New Orleans funds the hiring of the Collections Department employees who openly and as a matter of policy commit the violations at issue in this case. Moreover, the City of New Orleans police officers execute the Collections Department warrants even though the City knows or should know that the warrants are invalid and unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody.
9. Defendant Orleans Parish Criminal District Court is a municipal government entity that manages the Judicial Administrator and the Collections Department and that, along with the City of New Orleans, jointly funds the operation of the Collections Department. The Orleans Parish Criminal District Court is managed administratively by the Orleans Parish Criminal District Court judges, who jointly control and administer the Judicial Expense Fund.
10. Defendant Judicial Administrator, Robert Kazik, is an employee of the Orleans Parish Criminal District Court. He is responsible to and supervised by the judges of the Orleans Parish Criminal District Court. Robert Kazik is responsible for the operation of the Collections
7

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 8 of 42
Department, which is jointly funded by the City of New Orleans and the Orleans Parish Criminal District Court. He is sued in his official and individual capacities.
11. The Clerk of Court, Arthur Morrell, is an elected public official responsible for oversight and funding of the Orleans Parish Criminal District Court’s operations. He is sued in his official and individual capacities.
12. Orleans Parish Sheriff Marlin Gusman operates the local jail and unconstitutionally detains impoverished people indefinitely because of their inability to make a financial payment for their release. He is sued in his official capacity.
13. The individual Judges of the Orleans Parish Criminal District Court are defendants herein because: they supervise and are responsible for the Judicial Administrator as well as the employees of the Orleans Parish Criminal District Court; they knew or should have known of the unconstitutional practices described herein which result in the illegal, unconstitutional, and wrongful arrest and imprisonment of Plaintiffs; and they have each failed to provide Plaintiffs with the legal process they are constitutionally due if imprisoned for nonpayment of court debts. They are sued for declaratory relief only.
The thirteen Orleans Parish Criminal District Court judges are: Section A, Honorable Judge Laurie A. White; Section B, Honorable Judge Tracey Flemings-Davillier; Section C, Honorable Judge Benedict Willard; Section D, Honorable Judge ad hoc Dennis Waldron; Section E, Honorable Judge Keva Landrum-Johnson; Section F, Honorable Judge Robin Pittman; Section G, Honorable Judge Byron C. Williams; Section H, Honorable Judge Camille Buras; Section I, Honorable Judge Karen K. Herman; Section J, Honorable Judge Darryl Derbigny; Section K, Honorable Judge Arthur Hunter; Section L, Honorable Judge Franz Zibilich; and Magistrate Judge Harry Cantrell.
8

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 9 of 42

Factual Background

A. The Named Plaintiffs’ Imprisonment

i.

Plaintiff Alana Cain

13. Alana Cain is a 26-year-old woman.

14. Ms. Cain lives in desperate poverty. She struggles to get enough money for food,

clothing, shelter, and the other basic necessities of life. She has no income and helps take care of

her mother who is sick with cancer.

15. Ms. Cain was charged with a felony theft offense in 2012 and found to be

indigent. She was assessed a fine and court costs (including $600 in discretionary costs imposed

by the judge to feed the judge’s Judicial Expense Fund) after conviction. Ms. Cain could not

afford to pay.

16. Pursuant to the Defendants’ policy, Ms. Cain’s case was closed after she was

sentenced on July 8, 2013. She was sent to the Collections Department, who decided in the

discretion of its employees that she would be required to pay $100 per month even though she

was destitute. Collections Department employees informed Ms. Cain that they would also

decide when she had to bring the money each month.

17. Ms. Cain made every payment by borrowing money from friends and family, who

were also living in poverty.

18. After making consistent on-time payments, Ms. Cain was late one time. She

called the collections department and spoke to a supervisor. The supervisor told her that he

could give her more time to pay but that she might have a warrant put out for her arrest. She

informed him that she did not have enough money to pay, and he told her that he would issue a

warrant for her arrest.

9

Case 2:15-cv-04479 Document 1 Filed 09/17/15 Page 10 of 42
19. Ms. Cain tried to come up with the money, but she was not able to do so. When Ms. Cain asked if she could make a smaller payment to the Collections Department, employees in the Collections Department told her that, pursuant to their policy, they would refuse to accept any payment smaller than $50. They told her not to bother to bring anything less.
20. On March 11, 2015, Ms. Cain was a passenger in a car that New Orleans police pulled over for a traffic violation. After asking for her identification, the police officer told her that she had a warrant for her arrest and that he could not let her go. Ms. Cain had $80 that her friend had lent her that she was hoping to put toward her court debts. They were returning from the bank with the money in her purse.
21. She informed the officer that she had spoken to the Collections Department and told them that she could not afford to pay, but the officer told her that he was just doing his job and that he had to take her to jail.
22. When Ms. Cain arrived at the Orleans Parish Prison, the local jail run by the Orleans Parish Sheriff, jail staff told her that she had a warrant because she had not paid her court debts. She told jail staff that she had spoken to the Collections Department and that she asked for more time to make her monthly payment. She had money on her when she was arrested and she asked if she could use that money to pay Collections. Jail staff told her that they could not do anything about it and that she had a $20,000 secured bond pursuant to standard policy.
23. Ms. Cain asked when she could go to court, and jail staff told her that there was no way to find out when her court date would be. Jail staff told her that someone from her family had to call the court to get her placed on a docket or else she would not get a court date. There was no free phone available for inmate use, and Ms. Cain therefore could not reach anyone in her family.
10

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24. Ms. Cain repeatedly tried to use the jail computer system to ask what was

happening to her and to communicate with someone who could tell her when she could go to

court.

25. Another prisoner eventually took pity on Ms. Cain and let her use a paid phone

account after several days.

26. Ms. Cain then called her sister, who agreed to call the court and try to get her on

the docket.

27. After a week, Ms. Cain was brought to court. The judge told her that if she ever

missed a payment again, she would have to spend 90 days in jail.

28. Ms. Cain told the judge that she did not have a job and that she was not able to

come up with the money. The judge made no meaningful inquiry into her indigence and,

pursuant to policy, neither the lawyers representing the District Attorney nor the Public Defender

informed her of her constitutional rights or asked the judge to conduct such an inquiry. The

judge told her that she was required to pay or she would be jailed.

29. Ms. Cain has no bank account, no car, and no significant assets. She relies

intermittently on food stamps and the kindness of her family to provide her with clothing, food,

shelter and the other basic necessities of life. She has struggled to find work since her criminal

conviction, and she takes care of her mother who is sick with cancer. She suffers from several

medical conditions and has felt trapped in a cycle of debt and fear caused by the threats of the

Collections Department employees.

ii.

Plaintiff Ashton Brown

30. Mr. Brown is a 21-year-old New Orleans resident.

11

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31. Mr. Brown lives in desperate poverty and struggles to meet the basic necessities of life, including food, clothing, medical care, and shelter.
32. Mr. Brown was placed on inactive probation stemming from a theft conviction on December 16, 2013. He was assessed a total of $500 in various costs and discretionary fees levied for the benefit of the judges, the District Attorney, and the Public Defender. He could not afford to pay the court debts. As is standard, Mr. Brown was also subsequently charged additional fees for his probation officer.
33. Mr. Brown was forced to decide which set of fees he could pay with money he scraped together in lieu of buying food and clothing. He decided to pay his probation officer $200 because he was told that he would be revoked if he did not pay his probation fees.
34. When he paid his probation fees, the Collections Department told him that he could not get any extensions on his other court debts and told him to pay up. Mr. Brown informed the Collections Department that he could not afford to pay his court debts. When he could not pay, the Collections Department staff decided to sign and issue a warrant for his arrest because of nonpayment, even though they knew that he was indigent and could not pay.
35. In May 2015, Mr. Brown was arrested for drug possession.8 After his drug case was resolved on July 23, 2015, Mr. Brown was assessed fees and costs and returned to jail from the courtroom solely because of his prior unpaid debts from the 2013 case. He was told that he would not be released until he paid what he owed on his 2013 case or until he paid a new preset
8 He was jailed and assessed an $8,000 secured money bond on the drug charges prior to trial. Pursuant to local practice and procedure, the bond was assessed without any meaningful assessment of his ability to pay. Mr. Brown could not afford to pay the bond, and so he remained in jail for months. When he went to court for the first time, Mr. Brown’s bond was raised at the urging of the District Attorney to $12,000, again without any meaningful inquiry into his ability to pay or any meaningful hearing concerning whether he was a danger to the community or a risk of flight. It is common practice for local judges and the District Attorney to seek high money bonds because each is able to collect a percentage of every money bond, so each has a direct financial incentive to set bond as high as possible.
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$20,000 bond on his Collections Department warrant. Mr. Brown was destitute and had already been determined indigent by the court. He had no bank account and no assets.
36. For two weeks following the disposition of his drug case, Mr. Brown languished in terrible jail conditions without being brought to court. He became increasingly desperate and depressed because he had just become a father for the first time, and he had been kept in jail since May, without being able to see his newborn daughter, solely because he could not come up with money that local officials required for his release.
37. Mr. Brown reached out from jail to his uncle who was able to set up a potential job for him. Mr. Brown was excited at the possibility because, prior to being locked up in May, he was only able to help support his new daughter by performing scattered odd jobs, like mowing lawns to pay for her food and diapers.
38. Finally, on August 6, 2015, Mr. Brown was brought to court. The judge, consistent with routine practice, told him that he would not be released from jail unless he paid his old court costs and fees. Mr. Brown told the judge that he thought that he had a job waiting for him and that he could try to work for enough money to pay the court debts. The judge told him that he could not release him. The judge told him he could not release him unless he paid at least $100. The judge told Mr. Brown that he would reset him for another court hearing in a week’s time and that he would be kept in jail unless he got a family member to pay. Mr. Brown was sent back to jail. No meaningful inquiry was made into his ability to pay, and none of the required constitutional procedures for determining his ability to pay were followed.
39. Pursuant to standard policy and practice, neither the District Attorney’s Office nor the Public Defender informed Mr. Brown of his constitutional rights, including his right not to be jailed for nonpayment without an inquiry into his indigence. As is routine, nor did either the
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prosecutor or public defender request such an inquiry or findings in his case. Mr. Brown was not

even given notice prior to or at the hearing that his ability to pay would be a critical issue in the

proceedings as required by Supreme Court precedent.

40. Several days later, with the help of another detainee at Orleans Parish Prison, Mr.

Brown was able to get a message to his grandmother. Brown’s family was able to scrape together

$100. They paid the Collections Department, and Mr. Brown was released from jail.

Collections Department employees told him that he would be arrested and jailed again if he does

not continue making payments on time.

iii.

Plaintiff Reynaud Variste

41. Reynaud Variste was sleeping quietly at home with his family in January 2015

when numerous armed officers surrounded and stormed his house with assault rifles and military

gear. The officers pointed guns at Mr. Variste and his family and handcuffed him.

42. When Mr. Variste asked what was happening, the officers told him not to worry

about it too much because he simply owed some old court costs and fees. He was taken to jail.

43. Mr. Variste had been convicted several years earlier and had been assessed about

$1,600 in court costs and fees. He had a low paying construction job, and he did his best both to

make payments and to meet the basic necessities of life for himself and his family. However,

after he had reduced his court debts to $700 with regular payments, his hours on the job were cut

approximately in half because of a slowdown in business. He could no longer afford both to pay

his court debts and to meet the basic necessities of life.

44. Mr. Variste went to the Collections Department and told the employees there that

he could not afford his payments anymore. The Collections Department told Mr. Variste that

there was nothing that they could do and that he had to pay what he owed. An employee told

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him that the best that he could offer Mr. Variste was to let him pay a total of $100 per month

instead of $100 per month on each of his two cases.

45. Mr. Variste separately owed about $65 per month for his probation fees.

46. Each time Mr. Variste was late on a payment, Collections Department staff told

him that he had to bring double the next time. These purported fee increases were not made

pursuant to any legal process.

47. After his arrest, Mr. Variste languished in jail for 3 days, and he could not figure

out what was happening to him. Jail staff had no idea when or whether Mr. Variste would be

taken to court because of the Defendants’ policy of indefinite detention after Collections

Department arrest warrants are executed. Finally, Mr. Variste called a bondsman, who told him

that he would probably not be released from jail until he paid his entire court debts, which would

be cheaper than paying the $20,000 money bond needed to get a court date to challenge the

debts.

48. Mr. Variste was told that he had to pay the entirety of his court debts in order to

get out. And although Mr. Variste’s girlfriend eventually used his paycheck to pay the entire debt

amount on the subsequent Friday, Mr. Variste stayed in jail over the weekend and was not

released until the following Monday. He never saw a judge and was never brought to court.

49. Mr. Variste missed work while in jail, and he was in danger of losing his job

because he could nor reach his employer while he was jailed.

50. Mr. Variste struggles to survive financially and to provide the basic necessities of

life for himself and his 11-month-old child.

iv.

Plaintiff Reynajia Variste

51. Reynajia Variste is a 21-year-old New Orleans resident.

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52. Ms. Variste pled guilty to an offense in October 2014. She was told that she owed approximately $900 as a result of the costs and fees imposed by the court.
53. Ms. Variste was unable to pay what the Collections Department demanded. No inquiry was conducted into her ability to pay, even though, like the other Plaintiffs, she had previously been found indigent for purposes of the appointment of counsel.
54. In May 2015, New Orleans police set up an informal checkpoint in her neighborhood after a robbery and began stopping all residents. Police stopped her while she was walking and ran her name through a database, which revealed a Collections Department warrant for non-payment. Even though she was pregnant, she was handcuffed, arrested, and taken to a district station. She was then transported to jail.
55. At booking, staff told Ms. Variste that she could go free if she paid her court debts. She was also given the choice to pay a standard $20,000 money bond in the alternative. She was jailed instead because she did not have the money.
56. Ms. Variste’s family was desperate to get her out of jail because she was pregnant, and they worried about the effects of being in the notoriously dangerous and unsanitary jail on her unborn child.
57. Ms. Variste’s aunt went to the Collections Department to find out what was going on. The Collections Department told her that they would require at least $400 before they would agree to let her out of jail. The Collections Department told her aunt that they would require that amount of money because they needed close to half of what she owed in total.
58. Ms. Variste and her family panicked because they could not come up with the money.
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59. Ms. Variste was not permitted to shower or clean herself for the first three days in jail, and she could not tolerate the food. After a few days, she started bleeding from her vagina. She informed the guard, and the guard declined to tell a jail nurse. She continued to bleed for two days without receiving medical attention.
60. After seven days in custody, her family borrowed money to lend to Ms. Variste to buy her release. A portion of the money was borrowed from the SSI check of one of her relatives, who depended on that money to survive. When her family paid the Collections Department, Ms. Variste was released. She never saw a judge.
61. After her release, Ms. Variste went to the hospital, and she was told that the bleeding was a problem with her placenta.
62. Ms. Variste survives on food stamps and has no significant assets and no bank account.
63. Ms. Variste has applied to numerous jobs in the past couple of years, and despite nearly receiving them, she is routinely rejected after a background check reveals her felony theft conviction.
64. After she was released from jail, the Collections Department resumed threatening her with arrest and jail if she did not pay what they told her to pay. In early August 2015, she went to the Collections Department and paid $100 even though she could not afford it without severe hardship because she was scared of the threats to have her arrested before she gave birth. She continues to live in constant fear of being arrested and jailed indefinitely for being unable to pay.
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v.

Plaintiff Thaddeus Long

65. Thaddeus Long is a 33-year-old resident of New Orleans. He struggles

financially to meet the basic necessities of life for himself and his family.

66. Mr. Long was working at a temp-to-hire job in June 2015. He was working for

the City of New Orleans to modernize its parking meters by removing old meters and installing

new pay stations. He had just started the job and had been working for several weeks.

67. Mr. Long was pulled over by City of New Orleans police. After the police

searched his name, the police system indicated that the Collections Department had issued a

warrant for nonpayment of fees and costs stemming from a 2011 conviction. Mr. Long

explained to police that he had paid off his debts in their entirety. A note in Mr. Long’s court

files confirms that he had paid his debts in full in October 2013.

68. Nonetheless, the Collections Department had, pursuant to its policy and practice,

issued a warrant for his arrest for nonpayment.

69. Pursuant to policy and practice, Mr. Long was not brought to court to see a judge.

Instead he was transported to Coushatta, Louisiana and held there for six days on the standard

$20,000 secured money bond until he convinced someone to inquire about his case and was

brought to court. When he appeared in court, he explained the mistake, which was apparent

from the court records. He was released immediately.

70. Because of the Collections Department warrant, the standard bond set and

perpetuated by those who profit from the setting of those bonds, and the policy and practice of

not producing arrestees in a prompt manner, Mr. Long lost a week of work and soon after lost his

job.

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vi. Plaintiff Vanessa Maxwell 71. Vanessa Maxwell is a 49-year-old resident of New Orleans. She is the mother of seven children, and she has six grandchildren. 72. Ms. Maxwell is indigent and is staying in her sister’s home with seven other family members. 73. Ms. Maxwell suffers from schizophrenia. She regularly hears voices talking to her, usually the voice of her dead son. She is also bipolar, suffers from major depressive disorder, and suffers from social anxiety disorder that debilitates her when she is forced to be around a lot of other people. 74. In 2011, she was convicted of an offense in New Orleans and assessed court costs and fees. After she served her sentence, she was sent to Mississippi because the Louisiana offense constituted a violation of her Mississippi probation terms. She was then placed in revocation proceedings in Mississippi. 75. Unbeknownst to Ms. Maxwell, while she was in Mississippi, the Collections Department issued a warrant for her arrest for nonpayment of her New Orleans court fees. 76. Once she moved back to Louisiana, Ms. Maxwell did not find out about the warrant until she got into an argument with her boyfriend. When police arrived to investigate, Ms. Maxwell was arrested after the officer ran her name and saw the Collections Department warrant. 77. Ms. Maxwell was brought to jail, where she stayed in central lockup for a couple of days. She could not eat the food provided to her because it was moldy. Mold, feces, and urine covered the toilet area around her cell. The place smelled like urine. 78. After a couple of days, she was transferred to the women’s facility.
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79. At no point did anyone inform her why she was being detained, how she could seek release, or when she would be brought to court.
80. Ms. Maxwell wrote grievances every day to get the attention of someone who could tell her what was happening. No one responded.
81. After calling the Orleans Parish Criminal District Court clerk repeatedly without any help, her daughter and son-in-law hired a private attorney with money they scraped together to get her name on the docket. Ms. Maxwell was never brought to court. Instead she continued to sit in jail.
82. Ms. Maxwell had the number of a public defender who had handled a case for her son. She called repeatedly, and she finally got through after several days. She begged the Public Defender’s Office to get her name on a docket to see a judge.
83. On Thursday, May 21, 2015, twelve days after her arrest, Ms. Maxwell was brought to court. Ms. Maxwell’s public defender argued for her release and although no indigency hearing was conducted, the judge ordered her release contingent on Ms. Maxwell paying $191 within a week.
84. Ms. Maxwell has not been able to come up with any money to pay the Collections Department since her release. She does not leave her house except to pick up her grandson from the bus stop nearby. She is in imminent danger of arrest and jailing again pursuant to monetary conditions that she cannot make.
D. The Defendants’ Policies and Practices 85. The Plaintiffs and many other witnesses have, in recent months and years, observed numerous other indigent New Orleans residents jailed as a matter of pattern and practice by the Collections Department. These residents are kept in jail for non-payment of debts
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without an inquiry into their ability to pay, pursuant to standard preset secured monetary bonds from which supposedly neutral judicial and government actors who set those bonds are promised a percentage, and without the consideration of whether imprisonment serves legitimate interests in light of available alternatives as required by federal and Louisiana law.
86. Moreover, when proceedings are eventually held days or weeks later for people who cannot buy their release or who cannot find anyone to buy their release for them, the Defendants’ cursory and fleeting proceedings (commonly lasting less than a minute to several minutes) often do not even identify the specific debts and fees owed or the cases in which they were supposedly incurred. These unconstitutional proceedings do not provide a debtor with a meaningful opportunity to contest the validity of the debts, to put on evidence concerning their indigence, or to consider any non-financial alternatives to detention. Debtors are routinely sent back to jail until they pay an arbitrary amount of money without examination or findings on any of these constitutionally required issues.
87. The treatment of the Plaintiffs was caused by the Defendants’ policies and practices to collect debts from the fines, fees, costs, and surcharges that benefit the Defendants.
1. The Initial Assessment of Court Costs, Fees, and Surcharges 88. The Defendants impose an automatic $20,000 money bond on anyone illegally arrested and imprisoned for non-payment or late payment of court debts. This bond, like every pre-trial money bond issued in New Orleans, partially funds the District Attorney, the Public Defender, the Sheriff, and the Judicial Expense Fund. The judges collect 1.8% of each bond, and the other three entities each collect 0.4% of each bond. The judges collect over $1 million from these bond fees alone into the Judicial Expense Fund each year, and they have decided to earmark these bond fees for payroll of court employees. The Court and the judges rely to a
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significant extent on these bond fees to fund their operating budget. Even though this practice
was previously ruled unconstitutional by this Court nearly 25 years ago in Augustus v. Roemer, 771 F. Supp. 1458, 1473 (E.D. La. 1991), it continues unabated.9
89. As a result, Defendants have developed a policy, pattern, and practice of
advocating for and implementing high bonds, fines, costs and fees without any constitutional
basis and any meaningful inquiry into a person’s ability to pay, even when they know that the
person is indigent. As a result, many people languish in jail every year solely because they are
too poor to make a monetary payment.
90. At the conclusion of a criminal case, as a matter of policy and practice in the
thousands of cases prosecuted each year, prosecutors advocate for, and the judges impose, a
variety of mandatory court costs and discretionary fees. Among these fees are assessments used
directly to fund the District Attorney’s office, the Public Defender, and the Court itself.
Probation officers impose additional fees. Each of these actors relies to a significant extent on
the assessment and collection of these myriad fees and costs to fund their operations and to pay
employee salaries and extra benefits. These costs and fees fund a significant percentage of each
Defendant’s overall operating budget.
91. All of these fees and costs are imposed without any inquiry into an individual’s
ability to pay.
9 After Roemer struck down a statute specific to New Orleans, the legislature passed a new statute creating a materially indistinguishable scheme for the whole state. After subsequent lobbying by the judges of the Orleans Parish Criminal District Court, the legislature authorized an additional percentage to be funneled into the Judicial Expense Fund of the Orleans Parish Criminal District Court. As a result, 3% of every bail bond issued is set aside for local officials, including 1.8% for the judges to control and 0.4% directly for the budget of the District Attorney. LA. REV. STAT. ANN. § 22:822; § 13:1381.5.
The Sheriff and Public Defender also each take 0.4% percent of every bail bond, thus giving the Sheriff incentive to continue to participate in unlawful policies and practices and the Public Defender a financial conflict of interest, including an incentive not to advocate for recognizance or lower secured money bonds and an incentive not to appeal excessive money bail orders.
Because the statute was designed to fund a large percentage of the operating budgets of each actor, each currently depends on the continuation of the practice to survive.
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92. One of the discretionary fees assessed upon conviction is the “Judicial Expense Fund” of the Orleans Parish Criminal District Court. The judges of the court manage the Fund and Court operations in an administrative capacity but refused for many years to disclose the financial details of the account or to permit basic public auditing. The Fund collects millions of dollars to support the Court’s operating budget in the administrative discretion of the judges of the Court, who decide in any individual’s case whether to assess the fee and, if so, how much to levy up to $250 for each misdemeanor charge and $2,000 for each felony charge.
93. Every relevant actor in the judicial proceedings thus has a direct and significant financial incentive for the proceedings to result in conviction.
94. One of the fees collected from Plaintiffs was the subject of an expose in 2010.10 For many years, Orleans Parish Criminal District Court judges had been using the money assessed and collected from former criminal defendants to purchase private insurance benefits for themselves that the State of Louisiana does not provide public employees.11 From 2006 until 2011, the judges had spent more than $1.9 million on their own personal medical and other benefits for themselves and their spouses.12
10 Richard A. Webster, Bail System Puts Court-Costs on Backs of Poor, New Orleans City Business, Aug. 20, 2010. 11 Gordon Russell, The Times-Picayune, WVUE-TV file suit against Criminal District Court (Feb.19, 2013), available at http://www.nola.com/crime/index.ssf/2013/02/nolacom_the_times-picayune_wvu.html; see also John Simerman, Orleans criminal court judges turn over documents detailing lavish life-insurance benefits, (Apr. 16, 2013), available at http://www.nola.com/crime/index.ssf/2013/04/orleans_criminal_court_judges_1.html (“Legislative Auditor Daryl Purpera's office found that during 2010, the 13 Criminal Court judges in Orleans Parish collectively held 249 supplemental insurance policies fully funded by the court. The average judge held 19 policies, at an average cost of $14,500 per judge.”). 12 In a similar scheme involving materially identical practices, local municipal court judges were caught using the money collected into the judicial expense fund to hire the personal chef of former New Orleans Saints football star Reggie Bush to prepare gourmet meals for themselves. See Mike Perlstein, Why Was High Profile Chef on Court Payroll as Custodian? (Aug. 27, 2010), available at http://www.wwltv.com/news/eyewitness/10pm-Perlstein-Chefstory-101689763 html.
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95. The Orleans Parish District Attorney and the Louisiana Legislative Auditor condemned this misuse of court fees.13 The State of Louisiana Legislative Auditor investigated
the judges in 2012 and confirmed the District Attorney’s findings concerning the judges’ misuse
of money collected from former criminal defendant debtors. The State Auditor found in an audit
issued November 21, 2012 that from 2009-2011:
• The Orleans Parish Criminal District Court judges spent over $154,750 from the Judicial Expense Fund to reimburse themselves for private out-of-pocket medical expenses.
• The judges paid 100% of the cost of their personal professional liability insurance policies out of the Fund.
• The judges spent nearly half a million dollars on extra health, dental, vision, cancer, hospitalization, critical illness, long-term care, accidental death and dismemberment, and life insurance policies.
• Each judge had an average of 15-19 additional supplemental insurance policies paid for entirely out of the Fund.
The judges spent excessive money on travel and lodgings at conferences, using money collected into the Judicial Expense Fund from former criminal defendants.14
96. The systemic financial conflicts of interest have not improved in the years since.
The Court still uses the millions of dollars of revenues collected in this manner to fund its basic
operations, employee salaries, travel and more. The Court and the judges and employees who
administer its finances are aware that a substantial part of its operating budget depends on the generation and ultimate collection of fees from convicted defendants.15
13 See Leon A. Cannizzaro, Jr., District Attorney, Letter to Buddy Caldwell, Aug. 4, 2011 and Louisiana Legislative Auditor’s Report, November 21, 2012. 14 Auditor’s Report, supra. 15 As one former Orleans Parish Criminal District Court judge publicly acknowledged: “I was as guilty of that as any when I was on the bench, but you have to fund yourself in some fashion. And so you did it on the backs of the people who were least able to pay.” (emphasis added). Richard A. Webster, Bail System Puts Court Costs on Backs of Poor, NEW ORLEANS CITY BUS., Aug. 20, 2010, available at http://www.projectjusticenola.org/wpcontent/uploads/2010/08/Bail_System.pdf; see also Paul Purpura, New Orleans Judge Camille Buras says she's
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97. In 2012, the Orleans Parish Criminal District Court judges objected to the transfer of misdemeanor cases to the Municipal Court because it meant that they would lose significant revenue. During one discussion at a City Council meeting, the Chief Municipal Court Judge responded to a discussion about this controversy:
“The judges should not be in the business of . . . making money . . .. We’re here to . . . dispense justice . . . . We’re not even supposed to be placed in that extremely conflicting position, as to be concerned about how many fines and fees we take in so that we can operate. You cannot place that burden on us any longer. It’s unfair . . . and it goes against the pledge we take when we take office.”16 98. The knowledge that operating budgets come from money bond and postconviction fees affects every major decision of local court actors. For example, employees of the Orleans Public Defender were recently informed by management that, because collections from fees had not been enough to fund even existing staff salaries, employees would have to be furloughed. Employees were encouraged to supplement their income with donations from Facebook friends. 99. Every Collections Department employee knows that their salaries and the operating budget of their departments depend to a significant extent on the assessment and subsequent collection of these court costs and fees. 2. Debt-Collection Policies and the Issuance of Invalid Warrants 100. Upon conviction, the various costs and fees are assessed. Indigent debtors who cannot pay in full immediately are told to go to the Collections Department. Once at the Collections Department, debtors are told by Collections Department employees (who call
repaying court for benefits (Jul. 16, 2015) Nola.com, http://www.nola.com/crime/index.ssf/2015/07/camille_buras_insurance.html (at least one judge has since apologized for her impropriety and promised to pay back the Judicial Expense Fund). 16 City Council Budget Hearings on 2013 Proposed Budget, supra note 4, at 20:00 (Nov. 9, 2012), available at http://cityofno.granicus.com/MediaPlayer.php?view_id=3&clip_id=1382 (last visited August 29, 2015)
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themselves “Collections Agents”) that they must pay a certain amount of money at certain designated times. These payments and times are determined in the discretion of Collections Department employees.
101. Pursuant to Collections Department policy and practice, no inquiry is ever made into a person’s ability to pay, even when former defendant debtors are known to be indigent.
102. Collections Department employees are trained by supervisors as a matter of policy and practice that their goal should be to collect as much money as possible for the Court and, as a result, they never inform indigent people of any of their rights to seek to have the payments waived, reduced, or otherwise modified.
103. Pursuant to Collections Department policy and practice, debtors are told that Collections Department employees will have them arrested if they do not make the payments determined by the employees. Collections Department employees refuse to accept, as a matter of policy, amounts less than the entire amount due as determined by Collections Department staff.
104. Pursuant to Collections Department policy and practice, if a person fails to make the payments determined by the Collections Department, Collections Department employees will sign without authorization the signature of a judge on a “warrant” and “issue” such warrants themselves even if the person is not on probation and even if the case has been closed.17
105. These warrants are issued purportedly for “failure to pay” and not for failure to appear at any particular court proceeding. They are issued instead of simply informing a debtor of a future court date, issuing a valid summons, and giving a debtor an opportunity to explain his or her nonpayment prior to the deprivation of the debtor’s fundamental liberty.
17 Collections Department employees will also often send an uncertified letter to the last known address of a debtor demanding payment. Those letters do not set forth any process available to the debtor or inform the debtor of any of the debtors’ rights, and Collections Department employees have no way of knowing whether the letters are ever received.
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106. The warrants are printed from Collections Department computing software and filled out by collections agents working in the Department. Agents have been trained to sign the signatures of judges themselves rather than to present any evidence or information to a neutral judicial officer.
107. A neutral judicial officer does not evaluate these warrants. Additionally, they are often issued years after a purported nonpayment, and they are routinely issued in error or by ignoring evidence of a person’s indigence.18
108. The Defendants are aware of these open policies and practices and yet allow them to continue.19 Indeed, the Court and the City have even agreed to fund extra positions in the Collections Department in order to maximize additional revenues from more people.20
3. The Illegal Post-Arrest Procedures 109. After arrest on an illegal Collections Department warrant, the Defendants’ standard policy and practice is to let arrestee debtors languish in jail indefinitely. 110. As a matter of policy and practice, each Collections Department warrant is accompanied by a preset $20,000 secured money bond required for release. This standard money bond is set without reference to ability to pay or any other circumstance. If paid, a percentage of the bond goes to the Sheriff, to the Public Defender, to the District Attorney, and to the Judicial Expense Fund of the Orleans Parish Criminal District Court.
18 The Criminal District Court reported to the City Council in June 2015 that it was in the process of collaborating with the City of New Orleans Police Department and the District Attorney to implement a more efficient online warrant system. 19 Collections Department officials testified earlier this year under oath confirming the implementation and execution of these policies and practices in open court during a hearing into the detention of an indigent debtor. 20 Despite the extra positions funded jointly by the Court and the City of New Orleans, the Court complained to the City Council in June 2015 that a shortage of funding for the Collections Department had forced it to float other employees to cover that and other areas of its administration. It noted that budget cuts had left it with one vacant position in the Collections Department. The Court made the same complaints to the City Council in previous years, even though the City has agreed each year jointly to fund additional Collections Department positions.
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111. Jailed debtors are routinely told that they can pay this money bond, pay the entirety of their debts, or pay an amount Collections Department employees unilaterally determine. Thus, a debtor wishing to remain at liberty in order to contest the validity of her debt or raise other legal or factual issues relating to the amount or the collection must almost always pay a bond amount larger than the value of the debt just for the opportunity to be heard at a future court date. In contrast, if a debtor simply pays what the Collections Department claims is owed, they are released from jail with no opportunity to contest the debt or the jailing.21
112. After indefinite periods in jail, arrestees are eventually brought to court if they have not been able to pay their debts or afford their money bond. The Defendants have no set policy or practice concerning how long arrestees must wait in jail prior to a court date, and the wait is routinely longer than 48 hours. Indeed, it is routine that prisoners languish a week or several weeks. As a result of their indefinite detention, debtors are forced to seek the assistance of family members and friends.
113. When brought to court, arrestees are either sent back to jail unless they make a payment or released on threat of future arrest and incarceration if they do not bring money to the Collections Department, all with the consent and advocacy of the District Attorney and often without the representation of a lawyer.22 It is the Defendants’ policy and practice never to conduct any meaningful inquiry into a debtor’s ability to pay or to give notice to the debtor as to what the critical issues at the proceeding will be.
114. The Defendants’ policy and practice is never to allow court debtors to enjoy any of the civil judgment protections offered to every judgment debtor under Louisiana law. For
21This is particularly troubling because clerical errors and mistakes of fact and law are common in matters involving collection of court fines, fees, and costs. 22 Debtors are often released on threat of future incarceration if they are represented by a lawyer at such hearings even though unrepresented debtors are typically sent back to jail.
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example, the Defendants ignore the basic substantive statutory asset exemptions and safeguards protecting judgment debtors from creditors taking assets needed for the basic necessities of life, as well as procedural protections concerning how money can be collected. See generally, e.g., Louisiana Rev. Stat. Ann. § 13:3881; § 13:3913.
Class Action Allegations 115. The named Plaintiffs bring this Class action on behalf of themselves and all others similarly situated, for the purpose of asserting the declaratory and injunctive claims alleged in this Complaint on a common basis. 116. A class action is a superior means, and the only practicable means, by which Plaintiffs and unknown Class members can challenge the Defendants’ unlawful debt-collection scheme. 117. This action is brought and may properly be maintained as a Class action pursuant to Rule 23(a)(1)-(4), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure. 118. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 119. The Plaintiffs propose a Declaratory and Injunctive Class. The Declaratory and Injunctive Class is defined as: All persons who currently owe or who will incur court debts to the Orleans Parish Criminal District Court from fines, fees, costs, or surcharges arising from cases in the court. A. Numerosity. Fed. R. Civ. P. 23(a)(1) 120. The Defendants subject thousands of people each year to the Collections Department’s policies and practices discussed in this Complaint. Pursuant to the Defendants’ policy and practice, all of these people with outstanding court debts are currently being
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threatened with arrest and indefinite jailing if they do not make the payments in the amount or frequency purportedly required by the Collections Department.
121. The Defendants have jailed hundreds of people for nonpayment of debts in the past several years. The names, case numbers, and dates of imprisonment of those jailed are easily available by consulting records maintained by the Defendants.
122. The Defendants followed and follow the same debt-collection policies, practices, and procedures to accomplish the threats and jailing of the Class members. For example, pursuant to the Defendants’ policy and practice, those jailed for nonpayment by the Defendants’ scheme do not receive meaningful inquiries into their ability to pay as required by federal law. Pursuant to policy, invalid “warrants” are issued and the posting of preset monetary bonds or full debt payment are required for release, with indefinite detention the result of nonpayment. Pursuant to policy, no determinations of indigence or evaluations of alternatives to incarceration are made during eventual court appearances, and the Defendants provided none of the relevant state and federal protections for judgment debtors. Nor are those jailed by the Defendants provided adequate counsel to represent them at the fleeting court proceeding that result in their further jailing.
123. Those who still owe the Defendants debt payments or who will incur such debts will be subjected to the same ongoing policies and practices absent the relief sought in this Complaint.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 124. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The Plaintiffs seek relief concerning whether the Defendants’ policies, practices, and procedures violated their rights and relief
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requiring the Defendants to change their policies, practices, and procedures so that the Plaintiffs’
rights will be protected in the future.
125. Among the most important, but not the only, common questions of fact are:
• Whether the Collections Department has discretion to set the amount and timing of payment requirements;
• Whether the Collections Department has a policy and practice of issuing warrants based solely on nonpayment during the time and in the manner required by the Collections Department and without probable cause that any offense has been committed;
• Whether the money assessed and collected by supposedly neutral actors actually is used for the benefit of the budgets of those actors and, if so, to what extent;
• Whether the Collections Department fails to conduct any meaningful inquiry into indigence prior to issuing arrest warrants that result in indefinite jailing;
• Whether Collections Department employees sign the signature of judicial officers without authorization to create the “warrants” that they issue unilaterally;
• Whether Defendants arrest Plaintiffs pursuant to these illegal warrants; • Whether Defendants imprison Plaintiffs pursuant to these illegal warrants; • Whether each warrant comes with a standard $20,000 secured money bond; • Whether the money bonds result in a percentage going to the Judicial Expense
Fund and to the District Attorney, the Public Defender, and the Sheriff’s budgets; • Whether the Defendants have a policy and practice of delaying a hearing
indefinitely; • Whether the Defendants provide notice to debtors that their ability to pay will be a
relevant issue at the hearings at which they are continued to be jailed and whether the Defendants ensure that findings are made concerning ability to pay and alternatives to incarceration; • Whether (and, if so, how) the Defendants provide adequate representation to those jailed for unpaid debts in proceedings that result in their incarceration and whether any representation provided is free of financial conflicts of interest; • What procedural mechanisms, if any, the Defendants use as matter of policy and practice to determine indigence; for example, whether the Defendants use a standard state-issued form for determining ability to pay; • Whether the Defendants apply state procedural and state and federal substantive law designed to determine indigence and to protect indigent debtors; • Whether Defendants have a policy and practice of threatening debtors with incarceration for unpaid debts without informing them of their constitutional rights.
126. Among the most important common question of law are:
• Whether it is lawful to issue arrest warrants solely for non-payment of amounts and during a time period required by Collections Department employees, especially given the lack of inquiry into indigence and the actual knowledge of
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Collections Department employees that a debtor is indigent and unable to pay; • Whether such warrants can be issued to deprive debtors of their liberty without
prior meaningful opportunity to be heard; • Whether it is lawful to sign the signature of a judicial officer without contacting
that officer or presenting any evidence to that officer in order to obtain a warrant and whether it is lawful to issue such warrants without a finding of probable cause that any offense has been committed; • Whether it is lawful to arrest people under such illegal warrants; • Whether it is lawful to detain people under such illegal warrants; • Whether a person can be kept in jail pursuant to a standard $20,000 bond fee without any inquiry into indigence or into the person’s danger to the community or risk of flight; • Whether bail amounts advocated for and set by supposedly neutral actors who actually have a personal financial stake in the amounts set violates due process; • Whether the Defendants can keep debtors in jail indefinitely after arrest until they pay and whether the policy and practice of delaying a hearing indefinitely is lawful; • Whether due process is violated by proceedings conducted without notice to debtors that their ability to pay will be a relevant issue at the hearings and without findings made concerning the ability to pay; • Whether competent constitutional counsel is required at hearings involving complex statutory fees, constitutional issues, jailing, an adversary represented by an experienced prosecutor, and potentially years of documents, court records, and fees to evaluate; • Whether the Defendants can operate a scheme that ignores all of the basic state law protections for civil judgment debtors, such as exemptions from seizure, garnishment protections, and protection of federal benefits.
127. These common legal and factual questions arise from one central scheme and set
of policies and practices: the Defendants’ unconstitutional debt-collection system. The
Defendants operate this scheme openly and in materially the same manner every day. The
material components of the scheme do not vary from Class member to Class member, and the
resolution of these legal and factual issues will determine whether all of the members of the class
are entitled to the constitutional relief that they seek.
C. Typicality. Fed. R. Civ. P. 23(a)(3).
128. The named Plaintiffs’ claims are typical of the claims of the members of the
Class, and they have the same interests in this case as all other members of the Class that they
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represent. Each of them suffered injuries from the failure of the Defendants to comply with the
basic constitutional provisions detailed below. The answer to whether the Defendants’ scheme
of policies and practices is unconstitutional will determine the claims of the named Plaintiffs and
every other Class member.
129. If the named Plaintiffs succeed in their claims that the Defendants’ policies and
practices concerning debt collection for fines, fees, costs, and surcharges violate the law in the
ways alleged in each claim of the Complaint, then that ruling will likewise benefit every other member of the Injunctive Class.23
D. Adequacy. Fed. R. Civ. P. 23(a)(4).
130. The named Plaintiffs are adequate representatives of the Class because they are
members of the Class and because their interests coincide with, and are not antagonistic to, those
of the Class. There are no known conflicts of interest among Class members, all of whom have a
similar interest in vindicating the constitutional rights to which they are entitled. 131. Plaintiffs are represented by William Quigley, his associates24 and attorneys from
Equal Justice Under Law25 who have experience litigating complex civil rights matters in federal
court and extensive knowledge of both the details of the Defendants’ scheme and the relevant
constitutional and statutory law.
132. Counsel’s efforts have so far included extensive investigation over a period of
23 The named Plaintiffs representing the Declaratory and Injunctive Class are: Alana Cain, Ashton Brown, Reynajia Variste, and Vanessa Maxwell. 24 William Quigley has practiced law in Louisiana for nearly forty years, during which time he has litigated numerous class action civil rights cases in federal court. He holds the positions of Professor of Law and Director of the Stuart H. Smith La Clinic and Center for Social Justice and the Gillis Long Poverty Law Center at Loyola University New Orleans College of Law. Anna Lellelid-Douffet has been practicing law in Louisiana with Bill Quigley since graduating from Loyola in 2013. Most of her work has been in Federal court in the Fifth and Sixth Circuits, representing criminal defendants. 25 Equal Justice Under Law is a non-profit civil rights organization based in Washington, D.C. The organization was founded and is run by Alec Karakatsanis and Phil Telfeyan, and it is funded in part by the Harvard Law School Public Service Venture Fund.
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months, including numerous interviews with witnesses, legal system employees, law enforcement officials, jail inmates, families, attorneys practicing in New Orleans and Louisiana courts, and national experts in debt collection, court costs, conflicts of interest, and constitutional law.
133. Counsel has also studied budget documents, court records, and transcripts in order to gain an understanding of state law and practices as they relate to federal constitutional requirements. Counsel has studied the way that these systems function in other cities and states in order to investigate the wide array of options in practice for government officials.
134. As a result, counsel has devoted enormous time and resources to becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel has also developed relationships with many individuals and families victimized by the Defendants’ practices.
135. The Plaintiffs are represented by attorneys from Equal Justice Under Law who have experience litigating complex civil rights class action lawsuits in federal court and extensive knowledge of the relevant constitutional law. Counsel for Plaintiffs has also been lead counsel in several similar class action constitutional challenges to unlawful municipal debtcollection regimes. See, e.g., Mitchell et al, v. City of Montgomery, 2014-cv-186 (M.D. Ala. 2014). That case involved a major investigation to end widespread injustices involving the use of private probation and the jailing of impoverished people by the City of Montgomery over a period of years for their non-payment of debt from traffic tickets and other misdemeanor offenses.26 The litigation resulted in the cancelling of the private probation contract, the release
26 Counsel is also lead attorney in several recent class action lawsuits challenging the use of money bail to keep impoverished people in jail prior to trial. See Jones et al. v. City of Clanton, 15-cv-34 (M.D. Ala. 2015); Pierce et. al. v. City of Velda City, 15-cv-570 (E.D. Mo. 2015); Powell et al. v. City of St. Ann, 4:15-cv-840 (E.D. Mo. 2015); Thompson et al. v. City of Moss Point, 1:15-cv-00182-LG-RHW (S.D. Miss. 2015); Cooper et al. v. City of Dothan,
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of numerous people from the local jail, and a consent decree mandating new policies and practices.27 Counsel is also lead attorney in pending lawsuits challenging the treatment of indigent people with court debts in the municipal courts and jails of Jennings and Ferguson, Missouri. See also Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015); Fant et al. v. City of Ferguson, 15-cv-253-AGF (E.D. Mo. 2015).
136. The Plaintiffs and their attorneys will fairly and adequately protect the interests of the members of the Class.
E. Rule 23(b)(2) 137. Class action status is appropriate because the Defendants, through the policies, practices, and procedures that make up their court debt-collection scheme, have acted and/or refused to act on grounds generally applicable to the Declaratory and Injunctive Class. Thus, a declaration that people are entitled, as a matter of federal law, to a meaningful inquiry into their ability to pay and an evaluation of alternatives to incarceration before they are jailed for nonpayment will apply to each Class member. The same applies to rulings on the other claims, including: that Defendants cannot issue and execute illegal arrest warrants for debtors without probable cause that they have committed an offense and without notice or a hearing prior to the deprivation of their fundamental liberty; that Class members cannot be held in jail indefinitely pursuant to a fixed monetary bond that they cannot afford without any inquiry into their indigence or finding that they pose a danger to the community or risk of flight; that Class
1:15-cv-425-WKW (M.D. Ala. 2015). Counsel was also previously the lead attorney in a constitutional civil rights class action against the District of Columbia in the United States District Court for the District of Columbia. See 1:13-cv-00686-ESH (D.D.C. 2013). In that litigation, undersigned counsel was responsible for investigating and building the complex constitutional claims against the District of Columbia, authoring the legal filings in the class action case, and negotiating a Memorandum of Understanding with the District of Columbia Attorney General that stayed the class action litigation and began to implement sweeping changes to the County’s policies and practices governing the civil forfeiture of property by the District’s Metropolitan Police Department—procedures that affect thousands of putative class members every year. 27 See Consent Decree in Mitchell et al, v. City of Montgomery, 2014-cv-186 (M.D. Ala. 2014) attached as Exhibit 2.
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members are entitled to notice, a neutral tribunal, and representation by counsel at a complex hearing initiated and litigated by experienced prosecutors and after which they are jailed; and that the Defendants cannot collect debts from Class members in a manner that violates and evades all of the relevant protections for other judgment debtors.
138. Injunctive relief compelling the Defendants to comply with these constitutional rights will similarly protect each member of the Class from being again subjected to the Defendants’ unlawful policies and practices with respect to the debts that they still owe and protect those who will incur such debts in the future from the same unconstitutional conduct. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
139. Plaintiffs seek the following relief and hereby demand a jury in this cause for all matters so appropriate.
Claims for Relief Count One: The Defendants’ Policy of Issuing and Executing Illegal Arrest Warrants Violates the Fourth and Fourteenth Amendments. 140. Plaintiffs incorporate by reference the allegations in paragraphs 1-140. 141. The Defendants’ policy and practice is to issue and execute arrest warrants for those debtors who have not paid old court debts based solely on nonpayment. These warrants are sought, issued, and served without any inquiry into the person’s ability to pay even when the Defendants have knowledge that the person is impoverished and unable to pay the debts. These warrants are sought, issued, and served without any finding of probable cause that the person has committed any offense and with knowledge that no probable cause exists. Moreover, the warrants are issued not by a judicial officer but by Collections Department employees called “Collections Agents,” who write the signatures of the judicial officer on warrants without
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presenting any evidence or information, let alone providing any information under oath, to any judicial officer.
142. The Defendants issue arrest warrants instead of using legal summonses and scheduling court dates. The Defendants therefore deprive people of their liberty unnecessarily and without any opportunity to be heard, even when they have spoken to people on the phone or in person and have the opportunity to notify them to appear in court for a hearing. The Defendants’ policy and practice is to deprive people of their fundamental liberty without any proper notice and hearing or any basic inquiry into whether the debt is still owed or valid or whether nonpayment was willful. These practices violate the Fourth and Fourteenth Amendments and result in a deprivation of fundamental liberty without adequate due process.
Count Two: The Defendants’ Use of a Fixed Secured Money Bond for each Collections Department “Warrant” Violates the Fourteenth Amendment.
143. Plaintiffs incorporate by reference the allegations in paragraphs 1-143. 144. The Fourteenth Amendment’s due process and equal protection clauses have long prohibited imprisoning a person because of the person’s inability to make a monetary payment. The Defendants violate the Plaintiffs’ rights by placing and keeping them in jail prior to any debt-collection proceedings when they cannot afford to pay the preset amount of money required for release after a Collections Department nonpayment arrest if the person seeks to contest the issue of nonpayment or the validity of the debt. Count Three: The Defendants Violated Plaintiffs’ Rights By Jailing Them Indefinitely Without a Judicial Appearance. 145. Plaintiffs incorporate by reference the allegations in paragraphs 1-145. 146. The Due Process Clause of the Fourteenth Amendment prohibits the Defendants from jailing the Plaintiffs indefinitely and without any meaningful legal process through which
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they can challenge their detention by keeping them confined in the local jail (routinely for days or weeks) unless or until they can make arbitrarily determined cash payments to the Collections Department.
Count Four: Defendants Violated Plaintiffs’ Due Process Rights By Implementing a Scheme of Money Bonds In Which Constitutionally Neutral Judicial and Government Actors Take a Percentage of Each Bond to Fund Their Own Budgets.
147. Plaintiffs incorporate by reference the allegations in paragraphs 1-147. 148. The Defendants operate a system of money bond in which the judges collect and control 1.8% of every bond paid into the Fund that they manage as administrators to operate the budget of the Court. Every relevant actor in the local system implementing and reviewing such money bail settings has an incentive to set money bonds in a manner that ensures the maximization of their own revenues.28 This creates an intolerable financial conflict of interest. 149. The Defendants therefore enforce a Collections Department money bond system on which the judges, District Attorney, Sheriff, and Public Defender depend to fund their own operations that is unconstitutional under the Fourteenth Amendment because it contravenes fundamental principles of neutrality. Despite this Court striking down that system nearly 25 years ago, the Defendants continue to operate the illegal money bail arrangement and to take a cut of every money bond paid. To the extent the Defendants are complying with state statutes, see La. Rev. Stat. Ann. § 22:822; § 13:1381.5, those statutes are, as this Court has previously held, unconstitutional.
28 The District Attorney collects 0.4% of every bond paid to fund its own salaries and other operations. Because the Public Defender also collects 0.4% of every bond paid to fund its salaries and operations. This money collected through convictions is insufficient to fund the Public Defender. As a result, indigent defense in Orleans Parish Criminal District Court is chronically underfunded with devastating results. Indeed, in addition to ensuring that enough money is assessed and collected from the convictions of their clients, Public Defenders have recently been told that they will be furloughed unless more money is brought in.
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Count Five: The Defendants Violated Plaintiffs’ Rights By Jailing Them For NonPayment of Debts Without Any Inquiry Into Their Ability To Pay and in Proceedings that Otherwise Violate Basic Due Process.
150. Plaintiffs incorporate by reference the allegations in paragraphs 1-150. 151. The Fourteenth Amendment’s due process and equal protection clauses have long prohibited imprisoning a person for the failure to pay money owed to the government if that person is unable to pay and without following basic procedures to make that determination. The Defendants violated Plaintiffs’ rights by imprisoning them when they could not afford to pay the debt allegedly owed and without following the basic constitutional process required. 152. The Defendants violated the Plaintiffs’ rights by jailing them, and by threatening to jail them, without conducting any inquiry into their ability to pay and without conducting any inquiry into alternatives to imprisonment as required by the United States Constitution. The Defendants similarly did not: provide the required notice to the Plaintiffs concerning the relevant and critical issues at any hearing contemplating their imprisonment; provide a meaningful opportunity for the Plaintiffs to present evidence of their inability to pay; or make findings concerning their ability to pay. 153. Moreover, the Defendants did not and do not provide the neutral tribunal free of financial conflicts of interest due process requires because the prosecutor and judicial officer at such debt-collection hearings are both financially interested in the outcome of the proceeding because they depend, to a significant extent, on the collection of revenue from those proceedings to fund their own operating budgets. The due process findings of fact and law required by Bearden v. Georgia, 461 U.S. 660, 672-73 (1983) and Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011) require, at a minimum, neutral prosecutorial and judicial officers, free from financial
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conflicts of interest of the kind condemned in Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972).
Count Six: The Defendants’ Use of Jail and Threats of Jail To Collect Debts Owed to the Defendants Violates Equal Protection Because It Imposes Unduly Harsh and Punitive Restrictions On Debtors Whose Creditor Is the Government Compared To Those Who Owe Money to Private Creditors.
154. Plaintiffs incorporate by reference the allegations in paragraphs 1-154. 155. The Supreme Court has held that, when a government seeks to recoup costs of prosecution from indigent defendants—for example, the cost of appointed counsel—it may not take advantage of its position to impose unduly restrictive methods of collection solely because the debt is owed to the government and not to a private creditor. The Defendants take advantage of their control over the machinery of the court, jail, and police systems to deny debtors the statutory protections that every other Louisiana debtor may invoke against a private creditor. This coercive policy and practice constitutes invidious discrimination and violates the fundamental principles of equal protection of the laws. Count Seven: Defendants’ Conduct Constitutes Wrongful Arrest Under Louisiana Law. 156. Plaintiffs incorporate by reference the allegations in paragraphs 1-156. 157. Defendants’ conduct described herein constitutes wrongful arrest of Plaintiffs
under the laws of the state of Louisiana and the United States. Count Eight: Defendants’ Conduct Constitutes Wrongful Imprisonment Under Louisiana Law. 158. Plaintiffs incorporate by reference the allegations in paragraphs 1-158. 159. Defendants’ conduct described herein constitutes wrongful imprisonment of Plaintiffs under the laws of the state of Louisiana and the United States.
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Request for Relief
WHEREFORE, Plaintiffs request that this Court issue the following relief:
a. A declaratory judgment that the Defendants violate Plaintiffs’ Fourth and Fourteenth Amendment rights by arresting them on illegal warrants issued only on the basis of nonpayment of a monetary judgment and without any meaningful pre-deprivation process;
b. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by keeping them in jail pursuant to a fixed secured bond that they cannot afford;
c. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by keeping them in jail indefinitely after arrest unless they pay an arbitrarily determined amount of money to settle their debts;
d. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by imprisoning them without conducting any meaningful inquiry into their ability to pay or into any alternatives to incarceration and at proceedings lacking in basic judicial neutrality;
e. A declaratory judgment that the Defendants violated the Plaintiffs’ equal protection rights by imposing harsh debt collection measures that could not lawfully be imposed on debtors whose creditors are private entities;
f. An order and judgment preliminarily and permanently enjoining the Defendants from enforcing the above-described unconstitutional policies and practices against the Plaintiffs and the Class of similarly situated people that they represent;
g. A judgment compensating the named Plaintiffs for the damages that they suffered as a result of the Defendants’ unconstitutional and unlawful conduct;
h. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
Respectfully submitted,
s/Bill Quigley
William P. Quigley, La Bar No. 7769 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 710-3074 (c)
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(504) 861-5590 (p) (504) 861-5440 (f) quigley77@gmail.com Designated TA s/ Anna Lellelid Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) lellelid.law@gmail.com Alec Karakatsanis (D.C. Bar No. 999294) (Pending Admission Pro Hac Vice) Equal Justice Under Law 916 G Street, NW Suite 701 Washington, DC 20001 (202)-681-2409 alec@equaljusticeunderlaw.org Attorneys for Plaintiff
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 Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

)

ALANA CAIN, ASHTON BROWN,

)

REYNAUD VARISTE, REYNAJIA

)

VARISTE, THADDEUS LONG,

)

VANESSA MAXWELL, et al.

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF NEW ORLEANS; ORLEANS )

PARISH CRIMINAL DISTRICT COURT; )

MARLIN GUSMAN, ORLEANS PARISH )

SHERIFF; ARTHUR MORRELL, CLERK )

OF COURT; ROBERT KAZIK, JUDICIAL )

ADMINISTRATOR;

)

SECTION “A” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE LAURIE A. WHITE; )

SECTION “B” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE TRACEY

)

FLEMINGS- DAVILLIER;

)

SECTION “C” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BENEDICT WILLARD;

)

SECTION “D” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

AD HOC JUDGE DENNIS WALDRON; )

SECTION “E” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE KEVA LANDRUM-JOHNSON; )

SECTION “F” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE ROBIN PITTMAN;

)

SECTION “G” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BYRON C. WILLIAMS;

)

SECTION “H” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE CAMILLE BURAS;

)

SECTION “I” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

Case No. 15-4479

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 2 of 44

JUDGE KAREN K. HERMAN;

)

SECTION “J” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE DARRYL DERBIGNY; )

SECTION “K” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE ARTHUR HUNTER;

)

SECTION “L” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE FRANZ ZIBILICH;

)

MAGISTRATE OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE HARRY CANTRELL

)

)

Defendants.

)

___________________________________ )

(Complaint: Class Action)

FIRST AMENDED CLASS ACTION COMPLAINT

Introduction

Despite longstanding Supreme Court precedent that the Government cannot imprison

people just because they are poor, New Orleans officials routinely use jail and threats of jail to

collect court debts from thousands of the City’s poorest people. The result is an illegal,

unconstitutional, and unjust modern debtors’ prison. To make matters worse, officials in the

Collections Department of the Orleans Parish Criminal District Court have admitted under oath

that they have been issuing arrest warrants for unpaid debts by signing themselves the signatures of judges without first presenting any information to the judge or even notifying the judge.1 The

Defendants use their unconstitutional scheme of arresting and jailing people for their inability to

pay and keeping them in jail until they come up with money to fund themselves off the backs of

New Orleans’ poorest.

The Plaintiffs in this case are each victims of this illegal scheme. They each live in

poverty and each has been jailed for unpaid or late court debts. Although the Plaintiffs pleaded

1 See Transcript of Evidentiary Hearing in State of Louisiana v. Michael Addison, No. 426-246J, Jan. 30, 2015, attached as Exhibit 1.
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that they were unable to pay due to their indigence, they were all arrested on an illegal warrant, and all languished in jail for nonpayment without receiving notice of how or when they would be released or when a hearing would be held. None was afforded the inquiry into their ability to pay that the United States Constitution requires.
Once locked in jail, each person was told that they had no court date set and that they would not be released until they paid the entirety of their debts or posted a preset $20,000 secured money bond.2 No inquiry was made into their individual circumstances, their ability to pay, or whether they constituted a danger to the community or a risk of flight prior to the setting of this secured money bond. Some languished in jail for days and others remained locked up for weeks.
The environment of threats of jail and actual jailing creates a culture of fear among indigent people and their families, who borrow money at high interest rates, divert money from food for their children, and cash their family members’ disability checks in a desperate attempt to pay the Collections Department to avoid indefinite confinement.
The policies and practices that led to the jailing of the Plaintiffs and to the creation of a local debtors’ prison are part of a broader breakdown of fairness and neutrality in the local criminal legal system, where financial conflicts of interest have derailed the pursuit of justice. When an indigent defendant appears in court, every government entity—the jailor who brought her there, the lawyer assigned to represent her, the prosecutor arguing against her, and the judge ruling on her case—funds its own budget in part based on the decisions made in her case. Each of them takes a percentage of every money bond that is required for release after arrest. Each also substantially funds their own budgets through fees that are assessed only upon conviction.
2 All named Plaintiffs had to seek the help of family members or others in jail with them to contact the clerk of court and find out why they were locked up to begin with. At no time did anyone come to them and tell them why they were locked up or when or how they could be released.
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This Court struck down elements of these financial conflicts of interest over two decades ago. And yet, the system has persisted, with devastating consequences for the bodies and minds of the poorest people in New Orleans and for the dignity of the justice system. These conflicts of interest are out of line with fundamental principles of due process as those concepts have been understood throughout American legal history. Officials involved in every area of the local legal system, including law enforcement, lawyers, and judges, acknowledge and complain that these financial incentives have corrupted the basic delivery of justice in the City.3
The treatment of Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, Vanessa Maxwell, and each of the other Plaintiffs reveals systemic illegality perpetrated by the Defendants against some of the poorest people in the community. The Defendants, as a matter of policy and practice, engage in the same conduct against many other human beings on a daily basis, unlawfully jailing people if they are too poor to pay debts from prior convictions, including the associated fees, costs, and surcharges that the Defendants ultimately use for their own benefit.
Poverty is widespread in New Orleans. The United States Census Bureau reports that 104,919 people in New Orleans live in poverty.4 That is more than one in four people (27%). Though millions of people work full-time and are still struggling to subsist below the federal poverty line, many people are living in extreme poverty: national statistics show that over 1.5 million families get by on less than $2 a day.5 There are countless people in our community who
3 See Micah West, Financial Conflicts of Interest and the Funding of New Orleans’s Criminal Courts, 101 Cal. L. Rev. 521 (2013) available at http://scholarship.law.berkeley.edu/californialawreview/vol101/iss2/4/ (for an in-depth review of the ways in which fees assessed against criminal defendants have created serious conflicts of interests in New Orleans Criminal District Court.) 4 United States Census Bureau, Quick Facts, available at http://quickfacts.census.gov/qfd/states/22/22071.html. 5 http://www.cbsnews.com/news/the-surging-ranks-of-americas-ultrapoor/.
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have nearly no source of income at all. In New Orleans, about half of the adult men in the African American community are unemployed and receive no unemployment compensation.6
The Defendants know that most people appearing before them are impoverished because eighty-five percent of the people appearing in Orleans Parish Criminal District Court have been determined to be indigent for purposes of appointment of the Orleans Public Defenders. Plus, Louisiana Law Revised Statute 15:175 defines indigency for purposes of criminal proceedings as people who earn less than 200% of the Federal Poverty Guidelines or receive food stamps, Medicaid, or disability benefits. And yet, impoverished people represent the large majority of people who owe debts to the Collections Department. The burden of court debts increases recidivism, blocks productive reentry, devastates families who have to make hard choices about debt payments or food, inhibits mental health care, and makes it harder for people to obtain housing and employment.7 It is therefore from those among us who are least able to pay that the Court’s Collections Department attempts to fund its own budget through jailing and threats of jailing for nonpayment.
By and through their attorneys and on behalf of themselves and all others similarly situated, the Plaintiffs seek in this civil action the vindication of their fundamental rights, compensation for the violations that they suffered, injunctive relief assuring that their rights will not be violated again, and a declaration that the Defendants’ conduct is unlawful. In the year 2015, these practices have no place in our society.
6 http://allthingslocalnola.info/yahoo_site_admin/assets/docs/RecognizingPotential.170111053.pdf. 7 See generally, Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry (2010), available at https://www.brennancenter.org/publication/criminal-justice-debt-barrier-reentry.
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Nature of the Action8 1. Defendants fund themselves through the collection of money from the people that they process and judge. The pursuit of that money has corrupted the basic delivery of justice and resulted in pervasive conflicts of interest and rampant constitutional violations in the procedures for collecting those debts after cases are closed. 2. The Orleans Parish Criminal District Court and the City of New Orleans jointly fund the Collections Department as part of their efforts to supplement the City and Court budgets with the debts collected from mostly indigent people. Defendants act in concert to implement a regime of debt collection premised on assessing high amounts of court costs and discretionary fees and then collecting money from impoverished former defendants in a manner that deliberately ignores longstanding constitutional and statutory protections. 3. This scheme is accomplished by threatening indigent people with jailing if they or their families do not pay, issuing invalid arrest warrants, wrongfully imprisoning court debtors, delaying any hearing in court indefinitely, charging preset secured money bonds for those arrested on Collections Department warrants (from which the judges, the District Attorney, the Public Defender, and the Sheriff each take a percentage), and failing to perform any inquiry into an individual’s ability to pay when they are finally brought to court for debt-collection proceedings. When released from jail, former defendant debtors who have not paid their debts in their entirety are returned to a cycle of debt and threats. 4. Plaintiffs seek declaratory, injunctive, and compensatory relief.
8 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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Jurisdiction and Venue 5. This is a civil rights action arising under 42 U.S.C. § 1983, § 1988 and 28 U.S.C. § 2201, et seq., and the Fourth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has pendant jurisdiction over the state law claims under 28 U.S.C. § 1367. 6. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 7. Plaintiff Alana Cain is a 26-year-old resident of New Orleans. Plaintiff Ashton Brown is a 21-year-old resident of New Orleans. Plaintiff Reynaud Variste is a 26-year-old resident of New Orleans. Plaintiff Reynajia Variste is a 21-year-old resident of New Orleans. Plaintiff Thaddeus Long is a 33-year-old resident of New Orleans. Plaintiff Vanessa Maxwell is a 49-year-old resident of New Orleans. The named Plaintiffs represent themselves as individuals and a Class of similarly situated people all subject to the Defendants’ debt-collection scheme. 8. Defendant City of New Orleans is a municipal government entity, organized under the laws of the State of Louisiana. Among other things, the City of New Orleans funds the hiring of the Collections Department employees who openly and as a matter of policy commit the violations at issue in this case. Moreover, the City of New Orleans police officers execute the Collections Department warrants even though the City knows or should know that the warrants are invalid and unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody. 9. Defendant Orleans Parish Criminal District Court is a municipal government entity that manages the Judicial Administrator and the Collections Department and that, along with the City of New Orleans, jointly funds the operation of the Collections Department. The
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Orleans Parish Criminal District Court is managed administratively by the Orleans Parish Criminal District Court judges, who jointly control and administer the Judicial Expense Fund.
10. Defendant Judicial Administrator, Robert Kazik, is an employee of the Orleans Parish Criminal District Court. He is responsible to and supervised by the judges of the Orleans Parish Criminal District Court. Robert Kazik is responsible for the operation of the Collections Department, which is jointly funded by the City of New Orleans and the Orleans Parish Criminal District Court. He is sued in his official and individual capacities.
11. The Clerk of Court, Arthur Morrell, is an elected public official responsible for oversight and funding of the Orleans Parish Criminal District Court’s operations. He is sued in his official and individual capacities.
12. Orleans Parish Sheriff Marlin Gusman operates the local jail and unconstitutionally detains impoverished people indefinitely because of their inability to make a financial payment for their release. He is sued in his official capacity.
13. The individual Judges of the Orleans Parish Criminal District Court are defendants herein because: they supervise and are responsible for the Judicial Administrator as well as the employees of the Orleans Parish Criminal District Court; they knew or should have known of the unconstitutional practices described herein which result in the illegal, unconstitutional, and wrongful arrest and imprisonment of Plaintiffs; and they have each failed to provide Plaintiffs with the legal process they are constitutionally due if imprisoned for nonpayment of court debts. They are sued for declaratory relief only.
The thirteen Orleans Parish Criminal District Court judges are: Section A, Honorable Judge Laurie A. White; Section B, Honorable Judge Tracey Flemings-Davillier; Section C, Honorable Judge Benedict Willard; Section D, Honorable Judge ad hoc Dennis Waldron; Section
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E, Honorable Judge Keva Landrum-Johnson; Section F, Honorable Judge Robin Pittman;

Section G, Honorable Judge Byron C. Williams; Section H, Honorable Judge Camille Buras;

Section I, Honorable Judge Karen K. Herman; Section J, Honorable Judge Darryl Derbigny;

Section K, Honorable Judge Arthur Hunter; Section L, Honorable Judge Franz Zibilich; and

Magistrate Judge Harry Cantrell.

