U.S. District Court Western District of Louisiana (Lafayette) CIVIL DOCKET FOR CASE #: 6:17−cv−00724−TAD−PJH

Little v. Frederick et al Assigned to: Judge Terry A Doughty Referred to: Magistrate Judge Patrick J Hanna Demand: $0 Related Case: 6:18−cv−00159−RGJ−PJH Cause: 42:1983 Civil Rights Act
Plaintiff
Edward Little on behalf of himself and all others similarly situated

Date Filed: 06/05/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Charles L Gerstein Civil Rights Corps 910 17th St NW Ste 200 Washington, DC 20006 202−670−4809 Email: charlie@civilrightscorps.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric Halperin Civil Rights Corps 910 17th St NW Ste 200 Washington, DC 20006 Email: eric@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED
James William Craig Roderick & Solange MacArthur Justice Center 4400 S Carrollton Ave New Orleans, LA 70119 504−620−2259 Fax: 504−208−3133 Email: jim.craig@macarthurjustice.org ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann American Civil Liberties Union Foundation of LA P O Box 56157 New Orleans, LA 70156 504−522−0628 Email: kschwartzmann@laaclu.org TERMINATED: 12/04/2018
Premal T Dharia Civil Rights Corps 910 17th St NW Ste 200 Washington, DC 20006 202−780−7594 Email: premal@civilrightscorps.org TERMINATED: 07/22/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
William P Quigley Loyola University School of Law 7214 St Charles Ave New Orleans, LA 70118

V. Intervenor Plaintiff Sheila Ann Murphy
V. Defendant Thomas Frederick

504−7103074 Fax: 504−861−5440 Email: quigley77@gmail.com TERMINATED: 06/05/2019
Eric A Foley Roderick & Solange MacArthur Justice Center 4400 S Carrollton Ave New Orleans, LA 70119 504−620−2259 Fax: 504−208−3133 Email: eric.foley@macarthurjustice.org ATTORNEY TO BE NOTICED
represented by Charles L Gerstein (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James William Craig (See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) TERMINATED: 12/04/2018
Premal T Dharia (See above for address) TERMINATED: 07/22/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
William P Quigley (See above for address) TERMINATED: 06/05/2019
Eric A Foley (See above for address) ATTORNEY TO BE NOTICED
represented by James Garrison Evans LA Dept of Justice (N 3rd St) 1885 N 3rd St Baton Rouge, LA 70801 225−326−6300 Fax: 225−326−6495 Email: evansj@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre' Charles Castaing LA Dept of Justice (94005) P O Box 94005

Defendant Kristian Earles
Defendant Mark Garber TERMINATED: 11/14/2018

Baton Rouge, LA 70804−9095 225−326−6300 Email: castainga@ag.louisiana.gov ATTORNEY TO BE NOTICED
David Glen Sanders LA Dept of Justice (94005) P O Box 94005 Baton Rouge, LA 70804−9095 225−326−6410 Fax: 225−326−6495 Email: sandersd@ag.louisiana.gov TERMINATED: 09/24/2019
represented by James Garrison Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre' Charles Castaing (See above for address) ATTORNEY TO BE NOTICED
David Glen Sanders (See above for address) TERMINATED: 09/24/2019
represented by Patrick Bayard McIntire Oats & Marino (LAF) 100 E Vermilion St Ste 400 Lafayette, LA 70501 337−233−1100 Fax: 337−233−1178 Email: pmcintire@oatsmarino.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cearley W Fontenot Oats & Marino (LAF) 100 E Vermilion St Ste 400 Lafayette, LA 70501 337−233−1100 Fax: 337−233−1178 Email: cfontenot@oatsmarino.com ATTORNEY TO BE NOTICED
Stephen J Oats Oats & Marino (LAF) 100 E Vermilion St Ste 400 Lafayette, LA 70501 337−233−1100 Fax: 337−233−1178 Email: oats@oatsmarino.com ATTORNEY TO BE NOTICED

Date Filed 06/05/2017

# Docket Text
1 CLASS ACTION COMPLAINT against Thomas Frederick, Kristian Earles, Mark Garber (Filing fee $400, receipt number 0536−3381249) filed by Edward Little. (Attachments: # 1 Exhibit 15th JDC Bail Schedule)(Attorney Eric A Foley added to party Edward Little(pty:pla))(aty,Foley, Eric) Modified on 6/6/2017 to edit text and

06/05/2017 06/05/2017 06/06/2017 06/06/2017
06/06/2017 06/06/2017
06/06/2017
06/06/2017 06/06/2017 06/07/2017 06/07/2017 06/09/2017
06/12/2017 06/15/2017 06/15/2017 06/16/2017 06/16/2017

reflect civil cover sheet filed separately. (Keller, J) See 2 Civil Cover Sheet. (Entered: 06/05/2017)
CASE Assigned to Judge Robert G James and Magistrate Judge Patrick J Hanna. Motions referred to Patrick J Hanna. (crt,Keller, J) (Entered: 06/06/2017)
7 SUMMONS ISSUED as to Kristian Earles, Thomas Frederick, Mark Garber (crt,Keller, J) (Entered: 06/06/2017)
2 CIVIL COVER SHEET re 1 Class Action Complaint by Edward Little. (aty,Foley, Eric) Modified on 6/6/2017 to create link to Complaint. (Keller, J) (Entered: 06/06/2017)
3 MOTION to Certify a Class Action by Edward Little. (Attachments: # 1 Memorandum / Brief, # 2 Exhibit Declaration of Charles Gerstein, # 3 Exhibit Declaration of Premal Dharia, # 4 Exhibit Declaration of Katie Schwartzmann, # 5 Exhibit Declaration of Eric Foley)(aty,Foley, Eric) Modified on 6/6/2017 to edit text. (Keller, J) (Entered: 06/06/2017)
4 MOTION for Preliminary Injunction by Edward Little. (Attachments: # 1 Memorandum / Brief)(aty,Foley, Eric) (Entered: 06/06/2017)
5 MOTION for Charles L. Gerstein to Appear Pro Hac Vice on behalf of Edward Little ( Admission fee: $105, receipt number 0536−3381269) by Edward Little. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed order)(aty,Foley, Eric) (Entered: 06/06/2017)
6 MOTION for Premal Dharia to Appear Pro Hac Vice on behalf of Edward Little ( Admission fee: $105, receipt number 0536−3381276) by Edward Little. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed order)(aty,Foley, Eric) (Entered: 06/06/2017)
Motions Transferred regarding 4 MOTION for Preliminary Injunction . Motions referred to Robert G James. (crt,Keller, J) (Entered: 06/06/2017)
8 NOTICE of Motion Setting with oral argument regarding: 3 MOTION to Certify a Class Action . Motion day set for 8/24/2017 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,Keller, J) (Entered: 06/06/2017)
9 ORDER granting 5 Motion to Appear Pro Hac Vice for appearance of Charles L Gerstein for Edward Little. Signed by Magistrate Judge Patrick J Hanna on 6/7/2017. (crt,Alexander, E) (Entered: 06/07/2017)
10 ORDER granting 6 Motion to Appear Pro Hac Vice for appearance of Premal T Dharia for Edward Little. Signed by Magistrate Judge Patrick J Hanna on 6/7/2017. (crt,Alexander, E) (Entered: 06/07/2017)
11 ELECTRONIC ORDER OF RECUSAL: Pursuant to 28 U.S.C. section 455, I hereby disqualify myself from the handling of this matter. THEREFORE, IT IS ORDERED that this matter is referred to Chief Judge Dee Drell for reassignment to another judge in accordance with the Court's Standing Order 1.62. Signed by Judge Robert G James on 6/9/2017. (crt,Floyd, J) (Entered: 06/09/2017)
12 ORDER REASSIGNING CASE. Case reassigned to Judge Elizabeth E Foote. Judge Robert G James no longer assigned to case. Signed by Chief Judge Dee D Drell on 6/12/2017. (crt,Keller, J) (Entered: 06/13/2017)
13 SUMMONS Returned Executed by Edward Little. Thomas Frederick served on 6/13/2017, answer due 7/5/2017. (aty,Gerstein, Charles) (Entered: 06/15/2017)
14 SUMMONS Returned Executed by Edward Little. Mark Garber served on 6/12/2017, answer due 7/3/2017. (aty,Gerstein, Charles) (Entered: 06/15/2017)
15 SUMMONS Returned Unexecuted by Edward Little. Kristian Earles served. (aty,Gerstein, Charles) Modified on 6/20/2017 to remove answer deadline and service executed date. (Crick, S). (Entered: 06/16/2017)
NOTICE of Corrective Action to Charles L Gerstein on behalf of Edward Little regarding 15 Summons Returned Executed. Action taken: Service of Complaint is not

06/21/2017 06/30/2017 07/03/2017 07/05/2017
07/05/2017
07/05/2017 07/05/2017 07/10/2017 07/10/2017 07/12/2017 07/12/2017
07/12/2017 07/17/2017 07/17/2017

considered properly executed; therefore, answer deadline has been terminated and service executed date removed. (crt,Crick, S) (Entered: 06/20/2017)
16 SUMMONS Returned Executed by Edward Little. (aty,Gerstein, Charles) (Entered: 06/21/2017)
17 First MOTION for Extension of Time to File Answer re 1 Complaint, with consent sought but not yet obtained by Mark Garber. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(Attorney Patrick Bayard McIntire added to party Mark Garber(pty:dft))(aty,McIntire, Patrick) (Entered: 06/30/2017)
18 MOTION to Dismiss For Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction by Mark Garber. (Attachments: # 1 Memorandum / Brief, # 2 Proposed order)(aty,McIntire, Patrick) Modified on 7/5/2017 to edit text. (Keller, J) (Entered: 07/03/2017)
19 NOTICE of Motion Setting with oral argument regarding: 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction. Motion day set for 8/24/2017 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,Keller, J) Modified on 7/5/2017 to correct Motion date. (Keller, J). (Entered: 07/05/2017)
20 Unopposed MOTION for Extension of Time to File Responsive Pleadings re 1 Complaint with consent by Kristian Earles, Thomas Frederick. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(Attorney David Glen Sanders added to party Kristian Earles(pty:dft), Thomas Frederick(pty:dft))(aty,Sanders, David) Modified on 7/5/2017 to edit text. (Keller, J) (Entered: 07/05/2017)
Set/Reset Deadlines as to 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction. Motion day set for 8/24/2017 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,Keller, J) (Entered: 07/05/2017)
21 ORDER granting 17 Motion for Extension of Time to Answer re 1 Complaint. Mark Garber answer due 7/13/2017. Signed by Magistrate Judge Patrick J Hanna on 7/5/2017. (crt,Alexander, E) Modified on 7/7/2017 to correct motion ruled on. (Alexander, E) (Entered: 07/05/2017)
22 MOTION to Consolidate Briefing and Argument by Edward Little. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) Modified on 7/11/2017 to edit text. (Keller, J) (Entered: 07/10/2017)
23 RULE 16 CONFERENCE ORDER: Rule 16 Conference set for Thursday, 7/20/2017 11:00 AM by phone before Magistrate Judge Patrick J Hanna. The parties may access the conference by dialing 888−684−8852, access code 5910394. Signed by Magistrate Judge Patrick J Hanna on 7/10/2017. (crt,Alexander, E) (Entered: 07/10/2017)
24 ELECTRONIC ORDER granting 20 Motion for Extension of Time to file responsive pleadings filed by Earles. Signed by Magistrate Judge Patrick J Hanna on 7/11/2017. (jud,Hanna, Patrick) (Entered: 07/12/2017)
25 ELECTRONIC ORDER granting 22 Plaintiff's Motion for Extension of Time to File Response to Rule 12 motions until 8/5/2017. The Court will defer ruling on the request that any motions filed in this matter be heard in the first instance by the District Court until after the Rule 16 conference to be held on July 20, 2017. Signed by Magistrate Judge Patrick J Hanna on 7/11/2017. (jud,Hanna, Patrick) (Entered: 07/12/2017)
Reset Deadlines as to 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction. Responses due by 8/5/2017 (crt,Alexander, E) (Entered: 07/13/2017)
26 MOTION to Dismiss for Lack of Jurisdiction by Kristian Earles, Thomas Frederick. (Attachments: # 1 Memorandum / Brief, # 2 Proposed order)(aty,Sanders, David) (Entered: 07/17/2017)
27 NOTICE of Motion Setting regarding: 26 MOTION to Dismiss for Lack of Jurisdiction . Motions referred to Elizabeth E Foote. (crt,Keller, J) (Entered: 07/17/2017)