Factual Background

A. The Named Plaintiffs’ Imprisonment

i.

Plaintiff Alana Cain

13. Alana Cain is a 26-year-old woman.

14. Ms. Cain lives in desperate poverty. She struggles to get enough money for food,

clothing, shelter, and the other basic necessities of life. She has no income and helps take care of

her mother who is sick with cancer.

15. Ms. Cain was charged with a felony theft offense in 2012 and found to be

indigent. She was assessed a fine and court costs (including $600 in discretionary costs imposed

by the judge to feed the judge’s Judicial Expense Fund) after conviction. Ms. Cain could not

afford to pay.

16. Pursuant to the Defendants’ policy, Ms. Cain’s case was closed after she was

sentenced on July 8, 2013. She was sent to the Collections Department, who decided in the

discretion of its employees that she would be required to pay $100 per month even though she

was destitute. Collections Department employees informed Ms. Cain that they would also

decide when she had to bring the money each month.

17. Ms. Cain made every payment by borrowing money from friends and family, who

were also living in poverty.

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18. After making consistent on-time payments, Ms. Cain was late one time. She called the collections department and spoke to a supervisor. The supervisor told her that he could give her more time to pay but that she might have a warrant put out for her arrest. She informed him that she did not have enough money to pay, and he told her that he would issue a warrant for her arrest.
19. Ms. Cain tried to come up with the money, but she was not able to do so. When Ms. Cain asked if she could make a smaller payment to the Collections Department, employees in the Collections Department told her that, pursuant to their policy, they would refuse to accept any payment smaller than $50. They told her not to bother to bring anything less.
20. On March 11, 2015, Ms. Cain was a passenger in a car that New Orleans police pulled over for a traffic violation. After asking for her identification, the police officer told her that she had a warrant for her arrest and that he could not let her go. Ms. Cain had $80 that her friend had lent her that she was hoping to put toward her court debts. They were returning from the bank with the money in her purse.
21. She informed the officer that she had spoken to the Collections Department and told them that she could not afford to pay, but the officer told her that he was just doing his job and that he had to take her to jail.
22. When Ms. Cain arrived at the Orleans Parish Prison, the local jail run by the Orleans Parish Sheriff, jail staff told her that she had a warrant because she had not paid her court debts. She told jail staff that she had spoken to the Collections Department and that she asked for more time to make her monthly payment. She had money on her when she was arrested and she asked if she could use that money to pay Collections. Jail staff told her that they could not do anything about it and that she had a $20,000 secured bond pursuant to standard policy.
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23. Ms. Cain asked when she could go to court, and jail staff told her that there was no way to find out when her court date would be. Jail staff told her that someone from her family had to call the court to get her placed on a docket or else she would not get a court date. There was no free phone available for inmate use, and Ms. Cain therefore could not reach anyone in her family.
24. Ms. Cain repeatedly tried to use the jail computer system to ask what was happening to her and to communicate with someone who could tell her when she could go to court.
25. Another prisoner eventually took pity on Ms. Cain and let her use a paid phone account after several days.
26. Ms. Cain then called her sister, who agreed to call the court and try to get her on the docket.
27. After a week, Ms. Cain was brought to court. The judge told her that if she ever missed a payment again, she would have to spend 90 days in jail.
28. Ms. Cain told the judge that she did not have a job and that she was not able to come up with the money. The judge made no meaningful inquiry into her indigence and, pursuant to policy, neither the lawyers representing the District Attorney nor the Public Defender informed her of her constitutional rights or asked the judge to conduct such an inquiry. The judge told her that she was required to pay or she would be jailed.
29. Ms. Cain has no bank account, no car, and no significant assets. She relies intermittently on food stamps and the kindness of her family to provide her with clothing, food, shelter and the other basic necessities of life. She has struggled to find work since her criminal conviction, and she takes care of her mother who is sick with cancer. She suffers from several
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medical conditions and has felt trapped in a cycle of debt and fear caused by the threats of the

Collections Department employees.

ii.

Plaintiff Ashton Brown

30. Mr. Brown is a 21-year-old New Orleans resident.

31. Mr. Brown lives in desperate poverty and struggles to meet the basic necessities

of life, including food, clothing, medical care, and shelter.

32. Mr. Brown was placed on inactive probation stemming from a theft conviction on

December 16, 2013. He was assessed a total of $500 in various costs and discretionary fees

levied for the benefit of the judges, the District Attorney, and the Public Defender. He could not

afford to pay the court debts. As is standard, Mr. Brown was also subsequently charged

additional fees for his probation officer.

33. Mr. Brown was forced to decide which set of fees he could pay with money he

scraped together in lieu of buying food and clothing. He decided to pay his probation officer

$200 because he was told that he would be revoked if he did not pay his probation fees.

34. When he paid his probation fees, the Collections Department told him that he

could not get any extensions on his other court debts and told him to pay up. Mr. Brown

informed the Collections Department that he could not afford to pay his court debts. When he

could not pay, the Collections Department staff decided to sign and issue a warrant for his arrest

because of nonpayment, even though they knew that he was indigent and could not pay. 35. In May 2015, Mr. Brown was arrested for drug possession.9 After his drug case

was resolved on July 23, 2015, Mr. Brown was assessed fees and costs and returned to jail from

9 He was jailed and assessed an $8,000 secured money bond on the drug charges prior to trial. Pursuant to local practice and procedure, the bond was assessed without any meaningful assessment of his ability to pay. Mr. Brown could not afford to pay the bond, and so he remained in jail for months. When he went to court for the first time, Mr. Brown’s bond was raised at the urging of the District Attorney to $12,000, again without any meaningful
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the courtroom solely because of his prior unpaid debts from the 2013 case. He was told that he would not be released until he paid what he owed on his 2013 case or until he paid a new preset $20,000 bond on his Collections Department warrant. Mr. Brown was destitute and had already been determined indigent by the court. He had no bank account and no assets.
36. For two weeks following the disposition of his drug case, Mr. Brown languished in terrible jail conditions without being brought to court. He became increasingly desperate and depressed because he had just become a father for the first time, and he had been kept in jail since May, without being able to see his newborn daughter, solely because he could not come up with money that local officials required for his release.
37. Mr. Brown reached out from jail to his uncle who was able to set up a potential job for him. Mr. Brown was excited at the possibility because, prior to being locked up in May, he was only able to help support his new daughter by performing scattered odd jobs, like mowing lawns to pay for her food and diapers.
38. Finally, on August 6, 2015, Mr. Brown was brought to court. The judge, consistent with routine practice, told him that he would not be released from jail unless he paid his old court costs and fees. Mr. Brown told the judge that he thought that he had a job waiting for him and that he could try to work for enough money to pay the court debts. The judge told him that he could not release him. The judge told him he could not release him unless he paid at least $100. The judge told Mr. Brown that he would reset him for another court hearing in a week’s time and that he would be kept in jail unless he got a family member to pay. Mr. Brown
inquiry into his ability to pay or any meaningful hearing concerning whether he was a danger to the community or a risk of flight. It is common practice for local judges and the District Attorney to seek high money bonds because each is able to collect a percentage of every money bond, so each has a direct financial incentive to set bond as high as possible.
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was sent back to jail. No meaningful inquiry was made into his ability to pay, and none of the

required constitutional procedures for determining his ability to pay were followed.

39. Pursuant to standard policy and practice, neither the District Attorney’s Office nor

the Public Defender informed Mr. Brown of his constitutional rights, including his right not to be

jailed for nonpayment without an inquiry into his indigence. As is routine, nor did either the

prosecutor or public defender request such an inquiry or findings in his case. Mr. Brown was not

even given notice prior to or at the hearing that his ability to pay would be a critical issue in the

proceedings as required by Supreme Court precedent.

40. Several days later, with the help of another detainee at Orleans Parish Prison, Mr.

Brown was able to get a message to his grandmother. Brown’s family was able to scrape together

$100. They paid the Collections Department, and Mr. Brown was released from jail.

Collections Department employees told him that he would be arrested and jailed again if he does

not continue making payments on time.

iii.

Plaintiff Reynaud Variste

41. Reynaud Variste was sleeping quietly at home with his family in January 2015

when numerous armed officers surrounded and stormed his house with assault rifles and military

gear. The officers pointed guns at Mr. Variste and his family and handcuffed him.

42. When Mr. Variste asked what was happening, the officers told him not to worry

about it too much because he simply owed some old court costs and fees. He was taken to jail.

43. Mr. Variste had been convicted several years earlier and had been assessed about

$1,600 in court costs and fees. He had a low paying construction job, and he did his best both to

make payments and to meet the basic necessities of life for himself and his family. However,

after he had reduced his court debts to $700 with regular payments, his hours on the job were cut

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approximately in half because of a slowdown in business. He could no longer afford both to pay his court debts and to meet the basic necessities of life.
44. Mr. Variste went to the Collections Department and told the employees there that he could not afford his payments anymore. The Collections Department told Mr. Variste that there was nothing that they could do and that he had to pay what he owed. An employee told him that the best that he could offer Mr. Variste was to let him pay a total of $100 per month instead of $100 per month on each of his two cases.
45. Mr. Variste separately owed about $65 per month for his probation fees. 46. Each time Mr. Variste was late on a payment, Collections Department staff told him that he had to bring double the next time. These purported fee increases were not made pursuant to any legal process. 47. After his arrest, Mr. Variste languished in jail for 3 days, and he could not figure out what was happening to him. Jail staff had no idea when or whether Mr. Variste would be taken to court because of the Defendants’ policy of indefinite detention after Collections Department arrest warrants are executed. Finally, Mr. Variste called a bondsman, who told him that he would probably not be released from jail until he paid his entire court debts, which would be cheaper than paying the $20,000 money bond needed to get a court date to challenge the debts. 48. Mr. Variste was told that he had to pay the entirety of his court debts in order to get out. And although Mr. Variste’s girlfriend eventually used his paycheck to pay the entire debt amount on the subsequent Friday, Mr. Variste stayed in jail over the weekend and was not released until the following Monday. He never saw a judge and was never brought to court.
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49. Mr. Variste missed work while in jail, and he was in danger of losing his job

because he could nor reach his employer while he was jailed.

50. Mr. Variste struggles to survive financially and to provide the basic necessities of

life for himself and his 11-month-old child.

iv.

Plaintiff Reynajia Variste

51. Reynajia Variste is a 21-year-old New Orleans resident.

52. Ms. Variste pled guilty to an offense in October 2014. She was told that she owed

approximately $900 as a result of the costs and fees imposed by the court.

53. Ms. Variste was unable to pay what the Collections Department demanded. No

inquiry was conducted into her ability to pay, even though, like the other Plaintiffs, she had

previously been found indigent for purposes of the appointment of counsel.

54. In May 2015, New Orleans police set up an informal checkpoint in her

neighborhood after a robbery and began stopping all residents. Police stopped her while she was

walking and ran her name through a database, which revealed a Collections Department warrant

for non-payment. Even though she was pregnant, she was handcuffed, arrested, and taken to a

district station. She was then transported to jail.

55. At booking, staff told Ms. Variste that she could go free if she paid her court

debts. She was also given the choice to pay a standard $20,000 money bond in the alternative.

She was jailed instead because she did not have the money.

56. Ms. Variste’s family was desperate to get her out of jail because she was

pregnant, and they worried about the effects of being in the notoriously dangerous and unsanitary

jail on her unborn child.

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57. Ms. Variste’s aunt went to the Collections Department to find out what was going on. The Collections Department told her that they would require at least $400 before they would agree to let her out of jail. The Collections Department told her aunt that they would require that amount of money because they needed close to half of what she owed in total.
58. Ms. Variste and her family panicked because they could not come up with the money.
59. Ms. Variste was not permitted to shower or clean herself for the first three days in jail, and she could not tolerate the food. After a few days, she started bleeding from her vagina. She informed the guard, and the guard declined to tell a jail nurse. She continued to bleed for two days without receiving medical attention.
60. After seven days in custody, her family borrowed money to lend to Ms. Variste to buy her release. A portion of the money was borrowed from the SSI check of one of her relatives, who depended on that money to survive. When her family paid the Collections Department, Ms. Variste was released. She never saw a judge.
61. After her release, Ms. Variste went to the hospital, and she was told that the bleeding was a problem with her placenta.
62. Ms. Variste survives on food stamps and has no significant assets and no bank account.
63. Ms. Variste has applied to numerous jobs in the past couple of years, and despite nearly receiving them, she is routinely rejected after a background check reveals her felony theft conviction.
64. After she was released from jail, the Collections Department resumed threatening her with arrest and jail if she did not pay what they told her to pay. In early August 2015, she
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went to the Collections Department and paid $100 even though she could not afford it without

severe hardship because she was scared of the threats to have her arrested before she gave birth.

She continues to live in constant fear of being arrested and jailed indefinitely for being unable to

pay.

v.

Plaintiff Thaddeus Long

65. Thaddeus Long is a 33-year-old resident of New Orleans. He struggles

financially to meet the basic necessities of life for himself and his family.

66. Mr. Long was working at a temp-to-hire job in June 2015. He was working for

the City of New Orleans to modernize its parking meters by removing old meters and installing

new pay stations. He had just started the job and had been working for several weeks.

67. Mr. Long was pulled over by City of New Orleans police. After the police

searched his name, the police system indicated that the Collections Department had issued a

warrant for nonpayment of fees and costs stemming from a 2011 conviction. Mr. Long

explained to police that he had paid off his debts in their entirety. A note in Mr. Long’s court

files confirms that he had paid his debts in full in October 2013.

68. Nonetheless, the Collections Department had, pursuant to its policy and practice,

issued a warrant for his arrest for nonpayment.

69. Pursuant to policy and practice, Mr. Long was not brought to court to see a judge.

Instead he was transported to Coushatta, Louisiana and held there for six days on the standard

$20,000 secured money bond until he convinced someone to inquire about his case and was

brought to court. When he appeared in court, he explained the mistake, which was apparent

from the court records. He was released immediately.

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70. Because of the Collections Department warrant, the standard bond set and perpetuated by those who profit from the setting of those bonds, and the policy and practice of not producing arrestees in a prompt manner, Mr. Long lost a week of work and soon after lost his job.
vi. Plaintiff Vanessa Maxwell 71. Vanessa Maxwell is a 49-year-old resident of New Orleans. She is the mother of seven children, and she has six grandchildren. 72. Ms. Maxwell is indigent and is staying in her sister’s home with seven other family members. 73. Ms. Maxwell suffers from schizophrenia. She regularly hears voices talking to her, usually the voice of her dead son. She is also bipolar, suffers from major depressive disorder, and suffers from social anxiety disorder that debilitates her when she is forced to be around a lot of other people. 74. In 2011, she was convicted of an offense in New Orleans and assessed court costs and fees. After she served her sentence, she was sent to Mississippi because the Louisiana offense constituted a violation of her Mississippi probation terms. She was then placed in revocation proceedings in Mississippi. 75. Unbeknownst to Ms. Maxwell, while she was in Mississippi, the Collections Department issued a warrant for her arrest for nonpayment of her New Orleans court fees. 76. Once she moved back to Louisiana, Ms. Maxwell did not find out about the warrant until she got into an argument with her boyfriend. When police arrived to investigate, Ms. Maxwell was arrested after the officer ran her name and saw the Collections Department warrant.
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77. Ms. Maxwell was brought to jail, where she stayed in central lockup for a couple of days. She could not eat the food provided to her because it was moldy. Mold, feces, and urine covered the toilet area around her cell. The place smelled like urine.
78. After a couple of days, she was transferred to the women’s facility. 79. At no point did anyone inform her why she was being detained, how she could seek release, or when she would be brought to court. 80. Ms. Maxwell wrote grievances every day to get the attention of someone who could tell her what was happening. No one responded. 81. After calling the Orleans Parish Criminal District Court clerk repeatedly without any help, her daughter and son-in-law hired a private attorney with money they scraped together to get her name on the docket. Ms. Maxwell was never brought to court. Instead she continued to sit in jail. 82. Ms. Maxwell had the number of a public defender who had handled a case for her son. She called repeatedly, and she finally got through after several days. She begged the Public Defender’s Office to get her name on a docket to see a judge. 83. On Thursday, May 21, 2015, twelve days after her arrest, Ms. Maxwell was brought to court. Ms. Maxwell’s public defender argued for her release and although no indigency hearing was conducted, the judge ordered her release contingent on Ms. Maxwell paying $191 within a week. 84. Ms. Maxwell has not been able to come up with any money to pay the Collections Department since her release. She does not leave her house except to pick up her grandson from the bus stop nearby. She is in imminent danger of arrest and jailing again pursuant to monetary conditions that she cannot make.
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B. The Defendants’ Policies and Practices 85. The Plaintiffs and many other witnesses have, in recent months and years, observed numerous other indigent New Orleans residents jailed as a matter of pattern and practice by the Collections Department. These residents are kept in jail for non-payment of debts without an inquiry into their ability to pay, pursuant to standard preset secured monetary bonds from which supposedly neutral judicial and government actors who set those bonds are promised a percentage, and without the consideration of whether imprisonment serves legitimate interests in light of available alternatives as required by federal and Louisiana law. 86. Moreover, when proceedings are eventually held days or weeks later for people who cannot buy their release or who cannot find anyone to buy their release for them, the Defendants’ cursory and fleeting proceedings (commonly lasting less than a minute to several minutes) often do not even identify the specific debts and fees owed or the cases in which they were supposedly incurred. These unconstitutional proceedings do not provide a debtor with a meaningful opportunity to contest the validity of the debts, to put on evidence concerning their indigence, or to consider any non-financial alternatives to detention. Debtors are routinely sent back to jail until they pay an arbitrary amount of money without examination or findings on any of these constitutionally required issues. 87. The treatment of the Plaintiffs was caused by and is representative of the Defendants’ policies and practices to collect debts from the fines, fees, costs, and surcharges that benefit the Defendants. 1. The Initial Assessment of Court Costs, Fees, and Surcharges 88. The Defendants impose an automatic $20,000 secured money bond on anyone illegally arrested and imprisoned on a Collections Department warrant for non-payment or late
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payment of court debts. This bond, like every pre-trial money bond issued in New Orleans,
partially funds the District Attorney, the Public Defender, the Sheriff, and the Judicial Expense
Fund. The judges collect 1.8% of each bond, and the other three entities each collect 0.4% of
each bond. The judges collect over $1 million from these bond fees alone into the Judicial
Expense Fund each year, and they have decided to earmark these bond fees for payroll of court
employees. The Court and the judges rely to a significant extent on these bond fees to fund their
operating budget. Even though this practice was previously ruled unconstitutional by this Court
nearly 25 years ago in Augustus v. Roemer, 771 F. Supp. 1458, 1473 (E.D. La. 1991), it continues unabated.10
89. As a result, Defendants have developed a policy, pattern, and practice of
advocating for and implementing high bonds, fines, costs and fees without any constitutional
basis and any meaningful inquiry into a person’s ability to pay, even when they know that the
person is indigent. As a result, many people languish in jail every year solely because they are too poor to make a monetary payment.11
90. At the conclusion of a criminal case, as a matter of policy and practice in the
thousands of cases prosecuted each year, prosecutors advocate for, and the judges impose, a
variety of mandatory court costs and discretionary fees. Among these fees are assessments used
10 After Roemer struck down a statute specific to New Orleans, the legislature passed a new statute creating a materially indistinguishable scheme for the whole state. After subsequent lobbying by the judges of the Orleans Parish Criminal District Court, the legislature authorized an additional percentage to be funneled into the Judicial Expense Fund of the Orleans Parish Criminal District Court. As a result, 3% of every bail bond issued is set aside for local officials, including 1.8% for the judges to control and 0.4% directly for the budget of the District Attorney. LA. REV. STAT. ANN. § 22:822; § 13:1381.5.
The Sheriff and Public Defender also each take 0.4% percent of every bail bond, thus giving the Sheriff incentive to continue to participate in unlawful policies and practices and the Public Defender a financial conflict of interest, including an incentive not to advocate for recognizance or lower secured money bonds and an incentive not to appeal excessive money bail orders.
Because the statute was designed to fund a large percentage of the operating budgets of each actor, each currently depends on the continuation of the practice to survive. 11 The judges also commonly will increase a bond after a person has been released and is complying with all of the conditions of the bond over the course of a criminal case.
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directly to fund the District Attorney’s office, the Public Defender, and the Court itself. Probation officers impose additional fees. Each of these actors relies to a significant extent on the assessment and collection of these myriad fees and costs to fund their operations and to pay employee salaries and extra benefits. These costs and fees fund a significant percentage of each Defendant’s overall operating budget.
91. All of these fees and costs are imposed without any inquiry into an individual’s ability to pay.
92. One of the discretionary fees assessed upon conviction (and commonly the most significant fee) is the “Judicial Expense Fund” of the Orleans Parish Criminal District Court. The judges of the court manage the Fund and Court operations in an administrative capacity but refused for many years to disclose the financial details of the account or to permit basic public auditing. The Fund collects millions of dollars to support the Court’s operating budget in the administrative discretion of the judges of the Court, who decide in any individual’s case whether to assess the fee and, if so, how much to levy up to $500 for each misdemeanor charge and $2,500 for each felony charge.12
93. Every relevant actor in the judicial proceedings thus has a direct and significant financial incentive for the proceedings to result in conviction. They also have an additional incentive to assess fees in an amount as high as possible and to implement policies that result in those fees being collected without complying with constitutional and statutory protections for debtors.
12 La. Rev. Stat. Ann. 13:1381.4
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94. One of the fees collected from Plaintiffs was the subject of an exposé in 2010.13
For many years, Orleans Parish Criminal District Court judges had been using the money
assessed and collected from former criminal defendants to purchase private insurance benefits for themselves that the State of Louisiana does not provide public employees.14 From 2006 until
2011, the judges had spent more than $1.9 million on their own personal medical and other benefits for themselves and their spouses.15 The judges used their fiscal administration of the
Judicial Expense Fund to make these purchases.
95. The Orleans Parish District Attorney and the Louisiana Legislative Auditor condemned this misuse of court fees.16 The State of Louisiana Legislative Auditor investigated
the judges in 2012 and confirmed the District Attorney’s findings concerning the judges’ misuse
of money collected from former criminal defendant debtors. The District Attorney concluded,
after his investigation, that the judges’ actions constituted “malfeasance” and “gross misconduct.17 The State Auditor found in an audit issued November 21, 2012 that from 2009-
2011:
13 Richard A. Webster, Bail System Puts Court-Costs on Backs of Poor, New Orleans City Business, Aug. 20, 2010. 14 Gordon Russell, The Times-Picayune, WVUE-TV file suit against Criminal District Court (Feb.19, 2013), available at http://www.nola.com/crime/index.ssf/2013/02/nolacom_the_times-picayune_wvu.html; see also John Simerman, Orleans criminal court judges turn over documents detailing lavish life-insurance benefits, (Apr. 16, 2013), available at http://www.nola.com/crime/index.ssf/2013/04/orleans_criminal_court_judges_1.html (“Legislative Auditor Daryl Purpera’s office found that during 2010, the 13 Criminal Court judges in Orleans Parish collectively held 249 supplemental insurance policies fully funded by the court. The average judge held 19 policies, at an average cost of $14,500 per judge.”). 15 As another example of judicial misconduct, local civil district court judges were caught using the money collected into the judicial expense fund to hire the personal chef of former New Orleans Saints football star Reggie Bush to prepare gourmet meals for themselves. See Mike Perlstein, Why Was High Profile Chef on Court Payroll as Custodian? (Aug. 27, 2010), available at http://www.wwltv.com/news/eyewitness/10pm-Perlstein-Chef-story101689763 html. 16 See Leon A. Cannizzaro, Jr., District Attorney, Letter to Buddy Caldwell, Aug. 4, 2011 and Louisiana Legislative Auditor’s Report, November 21, 2012. 17 Id.
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• The Orleans Parish Criminal District Court judges spent over $154,750 from the Judicial Expense Fund to reimburse themselves for private out-of-pocket medical expenses.
• The judges paid 100% of the cost of their personal professional liability insurance policies out of the Fund.
• The judges spent nearly half a million dollars on extra health, dental, vision, cancer, hospitalization, critical illness, long-term care, accidental death and dismemberment, and life insurance policies.
• Each judge had an average of 15-19 additional supplemental insurance policies paid for entirely out of the Fund.
• The judges spent excessive money on travel and lodgings at conferences, using money collected into the Judicial Expense Fund from former criminal defendants.18
96. The systemic financial conflicts of interest have not improved in the years since.
The Court still uses the millions of dollars of revenues collected in this manner to fund its basic
operations, including, according to Court budget documents: employee salaries, internal
celebration ceremonies, travel, a perks (including thousands of dollars on coffee and bottled
water), attending conferences, employment budget, extra benefits for employees, and discretionary spending.19 The Court and the judges and employees who administer its finances
are aware that a substantial part of its operating budget depends on the generation and ultimate
collection of fees from convicted defendants.
97. As one former Orleans Parish Criminal District Court judge publicly admitted
concerning the distortion of justice that goes on every day in the Court: “I was as guilty of that as
any when I was on the bench, but you have to fund yourself in some fashion. And so you did it on the backs of the people who were least able to pay.” (emphasis added).20

18

Auditor’s

Report,

available

at

http://www.lla.state.la.us/PublicReports.nsf/84928FC405A41A2986257ABD00602058/$FILE/0002DA98.pdf.

19 See Orleans Parish Criminal District Court Mid-Year Budget Hearing Reports from 2013, 2014, and 2015.

20 Richard A. Webster, Bail System Puts Court Costs on Backs of Poor, NEW ORLEANS CITY BUS., Aug. 20, 2010, available at http://www.projectjusticenola.org/wp-content/uploads/2010/08/Bail_System.pdf; see also Paul

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98. In 2012, the Orleans Parish Criminal District Court judges objected to the transfer
of misdemeanor cases to the Municipal Court because it meant that they would lose significant
revenue. During one discussion at a City Council meeting, the Chief Municipal Court Judge
responded to a discussion about this controversy:
The judges should not be in the business of . . . making money . . .. We’re here to . . . dispense justice . . . . We’re not even supposed to be placed in that extremely conflicting position, as to be concerned about how many fines and fees we take in so that we can operate. You cannot place that burden on us any longer. It’s unfair . . . and it goes against the pledge we take when we take office.21
99. Orleans Parish Criminal District Court judges routinely make comments to
prosecutors, public defenders, private defense lawyers, and criminal defendants themselves
stressing the importance of the money that they collect from convictions to fund their own
budget. There are many recent examples:
• One judge recently said at sidebar in a criminal case that the judge assessed such a high discretionary fee into the judicial expense fund because the judge found out at a recent en banc judges meeting that the judge was generating the lowest amount of money for the Judicial Expense Fund among all the other judges.
• Another judge stated that the judge was assessing discretionary fees for the Judicial Expense Fund to an indigent criminal defendant because “the Court’s gotta eat.”
• The Inspector General completed a comprehensive report based on financial auditing and interviews with court personnel in July 2015. Traffic Court judges, who participate in materially the same policies and practices as the Orleans Parish Criminal District Court judges and who are forced to fund the operation of their court through their own Judicial Expense Fund by assessing discretionary fees for convictions, told the Inspector General that the arrangement was unconstitutional.
Purpura, New Orleans Judge Camille Buras says she's repaying court for benefits (Jul. 16, 2015) Nola.com, http://www.nola.com/crime/index.ssf/2015/07/camille_buras_insurance.html (explaining that at least one judge has since apologized for her impropriety and promised to pay back the Judicial Expense Fund). 21 City Council Budget Hearings on 2013 Proposed Budget, supra note 4, at 20:00 (Nov. 9, 2012), available at http://cityofno.granicus.com/MediaPlayer.php?view_id=3&clip_id=1382 (last visited August 29, 2015).
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According to the Inspector General: “The judges stated that the funding structure violated a defendant’s right to due process and an impartial judge.”22 100. The Orleans Parish Criminal District Court judges have also, in numerous cases, engaged in a number of other improper activities in an effort to increase their own revenue. This behavior includes: waiving certain costs and fees earmarked for other local actors while increasing the discretionary amount of fees earmarked for the Judicial Expense fund and assessing fees for the Judicial Expense Fund in amounts higher than the maximum authorized by law. 101. The knowledge that operating budgets come from money bond and postconviction fees affects every major decision of local court actors. For example, employees of the Orleans Public Defender were recently informed by management that, because collections from fees had not been enough to fund even existing staff salaries, employees would have to be furloughed. Employees were encouraged to supplement their income with donations from Facebook friends. 102. Every Collections Department employee knows that their salaries and the operating budget of their departments depend to a significant extent on the assessment and subsequent collection of these court costs and fees. 2. Debt-Collection Policies and the Issuance of Invalid Warrants 103. Upon conviction, the various costs and fees are assessed. Indigent debtors who cannot pay in full immediately are told to go to the Collections Department. Once at the Collections Department, debtors are told by Collections Department employees (who call themselves “Collections Agents”) that they must pay a certain amount of money at certain

22 See Richard A. Webster, New Orleans Traffic Court should hand its keys to City Council, Inspector General says,

The

Times-Picayune

(July

29,

2015),

available

at

http://www.nola.com/politics/index.ssf/2015/07/new_orleans_traffic_court_shou.html.

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designated times. These payments and times are determined in the discretion of Collections Department employees.
104. Pursuant to Collections Department policy and practice, no inquiry is ever made into a person’s ability to pay, even when former defendant debtors are known to be indigent.
105. Collections Department employees are trained by supervisors as a matter of policy and practice that their goal should be to collect as much money as possible for the Court and, as a result, they never inform indigent people of any of their rights to seek to have the payments waived, reduced, or otherwise modified.
106. Pursuant to Collections Department policy and practice, debtors are told that Collections Department employees will have them arrested if they do not make the payments determined by the employees. Collections Department employees refuse to accept, as a matter of policy, amounts less than the entire amount due as determined by Collections Department staff.
107. Pursuant to Collections Department policy and practice, if a person fails to make the payments determined by the Collections Department, Collections Department employees will sign without authorization the signature of a judge on a “warrant” and “issue” such warrants themselves even if the person is not on probation and even if the case has been closed.23
108. These warrants are issued purportedly for “failure to pay” and not for failure to appear at any particular court proceeding. They are issued instead of simply informing a debtor of a future court date, issuing a valid summons, and giving a debtor an opportunity to explain his or her nonpayment prior to the deprivation of the debtor’s fundamental liberty.
23 Collections Department employees will also often send an uncertified letter to the last known address of a debtor demanding payment. Those letters do not set forth any process available to the debtor or inform the debtor of any of the debtors’ rights, and Collections Department employees have no way of knowing whether the letters are ever received.
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109. The warrants are printed from Collections Department computing software and filled out by collections agents working in the Department. Agents have been trained to sign the signatures of judges themselves rather than to present any evidence or information to a neutral judicial officer.
110. A neutral judicial officer does not evaluate these warrants. Additionally, they are often issued years after a purported nonpayment, and they are routinely issued in error or by ignoring evidence of a person’s indigence.24
111. The Defendants are aware of these open policies and practices and yet allow them to continue.25 Indeed, the Court and the City have even agreed to fund extra positions in the Collections Department in order to maximize additional revenues from more people.26
3. The Illegal Post-Arrest Procedures 112. After arrest on an illegal Collections Department warrant, the Defendants’ standard policy and practice is to let arrestee debtors languish in jail indefinitely. 113. As a matter of policy and practice, each Collections Department warrant is accompanied by a preset $20,000 secured money bond required for release. This standard money bond is set without reference to ability to pay or any other circumstance. If paid, a percentage of the bond goes to the Sheriff, to the Public Defender, to the District Attorney, and to the Judicial Expense Fund of the Orleans Parish Criminal District Court.
24 The Criminal District Court reported to the City Council in June 2015 that it was in the process of collaborating with the City of New Orleans Police Department and the District Attorney to implement a more efficient online warrant system. 25 Collections Department officials testified earlier this year under oath confirming the implementation and execution of these policies and practices in open court during a hearing into the detention of an indigent debtor. 26 Despite the extra positions funded jointly by the Court and the City of New Orleans, the Court complained to the City Council in June 2015 that a shortage of funding for the Collections Department had forced it to float other employees to cover that and other areas of its administration. It noted that budget cuts had left it with one vacant position in the Collections Department. The Court made the same complaints to the City Council in previous years, even though the City has agreed each year jointly to fund additional Collections Department positions.
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114. Jailed debtors are routinely told that they can pay this money bond, pay the entirety of their debts, or pay an amount Collections Department employees unilaterally determine. Thus, a debtor wishing to remain at liberty in order to contest the validity of her debt or raise other legal or factual issues relating to the amount or the collection must almost always pay a bond amount larger than the value of the debt just for the opportunity to be heard at a future court date. In contrast, if a debtor simply pays what the Collections Department claims is owed, they are released from jail with no opportunity to contest the debt or the jailing.27
115. After indefinite periods in jail, arrestees are eventually brought to court if they have not been able to pay their debts or afford their money bond. The Defendants have no set policy or practice concerning how long arrestees must wait in jail prior to a court date, and the wait is routinely longer than 48 hours. Indeed, it is routine that prisoners languish a week or several weeks. As a result of their indefinite detention, debtors are forced to seek the assistance of family members and friends.
116. When brought to court, arrestees are either sent back to jail unless they make a payment or released on threat of future arrest and incarceration if they do not bring money to the Collections Department, all with the consent and advocacy of the District Attorney and often without the representation of a lawyer.28 It is the Defendants’ policy and practice never to conduct any meaningful inquiry into a debtor’s ability to pay or to give notice to the debtor as to what the critical issues at the proceeding will be.
117. The Defendants’ policy and practice is never to allow court debtors to enjoy any of the civil judgment protections offered to every judgment debtor under Louisiana law. For
27This is particularly troubling because clerical errors and mistakes of fact and law are common in matters involving collection of court fines, fees, and costs. 28 Debtors are often released on threat of future incarceration if they are represented by a lawyer at such hearings even though unrepresented debtors are typically sent back to jail.
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example, the Defendants ignore the basic substantive statutory asset exemptions and safeguards protecting judgment debtors from creditors taking assets needed for the basic necessities of life, as well as procedural protections concerning how money can be collected. See generally, e.g., Louisiana Rev. Stat. Ann. § 13:3881; § 13:3913.
Class Action Allegations 118. The named Plaintiffs bring this Class action on behalf of themselves and all others similarly situated, for the purpose of asserting the declaratory and injunctive claims alleged in this Complaint on a common basis. 119. A class action is a superior means, and the only practicable means, by which Plaintiffs and unknown Class members can challenge the Defendants’ unlawful debt-collection scheme. 120. This action is brought and may properly be maintained as a Class action pursuant to Rule 23(a)(1)-(4), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure. 121. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 122. The Plaintiffs propose a Declaratory and Injunctive Class. The Declaratory and Injunctive Class is defined as: All persons who currently owe or who will incur court debts to the Orleans Parish Criminal District Court from fines, fees, costs, or surcharges arising from cases in the court. A. Numerosity. Fed. R. Civ. P. 23(a)(1) 123. The Defendants subject thousands of people each year to the Collections Department’s policies and practices discussed in this Complaint. Pursuant to the Defendants’ policy and practice, all of these people with outstanding court debts are currently being
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threatened with arrest and indefinite jailing if they do not make the payments in the amount or frequency purportedly required by the Collections Department.
124. The Defendants have jailed hundreds of people for nonpayment of debts in the past several years. The names, case numbers, and dates of imprisonment of those jailed are easily available by consulting records maintained by the Defendants.
125. The Defendants followed and follow the same debt-collection policies, practices, and procedures to accomplish the threats and jailing of the Class members. For example, pursuant to the Defendants’ policy and practice, those jailed for nonpayment by the Defendants’ scheme do not receive meaningful inquiries into their ability to pay as required by federal law. Pursuant to policy, invalid “warrants” are issued and the posting of preset monetary bonds or full debt payment are required for release, with indefinite detention the result of nonpayment. Pursuant to policy, no determinations of indigence or evaluations of alternatives to incarceration are made during eventual court appearances, and the Defendants provided none of the relevant state and federal protections for judgment debtors. Nor are those jailed by the Defendants provided adequate counsel to represent them at the fleeting court proceeding that result in their further jailing.
126. Those who still owe the Defendants debt payments or who will incur such debts will be subjected to the same ongoing policies and practices absent the relief sought in this Complaint.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 127. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The Plaintiffs seek relief concerning whether the Defendants’ policies, practices, and procedures violated their rights and relief
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requiring the Defendants to change their policies, practices, and procedures so that the Plaintiffs’
rights will be protected in the future.
128. Among the most important, but not the only, common questions of fact are:
• Whether the Collections Department has discretion to set the amount and timing of payment requirements;
• Whether the Collections Department has a policy and practice of issuing warrants based solely on nonpayment during the time and in the manner required by the Collections Department and without probable cause that any offense has been committed;
• Whether the money assessed and collected by supposedly neutral actors actually is used for the benefit of the budgets of those actors and, if so, to what extent;
• Whether the Collections Department fails to conduct any meaningful inquiry into indigence prior to issuing arrest warrants that result in indefinite jailing;
• Whether Collections Department employees sign the signature of judicial officers without authorization to create the “warrants” that they issue unilaterally;
• Whether Defendants arrest Plaintiffs pursuant to these illegal warrants; • Whether Defendants imprison Plaintiffs pursuant to these illegal warrants; • Whether each warrant comes with a standard $20,000 secured money bond; • Whether the money bonds result in a percentage going to the Judicial Expense
Fund and to the District Attorney, the Public Defender, and the Sheriff’s budgets; • Whether the Defendants have a policy and practice of delaying a hearing
indefinitely; • Whether the Defendants provide notice to debtors that their ability to pay will be a
relevant issue at the hearings at which they are continued to be jailed and whether the Defendants ensure that findings are made concerning ability to pay and alternatives to incarceration; • Whether (and, if so, how) the Defendants provide adequate representation to those jailed for unpaid debts in proceedings that result in their incarceration and whether any representation provided is free of financial conflicts of interest; • What procedural mechanisms, if any, the Defendants use as matter of policy and practice to determine indigence; for example, whether the Defendants use a standard state-issued form for determining ability to pay; • Whether the Defendants apply state procedural and state and federal substantive law designed to determine indigence and to protect indigent debtors; • Whether Defendants have a policy and practice of threatening debtors with incarceration for unpaid debts without informing them of their constitutional rights.
129. Among the most important common question of law are:
• Whether it is lawful to issue arrest warrants solely for non-payment of amounts and during a time period required by Collections Department employees, especially given the lack of inquiry into indigence and the actual knowledge of
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Collections Department employees that a debtor is indigent and unable to pay; • Whether such warrants can be issued to deprive debtors of their liberty without
prior meaningful opportunity to be heard; • Whether it is lawful to sign the signature of a judicial officer without contacting
that officer or presenting any evidence to that officer in order to obtain a warrant and whether it is lawful to issue such warrants without a finding of probable cause that any offense has been committed; • Whether it is lawful to arrest people under such illegal warrants; • Whether it is lawful to detain people under such illegal warrants; • Whether a person can be kept in jail pursuant to a standard $20,000 bond fee without any inquiry into indigence or into the person’s danger to the community or risk of flight; • Whether bail amounts advocated for and set by supposedly neutral actors who actually have a personal financial stake in the amounts set violates due process; • Whether the Defendants can keep debtors in jail indefinitely after arrest until they pay and whether the policy and practice of delaying a hearing indefinitely is lawful; • Whether due process is violated by proceedings conducted without notice to debtors that their ability to pay will be a relevant issue at the hearings and without findings made concerning the ability to pay; • Whether competent constitutional counsel is required at hearings involving complex statutory fees, constitutional issues, jailing, an adversary represented by an experienced prosecutor, and potentially years of documents, court records, and fees to evaluate; • Whether the Defendants can operate a scheme that ignores all of the basic state law protections for civil judgment debtors, such as exemptions from seizure, garnishment protections, and protection of federal benefits.
130. These common legal and factual questions arise from one central scheme and set
of policies and practices: the Defendants’ unconstitutional debt-collection system. The
Defendants operate this scheme openly and in materially the same manner every day. The
material components of the scheme do not vary from Class member to Class member, and the
resolution of these legal and factual issues will determine whether all of the members of the class
are entitled to the constitutional relief that they seek.
C. Typicality. Fed. R. Civ. P. 23(a)(3).
131. The named Plaintiffs’ claims are typical of the claims of the members of the
Class, and they have the same interests in this case as all other members of the Class that they
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represent. Each of them suffered injuries from the failure of the Defendants to comply with the
basic constitutional provisions detailed below. The answer to whether the Defendants’ scheme
of policies and practices is unconstitutional will determine the claims of the named Plaintiffs and
every other Class member.
132. If the named Plaintiffs succeed in their claims that the Defendants’ policies and
practices concerning debt collection for fines, fees, costs, and surcharges violate the law in the
ways alleged in each claim of the Complaint, then that ruling will likewise benefit every other member of the Injunctive Class.29
D. Adequacy. Fed. R. Civ. P. 23(a)(4).
133. The named Plaintiffs are adequate representatives of the Class because they are
members of the Class and because their interests coincide with, and are not antagonistic to, those
of the Class. There are no known conflicts of interest among Class members, all of whom have a
similar interest in vindicating the constitutional rights to which they are entitled. 134. Plaintiffs are represented by William Quigley, his associates30 and attorneys from
Equal Justice Under Law31 who have experience litigating complex civil rights matters in federal
court and extensive knowledge of both the details of the Defendants’ scheme and the relevant
constitutional and statutory law.
135. Counsel’s efforts have so far included extensive investigation over a period of
29 The named Plaintiffs representing the Declaratory and Injunctive Class are: Alana Cain, Ashton Brown, Reynajia Variste, and Vanessa Maxwell. 30 William Quigley has practiced law in Louisiana for nearly forty years, during which time he has litigated numerous class action civil rights cases in federal court. He holds the positions of Professor of Law and Director of the Stuart H. Smith La Clinic and Center for Social Justice and the Gillis Long Poverty Law Center at Loyola University New Orleans College of Law. Anna Lellelid-Douffet has been practicing law in Louisiana with Bill Quigley since graduating from Loyola in 2013. Most of her work has been in Federal court in the Fifth and Sixth Circuits, representing criminal defendants. 31 Equal Justice Under Law is a non-profit civil rights organization based in Washington, D.C. The organization was founded and is run by Alec Karakatsanis and Phil Telfeyan, and it is funded in part by the Harvard Law School Public Service Venture Fund.
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months, including numerous interviews with witnesses, legal system employees, law enforcement officials, jail inmates, families, attorneys practicing in New Orleans and Louisiana courts, and national experts in debt collection, court costs, conflicts of interest, and constitutional law.
136. Counsel has also studied budget documents, court records, and transcripts in order to gain an understanding of state law and practices as they relate to federal constitutional requirements. Counsel has studied the way that these systems function in other cities and states in order to investigate the wide array of options in practice for government officials.
137. As a result, counsel has devoted enormous time and resources to becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel has also developed relationships with many individuals and families victimized by the Defendants’ practices.
138. The Plaintiffs are represented by attorneys from Equal Justice Under Law who have experience litigating complex civil rights class action lawsuits in federal court and extensive knowledge of the relevant constitutional law. Counsel for Plaintiffs has also been lead counsel in several similar class action constitutional challenges to unlawful municipal debtcollection regimes. See, e.g., Mitchell et al, v. City of Montgomery, 2014-cv-186 (M.D. Ala. 2014). That case involved a major investigation to end widespread injustices involving the use of private probation and the jailing of impoverished people by the City of Montgomery over a period of years for their non-payment of debt from traffic tickets and other misdemeanor offenses.32 The litigation resulted in the cancelling of the private probation contract, the release
32 Counsel is also lead attorney in several recent class action lawsuits challenging the use of money bail to keep impoverished people in jail prior to trial. See Jones et al. v. City of Clanton, 15-cv-34 (M.D. Ala. 2015); Pierce et. al. v. City of Velda City, 15-cv-570 (E.D. Mo. 2015); Powell et al. v. City of St. Ann, 4:15-cv-840 (E.D. Mo. 2015); Thompson et al. v. City of Moss Point, 1:15-cv-00182-LG-RHW (S.D. Miss. 2015); Cooper et al. v. City of Dothan,
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of numerous people from the local jail, and a consent decree mandating new policies and practices.33 Counsel is also lead attorney in pending lawsuits challenging the treatment of indigent people with court debts in the municipal courts and jails of Jennings and Ferguson, Missouri. See also Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015); Fant et al. v. City of Ferguson, 15-cv-253-AGF (E.D. Mo. 2015).34
139. The Plaintiffs and their attorneys will fairly and adequately protect the interests of the members of the Class.
E. Rule 23(b)(2) 140. Class action status is appropriate because the Defendants, through the policies, practices, and procedures that make up their court debt-collection scheme, have acted and/or refused to act on grounds generally applicable to the Declaratory and Injunctive Class. Thus, a declaration that people are entitled, as a matter of federal law, to a meaningful inquiry into their ability to pay and an evaluation of alternatives to incarceration before they are jailed for nonpayment will apply to each Class member. The same applies to rulings on the other claims, including: that Defendants cannot issue and execute illegal arrest warrants for debtors without probable cause that they have committed an offense and without notice or a hearing prior to the deprivation of their fundamental liberty; that Class members cannot be held in jail indefinitely
1:15-cv-425-WKW (M.D. Ala. 2015). Counsel was also previously the lead attorney in a constitutional civil rights class action against the District of Columbia in the United States District Court for the District of Columbia. See 1:13-cv-00686-ESH (D.D.C. 2013). In that litigation, undersigned counsel was responsible for investigating and building the complex constitutional claims against the District of Columbia, authoring the legal filings in the class action case, and negotiating a Memorandum of Understanding with the District of Columbia Attorney General that stayed the class action litigation and began to implement sweeping changes to the County’s policies and practices governing the civil forfeiture of property by the District’s Metropolitan Police Department—procedures that affect thousands of putative class members every year. 33 See Consent Decree in Mitchell et al, v. City of Montgomery, 2014-cv-186 (M.D. Ala. 2014), attached as Exhibit 2. 34 See Permanent Consent Injunction in Jenkins et al. v. City of Jennings, 15-cv-252-CEJ (E.D. Mo. 2015), attached as Exhibit 3.
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pursuant to a fixed monetary bond that they cannot afford without any inquiry into their indigence or finding that they pose a danger to the community or risk of flight; that Class members are entitled to notice, a neutral tribunal, and representation by counsel at a complex hearing initiated and litigated by experienced prosecutors and after which they are jailed; and that the Defendants cannot collect debts from Class members in a manner that violates and evades all of the relevant protections for other judgment debtors.
141. Injunctive relief compelling the Defendants to comply with these constitutional rights will similarly protect each member of the Class from being again subjected to the Defendants’ unlawful policies and practices with respect to the debts that they still owe and protect those who will incur such debts in the future from the same unconstitutional conduct. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
142. Plaintiffs seek the following relief and hereby demand a jury in this cause for all matters so appropriate.
Claims for Relief Count One: The Defendants’ Policy of Issuing and Executing Illegal Arrest Warrants Violates the Fourth and Fourteenth Amendments. 143. Plaintiffs incorporate by reference the allegations in paragraphs 1-142. 144. The Defendants’ policy and practice is to issue and execute arrest warrants for those debtors who have not paid old court debts based solely on nonpayment. These warrants are sought, issued, and served without any inquiry into the person’s ability to pay even when the Defendants have knowledge that the person is impoverished and unable to pay the debts. These warrants are sought, issued, and served without any finding of probable cause that the person has committed any offense and with knowledge that no probable cause exists. Moreover, the warrants are issued not by a judicial officer but by Collections Department employees called
38

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 39 of 44
“Collections Agents,” who write the signatures of the judicial officer on warrants without presenting any evidence or information, let alone providing any information under oath, to any judicial officer.
145. The Defendants issue arrest warrants instead of using legal summonses and scheduling court dates. The Defendants therefore deprive people of their liberty unnecessarily and without any opportunity to be heard, even when they have spoken to people on the phone or in person and have the opportunity to notify them to appear in court for a hearing. The Defendants’ policy and practice is to deprive people of their fundamental liberty without any proper notice and hearing or any basic inquiry into whether the debt is still owed or valid or whether nonpayment was willful. These practices violate the Fourth and Fourteenth Amendments and result in a deprivation of fundamental liberty without adequate due process.
Count Two: The Defendants’ Use of a Fixed Secured Money Bond for each Collections Department “Warrant” Violates the Fourteenth Amendment.
146. Plaintiffs incorporate by reference the allegations in paragraphs 1-145. 147. The Fourteenth Amendment’s due process and equal protection clauses have long prohibited imprisoning a person because of the person’s inability to make a monetary payment. The Defendants violate the Plaintiffs’ rights by placing and keeping them in jail prior to any debt-collection proceedings when they cannot afford to pay the preset amount of money required for release after a Collections Department nonpayment arrest if the person seeks to contest the issue of nonpayment or the validity of the debt. Count Three: The Defendants Violated Plaintiffs’ Rights By Jailing Them Indefinitely Without a Judicial Appearance. 148. Plaintiffs incorporate by reference the allegations in paragraphs 1-147.
39

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 40 of 44
149. The Due Process Clause of the Fourteenth Amendment prohibits the Defendants from jailing the Plaintiffs indefinitely and without any meaningful legal process through which they can challenge their detention by keeping them confined in the local jail (routinely for days or weeks) unless or until they can make arbitrarily determined cash payments to the Collections Department.
Count Four: Defendants Violated Plaintiffs’ Due Process Rights By Implementing a Scheme of Money Bonds In Which Constitutionally Neutral Judicial and Government Actors Take a Percentage of Each Bond to Fund Their Own Budgets.
150. Plaintiffs incorporate by reference the allegations in paragraphs 1-149. 151. The Defendants operate a system of money bond in which the judges collect and control 1.8% of every bond paid into the Fund that they manage as administrators to operate the budget of the Court. Every relevant actor in the local system implementing and reviewing such money bail settings has an incentive to set money bonds in a manner that ensures the maximization of their own revenues.35 This creates an intolerable financial conflict of interest. 152. The Defendants therefore enforce a Collections Department money bond system on which the judges, District Attorney, Sheriff, and Public Defender depend to fund their own operations that is unconstitutional under the Fourteenth Amendment because it contravenes fundamental principles of neutrality. Despite this Court striking down that system nearly 25 years ago, the Defendants continue to operate the illegal money bail arrangement and to take a cut of every money bond paid. To the extent the Defendants are complying with state statutes,
35 The District Attorney collects 0.4% of every bond paid to fund its own salaries and other operations. Because the Public Defender also collects 0.4% of every bond paid to fund its salaries and operations. This money collected through convictions is insufficient to fund the Public Defender. As a result, indigent defense in Orleans Parish Criminal District Court is chronically underfunded with devastating results. Indeed, in addition to ensuring that enough money is assessed and collected from the convictions of their clients, Public Defenders have recently been told that they will be furloughed unless more money is brought in.
40

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 41 of 44
see La. Rev. Stat. Ann. § 22:822; § 13:1381.5, those statutes are, as this Court has previously held, unconstitutional.
Count Five: The Defendants Violated Plaintiffs’ Rights By Jailing Them For NonPayment of Debts Without Any Inquiry Into Their Ability To Pay and in Proceedings that Otherwise Violate Basic Due Process.
153. Plaintiffs incorporate by reference the allegations in paragraphs 1-152. 154. The Fourteenth Amendment’s due process and equal protection clauses have long prohibited imprisoning a person for the failure to pay money owed to the government if that person is unable to pay and without following basic procedures to make that determination. The Defendants violated Plaintiffs’ rights by imprisoning them when they could not afford to pay the debt allegedly owed and without following the basic constitutional process required. 155. The Defendants violated the Plaintiffs’ rights by jailing them, and by threatening to jail them, without conducting any inquiry into their ability to pay and without conducting any inquiry into alternatives to imprisonment as required by the United States Constitution. The Defendants similarly did not: provide the required notice to the Plaintiffs concerning the relevant and critical issues at any hearing contemplating their imprisonment; provide a meaningful opportunity for the Plaintiffs to present evidence of their inability to pay; or make findings concerning their ability to pay. 156. Moreover, the Defendants did not and do not provide the neutral tribunal free of financial conflicts of interest due process requires because the prosecutor and judicial officer at such debt-collection hearings are both financially interested in the outcome of the proceeding because they depend, to a significant extent, on the collection of revenue from those proceedings to fund their own operating budgets. The due process findings of fact and law required by Bearden v. Georgia, 461 U.S. 660, 672-73 (1983) and Turner v. Rogers, 131 S. Ct. 2507, 2520
41

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 42 of 44
(2011) require, at a minimum, neutral prosecutorial and judicial officers, free from financial conflicts of interest of the kind condemned in Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972).
Count Six: The Defendants’ Use of Jail and Threats of Jail To Collect Debts Owed to the Defendants Violates Equal Protection Because It Imposes Unduly Harsh and Punitive Restrictions On Debtors Whose Creditor Is the Government Compared To Those Who Owe Money to Private Creditors.
157. Plaintiffs incorporate by reference the allegations in paragraphs 1-156. 158. The Supreme Court has held that, when a government seeks to recoup costs of prosecution from indigent defendants—for example, the cost of appointed counsel—it may not take advantage of its position to impose unduly restrictive methods of collection solely because the debt is owed to the government and not to a private creditor. The Defendants take advantage of their control over the machinery of the court, jail, and police systems to deny debtors the statutory protections that every other Louisiana debtor may invoke against a private creditor. This coercive policy and practice constitutes invidious discrimination and violates the fundamental principles of equal protection of the laws. Count Seven: Defendants’ Conduct Constitutes Wrongful Arrest Under Louisiana Law. 159. Plaintiffs incorporate by reference the allegations in paragraphs 1-158. 160. Defendants’ conduct described herein constitutes wrongful arrest of Plaintiffs under the laws of the state of Louisiana and the United States.
Count Eight: Defendants’ Conduct Constitutes Wrongful Imprisonment Under Louisiana Law. 161. Plaintiffs incorporate by reference the allegations in paragraphs 1-160. 162. Defendants’ conduct described herein constitutes wrongful imprisonment of Plaintiffs under the laws of the state of Louisiana and the United States.
42

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 43 of 44
Request for Relief
WHEREFORE, Plaintiffs request that this Court issue the following relief:
a. A declaratory judgment that the Defendants violate Plaintiffs’ Fourth and Fourteenth Amendment rights by arresting them on illegal warrants issued only on the basis of nonpayment of a monetary judgment and without any meaningful pre-deprivation process;
b. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by keeping them in jail pursuant to a fixed secured bond that they cannot afford;
c. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by keeping them in jail indefinitely after arrest unless they pay an arbitrarily determined amount of money to settle their debts;
d. A declaratory judgment that the Defendants violate the Fourteenth Amendment rights of the Plaintiffs by imprisoning them without conducting any meaningful inquiry into their ability to pay or into any alternatives to incarceration and at proceedings lacking in basic judicial neutrality;
e. A declaratory judgment that the Defendants violated the Plaintiffs’ equal protection rights by imposing harsh debt collection measures that could not lawfully be imposed on debtors whose creditors are private entities;
f. An order and judgment preliminarily and permanently enjoining the Defendants from enforcing the above-described unconstitutional policies and practices against the Plaintiffs and the Class of similarly situated people that they represent;
g. A judgment compensating the named Plaintiffs for the damages that they suffered as a result of the Defendants’ unconstitutional and unlawful conduct;
h. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
Respectfully submitted,
s/Bill Quigley
William P. Quigley, La Bar No. 7769 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 710-3074 (c) (504) 861-5590 (p) (504) 861-5440 (f)
43

Case 2:15-cv-04479-SSV-JCW Document 7 Filed 09/21/15 Page 44 of 44
quigley77@gmail.com Designated TA s/ Anna Lellelid Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) lellelid.law@gmail.com Alec Karakatsanis (D.C. Bar No. 999294) (Appearing Pro Hac Vice) Equal Justice Under Law 916 G Street, NW Suite 701 Washington, DC 20001 (202)-681-2409 alec@equaljusticeunderlaw.org Attorneys for Plaintiff
44

 
 Case 2:15-cv-04479-SSV-JCW Document 8 Filed 09/22/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

)

ALANA CAIN, et al.

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF NEW ORLEANS, et al.

)

)

Defendants.

)

___________________________________ )

Case No. 15-4479 (Class Action)

MOTION FOR PRELIMINARY INJUNCTION

NOW INTO COURT COME Plaintiffs through undersigned counsel who move

under Rule 65(a) of the Federal Rules of Civil Procedure for an Order for preliminary

injunction, pending final decision on the merits in this case, enjoining Defendants from

jailing Alana Cain, Ashton Brown, Reynajia Variste, Renaud Variste, or Vanessa

Maxwell for nonpayment or late payment of outstanding Orleans Parish Criminal District

Court debts.

For the reasons explained in the accompanying Memorandum of Law, Plaintiffs

move for the following relief: If Defendants believe that any of the named Plaintiffs owe

scheduled payments on their criminal court debts, Defendants may issue legal

summonses ordering them to appear in court for a proceeding that meets constitutional

requirements. Notwithstanding this relief, if Plaintiffs are nonetheless arrested for failure

to pay their court debts, Defendants will immediately release Plaintiffs on their own

recognizance or allow them to post an unsecured bond pending any lawful debt-collection

proceedings. The Defendants shall not again keep Plaintiffs in custody pursuant to a

fixed secured monetary bond that they cannot afford.

Case 2:15-cv-04479-SSV-JCW Document 8 Filed 09/22/15 Page 2 of 4
1. This relief is warranted, as Plaintiffs are likely to succeed in their legal claims. Plaintiffs have alleged sufficient facts to show that Plaintiffs face imminent detention pursuant to a fixed secured money bond that they cannot afford solely because of their inability to pay court debts, a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
2. Unless this Court issues a Preliminary Injunction, Plaintiffs will suffer immediate and irreparable harm through the inherent injury in the deprivation of liberty and of all its collateral consequences, e.g., loss of employment, loss of housing, the risk of violence and sexual assault while in jail, and mental suffering.
3. The potential harm to Plaintiffs far outweighs any burden to Defendants that will result from enjoining the implementation of unconstitutional policies and practices. Defendants already have a mechanism to issue legal summonses to appear in court and to conduct constitutionally required proceedings. The only “harm” to Defendants will be in eliminating any increased revenue Collections Department agents might extract from having the named Plaintiffs arrested and imprisoned for their court debts.
4. The injunctive relief sought would not disserve the public interest, but would affirmatively forward it. It is always in the public interest to prevent the violation of Constitutional rights. Furthermore, unnecessarily detaining the poor has a deleterious effect on society as a whole, reflected in the expense of housing additional prisoners, loss of productivity, damages to family relations, and increased rates of recidivism.

Case 2:15-cv-04479-SSV-JCW Document 8 Filed 09/22/15 Page 3 of 4
6. Security should not be required under Federal Rule of Civil Procedure
65(c) because Defendants are unlikely to suffer any harm from the proposed Preliminary
Injunction and because Plaintiffs are indigent.
Respectfully submitted,
s/Bill Quigley
William P. Quigley, La Bar No. 7769 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 710-3074 (c) (504) 861-5590 (p) (504) 861-5440 (f) quigley77@gmail.com Designated TA
s/ Anna Lellelid
Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) lellelid.law@gmail.com
Alec Karakatsanis (D.C. Bar No. 999294) (Appearing Pro Hac Vice) Equal Justice Under Law 916 G Street, NW Suite 701 Washington, DC 20001 (202)-681-2409 alec@equaljusticeunderlaw.org
Attorneys for Plaintiff

Case 2:15-cv-04479-SSV-JCW Document 8 Filed 09/22/15 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing pleading has been filed electronically on this 22nd day of September 2015. Notice of this filing will be sent by operation of the Court’s electronic filing system to all the parties indicated on the electronic filing receipt. Parties may access this filing through the Court’s electronic filing system. A copy of forgoing was also hand-delivered to all Defendants on this 22nd day of September 2015.
s/Anna Lellelid _______________ Anna Lellelid-Douffet

 
 Case 2:15-cv-04479-SSV-JCW Document 61 Filed 11/05/15 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION "R"

ORDER

Considering the attached agreement entered into by the parties,

IT IS ORDERED that plaintiffs' motion for preliminary injunction (R. Doc. 8) is

hereby dismissed without prejudice.

New Orleans, Louisiana, this 5th day of November, 2015.