07/17/2017 07/18/2017 07/19/2017 07/20/2017 07/20/2017
07/21/2017 07/21/2017 07/21/2017 07/27/2017 07/27/2017 07/31/2017 08/02/2017 08/02/2017
08/15/2017 08/16/2017

28 MOTION for Cearley W. Fontenot to Enroll as Additional Counsel by Mark Garber. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(Attorney Cearley W Fontenot added to party Mark Garber(pty:dft))(aty,Fontenot, Cearley) Modified on 7/17/2017 to edit text. (Keller, J). (Entered: 07/17/2017)
29 AMENDED NOTICE of Motion Setting with oral argument regarding: 26 MOTION to Dismiss for Lack of Jurisdiction. Motions referred to Patrick J Hanna. Motion day set for 8/24/2017 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,Bunting, M) (Entered: 07/18/2017)
30 ORDER granting 28 Motion to Enroll as Counsel. Signed by Magistrate Judge Patrick J Hanna on 7/19/2017. (crt,Alexander, E) (Entered: 07/19/2017)
31 RULE 26(f) Report by Edward Little, Mark Garber, Thomas Frederick, and Kristian Earles. (aty,Gerstein, Charles) Modified on 7/20/2017 to edit text and capture all filers. (Keller, J) (Entered: 07/20/2017)
34 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: TELEPHONE STATUS CONFERENCE held on 7/20/2017. Following discussion, it was decided that a settlement conference will be held on 8/2/2017 at 10:00 a.m. in chambers before Magistrate Judge Hanna. A separate order shall be issued. Signed by Magistrate Judge Patrick J Hanna on 7/21/2017. (crt,Alexander, E) (Entered: 07/21/2017)
32 Corrected RULE 26(f) Report by Edward Little, Mark Garber, Thomas Frederick, and Kristian Earles. (aty,Gerstein, Charles) Modified on 7/21/2017 to edit text and capture all filers. (Keller, J) (Entered: 07/21/2017)
33 MEMORANDUM in Opposition re 4 MOTION for Preliminary Injunction filed by Kristian Earles, Thomas Frederick. (aty,Sanders, David) (Entered: 07/21/2017)
35 ORDER FOR SETTLEMENT CONFERENCE: Settlement Conference set for 8/2/2017 10:00 AM in Chambers before Magistrate Judge Patrick J Hanna. Signed by Magistrate Judge Patrick J Hanna on 7/21/2017. (crt,Alexander, E) (Entered: 07/21/2017)
36 MEMORANDUM in Opposition re 3 MOTION to Certify a Class Action filed by Kristian Earles, Thomas Frederick. (aty,Sanders, David) (Entered: 07/27/2017)
37 REPLY to Response to Motion re 4 MOTION for Preliminary Injunction filed by Edward Little. (aty,Gerstein, Charles) Modified on 7/31/2017 to reflect Certificate of Service filed as a separate entry. (Keller, J) See doc 38 Certificate of Service. (Entered: 07/27/2017)
38 CERTIFICATE OF SERVICE by Edward Little re 37 Reply to Response to Motion for a preliminary injunction (aty,Gerstein, Charles) (Entered: 07/31/2017)
39 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: SETTLEMENT CONFERENCE held on 8/2/2017. The settlement conference is in recess. Signed by Magistrate Judge Patrick J Hanna on 8/2/2017. (crt,Alexander, E) (Entered: 08/02/2017)
40 ORDER FROM SETTLEMENT CONFERENCE. IT IS ORDERED that the parties deadlines for filing any pleadings are suspended until further order of this Court and that the parties shall stand down from pursuing the litigation save and except for efforts to amicably resolve the case pending further order of the Court. Signed by Magistrate Judge Patrick J Hanna on 8/2/2017. (crt,Alexander, E) (Entered: 08/02/2017)
41 MOTION to Lift Stay by Edward Little. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) (Entered: 08/15/2017)
42 ELECTRONIC ORDER re 41 MOTION to Lift Stay filed by Edward Little. IT IS ORDERED that the motion to lift stay (Rec. Doc. 41) is DENIED. Signed by Magistrate Judge Patrick J Hanna on 8/16/2017. (crt,Nations, Sue) (Entered: 08/16/2017)

09/13/2017 09/15/2017 09/15/2017 09/15/2017 09/15/2017
09/15/2017 09/25/2017 09/25/2017 09/25/2017 09/29/2017 09/29/2017 10/02/2017 10/02/2017

43 Unopposed MOTION to Lift Stay by Edward Little. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) (Entered: 09/13/2017)
44 ELECTRONIC ORDER deferring ruling on 43 Motion to Lift Stay. Counsel are to contact the chambers of the undersigned within 10 days to schedule a Rule 16 conference by telephone. Signed by Magistrate Judge Patrick J Hanna on 9/15/2017. (jud,Hanna, Patrick) (Entered: 09/15/2017)
45 ELECTRONIC ORDER: IT IS ORDERED that a telephone status conference is set for 9/15/2017 at 02:30 PM before Magistrate Judge Patrick J Hanna. Counsel shall call in to the conference by dialing 888−684−8852 and using access code 5910394. Signed by Magistrate Judge Patrick J Hanna on 9/15/2017.(crt,Richoux, E) (Entered: 09/15/2017)
46 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: TELEPHONE STATUS CONFERENCE held on 9/15/2017. The parties indicated that settlement discussions are ongoing, but a settlement has not been reached. A separate order shall be issued. Signed by Magistrate Judge Patrick J Hanna on 9/15/2017. (crt,Alexander, E) (Entered: 09/15/2017)
47 ORDER granting in part and denying in part 22 Motion to Consolidate Briefing and Argument; granting 43 Motion to Lift Stay. IT IS FURTHER ORDERED that the pending motions to dismiss [Rec. Docs. 18 and 26] are SET for oral argument before Magistrate Judge Hanna at 9:30 a.m. on 10/19/2017 in Courtroom 7, United States Courthouse, Lafayette, Louisiana. Signed by Magistrate Judge Patrick J Hanna on 9/15/2017. (crt,Alexander, E) (Entered: 09/15/2017)
Set Deadlines as to 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction, 26 MOTION to Dismiss for Lack of Jurisdiction. Responses due by 9/25/2017 Replies due by 10/2/2017. Motion day set for 10/19/2017 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,Alexander, E) (Entered: 09/15/2017)
48 MEMORANDUM in Opposition re 26 MOTION to Dismiss for Lack of Jurisdiction , 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Edward Little. (aty,Gerstein, Charles) Modified on 9/25/2017 to reflect deficient status. (Keller, J) Modified on 9/25/2017 to remove deficient status per chambers. (Keller, J) (Entered: 09/25/2017)
49 REPLY in Support of Motion for Class Certification re 3 MOTION to Certify a Class Action filed by Edward Little. (aty,Gerstein, Charles) Modified on 9/25/2017 to edit text. (Keller, J) (Entered: 09/25/2017)
50 NOTICE of Deficiency to Charles L Gerstein on behalf of Edward Little regarding 48 Memorandum in Opposition to Motion. Reason: This brief exceeds 25 pages. Please see LR7.8 for specific information regarding length of briefs. (crt,Keller, J) Modified on 9/25/2017 per chambers, deficiency removed. (Keller, J) (Entered: 09/25/2017)
51 DEFICIENT ? SUR−REPLY to Response to Motion re 3 MOTION to Certify a Class Action and 49 REPLY in Support of Motion for Class Certification re 3 filed by Kristian Earles, Thomas Frederick. (aty,Sanders, David) Modified on 10/2/2017 to edit text. (Keller, J) Modified on 10/2/2017 to reflect deficient status. (Keller, J). (Entered: 09/29/2017)
52 REPLY to Response to Motion re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Kristian Earles, Thomas Frederick. (aty,Sanders, David) (Entered: 09/29/2017)
53 NOTICE of Deficiency to David Glen Sanders on behalf of Kristian Earles, Thomas Frederick regarding 51 Reply to Response to Motion. Reason: The Federal Rules of Civil Procedure do not provide for the filing of a sur−reply brief and acceptance of such a brief is discretionary with the judge. Leave of court must be obtained before the filing of a sur−reply brief in this case. (crt,Keller, J) (Entered: 10/02/2017)
54 REPLY to Response to Motion re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 10/02/2017)

10/19/2017
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12/20/2017 12/21/2017 12/22/2017 01/03/2018 01/04/2018 01/04/2018 01/12/2018 01/12/2018 01/12/2018 01/18/2018

55 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: MOTION HEARING held on 10/19/2017 re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber and 26 MOTION to Dismiss for Lack of Jurisdiction filed by Thomas Frederick, Kristian Earles. For the reasons stated on the record, the motions are TAKEN UNDER ADVISEMENT. A report and recommendation by the Court will follow. (Court Reporter: Cathleen E Marquardt) (crt,Alexander, E) (Entered: 10/24/2017)
56 EXHIBIT LIST. (Attachments: # 1 Court's Exhibit 1)(crt,Alexander, E) (Entered: 10/24/2017)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings for MOTION HEARING held on 10/19/2017 before Magistrate Judge Patrick J Hanna. Court Reporter/Transcriber: Cathleen E Marquardt, Telephone number: (337)593−5223. Total pages: 50. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter. Redaction Request due 12/1/2017. Redacted Transcript Deadline set for 12/11/2017. Release of Transcript Restriction set for 2/8/2018. (crt,Marquardt, C) (Entered: 11/07/2017)
58 REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss for Lack of Jurisdiction filed by Thomas Frederick, Kristian Earles. Based on the reasons herein, it is recommended that the defendants' motion to dismiss should be granted in part and denied in part. Objections to R&R due by 12/20/2017. Signed by Magistrate Judge Patrick J Hanna on 12/6/2017. (crt,Alexander, E) (Entered: 12/06/2017)
59 REPORT AND RECOMMENDATIONS re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber. Based on the reasons herein, it is recommended that Sheriff Garber's motion to dismiss should be granted in part and denied in part. Objections to R&R due by 12/26/2017. Signed by Magistrate Judge Patrick J Hanna on 12/11/2017. (crt,Alexander, E) (Entered: 12/11/2017)
60 OBJECTION to 58 Report and Recommendations by Edward Little. Response to Objection to R&R due by 1/3/2018 (aty,Foley, Eric) (Entered: 12/20/2017)
61 OBJECTION to 59 Report and Recommendations by Edward Little. Response to Objection to R&R due by 1/4/2018 (aty,Gerstein, Charles) (Entered: 12/21/2017)
62 OBJECTION to 59 Report and Recommendations regarding Sheriff by Mark Garber. Response to Objection to R&R due by 1/5/2018 (aty,McIntire, Patrick) (Entered: 12/22/2017)
63 RESPONSE TO OBJECTION to 58 Report and Recommendation by Thomas Frederick . (aty,Sanders, David) Modified on 1/3/2018 to edit text (Putch, A). (Entered: 01/03/2018)
64 RESPONSE TO OBJECTION to 59 Report and Recommendations regarding Sheriff by Mark Garber. (aty,McIntire, Patrick) (Entered: 01/04/2018)
65 RESPONSE TO OBJECTION to 59 Report and Recommendations regarding the Sheriff by Edward Little. (aty,Gerstein, Charles) (Entered: 01/04/2018)
66 UNOPPOSED MOTION for Oral Argument with consent regarding 58 & 59 Report and Recommendations by Edward Little. Motions referred to Magistrate Judge Patrick J Hanna. (aty,Gerstein, Charles) Modified on 1/12/2018 to edit text (Putch, A). (Entered: 01/12/2018)
67 PROPOSED ORDER by Edward Little re 66 Motion for Hearing. (aty,Gerstein, Charles) Modified on 1/16/2018 to edit text(FinnSld, P). (Entered: 01/12/2018)
Motions Transferred regarding 66 UNOPPOSED MOTION for Oral Argument. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 01/16/2018)
68 ORDER denying 66 Motion for Oral Argument. The Court will inform the parties if it requires oral argument at a later date. Signed by Judge Elizabeth E Foote on 1/17/2018. (crt,Keifer, K) (Entered: 01/18/2018)