SARAH S. VANCE UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The “judicial defendants” move the Court to dismiss this case for lack

of subject matter jurisdiction.2 Although defendants concede that this Court

has subject matter jurisdiction over plaintiffs’ constitutional claims arising

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 52. The “judicial defendants” are the Orleans Parish Criminal District Court, its thirteen judges, and the judicial administrator, Robert Kazik. Originally, plaintiffs also sued the Criminal District Court clerk, Arthur Morell, but he has been voluntarily dismissed. R. Doc. 65.
1

under section 1983, they argue that the facts and circumstances presented here demand the Court’s abstaining from jurisdiction.3 For the following reasons, the Court denies the motion.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the Orleans Parish Criminal District Court, its judges and judicial administrator, and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,”
3 R. Doc. 52-1 at 1. 2

meaning they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are legally indigent.4 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge at the Criminal District Court for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the court may assess against the criminal defendants various “court costs.” These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”5 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.6
4 R. Doc. 7 at 5. 5 Id. at 22-23 ¶ 88. 6 Id. at 23 ¶ 91.
3

If the criminal defendants cannot immediately pay in full immediately, the Criminal District Court judges direct them to the Collections Department, or “fines and fees.” There, a Collections Department employee imposes, at his discretion and without inquiring into a defendant’s ability to pay, a payment schedule—usually requiring a certain amount per month.7 Collections Department employees also warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Collections Department employees refuse to accept anything less than full payment.8
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s name.9 According to plaintiffs, the Collections Department often issues these warrants “years after a purported nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.10
Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for
7 Id. at 27-28 ¶103. 8 Id. at 28 ¶ 106. 9 Id. at 29 ¶ 109. 10 Id. at ¶ 110.
4

release.”11 According to plaintiffs, defendants’ unwavering adherence to this “automatic $20,000 secured money bond” requirement results from defendants’ financial interest in state-court arrestees’ paying for their release.12 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.13
When criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]” by the Collections Department.14 As a result, these indigent debtors “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.15 Although “arrestees are eventually brought to court,” the Sheriff, the Criminal District Court, and the judges “have no set policy or practice”
11 Id. at ¶ 113. 12 Id. at 21-22 ¶88. 13 Id. at 22 ¶88. 14 Id. at 30 ¶114. 15 Id. at ¶115.
5

regarding how long arrestees must wait for a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.16 Some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”17
When criminal defendants are brought to court, the Criminal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.18 At these brief “failure-to-pay hearings,” the judges do not consider the debtors’ abilities to pay. 19
Plaintiffs contend that these practices are unconstitutional and have created “a local debtors’ prison” in Orleans Parish.20
16 Id. 17 Id. at ¶114. 18 Id. at ¶116. 19 Id. 20 See R. Doc. 7 at 3.
6

B. Parties
The named plaintiffs in the First Amended Complaint are six
individuals who were defendants in the Orleans Parish Criminal District
Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste,
Thaddeus Long, and Vanessa Maxwell.21 The facts pertaining to the named
plaintiffs, as alleged in their complaint, are as follows.
The Criminal District Court appointed counsel from the Orleans Public
Defenders to represent each of the named plaintiffs, except Reynaud Variste,
during their criminal proceedings.22 Thus, the court must have determined
Cain, Brown, Reynajia Variste, Long, and Maxwell to be legally indigent
21 R. Doc. 7 at 7 ¶7.
22 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP).
On December 3, 2015, the Court took judicial notice of the facts contained in the Criminal District Court docket sheets, signed guilty pleas, sentencing hearing transcripts of certain named plaintiffs. R. Doc. 74. Since then, defendants moved the Court to take judicial notice of the facts contained in additional records, including court docket sheets, signed guilty pleas, and sentencing hearing transcripts for other named plaintiffs. R. Doc. 95. To the extent the Court relies on these documents throughout this order, defendants’ second motion to take judicial notice is granted in part.
7

under Louisiana Revised Statutes §15:175.23 Reynaud Variste appears to
have retained private counsel.24
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft,25 battery,26
drug possession,27 “simple criminal damage,”28 and disturbing the peace.29
At plaintiffs’ sentencings, the presiding judges imposed terms of
imprisonment, which were often suspended, as well as terms of active or
inactive probation. In addition, the judges assessed against plaintiffs various
court costs—whether restitution, fines, and/or discretionary fees and costs.30
23 See R. Doc. 7 at 5. 24 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”). 25 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 26 Id. at 12 (Reynajia Variste Guilty Plea). 27 Id. at 22 (Reynaud Variste Guilty Plea). 28 Id. at 28 (Vanessa Maxwell Guilty Plea). 29 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 30 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011).
8

At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs.
For example, plaintiffs allege that on one occasion, Alana Cain explained to a Collections Department supervisor that she could not satisfy the full amount of her expected monthly payment. The Collections Department supervisor warned Cain that if she could not afford her monthly payment, he would issue a warrant for her arrest.31 In March 2015, Cain was arrested for failing to pay her court debts.32 Jail staff told Cain that her bail was set at “a $20,000 secured bond pursuant to standard policy” and that “there was no way to find out when her court date would be.”33 When Cain eventually attended a hearing, the presiding judge told her that “if she ever missed a payment again, she would have to spend 90 days in jail.”34 The judge did not inquire into Cain’s ability to meet the monthly payments imposed by the Collections Department.
According to plaintiffs, in July and August 2015, Ashton Brown spent twenty-nine days in prison solely because of unpaid debts stemming from a
31 R. Doc. 7 at 10 ¶ 18. 32 Id. at ¶¶20-22. 33 Id. at 10-11 ¶¶22-23. 34 Id. at 11 ¶27.
9

2013 conviction.35 When Brown finally received a hearing on the issue of his nonpayment, the presiding judge refused to release Brown, “unless he paid at least $100.”36 Because Brown could not afford to pay, the judge set another hearing for several days later and warned Brown “that he would be kept in jail unless he got a family member to pay.”37 Eventually, Brown’s family “scrape[d] together $100,” and Brown was released.38 Collections Department employees have since threatened arrest and jail time if Brown does not continue making monthly payments.39
Reynaud Variste was allegedly arrested for nonpayment in January 2015 when police “stormed [Variste’s] home with assault rifles and military gear.”40 These officers told Variste “not to worry . . . because he simply owed some old court costs.”41 In prison, jail staff allegedly told Variste that they
35 Id. at 12-13 ¶¶ 33-38. 36 Id. at 13 ¶ 38. 37 Id. 38 Id. at 14 ¶40. 39 Id. 40 Id. at ¶41. 41 Id. at ¶42.
10

“had no idea when or whether [he] would be taken to court.”42 A bail bondsman told Variste that “he would probably not be released . . . until he paid his entire court debts, which would be cheaper than paying the $20,000 money bond” imposed upon him.43 Eventually, Variste’s girlfriend paid “the entire debt amount.” Variste was released from prison without a hearing.44
Reynajia Variste was arrested in May 2015 for failing to pay her court costs. Jail staff allegedly told Variste that she could pay her outstanding court debts or post the “standard $20,000 money bond” to be released.45 While Variste was still in jail, a Collections Department employee told a member of Variste’s family that Variste had to pay “at least $400 before [the Collections Department] would agree to let [Variste] out of jail.”46 The Collections Department allegedly arrived at this amount because it was “close to half of what [Variste] owed in total.”47 Variste spent at least seven days in prison and was never given a hearing before her family gathered
42 Id. at 15 ¶47. 43 Id. 44 Id. at ¶48. 45 Id. at 16 ¶55. 46 Id. at 17 ¶57. 47 Id.
11

enough money “to buy her release.”48 According to the First Amended Complaint, the Collections Department continues to threaten Reynajia Variste with prison time if she cannot make her monthly payments.49
Plaintiffs contend that Thaddeus Long was wrongly arrested for failing to pay his court costs because Long paid his debts in full years before. According to the First Amended Complaint, Long was convicted in 2011 and finished paying his court costs in October 2013.50 In June 2015, a New Orleans police officer, conducting a traffic stop, discovered an outstanding warrant for Long’s supposed nonpayment.51 The officer arrested Long, and Long spent six days in prison, unable to post “the standard $20,000 secured money bond” before he was given a hearing. At the failure-to-pay hearing, Long explained that he had already paid his court debts in full, a “mistake . . . apparent from the court records,” and he was released immediately.52
48 Id. at ¶60. 49 Id. at ¶ 64. 50 Id. at 18 ¶67. 51 Id. 52 Id. at ¶69.
12

Vanessa Maxwell allegedly spent twelve days in prison after her arrest for nonpayment before being brought to court.53 According to plaintiffs, the presiding judge did not evaluate Maxwell’s present ability to pay, but nonetheless made her release from prison contingent on Maxwell’s paying $191 “within a week.”54 Plaintiffs contend that Maxwell was never able to come up with the money, and Maxwell is now “in imminent danger of arrest . . . pursuant to monetary conditions that she cannot [meet].”55
Plaintiffs now sue the City of New Orleans for hiring the Criminal District Court’s Collection Department workers, as well as the police officers who execute the allegedly invalid arrest warrants.56 Plaintiffs also sue Sheriff Marlin Gusman, in his official capacity, for “unconstitutionally detain[ing] impoverished people indefinitely because of their inability to . . . pay[] for their release.”57 In addition, plaintiffs sue the Orleans Parish Criminal District Court for its role in managing and funding the Collections Department, and the court’s Judicial Administrator, Robert Kazik, in his
53 Id. at 20 ¶83. 54 Id. 55 Id. at ¶84. 56 Id. at 7 ¶8. 57 Id. at 8 ¶12.
13

individual and official capacities, because he is allegedly responsible for operating the Collections Department.58 Finally, plaintiffs name as defendants every judge at the Criminal District Court—thirteen in all— because they allegedly supervise the Collections Department employees and have failed to provide the parish’s criminal defendants with constitutionallyrequired process before imprisoning people for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.59
C. Plaintiffs’ Claims for Relief Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, as well as violations of Louisiana tort law. Plaintiffs seek damages (including attorneys’ fees) and an injunction against all defendants, except the judges. Plaintiffs also seek a declaratory judgment regarding the constitutionality of defendants’ practices. The Court summarizes plaintiffs’ allegations, as articulated in the First Amended Complaint, as follows:
58 Id. at 7-8 ¶¶9-10. 59 Id. at 8 ¶13.
14

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

(2)

Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3)

Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4)

Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are

unconstitutional;

15

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6)

Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8)

Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

D. The Judicial Defendants’ Motion to Dismiss

The Orleans Parish Criminal District Court, the thirteen judges, and

the judicial administrator now move to dismiss plaintiffs’ suit for lack of

subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

Defendants admit that plaintiffs invoke the Court’s subject matter

jurisdiction, see 28 U.S.C. § 1331, because plaintiffs’ constitutional claims

16

arise under section 1983.60 Nonetheless, defendants argue that “important considerations of comity and federalism” demand that the Court decline jurisdiction in this case.61 Defendants urge the Court to abstain under the doctrines announced in Younger v. Harris, 401 U.S. 37 (1971) (“Younger abstention”); Burford v. Sun Oil Co., 319 U.S. 315 (1943) (“Burford abstention”); and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) (collectively, the “RookerFeldman doctrine”). The Court first addresses whether certain plaintiffs have standing and then addresses each of defendants’ arguments in turn.
II. LEGAL STANDARD Motions submitted under Rule 12(b)(1) of Federal Rules of Civil
Procedure allow a party to challenge the court's subject matter jurisdiction on the allegations of the complaint. Lopez v. City of Dallas, Tex., 2006 WL 1450520, *2 (N.D. Tex. 2006). In ruling on a Rule 12(b)(1) motion to
60 Defendants do not address the Court’s supplemental jurisdiction to hear plaintiffs’ state-law claims, which are “so related” to the constitutional claims as to “form part of the same case or controversy.” See 28 U.S. § 1367. Defendants’ arguments for dismissal are directed only to plaintiffs’ constitutional claims. See R. Doc. 52-1. Accordingly, the Court’s analysis is limited to plaintiffs’ claims arising under section 1983. 61 Id. at 1-2.
17

dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts. See Montez v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir. 2004). The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). When examining a factual challenge to subject matter jurisdiction that does not implicate the merits of plaintiff's cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). Accordingly, the court may consider matters outside the pleadings, such as testimony and affidavits. See Garcia, 104 F.3d at 1261. A court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
III. DISCUSSION A. Reynaud Variste’s and Thaddeus Long’s Standing to Pursue Equitable Relief 18

Defendants do not raise the issue of plaintiffs’ Article III standing. When necessary, however, a federal court must address the issue of standing on its own. Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 331-32 (5th Cir. 2002) (citations omitted).
Article III of the Constitution requires plaintiffs in federal court to allege an actual “case or controversy.” O’Shea v. Littleton, 414 U.S. 488, 493 (1974); see generally U.S. Const. art. III, § 2 (“The judicial power shall extend to all cases [and] to controversies . . . .”). The case-or-controversy requirement means that plaintiffs “must allege some threatened or actual injury resulting from the [defendants’] putatively illegal action before a federal court may assume jurisdiction.” Id. (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973)). “Abstract injury is not enough. . . . The injury or threat of injury must be both real and immediate.” Id. at 494 (quoting Golden v. Zwickler, 394 U.S. 103, 109-110 (1969)). For plaintiffs seeking equitable relief, “past exposure to illegal conduct does not in itself show a present case or controversy . . . if unaccompanied by any continuing, present adverse effects.” Id. at 495-96; see also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (finding allegation that defendants “routinely” engage in unconstitutional conduct “falls far short of the allegations . . . necessary to establish a case or controversy” for plaintiff seeking injunctive relief).
19

Here, by plaintiffs’ own allegations, and the Criminal District Court records of which this Court has taken judicial notice, neither Reynaud Variste nor Thaddeus Long owe any outstanding court costs for which they may be imprisoned according to defendants’ allegedly unconstitutional policy.62 Nor are they currently incarcerated for past-due debts. Because Variste and Long have no outstanding debts and are not currently incarcerated, they are not suffering any “real or immediate” injury or threat of the alleged injury—the unconstitutional arrest and imprisonment as a result of their indigence. Cf. Ray v. Judicial Corr. Servs., No. 12-CV-02819RDP, 2013 WL 5428360, at *(N.D. Ala. Sept. 26, 2013) (“Plaintiffs are experiencing continuing, present adverse effects [because] all of the Plaintiffs are still on probation and still owe various fines and fees.”).
Any “prospect of future injury” assumes that Variste and Long will again be charged with violations of Louisiana criminal law, will again be assessed with courts costs that they cannot pay, and will again be arrested and imprisoned for nonpayment. O’Shea, 414 U.S. at 496. But the Court
62 See R. Doc. 7 at 15 (noting that after his arrest in 2015, Reynaud Variste “eventually used his paycheck to pay the entire debt amount”), 18 (alleging that Thaddeus Long was wrongfully arrested for failing to pay because he “paid his debts in full in October 2013”); R. Doc. 59-3 at 20 (Reynaud Variste Docket Sheet) (“The defendant has paid all fines and fees as ordered by the court.”); R. Doc. 95-7 at 1-2 (Thaddeus Long Docket Sheet) (same).
20

must assume that plaintiffs “will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.” Id. at 497. Thus, any threat of injury is mere “speculation and conjecture”—too abstract to satisfy Article III’s requirement of a “case or controversy.” See id.
Because Reynaud Variste and Thaddeus Long lack standing to pursue their claims for equitable relief, the Court dismisses their claims for declaratory and injunctive relief against all defendants. See generally Society of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir. 1992) (“[P]laintiffs may lack standing to seek prospective relief even though they have standing to sue for damages.”).
In addressing defendants’ arguments for dismissal in the remainder of this order, the Court will refer only to plaintiffs Cain, Brown, Reynajia Variste, and Maxwell where necessary.
B. Heck v. Humphrey Does Not Bar Plaintiffs’ Section 1983 Claims for Damages
The Court begins with an analysis of Heck v. Humphrey, 512 U.S. 477 (1994). Heck is not a traditional abstention case like the other doctrines defendants contend require dismissal. Nonetheless, because defendants briefly argue it, the Court will address it.
21

In Heck, the United States Supreme Court held that a criminal defendant may not challenge the constitutionality of his conviction or sentence in a suit for damages under 42 U.S.C. § 1983 unless that conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state court, or called into question by a federal court’s issuing a writ of habeas corpus. 512 U.S. at 486-87. A criminal defendant challenges the constitutionality of his conviction or sentence in a section 1983 case when “establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction.” Id. at 482-83. In other words, Heck bars suit when the factual findings necessary to prevail on the 1983 claim directly contradict or undermine the factual findings underlying the plaintiff’s criminal conviction. For example, Heck often applies in 1983 claims for offenses such as false imprisonment, use of excessive force, or malicious prosecution against the plaintiff’s arresting officers or others. See, e.g., DeLeon v. City of Corpus Christi, 488 F.3d 649 (5th Cir. 2007) (applying Heck to claims for false arrest, false imprisonment, malicious prosecution, illegal search and seizure, and use of excessive force); LaMartina-Howell v. St. Tammany Par. Sch. Bd., No. 07-1168, 2009 WL 3837323, at *6 (E.D. La. Nov. 12, 2009) (applying Heck to plaintiff’s claim of
22

false arrest because it would undermine plaintiff’s state-court conviction for resisting arrest).
Here, the named plaintiffs have all pleaded guilty to various criminal offenses under Louisiana law. Alana Cain was convicted of theft of $1500 or more for stealing a ring.63 Ashton Brown was convicted of misdemeanor theft of under $500.64 Reynajia Variste and Vanessa Maxwell were both convicted of second-degree battery.65 Maxwell was also convicted of “simple criminal damage under $500.”66 In this section 1983 action, plaintiffs allege that the Orleans Parish Criminal District Court, its judges, and other actors maintain an unconstitutional policy of issuing post-judgment arrest warrants and indefinitely jailing criminal defendants for their failure to pay outstanding court costs. Plaintiffs contend, among other things, that this violates the Due Process Clause of the Fourteenth Amendment because defendants routinely deny the state-court criminal defendants judicial
63 R. Doc. 59-3 at 4 (Alana Cain Guilty Plea); R. Doc. 59-4 at 3 (Transcript of Alana Cain’s Guilty Plea). 64 R. Doc. 59-3 at 5 (Ashton Brown Guilty Plea); R. Doc. 95-4 at 11-12 (Transcript of Ashton Brown’s Guilty Plea). 65 R. Doc. 59-3 at 12 (Reynajia Variste Guilty Plea), 28 (Vanessa Maxwell Guilty Plea). 66 Id. at 28 (Vanessa Maxwell Guilty Plea).
23

hearings or any other opportunity to explain their inability to pay, which is allegedly due only to their indigence.
Beyond bare or conclusory statements such as “plaintiffs cannot state a claim under the Heck doctrine,”67 and “the [Heck] rule applies here,”68 defendants have not articulated any argument for applying Heck to plaintiffs’ constitutional claims. Defendants cannot seriously argue that the facts necessary to support plaintiffs’ section 1983 claims (i.e., the Criminal District Court judges’ failing to conduct a sufficient inquiry into the criminal defendants’ good-faith ability to pay) contradict or undermine the factual bases for plaintiffs’ state-court guilty pleas for theft, battery, and “simple criminal damage.” Therefore, Heck does not apply. See Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 604 (11th Cir. 2007) (“To prevail in his § 1983 suit, [plaintiff] must show that he was not afforded an indigency hearing to which he had a constitutional right before being committed to jail. If he succeeds, the resulting judgment in his favor would in no way impugn his conviction for reckless driving.”).
B. Younger Abstention Does Not Apply
67 R. Doc. 52-1 at 13. 68 Id. at 14.
24

As to the abstention doctrines, defendants first argue that Younger abstention applies. Following the rule of Younger v. Harris, federal courts may not enjoin pending state court proceedings. 401 U.S. 37, 42 (1971) (“[N]ational policy forbid[s] federal courts to stay or enjoin pending state court proceedings except under special circumstances.”); see also Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (“Younger itself held that, absent unusual circumstances, a federal court could not interfere with a pending state criminal prosecution.”). Younger abstention is warranted when (1) “the federal proceeding would interfere with an ongoing state judicial proceeding,” (2) the state proceeding “implicates important state interests,” and (3) the plaintiff has “an adequate opportunity in the state proceeding[] to raise constitutional challenges.” Bice v. La. Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012); accord Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
Plaintiffs contend that there are no “ongoing state judicial proceedings” because each plaintiff has been convicted and sentenced. According to plaintiffs, the Criminal District Court issued final judgments in their criminal cases “years ago.”69 Defendants argue that plaintiffs are
69 R. Doc. 70 at 4. 25

subject to ongoing criminal proceedings because each of them was sentenced to pay a certain amount of court courts, and “none have paid in full.”70 According to defendants, plaintiffs’ criminal cases will “remain open until all assessed costs are paid.”71
Pending criminal prosecutions are classic “ongoing state judicial proceedings.” See, e.g., Health Net, Inc. v. Wooley, 534 F.3d 487, 494 (5th Cir. 2008) (“Younger abstention originally applied only to criminal prosecutions . . . .”). Once a criminal defendant’s conviction and sentence have become final, however, his criminal prosecution is no longer “ongoing” even though the defendant may still be serving the remainder of his sentence. See generally New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 369 (1989) (“[T]he proceeding is not complete until judicial review is concluded. . . . For Younger purposes, the State’s trial-and-appeals process is treated as a unitary system . . . .”); Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 605-06 (11th Cir. 2007) (finding Younger inapplicable after state-court revoked plaintiff’s probation months before he filed suit because the “proceedings in state court have long since
70 R. Doc. 52-1 at 3, 5. 71 R. Doc. 78 at 2.
26

concluded”); Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir. 2005) (finding Younger abstention “clearly erroneous” when plaintiff “has already been tried and convicted . . . and none of the parties suggests that any charges remain pending against him”); Trombley v. Cty. of Cascade, Mont., 879 F.2d 866 (9th Cir. 1989) (finding no ongoing proceeding when plaintiff “has pleaded guilty and is currently out on parole”); Almodovar v. Reiner, 832 F.2d 1138, 1141 (9th Cir. 1987) (“Probation is not a pending criminal action for Younger purposes.”); Moncier v. Jones, No. 3:11-CV-301, 2012 WL 262984, at *5 (E.D. Tenn. Jan. 30, 2012) (explaining that a proceeding is “pending” from “the time of filing . . . until a litigant has exhausted his state appellant remedies”); Baltzer v. Birkett, No. 02 C 4718, 2003 WL 366577, at *3 (N.D. Ill. Feb. 19, 2003) (finding no ongoing proceeding when plaintiff was serving his prison sentence, but the time for appeal had expired).
Here, each of the named plaintiffs has pleaded guilty and been sentenced by the Orleans Parish Criminal District Court—the most recent in 2014, nearly a year before plaintiffs filed this suit.72 With the exception of Vanessa Maxwell, who appears to have served eighteen months, all of the
72 See R. Doc. 59-3 at 9 (Reynajia Variste Docket Sheet). 27

named plaintiffs were sentenced to “suspended” or “deferred” terms of imprisonment and sentenced to active or inactive probation. The Criminal District Court also imposed court costs as part of plaintiffs’ criminal sentences.73 For some, the court ordered payment of these court costs as a condition of their probation.74 After sentencing, the Criminal District Court “referred” plaintiffs to “fines and fees”—the court’s internal collections department—and marked plaintiffs’ court records as “case closed.”75 It is undisputed that these convictions and sentences are now final because none of the plaintiffs directly appealed. Moreover, there are no new pending prosecutions against any named plaintiff. None of the plaintiffs is currently incarcerated while awaiting trial or other criminal proceeding, and none currently has a warrant outstanding for his or her arrest or charges filed against him or her for nonpayment of court costs or any substantive criminal offense.76 See Abusaid, 405 F.3d at 1316 n.9 (finding Younger abstention
73 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea), 12 (Reynajia Variste Guilty Plea), 28 (Vanessa Maxwell Guilty Plea). 74 See id. at 4 (Alana Cain Guilty Plea). 75 See, e.g., id. at 2 (Alana Cain Docket Sheet), 23 (Vanessa Maxwell Docket Sheet). 76 See R. Doc. 61 at 2 (“[T]here are no outstanding capias warrants for nonpayment or late payment of outstanding Orleans Parish Criminal District Court debts[.]”).
28

“clearly erroneous” when “none of the parties suggests that any charges remain pending against [the plaintiff]”); Moncier, 2012 WL 262984, at *5 (explaining that a proceeding is “pending” from “the time of filing . . . until a litigant has exhausted his state appellant remedies”)
The issue here is whether plaintiffs, merely because their court costs remain unpaid, are subject to ongoing state judicial proceedings. Defendants’ only argument is that plaintiffs’ original criminal prosecutions remain open because their sentences are not “complete” or “satisfied” until plaintiffs pay the full amount of outstanding court costs. But an incomplete sentence, such as an undischarged term of imprisonment, probation, or parole, does not constitute an “ongoing state judicial proceeding” for purposes of Younger abstention. See, e.g., Trombley, 879 F.2d 866 (9th Cir. 1989) (no ongoing proceeding when plaintiff “is currently out on parole”); Almodovar, 832 F.2d at 1141 (9th Cir. 1987) (“Probation is not a pending criminal action for Younger purposes.”); Baltzer, 2003 WL 366577, at *3 (finding no ongoing proceeding when plaintiff was serving his prison sentence, but the time for appeal had expired). Because the mere existence of plaintiffs’ undischarged debts does not constitute an “ongoing state judicial proceeding,” Younger abstention does not apply. See generally Steffel v. Thompson, 415 U.S. 452, 462 (1974) (“When no state criminal
29

proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.”).
Defendants’ argument that Bice v. Louisiana Public Defender Board controls the outcome here is misplaced. In Bice, the Fifth Circuit Court of Appeals affirmed a district court’s decision to abstain from interfering with the plaintiff’s pending prosecution in New Orleans Municipal Court. 677 F.3d 712, 715 (5th Cir. 2012). The plaintiff in Bice argued that a Louisiana law requiring convicted criminal defendants to pay into the state’s Indigent Defender Fund was unconstitutional under Sixth and Fourteenth Amendments because the plaintiff’s appointed counsel was biased against him. Id. at 715-16. Applying Younger, the Fifth Circuit held that the plaintiff was subject to an ongoing criminal prosecution in municipal court and that his civil rights challenge would have required “postpon[ing] Bice’s prosecution until adequate funding is located” or “withdraw[ing] Bice’s public defender [and] requiring the municipal court judge to locate new counsel.” Id. at 718-19.
30

Similar circumstances are not present in this case. As noted, each of the plaintiffs was convicted and sentenced long ago, and those convictions are now final. None of the plaintiffs is currently subject to criminal charges in state-court. Therefore, there are no ongoing state judicial proceedings and abstention under Younger is not warranted here.
C. Burford Abstention Does Not Apply Because Plaintiffs’ Constitutional Claims Do Not Involve a State Administrative Procedures
Defendants also argue that Burford abstention is warranted here because a ruling that jailing criminal defendants for failing to pay court costs is unconstitutional would “negat[e] Louisiana law” in Orleans Parish, which maintains a “comprehensive scheme for amending, reconsidering, and reviewing criminal sentences.”77 Plaintiffs counter that Burford abstention is inappropriate for two reasons. First, plaintiffs argue that they have not challenged the validity of their criminal sentences and therefore do not want their sentences amended, reconsidered, or reviewed. Second, plaintiffs emphasize that regardless of what Louisiana law may allow, “all Louisiana
77 R. Doc. 52-1 at 8-9. 31

parishes, all municipal entities, and all state actors” must abide by the Constitution of the United States.78
In Burford v. Sun Oil Co., the Supreme Court affirmed a district court’s decision to abstain in a case involving “questions of the regulation of the [Texas oil and gas] industry by the State administrative agency.” 319 U.S. 315, 332 (1943). In support of its holding, the Court emphasized that “the federal government . . . chose[] to leave the principal regulatory responsibility with the states.” Id. at 319. After Burford, “[w]here timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (emphasis added). As a general rule, “Burford abstention requires the existence of a state administrative proceeding to which the federal court could defer.” Lipscomb v. Columbus. Municipal Separate School District, 145 F.3d 238, 242 (5th Cir. 1998) (emphasis added) (citing St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 589 (5th Cir. 1994)); see also Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 391 (5th Cir. 2012) (“Burford abstention is concerned with protecting complex state administrative processes from
78 R. Doc. 70 at 9-10. 32

undue federal inference . . . .” (emphasis added)); Webb v. B.C. Rogers Poultry, Inc., 174 F.3d 697, 700 (5th Cir. 1999) (“The Burford doctrine allows a federal court to abstain from exercising its jurisdiction in deference to complex state administrative procedures.” (emphasis added)).
Although courts have applied Burford to areas other than state administrative proceedings, these occasions are rare and arise only when the case presents state-law issues of wholly local concern. See Estate of Merkel v. Pollard, 354 F. App’x 88 (5th Cir. 2009) (applying Burford abstention because adjudication required resolving Texas divorce law); Claudill v. Eubanks Farms, Inc., 301 F.3d 658 (6th Cir. 2002) (applying Burford abstention to diversity action for dissolution of a Kentucky corporation); see generally Aransas Project v. Shaw, 775 F.3d 641, 650 (5th Cir. 2014) (“Of primary concern in Burford was the involvement of the federal courts in deciding issues of essentially state law and policy.”).
Here, plaintiffs’ section 1983 claims neither implicate the procedures of a state administrative agency nor raise state-law issues of only local concern. On the contrary, plaintiffs allege that defendants have deprived them of their constitutional rights—claims that plainly arise under federal law and that “are entitled to be adjudicated in the federal courts.” McNeese v. Bd. of Ed. For Cmty. Unit Sch. Dist. 187, Cahokia, Ill., 373 U.S. 668, 674
33

(1963) (refusing to apply Burford abstention). Defendants’ argument that they have validly adhered to Louisiana law misses the point. In evaluating a constitutional claim, “it is immaterial whether [defendants’] conduct is legal or illegal as a matter of state law.” Id. Burford abstention does not apply.
D. Rooker-Feldman Does Not Apply Because Plaintiffs’ Constitutional Claims Do Not Require Rejecting Their State-Court Convictions
Finally, defendants argue that the Court should abstain from adjudicating plaintiffs’ claims under the Rooker-Feldman doctrine. RookerFeldman bars federal district courts from “modify[ing] or revers[ing] state court judgments.” Truong v. Bank of Am., N.A., 717 F.3d 377, 382 (5th Cir. 2013) (citations omitted); see also Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003) (holding Rooker-Feldman applies when a federal plaintiff challenges a state-court judgment as “legal[ly] wrong” or otherwise “erroneous”). Rooker-Feldman is an especially narrow doctrine, “confined to . . . cases brought by state-court losers complaining of injuries caused by state-court judgments . . . and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
In determining whether Rooker-Feldman applies, a court must carefully evaluate what it is asked to review and reject. Truong, 717 F.3d at
34

382 (citing Exxon Mobil, 544 U.S. at 284). The court lacks jurisdiction only when the plaintiff “seeks relief that directly attacks the validity of an existing state court judgment,” Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900, 904 (5th Cir. 2011) (emphasis added), or the plaintiff’s federal claims “are so inextricably intertwined with a state judgment that the federal court is in essence being called upon to review the state court decision.” Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 390-91 (5th Cir. 2012) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983)). Rooker-Feldman does not prohibit a federal plaintiff from “present[ing] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party.” Exxon Mobil, 544 U.S. at 293.
Defendants’ arguments in support of abstention under RookerFeldman rest on a misunderstanding of the relief plaintiffs seek through their section 1983 claims. Defendants emphasize that all of the named plaintiffs pleaded guilty to their respective criminal charges and that none of their convictions or sentences has been reversed or expunged. Defendants argue that plaintiffs’ efforts to “reconsider[], amend[], . . . or appeal” their sentences must be done in state court.79 But plaintiffs’ allegations, as well as
79 R. Doc. 52-1 at 10. 35

their arguments in opposition to dismissal, make clear that plaintiffs do not contest the validity of their state-court convictions or sentences. Indeed, plaintiffs plainly admit that none of them “is challenging his or her criminal conviction or sentence.”80 Nor do they argue “that their convictions should be overturned or that the monetary portion of the judgment against them is invalid.”81
Instead, plaintiffs challenge the means by which defendants’ attempt to enforce the state court judgment, an issue separate and distinct from the validity of the judgment itself. See Mosley v. Bowie Cty. Tex., 275 F. App’x 327, 329 (5th Cir. 2008) (distinguishing between challenging a judgment and challenging defendants’ “efforts to enforce” the judgment); Ray v. Judicial Corr. Servs., No. 12-CV-02819-RDP, 2013 WL 5428360, at *8-9 (N.D. Ala. Sept. 26, 2013) (finding plaintiffs’ challenge to arrests for nonpayment attacks only “the post-judgment probationary program[,]” rather than the “merits” or “bases” of the state court decisions). Because a claim that defendants violated plaintiffs’ constitutional rights in defendants’ enforcement of the state court judgments “do[es] not ask the district court to
80 R. Doc. 70 at 2. 81 Id.
36

review, modify, or nullify, a final order of a state court, [this claim is] not barred under the Rooker-Feldman doctrine. Mosley, 275 F. App’x at 329 (quoting Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000)).
In sum, none of the foregoing abstention doctrines applies to plaintiffs’ section 1983 civil rights claims. Because the Court has subject matter jurisdiction over these claims and supplemental jurisdiction over plaintiffs’ state-law claims, the Court denies defendants’ motion to dismiss for lack of jurisdiction under Rule 12(b)(1).
IV. CONCLUSION For the foregoing reasons, the Court DENIES defendants’ motion to
dismiss for lack of jurisdiction.
New Orleans, Louisiana, this _2_1_s_t ___ day of April, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
37

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The “judicial defendants” now move the Court to dismiss this case for

plaintiffs’ alleged failure to join indispensable parties under Federal Rule of

Civil Procedure 12(b)(7) and 19.2 Because the Court finds that the parties

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 53. The “judicial defendants” are the Orleans Parish Criminal District Court, its thirteen judges, and the judicial administrator, Robert Kazik. Originally, plaintiffs also sued the Criminal District Court clerk, Arthur Morell, but he has been voluntarily dismissed. R. Doc. 65.

defendants assert must be joined are not required, the Court denies the motion.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the Orleans Parish Criminal District Court, its judges and judicial administrator, and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,” meaning they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are

legally indigent.3 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge at the Criminal District Court for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the court may assess against the criminal defendants various “court costs.” These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”4 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.5
If the criminal defendants cannot immediately pay in full, the Criminal District Court judges direct them to the Collections Department, or “fines and fees.” There, a Collections Department employee imposes, at his discretion and without inquiring into a defendant’s ability to pay, a payment
3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88. 5 Id. at 23 ¶ 91.

schedule—usually requiring a certain amount per month.6 Collections Department employees also warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Collections Department employees refuse to accept anything less than full payment.7
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s name.8 According to plaintiffs, the Collections Department often issues these warrants “years after a purported nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.9
Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for release.”10 According to plaintiffs, defendants’ unwavering adherence to this “automatic $20,000 secured money bond” requirement results from defendants’ financial interest in state-court arrestees’ paying for their
6 Id. at 27-28 ¶103. 7 Id. at 28 ¶ 106. 8 Id. at 29 ¶ 109. 9 Id. at ¶ 110. 10 Id. at ¶ 113.

release.11 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.12
When criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]” by the Collections Department.13 As a result, these indigent debtors “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.14 Although “arrestees are eventually brought to court,” the Sheriff, the Criminal District Court, and the judges “have no set policy or practice” regarding how long arrestees must wait for a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.15 Some arrestees, with help from family and friends, pay for their release without
11 Id. at 21-22 ¶88. 12 Id. at 22 ¶88. 13 Id. at 30 ¶114. 14 Id. at ¶115. 15 Id.

ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”16
When criminal defendants are brought to court, the Criminal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.17 At these brief “failure-to-pay hearings,” the judges allegedly do not consider the debtors’ abilities to pay. 18
Plaintiffs contend that these practices are unconstitutional and have created “a local debtors’ prison” in Orleans Parish.19
B. Parties The named plaintiffs in the First Amended Complaint are six individuals who were defendants in the Orleans Parish Criminal District Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste,
16 Id. at ¶114. 17 Id. at ¶116. 18 Id. 19 See R. Doc. 7 at 3.

Thaddeus Long, and Vanessa Maxwell.20 The facts pertaining to the named
plaintiffs, as alleged in their complaint, are as follows.
The Criminal District Court appointed counsel from the Orleans Public
Defenders to represent each of the named plaintiffs, except Reynaud Variste,
during their criminal proceedings.21 Thus, the court must have determined
that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent
under Louisiana Revised Statutes §15:175.22 Reynaud Variste appears to
have retained private counsel.23
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft,24 battery,25
20 R. Doc. 7 at 7 ¶7. 21 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP). 22 See R. Doc. 7 at 5. 23 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”). 24 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 25 Id. at 12 (Reynajia Variste Guilty Plea).

drug possession,26 “simple criminal damage,”27 and disturbing the peace.28 At plaintiffs’ sentencings, the presiding judges imposed terms of imprisonment, which were often suspended, as well as terms of active or inactive probation. In addition, the judges assessed against plaintiffs various court costs—whether restitution, fines, and/or discretionary fees and costs.29 At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs.
For example, plaintiffs allege that on one occasion, Alana Cain explained to a Collections Department supervisor that she could not satisfy the full amount of her expected monthly payment. The Collections Department supervisor warned Cain that if she could not afford her monthly payment, he would issue a warrant for her arrest.30 In March 2015, Cain was
26 Id. at 22 (Reynaud Variste Guilty Plea). 27 Id. at 28 (Vanessa Maxwell Guilty Plea). 28 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 29 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011). 30 R. Doc. 7 at 10 ¶ 18.

arrested for failing to pay her court debts.31 Jail staff told Cain that her bail was set at “a $20,000 secured bond pursuant to standard policy” and that “there was no way to find out when her court date would be.”32 When Cain eventually attended a hearing, the presiding judge told her that “if she ever missed a payment again, she would have to spend 90 days in jail.”33 The judge did not inquire into Cain’s ability to meet the monthly payments imposed by the Collections Department.
According to plaintiffs, in July and August 2015, Ashton Brown spent twenty-nine days in prison solely because of unpaid debts stemming from a 2013 conviction.34 When Brown finally received a hearing on the issue of his nonpayment, the presiding judge refused to release Brown, “unless he paid at least $100.”35 Because Brown could not afford to pay, the judge set another hearing for several days later and warned Brown “that he would be kept in jail unless he got a family member to pay.”36 Eventually, Brown’s
31 Id. at ¶¶20-22. 32 Id. at 10-11 ¶¶22-23. 33 Id. at 11 ¶27. 34 Id. at 12-13 ¶¶ 33-38. 35 Id. at 13 ¶ 38. 36 Id.

family “scrape[d] together $100,” and Brown was released.37 Collections Department employees have since threatened arrest and jail time if Brown does not continue making monthly payments.38
Reynaud Variste was allegedly arrested for nonpayment in January 2015 when police “stormed [Variste’s] home with assault rifles and military gear.”39 These officers told Variste “not to worry . . . because he simply owed some old court costs.”40 In prison, jail staff allegedly told Variste that they “had no idea when or whether [he] would be taken to court.”41 A bail bondsman told Variste that “he would probably not be released . . . until he paid his entire court debts, which would be cheaper than paying the $20,000 money bond” imposed upon him.42 Eventually, Variste’s girlfriend paid “the entire debt amount.” Variste was released from prison without a hearing.43
37 Id. at 14 ¶40. 38 Id. 39 Id. at ¶41. 40 Id. at ¶42. 41 Id. at 15 ¶47. 42 Id. 43 Id. at ¶48.

Reynajia Variste was arrested in May 2015 for failing to pay her court costs. Jail staff allegedly told Variste that she could pay her outstanding court debts or post the “standard $20,000 money bond” to be released.44 While Variste was still in jail, a Collections Department employee told a member of Variste’s family that Variste had to pay “at least $400 before [the Collections Department] would agree to let [Variste] out of jail.”45 The Collections Department allegedly arrived at this amount because it was “close to half of what [Variste] owed in total.”46 Variste spent at least seven days in prison and was never given a hearing before her family gathered enough money “to buy her release.”47 According to the First Amended Complaint, the Collections Department continues to threaten Reynajia Variste with prison time if she cannot make her monthly payments.48
Plaintiffs contend that Thaddeus Long was wrongly arrested for failing to pay his court costs because Long paid his debts in full years before. According to the First Amended Complaint, Long was convicted in 2011 and
44 Id. at 16 ¶55. 45 Id. at 17 ¶57. 46 Id. 47 Id. at ¶60. 48 Id. at ¶ 64.

finished paying his court costs in October 2013.49 In June 2015, a New Orleans police officer, conducting a traffic stop, discovered an outstanding warrant for Long’s supposed nonpayment.50 The officer arrested Long, and Long spent six days in prison, unable to post “the standard $20,000 secured money bond” before he was given a hearing. At the failure-to-pay hearing, Long explained that he had already paid his court debts in full, a “mistake . . . apparent from the court records,” and he was released immediately.51
Vanessa Maxwell allegedly spent twelve days in prison after her arrest for nonpayment before being brought to court.52 According to plaintiffs, the presiding judge did not evaluate Maxwell’s present ability to pay, but nonetheless made her release from prison contingent on Maxwell’s paying $191 “within a week.”53 Plaintiffs contend that Maxwell was never able to come up with the money, and Maxwell is now “in imminent danger of arrest . . . pursuant to monetary conditions that she cannot [meet].”54
49 Id. at 18 ¶67. 50 Id. 51 Id. at ¶69. 52 Id. at 20 ¶83. 53 Id. 54 Id. at ¶84.

Plaintiffs now sue the City of New Orleans for hiring the Criminal District Court’s Collection Department workers, as well as the police officers who execute the allegedly invalid arrest warrants.55 Plaintiffs also sue Sheriff Marlin Gusman, in his official capacity, for “unconstitutionally detain[ing] impoverished people indefinitely because of their inability to . . . pay[] for their release.”56 In addition, plaintiffs sue the Orleans Parish Criminal District Court for its role in managing and funding the Collections Department, and the court’s Judicial Administrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Department.57 Finally, plaintiffs name as defendants every judge at the Criminal District Court—thirteen in all— because they allegedly supervise the Collections Department employees and have failed to provide the parish’s criminal defendants with constitutionallyrequired process before imprisoning people for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.58
55 Id. at 7 ¶8. 56 Id. at 8 ¶12. 57 Id. at 7-8 ¶¶9-10. 58 Id. at 8 ¶13.

C. Plaintiffs’ Claims for Relief

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging

violations of their Fourth and Fourteenth Amendment rights, as well as

violations of Louisiana tort law. Plaintiffs seek damages (including

attorneys’ fees) and an injunction against all defendants, except the judges.

Plaintiffs also seek a declaratory judgment regarding the constitutionality of

defendants’ practices.59

The Court summarizes plaintiffs’ claims as follows:

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

(2) Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

59 Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3) Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4) Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are

unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6) Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8) Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

Importantly, plaintiffs do not ask the Court to declare that defendants’

practice of imposing court costs, discretionary or not, is unconstitutional.

D. The Judicial Defendants’ Motion to Dismiss

The Orleans Parish Criminal District Court, the thirteen judges, and

the judicial administrator now move to dismiss plaintiffs’ suit for plaintiffs’

alleged failure to join required parties under Federal Rule of Civil Procedure

12(b)(7) and 19. Defendants argue that the “Indigent Transcript Fund,” the

Orleans Public Defenders office, the Orleans Parish District Attorney, the

“[Louisiana Commission on Law Enforcement] Training and Assistance

Fund,” the “Crime Victims Reparation Fund,” the Louisiana Supreme Court,

“Crime Stoppers,” the “Coroner’s Operational Fund,” and the “Drug Abuse

Education and Treatment Fund” are all required parties because Louisiana

law empowers Criminal District Court judges to impose varying amounts of

“courts cost” on criminal defendants to fund the operations of these entities. According to defendants, any ruling by this Court regarding the constitutionality of defendants’ “assessing and collecting these costs will have direct . . . and potentially catastrophic impacts” on these absent parties.60 Defendants also argue that a ruling in plaintiffs’ favor by this Court may conflict with an existing state writ of mandamus that requires defendants to assess the Indigent Defender Fund fee mandated by Louisiana Revised Statute §15:68.61 See Louisiana Public Defender Board v. Parker, No. 597627 (19th Judicial District Court, Parish of Jefferson, Mar. 4, 2011).
In opposition to the motion to dismiss, plaintiffs argue that defendants misunderstand the relief plaintiffs seek. To start, plaintiffs reiterate that they do not challenge the validity of the court costs imposed upon them by defendants. Plaintiffs do not seek to eliminate the Criminal District Court judges’ ability to impose court costs, as permitted by Louisiana law. Plaintiffs’ constitutional challenges lie with defendants’ means of collecting validly-imposed court costs—specifically, with defendants’ alleged jailing of indigent debtors without a meaningful inquiry into the debtors’ ability to
60 R. Doc. 53-1 at 2. 61 Id.

pay. Plaintiffs therefore contend that the entities defendants argue must be joined are unnecessary and not required to resolve this litigation.
II. LEGAL STANDARD Federal Rules of Civil Procedure 12(b)(7) permits a party to bring a
motion to dismiss a complaint for failure to join a required party under Rule 19. See Fed. R. Civ. P. 12(b)(7). Proper joinder under Rule 19 is a two-step process. First, the court must decide if the absent party is required to fairly and completely resolve the dispute. See Fed. R. Civ. P. 19(a); Sch. Bd. of Avoyelles Par. V. U.S. Dep’t of Interior, 647 F.3d 570, 578 (5th Cir. 2011); Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd., 570 F.3d 219, 230-31 (5th Cir. 2009). Second, if the absent party is required, but joinder is not feasible, the court must decide whether the absent party is “indispensable” to the action under Rule 19(b). See Fed. R. Civ. P. 19(b); Sch. Bd. of Avoyelles Par., 647 F.3d at 578.
Under Rule 19(a)(1), a party is “required” if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (b) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
(i) as a practical matter impair or impede the person’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a).
If a required party cannot be joined in the action because its joinder
would defeat the court's diversity jurisdiction, the court must determine
“whether, in equity and good conscience, the action should proceed among
the existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). In making
this determination, the court may consider:
(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.
Fed. R. Civ. P. 19(b).
State law is relevant “in determining what interest the outsider actually
has, but the ultimate question whether, given those state-defined interests, a
federal court may proceed without the outsider is a federal matter.”
Morrison v. New Orleans Pub. Serv. Inc., 415 F.2d 419, 423 (5th Cir. 1969)

(citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n. 22, 88 S.Ct. 733, 746 n. 22 (1968)).
III. DISCUSSION The Court begins by clarifying the relief plaintiffs seek in their First
Amended Complaint. Although defendants characterize plaintiffs’ complaint as a broad attack on the “constitutional permissibility of assessing and collecting” court costs imposed on state-court criminal defendants,62 this characterization is incorrect for two reasons. First, plaintiffs do not complain about defendants’ imposing or assessing court costs as valid terms of the sentences of state-court criminal defendants. Indeed, as defendants note, the Louisiana Supreme Court has recently held that state trial courts maintain discretion to impose a “broad category of costs” under Louisiana law. See generally State v. Griffin, 180 So. 3d 1262, 1268 (La. 2015). Moreover, the imposition of some costs, such as the “special costs to the district indigent defender fund,” are not discretionary; a Louisiana trial court has no choice but to impose these costs on a criminal defendant who has been convicted. See generally La. Rev. Stat. § 15:168 (“Every court of original
62 R. Doc. 53-1 at 2.

criminal jurisdiction . . . shall remit the following special costs . . .” (emphasis added)). Second, plaintiffs do not complain about defendants’ generally collecting court costs, assuming those collection efforts are carried out in a manner consistent with constitutional principles.
A review of the First Amended Complaint reveals that plaintiffs challenge only the manner in which defendants allegedly collect outstanding court costs from indigent criminal defendants who have failed to pay. Specifically, plaintiffs take issue with the following alleged policies: defendants’ failing to inquire into a criminal defendant’s reasons for failing to pay court costs before issuing and executing arrest warrants for nonpayment by indigent debtors (Counts One, Five, Six, Seven, and Eight); defendants’ requiring a $20,000 “secured money bond,” allegedly motivated by their financial interests, to release indigent debtors from prison (Counts Two and Four); and defendants’ detaining indigent debtors without a prompt judicial appearance after their arrests (Count Three). Having properly framed plaintiffs’ allegations, the Court finds that none of the absent parties defendants argue must be joined is a required party under Rule 19.
Despite the absence of the third party entities that defendants propose must be joined, the Court can accord complete relief among the existing litigants. In making this determination, the Court looks to the relief prayed

for by the claimant. See In re Chinese Manufactured Drywall Prods. Liab. Litig., 273 F.R.D. 380, 385-86 (E.D. La. 2011); Plains Expl. & Prod. Co. v. 4C’s Land Corp., No. 10-702, 2010 WL 3430516, at *3 (E.D. La. Aug. 20, 2010). The Court “does not consider the effect that a judgment may have on absent parties when evaluating ‘complete relief.’” VFS US LLC v. Vaczilla Trucking, LLC, No. 15-2226, 2015 WL 7281619, at *14 (E.D. La. Nov. 16, 2015) (citing United States v. Rutherford Oil Corp., No. G-08-0231, 2009 WL 1351794, at *2 (S.D. Tex. May 13, 2009)).
As noted, plaintiffs request the Court to declare unconstitutional defendants’ policies of incarcerating indigent debtors for nonpayment, automatically requiring from them a “$20,000 secured money bond,” and detaining them without a prompt judicial appearance. In seeking this relief, plaintiffs have sued the state actors who are allegedly responsible for the specific conduct at issue. There are no allegations (from either plaintiffs or defendants) that the Orleans Parish Coroner or whoever administers Louisiana’s Drug Abuse Education and Treatment Fund, for example, participates in the decisions to arrest indigent debtors for nonpayment. The same is true for defendants’ allegedly requiring a “$20,000 secured money bond” and detaining arrestees without a prompt judicial appearance—these third party entities are not involved. Because none of the third parties

participates in the conduct complained of, their presence in this litigation is unnecessary for the Court to “accord complete relief” if plaintiffs ultimately prevail on their claims. See Haas v. Jefferson Nat’l Bank of Miami Beach, 442 F.2d 394, 398 (5th Cir. 1971) (finding absent person to be a required party under Rule 19(a) because “his presence is critical to the disposition of the important issues in the litigation”).
The Court next addresses whether any of these third parties “claim[] an interest relating to the subject of the action.” See Fed. R. Civ. P. 19(a)(1). The “interest relating to the subject of the action” must be a legally protected one. E.g., United States v. San Juan Bay Marina, 239 F.3d 400, 406 (1st Cir. 2001) (“A party is necessary under Rule 19(a) only if they claim a ‘legally protected interest’ relating to the subject matter of the action.”); see also Escamilla v. M2 Tech., Inc., 536 F. App’x 417, 421 (5th Cir. 2013) (noting that the licensor of a trademark is usually a required party because “the licensor has a legally protected interest in the subject matter of the action”). “Rule 19 does not contemplate joinder of any party who might possibly be affected by a judgment in any way.” Shelton v. Exxon Corp., 843 F.2d 212, 218 (5th Cir. 1998). Several district courts in the Fifth Circuit hold that an absent party’s failure to “seek joinder on its own is indicative of its lack of interest in the subject matter of the suit.” Woodard v. Woodard Villa, Inc., No. 15-1777,

2016 WL 1298995, at *4 (W.D. La. Mar. 31, 2016) (collecting cases); see also Colbert v. First NBC Bank, No. 13-3043, 2014 WL 1329834, at *3 (E.D. La. Mar. 31, 2014) (“[T]o be a required party under Rule 19(a)(1)(B) because of an interest in the subject matter of the action, the party must assert its own interest.”).
Here, none of the absent parties has moved to intervene or otherwise attempted to participate in this litigation. Defendants merely argue on behalf of the absent parties that any potential ruling on the merits in this case will have “potentially catastrophic impacts on the criminal justice operations of entities not before the Court.”63 Defendants’ dire prediction, lacking any concrete support, is insufficient to show that these absent parties are necessary to resolve plaintiffs’ claims.
Regardless, defendants’ only argument that the absent parties are interested in the subject matter of this litigation rests on the erroneous assertion that plaintiffs challenge defendants’ imposition of court costs.64 Any potential ruling regarding the manner in which defendants collect court
63 R. Doc. 53-1 at 2. 64 Defendants do not argue—and the Court cannot discern any legitimate reason why—the absent parties have any interest in the subject matter of plaintiffs’ other allegations, i.e., determining the appropriate amount of bail for nonpayment offenses or how long arrestees wait for a judicial hearing.

costs will not, “as a practical matter[,] impair or impede” the absent parties’ entitlement to receive court costs under Louisiana law. See Fed. R. Civ. P. 19(a)(1)(b)(i). Any argument that defendants will collect less money overall, and thus financially impact the absent parties, unless they continue current— allegedly unconstitutional—practices is theoretical at best. “[T]he mere theoretical possibility of prejudice does not require joinder.” Colbert, 2014 WL 1329834, at *4 (quoting Cortez v. County of L.A., 96 F.R.D. 427, 430 (C.D. Cal. 1983)).
Further, this proceeding is unlikely to subject defendants to “multiple or otherwise inconsistent obligations,” as they contend. See Fed. R. Civ. P. 19(a)(1)(b)(ii). Defendants argue that the Criminal District Court judges are currently subject to state-court writ of mandamus requiring them to assess a “special cost[]” benefitting the Orleans Parish indigent defender fund in every case in which a state-court criminal defendant is convicted. See Louisiana Public Defender Board v. Parker, No. 597627 (19th Judicial District Court, Parish of Jefferson, Mar. 4, 2011). Again, because plaintiffs do not challenge the validity of the costs, any relief, if ultimately granted, will not invalidate the imposition of court costs. Cf. Shelton v. Exxon Corp., 843 F.2d 212, 218 (5th Cir. 1988) (“It is the threat of inconsistent obligations, not the possibility of multiple litigation or a subjective preference for state court,

that determines Rule 19 considerations.”); EEOC v. Brown & Root, Inc., 688
F.2d 338, 342 (5th Cir.1982) (finding insufficient under Rule 19(a) a party's
claim “that it will somehow be left facing inconsistent obligations,” which
was “groundless”); U.S. ex rel. Branch Consultants, LLC v. Allstate Ins. Co.,
265 F.R.D. 266, 272 (E.D. La. Feb. 12, 2010). (“[T]he key is whether the
possibility of being subject to multiple obligations is real; an unsubstantiated
or speculative risk will not satisfy the Rule 19(a) criteria.”).65
Because joinder of the absent parties is not required under Rule 19(a),
further analysis under Rule 19(b) is unnecessary.
65 The only case defendants cite in support of their arguments that the proposed third parties must be joined is Schutten v. Shell Oil Co., 421 F.2d 869 (5th Cir. 1970). Schutten involved an ownership dispute over immovable property and its attendant mineral rights. The plaintiffs sought to evict the defendant, Shell Oil Company. Id. at 870. Shell was the lessee of a mineral contract with the Orleans Parish Levee Board, who also claimed ownership of the property at issue. Id. at 870-71. The Fifth Circuit held that the Levee Board was a required party because any resolution in favor of the plaintiffs against Shell affected the Levee Board “would most assuredly create a cloud on the Levee Board’s title and greatly diminish the value of the property.” Id. at 874. For the reasons already explained, the facts of Schutten, a property dispute among multiple parties—each of which asserted a direct, tangible ownership interest in the property—do not bolster defendants’ arguments here.

IV. CONCLUSION For the foregoing reasons, the Court DENIES defendants’ motion to
dismiss for failure to join indispensable parties.
New Orleans, Louisiana, this __2_2_n_d__ day of April, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The “judicial defendants” now move the Court to dismiss plaintiffs’

claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2

Defendants contend that plaintiffs fail to state a claim upon which relief can

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 The “judicial defendants” are the Orleans Parish Criminal District Court, its thirteen judge, and the judicial administrator, Robert Kazik.

be granted because they are entitled to absolute and qualified immunity.3 For the following reasons, the Court grants in part and denies in part the motion.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the Orleans Parish Criminal District Court, its judges and judicial administrator, and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,”
3 R. Doc. 54.

meaning they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are legally indigent.4 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge at the Criminal District Court for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the court may assess against the criminal defendants various “court costs.” These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”5 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.6
4 R. Doc. 7 at 5. 5 Id. at 22-23 ¶ 88. 6 Id. at 23 ¶ 91.

If the criminal defendants cannot immediately pay in full, the Criminal District Court judges direct them to the Collections Department, or “fines and fees.” There, a Collections Department employee allegedly imposes, at his discretion and without inquiring into a defendant’s ability to pay, a payment schedule—usually requiring a certain amount per month.7 Collections Department employees also allegedly warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Plaintiffs contend that Collections Department employees refuse to accept anything less than full payment.8
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s name.9 According to plaintiffs’ allegations, the Collections Department often issues these warrants “years after a purported nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.10
7 Id. at 27-28 ¶103. 8 Id. at 28 ¶ 106. 9 Id. at 29 ¶ 109. 10 Id. at ¶ 110.

Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for release.”11 According to plaintiffs, defendants’ unwavering adherence to this “automatic $20,000 secured money bond” requirement results from defendants’ financial interest in state-court arrestees’ paying for their release.12 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.13
Plaintiffs allege that when criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]” by the Collections Department.14 As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of
11 Id. at ¶ 113. 12 Id. at 21-22 ¶88. 13 Id. at 22 ¶88. 14 Id. at 30 ¶114.

the foregoing amounts.15 Although “arrestees are eventually brought to court,” plaintiffs allege that the Sheriff, the Criminal District Court, and the judges “have no set policy or practice” regarding how long arrestees must wait for a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.16 According to plaintiffs’ allegations, some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”17
When criminal defendants are brought to court, the Criminal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.18 At these brief “failure-to-pay hearings,” the judges allegedly do not consider the debtors’ abilities to pay. 19
15 Id. at ¶115. 16 Id. 17 Id. at ¶114. 18 Id. at ¶116. 19 Id.

Plaintiffs contend that these practices are unconstitutional and have created “a local debtors’ prison” in Orleans Parish.20
B. Parties The named plaintiffs in the First Amended Complaint are six individuals who were defendants in the Orleans Parish Criminal District Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell.21 The Criminal District Court appointed counsel from the Orleans Public Defenders to represent each of the named plaintiffs, except Reynaud Variste, during their criminal proceedings.22 Thus, the court must have determined that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent
20 See R. Doc. 7 at 3. 21 Id. at 7 ¶7. 22 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP).

under Louisiana Revised Statutes §15:175.23 Reynaud Variste appears to
have retained private counsel.24
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft,25 battery,26
drug possession,27 “simple criminal damage,”28 and disturbing the peace.29
At plaintiffs’ sentencings, the presiding judges imposed terms of
imprisonment, which were often suspended, as well as terms of active or
inactive probation. In addition, the judges assessed against plaintiffs various
court costs—whether restitution, fines, and/or discretionary fees and costs.30
23 See R. Doc. 7 at 5. 24 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”). 25 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 26 Id. at 12 (Reynajia Variste Guilty Plea). 27 Id. at 22 (Reynaud Variste Guilty Plea). 28 Id. at 28 (Vanessa Maxwell Guilty Plea). 29 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 30 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011).

At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs on a warrant issued by the court’s Collections Department.
Plaintiffs now sue the City of New Orleans for hiring the Criminal District Court’s Collection Department workers and the police officers who execute the allegedly invalid arrest warrants.31 Plaintiffs also sue Sheriff Marlin Gusman, in his official capacity, for “unconstitutionally detain[ing] impoverished people indefinitely because of their inability to . . . pay[] for their release.”32 In addition, plaintiffs sue the Orleans Parish Criminal District Court for its role in managing and funding the Collections Department, and the court’s Judicial Administrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Department.33 Finally, plaintiffs name as defendants every judge at the Criminal District Court—thirteen in all— because they allegedly supervise the Collections Department employees and have failed to provide the parish’s criminal defendants with constitutionally-
31 R. Doc. 7 at 7 ¶8. 32 Id. at 8 ¶12. 33 Id. at 7-8 ¶¶9-10.

required process before imprisoning people for failure to pay court costs.

Plaintiffs sue the judges only for declaratory relief.34

C. Plaintiffs’ Claims for Relief

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging

violations of their Fourth and Fourteenth Amendment rights, as well as

violations of Louisiana tort law. Plaintiffs seek damages (including

attorneys’ fees) and an injunction against all defendants, except the judges.

Plaintiffs also seek a declaratory judgment regarding the constitutionality of

defendants’ practices.35

The Court summarizes plaintiffs’ claims as follows:

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

34 Id. at 8 ¶13.
35 Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.

(2) Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3) Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4) Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are

unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6) Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8) Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

D. The Judicial Defendants’ Motion to Dismiss

The Orleans Parish Criminal District Court, the thirteen judges, and

the judicial administrator now move to dismiss plaintiffs’ suit on grounds of

absolute and qualified immunity. According to defendants, the judges are

absolutely immune from suit for conduct which constitutes a “judicial act.”36

Defendants concede, however, that absolute judicial immunity does not

apply to plaintiffs’ claims for declaratory relief, but argue that the Court’s

awarding declaratory relief in this case upsets “federalism, fairness, and

36 R. Doc. 54-1 at 1.

efficiency concerns.”37 Further, defendants argue that the Judicial Administrator, Robert Kazik, is shielded by absolute or qualified immunity for his alleged conduct because he merely “assist[ed] judges in carrying out judicial functions.”38 In the present motion to dismiss, defendants do not raise any arguments pertaining to the amenability to suit of the Criminal District Court itself.
In opposition to the motion to dismiss, plaintiffs note that they sue the judges for only declaratory relief, and thus absolute immunity does not bar these claims. Regarding the Judicial Administrator, plaintiffs argue that Kazik is not entitled to absolute immunity because he was not acting pursuant to a valid judicial order. Further, plaintiffs argue that Kazik’s conduct was objectively unreasonable, precluding his entitlement to qualified immunity.
II. LEGAL STANDARD 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.” Ashcroft
37 Id. 38 Id.

v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
III. DISCUSSION A. Plaintiffs’ Claims Against the Criminal District Court Judges Defendants admit that their arguments about judicial immunity do not
apply to claims for declaratory relief.39 See generally Holloway v. Walker, 765 F.2d 517, 525 (5th Cir. 1985) (“Judicial immunity does not extend to suits for . . . declaratory relief under section 1983.”). Here, plaintiffs have sued the Criminal District Court judges for only declaratory relief. Plaintiffs do not seek damages or injunctive relief against the judges. Conceding this point, defendants nonetheless argue that the Court should decline to decide
39 Id.

plaintiffs’ claims for declaratory relief in the interests of “federalism, fairness, [and] efficiency.”40
The Declaratory Judgment Act, 28 U.S.C. § 2201, which plaintiffs invoke here, is “an enabling act, which confers discretion on the courts” to decide or dismiss a declaratory judgment suit, “rather than an absolute right on a litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (citations omitted); accord Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 387, 389 (5th Cir. 2003) (citations omitted). In analyzing claims under the Act, a court must determine “(1) whether the declaratory action is justiciable; (2) whether the court has the authority to grant declaratory relief; and (3) whether to exercise its discretion to decide or dismiss the action.” SherwinWilliams, 343 F.3d at 387.
In an earlier order resolving another motion to dismiss, the Court satisfied itself that the claims for declaratory relief were justiciable as to four of the six named plaintiffs.41 The Court also has the authority to grant declaratory relief.42 Therefore, the only issue presented by defendants’
40 R. Doc. 54-1 at 6. 41 R. Doc. 109 at 19-21. 42 Defendants do not argue that the Court lacks proper authority. The Court’s authority to grant declaratory relief depends on whether (1) the declaratory defendant previously filed a cause of action in state court against

current motion is whether the Court should, in its discretion, exercise that
authority.
In determining whether to exercise its authority to hear a declaratory
judgment action, a court should consider the following factors:
(1) whether there is a pending state action in which all of the matters in controversy may be fully litigated;
(2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant;
(3) whether the plaintiff engaged in forum shopping in bringing the suit;
(4) whether possible inequities in allowing the declaratory plaintiff to gain precedent in time or to change forums exist;
(5) whether the federal court is a convenient forum for the parties and witnesses;
(6) whether retaining the lawsuit would serve the purposes of judicial economy; and
(7) whether the federal court is being called on to construe a state judicial decree involving the same parties and entered by the court before whom the parallel state suit between the same parties is pending.
the declaratory plaintiff, (2) the state suit and the pending federal suit involve the same legal issues, and (3) the Anti-Injunction Act prohibits the court from enjoining the state court proceedings. AXA Re Prop. & Cas. Ins. Co. v. Day, 162 F. App’x 316, 319-20 (5th Cir. 2006) (citation omitted). These concerns are not present here.

Id. at 388 (quoting St. Paul Ins. Co. v. Trejo, 39 F.3d 585, 590-91 (5th Cir. 1994)). These considerations aim to address concerns of federalism (“the proper allocation of decision-making between state and federal courts”), fairness (“legitimate and proper reasons for forum selection”), and judicial efficiency (“avoid[ing] duplicative or piecemeal litigation where possible”). Id. at 390-91.
Defendants argue that the foregoing considerations dictate dismissal. Defendants contend that there are ongoing state-court proceedings and that plaintiffs have “clear[ly] engaged in forum shopping” because their constitutional challenges “should have been raised in the ongoing state criminal proceedings [because] the potential exists for conflicting rulings.”43 These contentions, however, are merely re-packaged versions of defendants’ earlier arguments in favor of Younger abstention and joinder of certain parties, which the Court rejected in other orders.44 Having considered the relevant factors, the Court will exercise its discretion to hear plaintiffs’ claims for declaratory relief.
43 R. Doc. 54-1 at 6-7. 44 R. Doc. 109 at 25-31; R. Doc. 111 at 25.