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02/26/2018 02/26/2018 02/26/2018 02/27/2018 03/05/2018 03/06/2018 03/08/2018

69 MOTION to Intervene and MOTION to Consolidate Case with Case Number 18cv159 with opposition by Sheila Ann Murphy. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order, # 2 Memorandum / Brief, # 3 Proposed Pleading)(Attorney Charles L Gerstein added to party Sheila Ann Murphy(pty:mov))(aty,Gerstein, Charles) Modified on 2/15/2018 to edit text (FinnSld, P). (Entered: 02/14/2018)
70 NOTICE of Motion Setting with oral argument regarding: 69 MOTION to Intervene and MOTION to Consolidate Case with Case Number 18cv159 with opposition . Motions referred to Magistrate Judge Patrick J Hanna. Motion day set for 4/19/2018 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,FinnSld, P) (Entered: 02/15/2018)
71 MINUTE ENTRY: The Court orders Plaintiff's counsel and counsel for the Sheriff to brief whether Plaintiff's theory that Sheriff Garber may be enjoined as a state actor remains viable under Fifth Circuit's ODonnell ruling. Briefing is due by 2/26/2018. Signed by Judge Elizabeth E Foote on 2/15/2018. (crt,Keifer, K) (Entered: 02/16/2018)
72 ELECTRONIC MINUTE ENTRY: To clarify Record Document 71 Minute Entry dated 2/15/2018: Briefing is due Monday, February 26, 2018. Signed by Judge Elizabeth E Foote on 2/20/2018. (crt,Keifer, K) (Entered: 02/20/2018)
73 SUPPLEMENTAL MEMORANDUM in Support re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 59 REPORT AND RECOMMENDATIONS re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber as per 71 Minute Entry directing Supplemental Briefing, filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 02/26/2018)
74 SUPPLEMENTAL MEMORANDUM in Opposition re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 59 REPORT AND RECOMMENDATIONS re 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber in accordance with the Court's Order 71 for supplemental briefing in light of the Fifth Circuit's Opinion in ODonnell v. Harris Cnty filed by Edward Little. (aty,Foley, Eric) (Entered: 02/26/2018)
75 NOTICE of Supplemental Authority by Edward Little re 60 Objection to Report and Recommendations, 58 REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss for Lack of Jurisdiction (aty,Foley, Eric) Modified on 2/27/2018 to edit text (FinnSld, P). (Entered: 02/26/2018)
76 MOTION to Amend 1 Complaint with opposition by Edward Little. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed pleading, # 2 Proposed order)(aty,Foley, Eric) Modified on 2/27/2018 to edit text and add document relation (FinnSld, P). (Entered: 02/26/2018)
Motions Transferred regarding 76 MOTION to Amend Complaint. Motion referred to Judge Elizabeth E Foote. (crt,Keifer, K) (Entered: 03/02/2018)
77 NOTICE of Motion Setting with oral argument regarding: 76 MOTION to Amend Complaint. Motions referred to Magistrate Judge Patrick J Hanna. Motion day set for 4/19/2018 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,FinnSld, P) (Entered: 02/27/2018)
78 RESPONSE to Motion re 69 MOTION to Intervene, MOTION to Consolidate Case with Case Number 18cv159, filed by Mark Garber. (aty,McIntire, Patrick) Modified on 3/5/2018 to edit text (FinnSld, P). (Entered: 03/05/2018)
79 ORDER adopting in part 59 Report and Recommendations; denying 18 Motion to Dismiss. Signed by Judge Elizabeth E Foote on 3/6/2018. (crt,FinnSld, P) (Entered: 03/06/2018)
80 ELECTRONIC ORDER denying 3 Motion to Certify Class without prejudice to re−urge upon final disposition of motions to dismiss. Signed by Magistrate Judge Patrick J Hanna on 3/8/2018. (jud,Hanna, Patrick) (Entered: 03/08/2018)

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81 MEMORANDUM RULING adopting in part and rejecting in part 58 Report and Recommendations; denying 26 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Elizabeth E Foote on 3/8/2018. (crt,Keifer, K) (Entered: 03/08/2018)
82 ORDER granting 76 Motion to Amend/Correct; denying 4 Motion for Preliminary Injunction. The parties are given until 3/19/2018 to notify the Court whether they believe discovery would be helpful or necessary in reaching the merits of a preliminary injunction motion. Signed by Judge Elizabeth E Foote on 3/9/2018. (crt,Keifer, K) (Entered: 03/09/2018)
Set/Reset Deadlines: Compliance Deadline set for 3/19/2018 re 82 (crt,Keifer, K) (Entered: 03/09/2018)
83 FIRST SUPPLEMENTAL CLASS ACTION COMPLAINT against All Defendants filed by Edward Little.(crt,Keifer, K) (Entered: 03/09/2018)
84 FILED IN WRONG CASES − DOES NOT APPLY TO THIS CASE. MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: TELEPHONE CONFERENCE held on 3/14/2018. The purpose of this conference was to discuss L Q T and Zurich's privilege log and surveillance responses that were disclosed pursuant to this Court's 75 Order and W & T and H & P's pending 79 Motion to Continue the Trial Date. A separate order shall be issued. Signed by Magistrate Judge Patrick J Hanna on 3/14/2018. (crt,Alexander, E) Modified on 3/15/2018 to reflect filed in wrong case. (Alexander, E) (Entered: 03/15/2018)
NOTICE of Corrective Action regarding 84 Telephone Conference. Action taken: Modified text of entry to reflect filed in wrong case − does not apply to this case. (crt,Alexander, E) (Entered: 03/15/2018)
85 NOTICE by Edward Little of Response to Court Order for Information Regarding Discovery re 82 Order on Motion for Preliminary Injunction,, Order on Motion to Amend/Correct, (aty,Gerstein, Charles) (Entered: 03/19/2018)
86 RESPONSE to Request for Notice regarding Need for Discovery by Mark Garber re 82 Order on Motion for Preliminary Injunction,, Order on Motion to Amend/Correct, Request for Notice. (aty,McIntire, Patrick) (Entered: 03/19/2018)
87 OBJECTION to Magistrate Judge's 80 Order Denying Motion for Class Certification by Edward Little. Response to Objection to R&R due by 4/4/2018 (aty,Foley, Eric) Modified on 3/21/2018 to add document relation and edit text (FinnSld, P). (Entered: 03/21/2018)
88 MINUTE ENTRY: District Judge Status Conference set for 4/12/2018 at 02:00 PM by phone before Judge Elizabeth E Foote. Signed by Judge Elizabeth E Foote on 3/21/2018. (crt,FinnSld, P) (Entered: 03/22/2018)
89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1], MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83] by Mark Garber. (Attachments: # 1 Memorandum / Brief, # 2 Proposed order)(aty,McIntire, Patrick) (Entered: 03/27/2018)
90 NOTICE of Motion Setting with oral argument regarding: 89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1] MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83]. Motions referred to Magistrate Judge Patrick J Hanna. Motion day set for 5/31/2018 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,FinnSld, P) (Entered: 03/27/2018)
91 Ex Parte MOTION Designate Trial Counsel by Mark Garber. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,McIntire, Patrick) (Entered: 04/12/2018)
93 MINUTES for proceedings held before Judge Elizabeth E Foote: granting 69 Motion to Intervene; and denying as moot 69 Motion to Consolidate Cases; STATUS CONFERENCE held on 4/12/2018. Another telephone status conference is set for 5/22/2018 01:30 PM. Plaintiff's counsel will host the call. Plaintiff is to file a document by 5/15/2018, notifying the Court of any discovery that he feels would be

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helpful or necessary before the Court could render a decision on any motion for injunctive relief. (crt,Keifer, K) (Entered: 04/13/2018)
92 ORDER granting 91 Motion to Designate Trial Counsel. Signed by Magistrate Judge Patrick J Hanna on 4/13/2018. (crt,Alexander, E) (Entered: 04/13/2018)
94 RESPONSE to Motion re 89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1] MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83] filed by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) (Entered: 04/17/2018)
95 REPLY to Response to Motion re 89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1] MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83] filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 04/24/2018)
96 NOTICE by Edward Little, Sheila Ann Murphy of Statement Regarding Discovery re 82 Order on Motion for Preliminary Injunction,, Order on Motion to Amend/Correct, (Attachments: # 1 Exhibit A Judicial Defendants Admissions, # 2 Exhibit B Sheriff's Admissions)(aty,Gerstein, Charles) (Entered: 05/15/2018)
97 MINUTE ENTRY: The Court hereby orders the parties to confer, as outlined in this order, and to file a document summarizing their conclusions by 5/29/2018. The telephone conference set for 5/22/2018 is RESET for Thursday, 5/31/2018, at 2:00 p.m. Plaintiffs' counsel will host the call. The use of cell phones is prohibited. Signed by Judge Elizabeth E Foote on 5/16/2018. (crt,Keifer, K) (Entered: 05/16/2018)
98 ELECTRONIC MINUTE ENTRY: The telephone status conference set for 5/31/2018 is RESET for Friday, 6/1/2018, at 11:00 AM before Judge Elizabeth E Foote. The deadline for the parties to confer and file a document summarizing their conclusions as instructed in 97 Minute Entry remains set for 5/29/2018. Plaintiffs' counsel will host the call. (crt,Keifer, K) (Entered: 05/25/2018)
99 ELECTRONIC ORDER: IT IS ORDERED that oral argument on the motion to dismiss filed by Sheriff Garber [Rec. Doc. 89 ] set for May 31, 2018 is CANCELLED. The motion will be decided on the briefs in due course. Signed by Magistrate Judge Patrick J Hanna on 5/29/2018. (jud,Hanna, Patrick) (Entered: 05/29/2018)
100 RESPONSE Describing Proposed Discovery Plan and Timeline by Edward Little, Sheila Ann Murphy, Kristian Earles, Thomas Frederick, Mark Garber, re 97 Minute Entry. (aty,Gerstein, Charles) Modified on 5/30/2018 to add filers (FinnSld, P). (Entered: 05/29/2018)
102 MINUTES for proceedings held before Judge Elizabeth E Foote: STATUS CONFERENCE held on 6/1/2018. The deadline to complete document production and answer interrogatories is 7/16/2018. Deadline for Plaintiffs to disclose experts is 8/1/2018. The deadline for parties to complete fact depositions and for Defendants to disclose experts is 8/20/2018. Plaintiffs Expert Info/Reports due by 8/31/2018. Defendants Expert Info/Reports due by 9/14/2018. Expert Depositions due by 10/12/2018. The deadline for parties to file motions for summary judgment and Plaintiffs to file a motion for injunctive relief is 10/26/2018. Witness List and exhibit list due 1/15/2019. An evidentiary hearing is set for 2/13/2019 and 2/14/2019 9:00 AM in Lafayette. A video−conference is set for 1/18/2019 09:30 AM before Judge Elizabeth E Foote. Based on the agreement of the parties, the Court GRANTED 3 Plaintiffs' Motion to Certify a Class Action (crt,Keifer, K) Modified on 6/11/2018 to edit text (Keifer, K). (Entered: 06/04/2018)
101 NOTICE of Supplemental Authority re 94 Response to 89 Motion to Dismiss for Failure to State a Claim by Edward Little, Sheila Ann Murphy (Attachments: # 1 Exhibit A Slip Opinion on Rehearing in ODonnell v. Harris County, Tex)(aty,Gerstein, Charles) Modified on 6/15/2018 to create link (Putch, A). (Entered: 06/04/2018)
103 Ex Parte MOTION Designate Trial Counsel by Edward Little, Sheila Ann Murphy. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) (Entered: 06/14/2018)