First, there is no pending state action between the same parties and involving the same legal issues. See id. at 396; cf. Ironshore Specialty Ins. Co. v. Tractor Supply Co., 624 F. App’x 159, 166 (5th Cir. 2015) (“[A] district court may decline to decide a declaratory judgment suit where another suit is pending in state court presenting the same issues, not governed by federal law, between the same parties.”). As explained in the Court’s earlier order, there is no ongoing state court action at all.45 Further, plaintiffs do not raise “novel questions of state law” that might warrant the Court’s declining to decide the declaratory judgment action. See Sherwin-Williams, 343 F.3d at 396. On the contrary, plaintiffs’ constitutional challenges caution against dismissal; “[t]he presence of federal issues must always be a major consideration weighing against surrender of federal jurisdiction.” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983)). Moreover, defendants’ argument that plaintiffs have engaged in forum shopping is without merit. “Merely filing a declaratory judgment action in a federal court with jurisdiction to hear it . . . is not in itself improper . . . or otherwise abusive ‘forum shopping.’” Id. at 391. Finally, this Court is sufficiently convenient for all parties, who are Louisiana citizens, and judicial
45 R. Doc. 109 at 25-30.

economy is not wasted by the Court’s retaining the lawsuit. As addressed in a previous order, defendants’ concern about inconsistent rulings rests on the erroneous assertion that plaintiffs challenge the imposition of court costs, rather than the manner in which court costs are collected. Cf. id. (“Duplicative litigation may also raise federalism or comity concerns because of the potential for inconsistent state and federal court judgments . . . .”). The remaining considerations (the second, fourth, and seventh factors) do not apply. Cf. Ironshore Specialty Ins., 624 F. App’x at 167 (noting that certain factors “speak to fairness”—“whether the plaintiff is using the declaratory judgment process to gain access to a federal forum on improper or unfair grounds”). Because federalism, fairness, and efficiency do not weigh in favor of dismissal, the Court denies defendants’ motion to dismiss plaintiffs’ claims for declaratory relief against the Criminal District Court judges.
B. Plaintiffs’ Claims against the Criminal District Court Judicial Administrator
Defendants argue that Robert Kazik, the Criminal District Court Judicial Administrator, is entitled to absolute immunity because at all times he was assisting the judges in carrying out their judicial functions. Alternatively, defendants argue that Kazik is at least entitled to qualified immunity for his actions, which were not objectively unreasonable. Because

the Court finds that Kazik is protected by absolute quasi-judicial immunity, the Court does not address defendants’ arguments for qualified immunity.
“Despite the broad terms of § 1983,” the Supreme Court “has long recognized” that immunity doctrines protect certain potential defendants from liability under the statute. Rehberg v. Paulk, 132 S. Ct. 1497, 1502 (2012). For example, judges are absolutely immune from monetary liability “for all judicial acts that are not performed in the clear absence of jurisdiction, however erroneous the act and however evil the motive.” Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir.), cert denied, 492 U.S. 921 (1989) (citing Stump v. Sparkman, 435 U.S. 349 (1978)). This is so because of the “special nature” of a judge’s responsibilities. Id. (quoting Butz v. Economou, 438 U.S. 478, 511 (1978)). Absolute immunity “help[s] guarantee an independent, disinterested decision-making process” by “prevent[ing] harassment and intimidation that could otherwise result if disgruntled litigants—particularly criminal defendants and inmates . . . could vent their anger by suing . . . the person or persons who rendered an adverse decision.” Id. at 996-97 (citations omitted).
To further this underlying policy, “other necessary participants in the judicial process are entitled to absolute quasi-judicial immunity.” Kirkendall v. Grambling & Mounce, Inc., 4 F.3d 989, 1993 WL 360732, at

*3 (5th Cir. 1993) (citation omitted). This absolute quasi-judicial immunity
“protects officials that perform functions comparable to those of judges. . . .”
Da Vinci Inv., Ltd. P’ship v. Parker, 622 F. App’x 367, 373 (5th Cir. 2015)
(quoting Beck v. Tex. Bd. of Dental Exam’rs, 204 F.3d 629 (5th Cir. 2000)).
In determining whether an official is entitled to absolute quasi-judicial
immunity, courts must take a “functional approach”—looking to “the nature
of the function performed, not the identity or title of the actor who performed
it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
Consistent with this “functional approach,” courts often hold that other
judicial employees, such as clerks of court, law clerks, and others, enjoy
absolute quasi-judicial immunity when “performing a discretionary act or . .
. a ministerial function at the direction of the judge.”46 Williams v. Wood,
46 Absolute quasi-judicial immunity, in another sense of that term, also applies to actors outside of the traditional state judicial system, who perform quasi-judicial functions. See O’Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 65 (5th Cir. 1997) (explaining that “certain quasi-judicial agency officials” are entitled to absolute immunity). For example, administrative law judges, disciplinary committee members, parole boards, and others have all been entitled to absolute quasi-judicial immunity. See Johnson, 870 F.2d at 995 (collecting cases). “To determine whether nonjudicial actors perform quasijudicial functions, and thus are entitled to absolute immunity” the court considers, among other things, “(1) the need to assure that the individual can perform his functions without harassment or intimidation; (2) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (3) insulation from political influence; (4) the importance of precedent; (5) the adversary nature of the process; and (6) the correctability of error on appeal.” Da Vinci Inv., Ltd., 622 F. App’x at

612 F.2d 982, 985 (5th Cir. 1980) (quoting Waits v. McGowan, 516 F.2d 2013, 206 (3d Cir. 1975)); see generally Evans v. Suter, 260 F. App’x 726, 727 (5th Cir. 2007) (“Clerks have absolute quasi-judicial immunity . . . when they perform tasks that are an integral part of the judicial process.” (citing Mullis v. United States Bankr. Court, 828 F.2d 1385, 1390 (9th Cir. 1987)); Bliven v. Hunt, 579 F.3d 204, 214 (2d Cir. 2009) (granting absolute immunity to family court staff attorneys); Olivia v. Heller, 839 F.2d 37, 40 (2d Cir. 1988) (“[F]or purposes of absolute judicial immunity, judges and their law clerks are as one.”). In other words, judicial employees are absolutely immune when they act, whether “in bath faith or with malice” pursuant to a court order or a judge’s instructions because the employee is “act[ing] as the arm of the judge and comes within his absolute immunity.” Williams, 612 F.2d at 985; accord Johnson, 870 F.2d at 998 (describing parole board members as “serving essentially as the arm of the sentencing judge”); Severin v. Parish of Jefferson, 357 F. App’x 601, 605 (5th Cir. 2009) (granting absolute immunity to “employees of the Louisiana Fifth Circuit
373 (denying immunity to city councilmember). Because the defendant at issue here is a judicial employee serving at the pleasure of the Criminal District Court judges, the Court does not apply these factors in determining whether he is entitled to absolute quasi-judicial immunity.

Court of Appeal who acted pursuant to the procedures allegedly
implemented by the judges”).
A judicial directive that cloaks court employees with absolute
immunity may be formal and official, such as a court order, or more informal,
such as verbal communication from a judge. For example, in Severin v.
Parish of Jefferson, a civil rights plaintiff sued several state-court appellate
judges and other employees of the Louisiana appeals court for allegedly
instituting a policy to “circumvent Louisiana’s constitutional requirement of
three judge panels” on pro se post-conviction writs. 357 F. App’x 601, 603
(5th Cir. 1009). The judges allegedly directed a staff member to rule on the
prisoners’ writ applications without review by the constitutionally-required
panel.47 Id. In affirming the district court’s dismissal of the 1983 suit, the
Fifth Circuit held that the court’s employees who allegedly helped carry out
the court’s unconstitutional policy were protected by judicial immunity, even
47 In the underlying facts cited by the district court, a deceased member of the court’s staff detailed in a suicide note that “for . . . the past 10 years, not one criminal writ application filed by an inmate pro se has been reviewed by a Judge on the Court.” Severin v. Parish of Jefferson, No. 09-2766, 2009 WL 1107713, at *2 (E.D. La. Apr. 23, 2009). The staff member continued, “I prepared the ruling on each of those writ applications, and they were signed by a Judge without so much as a glance at the application. In fact, two of the judges on the writ panel never even knew the pro se application was filed, must less aware of the application’s contents.” Id.

though there was no official court order or decree directing the employees to engage in the prohibited conduct. Id. at 605. The court explained that because these employees “acted pursuant to the procedures allegedly implemented by the judges [and] were only acting at the express direction of the judges, to assist them in carrying out their judicial functions, these defendants [were] likewise entitled to absolute judicial immunity with respect to [the plaintiff’s] claim for monetary damages.” Id.
Here, the crux of plaintiffs’ claims against the Criminal District Court Judicial Administrator Robert Kazik is his supposed involvement in the constitutional violations committed by the Criminal District Court’s Collections Department. Specifically, plaintiffs allege that Kazik trained Collections Department employees to issue arrest warrants, accompanied by a $20,000 secured money bond for court debtors’ nonpayment of court costs. Kazik allegedly trained the Collections Department employees to sign the judges’ names to pre-printed warrants without ever consulting a judge or a member of the judge’s staff. Although plaintiffs seemingly argue in opposition to dismissal that Kazik furtively undertook this allegedly unconstitutional conduct on his own, the allegations in the First Amended Complaint reveal the opposite. Indeed, plaintiffs allege that the judges

“supervise and are responsible for the Judicial Administrator,”48 and a Criminal District Court transcript incorporated by reference to the complaint details the judges’ knowledge and approval of Kazik’s conduct.49 According to this transcript, the judges have, for years, delegated authority to the Collections Department employees to issue arrest warrants for court debtors’ nonpayment without the judges’ direct oversight.50 The judges have allegedly given Kazik and the Collections Department “standing authority” not only to issue warrants for nonpayment, but also to recall arrest warrants or release incarcerated debtors when they pay back-owed debts.51 All of the judges are “aware of the [Collections Department’s] practice,” and unless a judge instructs the Collections Department otherwise, Kazik and other court employees continue operating pursuant to this policy.
It is undisputed that issuing arrest warrants and setting bail are judicial functions, typically performed by a judge in his or her judicial capacity. See generally Ballard v. Wall, 413 F.3d 510, 516 (5th Cir. 2005) (“Ordering the police officers to arrest and imprison [the plaintiff] and
48 R. Doc. 7 at 8 ¶13. 49 R. Doc. 7-1. 50 Id. at 23. 51 Id. at 24-25.

requiring . . . payment of a money judgment are clearly acts normally
performed by a judge.”); Herring v. Mayfield, 51 F.3d 1043, 1995 WL
153026, at *1 (5th Cir. 1995) (“[S]etting the amount of the bond . . . is within
the scope of [the judge’s] jurisdiction, thus affording her absolute judicial
immunity.”); Watson v. Interstate Fire & Cas. Co., 611 F.2d 120, 123 (5th Cir.
1980) (“[T]he issuance of an arrest warrant is a common judicial function.”).
It is also undisputed that these acts were carried out within the Criminal
District Court, although not necessarily in a formal courtroom proceeding or
a judge’s chambers. Further, these arrest warrants for nonpayment
concerned former criminal defendants in that court. Thus, had the arrest
warrants been issued by the judges themselves, they would undoubtedly be
entitled to absolute judicial immunity.52 See Ballard, 413 F.3d at 515
(considering whether the act complained of is a “normal judicial function,”
whether the act occurred in the courtroom or “appropriate adjunct spaces,”
52 Although judicial officers are not entitled to absolute immunity for acts performed in “the clear absence of jurisdiction,” plaintiffs do not argue, and the Court does not find, that the conduct at issue falls within this exception. The “absence of jurisdiction” refers to the court’s lacking subject matter jurisdiction to hear the case or personal jurisdiction over a litigant. See generally Mullis, 828 F.2d at 1389 (noting that “a clear absence of all jurisdiction” refers only to a “clear lack” of subject matter or personal jurisdiction). Nothing in the record indicates the Criminal District Court judges lacked subject matter or personal jurisdiction over the state-court criminal defendants.

whether the controversy centered around a case pending before the court, and whether the acts arose directly out of a visit to the judge in determining whether the judge acted within her judicial capacity for purposes of absolute judicial immunity).
The issue in this case is whether the Criminal District Court’s Judicial Administrator, who had “standing authority” from the judges to monitor court debtors’ payment of court costs and to issue arrest warrants when debtors failed to pay, is equally entitled to absolute quasi-judicial immunity for acting at the judges’ instruction. Plaintiffs argue that Kazik cannot be immune because there are no allegations that, in issuing arrest warrants for nonpayment, Kazik was “complying with a valid judicial order.”53 But as noted, formal court decrees are not necessary to immunize court employees who act according to a judge’s instructions. See Severin, 357 F. App’x at 603. Because, by plaintiffs’ own allegations, Kazik acted according to “procedures allegedly implemented by the judges [and] at the express direction of the judges, to assist them in carrying out their judicial functions,” Kazik is also protected by absolute quasi-judicial immunity. Id.; see also Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988) (immunizing “deputy circuit
53 R. Doc. 70 at 19.

clerk [who] issued the arrest warrant at the direction of the assistant circuit judge”).
Absolute quasi-judicial immunity shields Kazik from suit under both federal and state law. See generally Sharp v. Palmisano, No. 13-5429, 2013 WL 5969661, at *4 (E.D. La. Nov. 8, 2013) (“Louisiana jurisprudence on judicial immunity mirrors the federal doctrine.” (quoting Moore v. Taylor, 541 So.2d 378, 381 (La. App. 2 Cir. 1989))). As noted, absolute judicial immunity—and therefore absolute quasi-judicial immunity—does not apply to claims for declaratory relief. See generally Holloway v. Walker, 765 F.2d 517, 525 (5th Cir. 1985). Accordingly, the Court dismisses plaintiffs’ claims against Kazik, in his individual capacity, for monetary and injunctive relief under federal and state law.54
54 Absolute immunity does not apply to claims against a defendant in his official capacity. See Turner v. Houma Mun. Fire & P0lice Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000) (collecting cases). However, if the suit against the municipal entity “fails for a jurisdictional, procedural, or pleading defect,” any official capacity claim against an individual also fails. Id. The Court has not yet addressed the parties’ arguments regarding plaintiffs’ claims against Criminal District Court.

IV. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES
IN PART defendants’ motion to dismiss on grounds of absolute and qualified immunity.
New Orleans, Louisiana, this __3_r_d___ day of May, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The “judicial defendants” now ask the Court to dismiss plaintiffs’

claims against the Criminal District Court under Rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure.2 Defendants argue that the Orleans

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 92. The “judicial defendants” are the Orleans Parish Criminal District Court, its thirteen judges, and the judicial administrator, Robert Kazik.

Parish Criminal District Court is “not a person subject to suit under § 1983.”3 Although this argument appears limited to whether the court may be sued for civil rights violations under section 1983, the cases on which defendants’ rely pertain to whether an entity may be sued at all—that is, whether the court is a “person” with “capacity to sue or be sued” under state law. See generally Fed. R. Civ. P. 17(b). Regardless, defendants also argue that the court is entitled to immunity under the Eleventh Amendment.4
Courts in this and other circuits routinely hold that state courts are immune from suit under the Eleventh Amendment. See, e.g., Jefferson v. La. State Supreme Court, 46 F. App’x 732, *1 (5th Cir. 2002) (“The Eleventh Amendment clearly bars [plaintiff’s] § 1983 claims against the Louisiana Supreme Court, which is a branch of Louisiana’s state government.”); Bourgeois v. Par. of Jefferson, 20 F.3d 465, *1 (5th Cir. 1994) (holding that the Orleans Parish Civil District Court is “an agency of the state” entitled to Eleventh Amendment immunity); Summers v. Louisiana, No. 13-4573, 2013 WL 3818560, at *4 (E.D. La. July 22, 2013) (holding that an official capacity claim against a state court judge “would in reality be a claim against the state
3 R. Doc. 92-1 at 3. 4 Id. at 1.

itself, and . . . would be barred by the Eleventh Amendment”); Wilkerson v. 17th Judicial Dist. Court, No. 08-1196, 2009 WL 249737, at *4 (E.D. La. Jan. 30, 2009) (“It is clear that the Eleventh Amendment bars § 1983 claims against a state court.”); Rackley v. Louisiana, No. 07-504, 2007 WL 1792524, at *3 (E.D. La. June 21, 2007) (“[T]he Eleventh Amendment likewise bars § 1983 claims against a state court.”); see generally Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997) (noting that state courts are not “persons” under section 1983 and are otherwise immune from suit as an arm of the state government); Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995) (holding that Oklahoma Court of Criminal Appeals is immune from suit under Eleventh Amendment as “a governmental entity that is an arm of the state”); Landers Seed Co., Inc. v. Champaign Nat’l Bank, 15 F.3d 729, 731-32 (7th Cir. 1994) (“The Eleventh Amendment, however, bars federal suits against state courts and other branches of state government[.]”); Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993) (“Courts are not persons within the meaning of 42 U.S.C. § 1983, and, if they were, the action would be barred by the Eleventh Amendment anyway.”).
Accordingly, the Court GRANTS defendants’ motion to dismiss for lack of subject matter jurisdiction and dismisses plaintiffs’ claims against the Orleans Parish Criminal District Court. The Court also dismisses plaintiffs’

claims against the court’s Judicial Administrator, Robert Kazik, in his official capacity because when a civil rights plaintiff’s claims against an entity “fail for a jurisdictional, procedural, or pleading defect,” any official capacity claim against an individual representative of that entity also fails. See Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000) (collecting cases). The only remaining claims against the “judicial defendants” are the declaratory relief claim against Kazik, in his individual capacity,5 and the declaratory relief claims against the thirteen Criminal District Court judges.
New Orleans, Louisiana, this __1_1_th___ day of May, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
5 See R. Doc. 119 at 28.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors, maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The “judicial defendants” now ask the Court to dismiss plaintiffs’ Due

Process claims for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6).2 Defendants argue that their imposition of court costs

on state-court criminal defendants does not violate the Due Process Clause

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 108. The “judicial defendants” are the Orleans Parish Criminal District Court, its thirteen judges, and the judicial administrator.

because plaintiffs did not allege that any of the Criminal District Court judges was "tempted to forget the burden of proof" required for conviction during the named plaintiffs’ substantive criminal prosecutions.
As the Court has observed, plaintiffs do not complain about defendants’ imposing court costs as part of the sentences for state-court criminal defendants.3 Plaintiffs challenge the manner in which defendants collect court costs, after the costs are validly imposed, from indigent defendants who fail to pay. Thus, defendants’ arguments—that the judges’ ability to assess court costs against convicted defendants does not unconstitutionally infringe upon the fairness of the defendants’ prosecutions—miss the point, which defendants concede in their reply brief.4 Accordingly, the Court DENIES the motion.
New Orleans, Louisiana, this __1_1_th___ day of May, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
3 See generally R. Doc. 109; R. Doc. 111; R. Doc. 119. 4 R. Doc. 118 at 2 n.2.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO: 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights action under 42 U.S.C. § 1983 seeking to declare the manner in which the Orleans Parish Criminal District Court collects post-judgment court costs from indigent debtors unconstitutional. According to plaintiffs, the Criminal District Court and other, related actors maintain a policy of jailing criminal defendants who fail to pay their court costs solely because of their indigence.1 Sheriff Gusman now asks the Court to dismiss plaintiffs' claims against him under Federal Rule of Civil Procedure 12(b)(6). Sheriff Gusman argues that plaintiffs' allegations are conclusory and unsupported by facts demonstrating that plaintiffs are entitled to relief. Sheriff Gusman also argues

1 See generally R. Doc. 7 (Plaintiffs' First Amended Class Action Complaint).

that his office is legally required to execute the arrest warrants and enforce the bail bond fee statutes challenged in plaintiffs' First Amended Complaint.2 For the following reasons, the Court grants the motion.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the Orleans Parish Criminal District Court, its judges and judicial administrator, and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment "offenses" in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal "Collections Department," informally called the "fines and fees" department, that oversees the collection of court debts from former criminal defendants. The "typical" case allegedly proceeds as follows.
2 R. Doc. 12. Sheriff Gusman also argues that a Fifth Circuit case, Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003), forecloses plaintiffs' claim that defendants' "scheme of money bonds" to fund judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendment. Because the Court resolves Sheriff Gusman's motion on other grounds, the Court does not reach this particular argument and does not address plaintiffs' constitutional challenge to the funding system established in Louisiana Revised Statutes §§ 13:1381.5 and 22:822.
2

When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally "indigent," which means they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are legally indigent.3 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge at the Criminal District Court for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the court may assess against the criminal defendants various "court costs." These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge's discretion. According to plaintiffs, the discretionary assessments "fund the District Attorney's office, the Public Defender, and the Court[,]" which rely on these collections "to fund their operations and to pay employee salaries and extra benefits."4 Plaintiffs allege
3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88.
3

that the Criminal District Court judges impose court costs without inquiring into the criminal defendants' ability to pay.5
If the criminal defendants cannot immediately pay in full, the Criminal District Court judges allegedly direct them to the Collections Department, or "fines and fees." There, a Collections Department employee allegedly imposes, at his discretion and without inquiring into a defendant's ability to pay, a payment schedule--usually requiring a certain amount per month.6 Plaintiffs contend that Collections Department employees also warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Collections Department employees allegedly refuse to accept anything less than full payment.7
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant's arrest by forging a judge's name.8 According to plaintiffs, the Collections Department often issues these warrants "years after a purported nonpayment," and the
5 Id. at 23 ¶ 91. 6 Id. at 27-28 ¶ 103. 7 Id. at 28 ¶ 106. 8 Id. at 29 ¶ 109.
4

warrants are "routinely issued in error" or without regard to a debtor's indigence.9
Plaintiffs also allege that each Collections Department arrest warrant is "accompanied by a preset $20,000 secured money bond required for release."10 According to plaintiffs, defendants' adherence to this "automatic $20,000 secured money bond" requirement results from defendants' financial interest in state-court arrestees' paying for their release.11 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney's office, the Orleans Public Defenders' office, and the Orleans Parish Sheriff each collect 0.4% of each bond.12
When criminal defendants are arrested for nonpayment, they allegedly are "routinely told" that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount "unilaterally determine[d]" by the Collections Department.13 As a result, these indigent debtors allegedly "languish" in
9 Id. at ¶ 110. 10 Id. at ¶ 113. 11 Id. at 21-22 ¶ 88. 12 Id. at 22 ¶ 88. 13 Id. at 30 ¶ 114.
5

prison "indefinite[ly]" because they cannot afford to pay any of the foregoing amounts.14 Plaintiffs contend that although "arrestees are eventually brought to court," defendants "have no set policy or practice" regarding how long arrestees await a hearing. According to plaintiffs, indigent debtors "routinely" spend a week or more in prison.15 Plaintiffs allege that some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have "no opportunity to contest the debt or the jailing."16
When criminal defendants are brought to court, the Criminal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them "on threat of future arrest and incarceration" if they do not promptly pay the Collections Department.17 At these brief "failure-to-pay hearings," the judges do not consider the debtors' abilities to pay.18
Plaintiffs contend that these practices are unconstitutional under the Fourth Amendment and the Due Process and Equal Protection clauses of the Fourteenth Amendment.
14 Id. at ¶ 115. 15 Id. 16 Id. at ¶ 114. 17 Id. at ¶ 116. 18 Id.
6

B. Parties The named plaintiffs in the First Amended Complaint are six individuals who were defendants in the Orleans Parish Criminal District Court-Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell.19 The facts pertaining to the named plaintiffs, as alleged in their complaint, are as follows. The Criminal District Court appointed counsel from the Orleans Public Defenders to represent each of the named plaintiffs, except Reynaud Variste, during their criminal proceedings.20 Thus, the court must have determined Cain, Brown, Reynajia Variste, Long, and Maxwell to be legally indigent under Louisiana Revised Statutes §15:175.21 Reynaud Variste appears to have retained private counsel.22
19 Id. at 7 ¶ 7. 20 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) ("Court appointed Alex Liu, OPD."), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) ("Court appointed Seth Wayne, OPD."), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) ("Court appointed Lindsey Samuel, OPD."), 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) ("Court appointed Jerrod Thompson-Hicks, OIPD."); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) ("Court appointed Anna fecker, OIDP."). 21 See R. Doc. 7 at 5. 22 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 09/2/2012) ("Defendant must retain private counsel.").
7

With the assistance of counsel, all of the named plaintiffs pleaded guilty to their respective criminal charges, which include theft,23 battery,24 drug possession,25 "simple criminal damage,"26 and disturbing the peace.27 At plaintiffs' sentencings, the presiding judges imposed terms of imprisonment, which were often suspended, as well as terms of active or inactive probation. In addition, the judges assessed against plaintiffs various court costs-whether restitution, fines, and/or discretionary fees and costs. At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs.28
Plaintiffs now sue the City of New Orleans for hiring the Criminal District Court's Collection Department workers, as well as the police officers who execute the allegedly invalid arrest warrants.29 Plaintiffs also sue Sheriff Marlin Gusman, in his official capacity, for "unconstitutionally detain[ing]
23 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 24 Id. at 12 (Reynajia Variste Guilty Plea). 25 Id. at 22 (Reynaud Variste Guilty Plea). 26 Id. at 28 (Vaness Maxwell Guilty Plea). 27 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 28 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 05/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 03/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 07/29/2011). 29 R. Doc. 7 at 7 ¶ 8.
8

impoverished people indefinitely because of their inability to . . . pay[] for their release."30 In addition, plaintiffs sue the Orleans Parish Criminal District Court31 for its role in managing and funding the Collections Department, and the court's Judicial Administrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Department.32 Finally, plaintiffs name as defendants every judge at the Criminal District Court-thirteen in all-because they allegedly supervise the Collections Department employees and have failed to provide the parish's criminal defendants with constitutionally-required process before imprisoning people for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.33
C. Plaintiffs' Claims for Relief Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, as well as violations of Louisiana tort law. Plaintiffs seek damages (including attorneys'
30 Id. at 8 ¶ 12. 31 This Court dismissed the Criminal District Court as a defendant on May 11, 2016. R. Doc. 123. 32 Id. at 7-8 ¶¶ 9-10. The Court also dismissed all claims against Kazik, except plaintiffs' claim against Kazik, in his individual capacity, for declaratory relief. R. Doc. 123. 33 Id. at 8 ¶ 13.
9

fees) and an injunction against all defendants, except the judges. Plaintiffs also seek a declaratory judgment regarding the constitutionality of defendants' practices.34
The Court summarizes plaintiffs' allegations, as articulated in the First Amended Complaint, as follows:
(1) Defendants' policy of issuing and executing arrest warrants for nonpayment of court costs is unconstitutional under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment;
(2) Defendants' policy of requiring a $20,000 "fixed secured money bond" for each Collections Department warrant (issued for nonpayment of court costs) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment;
(3) Defendants' policy of indefinitely jailing indigent debtors for nonpayment of court costs without a judicial hearing is
34 Only Cain, Brown, Reynajia Variste, and Maxwell's claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lack standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 19-21.
10

unconstitutional under the Due Process Clause of the Fourteenth Amendment; (4) Defendants' "scheme of money bonds" to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendment. To the extent defendants argue this scheme is in compliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, which govern the percentage of each surety bond that the judicial actors receive, those statutes are unconstitutional; (5) Defendants' policy of jailing indigent debtors for nonpayment of court costs without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment; (6) Defendants' policy of jailing and threatening to imprison criminal defendants for nonpayment of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it imposes unduly harsh and punitive restrictions on debtors whose creditor is the State, as compared to debtors who owe money to private creditors;
11

(7) Defendants' conduct constitutes wrongful arrest under Louisiana law; and
(8) Defendants' conduct constitutes wrongful imprisonment under Louisiana law.
D. Sheriff Gusman's Motion to Dismiss Sheriff Gusman now moves to dismiss plaintiffs' claims against him under Federal Rule of Civil Procedure 12(b)(6).35 Sheriff Gusman argues that plaintiffs' allegations against him are conclusory and insufficient to state a claim upon which relief can be granted.36 He further argues that the Sheriff's Office is legally required to execute Collection Department arrest warrants, to detain arrestees who do not post bail, and to collect and distribute bail bond fees pursuant to Louisiana Revised Statutes §§ 13:1381.5 and 22:822. Thus, Sheriff Gusman contends, these activities cannot give rise to a claim against the Sheriff's Office under 42 U.S.C. § 1983.37
35 R. Doc. 12. 36 Id. at 3-6. 37 Id. at 6-9, 11-15. Sheriff Gusman also argues that a Fifth Circuit case, Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003), forecloses plaintiffs' claim that defendants' "scheme of money bonds" to fund judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendment. Because the Court resolves Sheriff Gusman's motion on other grounds, the Court does not reach this argument and does not address plaintiffs' constitutional challenge to the funding system established in Louisiana Revised Statutes §§ 13:1381.5 and 22:822.
12

II. LEGAL STANDARD 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." Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a "sheer possibility" that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an
13

insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.
III. DISCUSSION With few exceptions, the First Amended Complaint directs its allegations
not towards Sheriff Gusman, or any other individual or public body, but towards "defendants" as a group. Rather than identifying specific acts of misconduct by specific defendants, the First Amended Complaint rests largely on allegations of collective wrongdoing by all eighteen defendants. For instance, plaintiffs allege that "[d]efendants have developed a policy, pattern, and practice of advocating for and implementing high bonds, fines, costs and fees without any constitutional basis and any meaningful inquiry into a person's ability to pay, even when they know the person is indigent."38 They further allege that "[d]efendants are aware of these open policies and practices and yet allow them to continue."39 Similar allegations pervade the First Amended Complaint.40
38 R. Doc. 7 at 22 ¶ 89. 39 R. Doc. 7 at 29 ¶ 111. 40 See, e.g., id. at 6 ¶ 2 ("Defendants act in concert to implement a regime of debt collection . . . that deliberately ignores longstanding and constitutional protections."); id. at 30 ¶ 117 ("The Defendants' policy and practice is never to allow court debtors to enjoy any of the civil judgment protections offered to every judgment debtor under
14

This pleading structure--lumping all defendants together and asserting identical allegations as to each, without distinction--largely prevents the Court from discerning which defendants are allegedly responsible for which allegedly unlawful actions. As the Seventh Circuit recently noted, "liability is personal." Bank of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). Because the notice pleading requirement of the Federal Rules of Civil Procedure entitles "each defendant . . . to know what he or she did that is asserted to be wrongful," allegations based on a "theory of collective responsibility" cannot withstand a motion to dismiss. Id. (affirming dismissal of complaint alleging that collectively responsibility as to all defendants); see also Zola H. v. Snyder, No. 12-14073, 2013 WL 4718343, at *7 (E.D. Mich. Sept. 3, 2013) (dismissing complaint that lumped defendants together and failed "to impute concrete acts to specific litigants"); Petri v. Kestrel Oil & Gas Properties, L.P., No. CIV.A. H-09-3994, 2011 WL 2181316, at *7 (S.D. Tex. June 3, 2011) ("[T]he remaining claims against all Defendants here are not adequately pleaded under . . . Twombly and Iqbal and their progeny. Defendants . . . are entitled to a more definite statement to provide them with adequate notice of the claims against
Louisiana law."); id. at 38 ¶ 144 ("The Defendants' policy and practice is to issue and execute arrest warrants for those debtors who have not paid old court debts solely based on nonpayment.").
15

them, as well as factual pleading distinguishing plausible claims against each Defendant individually.").
Accordingly, in evaluating Sheriff Gusman's motion to dismiss, the Court looks only to well-pleaded facts concerning the Sheriff's alleged misconduct. The Court disregards bare assertions of collective responsibility, unsupported by concrete factual allegations. See Iqbal, 566 U.S. at 678 ("Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" (quoting Twombly, 550 U.S. at 557)).
The entirety of plaintiffs' factual allegations against Sheriff Gusman, rather than all "defendants," are as follows: • Sheriff Gusman enforces Collections Department warrants by detaining
individuals who are arrested for nonpayment of court costs. Individuals who are unable to post the standard $20,000 secured money bond are detained indefinitely, often for a period of days or weeks.41 • On one occasion, plaintiff Alana Cain asked jail staff employed by Sheriff Gusman whether she could pay the Collections Department using money in her possession. Jail staff responded that she could not and "that she had a $20,000 secured money bond pursuant to standard policy."42 When Cain asked when she would go to court, "jail staff told her that
41 R. Doc. 7 at 8 ¶ 12 ("Orleans Parish Sheriff Marlin Gusman operates the local jail and unconstitutionally detains impoverished people indefinitely because of their inability to make a financial payment for their release."); see also id. at 21 ¶ 86 (alleging that "proceedings are eventually held days or weeks" after an indigent debtor's arrest).
42 Id. at 10 ¶ 22. 16

someone from her family had to call the court to get her placed on the docket or else she would not get a court date."43 • Pursuant to Louisiana Revised Statute § 22:822, Sheriff Gusman collects an "annual license fee" fee that surety companies must pay with every appearance bond submitted in Orleans Parish, including bonds for individuals who are arrested for failure to pay outstanding court costs.44 • Pursuant to Louisiana Revised Statutes §§ 22:822 and 13:1381.5, Sheriff Gusman keeps a percentage of each annual license fee for his office's operating fund, and he distributes the remainder to the Criminal District Court, the Criminal District Court's judicial expense fund, the district attorney's operating fund, and the indigent defender's program.45 With these allegations in mind, the Court considers the sufficiency of plaintiffs' section 1983 and state-law claims against Sheriff Gusman. A. Section 1983 Plaintiffs sue Sheriff Gusman in his official capacity. As the Fifth Circuit has noted, "[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent." Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Thus, plaintiffs' official-capacity claims against Sheriff Gusman are actually claims against the Orleans Parish Sheriff's Office itself. See Bean v. Pittman, No. CIV.A. 14-2210, 2015 WL
43 Id. at 11 ¶ 23. 44 Id. at 6 ¶ 3. 45 R. Doc. 7 at 40-41 ¶ 152; see also La. Rev. Stat. §§ 22:822 and 13:1381.5 (imposing annual licensing fee and providing for its distribution among the named entities).
17

350284, at *2 (E.D. La. Jan. 26, 2015); Picard v. Gusman, Civ. Action No. 12–1966, 2012 WL 6504772, at *4 (E.D. La. Nov. 26, 2012). Because the Sheriff's Office is a municipal entity, plaintiffs' section 1983 claims against Sheriff Gusman must satisfy the requirements outlined in Monell v. Department of Social Services, 436 U.S. 658 (1978). Although plaintiffs suggest that Monell governs only their claims for monetary relief,46 Monell's principles apply to all section 1983 claims against municipal defendants, regardless of whether the plaintiff seeks money damages or prospective relief, such as an injunction or a declaratory judgment. See Los Angeles Cty. v. Humphries, 562 U.S. 29, 36-37 (2010) ("The language of § 1983 read in light of Monell . . . explains why claims for prospective relief, like claims for money damages, fall within the scope of the 'policy or custom' requirement.").47
46 R. Doc. 35 at 2 (distinguishing between plaintiffs' damages claims against Sheriff Gusman and their claims for declaratory and injunctive relief); id. at 5 (same).
47 Plaintiffs' reliance on Ex parte Young, 209 U.S. 123 (1908) and Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980) is misplaced. Those cases establish an exception to the sovereign immunity that states enjoy under the Eleventh Amendment, which permits plaintiffs to sue state officials for prospective relief. See Saltz v. Tenn. Dep't of Emp't Sec., 976 F. 2d 966, 968 (5th Cir. 1992) (noting that for Ex parte Young to apply, the "suit must be brought against individual persons in their official capacities as agents of the state and the relief sought must be declaratory or injunctive in nature and prospective in effect"). They have no bearing on Monell's standard for liability in a section 1983 claim against municipalities--which, unlike states and state officials sued in their official capacities, are not entitled to Eleventh Amendment immunity. See Rounds v. Clements, 495 F. App'x 938, 941 (10th Cir. 2012) (distinguishing Ex parte Young from Monell).
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Under Monell, to state a section 1983 claim against a municipality, a plaintiff must allege the existence of (1) an official policy or custom, of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "moving force" is that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010). As the Fifth Circuit has noted, these elements are necessary "to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citations omitted).
The "official policy or custom" may be "an actual policy, regulation or decision that is officially adopted and promulgated by lawmakers or others with policymaking authority." Valle, 613 F.3d at 542. It may also be "a persistent, widespread practice which, although not officially promulgated, is so common and well settled as to constitute a custom that fairly represents municipal policy." Esteves v. Brock, 106 F.3d 674, 677 (citing Monell, 436 U.S. at 694). Importantly, however, "[a] plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity." Colle v. Brazos Cty., Tex., 981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No. 09–7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23, 2009). Rather, he must identify the policy or custom which allegedly
19

caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 2003).
As to the second element, "[a]ctual or constructive knowledge of [a] custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policymaking authority." Valle, 613 F.3d at 542. (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). Finally, to satisfy the "moving force" element, "a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)). In other words, "the plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Id. (quoting Brown, 520 U.S. at 411).
Here, plaintiffs have not identified any policy or custom attributable to the Orleans Parish Sheriff's Office that caused the alleged Fourth and Fourteenth Amendment violations. Most of plaintiffs' allegations center on the policies and alleged wrongdoing of entities other than Sheriff's Office. For instance, plaintiffs allege that "defendants" issue arrest warrants for
20

nonpayment of court costs without inquiring into the debtors' ability to pay and that they require a $20,000 "fixed secured money bond" for every Collections Department warrant. Although plaintiffs level these allegations against "defendants" as a group, the alleged misconduct involves judicial functions, such as the issuance of warrants and the setting of bail. See La. Code Crim. Proc. art. 202 (authorizing magistrates to issue arrest warrants); La. Code Crim. Proc. art. 333 (authorizing judges and magistrates to fix bail "throughout their several territorial jurisdictions"). Absent a plausible allegation that the Sheriff's Office exercises policymaking authority in these domains, these allegations fail to state an official-capacity section 1983 claim against Sheriff Gusman. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) ("[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business."); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) ("[M]unicipal liability under § 1983 attaches where--and only where--a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.") (emphasis added).
21

Plaintiffs' allegation that "[d]efendants' standard policy is to let arrestee debtors languish in prison indefinitely" is unavailing for the same reason.48 While the parish sheriff is undoubtedly "the keeper of the public jail of his parish," See La. Rev. Stat. §§ 13:5539(C), 15:704, plaintiffs do not contend that the Sheriff's Office detains indigent debtors on its own initiative. Instead, their claim is that the Sheriff's Office holds indigent debtors pursuant to Collections Department warrants bearing the signatures of Criminal District Court judges. Plaintiffs allege no facts--and cite no law--indicating that the Sheriff's Office has authority to refuse custody of individuals arrested on Collections Department warrants or that the Sheriff can release detainees who fail to post bond without a court order. Nor is there any plausible allegation that the Sheriff's Office is authorized to schedule court appearances or otherwise impact the judicial process affecting detainees. Thus, plaintiffs fail to allege that a policy or practice attributable to the Sheriff's Office is the moving force behind the alleged constitutional violations identified in the First Amended Complaint.
Plaintiffs' allegations concerning defendants' "money bond scheme" do not change this result. In Count Four of the First Amended Complaint,
48 R. Doc. 7 at 29 ¶ 112. 22

plaintiffs level a due process challenge against Louisiana Revised Statutes §§ 22:822 and 13:1381.5. Section 22:822 provides that "there shall be a fee on premiums for all commercial surety underwriters who write criminal bail bonds in the state of Louisiana." La. Rev. Stat. § 22:822(A). In Orleans Parish, the fee amounts to "three dollars for each one hundred dollars worth of liability underwritten," which the surety must pay to the parish sheriff upon submitting a bond for the release of a person on bail. Id. at § 22:822(A)(2). Payment is mandatory and non-negotiable: "[f]ailure to pay such fees shall prevent the sheriff from accepting the appearance bond and power of attorney." Id. Once the sheriff receives the surety's fee, he or she must distribute the proceeds according to a detailed statutory formula. In Orleans Parish, the distributions are as follows: 33.33% to the Criminal District Court, 26.67% to the Criminal District Court's judicial expense fund, 13.33% to the sheriff's operating fund, 13.33% to the district attorney's operating fund, 13.33% to the indigent defender's program. La. Rev. Stat. §§ 22:822(B)(3), 13:1381.5. Plaintiffs argue that this system is unconstitutional because it gives judges an economic incentive to set high bail amounts to increase their own revenues. They further argue that because the Sheriff's Office enforces the relevant statutes--by collecting and distributing sureties' fees--Sheriff Gusman is an appropriate party to defend plaintiffs' constitutional challenge.
23

Plaintiffs' argument rests on the premise that a municipal defendant may be held liable under section 1983 for enforcing a state statute, even though the statute mandates a particular course of action. The Fifth Circuit has rejected this premise as inconsistent with Monell's requirement that a municipal policy be the "moving force" behind the constitutional violation. In Familias Unidas v. Briscoe, the Fifth Circuit held that a county was not liable for a county judge's enforcement of a Texas education statute that compelled an organization to disclose the names of members who were boycotting public schools. 619 F.2d 391, 404 (5th Cir. 1980). The court reasoned that the judge's "duty in implementing [the statute], much like that of a county sheriff in enforcing a state law, may more fairly be characterized as the effectuation of the policy of the State of Texas . . . for which the citizens of a particular county should not bear singular responsibility." Id.; see also Crane v. State of Tex., 759 F.2d 412, 430 n. 19 (5th Cir.), amended on denial of reh'g, 766 F.2d 193 (5th Cir. 1985) ("[L]ocal governments and their officials who act in conformance with a state statutory scheme will not be held liable for § 1983 damages if the scheme is later held unconstitutional."). Other courts have reached the same conclusion. See Bockes v. Fields, 999 F.2d 788, 791 (4th Cir. 1993) (holding that county board did not act in a policy-making capacity when it fired plaintiff because termination procedures and criteria were
24

prescribed by the state); Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (holding plaintiff's claim insufficient for Monell liability when plaintiff asserted that municipality had a policy of enforcing state statutes, stating that "[i]t is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.").
The same reasoning applies here. Louisiana Revised Statutes §§ 22:822 and 13:1381.5 require parish sheriffs to collect fees on bail bonds and distribute the proceeds according to a statutory formula. By their plain language, these statutes leave no room for discretionary enforcement. The statutes therefore reflect Louisiana law, not the policy of the Orleans Parish Sheriff's Office. Thus, Sheriff Gusman's enforcement of the relevant provisions cannot be the basis for a section 1983 claim the Sheriff's Office. In light of this ruling, the Court need not address plaintiffs' constitutional challenge to the statutes to resolve Sheriff Gusman's motion to dismiss.
In sum, for all its allegations of collective wrongdoing by all eighteen defendants, plaintiffs do not allege that an official custom or policy attributable to the Sheriff's Office caused their constitutional injuries. Plaintiffs' section 1983 claims against Sheriff Gusman in his official capacity
25

must therefore be dismissed. See, e.g., Simmons v. Mesquite Indep. Sch. Dist., CIV. A. No. 3:03–CV–2665, 2004 WL 1171189, at *5 (N.D. Tex. May 26, 2004) ("Because plaintiffs fail to allege that they were damaged by the action of an official policymaker or defendant's policy, practice, or custom, plaintiffs have failed to state a claim under § 1983."); Richardson v. Sewerage & Water Bd., CIV. A. No. 95–3033, 1996 WL 288275, at *3 (E.D. La. May 30, 1996) (dismissing claim against a legislatively-created political subdivision of Louisiana, because plaintiff failed to identify an official policy or custom).
B. State-Law Claims In addition to their section 1983 claims, plaintiffs also allege that "defendants" are liable for wrongful arrest (count seven) and wrongful imprisonment (count eight) under Louisiana law. Sheriff Gusman challenges plaintiffs' ability to state a claim for relief under the Louisiana jurisprudence.49 To start, "wrongful arrest" and "wrongful imprisonment" are not separate causes of action. See Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 2006) (using "wrongful arrest" and "the tort of false imprisonment" interchangeably); Parker v. Town of Woodworth, 86 So. 3d
49 R. Doc. 12-1 at 9-11. 26

141, 144 (La. App. 3 Cir. 2012) ("[F]alse arrest is not distinguished as a separate tort from false imprisonment.").
Plaintiffs fail to state a plausible claim for relief under Louisiana law due to plaintiffs' penchant for group pleading and theory of collective responsibility, as the Court discussed earlier. In addition, construing plaintiffs' complaint most generously--which this Court need not do because plaintiffs are represented by counsel--the only potential theory of liability against Sheriff Gusman under Louisiana law is vicarious liability or respondeat superior for the conduct of his jail employees, Orleans Parish sheriff's deputies and jail staff. As Sheriff Gusman argues in his motion to dismiss, and as this Court earlier explained, nothing in plaintiffs' complaint indicates that the Collections Department arrest warrants were facially invalid. Rather, plaintiffs' complaint and incorporated state-court hearing transcript indicate that the warrants appear to be issued under the authority of the Criminal District Court and appear to bear the signatures of court judges. In Louisiana, an arresting officer cannot be liable for false arrest when he acts pursuant to a facially valid arrest warrant. Winn v. City of Alexandria, 685 So. 2d 281, 283 (La. App. 3 Cir. 1996); see also McMasters v. Dep't of Police, 172 So. 3d 105, 116 (La. App. 4 Cir. 2015) ("[P]robable cause to arrest 'is an absolute defense to any claim against police officers for wrongful arrest, false
27

imprisonment, or malicious prosecution.'" (quoting Brown v. City of Monroe, 135 So. 3d 792, 796 (La. App. 2 Cir. 2014)); Dyas v. Shreveport Police Dep’t, 136 So. 3d 897, 903 (La. App. 2 Cir. 2014) ("False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority."). If Sheriff's Office personnel have not acted tortiously, Sheriff Gusman, whose liability is only "secondary or derivative," cannot be liable under respondeat superior. Griffin v. Kmart Corp., 776 So. 2d 1226, 1232 (La. App. 5 Cir. 2000). Plaintiffs therefore fail to state a claim for false arrest against Sheriff Gusman.
28

IV. CONCLUSION For the foregoing reasons, the Court GRANTS Sheriff Gusman's motion
to dismiss. New Orleans, Louisiana, this __13_th__ day of May, 2016. _____________________________ SARAH S. VANCE UNITED STATES DISTRICT JUDGE
29

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court collects post-judgment court costs

from indigent debtors unconstitutional. According to plaintiffs, the Criminal

District Court and other, related actors maintain a policy of jailing criminal

defendants who fail to pay their court costs solely because of their indigence.1

The City of New Orleans now asks the Court to dismiss plaintiffs’

claims against it under Federal Rule of Civil Procedure 12(b)(6).2 The City

argues that plaintiffs lodge general allegations against all “defendants” and

state only legal conclusions. Because plaintiffs have not plausibly stated a

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 58.

Monell claim against the City or a false arrest claim under Louisiana law, the Court grants the motion.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege, on behalf of
themselves and those similarly situated, that the City of New Orleans, the Orleans Parish Criminal District Court, its judges and judicial administrator, and Orleans Parish Sheriff Marlin Gusman maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,” which means they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are

legally indigent.3 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge at the Criminal District Court for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the court may assess against the criminal defendants various “court costs.” These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”4 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.5
If the criminal defendants cannot immediately pay in full, the Criminal District Court judges allegedly direct them to the Collections Department, or “fines and fees.” There, a Collections Department employee allegedly imposes, at his discretion and without inquiring into a defendant’s ability to
3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88. 5 Id. at 23 ¶ 91.

pay, a payment schedule—usually requiring a certain amount per month.6 Collections Department employees also allegedly warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Plaintiffs contend that Collections Department employees allegedly refuse to accept anything less than full payment.7
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s name.8 According to plaintiffs’ allegations, the Collections Department often issues these warrants “years after a purported nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.9
Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for release.”10 According to plaintiffs, defendants’ adherence to this “automatic $20,000 secured money bond” requirement results from defendants’
6 Id. at 27-28 ¶103. 7 Id. at 28 ¶ 106. 8 Id. at 29 ¶ 109. 9 Id. at ¶ 110. 10 Id. at ¶ 113.

financial interest in state-court arrestees’ paying for their release.11 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.12
Plaintiffs allege that when criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]” by the Collections Department.13 As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.14 Although “arrestees are eventually brought to court,” plaintiffs allege that defendants “have no set policy or practice” regarding how long arrestees must await a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.15 Plaintiffs
11 Id. at 21-22 ¶88. 12 Id. at 22 ¶88. 13 Id. at 30 ¶114. 14 Id. at ¶115. 15 Id.

allege that some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”16
When criminal defendants are brought to court, the Criminal District Court judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.17 At these brief “failure-to-pay hearings,” the judges allegedly do not consider the debtors’ abilities to pay. 18
Plaintiffs contend that these practices are unconstitutional under the Fourth and Fourteenth Amendments.
B. Parties The named plaintiffs in the First Amended Complaint are six individuals who were defendants in the Orleans Parish Criminal District Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell.19
16 Id. at ¶114. 17 Id. at ¶116. 18 Id. 19 Id. at 7 ¶7.

The Criminal District Court appointed counsel from the Orleans Public Defenders to represent each of the named plaintiffs, except Reynaud Variste, during their criminal proceedings.20 Thus, the court must have determined that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent under Louisiana Revised Statutes §15:175.21 Reynaud Variste appears to have retained private counsel.22
With the assistance of counsel, all of the named plaintiffs pleaded guilty to their respective criminal charges, which include theft,23 battery,24
20 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP). 21 See R. Doc. 7 at 5. 22 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”). 23 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 24 Id. at 12 (Reynajia Variste Guilty Plea).

drug possession,25 “simple criminal damage,”26 and disturbing the peace.27 At plaintiffs’ sentencings, the presiding judges imposed terms of imprisonment, which were often suspended, as well as terms of active or inactive probation. In addition, the judges assessed against plaintiffs various court costs—whether restitution, fines, and/or discretionary fees and costs.28 At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs on a warrant issued by the court’s Collections Department.
Plaintiffs sue the City of New Orleans for hiring the Criminal District Court’s Collection Department workers and the police officers who execute the allegedly invalid arrest warrants.29 Plaintiffs also sue Sheriff Marlin Gusman, in his official capacity, for “unconstitutionally detain[ing]
25 Id. at 22 (Reynaud Variste Guilty Plea). 26 Id. at 28 (Vanessa Maxwell Guilty Plea). 27 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 28 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011). 29 R. Doc. 7 at 7 ¶8.

impoverished people indefinitely because of their inability to . . . pay[] for their release.”30 In addition, plaintiffs sue the Orleans Parish Criminal District Court for its role in managing and funding the Collections Department,31 and the court’s Judicial Administrator, Robert Kazik, in his individual and official capacities, because he is allegedly responsible for operating the Collections Department.32 Finally, plaintiffs name as defendants every judge at the Criminal District Court—thirteen in all— because they allegedly supervise the Collections Department employees and have failed to provide the parish’s criminal defendants with constitutionallyrequired process before imprisoning them for failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.33
C. Plaintiffs’ Claims for Relief Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, as well as
30 Id. at 8 ¶12. 31 This Court dismissed the Criminal District Court as a defendant on May 11, 2016. R. Doc. 123. 32 Id. at 7-8 ¶¶9-10. The Court also dismissed all claims against Kazik, except plaintiffs’ claim against Kazik, in his individual capacity, for declaratory relief. R. Doc. 123. 33 Id. at 8 ¶13.

violations of Louisiana tort law. Plaintiffs seek damages (including

attorneys’ fees) and an injunction against all defendants, except the judges.

Plaintiffs also seek a declaratory judgment regarding the constitutionality of

defendants’ practices.34

The Court summarizes plaintiffs’ claims as follows:

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

(2) Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3) Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

34 Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4) Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are

unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6) Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8) Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

II. LEGAL STANDARD 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.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter

to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.
III. DISCUSSION With few exceptions, plaintiffs’ First Amended Complaint directs its
allegations not towards the City, or any other individual or entity, but towards “defendants” as a group. Rather than identifying specific acts of misconduct by specific defendants, the First Amended Complaint rests largely on allegations of collective wrongdoing by all eighteen defendants. For instance, plaintiffs allege that “[d]efendants have developed a policy, pattern, and practice of advocating for and implementing high bonds, fines, costs and fees without any constitutional basis and any meaningful inquiry into a person's ability to pay, even when they know the person is indigent.”35 They further allege that “[d]efendants are aware of these open policies and
35 R. Doc. 7 at 22 ¶89.

practices and yet allow them to continue.”36 Similar allegations pervade the First Amended Complaint.
This pleading structure—lumping all defendants together and asserting identical allegations as to each, without distinction—largely prevents the Court from discerning which defendants are allegedly responsible for which allegedly unlawful actions. As the Seventh Circuit recently noted, “liability is personal.” Bank of Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). Because the notice pleading requirement of the Federal Rules of Civil Procedure entitle “each defendant . . . to know what he or she did that is asserted to be wrongful,” allegations based on a “theory of collective responsibility” cannot withstand a motion to dismiss. Id. (affirming dismissal of complaint alleging collectively responsibility as to all defendants); see also Zola H. v. Snyder, No. 12-14073, 2013 WL 4718343, at *7 (E.D. Mich. Sept. 3, 2013) (dismissing complaint that lumped defendants together and failed “to impute concrete acts to specific litigants”); Petri v. Kestrel Oil & Gas Properties, L.P., No. CIV.A. H-09-3994, 2011 WL 2181316, at *7 (S.D. Tex. June 3, 2011) (“[T]he remaining claims against all Defendants here are not adequately pleaded under . . . Twombly and Iqbal
36 Id. at 29 ¶ 111.

and their progeny. Defendants . . . are entitled to a more definite statement to provide them with adequate notice of the claims against them, as well as factual pleading distinguishing plausible claims against each Defendant individually.”).
Accordingly, in evaluating the City’s motion to dismiss, the Court looks only to well-pleaded facts concerning the City’s alleged misconduct. The Court disregards bare assertions of collective responsibility, unsupported by concrete factual allegations. See Iqbal, 566 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” (quoting Twombly, 550 U.S. at 557)).
The entirety of plaintiffs’ allegations against the City, rather than all “defendants,” are as follows:
• The Orleans Parish Criminal District Court and the City of New Orleans jointly fund the Collections Department as part of their efforts to supplement the City and the Court budgets with the debts collected from mostly indigent people.37
• Among other things, the City of New Orleans funds the hiring of the Collections Department employees who openly and as a matter of policy commit the violations at issue in this case. Moreover, the City of New Orleans police officers execute the Collections Department warrants even though the City knows or should know that the warrants
37 Id. at 6 ¶2.

are invalid and unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody.38
• In 2012, the Orleans Parish Criminal District Court judges objected to the transfer of misdemeanor cases to the Municipal Court because it meant that they would lose significant revenue. During one discussion at a City Council meeting, the Chief Municipal Court Judge responded to a discussion about this controversy: The judges should not be in the business of . . . making money . . . . We’re here to . . . dispense justice . . . . We’re not even supposed to be placed in that extremely conflicting position, as to be concerned about how many fines and fees we take in so that we can operate. You cannot place that burden on us any longer. It’s unfair . . . and it goes against the pledge we take when we take office.39
• The Court and the City have even agreed to fund extra positions in the Collections in order to maximize additional revenues from more people.40
In two footnotes, plaintiffs also allege:
• The Criminal District Court reported to the City Council in June 2015 that it was in the process of collaborating with the City of New Orleans Police Department and the District Attorney to implement a more efficient online warrant system.
• Despite the extra positions funded jointly by the Court and the City of New Orleans, the Court complained to the City Council in June 2015 that a shortage of funding for the Collections Department had forced it to float other employees to cover that and other areas of its administration. It noted that budget cuts had left it with one vacant position in the Collections Department. The Court made the same complaints to the City Council in previous years, even though the City
38 Id. at 7 ¶8.
39 Id. at 26 ¶98.
40 Id. at 29 ¶111.

has agreed each year jointly to fund additional Collections Department positions.41
With these allegations in mind, the Court considers the sufficiency of
plaintiffs’ section 1983 and state-law claims against the City.
A. Section 1983
As noted in plaintiffs’ complaint, the City of New Orleans is a municipal
government entity.42 To state a section 1983 claim against a municipal
entity, for both monetary and equitable relief, plaintiffs must satisfy the
requirements outlined in Monell.43 See Los Angeles Cty. v. Humphries, 562
U.S. 29, 36-37 (2010) (“The language of § 1983 read in light of Monell . . .
explains why claims for prospective relief, like claims for money damages,
fall within the scope of the ‘policy or custom’ requirement.”). Under Monell,
plaintiffs must allege the existence of (1) an official policy or custom, of which
(2) a policymaker can be charged with actual or constructive knowledge, and
41 Id. at n.24 & n.26. 42 Id. at 7 ¶8. 43 In their opposition, plaintiffs assert that “the City does not appear to dispute that it is a proper party for declaratory and injunctive relief.” R. Doc. 67 at 1. How plaintiffs arrive at this conclusion is unclear. In its motion to dismiss, the City argues that plaintiffs have not plausibly alleged sufficient facts to support a Monell claim, which is necessary to sustain a section 1983 action against a municipal entity. See R. Doc. 58-1. As noted, Monell applies regardless of whether the plaintiff seeks monetary or equitable relief.

(3) a constitutional violation whose “moving force” is that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010). These elements are necessary “to distinguish individual violations perpetrated by local government employees from those that can be fairly identified as actions of the government itself.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citations omitted). A municipal entity cannot be held liable under section 1983 on a theory of respondeat superior merely because it employs a tortfeasor. Monell, 436 U.S. at 694.
The “official policy or custom” may be “an actual policy, regulation or decision that is officially adopted and promulgated by lawmakers or others with policymaking authority.” Valle, 613 F.3d at 542. It may also be “a persistent, widespread practice which, although not officially promulgated, is so common and well settled as to constitute a custom that fairly represents municipal policy.” Esteves v. Brock, 106 F.3d 674, 677 (citing Monell, 436 U.S. at 694). Importantly, however, “[a] plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity.” Colle v. Brazos Cty., Tex., 981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No. 09–7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23, 2009). Rather, the plaintiff must identify the policy or custom which allegedly caused the deprivation of his constitutional rights. See, e.g.,

Murray v. Town of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 2003).
As to the second element, “[a]ctual or constructive knowledge of [a] custom must be attributable to the governing body of the municipality or to an official to whom that body has delegated policymaking authority.” Valle, 613 F.3d at 542 (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc)). Finally, to satisfy the “moving force” element, “a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. (quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)). In other words, “the plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Id. (quoting Brown, 520 U.S. at 411). “Deliberate indifference,” often described as a “high standard” or a “stringent test,” requires a municipal actor’s “disregard[ing] [the] known or obvious consequence” that a constitutional violation would result from his actions. Brown, 520 U.S. at 410; accord Valle, 613 F.3d at 542; Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001).

Here, plaintiffs have not identified any policy or custom attributable to the City of New Orleans that was the moving force behind the alleged Fourth and Fourteenth Amendment violations. Most of plaintiffs’ allegations center on the policies and alleged wrongdoing of entities other than the City. For instance, plaintiffs challenge the alleged policies of failing to inquire into a debtor’s ability to pay his court costs,44 issuing arrest warrants for nonpayment,45 imposing an “$20,000 secured money bond,”46 and “indefinitely” detaining indigent arrestees.47 Plaintiffs level these allegations against “defendants” as a group, but none of the policies identified in the complaint can be reasonably attributed to the City. See, e.g., La. Code Crim. Proc. art. 202 (authorizing judges to issue arrest warrants); La. Code Crim. Proc. art. 333 (authorizing judges to fix bail). Absent a plausible allegation that the City exercises policymaking authority in these areas, these allegations fail to state a section 1983 claim against the City. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials
44 Id. at 22-23 ¶¶89, 91. 45 Id. at 21 ¶¶85, 88. 46 Id. at ¶88; 47 Id. at 15 ¶ 47.

responsible under state law for making policy in that area of the city's
business.”); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)
(“[M]unicipal liability under § 1983 attaches where—and only where—a
deliberate choice to follow a course of action is made from among various
alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” (emphasis added)).
In opposition, plaintiffs characterize the City’s “using police officers to
execute unconstitutional warrants” or “permitting its police officers to
execute” these warrants as an additional municipal policy for which the City
may be liable. 48 The only allegation as to the City on this point is a single
sentence in a forty-four-page complaint. Plaintiffs allege that “the City of
New Orleans police officers execute the Collections Department warrants
even though the City knows or should know that the warrants are invalid and
48 Plaintiffs’ opposition brief also includes other allegations, not present in their complaint, regarding policies allegedly attributable to the City. “[I]t is axiomatic that a complaint cannot be amended by briefs in opposition to a motion to dismiss.” Becnel v. St. Charles Par. Sheriff’s Office, No. 15-1011, 2015 WL 5665060, at *1 (E.D. La. Sept. 24, 2015) (quoting In re Enron Corp. Sec., Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011) (collecting cases)). Because a Rule 12(b)(6) motion tasks the Court with “assess[ing] the legal sufficiency of the complaint,” the Court does not consider allegations that appear for the first time in plaintiffs’ briefing. Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012) (emphasis added).

unconstitutional and that arrestees will be subjected to the Defendants’ unconstitutional practices once in custody.”49 By plaintiffs own allegations, these arrest warrants are issued from the Criminal District Court and bear the signatures of the court judges. Other than referring to these warrants as “illegal,” “invalid,” or “unconstitutional,” in conclusory fashion, plaintiffs have not alleged any facts from which the Court can infer that these warrants, once issued, are facially deficient. In light of an officer’s legal duty to arrest someone on the basis of an outstanding warrant, see, e.g., Smith v. Gonzales, 670 F.2d 522, 527 (5th Cir. 1982), it is questionable whether the City’s “permitting” the New Orleans Police Department officers to perform their duties can constitute an official policy of the City. Plaintiffs fail to allege any facts, or to cite any law, indicating that the City has authority to prohibit police officers from carrying out their legal duties by executing outstanding arrest warrants. See Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (“It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.”).
49 Id. at 7 ¶8.

Further, plaintiffs fail to allege that the City acted with the requisite degree of culpability to satisfy Monell’s “moving force” element. Aside from sprinkling their complaint with legal buzzwords, such as “the City knows or should know,” plaintiffs have failed to plausibly allege any facts from which the Court can reasonably infer that the City disregarded known or obvious consequences of its conduct. See Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 442-43 (5th Cir. 2015) (finding phrases such as “knew or should have known” to be “too conclusory to survive a motion to dismiss”) (collecting cases). As noted, deliberate indifference is a high standard, and conclusory allegations or formulaic recitations of the legal elements will not suffice. See Iqbal, 556 U.S. at 678. Plaintiffs point to two allegations in their Complaint which they contend undoubtedly reveal that the City had actual knowledge of the Collections Department’s alleged practices and therefore chose to participate in the allegedly unconstitutional “scheme.” First, plaintiffs note that certain employees of the Collections Department testified at an evidentiary hearing in an ongoing criminal case, State v. Addison, at the Criminal District Court.50 Plaintiffs have not presented any facts from which this Court can reasonably infer that City policymakers learned the
50 R. Doc. 7 at 1, 29 n.25; R. Doc. 7, Exhibit 1.

substance of a single hearing in a single case pending before the court, which undisputedly maintains a busy docket. Second, plaintiffs allege, in a footnote, that the Criminal District Court “collaborat[ed]” with the New Orleans Police Department and the District Attorney “to implement a more efficient online warrant system.”51 From this, plaintiffs contend, “the only reasonable inference . . . is that [Criminal District Court] officials convinced the City that it was important to perpetuate and expand their collections work.”52 This inference, however, is implausible. These entities regularly perform complementary functions within the criminal justice system to request, issue, and execute arrest warrants for a host of state and local crimes. That the Court, the DA, and the police department allegedly worked to streamline the parish’s arrest warrant process does not suggest that these actors conspired to jail indigent court debtors in violation of the Constitution.
In sum, for all its allegations of collective wrongdoing by all eighteen defendants, plaintiffs fail to plausibly allege that an official policy attributable to the City of New Orleans caused their alleged constitutional
51 Id. aat 29 n.25. 52 R. Doc. 67 at 8.

injuries. Plaintiffs’ section 1983 claims against the City must therefore be dismissed. See, e.g., Simmons v. Mesquite Indep. Sch. Dist., CIV. A. No. 3:03–CV–2665, 2004 WL 1171189, at *5 (N.D. Tex. May 26, 2004) ("Because plaintiffs fail to allege that they were damaged by the action of an official policymaker or defendant's policy, practice, or custom, plaintiffs have failed to state a claim under § 1983.").
B. State-Law Claims In addition to their section 1983 claims, plaintiffs also allege that “defendants” are liable for wrongful arrest (count seven) and wrongful imprisonment (count eight) under Louisiana law. The City of New Orleans challenges plaintiffs’ ability to state a claim under the Louisiana jurisprudence.53 Plaintiffs neglected to reference any Louisiana law on this point in their opposition. To start, “wrongful arrest” and “wrongful imprisonment” are not separate causes of action. See Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 2006) (using “wrongful arrest” and “the tort of false imprisonment” interchangeably); Parker v. Town of Woodworth, 86 So. 3d
53 R. Doc. 58-1 at 21.