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104 REPLY to Response re: 101 NOTICE of Supplemental Authority re 89 MOTION to Dismiss by Mark Garber. (Attachments: # 1 Petition for Rehearing in ODonnell)(aty,McIntire, Patrick) Modified on 6/18/2018 to edit text and add document relation (FinnSld, P). (Entered: 06/15/2018)
105 ORDER granting 103 Motion to Designate Trial Counsel. Signed by Magistrate Judge Patrick J Hanna on 6/18/2018. (crt,Alexander, E) (Entered: 06/18/2018)
106 SUPPLEMENTAL MEMORANDUM in Opposition re 89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1] MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83] and Replying to the Sheriff's Response to Plaintiffs' Notice of Supplemental Authority 104 filed by Edward Little, Sheila Ann Murphy. (aty,Foley, Eric) (Entered: 06/22/2018)
107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83) by Mark Garber. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Memorandum / Brief)(aty,McIntire, Patrick) (Entered: 06/28/2018)
108 NOTICE of Motion Setting with oral argument regarding: 107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83). Motions referred to Magistrate Judge Patrick J Hanna. Motion day set for 8/23/2018 09:30 AM in Lafayette, Courtroom 7 before Magistrate Judge Patrick J Hanna. (crt,FinnSld, P) (Entered: 07/02/2018)
109 MEMORANDUM in Opposition re 107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83) and in Support of Plaintiffs' Request for Fees Under Rule 11(c)(2) filed by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) (Entered: 07/09/2018)
110 REPLY to Response to Motion re 107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83) filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 07/26/2018)
111 MOTION for Eric Halperin to Appear Pro Hac Vice ( Admission fee: $105, receipt number 0536−3718313) by Edward Little, Sheila Ann Murphy. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Certificate of Good Standing, # 2 Proposed order)(aty,Foley, Eric) Modified on 8/3/2018 to edit text (FinnSld, P). (Entered: 08/02/2018)
112 ORDER granting 111 Motion to Appear Pro Hac Vice for appearance of Eric Halperin for Edward Little. Signed by Magistrate Judge Patrick J Hanna on 8/3/2018. (crt,FinnSld, P) (Entered: 08/06/2018)
113 Unopposed MOTION Reschedule Hearing re 108 Notice of Motion Setting, by Edward Little, Sheila Ann Murphy. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) (Entered: 08/15/2018)
114 ELECTRONIC ORDER. IT IS ORDERED that the plaintiffs' motion to continue the oral argument previously scheduled for August 23, 2018 is DENIED. Other counsel can attend the hearing in place of the attorney with a family commitment. Signed by Magistrate Judge Patrick J Hanna on 8/16/2018. (crt,Nations, Sue) (Entered: 08/16/2018)
115 MOTION for Protective Order, MOTION to Expedite by Mark Garber. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Exhibit 30(b)(6) Depo Notice, # 2 Exhibit Depo Notice − Dir of Corr, # 3 Memorandum / Brief, # 4 Proposed order)(aty,McIntire, Patrick). Modified on 8/17/2018 to capture all reliefs requested in pleading; Added MOTION to Expedite (Putch, A). (Entered: 08/17/2018)
116 ELECTRONIC ORDER. Counsel for Sheriff Garber having advised that two depositions were unilaterally noticed for August 20, 2018, IT IS ORDERED that Sheriff Garber's 115 motion for a protective order seeking to quash the depositions is GRANTED. Signed by Magistrate Judge Patrick J Hanna on 8/17/2018. (crt,Nations, Sue) (Entered: 08/17/2018)

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117 ELECTRONIC ORDER. IT IS ORDERED that a Fed. R. Civ. P. 16 conference is SET for 9:30 a.m. on Thursday, August 23, 2018 in Courtroom 7, United States Courthouse, Lafayette, Louisiana. The conference will be held on the record. Signed by Magistrate Judge Patrick J Hanna on 8/17/2018. (crt,Nations, Sue) (Entered: 08/17/2018)
118 MOTION for Reconsideration re 116 Order, by Edward Little, Sheila Ann Murphy. Motions referred to Magistrate Judge Patrick J Hanna. (Attachments: # 1 Exhibit A Letter, # 2 Exhibit B Financial Statement, # 3 Memorandum / Brief)(aty,Gerstein, Charles). Added MOTION FOR EXTENSION of on 8/20/2018 (Bunting, M). Modified event to include all relief requested on 8/20/2018 (Bunting, M). (Entered: 08/17/2018)
119 MEMORANDUM in Opposition re 118 MOTION for Reconsideration re 116 Order, filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 08/18/2018)
NOTICE of Corrective Action to Charles L Gerstein on behalf of Edward Little, Sheila Ann Murphy regarding 118 MOTION for Reconsideration re 116 Order, MOTION FOR EXTENSION of. Action taken: Modified to add Motion for Extension not selected at original filinG. (crt,Bunting, M) (Entered: 08/20/2018)
120 REPLY to Response to Motion re 118 MOTION for Reconsideration re 116 Order, MOTION FOR EXTENSION of filed by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) (Entered: 08/20/2018)
121 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: MOTION HEARING held on 8/23/2018 re 107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83) filed by Mark Garber, 118 MOTION for Reconsideration re 116 Order, MOTION FOR EXTENSION of filed by Edward Little, Sheila Ann Murphy and RULE 16 CONFERENCE held on 8/24/2018. A written ruling and order by the Court will follow. (Court Reporter: Gayle Wear) (crt,Alexander, E) Modified date of hearing on 8/24/2018. (Alexander, E) (Entered: 08/24/2018)
122 REPORT AND RECOMMENDATIONS re 89 MOTION to Dismiss For Failure to State a Claim Supplemental Complaint [Doc. 83] and Re−urged Motion to Dismiss Original Complaint [Doc. 1] MOTION to Dismiss for Lack of Jurisdiction Supplemental Complaint [Doc. 83] filed by Mark Garber, 18 MOTION to Dismiss For Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Mark Garber. Based on the reasons herein, it is recommended that Sheriff Garber's 89 motion to dismiss should be granted in part and denied in part. It is further recommended that Sheriff Garber's re−urged 18 motion to dismiss, pursuant to Rule 12(b)(6), should be granted. Objections to R&R due by 9/11/2018. Signed by Magistrate Judge Patrick J Hanna on 8/28/2018. (crt,Alexander, E) (Entered: 08/28/2018)
123 REPORT AND RECOMMENDATIONS re 107 MOTION for Sanctions Regarding Plaintiff's Supplemental Complaint (Doc. 83) filed by Mark Garber. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained herein, the undersigned recommends that the motion be DENIED. It is further recommended that the plaintiff's request for attorney's fees under Rule 11(c)(2) be DENIED. Objections to R&R due by 9/12/2018. Signed by Magistrate Judge Patrick J Hanna on 8/29/2018. (crt,Alexander, E) (Entered: 08/29/2018)
124 OBJECTION to 122 Report and Recommendations by Edward Little, Sheila Ann Murphy. Response to Objection to R&R due by 9/25/2018 (aty,Gerstein, Charles) (Entered: 09/11/2018)
125 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings for Motion proceedings held on 8/23/2018 before Magistrate Judge Patrick J. Hanna. Court Reporter: Gayle Wear, Telephone number (337) 593−5222. Total pages: 23. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter.. Redaction Request due 10/9/2018. Redacted Transcript Deadline set for 10/18/2018. Release of Transcript Restriction set for 12/14/2018. (crt,Wear, G) (Entered: 09/12/2018)