141, 144 (La. App. 3 Cir. 2012) (“[F]alse arrest is not distinguished as a separate tort from false imprisonment.”).
Plaintiffs fail to state a plausible claim for relief under Louisiana law due to plaintiffs’ penchant for group pleading and theory of collective responsibility, as the Court discussed earlier. In addition, construing plaintiffs’ complaint most generously—which this Court need not do because plaintiffs are represented by counsel—the only potential theory of liability against the City under Louisiana law is vicarious liability or respondeat superior for the conduct of its employees, officers of the New Orleans Police Department. As the City argues in its motion to dismiss and as this Court earlier explained, nothing in plaintiffs’ complaint indicates that the Collections Department arrest warrants were facially invalid. Rather, plaintiffs’ complaint and incorporated state-court hearing transcript indicate that the warrants appear to be issued under the authority of the Criminal District Court and appear to bear the signatures of court judges. In Louisiana, an arresting officer cannot be liable for false arrest when he acts pursuant to a facially valid arrest warrant. Winn v. City of Alexandria, 685 So. 2d 281, 283 (La. App. 3 Cir. 1996); accord McMasters v. Dep't of Police, 172 So. 3d 105, 116 (La. App. 4 Cir. 2015) ("[P]robable cause to arrest 'is an absolute defense to any claim against police officers for wrongful arrest, false

imprisonment, or malicious prosecution.'" (quoting Brown v. City of Monroe, 135 So. 3d 792, 796 (La. App. 2 Cir. 2014)); Dyas v. Shreveport Police Dep’t, 136 So. 3d 897, 903 (La. App. 2 Cir. 2014) (“False arrest and imprisonment occur when one arrests and restrains another against his will without a warrant or other statutory authority.”). If City employees have not acted tortuously, the City, as their employer, whose liability is only “secondary or derivative,” cannot be liable either. Griffin v. Kmart Corp., 776 So. 2d 1226, 1232 (La. App. 5 Cir. 2000). Therefore, plaintiffs false to state a claim for false arrest against the City.
IV. CONCLUSION For the foregoing reasons, the Court GRANTS the City’s motion to
dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
New Orleans, Louisiana, this __1_3_th___ day of May, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION: R(2)

ORDER AND REASONS

Named plaintiffs Alana Cain, Ashton Brown, Reynaud Variste,

Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights

action under 42 U.S.C. § 1983 seeking to declare the manner in which the

Orleans Parish Criminal District Court judges collect post-judgment court

costs from indigent debtors unconstitutional. According to plaintiffs, the

judges maintain a policy of jailing criminal defendants who fail to pay their

court costs solely because of their indigence.1

The “judicial defendants” now ask the Court to dismiss plaintiffs’

claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2

Defendants argue that the Criminal District Court judges are not legally

required to inquire into a state-court criminal defendant’s reasons for

1 See generally R. Doc. 7 (Plaintiffs’ First Amended Class Action Complaint).
2 R. Doc. 97.

nonpayment because the criminal defendant must affirmatively raise his indigence to excuse his failure to pay. Defendants also argue that indigence does not excuse nonpayment when the state-court criminal defendant agreed to pay court costs in his plea agreement with the State. Finally, defendants argue that named plaintiffs willfully failed to pay their court costs and that therefore the judges lawfully issued arrest warrants for plaintiffs’ nonpayment, regardless of their indigence. Finding that defendants’ arguments fail under the law and plaintiffs’ alleged facts, the Court denies defendants’ motion to dismiss.
I. BACKGROUND A. Factual Allegations In this section 1983 civil rights lawsuit, plaintiffs allege that the
Criminal District Court judges, among others, maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court courts. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.

When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,” which means they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175. According to plaintiffs, eight-five percent of the criminal defendants in Orleans Parish are legally indigent.3 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the judge may assess against the criminal defendants various “court costs.” These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court[,]” which rely on these collections “to fund their operations and to pay employee salaries and extra benefits.”4 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.5
3 R. Doc. 7 at 5. 4 Id. at 22-23 ¶ 88. 5 Id. at 23 ¶ 91.

If the criminal defendants cannot immediately pay in full, the judges allegedly direct them to the Collections Department, or “fines and fees.” There, a Collections Department employee allegedly imposes, at his discretion and without inquiring into a defendant’s ability to pay, a payment schedule—usually requiring a certain amount per month.6 Collections Department employees also allegedly warn the defendants that failure to pay the monthly amount, in full, will result in their arrests. Plaintiffs contend that Collections Department employees refuse to accept anything less than full payment.7
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s name.8 According to plaintiffs’ allegations, the Collections Department often issues these warrants “years after a purported nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.9
6 Id. at 27-28 ¶103. 7 Id. at 28 ¶ 106. 8 Id. at 29 ¶ 109. 9 Id. at ¶ 110.

Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for release.”10 According to plaintiffs’ allegations, the amount a debtor must pay to satisfy the $20,000 secured money bond is often more than the entirety of the debtor’s outstanding court costs.11 Plaintiffs allege that defendants’ adherence to this “automatic $20,000 secured money bond” results from defendants’ financial interest in state-court arrestees’ paying for their release.12 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.13
Plaintiffs allege that when criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]”
10 Id. at ¶ 113. 11 See id. at ¶ 47. 12 Id. at 21-22 ¶88. 13 Id. at 22 ¶88.

by the Collections Department.14 As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.15 Although “arrestees are eventually brought to court,” plaintiffs allege that defendants “have no set policy or practice” regarding how long arrestees must wait for a hearing. According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.16 Plaintiffs allege that some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”17
When criminal defendants are brought to court, the judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.18 The judges allegedly hold these brief “failure-to-
14 Id. at 30 ¶114. 15 Id. at ¶115. 16 Id. 17 Id. at ¶114. 18 Id. at ¶116.

pay hearings” without providing the debtors notice of the critical issues or
considering the debtors’ abilities to pay. 19
Plaintiffs contend that these practices are unconstitutional under the
Fourth and Fourteenth Amendments.
B. Parties
The named plaintiffs in the First Amended Complaint are six
individuals who were defendants in the Orleans Parish Criminal District
Court—Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste,
Thaddeus Long, and Vanessa Maxwell.20
The Criminal District Court appointed counsel from the Orleans Public
Defenders to represent each of the named plaintiffs, except Reynaud Variste,
during their criminal proceedings.21 Thus, the court must have determined
that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent
19 Id. 20 Id. at 7 ¶7. 21 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”) 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc.95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP).

under Louisiana Revised Statutes §15:175.22 Reynaud Variste appears to
have retained private counsel.23
With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, which include theft,24 battery,25
drug possession,26 “simple criminal damage,”27 and disturbing the peace.28
At plaintiffs’ sentencings, the presiding judges imposed terms of
imprisonment, which were often suspended, as well as terms of active or
inactive probation. In addition, the judges assessed against plaintiffs various
court costs—whether restitution, fines, and/or discretionary fees and costs.29
22 See R. Doc. 7 at 5. 23 R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”). 24 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 25 Id. at 12 (Reynajia Variste Guilty Plea). 26 Id. at 22 (Reynaud Variste Guilty Plea). 27 Id. at 28 (Vanessa Maxwell Guilty Plea). 28 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 29 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011).

At some point, all of the named plaintiffs were arrested for failing to pay outstanding court costs on a warrant issued by the court’s Collections Department.
Plaintiffs now sue, among others, every judge at the Criminal District Court—thirteen in all—because they allegedly supervise the Collections Department employees and have failed to provide the parish’s criminal defendants with constitutionally-required process before imprisoning them failure to pay court costs. Plaintiffs sue the judges only for declaratory relief.30
C. Plaintiffs’ Claims for Relief Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, as well as violations of Louisiana tort law.31
30 Id. at 8 ¶13. 31 Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.

The Court summarizes plaintiffs’ claims as follows:

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

(2) Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3) Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4) Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, which govern the percentage of each

surety bond that the judicial actors receive, those statutes are

unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6) Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8) Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

In moving for dismissal, defendants limit their arguments to plaintiffs’

claims that defendants unconstitutionally issue and execute arrest warrants

for nonpayment and unconstitutionally imprison court debtors without

meaningfully inquiring into their ability to pay.32 Accordingly, the Court limits its analysis to those claims.
II. LEGAL STANDARD 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.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. US Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal
32 See R. Doc. 97 at 1(“[Defendants] move this court for an order dismissing this action, particularly claims (a) & (d) in plaintiffs’ Request for Relief.”). Although defendants appear to ask the Court to dismiss plaintiffs’ complaint as a whole, defendants’ arguments are plainly limited to the claims stated above.

conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.
III. DISCUSSION In their First Amended Complaint, plaintiffs cite, in passing, Bearden
v. Georgia, 461 U.S. 660 (1983), as support for their constitutional challenges to defendants’ conduct. Because defendants’ motion to dismiss focuses on whether certain aspects of Bearden apply to this case, the Court begins its analysis with a brief discussion of two Supreme Court cases.
In Tate v. Short, the United States Supreme Court addressed a constitutional challenge to a state’s method of collecting fines from an indigent criminal defendant. 401 U.S. 395 (1971). The criminal defendant in Tate had accumulated fines for traffic offenses, offenses punishable only by fine. Id. at 396-97. Because the defendant was indigent when the state

court imposed the fines, the court sentenced him to a term of
imprisonment—each day counted as five dollars toward the defendant’s
outstanding fines. Id. The Supreme Court invalidated this practice under
the Equal Protection Clause of the Fourteenth Amendment, explaining that
“[t]he Constitution prohibits the State from imposing a fine as a sentence
and then automatically converting it into a jail term solely because the
defendant is indigent and cannot forthwith pay the fine in full.” Id. at 398
(citation omitted).
Over a decade later, in Bearden v. Georgia, the Supreme Court held—
in the context of a probation revocation proceeding—that courts cannot
revoke an indigent defendant’s probation (and thereby sentence him to a
term of imprisonment) for his failure to pay a court-imposed fine or
restitution “absent evidence that the defendant was somehow responsible for
the failure or that alternative forms of punishment were inadequate. See 461
U.S. 660, 665 (1983). Specifically, the Court held:
[A] sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment . . . If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made

sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his, he cannot pay the fine. Id. at 672-73. The judicial defendants ask the Court to dismiss plaintiffs’ claims against them for three reasons. First, defendants argue that, contrary to plaintiffs’ assertions that a court must inquire into a debtor’s reasons for failing to pay, Fifth Circuit law imposes an affirmative duty on the debtors to assert indigence to avoid arrest for nonpayment.33 Second, defendants argue that Bearden does not apply to court costs imposed pursuant to a criminal defendant’s plea agreement with the State.34 Third, defendants argue that plaintiffs’ conduct “reveals a willful disregard to pay” and that therefore plaintiffs were legally arrested regardless of their financial status.35 According to defendants, plaintiffs cannot state a claim because they did not appear before the court and assert their indigence. Defendants do not explain in what form and/or at what proceeding plaintiffs were expected to do so.36 No court has held that indigent debtors are required to initiate
33 R. Doc. 97-1 at 8-12. 34 Id. at 14-15. 35 Id. at 13. 36 To the extent defendants argue that plaintiffs should have raised their indigence at sentencing, when the Criminal District Court judges imposed

proceedings to request a modification of their financial obligations or otherwise risk imprisonment for nonpayment. The two Fifth Circuit cases defendants cite do not stand for this proposition. In both cases—Garcia v. City of Abilene and Sorrells v. Warner—the state-court criminal defendants indicated an ability and willingness to pay their court costs. See 21 F.3d 1109, *3 n.8. (5th Cir. 1994); 890 F.2d 773, 774 (5th Cir. 1989). The criminal defendants also failed (or repeatedly failed) to appear, in person, at previously scheduled court hearings and thus squandered any occasion they had to inform the courts otherwise. 21 F.3d at *1; 890 F.2d at 774. In both cases, the Fifth Circuit noted in passing that the criminal defendants’ arguments under Tate and Bearden failed because, in those cases, the indigent defendants had appeared before the court and “asserted” their indigence. 21 F.3d at *3; 890 F.2d at 776. Neither case holds that a state court’s obligation to ascertain the reason for nonpayment depends on the debtor’s initiating proceedings to raise his indigence to the court. On the contrary, the Fifth Circuit recently reiterated that Bearden “require[s] a court to inquire into the reasons for the [criminal defendant’s] failure to pay
court costs, this argument is plainly inconsistent with Bearden. In Bearden, the lower court revoked the criminal defendant’s probation when he became unable to pay the court-imposed fine and restitution after sentencing. See 461 U.S. at 663.

before revoking probation.” United States v. Scales, __ F. App’x __, 2016
WL 1072133, at *7 (5th Cir. 2016) (citing Bearden; 461 U.S. at 672; United
States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993)).
To the extent that defendants argue that the Criminal District Court
afforded plaintiffs an opportunity to inform the court of their indigence
before being arrested and imprisoned for nonpayment, this is unsupported
by cognizable evidence and is contradicted by the allegations in plaintiffs’
complaint, which the Court must accept as true. 37 According to the First
Amended Complaint, plaintiffs were arrested and imprisoned on
37 Defendants have asked the Court to take judicial notice of records from the Criminal District Court files. R. Doc. 95. These records are a jumble of 248 pages, including computer “screen shots,” unsigned arrest warrants, unsigned and admittedly misdated letters from the court, and what appear to be place-holder documents for the court’s internal files. See, e.g., R. Doc. 95-3 at 36, 40-41, 47; R. Doc. 95-6 at 17; see also R. Doc. 95 at 1 n.2 (“The attached payment notices contained the date they were printed and reflect the print date.”); R. Doc. 97-1 at 7 (“Please note that the date listed on the Notice is part of the computer program that automatically prints the date of printing[.]”). None of the documents is authenticated by affidavit or otherwise. Because of the manner in which these records were submitted, the Court is unable to discern for itself either their authenticity or relevance to the issues raised by defendants’ motion. The Court therefore cannot take judicial notice. See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). Regardless, defendants’ arguments are simply contested factual disputes—insufficient to demonstrate that plaintiffs’ allegations fail as a matter of law.

improperly-issued warrants, not supported by probable cause, solely for their failure to pay court costs due to indigence. Plaintiffs allege that the Criminal District Court judges failed to inquire into plaintiffs’ reasons for nonpayment before issuing the illegal warrants. In addition, plaintiffs allege that the Criminal District Court imposed a pre-set $20,000 secured money bond on each plaintiff, the payment of which cost more than plaintiffs’ outstanding court debts. Plaintiffs also allege that they “languished” in prison with no set hearing date and that when they were eventually brought to court—if they were ever brought to court before their release from prison— the court failed to meaningfully inquire into their ability to pay court costs before re-imposing strict payment deadlines and sending some plaintiffs back to prison because they could not afford their debts. Plaintiffs further allege that they repeatedly told the Collections Department employees—who had “standing authority”38 over collecting court costs—that they were unable to pay due to indigence.
38 R. Doc. 7-1 at 23.

For example, named plaintiff Alana Cain asserts that she advised a Collections Department supervisor that she did not have enough money to pay her usual monthly payment.39 Although Cain allegedly offered to pay a lower amount, the Collections Department “refuse[d] to accept any payment smaller than $50,” and the court issued a warrant for her arrest.40 Plaintiffs also allege that some debtors argued their indigence, to no avail, directly to the Criminal District Court judges. According to the First Amended Complaint, after plaintiff Ashton Brown was arrested for nonpayment, he told a Criminal District Court judge that he could not afford his court debts unless he was released from prison to secure employment, but “[t]he judge told [Brown] that he could not release [Brown] unless [Brown] paid at least $100.”41 The judge sent Brown back to jail and told Brown that he would be kept there unless a family member paid his outstanding debt.42 Accepting the well-pleaded factual allegations as true, as this Court must on a 12(b)(6) motion, plaintiffs have plausibly stated a claim for relief.
39 R. Doc. 7 at 10. 40 Id. 41 Id. at 13. 42 Id. at 13-14.

Defendants also argue that the Criminal District Court judges are not legally required to inquire into state-court criminal defendants’ failure to pay outstanding court costs when the defendants “voluntarily agree[] to pay restitution as part of the[ir] plea agreement[s].”43 The only cases on which defendants rely for this proposition are non-binding and factually dissimilar. In United States v. Mitchell, for example, the Court of Appeals for the Armed Forces interpreted Bearden alongside the Armed Forces’ Manual for Courts Martial in a case involving a criminal plea agreement. 51 M.J. 490, 493-94 (C.A.A.F. 1999). The criminal defendant “negotiated a pretrial agreement in which he offered . . . to make full restitution for the bad checks.” Id. at 491 (emphasis added). The defendant’s plea agreement reflected that he “underst[ood] and agree[d] that restitution [wa]s a specific condition” the defendant offered in exchange for the plea agreement. Id. Further, the defendant represented in the course of negotiating the agreement and in the court-martial proceeding that he had the necessary financial resources to make full restitution. Id. When the defendant failed to satisfy his restitution obligations, his hearing officer concluded that the defendant failed to make “a sufficient bona fide effort to acquire funds in light of the resources
43 R. Doc. 97-1 at 14.

alternatives he represented to the Government in his pretrial agreement” and that the defendant “was less than straightforward . . . in representing the status of his finances.” Id. In affirming the hearing officer’s revocation of the defendant’s suspended sentence, the Court of Appeals for the Armed Forces held “that the Due Process Clause does not protect an accused who offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised.” Id. at 494.
Relying on Mitchell and another military court opinion, the Supreme Court of North Dakota has also held that a criminal defendant “who had control over the plea agreement and its contents” and “knew his financial situation before he entered into the plea agreement” fails to satisfy Bearden’s requirement of good faith when he subsequently neglects his restitution obligations. State v. Nordahl, 680 N.W.2d 247, 252-53.
There are a number of reasons why Mitchell and Nordahl are factually inapposite. First, defendants emphasize in support of their other arguments that “inability to pay is not necessarily a permanent state.”44 By the same logic, a person’s ability to pay is equally impermanent. Neither Mitchell nor
44 Id. at 12.

Nordahl stand for the proposition that a criminal defendant, who
experiences a change in circumstances after pleading guilty, has per se
willfully failed to pay when he cannot later meet his financial obligations. In
addition, Mitchell and Nordahl do not address mandatory financial
obligations, which—by definition—a criminal defendant cannot voluntarily
offer to pay. As defendants have argued to this Court in support of other
motions to dismiss, some of the costs the judges impose are mandatory,45
which means that the state-court defendants have no ability to bargain over
these assessments in their plea negotiations. Finally, certain Criminal
District Court records show that plaintiffs either did not agree to any amount
of court costs or agreed to an amount less than what the court ultimately
imposed.46 Accepting plaintiffs’ well-pleaded factual allegations as true,
45 See generally R. Doc. 53-1 (Defendants’ Motion to Dismiss for Failure to Join Required Parties); R. Doc. 111 at 20 (order denying defendants’ joinder motion).
46 Alana Cain seemingly agreed to pay total of $901.50 in her plea agreement. R. Doc. 59-3 at 4. Although the presiding judge assessed Cain with these costs at her sentencing on May 30, 2013, the court also ordered Cain to pay $1,800 in restitution, an obligation not listed in her plea agreement, over a month later, on July 8, 2013. Id. at 2 (entries for 05/30/2013 and 07/08/2013). Similarly, Ashton Brown agreed to pay $500 in court costs, but Brown’s docket sheet and Collections Department records reflect that the court holds Brown responsible for a total debt to $542.50. Id. at 8; Id. at 5 (entry for 12/16/2013); R. Doc. 95-4 at 37 (Orleans Parish Collections Department Payment Receipt). According to Vanessa Maxwell’s plea agreement, she did not agree to pay any amount of court costs, but her

supported by the limited Criminal District Court records of which this Court has taken judicial notice, plaintiffs plausibly state a claim for relief.
Finally, defendants argue that plaintiffs’ conduct “reveals a willful disregard to pay” their outstanding court costs.47 Defendants note that in Bearden, the Supreme Court did not preclude a court’s imprisoning a defendant who “willfully refuse[s] to pay the fine or restitution when he has the means to pay.” 461 U.S. 660, 668 (1983). In support of dismissal on this basis, defendants first argue, again without citation to supporting evidence, that all of the named plaintiffs received notice of their defaults from the court and ignored that notice. In addition, defendants argue that if “plaintiffs were unable to pay . . . they need to come to court and say so.”48 For the reasons the Court has explained throughout this order, these conclusory arguments are factually contested or otherwise legally insufficient to warrant dismissal.
docket sheet reflects that the court nonetheless imposed $191.50. R. Doc. 59-3 at 28; Id. at 23 (entry for 03/06/2012). 47 R. Doc. 97-1 at 13. 48 Id.

IV. CONCLUSION For the foregoing reasons, the Court DENIES defendants’ motion to
dismiss under Rule 12(b)(6) for plaintiffs’ purported failure to plead their indigence in state court.
New Orleans, Louisiana, this __2_3_rd___ day of May, 2016.
___________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

 
 Case 2:15-cv-04479-SSV-JCW Document 179 Filed 08/04/16 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS ET AL.

SECTION “R” (2)

ORDER ON MOTION

Plaintiffs’ Motion to Amend Complaint, Record Doc. No. 161, is pending before me.

Both the remaining and the previously dismissed defendants filed memoranda in opposition.

Record Doc. Nos. 163, 173, 174. Plaintiffs received leave to file a reply memorandum.

Record Doc. Nos. 168, 169, 170. For the following reasons, IT IS ORDERED that the

motion is DENIED.

The policy of the Federal Rules of Civil Procedure is liberal in favor of permitting

amendment of pleadings, and Rule 15(a) evinces a bias in favor of granting leave to amend.

Unless there is a substantial reason to deny leave to amend, the discretion of the district

court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872

(5th Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep.

Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994); Martin’s Herend Imports, Inc. v. Diamond &

Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv.

Corp., 660 F.2d 594, 597-98 (5th Cir. 1981)). Thus, “[t]he court should freely give leave

when justice so requires,” Fed. R. Civ. P. 15(a)(2), but such leave “is by no means

automatic.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation

omitted). Relevant factors to consider include “undue delay, bad faith or dilatory motive

Case 2:15-cv-04479-SSV-JCW Document 179 Filed 08/04/16 Page 2 of 5
on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.” Id.
However, where–as here–the court has entered a scheduling order setting a deadline for the amendment of pleadings, Record Doc. No. 62, the schedule “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4) (emphasis added). “Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. Only upon the movant’s demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court’s decision to grant or deny leave.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). “In determining good cause, we consider four factors: ‘(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice.’” Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (citing Fed. R. Civ. P. 16(b)) (quoting S & W Enters., 315 F.3d at 535); accord Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008); Nunez v. U.S. Postal Serv., 298 F. App’x 316, 319 (5th Cir. 2008); In re Int’l Marine, LLC, No. 07-6424, 2009 WL 498372, at *1-2 (E.D. La. Feb. 26, 2009) (Fallon, J.).
Although a new scheduling order was entered in this case, Record Doc. No. 121, the new order did not include a new deadline for amending pleadings. Plaintiffs’ motion for extension of the amendment deadline, Record Doc. No. 156, has not yet been determined
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Case 2:15-cv-04479-SSV-JCW Document 179 Filed 08/04/16 Page 3 of 5
by the district judge. Under these circumstances, the original deadline remains in place, and the Rule 16 standard applies.
I find that plaintiffs have not established good cause for their proposed amendment. First, their explanation for their failure timely to move for leave to amend is inadequate and unpersuasive. They waited to seek leave until long after the December 7, 2015 deadline to amend pleadings, Record Doc. No. 62, had passed. Plaintiffs did not move to amend until after the court had granted motions to dismiss that were fully briefed and considered, including accepting all well-pleaded facts as true and viewing them in the light most favorable to plaintiffs.
Second, the proposed amendment is not important. It is unnecessary to add another named plaintiff to this putative class action to bring identical types of claims that the existing representative plaintiffs have already asserted. If the proposed new plaintiff is a member of the class, she may receive relief through that vehicle. Otherwise, she is free to pursue her own separate claim. In addition, the claims alleged by all plaintiffs in the proposed amended complaint are substantively the same as those already placed at issue by plaintiffs’ first amended complaint. Plaintiffs may obtain complete relief on their claims from the remaining defendants.
In addition, the amendment would be futile as to the City and the Sheriff. Plaintiffs do not plead any new facts that would likely change the outcome of the dismissals of the City and the Sheriff. The “new” facts alleged by plaintiffs are not sufficient to establish that the alleged actions were the policy either of the Sheriff or the City. The City does not fund
- 3 -

Case 2:15-cv-04479-SSV-JCW Document 179 Filed 08/04/16 Page 4 of 5
the Criminal District Court. The City does not run the court, which is a separate juridical
and political entity from the City. The fact, if true, that City officials were aware of what
the Criminal District Court judges were doing does not make it the City’s policy. For
purposes of Monell liability, the relevant policymaker must be the
final policymaker who has “the responsibility for making law or setting policy in any given area of a local government’s business.” Exercising discretion in an area of governmental action is not enough. The official must be the one responsible for setting controlling policy:
The fact that a particular official–even a policymaking official–has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. . . . . [M]unicipal liability under § 1983 attaches where–and only where–a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.
Culbertson v. Lykos, 790 F.3d 608, 624 (5th Cir. 2015) (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 125 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83,
483-84 (1986)). “[T]he unconstitutional conduct must be directly attributable to the
municipality through some sort of official action or imprimatur” by the final policymaker.
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003). Thus, mere
awareness of a policy does not make the policy the City’s. Nothing in the new allegations
is sufficient to establish that the City is the “policymaker” of the subject procedures for
Monell purposes. Neither the City nor the Sheriff can be held liable merely because their
officers executed facially valid warrants. In addition, the presiding district judge has
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Case 2:15-cv-04479-SSV-JCW Document 179 Filed 08/04/16 Page 5 of 5
already held that the Sheriff has no policymaking authority to act with respect to judicial functions such as issuing warrants and setting bail. The Sheriff cannot decline to maintain in custody persons arrested on facially valid warrants who cannot post bail, and he cannot refuse to enforce state law. The alleged new facts do not change these conclusions.
The proposed amendment as to the judicial administrator, Robert J. Kazik, is futile because, as the court has already ruled, he is protected from liability for his actions taken as administrator by quasi-judicial absolute immunity. The alleged new facts would not change this result. Similarly, the proposed amendment does not allege any new facts that would defeat the Eleventh Amendment immunity of the Criminal District Court.
Finally, the amendment will cause undue prejudice by re-asserting substantively similar claims against defendants who have been dismissed after thorough briefing and consideration of the well-pleaded facts and relevant law. These defendants would have to re-litigate claims that have already been dismissed. That type of prejudice cannot be cured by a continuance. In any event, the district judge will determine whether a continuance of the amendment deadline is available when she rules on plaintiff’s pending motion to do so.
For all of the foregoing reasons, the motion is denied. New Orleans, Louisiana, this ___4_t_h____ day of August, 2016.
JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
- 5 -

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983 seeking to declare the manner in which the Orleans Parish Criminal District Court collects post-judgment court costs from indigent debtors unconstitutional and other relief. Plaintiffs appeal from the Magistrate Judge’s denial of their motion for leave to amend their complaint. For the following reasons, plaintiffs’ appeal is granted in part and denied it part.

I. BACKGROUND A. Factual Allegations Plaintiffs allege that the defendants maintain an unconstitutional
scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court costs.

According to plaintiffs, the Criminal District Court maintains an internal “Collections Department,” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.
When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent,” which means they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175 (2016). According to plaintiffs, 85% of the criminal defendants in Orleans Parish are legally indigent.1 With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge for sentencing.
At sentencing, in addition to imposing a term of imprisonment or probation, the judge may assess various “court costs” against the defendants. These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge’s discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney’s office, the Public Defender, and the Court,” which rely on these collections “to fund their
1 R. Doc. 7 at 5. 2

operations and pay employee salaries and extra benefits.”2 Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants’ ability to pay.3
If the criminal defendants cannot immediately pay in full, the judges allegedly direct them to the Collections Department. There, an employee allegedly imposes, at his discretion and without inquiring into a defendant’s ability to pay, a payment schedule—usually requiring a certain amount per month.4 Collections Department employees also allegedly warn defendants that failure to pay the monthly amount, in full, will result in their arrests. Plaintiffs contend that Collections Department employees refuse to accept anything less than full payment.5
When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant’s arrest by forging a judge’s signature.6 According to plaintiffs’ allegations, the Collections Department often issues these warrants “years after a purported
2 Id. at 22-23 ¶ 88. 3 Id. at 23 ¶ 91. 4 Id. at 27-28 ¶103. 5 Id. at 28 ¶ 106. 6 Id. at 29 ¶ 109.
3

nonpayment,” and the warrants are “routinely issued in error” or without regard to a debtor’s indigence.7
Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20,000 secured money bond required for release.”8 According to plaintiffs’ allegations, the amount a debtor must pay to satisfy the $20,000 secured money bond is often more than all of the debtor’s outstanding court costs.9 Plaintiffs allege that this “automatic $20,000 secured money bond” is motivated by defendants’ financial interest in state court arrestees’ paying for their release.10 Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney’s office, the Orleans Public Defenders’ office, and the Orleans Parish Sheriff each collect 0.4% of each bond.11
Plaintiffs allege that when criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20,000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]”
7 Id. at ¶ 110. 8 Id. at ¶ 113. 9 See id. at 15 ¶ 47. 10 Id. at 21-22 ¶88. 11 Id. at 22 ¶88.
4

by the Collections Department.12 As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.13 Although “arrestees are eventually brought to court,” plaintiffs allege that defendants “have no set policy or practice” regarding how long arrestees must wait for a hearing.14 According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.15 Plaintiffs allege that some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”16
When criminal defendants are brought to court, the judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.17 The judges allegedly hold these brief “failure-topay hearings” without providing the debtors notice of the critical issues or considering the debtors’ ability to pay. 18
12 Id. at 30 ¶114. 13 Id. at ¶115. 14 Id. 15 Id. 16 Id. at ¶114. 17 Id. at ¶116. 18 Id.
5

Plaintiffs contend that these practices are unconstitutional under the
Fourth and Fourteenth Amendments.
B. Plaintiffs
The named plaintiffs in the First Amended Complaint are six persons
who were defendants in the Orleans Parish Criminal District Court—Alana
Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and
Vanessa Maxwell.19 During the criminal proceedings, Criminal District
Court judges appointed counsel from the Orleans Public Defenders to
represent each of the named plaintiffs, except Reynaud Variste, during their
criminal proceedings.20 Thus, the court must have determined that Cain,
Brown, Reynajia Variste, Long, and Maxwell were legally indigent under
Louisiana Revised Statutes § 15:175.21 Reynaud Variste appears to have
retained private counsel.22
19 Id. at 7 ¶7. 20 R. Doc. 59-3 at 1 (Alana Cain Docket Sheet, entry for 12/04/2012) (“Court appointed Alex Liu, OPD.”), 5 (Ashton Brown Docket Sheet, entry for 10/02/2013) (“Court appointed Seth Wayne, OPD.”), 9 (Reynajia Variste Docket Sheet, entry for 10/02/2014) (“Court appointed Lindsey Samuel, OPD.”), 23 (Vanessa Maxwell Docket Sheet, entry for 12/14/2011) (“Court appointed Jerrod Thompson-Hicks, OIPD.”); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 06/02/2011) (“Court appointed Anna Fecker, OIDP). 21 See R. Doc. 7 at 5. 22 See R. Doc. 59-3 at 14 (Reynaud Variste Docket Sheet, entry for 9/25/2012) (“Defendant must retain private counsel.”).
6

With the assistance of counsel, all of the named plaintiffs pleaded
guilty to their respective criminal charges, including theft,23 battery,24 drug
possession,25 “simple criminal damage,”26 and disturbing the peace.27 At
plaintiffs’ sentencings, the presiding judges imposed terms of imprisonment,
which were often suspended, and terms of active or inactive probation. In
addition, the judges assessed various court costs against plaintiffs, including
restitution, fines, and/or discretionary fees and costs.28 At some point, all of
the named plaintiffs were subsequently arrested for failing to pay
outstanding court costs on a warrant issued by the court’s Collections
Department.
C. Claims in the First Amended Complaint
Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of their Fourth and Fourteenth Amendment rights, and violations
23 Id. at 4 (Alana Cain Guilty Plea), 8 (Ashton Brown Guilty Plea). 24 Id. at 12 (Reynajia Variste Guilty Plea). 25 Id. at 22 (Reynaud Variste Guilty Plea). 26 Id. at 28 (Vanessa Maxwell Guilty Plea). 27 R. Doc. 95-7 at 5 (Thaddeus Long Guilty Plea). 28 R. Doc. 59-3 at 2 (Alana Cain Docket Sheet, entry for 5/30/2013), 6 (Ashton Brown Docket Sheet, entry for 12/16/2013), 9 (Reynajia Variste Docket Sheet, entry for 10/21/2014), 18 (Reynaud Variste Docket Sheet, entry for 10/31/2013), 23 (Vanessa Maxwell Docket Sheet, entry for 3/06/2012); R. Doc. 95-7 at 1 (Thaddeus Long Docket Sheet, entry for 7/29/2011).
7

of Louisiana tort law.29 The First Amended Complaint named the following

defendants: (1) The City of New Orleans, (2) Orleans Parish Criminal District

Court (OPCDC), (3) Orleans Parish Sheriff Marlin Gusman, (4) Clerk of

Court Arthur Morrell, (5) Judicial Administrator Robert Kazik, and (6)

thirteen individual judges of the Orleans Parish Criminal District Court (the

Judges). In their original and First Amendment complaints, plaintiffs

primarily alleged claims against, and sought relief from, “Defendants” as a

group, without distinguishing between different actors. The Court

previously summarized plaintiffs’ claims as follows:

(1)

Defendants’ policy of issuing and executing arrest warrants for

nonpayment of court costs is unconstitutional under the Fourth

Amendment and the Due Process Clause of the Fourteenth

Amendment;

(2) Defendants’ policy of requiring a $20,000 “fixed secured money

bond” for each Collections Department warrant (issued for

nonpayment of court costs) is unconstitutional under the Due

29 Only Cain, Brown, Reynajia Variste, and Maxwell’s claims for equitable relief remain. In an order addressing an earlier motion to dismiss, the Court found that Reynaud Variste and Thaddeus Long lacked standing to pursue prospective equitable relief and dismissed those claims. R. Doc. 109 at 1921.
8

Process Clause and the Equal Protection Clause of the

Fourteenth Amendment;

(3) Defendants’ policy of indefinitely jailing indigent debtors for

nonpayment of court costs without a judicial hearing is

unconstitutional under the Due Process Clause of the Fourteenth

Amendment;

(4) Defendants’ “scheme of money bonds” to fund certain judicial

actors is unconstitutional under the Due Process Clause of the

Fourteenth Amendment. To the extent defendants argue this

scheme is in compliance with Louisiana Revised Statutes §§

13:1381.5 and 22:822, governing the percentage of each

surety bond that judicial actors receive, those statutes are

unconstitutional;

(5)

Defendants’ policy of jailing indigent debtors for nonpayment of

court costs without any inquiry into their ability to pay is

unconstitutional under the Due Process Clause and the Equal

Protection Clause of the Fourteenth Amendment;

(6) Defendants’ policy of jailing and threatening to imprison

criminal defendants for nonpayment of court debts is

unconstitutional under the Equal Protection Clause of the

9

Fourteenth Amendment because it imposes unduly harsh and

punitive restrictions on debtors whose creditor is the State, as

compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest under Louisiana

law; and

(8) Defendants’ conduct constitutes wrongful imprisonment under

Louisiana law.

In the First Amended complaint, Plaintiffs’ request for relief sought:

(1) declaratory judgements that “the Defendants’” actions violate plaintiffs’

Fourth and Fourteenth Amendment rights; (2) an order enjoining “the

Defendants” from enforcing the purportedly unconstitutional policies; (3)

money damages for named plaintiffs; and (4) attorney’s fees under §1983.

After a round of motions, all claims against the City of New Orleans,

the Orleans Parish Sheriff, and the Orleans Parish Criminal District Court

were dismissed, along with claims against the remaining Judicial Defendants

for monetary and injunctive relief.30 The only remaining claims were for

declaratory relief against the Judges and Administrator Kazik.

30 R. Docs. 119, 123-26. 10

A. Motion to Amend Complaint.

After these dismissals, plaintiffs moved for leave to amend their

complaint again.31 The proposed amendments would return to this case

claims against the three previously dismissed defendants: the City, the

Sheriff, and OPCDC. Specifically, (1) the City would be added as a defendant

in Count 1, plaintiffs’ claim that City police officers execute the illegal

warrants issued by the Court; (2) the Sheriff would be added as a defendant

in Counts 1, 2, 3, 4, and 7; and (3) OPCDC would be added as a defendant in

Counts 1, 2, 4, and 6. The proposed amendments specify which allegations

and claims are asserted against each defendant. The proposed complaint also

contains various additions, which are summarized as follows:

(1)

Monique Merren is added as a named plaintiff;

(2) Additional allegations concerning the organizational structure of

OPCDC;

(3) Additional allegations concerning written grievances sent to jail

staff by Plaintiffs Cain and Maxwell during their incarceration;

(4) Additional allegations concerning how Collections Department

employees “seek” and “issue” warrants;

31 R. Doc. 161. 11

(5)

Additional allegations concerning disparate treatment between

individuals jailed on Collections Department warrants and other

arrestees, and the Sheriff’s failure to bring fines and fees

arrestees to court;

(6) Additional allegations concerning the City’s knowledge of the

number of arrests made by City police officers pursuant to

Collections Department warrants, and new allegations regarding

the City’s knowledge of Collections Department practices.

(7)

Additional allegations concerning the City’s budgeting process

and funding of the Collections Department

Plaintiffs’ motion was submitted for decision by Magistrate Judge

Wilkinson, and was opposed by the Judicial Defendants, the Sheriff, and the

City.32 Magistrate Judge Wilkinson issued an order denying plaintiffs

motion.33 Because the amendment was submitted well after the deadline for

amendments previously set by the Court, Judge Wilkinson found under Fed.

R. Civ. P. 16(b)(4) that none of the four factors considered when determining

good cause to permit an untimely amendment supported granting plaintiffs’

motion.34 The Magistrate Judge found that all of plaintiffs’ allegations

32 R. Docs. 163, 173, 174. 33 R. Doc. 179 34 Id.
12

concerning claims and defendants previously dismissed by order of the District Judge were not important under the Rule 16 analysis because they were futile.35 Plaintiffs now appeal the order denying their motion to amend.36
II. LEGAL STANDARD A magistrate judge’s ruling on a non-dispositive civil motion may be
appealed to the district court. Fed. R. Civ. P. 72(a). When a timely objection is raised, the district judge must review the magistrate judge’s ruling and “modify or set aside any part of the order that is clearly erroneous or contrary to law.” Id. Under this standard, a magistrate judge’s ruling “should not be rejected merely because the court would have decided the matter differently.” Arvie v. Tanner, No. 12-1638, 2012 WL 3597127, at *1 (E.D. La. Aug. 21, 2012) (internal quotations omitted). Instead, “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
35 Id. 36 R. Doc. 183. Plaintiffs also suggest that instead of ruling on their motion for review, the Court may simply rule on plaintiffs’ motion for extension of deadlines. R. Doc. 156. Resolving either motion requires the Court to apply Rule 16(b). Rather than cut a new path, the Court chooses to instead proceed with the benefit of Magistrate Judge Wilkinson’s analysis, and considers plaintiffs’ motion for review.
13

mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). A legal conclusion, however, is contrary to law “when the magistrate fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL 890406, at *2 (E.D. La. Mar. 9, 2016). Therefore, the court applies plenary review to the Magistrate Judge’s legal conclusions. See Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’ indicates plenary review as to matters of law.”); Bruce v. Hartford, 21 F. Supp. 3d 590, 594 (E.D. Va. 2014) (“For questions of law there is no practical difference between review under Rule 72(a)’s contrary to law standard and a de novo standard.” (internal quotations and modifications omitted)).
The Magistrate Judge found that plaintiffs failed to demonstrate good cause to amend their pleadings. Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. S&W Enters. v. SouthTrust Bank of Ala., 315 F.3d 533, 536 (5th Cir. 2003). Under that rule, the Court will modify the scheduling order, and apply Rule 15(a)’s liberal amendment standard, “[o]nly upon the movant’s demonstration of good cause.” Id.; Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”). To determine whether plaintiffs have shown good cause, the Court considers: (1) the explanation for the failure to timely move
14

for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. S&W Enters., 315 F.3d at 536 (quoting Reliance Ins. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)). Once a movant demonstrates good cause to modify the scheduling order, the “more liberal standard of Rule 15(a) appl[ies] to the district court’s decision to grant or deny leave.” S&W Enters., 315 F.3d at 536; see also Fed. R. Civ. P. 15(a).
The Magistrate Judge’s order turned in part on his determination that all of plaintiffs’ new allegations regarding previously dismissed claims and defendants were not important because they were inadequate to state a claim and therefore futile. The Court performs plenary review of these conclusions of law.
An amendment is futile if it would be dismissed under a Rule 12(b)(6) motion. Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014). To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference
15

that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 23233 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.
Generally, a court ruling on a motion to dismiss may rely on only the complaint and its proper attachments. Fin. Acquisition Partners v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). A court is permitted, however, to rely on “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court may not consider new factual allegations made outside the complaint. See Fin. Acquisition Partners, 440 F.3d at 289.
III. DISCUSSION Plaintiffs propose to amend their complaint by adding a named
plaintiff, presenting new factual allegations, and reasserting several previously dismissed claims. Specifically, plaintiffs seek to: (1) add Monique Merren as a named plaintiff; (2) reassert claims for non-declaratory relief
16

against Judicial Administrator Kazik based on new allegations purportedly showing that he is not entitled to absolute quasi-judicial immunity; (3) reassert claims against OPCDC based on new allegations purportedly showing that it is not entitled to immunity under the Eleventh Amendment; (4) reassert Count One against the City for its alleged policies of executing invalid arrest warrants and funding the Collections Department; (5) reassert Count One against the Sheriff for his alleged detention of plaintiffs based on invalid arrest warrants; (6) reassert Count Three against the Sheriff for his alleged indefinite detention of plaintiffs; (7) reassert claims for prospective, injunctive relief against the City under Count One, and against the Sheriff under Counts One, Two, Three, and Four; and (8) reassert Count Seven against the Sheriff for his alleged wrongful arrest and imprisonment of plaintiffs under Louisiana tort law. The Magistrate Judge found that each of these proposed amendments was futile and therefore unimportant. The Court considers the proposed amendments in turn.
A. Monique Merren Merren brings claims that essentially mirror those of the existing named plaintiffs. The Court finds no error in the Magistrate Judge’s determination that adding a new plaintiff at this stage needlessly complicates the litigation, prejudices defendants and is unimportant to resolving the
17

claims of existing plaintiffs. Plaintiffs’ motion for leave to amend the complaint with allegations concerning Monique Merren is therefore properly denied.
A. Judicial Administrator Kazik – quasi-judicial immunity The Court previously concluded that Kazik is protected by quasijudicial absolute immunity and dismissed all of plaintiffs’ non-declaratory claims against him.37 Plaintiffs’ amendments do nothing to disturb this conclusion. Plaintiffs have attempted to restyle their allegations against Kazik to assert that he seeks rather than issues warrants.38 In doing so, plaintiffs hope to tie Kazik to decisions applying qualified immunity to police and probation officers who submit insufficient affidavits to magistrate judges in support of warrants. See, e.g., Malley v. Briggs, 475 U.S. 335, 343 (1986); Galvan v. Garmon, 710 F.2d 214, 215-16 (5th Cir. 1983). This reinterpretation of Kazik’s role—as de facto police officer rather than standin judge—is undermined when plaintiffs’ allegations are read as a whole. Plaintiffs’ principal grievance is that the defendant judges have allegedly outsourced their job. Instead of performing the allegedly required willfulness inquiry, and then ordering arrest only if a defendant’s failure to
37 R. Doc. 119. 38 R. Doc. 183-2 at 34-35.
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pay is found to be willful, the Judges have purportedly given Kazik and the Collections Department standing orders to issue warrants for any defendant who does not pay.
It is clear that framed in this manner Kazik’s alleged role in causing plaintiffs’ injuries is fundamentally judicial. Unlike the officers in Malley and Galvan, Kazik does not ask for issuance of a warrant based on his own investigation. Rather, Kazik applies a formula for issuing warrants set by judges who are indisputably authorized to issue warrants on their own. This conclusion is further supported by the materials attached to plaintiffs’ complaint. Exhibit 1, referenced in the proposed complaint, is a transcript of an evidentiary hearing concerning OPCDC Collections Department practices.39 In the hearing, Shannon Sims, Deputy OPCDC Judicial Administrator, explains that the authority to issue Collections Warrants is given to the Collections Department by the judges of OPCDC.40 According to Ms. Sims, one section of Court, Section A, issues its own warrants rather than delegating that responsibility to the Collections Department.41 As made clear by Ms. Sims’ testimony, when Kazik issues warrants he stands in the shoes of a judge under a judge’s direction. When Kazik’s authority to issue
39 R. Doc. 161-5. 40 Id. at 23. 41 Id.
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warrants is rescinded, a judge takes over. In this way Kazik allegedly “perform[s] functions comparable to those of judges,” and is entitled to absolute immunity. Da Vinci Inv., Ltd. P’ship v. Parker, 622 F. App’x 367, 373 (5th Cir. 2015) (quoting Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629, 634 (5th Cir. 2000)).
Because Plaintiffs’ new allegations concerning Kazik do not undermine the Court’s earlier finding of quasi-judicial immunity, plaintiffs’ attempt to reinstate claims for damages and injunctive relief against Kazik is futile, and good cause to permit this amendment after the Rule 16 deadline is not established.
B. OPCDC – Eleventh Amendment immunity Plaintiffs offer a handful of amendments which purportedly undermine the Court’s earlier ruling that plaintiffs’ claims against OPCDC are barred by the Eleventh Amendment.42 The Court finds that these minor tweaks cannot overcome the clear weight of precedent holding that OPCDC and similar entities are covered by the Eleventh Amendment.43 Even if OPCDC’s immunity were impacted by the proposed amendments, plaintiffs’ claims against OPCDC must fail because it is not a
42 R. Doc. 183-2 at 8, 28-29. 43 See R. Doc. 123.
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“person” subject to suit under section 1983. See Dunn v. Louisiana, No. 104519, 2011 WL 445684, at *1 (E.D. La. Feb. 3, 2011) (adopting Report and Recommendation concluding that Section K of the Orleans Parish Criminal District Court is not a section 1983 person); see also Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997) (“A state court is not a ‘person’ for purposes of 42 U.S.C. § 1983 and hence is not subject to lawsuit under that statute.”). The Court therefore finds that plaintiffs’ proposed amendments regarding OPCDC are futile.
C. The City – Count One In Count One, plaintiffs allege that they have been arrested by City police officers, who execute the OPCDC warrants that were issued absent probable cause in violation of the Due Process Clause of the Fourteenth Amendment. The Court has already found that plaintiffs’ allegations of arrest and detention pursuant to OPCDC collections department warrants issued absent probable cause adequately allege a constitutional violation.44 Because the City is a municipal entity, plaintiffs’ section 1983 claims against the City must satisfy the Supreme Court’s test first articulated in Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), before the City may be held liable.
44 R. Doc. 136 at 17-19. 21

Plaintiffs point to two alleged city policies that are purportedly responsible for plaintiffs’ illegal arrests: (1) that “[C]ity officials allow [the City’s police] officers to execute warrants issued by the Collections [Department employees]” despite the City’s knowledge that the warrants are invalid; and (2) that “City officials fund the salaries of the Collection [Department employees],” despite knowing of the employees’ allegedly invalid procedures for issuing warrants.45 The Court considers these contentions in turn under the relevant Monell standards.
i. Permitting Arrests on Invalid Warrants Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. In section 1983 suits, municipalities cannot be held liable under a theory of respondeat superior. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Instead, the Court must apply the Monell test, which ensures
45 R. Doc. 183-2 at 57. 22

that cities are held responsible only for “their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original). To state a claim under Monell, plaintiffs must allege the existence of (1) an official policy or custom, of which (2) a policymaker is charged with actual or constructive knowledge, and (3) a constitutional violation whose “moving force” is that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010).
Thus, a plaintiff seeking to impose liability on a municipality under section 1983 must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04 (1997). A policy need not itself be unconstitutional to satisfy Monell. City of Canton v. Harris, 489 U.S. 378, 387 (1989) (“[W]e reject petitioner’s contention that only unconstitutional policies are actionable under the statute.”). The Fifth Circuit has identified three ways in which plaintiffs may meet their burden to show a policy or custom. See Burge v. Par. of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). The first two involve direct action by a “policymaker,” either in the form of generally applicable policies or specific, directed actions. Id. The third involves a failure to act by policymakers when “the need to take some action to control [its agents] ‘is so obvious, and the inadequacy [of existing practice] so likely to result in
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a violation of constitutional rights, that the policymaker . . . can reasonably be said to be deliberately indifferent to the need.’” Id. (quoting Canton, 489 U.S. at 390). Since plaintiffs do not allege direct action by City policymakers, plaintiffs’ allegations must satisfy the third method of showing a policy or custom.
As noted, in addition to a policy or custom, plaintiffs must allege that the City’s policy or custom is the moving force behind the constitutional violation. The “moving force” component of Monell liability is critical. Canton, 489 U.S. at 389 (holding that municipal liability can be found “only where [city’s] policies are the moving force [behind] the constitutional violation” (internal quotations omitted)). The “moving force” element requires plaintiff to show “that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bryan Cty., 520 U.S. at 406 (emphasis in original). “‘[M]unicipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives’ by city policymakers.” Canton, 489 U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 48384 (1986)).
Because plaintiffs do not allege that the City—as opposed to its police officers—directly inflicted their injuries, the “moving force” analysis requires
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that “rigorous standards of culpability and causation . . . be applied to ensure that the municipality is not held liable solely for the actions of its employee[s].” Bryan Cty., 520 U.S. at 405; see also Mason v. Lafayette CityPar. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015) (holding that moving force inquiry requires showing of causation and culpability) As to causation, “a plaintiff must show a ‘direct causal connection . . . between the policy and the alleged constitutional deprivation.’” Mason, 806 F.3d at 280 (quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992)). “The “moving force” inquiry imposes a causation standard higher than “but for” causation.” Id.
As to culpability, the applicable standard in this context is deliberate indifference, or a showing that the City “promulgated the policy with ‘deliberate indifference’ to the known or obvious consequences that a constitutional violation would result.” Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 579). The conduct of the City employees at issue consists of police officers’ checking a warrants database maintained by the Sheriff’s office, determining that a warrant for unpaid fines and fees is outstanding against a person the officers have encountered for other reasons, and arresting persons shown to have such outstanding warrants.46 The
46 R. Doc. 161-4 at 123-25. 25

complaint does not allege that the police officers are aware of any constitutional defect in the warrants, and plaintiffs appear to accept that the warrants are facially valid. The custom or practice of executing facially valid warrants is not unconstitutional. Instead, plaintiffs allege that the Mayor made the City liable for the unconstitutional system put in place by the judges of the Criminal District Court, and without the knowing complicity of the police, by purportedly obtaining information about the practices of OPCDC and not stopping the police from executing the warrants. Plaintiffs do not specifically allege what actions the Mayor failed to take. The allegations could be read to mean that the Mayor failed to issue an immediate order to NOPD to refuse to execute all OPCDC issued warrants for outstanding fines and fees. Alternatively, since the City controls the behavior of its police by training them to respond to the situations they encounter in the field, plaintiffs’ allegations could be construed as a failure to train. Under either construction of plaintiffs’ claims, the standard of culpability is deliberate indifference. See Bryan Cty., 520 U.S. at 410. (applying deliberate indifference standard when plaintiffs alleged that the city did not directly inflict their injury but instead caused employees to do so); Mason, 806 F.3d at 280 (holding that if policy is facially lawful, plaintiffs must show deliberate indifference); see also Thompson, 563 U.S. at 61 (“[A] municipality’s failure
26

to train its employees in a relevant respect must amount to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.’” (quoting Canton, 489 U.S. at 388)).
“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Thompson, 563 U.S. at 61 (quoting Bryan Cty., 520 U.S. at 410). “Heightened negligence is insufficient to satisfy this standard.” Mason, 806 F.3d at 280. But, “inaction in light of notice that the city’s policy or practice will cause constitutional violations is the functional equivalent of a decision by the city to violate the constitution.” Thompson, 563 U.S. at 61-62. “Policymakers’ ‘continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their actions—the ‘deliberate indifference’—necessary to trigger municipal liability.’” Id. at 62 (quoting Bryan Cty., 520 U.S. at 407). In the failure to train context, “without notice that a course of training is deficient in a particular respect, decision makers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Id.
Applying these standards for Monell liability to plaintiffs’ allegations, the Court finds that the plaintiffs have failed to plausibly allege that the City’s
27

failure to prevent its officers from executing Collections Department warrants was a “moving force” behind plaintiffs’ injury or that any City policy that its police officers execute facially valid warrants was promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result. The need for an immediate order to stop executing all warrants for unpaid fines and fees or for police training to look behind all such warrants is not “so obvious,” based upon what the City allegedly knew about OPCDC’s collection practices, that City policymakers could reasonably be said to have been deliberately indifferent.
In support of their contention that the City was aware of the alleged infirmity of the Collections Department warrants, plaintiffs rely on quotes— with little context—purportedly drawn from memos in the Mayor’s office.47 The memos allegedly date from 2015, years after OPCDC allegedly started the practice of Collections Department warrants, and within months of the filing of this lawsuit. At most, the allegations in the proposed amendment indicate that the City’s policymakers may have had some unclear, indefinite information about the alleged collections practices at OPCDC, practices attributed to judges who are trained in the law and who would not reasonably be presumed to order citizens locked up without probable cause. The
47 R. Doc. 183-2 at 47. 28

“internal memos” allegedly dating from April or May of 2015 quoted in Paragraph 155 of the proposed amendment are unattributed to any source or recipient. Nor do plaintiffs allege who discussed the reports or whether the Mayor, the alleged final policymaker, was aware of the reports. The quoted memos employ hedge words to describe the unidentified author’s understanding of the alleged OPCDC practices, like “seem to” and leave out words. The unidentified authors state the judges “seem to be delegating a number of their powers to the collections departments,” which issued warrants “without . . . the constitutional safeguard” of a “judicial determination of probable cause.”48 This “seem to” language suggests uncertainty by the unnamed author. Further, there is no mention of the role of City police in the process and no suggestion that the City or its police, instead of the OPCDC, was responsible for it.
Further, plaintiffs allege that these internal memos “advised the Mayor’s office” of the Collection Department’s warrant practices “in April or May of 2015.”49 Only one plaintiff, Thaddeus Long, alleges that he was arrested after that period. The remaining plaintiffs were either arrested
48 Id. 49 Id. at 46.
29

before or during the “April or May” period, rendering the relevancy of the memos suspect at best.
None of the other material relied on by plaintiffs is any more indicative that a City policymaker possessed sufficient knowledge to make plaintiffs’ injuries a “known or obvious” consequence of the City’s failure to train or direct police. Plaintiffs rely on a report by an advocacy group, but supply no facts indicating that any policymaker was ever aware of it, much less that the memo warranted immediate action by the City.50 They also point to an unidentified advocacy group memo in the Mayor’s office file from 2015, which discusses practices by the judges at OPCDC, but does not mention warrant practices, or the New Orleans police, and recommends that “the Court should make a systemic indigency determination before imposing fines and fees.”51 Such a court determination before the imposition of fines is undoubtedly good policy, but it is not required by the Constitution. See United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) (citing Williams v. Illinois, 399 U.S. 235, 243 (1970)), and Bearden v. Georgia, 461 U.S. 660, 663 (1983) (holding indigency no bar to imposing fine but limiting the penalty courts can impose for nonpayment because of inability to pay)). This
50 Id. at 46-47. 51 Id. at 46.
30

memo, for which no recipient is identified, is not even an accurate source of information on the constitutional duty of OPCDC, much less a discussion of the constitutional infirmity of police conduct. Receipt of it in the Mayor’s office is not a basis for a plausible inference of deliberate indifference.
The upshot of plaintiffs allegations is that the vague, unsourced, notalways-accurate information they describe, some of which they do not even allege anyone in the Mayor’s office had possession of, was sufficient to require the Mayor either to immediately order city police officers to refuse to execute any facially valid, outstanding warrants for unpaid fines and fees issued under the authority of a duly constituted court, or to provide some unspecified training for looking behind facially valid warrants. In evaluating these allegations, the Court is mindful of the Supreme Court’s admonition in Iqbal, that determining whether a complaint states a plausible claim for relief will “be a context-specific task that requires the reviewing court to draw on judicial experience and common sense.” Iqbal, 556 U.S. at 679. And, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint fails to show “that the pleader is entitled to relief.” Id. These considerations require the Court to find plaintiffs’ allegation of City liability implausible. Plaintiffs’ allegations are insufficient to alter the essential import of their allegations in the remainder
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of Count 1, that the moving force behind the alleged constitutional violation is the Orleans Parish Criminal District Court and its judges. The court is a political entity separate and distinct from the City. It is not the Municipal Court of the City of New Orleans. It is an agency of the State, not the City. Its judges are its policymakers, not the City Council, the City’s mayor, the City’s police chief, or any other City official. The allegations in the proposed amended complaint are insufficient to establish that the City had knowledge of the alleged practices of OPCDC that made it so obvious to the City that constitutional violations would occur that the City was deliberately indifferent to the need to order or train its police officers to alter their practice of executing facially valid warrants. This is especially true in this context where Fifth Circuit law holds that “when law enforcement officers hold[] a warrant for arrest identifying the person named in the warrant, their duty [is] to arrest him.” Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975). And, this conclusion is buttressed by the fact that plaintiffs’ own exhibit indicates that at least one OPCDC judge issues her own warrants, and plaintiffs allege others bore the purported signatures of judges.52 It would be wholly unrealistic and would stretch the boundaries of Monell liability beyond recognition to hold that, based on plaintiffs’ allegations, the City
52 See R. Doc. 161-5 at 23. 32

should have instructed its police officers to refuse to execute facially valid arrest warrants or to go behind them and make their own determination as to whether probable cause existed to support them.
Plaintiffs have failed plausibly to allege any failure to act by the City with respect to its police officers’ execution of the challenged warrants that was a “moving force” behind their allegedly unconstitutional arrests. Plaintiffs therefore cannot state a claim relating to a City policy, and the proposed amendments regarding arrests performed by the City are futile.
i. The City’s funding of the Collections Department. Plaintiffs assert as a second ground for the City’s Monell liability the City’s alleged policy of funding the Collections Department. To evaluate whether the City may be held liable for this policy, the Court must again apply the Monell factors to determine whether the complaint plausibly alleges that the City’s own policy caused plaintiffs’ injuries. This allegation fails at the causation prong. As noted above, for a policy to be a “moving force” under Monell there must be a “direct causal link” between City policy and plaintiffs’ injury. Bryan Cty., 520 U.S. at 400. The Fifth Circuit has made clear that “[t]he ‘moving force’ inquiry imposes a causation standard higher than ‘but for’ causation.” Mason, 806 F.3d at 280; see also Fraire, 957 F.2d at 1281 (“[A] direct causal connection must exist
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between the policy and the alleged constitutional deprivation. This connection must be more than a mere ‘but for’ coupling between cause and effect.”). “But for” causation is, in other words, necessary but not sufficient for Monell liability.
Here, plaintiffs cannot meet even the lower “but for” causation standard. “But for” causation exists when “the harm would not have occurred in the absence of—that is, but for—the defendant’s conduct.” United States v. Ramos-Delgado, 763 F.3d 398, 402 (5th Cir. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013)). Plaintiffs allege that the City provides OPCDC with millions of dollars in funding each year.53 Plaintiffs allege that OPCDC’s budget request for the fiscal year 2012 indicates OPCDC’s Collection Department employees are “fully funded” by the City.54 Additionally, plaintiffs allege that in 2015 the City provided an additional $92,831 in funding, with the understanding that this money would be used to hire two new Collections Department employees.55 The City provides these funds, according to plaintiffs, despite having no legal obligation to fund the Collections Department.56
53 R. Doc. 183-2 at 41. 54 Id. 55 Id. at 47-48. 56 Id. at 41.
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Plaintiffs admit, however, that the City is not OPCDC’s only benefactor. The proposed complaint states that OPCDC’s “annual budget is composed of funds from a variety of sources, including the State of Louisiana, grants, monies generated via fines and fees, and contributions from the City of New Orleans to the OPCDC general fund.”57 The money generated for the Court by fines and fees is allegedly placed in the Judicial Expense Fund, which is “used in [the Judges’] discretion.”58 OPCDC allegedly collects “millions of dollars in revenues” for the Fund, and uses this money to “fund [the Court’s] basic operations” including “employee salaries.”59
The thrust of these allegations is that the Collections Department generates millions of dollars in revenue for OPCDC, and that OPCDC is free to spend that money as it pleases. Assuming, as the Court must, that this is true, it is simply not plausible that–even if the City cut all funding to the OPCDC—the court would shutter the Collections Department or restrict its warrant practices. On the contrary, every dollar not contributed by the City increases the budgetary pressure on OPCDC. Therefore, a reduction in City funding would, if anything, cause an increase in the collection activities that plaintiffs challenge. Plaintiffs have therefore failed to plead a plausible “but
57 Id. at 40. 58 Id. at 28-29. 59 Id. at 30.
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for” connection between their alleged injuries and the City’s policy of funding the Collections Department. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (rejecting notion that a city’s “‘policy’ of establishing a police force” could justify § 1983 liability because Monell requires “an affirmative link between the policy and the particular constitutional violation alleged”).
Finally, in the proposed complaint, plaintiffs concede that “OPCDC retains ultimate control over the daily activities of its employees,” but nonetheless maintain that “nothing prevents the City from exercising its authority to understand and oversee the activities of a program it is fully or largely funding.”60 This purported causal link also stretches “but for” causation, and is plainly insufficient to meet Monell’s rigorous “moving force” standard. Plaintiffs cite no authority for finding causation based on a failure to exercise the City’s implicit power of the purse, and this Court has rejected similar theories in the past. See Broussard, 2001 WL 258055, at *2 (dismissing city from suit regarding jail policy where city funded and maintained jail, but sheriff operated facility); Jones v. St. Tammany Par. Jail, 4 F. Supp. 2d 606, 613 (E.D. La. 1998) (dismissing parish from suit regarding jail policy where “[p]arish’s responsibility to the jail [wa]s limited to the funding of the jail”); see also Deaton v. Montgomery Cty., 989 F.2d
60 R. Doc. 183-2 at 42. 36

885, 887 (6th Cir. 1993) (County policy was not “moving force” behind strip search policy at jail where “County erected the facility and maintained the physical plant and the City managed and operated the facility”). Because plaintiffs have failed to plausibly allege the required causal link between their injuries and the City’s policy of funding the Collections Department, plaintiffs’ proposed amendments regarding this policy are futile.
D. Sheriff Gusman – Count One In Count One Plaintiffs challenge the Sheriff’s authority to jail them at all on Collections Department warrants.61 Plaintiffs allege that the Sheriff is a final policymaker with respect to management of the jail, and argue that the Sheriff is “aware of his deputies’ custom of booking and detaining individuals arrested on [Collections Department] warrants.”62 Count One is brought against the Sheriff in his official capacity. As the Fifth Circuit has noted, “[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.” Burge, 187 F.3d at 466. When a § 1983 claim is asserted against the Sheriff in this way “proper analysis requires us to separate two different issues . . . (1) whether plaintiff’s harm was caused by a constitutional violation, and (2)
61 Id. at 4, 10-20. 62 Id. at 12.
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if so, whether the [Sheriff] is responsible for that violation.” Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992); see also Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986) (“Whenever a cause of action is alleged under § 1983, the first question must be whether a federally secured right has been affected.”).
As noted, the Court has previously determined that plaintiffs’ allegations of arrests and detention under invalid warrants plausibly state a constitutional violation.63 But the Sheriff cannot be liable in his official capacity for these detentions unless plaintiffs can satisfy the liability standards of Monell. See Burge, 187 F. 3d at 468; Nagle v. Gusman, 61 F. Supp. 3d 609, 630 (E.D. La. 2014). The Sheriff has no Monell liability unless he acted or failed to act with deliberate indifference to the resulting constitutional injury. Mason, 806 F.3d at 280; see also discussion supra Section III. D. i. To show deliberate indifference, plaintiffs must plausibly allege that the Sheriff was “on actual or constructive notice” of the invalidity of the warrants, and therefore that jailing plaintiffs pursuant to these warrants was “substantially certain to result in the violation of their constitutional rights.” Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 756 (5th Cir. 1993) (quoting Canton, 489 U.S. at 396 (O’Connor, J.,
63 R. Doc. 136 at 17-19. 38

concurring in part and dissenting in part)). The Court finds that Plaintiffs’ allegations concerning the Sheriff’s knowledge do not include sufficient facts to “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Given the absence of any allegations concerning how the Sheriff was directly made aware of Collections Department policies, plaintiffs attempt to rely on alleged media reports concerning poor people in New Orleans facing jail for failure to pay fines and fees.64 Even if the Court were to find that publication of these reports was sufficient to provide the Sheriff with “actual or constructive notice” of their contents, plaintiffs’ allegations would remain defective. There is no indication from plaintiffs’ complaint that these media reports discuss the Collections Department’s warrant practices or suggest that OPCDC issues warrants without the required finding of probable cause.65 Accordingly, plaintiffs have not plausibly alleged that even if the Sheriff reviewed these publications, he could reasonably be expected to conclude from reading them that anyone was falsely imprisoned in OPP. The Court therefore finds that plaintiffs have failed to plausibly allege that the Sheriff’s alleged policy of detaining individuals pursuant to Collections
64 R. Doc. 183-2 at 45-46. 65 Id.
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Department warrants occurred with deliberate indifference to a resulting constitutional injury.
Plaintiffs also argue that the Sheriff was made aware of the infirmity of the warrants by virtue of being served with the complaint in this case, and that he has nonetheless continued to detain individuals pursuant to Collections Department warrants. Prior lawsuits may sometimes be relevant in evaluating knowledge of Monell defendants. See, e.g., Deaton v. Montgomery Cty., 989 F.2d 885, 890 (6th Cir. 1993). But, in this instance the plaintiffs filed their lawsuit after they suffered injury, so that information acquired after initiation of this suit is irrelevant to determining the Sheriff’s knowledge at the time of the alleged deprivations.
Because plaintiffs have failed to plausibly allege that the Sheriff was aware of the Collections Department’s alleged warrant practices, Count One fails to state a claim as to the Sheriff and the proposed amendments related to this count are futile.66
E. Sheriff Gusman – Count Three Count Three focuses on the Sheriff’s conduct after plaintiffs were arrested by New Orleans police officers and brought to Orleans Parish
66 See infra, Section H. i, for a discussion of plaintiffs’ claims for injunctive relief under Count One.
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Prison. Plaintiffs challenge the Sheriff’s alleged “indefinite” detention of them without a court hearing. The Sheriff did not issue or execute the warrants at issue, but instead detained plaintiffs on the basis of facially valid arrest warrants. The Court has already found that plaintiffs failed to plausibly allege that the Sheriff knew or should have known that the capias warrants were invalid.
Plaintiffs sue Sheriff Gusman in his official capacity in Count Three. As in Count One, the Court must ask (1) whether plaintiffs have alleged a constitutional violation, and (2) whether the Sheriff is responsible for it. Collins, 503 U.S. at 120.
In Count Three, plaintiffs allege that the Sheriff violated their rights under the Due Process Clause of the Fourteenth Amendment by jailing them “indefinitely” without a hearing. Specifically, plaintiffs allege that, after arriving at OPP, arrestees are informed that to secure their release they must either: (1) pay the $20,000 bond affixed to the Collections Department warrant, or (2) pay a sum of money to the Collections Department and thereby secure an order of release.67 According to the proposed amended complaint, jail staff do not bring such arrestees before a magistrate for an initial appearance, the Sheriff does not have written procedures for notifying
67 R. Doc. 183-2 at 36. 41

OPCDC of their arrests, and the Sheriff does not “consistently” inform
OPCDC of the arrest of persons on fines and fees warrants.68
Plaintiffs further allege that in response to plaintiffs’ discovery
requests in this case, the Sheriff stated that his duty with respect to
individuals held on Collections Department warrants is to maintain custody
until his staff receives an order directing that the inmate be brought to
OPCDC or released.69 Plaintiffs also plead that, according to OPCDC,
OPCDC has had a policy for five years (in writing since June of 2016) of
placing arrestees for unpaid fines and fees on the Court’s docket within 48
hours of arrest.70
As a result of the Sheriff’s policies, plaintiffs allege that they
respectively spent seven,71 fifteen,72 three,73 seven,74 six,75 and twelve76 days
in jail before being either brought before a judge or released. Plaintiffs
describe their eventual release or hearing as dependent on the help of a third
party who either paid the Collections Department or lobbied OPCDC to
68 Id. at 36. 69 Id. at 37-38. 70 Id. at 38. 71 Id. at 12. 72 Id. at 13-14. 73 Id. at 16. 74 Id. at 18. 75 Id. at 19. 76 Id. at 21.
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secure a place on the docket.77 Finally, plaintiffs also allege that five other unnamed individuals arrested on Collections Department warrants were detained between one week and 57 days without a hearing, and that a sixth arrestee was told he would not be brought to court for at least 12 days unless he paid $50 to the Collections Department.78
The Court finds that the alleged detention of plaintiffs for the periods described under facially valid warrants fails to state an unconstitutional denial of due process. This conclusion is based on the following authority. In Baker v. McCollum, 443 U.S. 137, 141 (1979), police arrested McCollum pursuant to a facially valid warrant and detained him for three days. After McCollum complained repeatedly, the police released him upon discovering that although the warrant bore McCollum’s name, he was not the wanted man. Id. McCollum sued the police under 42 U.S.C. § 1983, alleging that his three-day detention violated his Fourteenth Amendment protection against deprivation of liberty without due process. Id. The Court held that whatever claim McCollum might have under state tort law, he stated no claim under the Fourteenth Amendment. Id. at 146-47. The Court held that a sheriff executing a valid arrest warrant is not required by the Constitution to
77 Id. at 12-21. 78 Id. at 38-39.
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investigate every claim of innocence. Id. at 146. “Nor is the official maintaining custody of the person named in the warrant required by the Constitution to perform an error-free investigation of such a claim.” Id. The Court acknowledged that McCollum’s detention for three days under a facially valid warrant, albeit one that named the wrong person, “indeed deprived him of his liberty for a period of days.” Id. at 144. But, because the detention was pursuant to a facially valid warrant, McCollum’s detention did not give rise to a Fourteenth Amendment claim. Id. The Court noted that one in McCollum’s position could not be held “indefinitely” in face of repeated claims of innocence because he enjoyed a right to a speedy trial. Id. In dicta, the Court assumed for the sake of argument that “depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will, after the lapse of a certain amount of time, depriv[e] the accused of liberty . . . without due process of law.” Id. But, the Court said it was “quite certain that a detention of three days” could not amount to such a deprivation. Id. at 145.
In Harris v. Payne, 254 Fed. Appx. 410, 421 (5th Cir. 2007), the Fifth Circuit, after considering Baker v. McCollum, found no due process violation when the Sheriff detained the wrong person for four months on a facially
44

valid capias warrant, despite the arrestee’s protests of innocence and the failure by the Sheriff and his deputies to access available information that would have exonerated him. Further, the Fifth Circuit has consistently held, without in-depth discussion or analysis, that a requirement, either under state or federal rules, to be promptly taken to court following an arrest within any particular time period “has not been given constitutional status.” Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir. 1971) (quoting Kulyk v. United States, 414 F.2d 139, 141 (5th Cir. 1969)). The Fifth Circuit has rejected constitutional challenges to even extended periods of detention without an initial court appearance. See Rheaume v. Tex. Dep’t of Pub. Safety, 666 F.2d 925, 929 (5th Cir. 1982) (reiterating the Fifth Circuit’s “holding consistently” that a claim of failure to bring an arrestee before a judge within time requirements set by state law was not “of constitutional dimension under the due process clause”); Stephenson v. Gaskins, 539 F.2d 1066, 1067-68 (5th Cir. 1976) (thirty-eight day “failure to take an arrestee before a magistrate [judge] is not a federal constitutional issue”); Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975) (arrestee detained for six days without being “promptly taken before a magistrate or given the opportunity to post bail” made a complaint that “has not been given constitutional status”); Scarbrough v. Dutton, 393 F.2d 6, 7 (5th Cir. 1968) (seven month
45

detention without preliminary hearing “does not amount to a violation of
constitutional rights”).
Less than a year ago, the Eleventh Circuit reiterated the Fifth Circuit’s
long-standing conclusion that no violation of constitutional rights occurs for
detentions like those alleged in the Count Three of plaintiffs’ proposed
amended complaint. In Taylor v. Taylor, 649 Fed. App’x 737, 748 (11th Cir.
2016), plaintiff asserted a Section 1983 claim against a sheriff and his deputy
based on allegations that “they failed to present her to a judge immediately
after her arrest.” Id. The delay resulted in her detention for nine days, at
which time a judge set a bond, and she was subsequently released. Id. at 741.
The Eleventh Circuit stated:
[W]e note that our predecessor court, by which we are bound, has ‘held that even though [Georgia state law] required that an officer arresting under a warrant bring the person arrested before a committing officer within 72 hours after arrest, failure to take an arrestee before a magistrate [judge] is not a federal constitutional issue. . . .’ [Plaintiff] has not shown that her dueprocess rights were violated or that those rights were clearly established.” Id. at 748 (emphasis added)(citations omitted).
The Court finds that the decisions of the Fifth Circuit, which bind this
Court, dictate the outcome of plaintiffs’ claims regarding the length of their
detentions without being afforded a hearing, and require a finding that
Count Three fails to allege a constitutional violation. Hence, plaintiffs’
46

allegations fail to satisfy Monell and are futile. Nevertheless, plaintiffs’ allegations about the Sheriff’s systematic incompetence in handling their detentions, if true, are indeed troubling. The Court also notes that other circuits have held that allegations similar to plaintiffs’ give rise to actionable due process violations. See Oviatt Pearce, 954 F. 2d 1470, 1473-77 (9th Cir. 1992); Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir. 2004). But because the Fifth Circuit’s precedent is binding on this Court, the Court must find that plaintiffs claim in Count Three is futile. This result does not foreclose plaintiffs from stating a plausible tort claim under State law for false imprisonment. See discussion of Count Seven infra, Section III. H.
F. Injunctive relief under Counts One, Two, and Four. i. Counts One and Two
Plaintiffs maintain that even if the Court finds the Monell requirements unfulfilled, it may nevertheless order prospective, injunctive relief against the Sheriff and City. This power, according to plaintiffs, derives from the Court’s authority to enjoin “individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional
47

act, violating the Federal Constitution.” Ex parte Young, 209 U.S. 123, 15556 (1908).
The Supreme Court, however, recently held that “claims for prospective relief, like claims for money damages, fall within the scope of the ‘policy or custom’ requirement.” Los Angeles County, v. Humphries, 562 U.S. 29, 36-37 (2010). In Humphries, plaintiff sued the county, rather than a county official in his or her official capacity. Id. Plaintiffs argue that Humphries can be distinguished. They argue that Monell always applies to municipalities sued in their own name, regardless of the type of relief sought, because municipalities cannot act, except through the types of policies and customs discussed in Monell. According to plaintiffs, however, claims against municipal officials in their official capacities for prospective, injunctive relief need not check the Monell boxes because a county official can act on his or her own to commit a constitutional violation.
The problem with plaintiffs’ argument is twofold. First, this argument does not apply to plaintiffs’ claim against the City, which is brought against an entity. Second, as to plaintiffs’ claims against the Sheriff, the Supreme Court has repeatedly stated that a suit against a government official in his official capacity “is not a suit against the official but rather is a suit against the official’s office.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
48

(1989); see also Monell, 436 U.S. at 690 n.55 (“[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.”). The equivalence between official-capacity and entity suits is further supported by the Supreme Court’s statement that “[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell . . . local government units can be sued directly for damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Accordingly, since an official capacity suit is simply a suit against an entity by another name, Humphries applies whether the plaintiff brings an official capacity suit against a municipal official or sues the municipality itself.
This conclusion is, however, somewhat in tension with the Ex parte Young line of cases. Courts have long recognized that under Young “[a] suit is not ‘against’ a state . . . when it seeks prospective, injunctive relief from a state actor . . . based on an alleged ongoing violation of the federal constitution.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015) (quoting K.P. v. LeBlanc, 729 F.3d 427, 439 (5th Cir. 2013)). Rather, “a state official attempting to enforce an unconstitutional law ‘is stripped of his official clothing and becomes a private person subject to suit [and s]uits by private citizens against state officers in their official capacit[ies] are not,
49

therefore, categorically barred.’” Id. (quoting K.P. v. LeBlanc, 627 F.3d 115, 125 (5th Cir. 2010). The First Circuit has recognized and discussed, but not resolved, the competing pull of these doctrines as applied to municipal officials, sued in their official capacity, for prospective, injunctive relief. Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 72 (1st Cir. 2002).
Faced with this uncertainty, the Court holds that it may not order prospective injunctive relief against the Sheriff absent a finding that the Monell requirements are satisfied. Contrary to plaintiffs’ argument, this ruling does not upend our constitutional order. The Court entertains no doubts about its authority and obligation to enjoin constitutional violations. In applying Monell to plaintiffs’ claim for injunctive relief, the Court merely recognizes that such relief against a municipal actor is appropriate only when the municipality’s own actions cause the complained-of injury. Absent this causal link, the Court’s unquestioned authority to enjoin ongoing constitutional violations would be misapplied.
Because the Court has already found that plaintiffs failed to meet the Monell requirements as to Count One against both the Sheriff and City, plaintiffs cannot state a claim against these parties for injunctive relief under this Count. Plaintiffs make no argument that the Sheriff is a moving force behind the injuries alleged in Count Two, and that claim therefore fails for
50

the same reason. Accordingly, the Court finds that the proposed amendments as to these two counts are futile.
ii. Count Four Under Count Four, plaintiffs challenge the constitutionality of sections 22:822 and 13:1381.5 of the Louisiana Revised Statutes. Those provisions direct the Sheriff to collect “a fee of three dollars for each one hundred dollars worth of liability on . . . bail bond[s] being presented for the release of a person on bail.” La. Rev. Stat. § 22:822 (2016). The Sheriff is further required to divide the collected funds according to a set formula and distribute them among his own office, OPCDC, the Judicial Expense Fund, the district attorney, and the public defender. La. Rev. Stat. § 13:1381.5. Plaintiffs allege that this arrangement robbed them of their Fourteenth Amendment right to a neutral forum by giving the judge charged with setting their bond—along with other actors in the criminal justice system—a financial stake in that bond. Before evaluating plaintiffs’ claims against the Sheriff, the Court must determine whether the Sheriff, in enforcing section 22:822, acts as a state or municipal official. In Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990), the Fifth Circuit held: [T]he state cannot dissociate itself from actions taken under its laws by labeling those it commands to act as local officials. A
51

county official pursues his duties as a state agent when he is enforcing state law or policy. He acts as a county agent when he is enforcing county law or policy. It may be possible for the officer to wear both state and county hats at the same time . . . but when a state statute directs the actions of an official, as here, the officer, be he state or local, is acting as a state official. Accordingly, because plaintiffs allege that the Sheriff distributes bond fees as directed by a state statute, he acts as a state official when he does so. See also McMillian v. Monroe County, 520 U.S. 781, 783 (1997) (Sheriff was, for purposes of the issue before the Court, a state policymaker, not a county policymaker); Bostic v. Schaefer, 760 F.3d 352, 371 n.3 (4th Cir. 2014) (Clerk for the Circuit Court for the City of Norfolk was “proper defendant” to challenge state law). However, as a state actor sued in his official capacity, the Sheriff is entitled to the protection of the Eleventh Amendment. See Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (“Suits against state officials in their official capacity are considered to be suits against the individual office, and so are generally barred as suits against the state itself.”). “The Eleventh Amendment bars citizens of a state from suing their own state or another state in federal court unless the state has waived its sovereign immunity or Congress has expressly abrogated it.” Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013) (internal citations omitted). Section 1983 does not abrogate Eleventh Amendment immunity, Khan v. S. Univ. &
52

Agric. & Mech. Coll. Bd. of Supervisors, No. 03-30169, 2005 WL 1994301, at *3 (5th Cir. Aug. 19, 2005), and Louisiana has explicitly asserted its sovereign immunity by statute La. Rev. Stat. § 13:5106(A) (2016) (“No suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.”).
Because the Sheriff’s actions as a state official are protected by Eleventh Amendment immunity—and that immunity is undermined by neither abrogation nor consent—plaintiffs’ claims under Count Four may proceed only if they fall under the limited exception articulated in Ex parte Young, 209 U.S. 123 (1908). “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotations and modifications omitted). Because this claim is brought against the Sheriff as a state actor, and not a municipality, the Court need not apply Monell. See Rounds v. Clements, 495 F. App’x 938, 941 (10th Cir. 2012) (“[T]he ‘policy or custom’ standard . . . [is] a liability standard for suits against municipalities—entities not immune from suit under the Eleventh Amendment—and it has no applicability to state officers
53

who are immune from suit for damages but susceptible to suit under Ex parte Young for injunctive relief.”).
Plaintiffs plainly allege that the Sheriff’s enforcement of the challenged state statutes is ongoing,79 and seek only “injunctive and declaratory relief,”80 which may be fairly characterized as prospective. The Court therefore need only determine whether plaintiffs have plausibly alleged that the statutory scheme, as described, violates a federal constitutional right.
“Trial before ‘an unbiased judge’ is essential to due process.” Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v. Mississippi, 403 U.S. 212, 216 (1971)); see also Brown v. Edwards, 721 F.2d 1442, 1451 (5th Cir. 1984) (“The right to a judge unbiased by direct pecuniary interest in the outcome of a case is unquestionable.”). “[M]ost matters relating to judicial disqualification,” however, do “not rise to a constitutional level.” FTC v. Cement Inst., 333 U.S. 683, 702 (1948).
Plaintiffs cite to two Supreme Court cases finding due process violations when judges maintained pecuniary interests in cases before them. In Tumey v. Ohio, 273 U.S. 510, 510 (1927), a defendant was convicted of possessing liquor in violation of Ohio’s then-existing Prohibition Act. The
79 R. Doc. 183-2 at 27. 80 Id. at 58.
54

Act provided for trial in a “liquor court,” in which the village mayor served as judge. Id. at 521. The money raised by fines levied in these courts was divided between the state, the village, a “village safety” fund, and a “secret service” fund. Id. at 521-22. The latter fund covered expenses associated with enforcing the Prohibition Act, including nearly $700 paid to the mayor “as his fees and costs, in addition to his regular salary.” Id. at 522. The Supreme Court overturned Tumey’s conviction, and held that the mayor, acting as judge, was disqualified from deciding Tumey’s case “both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” Id. at 535.
In Ward v. Vill. of Monroeville, 409 U.S. 57, 57 (1972), the Court considered a challenge to traffic fines imposed by another Ohio “mayor’s court.” Fines generated by the mayor’s court at issue in Ward provided a “substantial portion” of the total operating funds for the municipality that the mayor oversaw. Id. at 58. The Court viewed the case as controlled by Tumey and noted that “[t]he fact that the mayor there shared directly in the fees and costs did not define the limits of the principle” of judicial bias articulated in that case. Id. Instead, the Court offered a general test to
55

determine whether an arrangement of this type compromises a defendant’s right to a disinterested and impartial judicial officer:
[T]he test is whether the [judge’s] situation is one which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused. Id. at 60 (internal quotations omitted). The Court found that this test was met in Ward because that possible temptation “[p]lainly . . . may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court.” Id. Considering this Supreme Court authority, the Court finds that plaintiffs have plausibly alleged that the bond fee system described in sections 22:822 and 13:1381.5 and implemented by the Sheriff is inconsistent with the right to an impartial judge guaranteed by the due process clause of the Fourteenth Amendment. Accordingly, the proposed amendment to permit injunctive relief against the Sheriff in his official capacity under Count Four should be permitted. G. Sheriff Gusman – Count Seven: False Imprisonment In addition to their federal claims, plaintiffs allege that the Sheriff is liable for the state law tort of false imprisonment. In Louisiana, false imprisonment “consists of two elements: ‘(1) detention of the person; and (2)
56

the unlawfulness of the detention.’” Waganfeald v. Gusman, 674 F.3d 475, 480 (5th Cir. 2012) (quoting Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 690 (La. 2006)). Here, the plaintiffs plainly allege that they were detained. The Court therefore need only ask whether plaintiffs have plausibly alleged that these detentions were unlawful.
Louisiana law provides that a law enforcement officer having custody of an arrested person shall promptly bring him, “and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel.” La. Code Crim. Proc. art. 230.1(A) (2016). Detention beyond this 72 hour period is illegal, and gives rise to a claim for false imprisonment against the jailer. State v. Wallace, 392 So. 2d 410, 413 (La. 1980) (“[W]hen an arrested person is held in custody more than 72 hours without being brought before a judge, then any detention thereafter is illegal, whether or not the initial detention was proper, and that detention (in excess of 72 hours) gives rise to (1) the right to immediate release and (2) a claim for civil damages for that illegal detention.”).
Every plaintiff except Reynaud Variste alleges specific facts concerning his or her detention in excess of 72 hours without being brought before a judge. These plaintiffs have therefore stated a claim for false imprisonment
57

under Louisiana law, and the proposed amendments as to this Count are not futile.
H. Remaining good cause factors Having considered the futility—and therefore the importance—of the proposed amendments, the Court reconsiders the remaining factors to determine whether plaintiffs have demonstrated good cause to allow amendment. The Magistrate Judge found that plaintiffs’ explanation for their failure to timely move for leave to amend was inadequate, that permitting the proposed amendment would prejudice defendants, and that this prejudice cannot be cured by granting a continuance. The Court does not find any of these conclusions to be clearly erroneous. The factors, however, must be reweighed in light of the above findings regarding importance and futility. Given the importance of the proposed amendments in asserting previously dismissed claims, and the general preference for resolving disputes on the merits, the Court finds that plaintiffs have shown good cause for permitting those amendments not found to be futile above.
58

IV. CONCLUSION For the foregoing reasons, the Magistrate Judge’s order is MODIFIED
as follows. Plaintiffs’ motion to amend is GRANTED as to the amendments regarding:
● Counts Four and Seven against Sheriff Gusman Plaintiffs’ motion to amend is DENIED as to the amendments regarding:
● Counts One, Two, and Three against Sheriff Gusman; ● Claims against the City of New Orleans; ● Claims against Judicial Administrator Robert Kazik; ● Claims against Orleans Parish Criminal District Court. Plaintiffs’ motion for extension of deadlines is DENIED AS MOOT. The Court will issue a new scheduling order separately after a status conference with all counsel.
New Orleans, Louisiana, this __3r_d__ day of February, 2017.
_____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
59

 
 Case 2:15-cv-04479-SSV-JCW Document 230 Filed 02/10/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

)

ALANA CAIN and ASHTON BROWN, )

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF NEW ORLEANS; ORLEANS )

PARISH CRIMINAL DISTRICT COURT; )

MARLIN GUSMAN, ORLEANS PARISH )

SHERIFF; ROBERT KAZIK, JUDICIAL )

ADMINISTRATOR;

)

SECTION “A” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE LAURIE A. WHITE; )

SECTION “B” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE TRACEY

)

FLEMINGS- DAVILLIER;

)

SECTION “C” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BENEDICT WILLARD;

)

SECTION “E” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE KEVA LANDRUM-JOHNSON; )

SECTION “F” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE ROBIN PITTMAN;

)

SECTION “G” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE BYRON C. WILLIAMS;

)

SECTION “H” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE CAMILLE BURAS;

)

SECTION “I” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE KAREN K. HERMAN;

)

SECTION “J” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT

)

COURT, JUDGE DARRYL DERBIGNY; )

SECTION “K” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

Case No. 2:15-4479-SSV
(Class Action) Judge Sarah S. Vance, Sec. R(2) Mag. Judge Joseph C. Wilkinson, Div. 2

Case 2:15-cv-04479-SSV-JCW Document 230 Filed 02/10/17 Page 2 of 4

JUDGE ARTHUR HUNTER;

)

SECTION “L” OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

JUDGE FRANZ ZIBILICH;

)

MAGISTRATE OF THE ORLEANS

)

PARISH CRIMINAL DISTRICT COURT, )

and JUDGE HARRY CANTRELL

)

)

Defendants.

)

___________________________________ )

Motion to Certify a Class

Plaintiffs, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure,

move this Court for an order certifying this lawsuit as a class action for prospective relief.

Named Plaintiffs propose to certify the following class, as more fully explained in the

accompanying memorandum of law: All persons who currently owe or who will incur court

debts arising from cases adjudicated in the Orleans Parish Criminal District Court.

Plaintiffs make this motion out of an abundance of caution. Plaintiffs did not file a class

certification motion earlier in this case because of this Court’s instruction not to do so until

further notice. However, in light of recent statements by the OPCDC Defendants that

Defendants would attempt to “moot” Plaintiffs’ class action claims for prospective relief,

Plaintiffs believe that they must file the motion now to ensure that their rights are protected and

that Defendants cannot avoid a constitutional ruling on their longstanding violations by

strategically terminating individual court debts. These statements are consistent with recent

efforts by the OPCDC defendants to “suspend” court debts owed by the original named Plaintiffs

in an unsuccessful attempt to render the claims of the named Plaintiffs moot. Plaintiffs file

this motion at this juncture solely to ensure that their important goal of permanently ending

unconstitutional practices that have devastating systemic consequences cannot be evaded through

procedural maneuvering.

2

Case 2:15-cv-04479-SSV-JCW Document 230 Filed 02/10/17 Page 3 of 4
Plaintiffs have no objection to staying the consideration of this motion until this Court
deems appropriate. Indeed, Defendants still have not produced basic discovery relating to
Plaintiffs’ class claims. Once Plaintiffs have received the discovery to which they are entitled,
they may supplement this motion with additional evidence supporting class certification.
WHEREFORE, Plaintiffs respectfully request that this Court certify this suit as a class
action for prospective relief as set forth above and in the accompanying memorandum of law and
grant such other relief as the Court may deem appropriate.
Respectfully submitted,
/s/ Alec Karakatsanis
Alec Karakatsanis (D.C. Bar No. 999294) (Appearing Pro Hac Vice) Civil Rights Corps 916 G Street, NW Suite 701 Washington, DC 20001 (202)-681-2409 alec@civilrightscorps.org
/s/ Bill Quigley
William P. Quigley La Bar No. 7769 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 710-3074 (c) quigley77@gmail.com
/s/ Anna Lellelid
Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) alellelid.law@gmail.com
3

Case 2:15-cv-04479-SSV-JCW Document 230 Filed 02/10/17 Page 4 of 4
/s/ Jon Greenbaum /s/ Mateya Kelley /s/ Hallie Ryan —–————––———–— Jon Greenbaum (D.C. Bar No. 489887) Mateya Kelley (N.Y. Bar Reg. 5270400) Hallie Ryan (V.A. Bar No. 85927) (Appearing Pro Hac Vice) Lawyers’ Committee for Civil Rights Under Law 1401 New York Ave NW Suite 400 Washington, DC 20005 (202) 662-8315 jgreenbaum@lawyerscommittee.org mkelley@lawyerscommittee.org hryan@lawyerscommittee.org
/s/ Jonathan P. Guy —–————––———–— Jonathan P. Guy (D.C. Bar No. 449031) (Appearing Pro Hac Vice) Orrick, Herrington & Sutcliffe, LLP 1152 15th Street, N.W. Washington, D.C. 20005-1706 (202) 339-8516 jguy@orrick.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that, on the 10th day of February 2017, I have electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to the parties.
/s/ Anna Lellelid
4

 
 Case 2:15-cv-04479-SSV-JCW Document 249 Filed 06/19/17 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

JOSEPH T. LAFRANCE

CIVIL ACTION

VERSUS

NO. 16-14439

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS
On March 14, 2017, the Court ordered the parties to show cause why
the Court should not dismiss several claims and consolidate this case with
Cain v. City of New Orleans, 15-4479 (E.D. La., filed Sep. 17, 2015). Plaintiff
Joseph LaFrance opposes dismissal of some of his claims against the Orleans
Parish Criminal District Court, Judicial Administrator Robert Kazik, and
Sheriff Marlin Gusman in his official capacity. The Judicial Defendants
oppose consolidating this case with Cain. For the following reasons, the
Court orders this case consolidated with Cain and dismisses the following
claims:
(1) Count One, against the City of New Orleans, the Orleans Parish Criminal District Court, Robert Kazik, and Sheriff Gusman in his official capacity;
(2) Count Two, against Sheriff Gusman is his official and individual capacities;
(3) Count Three, against the Orleans Parish Criminal District Court and Robert Kazik;

Case 2:15-cv-04479-SSV-JCW Document 249 Filed 06/19/17 Page 2 of 16
(4) Count Four, against the Orleans Parish Criminal District Court and Robert Kazik; and
(5) Count Five, against the Orleans Parish Criminal District Court and Robert Kazik.
I. BACKGROUND Plaintiff Joseph LaFrance alleges that he was arrested on an invalid
warrant for unpaid fines and fees and held for three weeks in Orleans Parish Prison without being brought before a judge.1 LaFrance further alleges that no bond was ever set in his case.2 While incarcerated, LaFrance allegedly suffered several seizures and lost his job.3 LaFrance names the City of New Orleans, the Orleans Parish Criminal District Court (OPCDC), Judicial Administrator Robert Kazik, and Orleans Parish Sheriff Marlin Gusman as defendants.4
LaFrance challenges his arrest and incarceration on several grounds. Specifically, LaFrance alleges that:
1. LaFrance had, in fact, paid all fines and fees due to the court, and his warrant was therefore issued in error.5

1 R. Doc. 1 at 8.

2

Id.

3 Id. at 9.

4 Id. at 6-7.

5 Id. at 32.

2

Case 2:15-cv-04479-SSV-JCW Document 249 Filed 06/19/17 Page 3 of 16
2. Defendants have a policy of issuing and enforcing such nonpayment warrants without inquiry into the subject’s ability to pay, and this practice violates the Fourth and Fourteenth Amendments to the U.S. Constitution.6
3. LaFrance was “indefinitely” jailed in violation of the Due Process Clause of the Fourteenth Amendment, and LaFrance’s incarceration constitutes wrongful arrest and imprisonment under Louisiana law.7
4. LaFrance was deprived of his right to a neutral tribunal because the prosecutor and judicial officer that seek and approve nonpayment warrants, and conduct subsequent hearings, are financially interested in the outcome of such cases.8
5. Defendants imposed unduly restrictive methods of collection on LaFrance in violation of the Equal Protection Clause of the Fourteenth Amendment.9
6 Id. at 33. 7 Id. at 33, 35. 8 Id. at 33-34. 9 Id. at 34-35.
3

Case 2:15-cv-04479-SSV-JCW Document 249 Filed 06/19/17 Page 4 of 16
II. DISCUSSION As noted, LaFrance opposes dismissal of several claims and the
Judicial Defendants oppose consolidation. The parties’ arguments are considered in turn.
A. Claims Against the Orleans Parish Criminal District Court
On May 11, 2016, the Court dismissed claims against OPCDC in the Cain case. Cain v. City of New Orleans, No. 15-4479, 2016 WL 2742374, at *2 (E.D. La. May 11, 2016). In doing so, the Court found that, as a state court, OPCDC is immune from suit under the Eleventh Amendment. Id. at *1; see also Jefferson v. La. State Supreme Court, 46 Fed. Appx. 732, *1 (5th Cir. 2002) (“The Eleventh Amendment clearly bars [plaintiff’s] § 1983 claims against the Louisiana Supreme Court, which is a branch of Louisiana's state government.”); Bourgeois v. Par. of Jefferson, 20 F.3d 465, *1 (5th Cir. 1994) (holding that the Orleans Parish Civil District Court is “an agency of the state” entitled to Eleventh Amendment immunity). The Court later rejected the Cain plaintiffs’ attempt to replead their claims against OPCDC on the same grounds. Cain v. City of New Orleans (Cain, Order re. Leave to Amend), No. 15-4479, 2017 WL 467685, at *7 (E.D. La. Feb. 3, 2017).
LaFrance does not argue that he has alleged any new facts on this issue. Rather, LaFrance simply asks the Court to apply the Fifth Circuit’s six-factor
4

Case 2:15-cv-04479-SSV-JCW Document 249 Filed 06/19/17 Page 5 of 16
test for Eleventh Amendment immunity first articulated in Clark v. Tarrant County, Texas. 798 F.2d 736, 744-45 (5th Cir. 1986). The six Clark factors are: (1) whether state statutes and case law view the agency as an arm of the state; (2) the source of the entity’s funding; (3) the entity’s degree of local autonomy; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has the authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. Hudson v. City of New Orleans, 174 F.3d 677, 679 (5th Cir. 1999) (citing Clark, 798 F.2d at 744-45). Consideration of the Clark factors confirms that OPCDC is an arm of the Louisiana state protected by the Eleventh Amendment.
First, state statutes and case law view OPCDC as an arm of the state. OPCDC was created by state statute. La. Stat. Ann. § 13:1335. As a Louisiana District Court, the state constitution vests OPCDC with “original jurisdiction of all civil and criminal matters,” including “exclusive original jurisdiction of felony cases.” La. Const. art. V, § 16; see also Mullins v. State, 387 So.2d 1151, 1152 (La. 1980) (“If the office is created by the legislature, or is established in the first instance by the constitution, it is a state office.”).
Second, OPCDC points out that the state legislature provides significant funds to finance the state judiciary, and under Louisiana Revised
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Statutes § 13:5108.1, the state is obligated to indemnify employees of “judicial district courts of the state [and] the offices of the judicial administrators thereof.” LaFrance cites no case or statute providing that a judgment against OPCDC must be satisfied from local funds. That there is no evidence of the state being liable for a judgment against OPCDC is not dispositive because the caselaw uniformly has held state courts immune. See, e.g., Jefferson v. La. State Supreme Court, 46 F. App’x 732, *1 (5th Cir. 2002) (“The Eleventh Amendment clearly bars [plaintiff’s] § 1983 claims against the Louisiana Supreme Court, which is a branch of Louisiana’s state government.”); Bourgeois v. Par. of Jefferson, 20 F.3d 465, *1 (5th Cir. 1994) (holding that the Orleans Parish Civil District Court is “an agency of the state” entitled to Eleventh Amendment immunity); Summers v. Louisiana, No. 13-4573, 2013 WL 3818560, at *4 (E.D. La. July 22, 2013) (holding that an official capacity claim against a state court judge “would in reality be a claim against the state itself, and . . . would be barred by the Eleventh Amendment”); Wilkerson v. 17th Judicial Dist. Court, No. 08-1196, 2009 WL 249737, at *4 (E.D. La. Jan. 30, 2009) (“It is clear that the Eleventh Amendment bars § 1983 claims against a state court.”); Rackley v. Louisiana, No. 07-504, 2007 WL 1792524, at *3 (E.D. La. June 21, 2007) (“[T]he Eleventh Amendment likewise bars § 1983 claims against a state
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court.”); see generally Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997) (noting that state courts are not “persons” under section 1983 and are otherwise immune from suit as an arm of the state government); Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995) (holding that Oklahoma Court of Criminal Appeals is immune from suit under Eleventh Amendment as “a governmental entity that is an arm of the state”); Landers Seed Co., Inc. v. Champaign Nat’l Bank, 15 F.3d 729, 731-32 (7th Cir. 1994) (“The Eleventh Amendment, however, bars federal suits against state courts and other branches of state government[.]”); Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993) (“Courts are not persons within the meaning of 42 U.S.C. § 1983, and, if they were, the action would be barred by the Eleventh Amendment anyway.”). Accordingly, the second factor supports a finding of immunity.
Third, OPCDC has limited local autonomy. OPCDC chiefly applies state criminal laws passed by the Louisiana legislature. Additionally, state statutes govern such minute issues as how much vacation time judges receive, La. Stat. Ann. § 13:1342, how judges are reimbursed for office supplies, La. Stat. Ann. § 13:1341.2, and how cases are allotted among judges. La. Stat. Ann. § 13:1343.
Fourth, OPCDC is primarily concerned with statewide problems. The Court is part of a statewide system of district courts empowered to enforce
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state criminal statutes. The administrative choice to divide the state into several judicial districts, and place a district court in each, does not alter this conclusion. See Clark, 798 F.2d 736, 745 (holding that, despite operating in only one county, the Tarrant County Adult Probation Department was primarily concerned with statewide problems because “[d]ividing the responsibilities into judicial districts is merely an administrative tool for handling a statewide, state program.”).
As to the fifth and sixth Clark factors, LaFrance presents argument suggesting that OPCDC has the authority both to own property and to sue and be sued. These two factors, however, carry less weight than the other four. Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999) (“[W]e typically deal with the last two factors in a fairly brief fashion.”). Accordingly, even accepting LaFrance’s arguments at face value, the fifth and sixth factors alone cannot upend the Court’s conclusion that OPCDC enjoys Eleventh Amendment immunity. The Court therefore finds that LaFrance’s claims against OPCDC are properly dismissed.
B. Official Capacity Claims Against Judicial Administrator Kazik
In Cain, the plaintiffs argued that Kazik is not entitled to quasi-judicial absolute immunity because he seeks rather than issues warrants. Cain, Order re. Leave to Amend, 2017 WL 467685, at *6-7. The Court rejected this
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argument, and found that Kazik’s alleged role in causing the Cain plaintiffs’ injury was functionally judicial, and that quasi-judicial absolute immunity therefore applied. Id. LaFrance offers nothing new on this point, opting instead to simply repackage the Cain plaintiffs’ failed arguments. The Court therefore finds that LaFrance’s claims against Kazik are properly dismissed for the reasons stated in the Court’s earlier order. Id.
C. Official Capacity Claims Against Sheriff Gusman LaFrance also opposes dismissal of Counts One and Two against Sheriff Gusman in his official capacity. In Count One, LaFrance alleges that Gusman detained LaFrance pursuant to a warrant that Gusman knew or should have known was invalid. In Count Two, LaFrance alleges that he was indefinitely detained by Gusman without due process of law. The Court dismissed analogous claims in Cain, and finds that both counts are properly dismissed.
i. Count One As to Count One, the Court found in Cain that the plaintiffs’ complaint described a facially lawful policy of executing facially valid arrest warrants. Cain, Order re. Leave to Amend, 2017 WL 467685, at *12-13. Therefore, under Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), the Cain plaintiffs could not survive a motion to dismiss absent alleged facts giving rise to a
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plausible inference that Gusman acted with deliberate indifference. Id. Because the Cain plaintiffs did not plausibly allege that Gusman knowingly held plaintiffs pursuant to invalid warrants, plaintiffs failed to state a claim under Monell. Id.
LaFrance points to two sets of allegations that purportedly distinguish his case from Cain and save his claim under Count One: (1) LaFrance alleges that he was detained by Gusman until September 21, 2015, four days after the Cain plaintiffs filed suit; and (2) LaFrance filed certain grievances with the Sheriff’s office while he was held, and his girlfriend repeatedly called the Orleans Parish Prison. Neither set of allegations saves LaFrance’s claim.
LaFrance argues that the Cain suit put Gusman on notice that the capias warrants routinely executed by his office were constitutionally defective and issued without an individualized finding of probable cause. LaFrance specifically points to a hearing transcript attached to the Cain complaint, in which an OPCDC Collections Agent describes her offices’ practices. Even assuming that the Cain complaint could provide sufficient notice such that Gusman’s continued enforcement would constitute deliberate indifference—and that Gusman had an immediate duty to stop executing facially valid warrants after he became aware of the suit— LaFrance’s argument still fails. As made clear by the relevant return of
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service, the Cain plaintiffs did not serve Gusman until September 22, 2015, the day after LaFrance was released.10 Cain v. City of New Orleans, 15-4479 (E.D. La. Oct. 16, 2015) (proof of service of Marlin Gusman). LaFrance pleads no facts to support a finding that Gusman became aware of the suit before he was actually served. Accordingly, the filing of the Cain suit cannot render Gusman’s conduct deliberately indifferent under Monell.
As to LaFrance’s second argument, complaints made by LaFrance and his girlfriend are irrelevant to Count One. LaFrance alleges that he complained he was “lost in the system” and that he needed to know what his warrant was about and why he had not been to court.11 LaFrance also alleges that his girlfriend called the Orleans Parish Prison repeatedly to try to set a hearing before a judge.12 But these complaints plainly do nothing to inform Gusman or his staff that LaFrance was arrested pursuant to warrant issued absent probable cause. Accordingly, the Court finds that LaFrance’s claim under Count One against Sheriff Gusman in his official capacity is properly dismissed.
10 R. Doc. 1 at 33 (alleging that “Mr. LaFrance was illegally incarcerated from September 3, 2015 until September 21, 2015”). 11 Id. at 9. 12 Id. at 9-10.
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ii. Count Two LaFrance alleges in Count Two that he was indefinitely detained by Gusman without due process of law. LaFrance concedes that the Court dismissed an analogous claim in Cain, but argues that his claim “differs importantly from its counterpart in Cain because [LaFrance] alleges that his detention violated a state law right to a timely hearing.”13 The state law in question, Louisiana Code of Criminal Procedure article 230.1, requires that state arrestees be brought before judge for the purpose of appointing counsel within 72 hours of arrest. Arrestees who are not brought before a judge within the period established by the statue “shall be released forthwith.” La. Code Crim. P. art. 230.1. LaFrance argues that this statute gives rise to constitutionally protected liberty interest, and that Gusman’s alleged failure to comply therefore takes on a constitutional dimension. The Fifth Circuit has repeatedly rejected constitutional claims grounded in analogous statutes, and the Court is bound by this clear precedent. See Perry v. Jones, 506 F.2d 778, 781 (5th Cir. 1975) (“[E]ven though the failure to take Perry before a magistrate violates Texas law, it does not rise to the status of a denial of due process”); Scarbrough v. Dutton, 393 F.2d 6 (5th Cir. 1968) (seven month detention in violation of Georgia statute
13 R. Doc. 25 at 14. 12

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requiring a preliminary hearing be held within 72 hours of arrest did not give rise to constitutional violation); see also Stephenson v. Gaskins, 539 F.2d 1066, 1067 (5th Cir. 1976) (thirty-eight day detention in Georgia jail without a preliminary hearing did not give rise to a constitutional claim); Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir. 1971) (“[T]he right under the federal rules to be promptly taken before a magistrate has not been given constitutional status.”) (quoting Kulyk v. United States, 414 F.2d 139, 141 (5th Cir. 1969)).
To resist this conclusion, LaFrance cites Griffin v. City of Lafayette, in which the Fifth Circuit “presume[d] without deciding” for purpose of the appeal that article 230.1 creates a liberty interest actionable under 42 U.S.C. § 1983. 166 F.3d. 340 (5th Cir. 1998). Even accepting the doubtful premise that Griffin could be read to contradict Perry and Scarbrough, the Court remains bound by the earlier decisions. See H&D Tire & Auto.-Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000) (“When panel opinions appear to conflict, we are bound to follow the earlier opinion.”). Accordingly, LaFrance’s official capacity claims against Sheriff Gusman under Count Two must be dismissed.
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D. Consolidation Federal Rule of Civil Procedure 42(a) provides for consolidation of actions involving “a common question of law or fact.” Fed R. Civ. P. 42(a)(2). The rule gives district courts “broad discretion . . . to consolidate cases pending in the same district.” In re Dearborn Marine Serv., Inc., 499 F.2d 263, 270-71 (5th Cir. 1974); see also Luera v. M/V Alberta, 635 F.3d 181, 194 (5th Cir. 2011) (“Rule 42(a) provides district courts with broad authority to consolidate actions that “involve a common question of law or fact.”). The Judicial Defendants oppose consolidation of this case with Cain. In support, the Judicial Defendants argue (1) that the legal issues are not similar in the two cases, and (2) that the parties in the two cases are different. The Court finds neither assertion compelling. As to the Judicial Defendants first argument, the Court finds that the two cases clearly share several common questions of fact and law, as demonstrated by the nearly identical complaints. Second, the Court finds that there is near-perfect overlap between the defendants in the two cases, especially following the dismissals provided for in this order. Finally, that this case is brought by a different plaintiff does not preclude consolidation. See Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, 1118-1119 (N.D. Cal. 2010) (consolidating cases brought by different plaintiffs but raising substantially same claims against same
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defendants). Accordingly, the Court orders this case consolidated with Cain pursuant to Rule 42(a).
III. CONCLUSION For the foregoing reasons, the following claims are DISMISSED: (1) Count One, against the City of New Orleans, the Orleans Parish Criminal District Court, Robert Kazik, and Sheriff Gusman in his official capacity; (2) Count Two, against Sheriff Gusman is his official and individual capacities; (3) Count Three, against the Orleans Parish Criminal District Court and Robert Kazik; (4) Count Four, against the Orleans Parish Criminal District Court and Robert Kazik; (5) Count Five, against the Orleans Parish Criminal District Court and Robert Kazik. It is further ORDERED that this case be consolidated with Cain v. City
of New Orleans, 15-4479 (E.D. La., filed Sep. 17, 2015). Pursuant to the Court’s directive, all pleadings hereafter filed in this consolidated proceeding shall bear the caption of the lead consolidated case together with the docket number of all cases within the consolidation to which the document applies or the notation “ALL CASES” if it applies to all cases.
The clerk of court is directed to establish a master file and a master docket sheet for the consolidated group of cases.
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All entries shall be made on the master docket sheet only, with a notation listing the cases to which the document applies, except that orders and documents terminating a party or disposing of a case will also be entered on the individual docket sheet. All documents shall be filed in the master file only, except that orders and documents terminating a party or disposing of a case will also be filed in the record of the individual case.
In the event that a case is separated from the consolidated group it shall be the responsibility of counsel to jointly designate the documents in the master record necessary to the continued litigation of the separated case and to file such designation with the clerk within seven days of the deconsolidation order.
New Orleans, Louisiana, this __19_t_h _ day of June, 2017. _____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS

Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983, challenging the manner in which the Orleans Parish Criminal District Court collects post-judgment court debts from indigent criminal defendants. Before the Court are the parties’ crossmotions for partial summary judgment.1 These motions turn on justiciability, the constitutionality of defendants’ debt collection practices, and the constitutionality of the legislative framework that vests both judicial and executive power in the judges of the Orleans Parish Criminal District Court. For the following reasons, the Court grants in part and denies in part each motion.

1 R. Docs. 250, 251. 1

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I. BACKGROUND Plaintiffs are former criminal defendants in the Orleans Parish
Criminal District Court (OPCDC). Each named plaintiff pleaded guilty to various criminal offenses between 2011 and 2014.2 All named plaintiffs, except Reynaud Variste, were appointed counsel.3 The Court previously dismissed Reynaud Variste’s and Long’s claims for equitable relief.4 Thus, only Cain, Brown, Reynajia Variste, and Maxwell have live claims for equitable relief.
The remaining defendants are OPCDC Judges Laurie A. White, Tracey Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry Cantrell (collectively, the Judges); OPCDC Judicial Administrator Robert Kazik; and Orleans Parish Sheriff Marlin Gusman.
A. Fines and Fees Imposed by OPCDC The Judges impose various costs on convicted criminal defendants at their sentencing. First, the Judges may impose a fine, which is divided evenly between OPCDC and the District Attorney (DA). La. Rev. Stat.
2 R. Doc. 248 at 4-5. 3 R. Doc. 59-3 at 2, 6, 9, 18, 23; R. Doc. 95-7 at 1. 4 See R. Doc. 109 at 19-21.
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§ 15:571.11(D). Second, the Judges may order a criminal defendant to pay restitution to victims. La. Code Crim. Proc. art. 883.2. Third, the Judges impose various fees that go to OPCDC:
• A mandatory $5 fee, La. Rev. Stat. § 13:1381.4(A)(1); • Additional fees up to $500 on a misdemeanant and $2,500 on a
felon, id. § 13:1381.4(A)(2); • Court costs up to $100, id. § 13:1377(A); • A fee of $14 for the Indigent Transcript Fund, id. § 13:1381.1(B),
which “compensate[s] court reporters for the preparation of all transcripts for indigent defendants,” id. § 13:1381.1(A); and • Additional costs under Louisiana Code of Criminal Procedure Article 887(A) for the Indigent Transcript Fund.5 Fourth, the “court costs” imposed by Judges also include fees that go to other entities, such as the Orleans Public Defender, the DA, and the Louisiana Supreme Court.6 After sentencing, OPCDC may further assess criminal defendants for the costs of drug treatment and drug testing. La. Rev. Stat. § 13:5304.
5 For example, both Alana Cain and Ashton Brown were assessed $100 for the Indigent Transcript Fund as a condition of their probation. R. Doc. 248 at 4. 6 See R. Doc. 248-1 at 5 (breakdown of court costs that go to OPCDC and other entities).
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Separately, the Sheriff collects a 3% fee on bail bonds secured by commercial sureties. Id. § 22:822(A)(2). Sixty percent of this fee, or 1.8% of the bonds, goes to OPCDC. Id. §§ 22:822(B)(3), 13:1381.5(B)(2)(a).
As a result of their criminal convictions, the named plaintiffs were assessed fines and fees ranging from $148 (imposed on Long) to $901.50 (imposed on Cain).7 Cain pleaded guilty to felony theft on May 30, 2013.8 At sentencing, the court stated that payment of fines and fees was a special condition of probation.9 The court directed Cain to make the first $100 payment at the courthouse on July 8, 2013, and stated, “[e]ven if you don’t have the money, you have to come here to the courtroom . . . for an extension.”10 The court later ordered Cain to pay $1,800 in restitution.11
Brown received a 90-day suspended sentence after pleading guilty to misdemeanor theft on December 16, 2013.12 The court imposed $500 in fees: $146 for the Judicial Expense Fund, $100 for the Indigent Transcript Fund, $234 in court costs, and a $20 special assessment for the DA.13 As with Cain,
7 R. Doc. 248 at 4-5. 8 R. Doc. 255-3 at 2, 16. 9 Id. at 13. 10 Id. at 19. 11 R. Doc. 59-3 at 2. 12 R. Doc. 255-4 at 2, 4, 11. 13 Id. at 11, 15. Again, “court costs” include fees that go to other entities besides OPCDC. See R. Doc. 248-1 at 5.
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the court instructed Brown to make his first $100 payment at the courthouse on January 13, 2014.14 The judge told Brown that if he could not pay on that date, he should go to the judge’s courtroom and request an extension.15
Reynajia Variste was sentenced to two years of probation after she pleaded guilty to aggravated battery on October 21, 2014.16 Variste was assessed fees in the amount of $886.50: $286.50 in court costs, $200 for the Indigent Transcript Fund, and $400 for the Judicial Expense Fund.17 The judge warned Variste that “[f]ailure to make those payments will result in contempt of Court proceedings.”18
Vanessa Maxwell was sentenced to eighteen months imprisonment for battery and six months for simple criminal damage after pleading guilty on March 6, 2012.19 Maxwell was assessed $191.50 in court costs, although the judge did not specify this amount at sentencing.20
14 R. Doc. 255-4 at 15. 15 Id. at 16. 16 R. Doc. 95-6 at 8-9, 13. 17 Id. at 13. 18 Id. 19 R. Doc. 95-8 at 8, 12, 15. 20 Id. at 1, 15; R. Doc. 248 at 5.
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B. The OPCDC Budget The Judges manage the budget of OPCDC.21 From 2012 through 2015, the court’s revenue ranged from $7,567,857 (in 2012) to $11,232,470 (in 2013).22 Some of this revenue could be used only for specified purposes and went into a restricted fund; unrestricted revenue went into OPCDC’s Judicial Expense Fund, which is the general operating fund for court operations.23 See La. Rev. Stat. § 13:1381.4. The Judges exclusively control this fund and may use it “for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof.” Id. § 13:1381.4(C). They may not use it to supplement their own salaries. Id. § 13:1381.4(D). Most money for salaries and benefits of OPCDC employees (apart from the Judges) comes from the Judicial Expense Fund.24 From 2012 through 2015, the Judicial Expense Fund’s annual revenue was approximately $4,000,000.25 Roughly half of this revenue came from other governmental entities, especially the City of New Orleans.26 About
21 R. Doc. 251-2 at 3; R. Doc. 255-5 at 5. 22 R. Doc. 248 at 2. 23 Id.; R. Doc. 251-2 at 3. The Judicial Expense Fund is also known as the General Fund. R. Doc. 248 at 2. 24 R. Doc. 251-2 at 5; R. Doc. 255-5 at 9. 25 R. Doc. 248-1 at 1-4. Specifically, the Judicial Expense Fund had $4,090,707 in revenue in 2012; $4,100,413 in 2013; $3,928,025 in 2014; and $3,940,535 in 2015. 26 Id. at 1-3.
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$1,000,000 came from bail bond fees, and another $1,000,000 from fines and other fees.27 Since at least 2013, all fines and fees revenue has gone to the Judicial Expense Fund.28
C. OPCDC’s Debt Collection Practices All named plaintiffs were subject to OPCDC’s debt collection practices. At least until September 18, 2015, the Judges delegated authority to collect court debts to the Collections Department, which the Judges and Administrator Kazik jointly instructed and supervised.29 The Collections Department created payment plans for criminal defendants, accepted payments, and granted extensions.30 Some Judges also delegated authority to the Collections Department to issue alias capias warrants against criminal defendants who failed to pay court debts.31 Before the Collections Department issued these alias capias warrants, its agents were trained to send two form letters to criminal defendants who had missed payments.32 The first letter stated: “Recently, at your sentencing in court, you were given probation. At such time the Judge instructed you,
27 R. Doc. 248 at 2. 28 R. Doc. 251-2 at 12. 29 R. Doc. 248 at 7. 30 Id. 31 Id. 32 R. Doc. 251-2 at 20; R. Doc. 255-5 at 27; R. Doc. 1-2 at 6.
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that as a condition of probation you were to report to our office and make arrangements to pay your fines that are now delinquent.” The letter also directed its recipient to appear at the court “to resolve this matter” by a given date. “Failure to comply with the conditions of probation,” the letter warned, “will result in your immediate arrest.”33 The second letter stated: “Unless arrangements are made with [the collections agent] or payment is received in full within 72 hours[,] . . . we will request your immediate arrest.”34
The Collections Department then checked court dockets to determine whether the court had granted an extension on or accepted a payment toward an individual’s court debts.35 The Collections Department also checked probation and local jail records.36 If these checks revealed no reason for an individual’s failure to pay, the Collections Department issued an alias capias warrant for the individual’s arrest.37
These alias capias warrants stated that the individual named in the warrant was charged with contempt of court.38 The warrants usually set surety bail at the predetermined amount of $20,000.39 Although the Judges
33 R. Doc. 251-5 at 328. 34 Id. at 329. 35 R. Doc. 248 at 7. 36 Id. 37 Id.; R. Doc. 251-5 at 330 (example of a blank alias capias warrant). 38 R. Doc. 251-5 at 330. 39 Id.; R. Doc. 248 at 7.
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did not review these warrants, the Collections Department affixed a judge’s signature to each one.40 OPCDC’s Collections Department issued such warrants to arrest the named plaintiffs for failure to pay fines and fees.41
Individuals arrested pursuant to these warrants ordinarily remained in jail until their family or friends could make a payment on their court debt, or until a judge released them.42 The named plaintiffs were imprisoned for periods ranging from six days to two weeks.43
Alana Cain was arrested pursuant to an alias capias warrant on March 11, 2015.44 Apparently unable either to make a payment or to post the $20,000 bond, she spent a week in jail before she obtained a court hearing on March 18.45 At that hearing, the judge asked Cain when she would be able to continue making payments.46 Cain explained that she had missed a payment after giving birth a few weeks earlier, but could continue making payments upon her release.47 The judge ordered her release and directed her
40 R. Doc. 251-2 at 21; R. Doc. 255-5 at 28; R. Doc. 1-2 at 8. 41 R. Doc. 248 at 4. 42 R. Doc. 251-2 at 22; R. Doc. 255-5 at 25; R. Doc. 1-2 at 12-13. 43 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 44 R. Doc. 251-5 at 369; see also R. Doc. 59-3 at 2 (warrant issued on March 4, 2015). 45 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 46 R. Doc. 95-3 at 30. 47 Id. at 29-31.
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to return to court for a status update two weeks later.48 OPCDC suspended Cain’s court debts on April 7, 2016,49 although Cain made further payments toward her court debts after that date.50
Ashton Brown spent two weeks in jail before his family secured his release by making a $100 payment to OPCDC.51 An alias capias warrant issued on July 16, 2015, and Brown was arrested on July 23.52 Brown appeared in court without counsel on August 6; the court agreed to release Brown upon payment of $100 to OPCDC.53 Brown’s family made this payment the next day, and Brown was released.54 OPCDC suspended Brown’s court debts on September 23, 2016,55 although Brown, like Cain, made further payments after that date.56
Reynajia Variste was arrested pursuant to an alias capias warrant on May 28, 2015.57 On June 2, a family member paid $400 to OPCDC in order
48 Id. at 32. 49 R. Doc. 250-3 at 22 50 See R. Doc. 230-3 at 1-2 (payment receipts dated August 26, 2016, and October 12, 2016). 51 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 52 R. Doc. 59-3 at 6. 53 Id. 54 Id. 55 R. Doc. 250-3 at 23. 56 R. Doc. 230-3 at 3 (payment receipt dated February 10, 2017). 57 R. Doc. 95-6 at 1.
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to secure her release.58 Although Variste did not appear before a judge on that date, her attorney did.59 OPCDC waived Variste’s outstanding debt on August 31, 2016.60
Vanessa Maxwell was arrested on May 10, 2015, on an alias capias warrant.61 On May 12, she filed a grievance with the Orleans Parish Sheriff’s Office seeking a new date to make a payment.62 The office responded that she did not yet have a court date, and that to secure her release she just needed to “get someone to go to fines and fees to make arrangements.”63 Maxwell filed another grievance two days later, asking the Sheriff’s Office to place her on the court’s docket; the office again directed Maxwell to “get a family [member] to go over and make arrangements with fines n fees [sic]. Explain you have been incarcerated[;] they will make some type of arrangements for payments.”64 Maxwell finally appeared before a judge,
58 Id. at 1-2, 22. 59 Id. at 1. 60 R. Doc. 250-3 at 25. 61 R. Doc. 251-5 at 370. 62 Id. at 362. 63 Id. 64 Id.
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with counsel, on May 22, 2015.65 The judge ordered her release without payment.66 Maxwell paid off her court debt on June 2, 2016.67
After this suit was filed, the Judges revoked the Collections Department’s authority to issue warrants.68 The Judges also recalled all active fines and fees warrants issued by the Collections Department before September 18, 2015, unless restitution remained unpaid or the individual had failed to appear in court.69 In doing so, the Judges wrote off $1,000,000 in court debts.70 Each Judge now “handles collection-related matters on their respective dockets.”71
Nevertheless, at least some active warrants for failure to pay restitution still exist.72 And the Judges themselves now issue alias capias warrants for failure to pay fines and fees.73 There is no evidence that the Judges now consider, or have ever considered, ability to pay before imprisoning indigent criminal defendants for failure to pay fines and fees. Indeed, the Judges do not routinely solicit financial information from criminal defendants who fail
65 R. Doc. 95-8 at 2. 66 Id. 67 R. Doc. 250-3 at 24. 68 R. Doc. 250-2 at 13, 76; R. Doc. 250-3 at 3. 69 R. Doc. 250-3 at 4. 70 Id. 71 Id. at 5. 72 Id. 73 See, e.g., R. Doc. 250-3 at 16, 21.
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to pay court debts,74 though they state that they do consider ability to pay when the issue is brought to their attention.75
D. Procedural History Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, and violations of Louisiana tort law. Plaintiffs brought this action on behalf of themselves and all others similarly situated.76 The first amended complaint, filed shortly after the initial complaint, named the following defendants: (1) The City of New Orleans, (2) OPCDC, (3) Sheriff Gusman, (4) Clerk of Court Arthur Morrell, (5) Judicial Administrator Kazik, and (6) the Judges. The Court has summarized plaintiffs’ seven counts as follows: (1) Defendants’ policy of issuing and executing arrest warrants for
nonpayment of court debts is unconstitutional under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment;
74 R. Doc. 251-2 at 17. 75 R. Doc. 250-2 at 12; R. Doc. 259-1 at 8. 76 Although plaintiffs moved for class certification on February 10, 2017, see R. Doc. 230, the Court stayed all motion practice—and thus denied plaintiffs’ class certification motion without prejudice—pending further order, see R. Doc. 237.
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(2) Defendants’ policy of requiring a $20,000 “fixed secured money bond” for each Collections Department warrant (issued for nonpayment of court debts) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment;
(3) Defendants’ policy of indefinitely jailing indigent debtors for nonpayment of court debts without a judicial hearing is unconstitutional under the Due Process Clause of the Fourteenth Amendment;
(4) Defendants’ “scheme of money bonds” to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendment. To the extent defendants argue this scheme is in compliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, governing the percentage of each surety bond that judicial actors receive, those statutes are unconstitutional;
(5) Defendants’ policy of jailing indigent debtors for nonpayment of court debts without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, and the
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Judges’ authority over both fines and fees revenue and ability-topay determinations violates the Due Process Clause; (6) Defendants’ policy of jailing and threatening to imprison criminal defendants for nonpayment of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it imposes unduly harsh and punitive restrictions on debtors whose creditor is the State, as compared to debtors who owe money to private creditors; (7) Defendants’ conduct constitutes wrongful arrest and wrongful imprisonment under Louisiana law. Plaintiffs’ request for relief seeks: (1) declaratory judgments that defendants’ actions violate plaintiffs’ Fourth and Fourteenth Amendment rights; (2) an order enjoining defendants from enforcing the purportedly unconstitutional policies; (3) money damages for the named plaintiffs; and (4) attorney’s fees under 42 U.S.C. § 1988. After a round of motions, all claims against the City of New Orleans, the Sheriff, and OPCDC were dismissed, along with Count Three and claims against the remaining defendants for monetary and injunctive relief.77 The Court then granted plaintiffs’ leave to re-plead Counts Four and Seven
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against the Sheriff in plaintiffs’ second amended complaint.78 The Court also consolidated this case with LaFrance v. City of New Orleans, 16-14439.79
Now, plaintiffs seek declaratory relief against the Judges in their official capacity on Counts One, Two, Four, Five, and Six; declaratory relief against Administrator Kazik in his individual capacity on Counts One, Two, and Six; injunctive and declaratory relief against Sheriff Gusman in his official capacity on Count Four; and injunctive and declaratory relief as well as damages against the Sheriff on Count Seven.
As ordered by the Court, the parties have submitted cross-motions for summary judgment on Counts One, Two, Four, Five, and Six.80
II. STANDARD OF REVIEW Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
78 R. Doc. 228. 79 R. Doc. 249. 80 R. Doc. 237. The Court has stayed all other motion practice. In contravention of the Court’s order, plaintiffs have moved for summary judgment on Count Seven. Plaintiffs’ summary judgment motion is DENIED WITHOUT PREJUDICE to the extent it seeks relief on Count Seven.
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1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party’s
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evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION A. Justiciability Defendants’ motion for summary judgment challenges the
justiciability of this action on several grounds. First, defendants argue that
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the named plaintiffs lack standing. Second, they argue that certain claims are moot in light of defendants’ voluntary cessation of challenged conduct. Third, defendants argue that plaintiffs impermissibly seek a writ of mandamus against state judicial officers. Fourth, defendants argue that the Court cannot grant declaratory relief in this case. Finally, defendants argue that the Eleventh Amendment bars official-capacity claims against state judicial officers.
1. Standing and Mootness Article III of the U.S. Constitution limits federal jurisdiction to cases or controversies. U.S. Const. art. III, § 2. To satisfy this case-or-controversy requirement, a plaintiff must have a personal stake in the suit she commences. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 732-33 (2008). This personal stake must exist both at commencement and throughout the life of the suit. Id. (“To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997))). If a plaintiff does not have the requisite personal stake at the commencement of the suit, she lacks standing. If her once-sufficient personal stake dissipates during the life of the suit such that Article III is no longer satisfied, her claims become moot.
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See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 189 (2000) (first addressing standing at the commencement of suit and then addressing mootness).
Defendants confuse these two doctrines—standing and mootness—in their motion for summary judgment. First, they argue that the named plaintiffs lack standing because their debts have been “suspended” or “waived.”81 Second, defendants argue that their voluntary cessation of certain debt collection practices moots plaintiffs’ claims challenging those practices.82 Neither argument applies to plaintiffs’ damages claim under Louisiana law, in which plaintiffs obviously have a continuing interest.
The waiver or suspension of plaintiffs’ court debts after the commencement of this suit relates to mootness, not standing. Plaintiffs have standing to bring suit as long as they “had the requisite stake in the outcome when the suit was filed.” Davis, 554 U.S. at 734. Standing to bring suit, however, has no bearing on whether plaintiffs’ claims became moot during the life of the suit. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (distinguishing standing from mootness). Whether the
81 R. Doc. 250-1 at 4. 82 Id. at 10.
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“suspension” or “waiver” of plaintiffs’ court debts destroyed their interest in the outcome of this suit is properly addressed as a question of mootness.
2. Plaintiffs Had Standing to Bring Suit The Court is nonetheless obligated to determine whether the parties had standing to bring suit. Laidlaw, 528 U.S. at 180. Standing consists of three elements: (1) the plaintiff must have suffered an injury-in-fact, which is an invasion of a legally protected interest that is concrete and particularized as well as actual or imminent; (2) the injury must be fairly traceable to the challenged conduct of the defendant; and (3) it must be likely that the plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). With regard to “equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” Soc’y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir. 1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). In support of their standing argument, defendants note that this Court dismissed Reynaud Variste’s and Thaddeus Long’s claims for equitable relief because neither plaintiff owed outstanding courts debts for which they could
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be imprisoned.83 But those plaintiffs lacked standing to seek equitable relief because they faced no imminent injury when the suit commenced. The amended complaint itself acknowledged that both plaintiffs had already paid their court debts, and thus no longer faced an imminent threat of injury from defendants’ debt collection policies and practices.84
The Court is satisfied that the other named plaintiffs—Alana Cain, Ashton Brown, Reynajia Variste, and Vanessa Maxwell—had standing to bring suit. Defendants do not contest that these plaintiffs owed court debts when this suit was filed in September 2015. Thus, there is no dispute that these plaintiffs were subject to defendants’ debt collection policies and practices when this suit began.
Plaintiffs demonstrated a concrete and imminent injury arising from defendants’ policies and practices: the risk of arrest and imprisonment for failing to pay outstanding court debts. This risk was not hypothetical or speculative; plaintiffs themselves were arrested and imprisoned for that very reason shortly before the suit commenced. Compare Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543 (5th Cir. 2008) (concluding that “because some Plaintiff bar owners have been charged under the ordinance and all
83 R. Doc. 109 at 20. 84 R. Doc. 7 at 15 ¶ 48, 18 ¶ 67.
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Plaintiff bar owners face the real potential of immediate criminal prosecution, they have standing to bring their claims”), with Soc’y of Separationists, 959 F.2d at 1285-86 (holding that the likelihood of plaintiff juror again being selected for jury service and again assigned to defendant judge was too slim to permit prospective relief against defendant). Finally, plaintiffs’ requested relief—a declaration that defendants’ debt collection policies and practices are unconstitutional—would redress the threat of injury they faced. The Court now turns to whether plaintiffs’ personal stake in the litigation, sufficient to support Article III standing at commencement, dissipated over time.
3. Defendants’ Voluntary Cessation Moots Counts One, Two, and Four
The Court first addresses whether any claims are moot in light of defendants’ voluntary cessation of certain debt collection practices. As a general rule, “any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot,” Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006), and requires that the case be dismissed, Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013). Although “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’” Laidlaw, 528 U.S. at
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189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)), this rule is not absolute. “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). Additionally, “[w]ithout evidence to the contrary, [courts] assume that formally announced changes to official governmental policy are not mere litigation posturing.” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009). Nonetheless, a defendant’s burden of showing mootness by virtue of its voluntary cessation is “formidable.” Laidlaw, 528 U.S. at 190.
Defendants, through an affidavit by Administrator Kazik, state that they have taken the following actions in response to this lawsuit:85
• Defendants rescinded the Collections Department’s authority to issue warrants.86
• Defendants identified all Collections Department fines and fees warrants based solely on failure to pay fines and fees (other than restitution) and directed Sheriff Gusman to recall these warrants.87
85 R. Doc. 250-1 at 11. 86 R. Doc. 250-2 at 13, 76; R. Doc. 250-3 at 3. 87 R. Doc. 250-2 at 13-14; R. Doc. 250-3 at 4.
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• Defendants have “written off” approximately $1,000,000 in fines
and fees owed to the court.88
• Defendants have worked together “to implement new procedures
to correct complaints about delays in getting arrestees timely to
court.”89
The Collections Department’s practice of issuing fines and fees
warrants forms the basis of Counts One, Two, and Four. Count One asserts
that defendants issue arrest warrants for failure to pay fines and fees without
probable cause, without review by a neutral magistrate, and without oath or
affirmation.90 The allegations in support of Count One relate solely to
warrants issued by the Collections Department.91 Similarly, Counts Two and
Four relate to the fixed, $20,000 money bail imposed on individuals who are
arrested on Collections Department warrants.92 Counts Five and Six, by
88 R. Doc. 250-2 at 13-14; R. Doc. 250-3 at 4. 89 R. Doc. 250-1 at 11; R. Doc. 250-3 at 6, 29. 90 R. Doc. 161-4 at 56-57 ¶¶ 185-86; R. Doc. 251-1 at 18-25. 91 See, e.g., R. Doc. 161-4 at 34 ¶ 118 (“Pursuant to Collections Department policy and practice, if a person fails to make the payments determined by the Collections Department, Collections Department employees will seek a warrant for the debtor’s arrest. . . . The ‘warrants’ are never presented to a judge or neutral magistrate for review, and no judicial officer is even aware of any particular warrant application or issuance. They are not supported by oath or affirmation.”). 92 See id. at 27 ¶ 95 (“The OPCDC Defendants impose an automatic $20,000 secured money bond on anyone illegally arrested and imprisoned on a Collections Department warrant for non-payment or late payment of
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contrast, do not depend on abandoned Collections Department practices.
Count Five asserts that the Judges fail to consider ability to pay before
imprisoning plaintiffs for failure to pay court debts.93 Count Five further
asserts that the Judges do not provide a neutral tribunal to determine ability
to pay because their financial interest in fines and fees revenue deprives
plaintiffs of due process.94 Count Six broadly alleges that defendants’
practice of imprisoning criminal defendants for failure to pay fines and fees
is invidious discrimination.95 Thus, if it is absolutely clear that the
Collections Department’s warrant practices have ceased and cannot
reasonably be expected to recur, then Counts One, Two, and Four, but not
Counts Five and Six, would be moot.
Defendants insist that the Collections Department “will never again
issue warrants.”96 The Court does not doubt defendants’ sincerity. But the
court debts.”); id. at 57 ¶ 191 (“The Defendants violate the Plaintiffs’ rights by placing and keeping them in jail prior to any debt-collection proceedings when they cannot afford to pay the preset amount of money required for release after a Collections Department nonpayment arrest . . . .”); id. at 58 ¶ 195 (“Defendants operate a system of money bond in which the OPCDC Defendants set a bond amount on Collections Department warrants that the Defendants know will result in their collecting and controlling 1.8% of the bond amount if it is ultimately paid.”). 93 Id. at 59 ¶¶ 198-99. 94 Id. at 59-60 ¶ 200. 95 Id. at 60 ¶ 202. 96 R. Doc. 250-1 at 11.
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Fifth Circuit has cautioned that “allegations by a defendant that its voluntary conduct has mooted the plaintiff’s case require closer examination than allegations that happenstance or official acts of third parties have mooted the case.” Fontenot, 777 F.3d at 747-48 (quoting Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008)).
Upon close examination, the Court is satisfied that defendants’ voluntary conduct has mooted plaintiffs’ claims related to Collections Department fines and fees warrants. A memorandum issued by Administrator Kazik on September 18, 2015 stated: “Pursuant to the En Banc directive issued earlier today, all Collections Agents for Criminal District Court may no longer issue an Alias Capias for non-payment of fines and fees or for failure to appear. This is effective immediately.”97 The Court must assume that this “formally announced change[] to official governmental policy [was] not mere litigation posturing.” Sossamon, 560 F.3d at 325. Moreover, the Judges reviewed all active fines and fees warrants issued by the Collections Department before September 18, 2015, and recalled all such warrants unless restitution remained unpaid or the individual had failed to appear in court.98 In doing so, the Judges wrote off $1,000,000 in court
97 R. Doc. 250-2 at 76. 98 R. Doc. 250-3 at 4.
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debts.99 Each Judge now “handles collection-related matters on their respective dockets,” according to Administrator Kazik.100
Admittedly, the timing of these policy changes suggests that they were made in response to this litigation. Administrator Kazik states in his affidavit that the Judges decided to revoke the Collections Department’s authority to issue warrants on “the day the Judges first heard about this lawsuit.”101 Furthermore, there is no indication that defendants’ new policy will be binding on future OPCDC judges and administrators. Cf. Lewis v. La. State Bar Ass’n, 792 F.2d 493, 496 (5th Cir. 1986) (finding no reasonable expectation that the alleged violation would recur because defendant bar association had changed its policy, and the state supreme court would need to approve any subsequent policy change). There is also precedent for stopping and restarting the Collections Department’s warrant process: in October 2012, the former chief judge of OPCDC directed the Collections Department to discontinue issuing fines and fees warrants, but reversed course in February 2013.102
99 Id. 100 Id. at 5. 101 Id. at 3. 102 R. Doc. 250-2 at 77-78.
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Nevertheless, the Court finds that defendants’ voluntary policy changes make it absolutely clear that Collections Department practices could not reasonably be expected to recur. Defendants have formally revoked the Collections Department’s authority to issue warrants. The sincerity of this policy change is reflected in defendants’ decision to rescind all warrants issued by the Collections Department for failure to pay fines and fees, other than for restitution. Defendants have met their formidable burden of showing that their voluntary conduct has mooted Counts One, Two, and Four.
4. Defendants’ Voluntary Cessation Does Not Moot Counts Five and Six
As discussed earlier, Counts Five and Six focus on what the Judges do, not what the Collections Department did, when criminal defendants fail to pay fines and fees. Specifically, Count Five challenges the Judges’ practice of failing to inquire into ability to pay before plaintiffs are imprisoned for nonpayment, and the Judges’ conflict of interest in deciding plaintiffs’ ability to pay.103 Count Six challenges the Judges’ practice of imprisoning criminal defendants for failure to pay fines and fees as invidious discrimination.104 The predicate constitutional injuries underlying both of these claims are that
103 R. Doc. 161-4 at 59-60 ¶¶ 198-200. 104 Id. at 60 ¶ 202.
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plaintiffs are subject to imprisonment for failure to pay court debts, and that the Judges do not inquire into plaintiffs’ ability to pay before their imprisonment.
A defendant’s voluntary cessation of challenged conduct moots a claim only if it is absolutely clear that the challenged conduct could not reasonably be expected to recur. Laidlaw, 528 U.S. at 189. Here, to moot Counts Five and Six, defendants must show that plaintiffs are no longer subject to imprisonment for nonpayment of court debts, or at least that the Judges inquire into plaintiffs’ ability to pay before their imprisonment.
The Court finds that defendants have not met their formidable burden of showing mootness on Counts Five and Six. First, and most importantly, the Judges do not represent that they have ceased imprisoning individuals for failure to pay court debts by some means other than Collections Department warrants. Nor do they represent that they now consider ability to pay before imprisoning such individuals. Unlike the en banc directive withdrawing the Collections Department’s authority to issue warrants, there is no formal statement in the record indicating that the Judges’ challenged practices have changed.
Defendants principally rely on the affidavit of Administrator Kazik to show mootness. But Administrator Kazik cannot—and does not—represent
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what the Judges’ current practices are, nor what the Judges will do going forward. Instead, Administrator Kazik states that “[t]o the best of Judicial Defendants’ ability, no fines and fee warrants issued by a currently sitting or prior judge exist, unless there was a determination that other good cause existed in the court record supporting the warrant, such as a failure to appear in court or a failure to pay restitution.”105 At most, this carefully worded affidavit shows only that at one point in time—when Administrator Kazik made this statement—there were no active fines and fees warrants purely for failure to pay court debts, other than restitution. Defendants’ corrective efforts to recall fines and fees warrants do not suffice to show a change in the Judges’ practices. Indeed, as discussed later, the Judges still have enormous incentives to collect fines and fees. Without evidence of an actual policy change, the Court cannot simply assume that the Judges have altered their debt collection practices.
Second, the Judges now handle collection efforts on their respective dockets,106 and there is evidence in the record that these efforts include issuing alias capias warrants against criminal defendants for nonpayment of fines and fees.107 Defendants produced worksheets listing all alias capias
105 R. Doc. 250-3 at 5. 106 Id. at 5. 107 See id. at 16, 21.
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warrants issued by Sections G and I of OPCDC as of May 18, 2017.108 Both sections had issued (and apparently then recalled) alias capias warrants for failure to pay fines and fees as late as April 2017.109 Moreover, in early 2017, the Judges met en banc to discuss issues with securing court appearances for arrestees in a timely manner. The Judges requested that “arrestees be placed on our respective jail lists on the day of or the next day after their arrest on a capias [warrant].”110 This request suggests that criminal defendants are still subject to imprisonment on alias capias warrants issued by OPCDC, with no pre-imprisonment court hearing.
Third, defendants’ corrective efforts are so riddled with exceptions and omissions as to cast doubt on the sincerity of their actions. Administrator Kazik’s affidavit concedes the existence of active warrants for failure to pay restitution and for failure to appear on court dates related to fines and fees. And the police continue to arrest individuals on these warrants. Plaintiffs sought to join one such individual—Monique Merren—as a named plaintiff in this case.111 An alias capias warrant issued against Merren in 1999 after
108 Id. at 12-21. 109 Id. at 16, 21. 110 Id. at 29. 111 See R. Doc. 161.
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she failed to pay restitution for a 1998 conviction.112 Merren was arrested
and imprisoned on this warrant in June 2016.113 Defendants offer no
explanation for treating criminal defendants who owe restitution differently
from those who don’t. Additionally, OPCDC still operates a Collections
Department. And, as discussed earlier, the Judges stopped the Collections
Department’s warrant process in 2012 before restarting it in 2013. This
policy reversal undercuts a finding that the Judges have changed their
practices for good.114
Understandably, the Judges would like to see this lawsuit go away. But
they have not done enough to show institutional change. Again, the Judges
have not indicated that they have ceased imprisoning criminal defendants
for failure to pay, or that they now inquire into those criminal defendants’
ability to pay. Evidence in the record confirms that plaintiffs still face the
112 R. Doc. 161-7 at 1. The Court takes judicial notice of Merren’s OPCDC docket sheet, attached as an exhibit to plaintiffs’ motion for leave to file their second amended complaint. 113 Id. 114 The Court did not find this policy reversal sufficient to defeat mootness on Counts One, Two, and Four in light of the Judges’ en banc directive revoking the Collections Department’s warrant authority and their follow-up efforts rescinding Collections Department warrants. Here, the Judges have not issued any formal statement indicating that they have changed their practices of imprisoning plaintiffs for nonpayment and not inquiring into plaintiffs’ ability to pay. Additionally, the Judges’ follow-up efforts were aimed principally at eliminating Collections Department warrants.
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possibility of alleged constitutional injury if they fail to pay their court debts. For these reasons, defendants’ voluntary conduct does not moot Counts Five and Six.
5. The Named Plaintiffs’ Claims Are Not Moot The Court next addresses whether plaintiffs’ claims are moot in light of the apparent cancellation of their court debts. A case will become moot when “there are no longer adverse parties with sufficient legal interest to maintain the litigation,” or “when the parties lack a legally cognizable interest in the outcome” of the litigation. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004) (quoting Chevron, U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)). The purpose of this personal stake requirement is to ensure that the case involves “sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 403 (1980). A case should not be declared moot so “long as the parties maintain a ‘concrete interest in the outcome’ and effective relief is available to remedy the effect of the violation.” Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984)). The bar to overcome mootness is lower than the bar to establish standing: “there are circumstances in which the prospect that a
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defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Laidlaw, 528 U.S. at 190.
Defendants assert that OPCDC suspended the remaining balance of court debts owed by Alana Cain and Ashton Brown, and waived that of Reynajia Variste.115 Additionally, defendants contend that Vanessa Maxwell’s court debts have been paid in full.116 Plaintiffs do not contest these facts.117 Instead, plaintiffs make two arguments: (1) at least Cain and Brown retain a personal interest in the outcome of the litigation; and (2) the named plaintiffs’ claims cannot be mooted because a motion for class certification is pending.118
Plaintiffs first argue that defendants may reinstate Cain’s and Brown’s suspended debts. While OPCDC suspended Cain’s and Brown’s court debts, it waived Maxwell’s. The Court presumes that a state court uses language decidedly, and that OPCDC used suspension and waiver to describe different actions.
115 R. Doc. 250-2 at 12. 116 Id. 117 See R. Doc. 259-1 at 8. 118 R. Doc. 259 at 4.
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To suspend a debt implies that OPCDC has temporarily ceased enforcing its claim against an individual for her court debts. See MerriamWebster Dictionary Online, www.merriam-webster.com (defining suspend as “to cause to stop temporarily”; “to defer to a later time on specified conditions”; “to hold in an undetermined or undecided state awaiting further information”). By contrast, to waive a debt suggests a decision permanently to forgo debt collection. See id. (defining waive as “to refrain from pressing or enforcing (something, such as a claim or rule): forgo · waive the fee”); see also Veverica v. Drill Barge Buccaneer No. 7, 488 F.2d 880, 883 (5th Cir. 1974) (holding that deferral of payment for a salvage operation did not waive the resulting maritime lien, “but merely suspend[ed] the remedy on the lien” until payment came due (emphasis added)). Thus, the plain meanings of “suspend” and “waive” indicate that defendants may reinstate Cain’s and Brown’s, but not Maxwell’s, court debts.
Supreme Court precedent makes plain that temporary relief from injury does not moot a plaintiff’s claim for permanent equitable relief. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Supreme Court reviewed a district court injunction against the use of chokeholds by police officers. After the Court granted certiorari, the city imposed a moratorium on chokeholds. Id. at 100. As the Court stated in a later opinion, this
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moratorium “surely diminished the already slim likelihood that any particular individual would be choked by police.” Laidlaw, 528 U.S. at 190. Nevertheless, the Supreme Court held that the city’s moratorium did not moot the case because “the moratorium by its terms [was] not permanent.” Lyons, 461 U.S. at 101. By the same logic, this Court finds that temporarily suspending Cain’s and Brown’s court debts does not moot their claims for declaratory relief.
Moreover, the record shows that defendants continued to collect payments from Cain and Brown after suspending their debts. According to a docket sheet, Cain’s court debts were suspended on April 7, 2016.119 Nevertheless, a payment receipt dated October 12, 2016, states that Cain owes a balance of $251.50 and that the next payment is due on October 31, 2016.120 Similarly, a minute entry shows that Brown’s court debts were suspended as of September 23, 2016,121 but a payment receipt dated February 10, 2017, shows a balance of $432.50.122 This evidence indicates that suspension of a court debt does not bar defendants from trying to collect that debt. Because plaintiffs Cain and Brown remain subject to defendants’
119 R. Doc. 250-3 at 22. 120 R. Doc. 230-3 at 2. 121 R. Doc. 250-3 at 23. 122 R. Doc. 230-3 at 3.
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debt collection policies and practices, including the Judges’ practices that form the basis of Counts Five and Six, they have not been “divested of all personal interest in the result” of the litigation. Dailey, 141 F.3d at 227.
At oral argument, the parties represented that Cain has received a reimbursement check from OPCDC. It is unclear, however, when or why Cain received the reimbursement check, or which court costs it reimbursed. The check is not in the summary judgment record, and the Court cannot simply assume that OPCDC has reimbursed Cain for all payments made after the date her debts were suspended. Moreover, defendants have not asserted that Brown—or anyone else whose debts were suspended—received a reimbursement check from OPCDC. Cain’s reimbursement check does not affect the Court’s analysis.
That OPCDC continued to collect payment from Cain and Brown after suspending their debts also shows that the “capable of repetition, yet evading review” exception applies. Ctr. for Individual Freedom, 449 F.3d at 661. This “exception can be invoked if two elements are met: ‘(1) [T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.’” Id. (alteration in original) (quoting Weinstein v. Bradford, 423 U.S. 147, 149
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(1975)). Defendants suspended Cain’s court debts in April 2016—merely seven months after this proceeding began. Seven months was too short a time to resolve this complicated suit. Additionally, defendants’ actual debt collection efforts after suspending Cain’s and Brown’s debts creates a reasonable expectation that these plaintiffs will again be subject to defendants’ debt collection practices in the future. Thus, even if defendants’ suspension of Cain’s and Brown’s court debts otherwise moots their individual claims, the capable of repetition, yet evading review exception applies.
Plaintiffs also argue that the named plaintiffs’ claims cannot be mooted because a motion for class certification is pending.123 Generally, “a class action becomes moot when the putative representative plaintiff’s claim has been rendered moot before a class is certified.” Fontenot v. McCraw, 777 F.3d 741, 748 (5th Cir. 2015). But, as the Supreme Court has noted,
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the complaint may depend upon the circumstances of the particular case and especially . . . [whether] otherwise the issue would evade review.
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Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); see also Genesis Healthcare, 569 U.S. at 75 (“[A]n inherently transitory class-action claim is not necessarily moot upon the termination of the named plaintiff’s claim.”) (internal quotation marks omitted)). An example of such a claim is a constitutional challenge to pretrial detention, which “is by nature temporary.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). The Court in Gerstein noted: “It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.” Id. In such a case, “the termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” Id.
The Supreme Court again addressed a challenge to pretrial detention in McLaughlin. The named plaintiffs in McLaughlin were incarcerated and had not yet received a probable cause hearing when they filed suit. 500 U.S. at 48-49. Before the district court certified the class, the named plaintiffs either received a probable cause determination or were released. “That the class was not certified until after the named plaintiffs’ claims had become moot [did] not deprive [the Court] of jurisdiction,” however. Id. at 52 (citing Gerstein, 420 U.S. at 110 n.11). As in Gerstein, the Court held that the
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relation back doctrine “preserve[d] the merits of the case for judicial resolution.” Id.
While Sosna, Gerstein, and McLaughlin all applied the relation back doctrine to inherently transitory claims, the Fifth Circuit has further applied the doctrine to claims “rendered moot by purposive action of the defendants.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1049 (5th Cir. Unit A July 1981). The Zeidman court held that, when “the plaintiffs have filed a timely motion for class certification and have diligently pursued it, the defendants should not be allowed to prevent consideration of that motion by tendering to the named plaintiffs their personal claims before the district court reasonably can be expected to rule on the issue.” Id. at 1045. The court reasoned that defendants should not “have the option to preclude a viable class action from ever reaching the certification stage” by “picking off” the named plaintiffs, whose claims would otherwise become moot.124 Id. at 1050.
124 The Fifth Circuit has since cast doubt on whether the core holding of Zeidman remains good law as to claims for money damages. Specifically, the court has stated that Genesis Healthcare “undermines, at least in money damages cases, Zeidman’s analogy between the ‘inherently transitory’ exception to mootness and the strategic ‘picking off’ of named plaintiffs’ claims.” Fontenot, 777 F.3d at 750. In Genesis Healthcare, the Supreme Court declined to apply the “inherently transitory” exception to a claim for money damages, which “cannot evade review,” “[u]nlike claims for injunctive relief challenging ongoing conduct.” 569 U.S. at 77. Where, as
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Plaintiffs’ claims for equitable relief tend to evade review, especially if defendants can pick off the named plaintiffs by suspending or waiving their court debts. Moreover, plaintiffs timely moved for class certification.125 The Court stayed this motion pending resolution of the parties’ cross-motions for summary judgment.126 Plaintiffs—both named and unnamed—should not be punished by the order in which the Court has addressed issues in this case, or by defendants’ willingness to suspend or waive the court debts of the named plaintiffs.
Nevertheless, the Court does not rely on the relation back exception in determining that this case is not moot. The relation back exception applies to a class certification motion that is adjudicated after the named plaintiffs’ claims become moot. See Fontenot, 777 F.3d at 748. The Court is not aware of any authority for applying this exception to summary judgment motions. To the contrary, the Zeidman court made clear that “[a] named plaintiff whose individual claim has been rendered moot may in no event argue the merits of the case before a class has properly been certified; prior to that time the plaintiff may at most argue the class certification question.” Id. at 1045;
here, plaintiffs seek equitable relief, the “inherently transitory” exception still applies and Zeidman remains good law. 125 R. Doc. 230. 126 R. Doc. 237.
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see also Geraghty, 445 U.S. at 404 (“A named plaintiff whose claim expires may not continue to press the appeal on the merits until a class has been properly certified.”).
The Court therefore finds that the named plaintiffs’ claims are not moot for two reasons. First, Alana Cain and Ashton Brown still owe court debts; defendants’ temporary suspension of these debts does not destroy Cain’s or Brown’s personal stake in the litigation. Second, with respect to Cain’s and Brown’s debts, defendants’ debt collection practices are capable of repetition, yet evading review.
6. Plaintiffs Do Not Request Mandamus Defendants argue that plaintiffs’ claims for declaratory relief against the Judges and Administrator Kazik are tantamount to requests for a writ of mandamus.127 It is well-established that “federal courts have no general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties.” Lamar v. 118th Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971); see also In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001) (discussing when mandamus against state judicial officers may be appropriate). But federal courts may grant declaratory and injunctive relief against state judicial officers. See Pulliam
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v. Allen, 466 U.S. 522, 541-42 (1984); Holloway v. Walker, 765 F.2d 517, 525 (5th Cir. 1985). Indeed, Section 1983 explicitly recognizes the availability of such remedies. See 42 U.S.C. § 1983 (providing that, “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable”).
Plaintiffs’ summary judgment motion clearly frames the claims against the Judges and Administrator Kazik as requests for declaratory relief. But defendants argue that plaintiffs essentially want this Court to direct defendants in the exercise of their judicial duties. Specifically, according to defendants, plaintiffs seek a court order directing the Judges to hold hearings on ability to pay, to cease delegating warrant authority to the Collections Department, and to stop issuing capias warrants.128
A writ of mandamus compels the defendant to perform a certain act. See Mandamus, Black’s Law Dictionary (10th ed. 2014). By contrast, the declaratory judgments plaintiffs seek on Counts One, Two, Four, Five, and Six would merely state that certain of defendants’ practices are unconstitutional.129 The Supreme Court has recognized the authority of
128 R. Doc. 250-1 at 7-8. 129 See R. Doc. 161-4 at 61.
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federal courts to issue such relief against state judges. See Pulliam, 466 U.S. at 526 (affirming attorneys’ fees award in case where district court declared magistrate’s practice of “requir[ing] bond for nonincarcerable offenses . . . to be a violation of due process and equal protection and enjoined it”). Thus, the Court rejects defendants’ argument that plaintiffs’ claims for declaratory relief are in fact requests for a writ of mandamus.
7. Declaratory Relief Is Appropriate Defendants further argue that the Court lacks the authority to entertain plaintiffs’ claims for declaratory relief.130 The Declaratory Judgment Act, 28 U.S.C. § 2201, is “an enabling act, which confers a discretion on the courts” to decide or dismiss a declaratory judgment suit, “rather than an absolute right upon the litigant” to bring such a suit. Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)); accord Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 387, 389 (5th Cir. 2003). In analyzing claims under the Act, a court must determine “(1) whether the declaratory action is justiciable; (2) whether the court has the authority to grant declaratory relief; and (3) whether to
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exercise its discretion to decide or dismiss the action.”131 Sherwin-Williams, 343 F.3d at 387.
Defendants argue that declaratory relief is not appropriate because this case is no longer justiciable. As explained earlier, Counts Five and Six are not moot. Thus, the Court may entertain these claims for declaratory relief.
8. The Eleventh Amendment Does Not Bar Plaintiffs’ Official-Capacity Claims
Defendants’ final justiciability challenge relates to whether the Judges enjoy sovereign immunity on plaintiffs’ official-capacity claims against them. Defendants argue that suing a state official in her official capacity is the same as suing the state directly.132 This proposition is true for retrospective relief, but not for prospective relief. Under Ex parte Young, 209 U.S. 123 (1908), plaintiffs may sue state officials in their official capacity for prospective relief. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’” (quoting
131 The Court has already addressed, and rejected, the argument that it should exercise its discretion not to decide this case. R. Doc. 119 at 14-19. Defendants do not renew this argument in their motion for summary judgment. 132 R. Doc. 250-1 at 10.
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Kentucky v. Graham, 473 U.S. 159, 167, n.14 (1985))). Prospective relief includes both injunctive and declaratory relief. See Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (allowing plaintiff to seek both injunctive and declaratory relief “against the individual commissioners in their official capacities, pursuant to the doctrine of Ex parte Young”). Thus, defendants’ Eleventh Amendment argument is meritless.
* * * Because Counts One, Two, and Four are moot, defendants are entitled summary judgment on these counts. Having found that Counts Five and Six remain justiciable, the Court turns to the merits of these claims. B. The Judges’ Practice of Imprisoning Individuals for
Failure to Pay Court Debts Without Considering Ability to Pay Is Unconstitutional The core of plaintiffs’ constitutional challenge to the Judges’ debt collection measures is that the Judges imprison poor debtors solely because they cannot afford to pay court debts. Count Five specifically challenges the Judges’ practice of failing to inquire into indigent debtors’ ability to pay court debts before the debtors are imprisoned for nonpayment.133
133 As discussed in the next section, Count Five also challenges the constitutionality of the legislative framework that vests both judicial and executive power in the Judges.
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1. The Judges Have a Policy or Practice of Failing to Conduct Any Inquiry into Plaintiffs’ Ability to Pay Court Debts Before Plaintiffs Are Imprisoned for Nonpayment
The facts related to Count Five are undisputed. Most importantly, the
Judges do not routinely solicit financial information from criminal
defendants who fail to pay their court debts,134 though they do consider
ability to pay when the issue is brought to their attention.135 As discussed
earlier, plaintiffs continue to face the possibility that they will be imprisoned
for failure to pay court debts.136 Thus, it is the Judges’ practice not to inquire
into plaintiffs’ ability to pay such debts even though plaintiffs may be
imprisoned for failure to pay.
134 R. Doc. 251-2 at 17. Plaintiffs posed the following interrogatory: “Please describe any and all policies, procedures, and practices related to assessing whether a person who owes fines and/or fees to the court has the ability to pay those fines and/or fees?”; defendants responded: “There are no written policies or procedures; the general practice, which varies depending upon the matter, includes input from defense counsel and/or the defendant when brought to the Court’s attention.” R. Doc. 251-5 at 297. Although defendants deny that the Judges fail to routinely solicit information about criminal defendants’ ability to pay, see R. Doc. 255-5 at 14, they neither point to contrary evidence in the record nor show that plaintiffs’ evidence is too sheer to support summary judgment. See Fed. R. Civ. P. 56(c)(1); Int’l Shortstop, 939 F.2d at 1265. Defendants therefore fail to carry their summary judgment burden of showing a genuine dispute of fact. 135 R. Doc. 250-2 at 12; R. Doc. 259-1 at 8. 136 See supra Part III.A.4.
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The evidence in the record confirms this practice. Each named plaintiff was imprisoned for failure to pay court debts. But at no point—not at sentencing, not before their imprisonment, not at a hearing while they were imprisoned—did a judge inquire into their ability to pay. By way of example, Ashton Brown was imprisoned for failure to pay court fees from July 23 to August 7, 2015.137 No judge inquired into his ability to pay before his imprisonment.138 Brown did secure an appearance in court, without counsel, on August 6.139 The judge refused to release Brown, who lived in poverty and struggled to support himself and his nine-month-old daughter, unless he paid $100 to OPCDC.140 There is no indication in the record that the judge asked about Brown’s income or ability to pay. Brown had to ask his grandmother for help, and only after she made a $100 payment was Brown released.141
137 R. Doc. 59-3 at 6. 138 The court did advise Brown at sentencing that if he did not have the money to make his first payment, he should seek an extension. R. Doc. 2554 at 16. To be clear, plaintiffs are not challenging the imposition of fines and fees at sentencing without an ability-to-pay inquiry; their challenge is focused on the Judges’ practice of not providing this inquiry at any point before plaintiffs are imprisoned for failure to pay. 139 R. Doc. 59-3 at 6. 140 Id.; R. Doc. 8-3 at 1. 141 R. Doc. 8-3 at 1; R. Doc. 59-3 at 6.
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Alana Cain was imprisoned for failure to pay restitution and fees from March 11 to March 18, 2015.142 There is no indication that any judge inquired into her ability to pay before her imprisonment. She appeared before a judge while in jail; at that hearing, the transcript of which is in the record,143 the judge did not ask Cain whether she could pay her court debts, nor did he ask her about her income.144 If the judge had inquired into Cain’s ability to pay, he would have learned that Cain—who had given birth to her first child a few weeks earlier—made only $200 per month and struggled to afford food and clothes.145 The judge did ask Cain when she would be able to continue making payments.146 After Cain stated that she could continue making payments upon her release, the judge ordered her release and directed her to return to court for a status update two weeks later.147
Some criminal defendants who appeared before a judge while they were imprisoned for failure to pay fines and fees were sent back to jail, apparently because they could not make a payment. For example, Tyrone Singleton was arrested for failure to pay fines and fees on November 11,
142 R. Doc. 59-3 at 2; R. Doc. 251-5 at 369. 143 R. Doc. 95-3 at 27-35. 144 R. Doc. 8-2 at 1-2. 145 Id. at 1. 146 R. Doc. 95-3 at 30. 147 Id. at 29-32.
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2013.148 He appeared before a judge two weeks later, on November 25, but
was sent back to jail for another week before his release.149
This evidence suggests that the Judges do not release criminal
defendants imprisoned for failure to pay court debts without a payment, or
some promise of payment.150 Defendants cite no statutory authority for the
Judges’ actions.151 This process most resembles contempt of court in which
an individual is imprisoned until she complies with a court order—here, an
order to pay fines and fees. Because plaintiffs may secure their release by
making a payment, their imprisonment for nonpayment is a conditional
penalty. Hicks v. Feiock, 485 U.S. 624, 633 (1988). Contempt of court that
imposes a conditional penalty is civil, rather than criminal, “because it is
specifically designed to compel the doing of some act,” rather than to punish.
Id.
148 R. Doc. 251-5 at 411. The Court takes judicial notice of the facts contained within this exhibit, which were taken from publicly available docket sheets. 149 Id. 150 See R. Doc. 251-2 at 22; R. Doc. 255-5 at 25. 151 Because OPCDC sometimes includes payment of court debts as a condition of probation, the court could revoke an individual’s probation for failure to pay. See La. Code Crim. Proc. art. 895.1 (authorizing courts to require payment of restitution and certain fees as a condition of probation); id. arts. 899, 900 (describing procedures for revoking probation). But there is no indication in the record that OPCDC’s debt collections practices generally, or ever, involve probation revocation.
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There is no genuine dispute, therefore, that the Judges have a practice of not inquiring into plaintiffs’ ability to pay court debts when plaintiffs are essentially held in civil contempt and imprisoned for nonpayment.
2. The Judges’ Failure to Inquire into Plaintiffs’ Ability to Pay Court Debts Before Plaintiffs Are Imprisoned for Nonpayment Violates Due Process
Plaintiffs argue that the Judges’ failure to inquire into plaintiffs’ ability to pay court debts violates the Fourteenth Amendment.152 Although “[d]ue process and equal protection principles converge” in cases involving the criminal justice system’s treatment of indigent individuals, Bearden v. Georgia, 461 U.S. 660, 665 (1983), plaintiffs’ argument sounds in procedural due process. Thus, the familiar framework set out in Mathews v. Eldridge, 424 U.S. 319 (1976), applies. See Turner v. Rogers, 564 U.S. 431, 444-45 (2011) (applying Mathews v. Eldridge to civil contempt proceedings). The Mathews v. Eldridge framework calls for the Court to consider three factors: “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or
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substitute procedural requirements.’” Id. (quoting Mathews, 424 U.S. at 335).
Supreme Court precedent speaks directly to the kind of procedural protections the Judges must provide to plaintiffs. This precedent is grounded in the well-established principle that an indigent criminal defendant may not be imprisoned solely because of her indigence. See Tate v. Short, 401 U.S. 395, 398 (1971); see also United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) (“Constitutionally, courts are limited in the penalty they can impose for nonpayment of criminal fines because of inability to pay.”). Admittedly, there is nothing necessarily unconstitutional about imprisoning a convicted criminal defendant for failing to pay fines and fees. As the Supreme Court recognized, this custom “dates back to medieval England and has long been practiced in this country.” Williams v. Illinois, 399 U.S. 235, 239 (1970) (footnote omitted). But the Supreme Court has imposed constitutional limits on this practice when applied to indigent criminal defendants. In Williams, for example, the Court held that “an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum [term of imprisonment] authorized by the statute regulating the substantive offense.” 399 U.S. at 241. Such
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imprisonment constitutes “impermissible discrimination that rests on ability to pay.” Id.
Following Williams, the Supreme Court addressed a constitutional challenge to a state’s method of collecting fines from an indigent criminal defendant. Tate, 401 U.S. 395. The criminal defendant in Tate had accumulated fines for traffic offenses, which were punishable only by fine. Id. at 396-97. Because the defendant was indigent when the state court imposed the fines, the court sentenced him to a term of imprisonment—each day counted as five dollars toward the defendant’s outstanding fines. Id. The Court invalidated this practice as violating equal protection, explaining that “the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Id. at 398 (citation omitted).
Over a decade later, in Bearden, the Supreme Court addressed a similar challenge to a probation revocation proceeding. There, the Court held that an indigent defendant’s probation cannot be revoked (and thus converted into a jail term) for his failure to pay a court-imposed fine or restitution “absent evidence and findings that the defendant was somehow
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responsible for the failure or that alternative forms of punishment were
inadequate.” 461 U.S. at 665. The Court further held:
[A] sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment . . . . If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his, he cannot pay the fine.
Id. at 672-73. The state court imprisoned Bearden “because he could not pay
the fine, without considering the reasons for the inability to pay or the
propriety of reducing the fine or extending the time for payments or making
alternative orders.” Id. at 674. In this way, “the court automatically turned
a fine into a prison sentence.” Id.
More recently, the Supreme Court in Turner reiterated the importance
of the ability-to-pay determination prior to imprisonment, this time in the
context of a civil contempt proceeding. The Court applied the Mathews v.
Eldridge framework to determine whether an indigent defendant has “a right
to state-appointed counsel at a civil contempt proceeding, which may lead to
his incarceration.” Turner, 564 U.S. at 441. The Court noted “the
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importance of the interest at stake”—the defendant’s interest in preventing the “loss of [his] personal liberty through imprisonment.” Id. at 445. Given the importance of this interest, the Court stated, “it is obviously important to assure accurate decisionmaking in respect to the key ‘ability to pay’ question.” Id. The Court held that due process does not require stateappointed counsel so long as the state provides other procedural safeguards equivalent to “adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information [concerning ability to pay], and court findings.” Id. at 448.
The Court finds that Bearden is controlling, and that Turner is instructive. Admittedly, there are some differences between those cases and this one. For example, unlike the court in Bearden, OPCDC does not impose a term of imprisonment upon criminal defendants for failure to pay their court debts. And OPCDC’s debt collection procedures appear to operate independently from revocation of probation. See State v. Kenniston, 976 So. 2d 226, 227 (La. App. 4 Cir. 2008) (noting that OPCDC issued two alias capias warrants for failure to pay court debts, and that the state later initiated probation revocation proceedings); see also La. Code Crim. Proc. arts. 899900 (describing probation revocation procedures). But “[n]othing in the language of the Bearden opinion prevents its application to any given
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enforcement mechanism.” United States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993). And civil contempt in this case, like probation revocation in Bearden, works the same constitutional injury: plaintiffs, like the criminal defendant in Bearden, are subject to imprisonment for failure to pay courtimposed fines and fees.
Like the defendant in Turner, plaintiffs are subject to imprisonment as the result of civil contempt-like proceedings. Admittedly, neither party in Turner was represented by counsel during the civil contempt proceeding, and the complaining party was not the state, 564 U.S. at 448-49; here, by contrast, the complaining party—OPCDC—is both an organ of the state and represented by counsel (the Judges), and the criminal defendants generally are also represented by counsel. But Turner does stand for the broader proposition that the ability-to-pay inquiry required by Bearden must have some procedural safeguards.
Bearing in mind that Bearden and Turner speak directly to the procedural requirements of an ability-to-pay inquiry, the Court now turns to the application of the Mathews framework to the facts of this case. First, plaintiffs’ interest in securing their “freedom ‘from bodily restraint[]’ lies ‘at the core of the liberty protected by the Due Process Clause.’” Turner, 564 U.S. at 445 (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Plaintiffs’
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liberty interest weighs heavily in favor of procedural safeguards provided before imprisonment.
Second, the risk of erroneous deprivation without an inquiry into ability to pay is high. At least some criminal defendants, including the named plaintiffs, are subject to imprisonment for failure to pay fines and fees despite their indigence. OPCDC necessarily determined that all named plaintiffs, except Reynaud Variste, were indigent when it appointed counsel for them during their criminal proceedings.153 Moreover, Louisiana courts presume that a criminal defendant who cannot afford counsel is indigent for purposes of ability to pay court debts. See State v. Williams, 288 So. 2d 319, 321 (La. 1974) (noting that appointment of counsel established defendant’s indigence); State v. Morales, 221 So. 3d 257, 258 (La. App. 3 Cir. 2017) (noting that appointment of counsel is “presumptive evidence of indigence”); State v. Hebert, 669 So. 2d 499, 502 (La. App. 4 Cir. 1996) (“[A] defendant represented by appointed counsel . . . is presumed indigent and cannot be ordered to serve additional jail time in lieu of the payment of costs.”). The inquiry itself surely must involve at least notice and opportunity to be heard,
153 See R. Doc. 228 at 6; R. Doc. 251-2 at 17; R. Doc. 255-5 at 24; La. Rev. Stat. § 15:175(A)(1)(b) (“A person will be deemed ‘indigent’ who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own.”).
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as suggested by Turner; an ability-to-pay inquiry without these basic procedural protections would likely be ineffective.
Third, the Judges fail to point to any countervailing interest in not inquiring into plaintiffs’ ability to pay before imprisonment. According to Administrator Kazik, the Judges consider ability to pay if a criminal defendant raises the issue.154 But Bearden and Turner require more. Bearden commands that before a court imprisons an individual for failure to pay a court-imposed fine or fee, the court must inquire into her reasons for failure to pay. 461 U.S. at 672. If the individual is unable to pay the court debts despite sufficient bona fide efforts to do so, then the court must consider alternative measures. Id. Turner holds that this ability-to-pay inquiry must have at least some procedural safeguards. The record shows that at least until 2015, the Collections Department gave notice to criminal defendants before issuing alias capias warrants for failure to pay, and these criminal defendants usually appeared before a judge while they were imprisoned for failure to pay. The Judges therefore provided notice and an opportunity to be heard to plaintiffs—just not “in respect to the key ‘ability to pay’ question.” Turner, 564 U.S. at 445. In light of this limited notice and
154 R. Doc. 250-3 at 5 (Kazik Affidavit stating that “[i]f a criminal defendant raises the issue of their ability to pay, the judges consider it”).
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opportunity to be heard formerly provided by OPCDC, the Court cannot discern any state interest in the Judges’ failure to provide notice and an opportunity to be heard on ability to pay before imprisonment.
Moreover, there is no authority for the proposition that a criminal defendant must raise the issue of her inability to pay. As the Court explained in an earlier order, the Judges’ reliance on Garcia v. City of Abilene, 890 F.2d 773 (5th Cir. 1989), and Sorrells v. Warner, 21 F.3d 1109 (5th Cir. 1994) (unpublished), is unavailing.155 In both cases, the criminal defendant had an opportunity to claim indigence but squandered it by failing (or repeatedly failing) to appear, in person, at scheduled court hearings. Sorrells, 21 F.3d at *1; Garcia, 890 F.2d at 775; see also Doe v. Angelina County, 733 F. Supp. 245, 253 (E.D. Tex. 1990) (distinguishing Garcia because “a party cannot fail to appear if no provision is made for such a proceeding” in the first place); De Luna v. Hidalgo County, 853 F. Supp. 2d 623, 646-47 (S.D. Tex. 2012) (citing Doe v. Angelina County). Regardless, Turner clearly suggests that the state provide the procedural protection of notice that ability to pay is important; a contrary rule, requiring the criminal defendant to raise the issue on her own, would undermine Bearden’s command that a criminal
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defendant not be imprisoned solely because of her indigence. 461 U.S. at 672-73.
It is undisputed that the Judges provide no ability-to-pay inquiry, nor any further procedural safeguards, to indigent criminal defendants who are subject to imprisonment for failure to pay court debts. Under Bearden and Turner, the Judges must inquire into plaintiffs’ ability to pay before their imprisonment. This inquiry must involve certain procedural safeguards, especially notice to the individual of the importance of ability to pay and an opportunity to be heard on the issue. If an individual is unable to pay, then the Judges must consider alternative measures before imprisoning the individual.
Plaintiffs are entitled summary judgment on Count Five to the extent they seek a declaration that the Judges’ practice of not inquiring into plaintiffs’ ability to pay before they are imprisoned for nonpayment violates the Fourteenth Amendment.
C. The Judges’ Control over Both Fines and Fees Revenue and Ability-to-Pay Determinations Violates Due Process
Count Five also challenges the dual role the Judges play: they are responsible for both determining criminal defendants’ ability to pay fines and fees and managing a portion of the revenue derived from those fines and
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fees.156 Plaintiffs argue that the Judges’ power over this revenue creates a financial conflict of interest, depriving criminal defendants of a neutral tribunal to determine their ability to pay.157
1. Legal Background “Trial before an unbiased judge is essential to due process.” Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v. Mississippi, 403 U.S. 212, 216 (1971)); see also Brown v. Edwards, 721 F.2d 1442, 1451 (5th Cir. 1984) (“The right to a judge unbiased by direct pecuniary interest in the outcome of a case is unquestionable.”). Although due process requires a judge’s disqualification “only in the most extreme of cases,” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986), the Supreme Court has found due process violations when judges maintained pecuniary interests in cases before them. In Tumey v. Ohio, 273 U.S. 510 (1927), a defendant was convicted of possessing liquor in violation of Ohio’s Prohibition Act. The Act provided for trial in a “liquor court,” in which the village mayor served as judge. Id. at 521. The money raised by fines levied in these courts was divided between the state, the village general fund, and two other village funds. Id. at 521-
156 Plaintiffs do not challenge the Judges’ initial assessment of fines and fees, and the Court does not address it. 157 R. Doc. 251-1 at 38.
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22. One of these other funds covered expenses associated with enforcing the Prohibition Act, including nearly $700 paid to the mayor “as his fees and costs, in addition to his regular salary.” Id. at 522. The Supreme Court overturned Tumey’s conviction, and held that the mayor, acting as judge, was disqualified from deciding Tumey’s case “both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” Id. at 535.
In Ward v. Village of Monroeville, 409 U.S. 57 (1972), the Court considered a challenge to traffic fines imposed by another Ohio mayor’s court. Fines generated by the mayor’s court at issue in Ward provided a “major part” of the total operating funds for the municipality that the mayor oversaw. Id. at 58. The Court viewed the case as controlled by Tumey and noted, “that the mayor [in Tumey] shared directly in the fees and costs did not define the limits of the principle” of judicial bias articulated in that case. Id. at 60. Instead, the Court offered a general test to determine whether an arrangement of this type compromises a criminal defendant’s right to a disinterested and impartial judicial officer:
[T]he test is whether the [judge’s] situation is one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which
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might lead him not to hold the balance nice, clear, and true between the state and the accused.” Id. (quoting Tumey, 273 U.S. at 532). In holding that the mayor’s court in Ward violated due process, the Court found that the impermissible temptation “[p]lainly . . . may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court.” Id. In some cases, a judicial officer’s institutional interest may be too remote to create an unconstitutional conflict of interest. In Dugan v. Ohio, 277 U.S. 61 (1928), for example, a mayor with judicial functions also served as one of five commissioners. Collectively, these commissioners exercised the legislative power of the city, and shared executive powers with the city manager (who was the “active executive”). Id. at 63. The Court held that the mayor’s relation “to the executive or financial policy of the city” was too “remote” to interfere with his judicial functions. Id. at 65. The Fifth Circuit applied Tumey and Ward to strike down Mississippi’s system of compensating justices of the peace. Brown v. Vance, 637 F.2d 272 (5th Cir. Jan. 1981). By law, the justices of the peace were paid based on the volume of cases filed in their courts. Id. at 274. No evidence of “actual judicial bias” was necessary “to hold the fee system constitutionally infirm.” Id. at 282. Instead, the incontrovertible possibility that the justices of the
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peace would “compete for business by currying favor with arresting officers or taking biased actions to increase their caseload . . . deprive[d] criminal defendants of their due process right to a trial before an impartial tribunal.” Id.
2. The Judges Face a Conflict of Interest When They Determine Ability to Pay Fines and Fees
It is undisputed that the Judges are responsible for both managing fines and fees revenue and determining whether criminal defendants are able to pay those same fines and fees, once imposed. Fines and fees revenue goes into the Judicial Expense Fund,158 which the Judges may use “for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof,” La. Rev. Stat. § 13:1381.4(C), except to supplement their own salaries, id. § 13:1381.4(D). In their capacity as administrators and executives of OPCDC, the Judges exercise total control over the Judicial Expense Fund.159 The Judges use this money primarily to fund their own staffs.160
Various statutes give the Judges authority over revenue from fines and fees. First, Louisiana law directs the Sheriff to allocate half of all fines and
158 R. Doc. 251-2 at 12; R. Doc. 251-5 at 382. 159 R. Doc. 251-2 at 3; R. Doc. 255-5 at 1. 160 R. Doc. 251-2 at 5-6; R. Doc. 255-5 at 2; see also R. Doc. 248 at 3.
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forfeitures to an “account to be administered by the judges of the criminal district court of Orleans Parish.” Id. § 15:571.11(D). This revenue is “to be used in defraying the expenses of the criminal courts of the parish, extraditions, and such other expenses pertaining to the operation of the criminal court of Orleans Parish.” Id.
Second, the Judges may impose costs of up to $100 on convicted criminal defendants (other than those who are indigent); Louisiana law directs the Judicial Administrator to place these sums in a “Criminal Court Cost Fund” to be administered by the Judges. Id. § 13:1377. Each of the Judges may authorize disbursements from this fund “to assist in the operation and maintenance” of OPCDC. Id. § 13:1377(C).
Third, and most importantly, the Judges may impose a fee of up to $500 on a misdemeanant and up to $2,500 on a felon; Louisiana law directs the Judicial Administrator to place these sums in the Judicial Expense Fund. Id. § 13:1381.4. The same provision also imposes a $5 fee on every convicted criminal defendant, and directs the Judicial Administrator to place these sums in the Judicial Expense Fund. Id. § 13:1381.4(A)(1).
Fourth, the Judges may impose a $14 fee on convicted, non-indigent criminal defendants; this cost goes into an Indigent Transcript Fund “to compensate court reporters for the preparation of all transcripts for indigent
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defendants.” Id. § 13:1381.1(A). Louisiana law authorizes the Judges, sitting en banc, to pay “deputy court reporters for the transcription of indigent defendant cases” out of the Indigent Transcript Fund. Id. § 13:1381.1(C). Evidently, the Judges impose additional costs under Louisiana Code of Criminal Procedure Article 887(A) for the Indigent Transcript Fund.161
Fifth, the Judges (or presiding judge) may establish a drug division and may administer a probation program for criminal defendants charged with an alcohol- or drug-related offense. La. Rev. Stat. § 13:5304. Louisiana law requires that individuals in this program pay for their own drug testing, “unless the court determines that he is indigent.” Id. § 13:5304(B)(3)(e).
Although several of these fees appear to be dedicated to certain purposes, the revenue all goes into the Judicial Expense Fund.162 Approximately $1,000,000 from various fines and fees goes into the OPCDC budget each year.163 This funding structure puts the Judges in the difficult
161 R. Doc. 248 at 4. 162 R. Doc. 251-2 at 12. In support of this fact, plaintiffs point to spreadsheets showing that from 2013 through 2015, all fines and fees revenue went to the general fund (i.e., the Judicial Expense Fund) rather than the restricted fund. R. Doc. 251-5 at 382-83. In 2012, some of these fines and fees, including indigent transcript fees, went into the restricted fund. Id. Defendants do not contradict this evidence. 163 Specifically, OPCDC obtained $830,384 in fines and fees revenue in 2012, $973,311 in 2013, $1,084,968 in 2014, and $1,188,420 in 2015. R. Doc. 248 at 2.
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position of not having sufficient funds to staff their offices unless they impose and collect sufficient fines and fees from a largely indigent population of criminal defendants.
The Judges’ power over fines and fees revenue creates a conflict of interest when those same Judges determine (or are supposed to determine) whether criminal defendants are able to pay the fines and fees that were imposed at sentencing. As explained earlier, the Judges have a constitutional obligation to inquire into criminal defendants’ ability to pay court debts. But the Judges have a financial stake in the outcome of ability-to-pay determinations; if they determine that a criminal defendant has the ability to pay, and collect money from her, then the revenue goes directly into the Judicial Expense Fund. Cf. United Church of the Med. Ctr. v. Med. Ctr. Comm’n, 689 F.2d 693, 699 (7th Cir. 1982) (“In this case the Commission has a pecuniary interest in the outcome of the reverter proceedings, because if the Commission finds a nonuse or disuse, the property reverts to the Commission . . . . This is sufficient . . . to mandate disqualification of the Commission in the reverter proceeding . . . .”). The Judges therefore have an institutional incentive to find that criminal defendants are able to pay fines and fees.
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The Judges’ dual role, as adjudicators who determine ability to pay and as managers of the OPCDC budget, offer a possible temptation to find that indigent criminal defendants are able to pay their court debts. This “inherent defect in the legislative framework” arises not from the bias of any particular Judge, but “from the vulnerability of the average man—as the system works in practice and as it appears to defendants and to the public.” Brown, 637 F.2d at 284.
The Judges’ practice of failing to inquire into ability to pay is itself indicative of their conflict of interest. Cf. Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 219 (1st Cir. 2004) (noting that evidence of actual bias includes “procedural irregularities in the decision to assess [a] fine”). As is the dramatic increase in assessments for indigent transcript fees between 2012 and 2013—from $9,841.50 to $271,581.75—when OPCDC shifted revenue from such fees from the restricted fund to the Judicial Expense Fund.164 Defendants insist that they do not benefit from this revenue, which solely aids indigent criminal defendants.165 This assertion is undercut by financial statements for the Judicial Expense Fund, which show expenditures on transcripts of $0 in 2013 and 2015 and $7,044 in 2014.166
164 R. Doc. 248-1 at 6-7; R. Doc. 251-5 at 382-83. 165 R. Doc. 255-5 at 17. 166 R. Doc. 248-1 at 2-4.
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Further evidence of an actual conflict of interest is that the Judges have sought ways to increase collections from criminal defendants. At a City Council hearing in July 2014, a judge explained that the Judges were sharing ideas “in an effort to increase [their] collection” of fines and fees.167 The Collections Department itself was created by the Judges in the 1980s to facilitate collection efforts.168 Moreover, at least from 2013 through 2015, the amount of fees (which go entirely to OPCDC) imposed by the Judges far exceeded the amount of fines (only half of which goes to OPCDC).169 This suggests that the Judges prefer to impose fees for OPCDC rather than share fines with the DA.
Defendants’ reliance on Broussard v. Parish of New Orleans, 318 F.3d 644 (5th Cir. 2003), is misplaced. The plaintiffs in Broussard challenged the constitutionality of the Louisiana bail fee statutes on a number of grounds. As relevant here, the plaintiffs argued that these statutes violated Tumey and Ward by “tempt[ing] sheriffs to stack charges against arrestees in violation of their due process rights.” Id. at 661. The court found that Tumey and
167 R. Doc. 251-5 at 284. Defendants object to City Council transcripts as incomplete and taken out of context. R. Doc. 255-5 at 18. But the Judges’ statements are admissible as admissions of party opponents. Fed. R. Evid. 801(d)(2). Moreover, defendants do not contend that the statements at issue were inaccurately transcribed. 168 R. Doc. 248 at 7. 169 See R. Doc. 248-1 at 7-9, 11-13.
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Ward were inapplicable because the sheriffs-defendants in Broussard did not exercise a judicial function. Id. at 662. As purely executive actors, the sheriffs were “not expected to maintain a level of impartiality equal to that expected of judges.” Id. Unlike the sheriffs in Broussard, the Judges in this case do exercise a judicial function when they are required to determine ability to pay fines and fees. Thus, unlike in Broussard, the Ward test applies to whether the Judges have an unconstitutional conflict of interest.
That the Judges have an institutional, rather than direct and individual, interest in maximizing fines and fees revenue is immaterial. See Chrysler Corp. v. Tex. Motor Vehicle Comm’n, 755 F.2d 1192, 1199 (5th Cir. 1985) (“Certainly the due process principle distilled from the Tumey line reaches beyond immediate economic stakes to include economic interests said to be ‘indirect’ or ‘institutional.’”). Ward itself involved a mayor who had no direct, personal interest in traffic fine revenue; his interest related solely to his “executive responsibilities for village finances.” 409 U.S. at 60. Likewise, the Judges’ interest in fines and fees revenue is related to their executive responsibilities for OPCDC finances.
Additionally, that the Judges manage court funds collectively does not render their institutional interest too remote. Unlike in Dugan, where the mayor was only one member of a five-person commission that shared
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executive power with the city manager (who was the acting executive), collectively the Judges exercise all executive power over OPCDC’s share of fines and fees revenue. Moreover, the Supreme Court has applied Tumey and Ward to the members of a state board of optometry, all of whom had a personal interest in revoking the licenses of optometrists employed by corporations. Gibson v. Berryhill, 411 U.S. 564, 578 (1973). The Court held that the board members were disqualified from adjudicating charges against such optometrists. Id.; cf. Chrysler, 755 F.2d at 1199 (finding no impermissible bias where only four out of nine commissioners potentially had conflict of interest).
Plaintiffs have established that the Judges’ dual role creates a “possible temptation . . . not to hold the balance nice, clear, and true between the state and the accused.” Ward, 409 U.S. at 60 (quoting Tumey, 273 U.S. at 532). By no fault of their own, the Judges’ “executive responsibilities for [court] finances may make [them] partisan to maintain the high level of contribution,” in the form of fines and fees, from criminal defendants. Id.
3. The Judges’ Conflict of Interest Is Substantial Plaintiffs must also establish that the Judges’ conflict of interest is substantial. In Tumey, the Court noted that “[t]he minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in
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which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact.” 273 U.S. at 534. According to the Ninth Circuit, the proper question is “whether the official motive here is ‘strong,’ so that it ‘reasonably warrants fear of partisan influence on the judgment.’” Alpha Epsilon Phi Tau Chapter Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 847 (9th Cir. 1997) (quoting Commonwealth of N. Mariana Islands v. Kaipat, 94 F.3d 574, 575, 582 (9th Cir. 1996)).
The Judges’ institutional interest in maximizing fines and fees revenue is substantial. Fines and fees revenue is obviously important to the Judges; fines and fees provide approximately 10% of the total OPCDC budget and one quarter of the Judicial Expense Fund.170 Cf. DePiero v. City of Macedonia, 180 F.3d 770, 780-82 (6th Cir. 1999) (finding a due process violation when a maximum of 9% of municipality’s general fund derived from mayor’s court revenue). Judge Zibilich emphasized the importance of this revenue during a City Council hearing, stating that the fines and fees revenue “probably represents fully a fourth of the monies that we need to be operational, and if we are handcuffed in that particular regard, that money[’s] replacement’s
170 R. Doc. 248 at 2; R. Doc. 248-1 at 1-4. 73

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going to have to come from some place.”171 The Judges spend most of the Judicial Expense Fund on salaries and benefits for their employees (though not themselves), and most of the money for these salaries and benefits comes from the Judicial Expense Fund.172
Moreover, the aggregate amount at stake in determining criminal defendants’ ability to pay is significant. According to the parties’ joint stipulations of fact, OPCDC collects only between 40% and 50% of the fines and fees it assesses.173 The amounts that go uncollected run in the hundreds of thousands of dollars. In 2013, for example, OPCDC assessed $1,517,031.17 in Judicial Expense Fund fees, Indigent Transcript Fund fees, and drug testing fees—the three largest categories of fees that go into the Judicial Expense Fund.174 OPCDC collected only $805,067.12 in these fees.175 The amount uncollected, $711,964.05, was equal to 17% of the Judicial Expense
171 R. Doc. 251-5 at 247. 172 R. Doc. 251-2 at 5-6; R. Doc. 255-5 at 2. 173 R. Doc. 248 at 5. 174 See R. Doc. 248-1 at 7. 175 See id. at 11. Of course, fees assessed in one year may be collected in later years. But the record does not include time frames for collections of specific assessments.
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Fund revenue in 2013.176 That same figure was 14% in 2014, and 18% in 2015.177
Both Administrator Kazik and Judge Zibilich have suggested that collection rates are low partly because most criminal defendants are indigent. In a 2014 letter requesting a higher appropriation from the City of New Orleans, Administrator Kazik explained that most of the OPCDC budget “is received from the various fines and fees assessed to defendants at sentencing.”178 But, he stated, “[m]ost defendants are unemployed and indigent, which makes collecting those assessed fees a challenge and an unreliable revenue resource for the Court’s operational needs.”179 At a City Council meeting, Judge Zibilich noted that nearly 95% of the criminal defendants in OPCDC cannot afford an attorney, and stated: “If they can’t afford an attorney, just imagine how difficult it’s going to be for us to have to chase them around the block to try to get money from them.”180
It is undisputed that OPCDC depends heavily on fines and fees revenue, that many criminal defendant subject to these fines and fees are
176 See id. at 2 (2013 general fund revenue was $4,100,413). 177 See id. at 3 (2014 general fund revenue was $3,928,025); id. at 4 (2015 unrestricted fund revenue was $3,940,535); id. at 8-9 (2014 and 2015 assessments); id. at 12-13 (2014 and 2015 collections). 178 R. Doc. 251-5 at 174. 179 Id. 180 Id. at 286.
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indigent, and that collection rates are only 40% to 50%. Based on these facts, it is clear the Judges’ motive to maximize fines and fees revenue is strong enough reasonably to warrant fear of partisan influence on ability-to-pay determinations. See Alpha Epsilon, 114 F.3d at 847 (9th Cir. 1997). Thus, plaintiffs have established that the Judges face a substantial conflict of interest when they determine ability to pay fines and fees (or are supposed to do so).
This conflict of interest exists by no fault of the Judges themselves. It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded OPCDC. So long as the Judges control and heavily rely on fines and fees revenue, however, the Judges’ adjudication of plaintiffs’ ability to pay those fines and fees offends due process. Thus, plaintiffs are entitled summary judgment on Count Five to the extent they seek a declaration that the Judges’ institutional incentives create an impermissible conflict of interest when they determine, or are supposed to determine, plaintiffs’ ability to pay fines and fees.
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D. Plaintiffs Are Not Entitled Summary Judgment on Count Six
Count Six is an equal protection challenge against defendants’ debt collection practices. Plaintiffs argue that these practices are harsher than debt collection measures available to private creditors.181
Plaintiffs attempt to show discrimination on the face of the Louisiana statutory framework for contempt proceedings. See, e.g., Lewis v. Ascension Par. Sch. Bd., 72 F. Supp. 3d 648, 662-63 (M.D. La. 2014) (distinguishing explicit classification from discriminatory application of facially neutral law); see also Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 543-45 (3d Cir. 2011) (same). Plaintiffs principally rely on James v. Strange, 407 U.S. 128 (1972), where the Supreme Court addressed a Kansas recoupment statute that allowed the state to “recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants.” Id. at 128. The statute excluded these indigent defendants from “the array of protective exemptions Kansas has erected for other civil judgment debtors,” such as “the exemption of his wages from unrestricted garnishment.” Id. at 135. The Court struck down the statute as “embod[ying] elements of
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punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.” Id. at 142.
Plaintiffs argue that defendants’ practice of jailing criminal defendants is similarly discriminatory. They note that Louisiana has abolished the writ of capias ad satisfaciendum, which allowed a private creditor to imprison a debtor until her judgment was satisfied. See La. Rev. Stat. § 13:4281 (abolishing writ); Capias, Black’s Law Dictionary (defining capias ad satisfaciendum as “[a] postjudgment writ commanding the sheriff to imprison the defendant until the judgment is satisfied”). According to plaintiffs, a private creditor seeking to enforce a judgment against a debtor may now seek contempt of court. A debtor in that situation has various procedural protections under Louisiana law. For example, the court must issue a rule “to show cause why [the debtor] should not be adjudged guilty of contempt”; this rule to show cause must be served on the debtor at least 48 hours before trial; and if the court finds the debtor guilty, it must issue “an order reciting the facts constituting the contempt.” La. Code Civ. Proc. art. 225.
By law, criminal defendants have similar procedural protections in contempt proceedings: the judge must issue a rule to show cause; this rule must be served on the criminal defendant at least 48 hours before trial; and
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if the court finds the defendant guilty, it must issue “an order reciting the facts constituting the contempt.” La. Code Crim. Proc. art. 24. Thus, the statutory procedures for contempt proceedings are essentially the same for both civil and criminal defendants. Unlike in James, there is no discrimination on the face of these statutes. Plaintiffs are not entitled summary judgment on Count Six.
IV. CONCLUSION For the foregoing reasons, the Court GRANTS plaintiffs’ motion for
summary judgment on Count Five. The Court GRANTS defendants’ motion for summary judgment on Counts One, Two, and Four. The parties’ motions are otherwise DENIED. Counts One, Two, and Four are DISMISSED AS MOOT. Administrator Kazik is DISMISSED from this case.
New Orleans, Louisiana, this _1_3_th__ day of December, 2017. _____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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 Case 2:15-cv-04479-SSV-JCW Document 296 Filed 04/23/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, et al.,
Plaintiffs, v.
CITY OF NEW ORLEANS, et al.,
Defendants.

Case No. 2:15-4479-SSV
(Class Action) Judge Sarah S. Vance, Sec. R(2) Mag. Judge Joseph C. Wilkinson, Div. 2

MOTION TO CERTIFY A CLASS Plaintiffs, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure and the Court’s April 16, 2018 order setting a briefing schedule for motions regarding the remaining issues in this case (Rec. Doc. 293), move this Court for an order certifying this lawsuit as a class action for prospective relief. Named Plaintiffs propose to certify the following class, as more fully explained in the accompanying memorandum of law: All persons who currently owe or who will incur court debts arising from cases adjudicated in the Orleans Parish Criminal District Court. Since Plaintiffs originally brought their motion to certify, Rec. Doc. 230, the parties have developed the factual record by stipulating to certain facts and conducting limited discovery, and the Court has held that Defendants’ system-wide policies and practices of using jail and threats of jail to collect court debts from individuals violates the Due Process Clause of the United States Constitution both because of insufficient protections and findings concerning ability to pay and because of Defendants’ financial conflict of interest in the outcome of the proceedings. The Court found it undisputed that Defendants did not make the necessary findings or provide the necessary procedural safeguards prior to jailing individuals who were indigent when they did not pay. Rec. Doc. 279 at 38. This Court also held that the Judges’ control over the revenue from the collection

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of court debts combined with their adjudicative role in ability-to-pay determinations violates due process. Id. at 68. These rulings on Defendants’ policies and practices apply equally to all Class Members, including the Named Plaintiffs.
Defendants attempted to moot this lawsuit by representing to the Court that they modified certain policies and practices. But as the Court observed, Plaintiffs still face the possibility of alleged constitutional injury if they fail to pay their court debts, and in any case, the “capable of repetition, yet evading review” exception applies because it is undisputed that a constant stream of class members is subjected to the same violations on an ongoing basis. Rec. Doc. 279 at 38.
Having prevailed on the merits concerning these core issues, Plaintiffs seek to certify a class of similarly situated individuals, who, like Plaintiffs, owe outstanding court debts arising from cases in the Orleans Parish Criminal District Court. Plaintiffs easily meet the requirements for class actions under Federal Rule of Civil Procedure 23. Because the offending conduct is policy-driven and systemic, common issues of law and fact predominate. A class action is clearly the preferred method of adjudication, as individual litigation for thousands of proposed class members, most of whom are indigent, would be unfeasible and unworkable.
WHEREFORE, Plaintiffs respectfully request that this Court certify this suit as a class action for prospective relief as set forth above and in the accompanying memorandum of law and grant such other relief as the Court may deem appropriate.
Respectfully submitted, /s/ Alec Karakatsanis Alec Karakatsanis (D.C. Bar No. 999294) (Appearing Pro Hac Vice) Civil Rights Corps 916 G Street, NW Suite 701 Washington, DC 20001 (202)-681-2409
2

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alec@civilrightscorps.org
/s/ Bill Quigley
William P. Quigley La Bar No. 7769 7214 St. Charles Ave. Campus Box 902 New Orleans, LA 70118 (504) 710-3074 (c) quigley77@gmail.com
/s/ Anna Lellelid
Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) lellelid.law@gmail.com
/s/ Jon Greenbaum /s/ Mateya Kelley —–————––———–— Jon Greenbaum (D.C. Bar No. 489887) Mateya Kelley (N.Y. Bar Reg. 5270400) (Appearing Pro Hac Vice) Lawyers’ Committee for Civil Rights Under Law 1401 New York Ave NW Suite 400 Washington, DC 20005 (202) 662-8315 jgreenbaum@lawyerscommittee.org mkelley@lawyerscommittee.org
/s/ Jonathan P. Guy /s/ David P. Fuad —–————––———–— Jonathan P. Guy (D.C. Bar No. 449031) David P. Fuad (CA Bar No. 265193) (Appearing Pro Hac Vice) Orrick, Herrington & Sutcliffe, LLP 1152 15th Street, N.W. Washington, D.C. 20005-1706 (202) 339-8516 jguy@orrick.com dfuad@orrick.com
3

Case 2:15-cv-04479-SSV-JCW Document 296 Filed 04/23/18 Page 4 of 5 Attorneys for Plaintiffs
4

Case 2:15-cv-04479-SSV-JCW Document 296 Filed 04/23/18 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that, on the 23rd day of April, 2018, I have electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to the parties.
/s/ David P. Fuad
5
4155-0898-9459.2

 
 Case 2:15-cv-04479-SSV-JCW Document 298 Filed 04/24/18 Page 1 of 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL. VERSUS CITY OF NEW ORLEANS, ET AL.

JOSEPH T. LAFRANCE, ET AL. VERSUS CITY OF NEW ORLEANS, ET AL.

AND

CIVIL CASE NO. 15-4479 SECTION: R
CIVIL CASE NO. 16-14439 SECTION: R

ORDER OF PARTIAL DISMISSAL The Court having been advised by counsel that the plaintiffs and the Orleans Parish Sheriff have firmly agreed upon a compromise in both matters; IT IS ORDERED that this action be and it is hereby dismissed as to the Orleans Parish Sheriff only in both Civil Action 15-4479 and 16-14439, without costs and without prejudice to the right, upon good cause shown, within sixty days, to reopen the actions against the Orleans Parish Sheriff if settlement is not consummated. In addition, the Court specifically retains jurisdiction to enforce the settlement agreement if settlement is not consummated in sixty days. See Fed. R. Civ. P. 41(a)(2); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994); Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 430 (5th Cir. 2002).
New Orleans, Louisiana, this 24th day of April, 2018.

________________________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

 
 Case 2:15-cv-04479-SSV-JCW Document 318 Filed 08/02/18 Page 1 of 35

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS Before the Court are plaintiffs’ motion for class certification1 and defendants’ motion for summary judgment on Count Six.2 For the following reasons, the Court grants both motions.

I. BACKGROUND Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia
Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983, challenging the manner in which the Orleans Parish Criminal District Court (OPCDC) collects post-judgment court debts from indigent criminal defendants. These named plaintiffs are former criminal defendants in OPCDC.3 All named plaintiffs, except

1 R. Doc. 296. 2 R. Doc. 295. 3 See R. Doc. 248 at 4-5.

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Reynaud Variste, were appointed counsel.4 The Court has held that Reynaud Variste, Reynajia Variste, Long, and Maxwell no longer have live claims for equitable relief.5
The remaining defendants are OPCDC Judges Laurie A. White, Tracey Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry Cantrell (collectively, the Judges), and OPCDC Judicial Administrator Robert Kazik.
A. Factual Background The named plaintiffs are among the thousands of individuals who are prosecuted and sentenced in OPCDC each year.6 The Judges impose various costs—collectively known as fines and fees or court debts—on convicted criminal defendants at their sentencing. First, the Judges may impose a fine, the proceeds of which are divided evenly between OPCDC and the District Attorney (DA). La. R.S. § 15:571.11(D). Second, the Judges may order a criminal defendant to pay restitution to victims. La. Code Crim. Proc. art.
4 R. Doc. 59-3 at 2, 6, 9, 18, 23; R. Doc. 95-7 at 1. 5 See R. Doc. 109 at 19-21; R. Doc. 279 at 43. 6 See R. Doc. 248 at 5-6. The Court recites only those facts necessary to resolve the instant motions. For a more extensive discussion of the facts, see the Court’s December 13, 2017 order, R. Doc. 279.
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883.2. Third, the Judges impose various fees and court costs that go to OPCDC and other entities, such as the Orleans Public Defender, the DA, and the Louisiana Supreme Court. See La. R.S. § 13:1377; id. § 13:1381.1; id. § 13:1381.4; La. Code Crim. Proc. art. 887(A). After sentencing, OPCDC may further assess criminal defendants for the costs of drug treatment and drug testing. La. R.S. § 13:5304.
As a result of their criminal convictions, the named plaintiffs were assessed fines and fees ranging from $148 (imposed on Long) to $901.50 (imposed on Cain).7 Cain was also ordered to pay $1,800 in restitution.8
All named plaintiffs were subject to OPCDC’s debt collection practices. At least until September 18, 2015, the Judges delegated authority to collect court debts to the Collections Department, which the Judges and Administrator Kazik jointly instructed and supervised.9 The Collections Department created payment plans for criminal defendants, accepted payments, and granted extensions.10 Some Judges also delegated authority to the now-defunct Collections Department to issue alias capias warrants against criminal defendants who failed to pay court debts.11 Each named
7 R. Doc. 248 at 4-5. 8 R. Doc. 59-3 at 2. 9 R. Doc. 248 at 7. 10 Id. 11 Id.
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plaintiff was arrested on such a warrant, and imprisoned for periods ranging
from six days to two weeks.12
Alana Cain was arrested pursuant to an alias capias warrant on March
11, 2015.13 Apparently unable either to make a payment or to post the
$20,000 bond, she spent a week in jail before she obtained a court hearing
on March 18.14 At that hearing, the judge asked Cain when she would be able
to continue making payments.15 Cain explained that she had missed a
payment after giving birth a few weeks earlier, but could continue making
payments upon her release.16 The judge ordered her release and directed her
to return to court for a status update two weeks later.17 OPCDC suspended
Cain’s court debts on April 7, 2016,18 although Cain made further payments
toward her court debts after that date.19
Ashton Brown spent two weeks in jail before his family secured his
release by making a $100 payment to OPCDC.20 An alias capias warrant was
12 Id. at 4; R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 13 R. Doc. 251-5 at 369; see also R. Doc. 59-3 at 2 (warrant issued on March 4, 2015). 14 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 15 R. Doc. 95-3 at 30. 16 Id. at 28-31. 17 Id. at 32. 18 R. Doc. 250-3 at 22 19 See R. Doc. 230-3 at 1-2 (payment receipts dated August 26, 2016, and October 12, 2016). 20 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25.
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issued on July 16, 2015, and Brown was arrested on July 23.21 Brown
appeared in court without counsel on August 6; the court agreed to release
Brown upon payment of $100 to OPCDC.22 Brown’s family made this
payment the next day, and Brown was released.23 OPCDC suspended
Brown’s court debts on September 23, 2016,24 although Brown, like Cain,
made further payments after that date.25
Reynajia Variste was arrested pursuant to an alias capias warrant on
May 28, 2015.26 On June 2, one of her family members paid $400 to OPCDC
in order to secure her release.27 Although Variste did not appear before a
judge on that date, her attorney did.28 OPCDC waived Variste’s outstanding
debt on August 31, 2016.29
Vanessa Maxwell was arrested on May 10, 2015, on an alias capias
warrant.30 On May 12, she filed a grievance with the Orleans Parish Sheriff’s
Office seeking a new date to make a payment.31 The office responded that
21 R. Doc. 59-3 at 6. 22 Id. 23 Id. 24 R. Doc. 250-3 at 23. 25 R. Doc. 230-3 at 3 (payment receipt dated February 10, 2017). 26 R. Doc. 95-6 at 1. 27 Id. at 1-2, 22. 28 Id. at 1. 29 R. Doc. 250-3 at 25. 30 R. Doc. 95-8 at 2; R. Doc. 251-5 at 370. 31 R. Doc. 251-5 at 362.
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she did not yet have a court date, and that to secure her release she just needed to “get someone to go to fines and fees to make arrangements.”32 Maxwell filed another grievance two days later, asking the Sheriff’s Office to place her on the court’s docket; the office again directed Maxwell to “get a family [member] to go over and make arrangements with fines n fees [sic]. Explain you have been incarcerated[;] they will make some type of arrangements for payments.”33 Maxwell finally appeared before a judge, with counsel, on May 22, 2015.34 The judge ordered her release without payment.35 Maxwell paid off her court debt on June 2, 2016.36
After this suit was filed, the Judges revoked the Collections Department’s authority to issue warrants.37 The Judges also recalled all active fines and fees warrants issued by the Collections Department before September 18, 2015, unless restitution remained unpaid or the individual had failed to appear in court.38 In doing so, the Judges wrote off $1,000,000
32 Id. 33 Id. 34 R. Doc. 95-8 at 2. 35 Id. 36 R. Doc. 250-3 at 24. 37 R. Doc. 250-2 at 13, 76; R. Doc. 250-3 at 3. 38 R. Doc. 250-3 at 4.
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in court debts.39 Each Judge now “handles collection-related matters on their respective dockets.”40
Nevertheless, at least some active warrants for failure to pay restitution still exist.41 And the Judges themselves now issue alias capias warrants for failure to pay fines and fees.42 There is no evidence that the Judges generally consider ability to pay before imprisoning indigent criminal defendants for failure to pay fines and fees. Indeed, the Judges do not routinely solicit financial information from criminal defendants who fail to pay court debts,43 though they state that they do consider ability to pay when the issue is brought to their attention.44
In addition to their judicial duties, the Judges manage the budget of OPCDC.45 From 2012 through 2015, the court’s revenue ranged from $7,567,857 (in 2012) to $11,232,470 (in 2013).46 Some of this revenue could be used only for specified purposes and went into a restricted fund; unrestricted revenue went into OPCDC’s Judicial Expense Fund, which is the
39 Id. 40 Id. at 5. 41 Id. 42 See, e.g., id. at 16, 21. 43 R. Doc. 251-2 at 17. 44 R. Doc. 250-2 at 12; R. Doc. 259-1 at 8. 45 R. Doc. 251-2 at 3; R. Doc. 255-5 at 5. 46 R. Doc. 248 at 2.
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court’s general operating fund.47 The Judges exclusively control this fund and may use it “for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof.” La. R.S. § 13:1381.4(C). They may not use it to supplement their own salaries. Id. § 13:1381.4(D). Most money for salaries and benefits of OPCDC employees (apart from the Judges) comes from the Judicial Expense Fund.48
From 2012 through 2015, the Judicial Expense Fund’s annual revenue was approximately $4,000,000.49 Roughly half of this revenue came from other governmental entities, especially the City of New Orleans.50 About $1,000,000 came from bail bond fees, and another $1,000,000 from fines and other fees.51 Since at least 2013, all fines and fees revenue has gone to the Judicial Expense Fund.52
47 Id.; R. Doc. 251-2 at 2-3. The Judicial Expense Fund is also known as the General Fund. R. Doc. 248 at 2. 48 R. Doc. 251-2 at 5; R. Doc. 255-5 at 9. 49 R. Doc. 248-1 at 1-4. Specifically, the Judicial Expense Fund had $4,090,707 in revenue in 2012; $4,100,413 in 2013; $3,928,025 in 2014; and $3,940,535 in 2015. 50 R. Doc. 248 at 1-3. 51 Id. at 2. 52 R. Doc. 251-2 at 12.
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B. Procedural History Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, on behalf of themselves and all others similarly situated. There are two remaining claims in plaintiffs’ operative second amended complaint. Count Five challenges the Judges’ practice of failing to inquire into ability to pay before criminal defendants are imprisoned for nonpayment of court debts.53 Count Five also challenges the Judges’ failure to provide a neutral tribunal to adjudicate ability to pay.54 Count Six, an equal protection claim, asserts that the Judges’ policy of jailing and threatening to imprison criminal defendants for nonpayment of court debts imposes unduly harsh and punitive restrictions on debtors whose creditor is the State, as compared to debtors who owe money to private creditors.55 On December 13, 2017, the Court granted plaintiffs’ motion for summary judgment on Count Five.56 The Court also denied both plaintiffs’ and defendants’ motion for summary judgment on Count Six.57 Plaintiffs now move for class certification on Counts Five and Six.58 Plaintiffs’
53 R. Doc. 161-4 at 59. 54 Id. at 59-60. 55 Id. at 60. 56 R. Doc. 279. 57 Id. 58 R. Doc. 296. Plaintiffs first moved for class certification on February 10, 2017, see R. Doc. 230, but the Court stayed all motion practice—and thus
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proposed class includes “[a]ll persons who currently owe or who will incur court debts arising from cases adjudicated in the Orleans Parish Criminal District Court.”59 Additionally, defendants again move for summary judgment on Count Six.60 The Court heard oral argument on these motions on June 20, 2018.
II. MOTION FOR SUMMARY JUDGMENT A. Legal Standard Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the
denied plaintiffs’ class certification motion without prejudice—pending further order, see R. Doc. 237. 59 R. Doc. 296-1 at 9. 60 R. Doc. 295.
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nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. A dispute about a material fact is genuine “if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal quotation marks and citation omitted). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with
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respect to an essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).
B. Discussion Count Six is an equal protection challenge against defendants’ debt collection practices. Specifically, plaintiffs challenge defendants’ use of arrest warrants to enforce collection of court debts. Plaintiffs argue that this enforcement mechanism constitutes invidious discrimination against criminal defendants as compared to civil judgment debtors.61 The Fourteenth Amendment to the U.S. Constitution provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. This command “is essentially a direction
61 R. Doc. 305 at 2-3. 12

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that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Harris v. Hahn, 827 F.3d 359, 365 (5th Cir. 2016) (noting that the Equal Protection Clause “keeps governmental decision makers from treating differently persons who are in all relevant respects alike” (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992))). It is well-established that the Equal Protection Clause is implicated “only ‘if the challenged government action classifies or distinguishes between two or more relevant groups.’” Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (quoting Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir. 1993)); see also Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 139 (5th Cir. 2009). “State actors may create classifications facially, when such categorization appears in the language of legislation or regulation, or de facto, through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (citation omitted). Courts apply different levels of scrutiny depending on the type of classification. City of Cleburne, 473 U.S. at 439-40.
The Supreme Court addressed the type of classification asserted by plaintiffs—between criminal judgment debtors and civil judgment debtors— in James v. Strange, 407 U.S. 128 (1972). The Kansas recoupment statute at
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issue in that case allowed the state to “recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants.” Id. at 128. The statute excluded these indigent defendants from “the array of protective exemptions Kansas has erected for other civil judgment debtors,” such as “the exemption of his wages from unrestricted garnishment.” Id. at 135. The Court recognized that recoupment statutes serve legitimate state interests, and “that enforcement procedures with respect to judgments need not be identical.” Id. at 138, 141. Nonetheless, the Court held, recoupment statutes “need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and selfrespect.” Id. at 141-42. The Court struck down Kansas’s statute as “embod[ying] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.” Id. at 142; see also Robinson v. Purkey, No. 17-1263, 2018 WL 2862772, at *45 (M.D. Tenn. June 11, 2018) (suggesting that Tennessee statute was unconstitutional because it permitted the state to suspend the licenses of those who owed traffic debts, a form of coercion not applicable to other judgment debtors).
Plaintiffs do not point to any state law that facially discriminates against criminal judgment debtors like the Kansas recoupment statute in James. Indeed, the Judges’ practice of arrest warrants and imprisonment to
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collect court-imposed debts does not appear to be authorized by any state law. Plaintiffs instead focus their challenge on the Judges’ policy of using arrest warrants to enforce collection of court debts.62 Plaintiffs rely solely on distinctions between (1) state and federal law protections for civil judgment debtors and (2) OPCDC’s policy with respect to criminal defendants who owe court debts.63 On its face, the policy does not distinguish between civil judgment debtors and criminal judgment debtors because the policy operates only on the latter group. After all, OPCDC has no jurisdiction over civil judgment debtors. See La. R.S. § 13:1336 (“The criminal district court for the Parish of Orleans shall have exclusive jurisdiction of the trial and punishment of all crimes, misdemeanors, and offenses committed within the parish of Orleans if the jurisdiction is not vested by law in some other court.”). For the same reason, there is no evidence that the Judges’ policy is applied in a discriminatory manner, or that it has a disparate impact on criminal judgment debtors compared to civil judgment debtors. Plaintiffs merely argue that there must be an equal protection violation because they are actually treated differently from how civil judgment debtors, who are not
62 R. Doc. 305 at 1. 63 Notably, Count Six does not assert an equal protection claim based on indigence. Cf. Bearden v. Georgia, 461 U.S. 660 (1983); ODonnell v. Harris County, 892 F.3d 147, 161-63 (5th Cir. 2018).
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even subject to the Judges’ policy, are supposed to be treated. Plaintiffs fail to cite a single case on point, i.e., a case in which the defendant has no authority over the favored class and does not act pursuant to state law, but nonetheless violates the Equal Protection Clause in its treatment of the disfavored class.
Differential treatment based on jurisdiction alone does not violate the Equal Protection Clause. See Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 230 (1964) (“[S]howing that different persons are treated differently is not enough, without more, to show a denial of equal protection.”); Mills v. City of Roanoke, 518 F. Supp. 2d 815, 823 (W.D. Va. 2007) (“As long as all individuals within the jurisdictional reach of a policy are equally affected by the policy, it does not matter that those in a different jurisdiction are not subjected to the same policy.”). In Woodard v. Andrus, 419 F.3d 348 (5th Cir. 2005), for example, the plaintiff sued a parish clerk of court who allegedly charged excessive or unauthorized fees. Id. at 350. The plaintiff asserted that “she and other Calcasieu Parish litigants [were] being treated differently from litigants in other Louisiana parishes.” Id. at 354. The Fifth Circuit held that these facts did not support an equal protection claim because there was no showing that the defendant, who had no jurisdiction over residents of other parishes, was “selectively enforcing the
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state statute based upon any impermissible ground,” or that the defendant “distinguish[ed] between different groups.” Id.
Here too, there is no showing that the Judges’ policy distinguishes between criminal judgment debtors and civil judgment debtors. Like the defendant in Woodard, the Judges lack jurisdiction over the favored class. Thus, the state action challenged by plaintiffs—i.e., the Judges’ policy—does not distinguish between different groups. See Woodard, 419 F.3d at 354. That civil judgment debtors outside OPCDC’s jurisdiction and criminal judgment debtors in OPCDC are treated differently, without more, does not show an equal protection violation. See Griffin, 377 U.S. at 230.
Nor is there any showing that the Judges are enforcing a policy in violation of state law with some discriminatory purpose. As noted earlier, a state actor may create a classification “through the enforcement of a facially neutral law in a manner so as to disparately impact a discernible group.” Johnson, 110 F.3d at 306. But “disparate impact alone cannot suffice to state an Equal Protection violation”; a plaintiff must also show that the challenged state action was motivated by discriminatory purpose. Id. “Discriminatory purpose in an equal protection context implies that the decisionmaker selected a particular course of action at least in part because of, and not simply in spite of, the adverse impact it would have on an identifiable group.”
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Id. at 307 (quoting Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995)). Plaintiffs point to no evidence of discriminatory purpose in this case. Thus, the disparate impact of the Judges’ policy on criminal judgment debtors in OPCDC does not in itself show an equal protection violation.
Moreover, “an alleged violation of a state statute does not give rise to a corresponding § 1983 violation, unless the right encompassed in the state statute is guaranteed under the United States Constitution.” Jones v. Lowndes County, 678 F.3d 344, 352 (5th Cir. 2012) (quoting Moore v. Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985)). Louisiana Code of Criminal Procedure article 24 regulates contempt proceedings in the criminal courts. Before holding an individual in contempt, a court must issue a rule to show cause; this rule must be served on the criminal defendant at least 48 hours before trial on the rule; and if the court finds the defendant guilty, it must issue “an order reciting the facts constituting the contempt.” La. Code Crim. Proc. art. 24. Additionally, Louisiana law provides that failure to comply with an order to pay money “shall not be construed as a contempt” if the debtor is currently unable to pay, and was also unable to pay when the order was issued. La. R.S. § 13:4206.
The Judges’ policy and practice of essentially holding criminal defendants in contempt for nonpayment of court debts fails to adhere to
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these statutes. To some extent, the procedural rights encompassed by Louisiana Code of Criminal Procedure article 24 may be guaranteed by the U.S. Constitution. But those rights sound in due process, not equal protection, and the Court has addressed those rights in connection with Count Five. The substantive right encompassed by Louisiana Revised Statutes section 13:4206 does relate to equal protection of indigents. See Bearden v. Georgia, 461 U.S. 660 (1983). But again, Count Six does not assert an equal protection claim based on indigence.
Count Six, as pleaded, asserts an equal protection claim based on differential treatment of criminal defendants in OPCDC versus civil judgment debtors in other courts. The Judges’ policy of arresting and imprisoning criminal defendants for nonpayment of court debts is not discriminatory on its face because it operates only on criminal defendants in OPCDC. Additionally, there is no evidence that the Judges adopted the policy with any discriminatory purpose. Thus, plaintiffs fail to raise a genuine dispute of material fact in support of their equal protection claim, and defendants are entitled summary judgment on Count Six.
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III. CLASS CERTIFICATION A. Legal Standard Class actions are governed by Rule 23 of the Federal Rules of Civil
Procedure. “The class certification determination rests within the sound discretion of the trial court.” Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005). A court, however, should not grant class certification unless it is satisfied, after “rigorous analysis,” that all Rule 23 prerequisites have been met. Id. (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).
To be certified, the class must first satisfy four threshold requirements. A court may certify a class only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect
the interests of the class. Fed. R. Civ. P. 23(a). The party moving for certification bears the burden of establishing these requirements. Unger, 401 F.3d at 320 (citing Berger v. Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir. 2001)).
If the prerequisites of Rule 23(a) are met, the proposed class must additionally satisfy one of the three provisions for certification under Rule
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23(b). For certification of an injunctive or declaratory class under Rule 23(b)(2), plaintiffs must show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
B. Discussion Plaintiffs seek to certify the following class: “All persons who currently owe or who will incur court debts arising from cases adjudicated in the Orleans Parish Criminal District Court.”64 Defendants’ chief objection to class certification is that the proposed class definition is overbroad. Specifically, the class definition includes no time limits; does not distinguish between the different types of court debts—restitution, fines, fees, and other court debts; includes non-indigent individuals; and includes individuals who have received or will receive an ability-to-pay inquiry.65 Defendants also argue that monetary damages predominate over equitable relief.66
1. Numerosity Rule 23(a)(1) requires that the class be so large that “joinder of all members is impracticable.” To satisfy the numerosity requirement, “a
64 R. Doc. 296-1 at 9. 65 R. Doc. 299 at 4-7. 66 Id. at 7-9.
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plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981)). A “mere allegation that the class is too numerous to make joinder practicable” is insufficient. Id. (quoting Fleming v. Travenol Labs., Inc., 707 F.2d 829, 833 (5th Cir. 1983)).
Thousands of individuals are prosecuted in OPCDC each year.67 Most of these individuals plead guilty, and the Judges regularly impose fines and fees at sentencing.68 Thus, it is apparent—and defendants do not contest— that plaintiffs’ proposed class comprises thousands of individuals. Joinder at such a large scale is clearly impracticable. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (noting that “the size of the class in this case—100 to 150 members—is within the range that generally satisfies the numerosity requirement”). Moreover, “that the class includes unknown, unnamed future members also weighs in favor of certification.” Pederson, 213 F.3d at 868 n.11. Plaintiffs have therefore satisfied the numerosity requirement.
67 R. Doc. 248 at 5-6. 68 Id. at 4.
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2. Commonality The second requirement of Rule 23(a) is that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court explained that Rule 23(a)(2) “requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Id. at 349-50 (quoting Falcon, 457 U.S. at 157)). The class members’ “claims must depend upon a common contention.” Id. at 350. And this common contention “must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. The Court has now resolved all issues of fact and law pertaining to the named plaintiffs’ claims: the Court has granted summary judgment to plaintiffs on Count Five, and the remaining counts are dismissed. In granting summary judgment on Count Five, the Court held it undisputed that the Judges have a policy or practice of failing to conduct an ability-to-pay inquiry before plaintiffs are imprisoned for nonpayment of court debts.69 The Court also held it undisputed that the Judges’ institutional incentives
69 R. Doc. 279 at 48-52. 23

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create a conflict of interest when they determine, or are supposed to determine, plaintiffs’ ability to pay fines and fees.70
Regarding the first aspect of Count Five, all criminal defendants who owe court debts to OPCDC are at risk of suffering the same constitutional injury: imprisonment for failure to pay court debts without an ability-to-pay determination.71 See Dukes, 564 U.S. at 349-50. Plaintiffs’ claims “depend upon [the] common contention” that defendants’ policy or practice is unconstitutional. Id. at 350. Furthermore, this contention is “of such a nature that it is capable of classwide resolution”: the Court’s resolution of this aspect of Count Five turned on the constitutionality of the policy or practice, not on the specific facts of the named plaintiffs’ experiences. Id.
Although defendants cite differences between class members, these differences have no bearing on the common questions of fact and law that the Court has already decided. See Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016) (noting that “[d]issimilarities among class members should be considered to determine whether a common question is truly presented,” but that “[e]ven a single common question of law or fact can suffice to establish commonality, so long as resolution of that question ‘will resolve an issue that
70 Id. at 76. 71 The Court discussed evidence of this ongoing risk of imprisonment in its earlier order. See id. at 31-32.
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is central to the validity of each one of the [class member’s] claims in one stroke’” (quoting Dukes, 564 U.S. at 350)). First, defendants assert that court debts owed by the putative class members vary by type and time of imposition. But the challenged policy or practice relates to the Judges’ collection, not imposition, of court debts. The Judges’ collection practices create the same risk of injury regardless of when a criminal defendant’s court debts were imposed or what types of court debts the individual currently owes.72
Second, defendants point out that not all criminal defendants in OPCDC are indigent. But a putative class member’s right to an ability-to-pay inquiry does not depend on indigence; the procedural protections required by the Supreme Court in Bearden apply equally to indigent and non-indigent individuals. 461 U.S. at 672 (“We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay.”). Thus, every criminal defendant subject to the Judges’ debt collection practices is entitled to an
72 Defendants also contend that fines have never been at issue in this case. R. Doc. 299 at 6. But the numerous references to fines in plaintiffs’ complaint, the parties’ joint stipulations, and the Court’s December 13, 2017 order belie this contention. See R. Docs. 161-4, 248, 279.
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ability-to-pay hearing. Indeed, the point of such a hearing is to determine indigence.
Third, defendants contend that some putative class members have received or will receive an ability-to-pay inquiry. Any such inquiry would be tainted by the unconstitutional conflict of interest found by the Court in its earlier order, so long as the criminal defendant’s court debts were at least partly owed to the Judicial Expense Fund. Moreover, defendants’ contention lacks evidentiary support in the record. In response to an interrogatory, defendants admit that they have no written policies related to ability-to-pay determinations.73 Defendants state that they will generally consider the issue if a criminal defendant raises it.74 But this practice puts the onus on a criminal defendant to raise the issue. Bearden requires more. As the Court explained in its earlier order, Bearden commands that before a court imprisons an individual for failure to pay a court-imposed fine or fee, the court must inquire into her reasons for failure to pay. 461 U.S. at 672. If the individual is unable to pay the court debts despite sufficient bona fide efforts
73 R. Doc. 251-5 at 297. 74 Id. The Court also notes that when this case was filed, the Collections Department issued alias capias warrants for nonpayment of court debts. R. Doc. 248 at 7. This process did not even involve the Judges, let alone guarantee a constitutionally adequate ability-to-pay inquiry before imprisoning criminal defendants for failure to pay. See id.
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to do so, then the court must consider alternative measures. Id. Providing
ad hoc ability-to-pay inquiries only if the issue is brought to a Judge’s
attention does not meet these constitutional requirements.75 Thus, there is
no evidence that any Judge conducts, or has conducted, constitutionally
adequate Bearden hearings.
In any event, defendants’ argument misses the mark. The Fifth Circuit
has recognized that not all putative class members must suffer in the same
way because of the defendants’ conduct; it is enough to show that the same
challenged conduct creates the same threat of injury. See Yates v. Collier,
868 F.3d 354 (5th Cir. 2017); see also In re Deepwater Horizon, 739 F.3d
790, 811 (5th Cir. 2014) (noting that common questions may “relate to the
injurious effects experienced by the class members, but they may also relate
to the defendant’s injurious conduct”). In Yates, the district court certified
an injunctive class of inmates challenging the conditions of their
75 Furthermore, based on the Court’s review of the record in this case, the Judges’ focus in dealing with criminal defendants who were imprisoned for nonpayment of court debts was to collect the debts, regardless of where the money came from or the criminal defendants’ financial resources. See R. Doc. 95-3 at 27-35 (transcript of Alana Cain’s hearing after she was imprisoned for nonpayment of court debts); see also R. Docs. 8-2, 8-3, 8-7 (plaintiffs’ affidavits describing how the court compelled them to make payments without inquiring into their ability to pay); R. Doc. 251-5 at 284 (July 2014 City Council hearing in which a Judge explained that the Judges were sharing ideas “in an effort to increase [their] collection” of fines and fees).
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confinement. The district court noted two common questions of law or fact: (1) “excessive heat constitutes a condition of confinement that poses a substantial risk of serious harm to the health of all inmates,” and (2) prison “officials were deliberately indifferent to the risk posed to the inmates.” Id. at 362 (emphasis added). The defendants argued that age and health differences among the inmates and the availability of various “heatmitigation measures” made it impossible to answer the first question on a classwide basis. Id. at 362-63. While the district court acknowledged that “no two individuals have the exact same risk,” it found that “heat-mitigation measures . . . were ineffective to reduce the risk of serious harm to a constitutionally permissible level for any inmate, including the healthy inmates.” Id. at 363 (alterations omitted). The Fifth Circuit upheld the district court’s findings and reasoning. Id. at 365.
Here, as in Yates, not all putative class members have suffered or will suffer the same injury. But if the only way to possibly get an ability-to-pay determination (albeit a constitutionally deficient one) is to ask for it, as the defendants’ interrogatory response suggests, then all criminal defendants who owe court debts in OPCDC are at risk of imprisonment without due process. All putative class members face the same threat of injury because
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of the Judges’ unconstitutional policy or practice. This is enough to establish commonality with respect to the first part of Count Five.
The second part of Count Five, challenging the Judges’ conflict of interest, does not necessarily affect every member of the proposed class. Of course, every putative class member is entitled to a neutral forum to determine ability to pay. But a Judge would not be conflicted in determining the ability to pay of an individual who owes only restitution, for example, because restitution goes only to the victim. See La. Code Crim. Proc. art. 883.2. The Court therefore divides plaintiffs’ proposed class into one subclass, comprising persons whose debts are at least partly owed to the OPCDC Judicial Expense Fund. See Fed. R. Civ. P. 23(c)(5) (“When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.”). All such persons’ claims depend upon the common contention that the Judges’ conflict of interest violates due process, a contention that is clearly capable of classwide resolution. Thus, plaintiffs have shown commonality with respect to the second part of Count Five.
3. Typicality Rule 23(a)(3) requires that “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” The requirement depends “less on the relative strengths of the named and unnamed plaintiffs’
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cases than on the similarity of legal and remedial theories behind their claims.” Ibe, 836 F.3d at 529 (quoting Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 472 (5th Cir. 1986)). A typicality inquiry may be used to “screen out class actions in which the legal or factual position of the representatives is markedly different from that of other members of the class even though common issues of law or fact are present.” 7A Wright & Miller, Federal Practice and Procedure § 1764 (3d ed. 2018).
Count Five challenges defendants’ practice of failing to conduct an ability-to-pay inquiry and defendants’ conflict of interest in evaluating ability to pay—both of which are generally applicable to the putative class members. Cf. Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (finding typicality satisfied where plaintiff “framed her challenge in terms of [defendant’s] general practice of overestimating social security benefits”). Indeed, the named plaintiffs’ claims for declaratory relief are identical to those of the other putative class members. Plaintiffs have therefore satisfied the typicality requirement.
4. Adequacy of representation The final requirement of Rule 23(a) is that the representative parties must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement is “essential to due process, because a final
30

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judgment in a class action is binding on all class members.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (citing Hansberry v. Lee, 311 U.S. 32, 42-43 (1940)). To meet the adequacy requirement, the “class representative[s], their counsel, and the relationship between the two [must be] adequate to protect the interests of absent class members.” Unger, 401 F.3d at 321. The Court must consider both “the zeal and competence” of counsel and “the willingness and ability of the representatives to take an active role in and control the litigation.” Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002).
Plaintiffs’ attorneys in this case have proven to be both zealous and competent. The declarations by Alec Karakatsanis, Jon M. Greenbaum, David P. Fuad, and William P. Quigley highlight counsel’s extensive experience in civil rights cases.76 Additionally, the Court is satisfied that the representative parties have adequately represented the interests of the class members, and will continue to do so. All named plaintiffs have executed affidavits detailing their personal experiences regarding defendants’ policies and practices; Alana Cain and Ashton Brown continue to owe court debts to OPCDC; and Cain and Brown have kept counsel apprised of defendants’
76 R. Docs. 296-3, 296-4, 296-5, 296-6. 31

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ongoing debt collection efforts. The class representatives and counsel are therefore adequate.
5. Declaratory class Rule 23(b)(2) permits a class action to be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” To satisfy Rule 23(b)(2), “class members must have been harmed in essentially the same way.” Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir. 2007). “It is well-established that ‘[i]nstead of requiring common issues, [Rule] 23(b)(2) requires common behavior by the defendant toward the class.’” Yates, 868 F.3d at 366 (quoting In re Rodriguez, 695 F.3d 360, 365 (5th Cir. 2012). In Dukes, the Supreme Court noted that “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted— the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Plaintiffs must also show that their claims for equitable relief predominate over any damages claims. Maldonado, 493 F.3d at 524.
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“[M]onetary relief predominates in [Rule 23](b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998). Incidental damages “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Id. “Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.” Id.
Here, plaintiffs’ sole remaining claim seeks declaratory relief. Contrary to defendants’ arguments, plaintiffs do not seek reimbursement for court debts or other damages. Plaintiffs do seek attorney’s fees under 42 U.S.C. § 1988,77 but such fees are incidental to plaintiffs’ request for declaratory relief. See Yates, 868 F.3d at 359 n.1 (affirming certification of Rule 23(b)(2) class even though plaintiffs sought attorney’s fees).
As explained earlier, the first aspect of Count Five challenges a policy or practice that is generally applicable to the class, and all class members are at risk of suffering the same constitutional injury. The Judges’ policy or practice may be declared unconstitutional only as to all of the class members or as to none of them. Dukes, 564 U.S. at 360. This general applicability
77 See R. Doc. 161-4 at 61. 33

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satisfies Rule 23(b)(2) even though not all members of the class will actually be imprisoned for nonpayment of court debts. See Fed. R. Civ. P. 23 advisory committee note to 1966 amendment (“Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.”). The second aspect of Count Five, challenging the Judges’ institutional conflict of interest, involves the same conduct and the same injury for all members of the subclass defined earlier. This conflict of interest may be declared unconstitutional only as to all members of the subclass or as to none of them. Plaintiffs have therefore satisfied Rule 23(b)(2)’s requirements.
IV. CONCLUSION For the foregoing reasons, the Court GRANTS defendants’ motion for
summary judgment on Count Six. Count Six is DISMISSED WITH PREJUDICE. Plaintiffs’ motion for class certification is GRANTED. The following class is certified as to the first part of Count Five: all persons who owe or will incur court debts arising from cases adjudicated in OPCDC. The following subclass is also certified as to the second part of Count Five: all
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class members whose debts are at least partly owed to the OPCDC Judicial Expense Fund.
New Orleans, Louisiana, this _2_n_d__ day of August, 2018. _____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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 Case 2:15-cv-04479-SSV-JCW Document 319 Filed 08/03/18 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

DECLARATORY JUDGMENT Named Plaintiffs, on behalf of all persons similarly situated, filed this action against, among others, the Judges of the Orleans Parish Criminal District Court (OPCDC), challenging the debt collection practices of that court. The undisputed evidence in this case establishes that the Judges have a policy or practice of not inquiring into criminal defendants’ ability to pay before those individuals are imprisoned for nonpayment of court debts. The undisputed evidence further establishes that because of the Judges’ institutional conflict of interest, the Judges fail to provide a neutral forum for determination of criminal defendants’ ability to pay. The Fourteenth Amendment to the U.S. Constitution prohibits a state actor from arresting or detaining a criminal defendant solely for failure to pay a court-imposed debt absent a determination of ability to pay. See Bearden v. Georgia, 461 U.S. 660 (1983). The Fourteenth Amendment also requires a state court to provide a neutral forum in which to adjudicate ability to pay. See Ward v.

Case 2:15-cv-04479-SSV-JCW Document 319 Filed 08/03/18 Page 2 of 2
Village of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). Considering this law, the evidence in the record, and the Court’s orders and reasons on file herein,
IT IS ORDERED, ADJUDGED AND DECREED that judgment is hereby entered in favor of Plaintiffs on Count Five of the Complaint. The Court DECLARES that with respect to all persons who owe or will incur court debts arising from cases adjudicated in OPCDC, the Judges’ policy or practice of not inquiring into the ability to pay of such persons before they are imprisoned for nonpayment of court debts is unconstitutional. The Court further DECLARES that with respect to all persons who owe or will incur court debts arising from cases adjudicated in OPCDC, and whose debts are at least partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to provide a neutral forum for determination of such persons’ ability to pay is unconstitutional.
New Orleans, Louisiana, this _3_r_d__ day of August, 2018.
_____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
2

 
 Case: 18-30955 Document: 00515090064 Page: 1 Date Filed: 08/23/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 18-30955

August 23, 2019 Lyle W. Cayce

Clerk

ALANA CAIN; ASHTON BROWN; REYNAUD VARISTE; REYNAJIA VARISTE; THADDEUS LONG; VANESSA MAXWELL,
Plaintiffs - Appellees
v.
LAURIE A. WHITE, Judge Section A of the Orleans Parish Criminal District Court; TRACEY FLEMINGS-DAVILLIER, Judge Section B of the Orleans Parish Criminal District Court; BENEDICT WILLARD, Judge Section C of the Orleans Parish Criminal District Court; KEVA LANDRUM-JOHNSON, Judge Section E of the Orleans Parish Criminal District Court; ROBIN PITTMAN, Judge Section F of the Orleans Parish Criminal District Court; BYRON C. WILLIAMS, Judge Section G of the Orleans Parish Criminal District Court; CAMILLE BURAS, Judge Section H of the Orleans Parish Criminal District Court; KAREN K. HERMAN, Judge Section I of the Orleans Parish Criminal District Court; DARRYL DERBIGNY, Judge Section J of the Orleans Parish Criminal District Court; ARTHUR HUNTER, Judge Section K of the Orleans Parish Criminal District Court; FRANZ ZIBILICH, Judge Section L of the Orleans Parish Criminal District Court; HARRY E. CANTRELL, Magistrate Judge of the Orleans Parish Criminal District Court,
Defendants - Appellants

Appeal from the United States District Court for the Eastern District of Louisiana

Case: 18-30955 Document: 00515090064 Page: 2 Date Filed: 08/23/2019
No. 18-30955 Before HAYNES, GRAVES, and HO, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge:
Plaintiff-Appellees are former criminal defendants in Orleans Parish, Louisiana who sued Defendant-Appellants, Judges of the Orleans Parish Criminal District Court (“OPCDC”), under 42 U.S.C. § 1983. Plaintiffs alleged the Judges’ practices in collecting criminal fines and fees violated the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment in Plaintiffs’ favor. We affirm, although we emphasize at the outset that the resolution of this case is dictated by the particular facts before us.
I. BACKGROUND A. The Parties Plaintiff-Appellees are Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell, former criminal defendants in OPCDC who pleaded guilty to various criminal offenses between 2011 and 2014. All but Reynaud Variste qualified for and were appointed public defenders. At sentencing, Plaintiffs were assessed fines and fees ranging from $148 to $901.50. All were arrested for failure to pay their assessed fines and fees, given a $20,000 bond, and spent anywhere from six days to two weeks in jail. Defendant-Appellants are twelve OPCDC judges, Judges Laurie A. White, Tracey Flemings-Davilier, Benedict Willard, Keva Landrum-Johnson, Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry Cantrell (the “Judges”).1
1 All claims against the OPCDC and the City of New Orleans were dismissed prior to the district court’s order granting summary judgment at issue here. Judicial Administrator Robert Kazik and Orleans Parish Sheriff Marlin Gusman are not parties to this appeal.
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Case: 18-30955 Document: 00515090064 Page: 3 Date Filed: 08/23/2019
No. 18-30955 B. The Judicial Expense Fund (“JEF”) The JEF is established pursuant to La. Rev. Stat. § 13:1381.4 and consists of OPCDC revenue that is not designated or restricted for a specific purpose. Accordingly, it is also known as the General Fund. The JEF receives funding from a variety of sources, including the City of New Orleans and bail bond fees, but approximately one quarter of the monies it receives comes from the court’s collection of fines and fees. The Judges have exclusive control over how the JEF is spent, and generally use it for the following: salaries and related-employment benefits (excluding the judges), CLE travel, legislative expenses, conferences and legal education, ceremonies, office supplies, cleaning supplies, law books, bottled water, jury expenses, telephone, postage, pest control, dues and subscriptions, paper supplies, advertising, building maintenance and repairs, cleaning services, capital outlay, equipment maintenance and repairs, lease payments, equipment rentals, professional and contractual expenses, the drug testing supplies, coffee, transcripts, insurance, and miscellaneous.
Money from the fund may not be used to supplement the Judges’ own salaries, although, as noted above, it can be used to pay the salaries of court personnel. La. Rev. Stat. § 13:1381.4(D). Each judge is allocated $250,000 per annum for personnel salaries and $1,000 for court costs from the JEF. The fund also covers the cost of professional liability insurance coverage as authorized by the Louisiana Supreme Court. “For some time prior to 2011, some judges received supplemental benefits” from the JEF in the form of supplemental health insurance policies and reimbursement for out-of-pocket medical expenses; however, this practice fully ended by 2012 following an investigation by the Louisiana Legislative Auditor.
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No. 18-30955
When collection of the fines and fees is reduced, the OPCDC can have a
difficult time meeting its operational needs, leading to cuts in services,
reduction of staff salaries, and leaving some positions unfilled. During these
times, the Judges have attempted to increase their collection efforts and have
also requested assistance from other sources of funding, including the City of
New Orleans.
C. The Fines and Fees
Several Louisiana statutes and codes permit the Judges to assess fines
and fees to criminal defendants at sentencing. Some fines and fees have specific
purposes and are collected to be distributed for specific statutory purposes,2
while others are collected and then split between the court and other agencies.3
However, some fines and fees go directly into the JEF.4 The statutory
requirements of yet other fines and fees is ambiguous.5
2 Restitution is collected to benefit the victims of crime, see La. Code Crim. Proc. Art. 883.2, and a $14 fee is collected to be deposited into the indigent transcript fund to compensate court reporters. La. Rev. Stat. § 13:1381.1. Additionally, Louisiana statute allows the assessment of the costs of drug treatment or drug testing if the defendant is found not to be indigent. § 13:5304(B)(3)(e), (C)(3)–(4). After 2012, it appears that these the indigent transcript fund fee and drug testing costs were deposited into the JEF.
3 For example, fines pursuant to La. Rev. Stat. § 15:571.11 are split between the OPCDC and the District Attorney, and “court costs” assessed by the Judges can include fees that go to other agencies, including the Orleans Public Defender, the District Attorney, the Criminal Sheriff, etc. The Sheriff also collects a 3% fee on bail bonds, two thirds of which goes to an “administration of criminal justice fund” overseen by the chief judge of the OPCDC, the Orleans Parish sheriff, the district attorney, and the director of the Orleans Parish indigent defender’s program, or their designees. § 22:822(A)(2), (B)(3); § 13.1381.5. The remaining third goes to the OPCDC. § 22.822(3).
4 These include a mandatory $5 fee, La. Rev. Stat. § 13:1381.4, an “additional cost” of up to $500 for a defendant convicted of a misdemeanor and $2,000 for a defendant convicted of a felony. § 13:1381.4(A)(2), (B).
5 For instance, three Plaintiffs were charged a $100 or $200 fee to go into the indigent transcript fund as a “condition of probation,” which went into the JEF. Louisiana Code of Criminal Procedure Article 887(A) also allows for the collection of “all costs of the prosecution or proceeding, . . . recoverable by the party or parties who incurred the expense.” The Judges assessed these costs, but it is not clear where these costs went once collected.
4

Case: 18-30955 Document: 00515090064 Page: 5 Date Filed: 08/23/2019
No. 18-30955 D. OPCDC’s Debt Collection Practices Prior to this lawsuit, the Judges delegated collection authority to the Collections Department, established by the OPCDC judges6 in the late 1980s “to (1) facilitate the collection of costs and fines [and] (2) to minimize the administrative and logistical burden on” the OPCDC’s dockets. The Collections Department, supervised by both Mr. Kazik and the Judges, worked with criminal defendants in creating payment plans, accepting payments, and granting extensions. The Collections Department had “no standard list of factors or questions . . . to ask a criminal defendant except those at intake when collections obtained address, telephone and employment information and used it for purposes of contacting the criminal defendant when they did not pay.” Before issuing a warrant for a defendant’s arrest for failure to pay a court debt, the Collections Department would send two form letters to the defendant warning them of their overdue fines and fees and the possibility of arrest for failure to pay. If checking the court dockets or probation and jail records did not reveal a reason for nonpayment, the Collections Department issued an alias capias warrant for contempt of court and generally set surety bail at $20,000. A person imprisoned on one of these warrants would usually remain “in jail until their family or friends could make a payment on their court debt, or until a judge released them.” After Plaintiffs filed the instant suit, the Judges withdrew the Collections Department’s authority to issue warrants, recalled all active fines and fees warrants issued prior to September 18, 2015 (except those where restitution remained unpaid or the individual had not appeared in court), and wrote off approximately $1,000,000 in court debts. The Judges now handle
6 None of the Judges who are defendants in this lawsuit were on the bench or otherwise employed at the court when Collections was created.
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Case: 18-30955 Document: 00515090064 Page: 6 Date Filed: 08/23/2019
No. 18-30955 collection issues on their own dockets, although they still issue alias capias warrants for failure to pay fines and fees. At the time of the district court’s summary judgment ruling, there was no evidence that the Judges had ever instituted a practice of considering a defendant’s ability to pay before jailing them for failure to pay their court debts.
E. Procedural Background Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the Judges’ collection practices violated their Fourth and Fourteenth Amendment rights, as well as Louisiana tort law. The only one of their seven claims at issue on appeal is Count Five, summarized by the district court as follows: Defendants’ policy of jailing indigent debtors for nonpayment of court debts without any inquiry into their ability to pay is unconstitutional under the Due Process clause and the Equal Protection Clause of the Fourteenth Amendment, and the Judge’s authority over both fines and fees revenue and ability-to-pay determinations violates the Due Process Clause.
Cain v. City of New Orleans, 281 F. Supp. 3d. 624, 633 (E.D. La. 2017) (emphasis added). The district court ordered the parties to submit crossmotions for summary judgment on Count Five (and several other counts) and granted summary judgment to Plaintiffs on both portions of Count Five. The district court then certified a class and issued a declaratory judgment.
The Judges only challenge the portion of the district court’s declaratory judgment which declared that “with respect to all persons who owe or will incur court debts arising from cases adjudicated in OPCDC, and whose debts are at least partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to provide a neutral forum for determination of such persons’ ability to pay is unconstitutional.” They do not challenge the district court’s judgment stating that “the Judges’ policy or practice of not inquiring into the ability to pay of
6

Case: 18-30955 Document: 00515090064 Page: 7 Date Filed: 08/23/2019
No. 18-30955 such persons before they are imprisoned for nonpayment of court debts is unconstitutional.”
II. STANDARD OF REVIEW “This court reviews a district court’s grant of summary judgment de novo, applying the same legal standards as the district court.” Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005)). “Summary judgment is appropriate when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C., 904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
III. DISCUSSION “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). “That officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the controversy to be decided is of course the general rule.” Tumey v. State of Ohio, 273 U.S. 510, 522 (1927). However, “[a]ll questions of judicial qualification may not involve constitutional validity.” Id. at 523. The issue here is whether the Judges’ administrative supervision over the JEF, while simultaneously overseeing the collection of fines and fees making up a substantial portion of the JEF, crosses the constitutional line. A. “Average Man as Judge” versus “Average . . . Judge” The Judges primary argument is that the district court improperly applied the “average man as judge” standard rather than the “average judge” standard when determining whether the Judges’ interest in the JEF violated due process. According to the Judges, the “average man as judge” standard is applied in situations where “the impartiality of non-judges acting as judges” is
7

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No. 18-30955 called into question, not cases where the “average judge’s” impartiality is under debate. Essentially, the Judges argue that an average man might be swayed by the institutional interest at play here, but not an average judge. The caselaw simply does not support such a distinction.
1. Legal Background In Tumey, the mayor of an Ohio village presided over a “liquor court,” which allowed him to try and convict individuals alleged to unlawfully possess intoxicating liquor within the county. Tumey, 273 U.S. at 515. The Ohio statutes which established the liquor courts allowed the mayor to impose a fine on those convicted and to order the person sentenced to remain in prison until the fine was paid. Id. at 516. As remuneration for his troubles, the mayor could retain the amount of his costs in each case from the convicted defendant over and above his regular salary. Id. at 519–20. In addition, the village over which the mayor presided received half the funds from the imposed fines (the other half went to the state). Id. at 534–35. Eventually, a defendant challenged the mayor’s qualifications to hear his case and the Court found the defendant “was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” Id. at 535. The Court observed, Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.
Id. at 532. While Tumey was generally thought to focus on a judge’s financial
interest, both personal and institutional, In re Murchison, 349 U.S. 133 (1955) 8

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No. 18-30955 established a separate line of Supreme Court cases focusing on a judge’s possible “conflict arising from his participation in an earlier proceeding.” Caperton, 556 U.S. at 880. In Murchison, the unconstitutional conflict came from a judge who, as allowed by statute, had been examining witnesses as a “one-man judge-grand jury” in deciding whether criminal charges should be brought. Murchison, 349 U.S. at 133–34. The judge, unhappy with the responses of two witnesses, subsequently charged, tried, and convicted each one of contempt based on his belief that one witness lied and the other refused to answer questions before him as “judge-grand-jury.” Id. at 134–35. The Court concluded this dual-role violated due process, and quoted Tumey in saying that “[e]very procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” Murchison, 349 U.S. at 136 (quoting Tumey, 273 U.S. at 532).
In a case fairly similar to Tumey, the Supreme Court again addressed the possible institutional biases inherent in another mayor’s court. Ward v. Vill. of Monroeville, Ohio, 409 U.S. 57 (1972). In Ward, an Ohio statute allowed “mayors to sit as judges in cases of ordinance violations and certain traffic offenses” and the “fines, forfeitures, costs, and fees imposed by” the mayor in these courts formed a major part of the village’s funding. Ward, 409 U.S. at 57–58. In addition, the mayor was the “president of the village council, preside[d] at all meetings, vote[d] in case of a tie, account[ed] annually to the council respecting village finances, fill[ed] vacancies in village offices and ha[d] general overall supervision of village affairs.” Id. at 58.
The Court applied the same test espoused in Tumey: Although ‘the mere union of the executive power and the judicial power in him cannot be said to violate due process of law,’ the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the
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No. 18-30955 burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused . . . .’
Ward, 409 U.S. at 60 (quoting Tumey, at 532, 534) (internal citations removed)). Because “that ‘possible temptation’ may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court,” the Court found the mayor’s court in Ward presented “a ‘situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.’” Id. at 60.
Over a decade later, the Supreme Court again had occasion to discuss what level of financial interest might render “the average . . . judge” unable “to hold the balance nice, clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). In Aetna, a justice on the Alabama Supreme Court participated in a decision regarding punitive damages in bad faith insurance claims while he was simultaneously a lead plaintiff in a class action suit seeking punitive damages on a bad faith claim. Id. at 817. While the Court discussed many factors that might bear on the necessity for recusal, the Court held “simply that when Justice Embry made that judgment, he acted as ‘a judge in his own case.’” Id. at 824 (quoting Murchison, 349 U.S. at 136).
While it was possible that the justice was not influenced by his participation in the state court case, under the principles laid out in Tumey, Murchison, and Ward, actual influence was not necessary—it only mattered whether the situation “would offer a possible temptation to the average . . . judge to . . . lead him to not to hold the balance nice, clear and true.” Aetna, 475 U.S. at 825 (quoting Ward, 409 U.S. at 60). Because of Justice Embry’s participation in the case, the Court found the “appearance of justice” best
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No. 18-30955 “served by vacating the decision and remanding for further proceedings.” Id. at 828.
2. Judges’ Argument Disregarding the principles undergirding Aetna, the Judges argue that Aetna essentially came along and established a new standard by shortening Tumey and Ward’s “average man as judge” to “average . . . judge.” Aetna, 475 U.S. at 822, 825. While the Court did alter “average man as judge,” the Court applied the exact same principles discussed in Ward, Murchison, and Tumey to the Alabama Supreme Court justice. There was no articulation of a higher standard for judges, much less an explanation as to how such a standard might differ from that applied to mayors acting as judges. Aetna, 475 U.S. at 825. Furthermore, reading Aetna as the Judges suggest would mean reading Aetna to overrule Murchison, which applied the “average man as judge” standard to a sitting judge. Murchison, 349 U.S. at 136. We find it hard to believe that the Court overruled one of its cases with an ellipsis. Finally, the recent Supreme Court case of Caperton reinforces the idea that the standards announced, and the situations presented, in Tumey and Ward apply equally to judges and nonjudges acting as judges. Caperton, 556 U.S. at 877–82 (discussing the various principles from Tumey, Ward, Murchison and Aetna as applying to “judges”). The district court did not err in applying the principles from Tumey and Ward to the facts of this case. B. The Judges’ Institutional Interest in the JEF
1. The District Court’s Reliance on Ward The Judges next contest the district court’s reliance on Ward to find that the Judges’ pecuniary interest in the JEF “crosses the constitutional line.” They allege “[t]he district court erred in its blanket comparison of the Judges’ institutional interest here to the mayor’s institutional interest in Ward.” The Judges distinguish Ward by noting the mayor there had broad executive power
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No. 18-30955 over all the village finances and he was politically responsible for the town’s funds, whereas here the Judges only directly manage a portion of the revenue from the fines and fees. Plaintiffs argue that the Judges’ interest here is almost exactly like that in Ward because the Judges impose the fines and fees and exercise complete control over how the revenue generated from the fines and fees is spent.
The district court very thoroughly examined the ways in which the Judges have an institutional interest in the JEF. It observed that the “[f]ines and fees revenue goes into the Judicial Expense Fund,” over which “the Judges exercise total control.” Cain, 281 F. Supp. 3d at 654. It noted that while the money does not support the Judges’ personal salaries, it largely goes to support the salaries of each Judges’ staff. In addition, the district court noted that while some of the money collected from fees is earmarked for specific purposes, the revenue all goes to the JEF and makes up approximately one-fourth of the OPCDC’s budget.
In Ward, “[a] major part of village income [was] derived from the fines, forfeitures, costs, and fees imposed” by the mayor in his court, and the mayor had “wide executive powers” that included accounting to the village council regarding village finances, filling vacancies in village offices, and “general overall supervision of village affairs.” Ward, 409 U.S. at 58. Here, the Judges have exclusive authority over how the JEF is spent, they must account for the OPCDC budget to the New Orleans City Council and New Orleans Mayor, and the fines and fees make up a significant portion of their annual budget. We agree with the district court that the situation here falls within the ambit of Ward. In doing so, we emphasize it is the totality of this situation, not any
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individual piece, that leads us to this conclusion. In sum, when everything involved in this case is put together, the “temptation”7 is too great.
Given this constitutional infirmity, we find the Judges’ remaining arguments unavailing.
IV. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. The Judges’ motion to supplement the record is DENIED.
7 In so concluding, we do not in any way suggest that the Judges actually succumbed to that “temptation.”
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LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

August 23, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 18-30955 Alana Cain, et al v. New Orleans City, et al USDC No. 2:15-CV-4479

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.

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The judgment entered provides that defendants-appellants pay to plaintiffs-appellees the costs on appeal. A bill of cost form is available on the court's website www.ca5.uscourts.gov.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________ Debbie T. Graham, Deputy Clerk
Enclosure(s)
Ms. Kelsi Brown Corkran Ms. Mindy Nunez Duffourc Mr. Ethan P. Fallon Mr. Jon Marshall Greenbaum Mr. Jonathan P. Guy Mr. Alec George Karakatsanis Mr. Dennis J. Phayer Mr. William P. Quigley Mr. Jeff Rowes Ms. Rachel Gabriella Shalev

 
 White, v. Cain, 140 S.Ct. 1120 (Mem) (2020) 206 L.Ed.2d 187

140 S.Ct. 1120 Supreme Court of the United States.
Laurie A. WHITE, Judge, Section A of the Orleans Parish Criminal District Court, et al., Petitioners,
v. Alana CAIN, et al.; Harry E. Cantrell, Magistrate Judge of Orleans Parish Criminal District Court, Petitioner,
v. Adrian Caliste, Individually and on Behalf of All
Others Similarly Situated, et al.
No. 19-822 |
Feb. 24, 2020

Case below, 937 F.3d 446. Opinion
Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied.
All Citations 140 S.Ct. 1120 (Mem), 206 L.Ed.2d 187

 
 Case 2:15-cv-04479-SSV-JCW Document 351 Filed 03/30/20 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ALANA CAIN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-4479

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS
The Court has received plaintiffs’ motion for supplemental relief under 28 U.S.C. § 2202.1 Plaintiffs seek a “more specific declaratory judgment.”2 Defendants oppose the motion.3
The Court previously granted in part plaintiffs’ motion for partial summary judgment.4 In that order, the Court found that “[p]laintiffs are entitled summary judgment . . . to the extent they seek a declaration that the Judges’ practice of not inquiring into plaintiffs’ ability to pay before they are imprisoned for nonpayment violates the Fourteenth Amendment.”5 The Court stated that “the Judges must inquire into plaintiffs’ ability to pay before their imprisonment,” and “[t]his inquiry must involve certain
1 R. Doc. 331. 2 See id. at 1. 3 R. Doc. 336. 4 See R. Doc. 279 at 1, 79. 5 See id. at 61.

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procedural safeguards, especially notice to the individual of the importance of ability to pay and an opportunity to be heard on the issue.”6 The Court also stated that “[i]f an individual is unable to pay, then the Judges must consider alternative measures before imprisoning the individual.”7
Following this order, the Court entered a declaratory judgment.8 The judgment stated, in part, that “[t]he undisputed evidence in this case establishes that the Judges have a policy or practice of not inquiring into criminal defendants’ ability to pay before those individuals are imprisoned for nonpayment of court debts.”9 It also stated that “[t]he Fourteenth Amendment to the U.S. Constitution prohibits a state actor from arresting or detaining a criminal defendant solely for failure to pay a court-imposed debt absent a determination of ability to pay.”10 The Court then declared in part, “[c]onsidering this law, the evidence in the record, and the Court’s orders and reasons on file herein, . . . that with respect to all persons who owe or will incur court debts arising from cases adjudicated in OPCDC, the Judges’ policy or practice of not inquiring into the ability to pay of such persons
6 Id. 7 Id. 8 R. Doc. 319. 9 Id. at 1. 10 Id. (citing Bearden v. Georgia, 461 U.S. 660 (1983)).
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before they are imprisoned for nonpayment of court debts is unconstitutional.”11
Section 2202 provides that “[f]urther necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.” 28 U.S.C. § 2202; see also Heimann v. Nat’l Elevator Indus. Pension Fund, 187 F.3d 493, 510 (5th Cir. 1999) (“[A] court has the power, upon a subsequent petition, to grant coercive or further declaratory relief in connection with a final declaratory judgment theretofore entered.”), overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 n.11 (5th Cir. 2003). Plaintiffs request that the Court provide further relief based on its declaratory judgment by “clarify[ing] the Judges’ obligations.”12 Specifically, they “ask this Court to decree it unconstitutional for any Orleans Parish Criminal District Court debtor to be imprisoned for willful nonpayment absent (1) a meaningful inquiry into the debtor’s ability to pay, preceded by notice of the importance of that issue and including an opportunity for the debtor to be heard on it, and (2) a finding that the debtor is able to pay.”13 The Court finds such relief appropriate here.
11 Id. at 2. 12 See R. Doc. 331-1 at 5. 13 R. Doc. 331.
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The Court therefore GRANTS plaintiffs’ motion. The Court DECLARES it unconstitutional for any Orleans Parish Criminal District Court criminal defendant to be imprisoned for willful nonpayment of fines, fees, or restitution imposed on the criminal defendant by OPCDC absent (1) a meaningful inquiry into the criminal defendant’s ability to pay, preceded by notice of the importance of that issue and including an opportunity for the criminal defendant to be heard on it, and (2) a finding that the criminal defendant is able to pay.
New Orleans, Louisiana, this __3_0t_h_ day of March, 2020. _____________________ SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
4