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126 ELECTRONIC ORDER. At counsel's request, a Magistrate Judge Status Conference is hereby set for tomorrow, 9/18/2018, at 11:00 AM, by phone before Magistrate Judge Patrick J Hanna. To join the call, counsel shall dial 888−684−8852, followed by access code 5910394, and then the # sign, when prompted. Signed by Magistrate Judge Patrick J Hanna on 9/17/2018. (crt,Gardner, Caroline) (Entered: 09/17/2018)
127 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: TELEPHONE STATUS CONFERENCE held on 9/18/2018. The purpose of the call was to discuss the discovery deadline in this case and the potential that it might be extended. Because of the uncertainty surrounding any potential reassignment, no action was taken at this time. Signed by Magistrate Judge Patrick J Hanna on 9/18/2018. (crt,Alexander, E) (Entered: 09/18/2018)
128 RESPONSE TO OBJECTION to 122 Report and Recommendations regarding Sheriff's Motion to Dismiss by Mark Garber. (aty,McIntire, Patrick) (Entered: 09/25/2018)
129 MOTION for Leave to File Excess Pages, with consent, by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order, # 2 Proposed pleading)(aty,Gerstein, Charles) Modified on 10/26/2018 to indicate SEE 130 for PROPOSED MOTION, BRIEF AND ATTACHMENTS (FinnSld, P). (Entered: 10/26/2018)
130 WITHDRAWN PROPOSED MOTION for Partial Summary Judgment against Judicial Defendants by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Statement of material facts, # 2 Memorandum / Brief, # 3 SEALED Exhibit 1 Little Arrest Register, # 4 Exhibit 2 Little Declaration, # 5 Exhibit 3 Frederick Admissions, # 6 SEALED Exhibit 4 Murphy Arrest Register, # 7 Exhibit 5 Murphy Declaration, # 8 Exhibit 6 Frederick Deposition Transcript, # 9 Exhibit 7 Bail Schedule, # 10 Exhibit 8 Feb 27 En Banc Order, # 11 Exhibit 9 Aug 6 En Banc Order, # 12 Exhibit 10 Declaration of Beth DeBlanc, # 13 Exhibit 11 Declaration of Richard Robinson, # 14 Exhibit 12 Declaration of Charles Fontenot, # 15 Exhibit 13 Declaration of Diondre Williams, # 16 Exhibit 14 Declaration of Hon. Truman Morrison III, # 17 Exhibit 15 Expert Report of Michael Jones, # 18 Exhibit 16 References to Report of Michael Jones)(aty,Gerstein, Charles) Modified on 10/26/2018 (FinnSld, P). Modified on 10/30/2018 (FinnSld, P). Modified on 10/30/2018 to indicate withdrawn per 139 ORDER (FinnSld, P). (Entered: 10/26/2018)
131 MOTION for Partial Summary Judgment against Sheriff Garber by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Statement of material facts, # 2 Memorandum / Brief, # 3 Exhibit 1 Garber Deposition Transcript, # 4 Appendix Garber Transcript Amendments)(aty,Gerstein, Charles) (Entered: 10/26/2018)
Motions Transferred regarding 129 MOTION for Leave to File Excess Pages. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/26/2018)
132 NOTICE of Motion Setting regarding: 131 MOTION for Partial Summary Judgment against Sheriff Garber. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/26/2018)
133 MOTION for Summary Judgment by Thomas Frederick. (Attachments: # 1 Memorandum / Brief, # 2 Exhibit, # 3 Statement of material facts)(aty,Sanders, David) (Entered: 10/26/2018)
134 Unopposed MOTION to Seal Document 130 MOTION for Partial Summary Judgment against Judicial Defendants seeking to seal [130−3] and [130−6] by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Foley, Eric) (Entered: 10/26/2018)
Motions Transferred regarding 134 Unopposed MOTION to Seal Document 130 MOTION for Partial Summary Judgment against Judicial Defendants seeking to seal [130−3] and [130−6]. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/26/2018)
135 NOTICE of Motion Setting regarding: 133 MOTION for Summary Judgment . Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/26/2018)

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136 Ex Parte MOTION to Withdraw 130 MOTION for Partial Summary Judgment against Judicial Defendants MOTION for Leave to File Proposed Motion and Supporting Documents Attached by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order, # 2 Proposed Motion for Summary Judgment, # 3 Proposed Memorandum in Support of Summary Judgment, # 4 Proposed Statement of Unconstested Material Facts, # 5 Proposed exhibit 1−Little's Arrest Register, # 6 Proposed exhibit 2−Little's Decl., # 7 Proposed exhibit 3−Frederick Admiss., # 8 Proposed exhibit 4−Murphy Arrest Register, # 9 Proposed exhibit 5−Murphy's Decl., # 10 Proposed exhibit 6−Frederick Dep., # 11 Proposed exhibit 7−Bond Schedule, # 12 Proposed exhibit 8−Feb. 27 En Banc Order, # 13 Proposed exhibit 9−Aug. 6 En Banc Order, # 14 Proposed exhibit 10−DeBlanc's Decl., # 15 Proposed exhibit 11−Robertson's Decl., # 16 Proposed exhibit 12−Fontenot's Decl., # 17 Proposed exhibit 13−Williams's Decl., # 18 Proposed exhibit 14−Morrison's Decl., # 19 Proposed exhibit 15−Jones Expert Report, # 20 Proposed exhibit 16−Jones References)(aty,Foley, Eric). Added MOTION for Leave to File on 10/29/2018 and edited text (FinnSld, P). (Entered: 10/26/2018)
Motions Transferred regarding 136 Ex Parte MOTION to Withdraw 130 MOTION for Partial Summary Judgment against Judicial Defendants and Substitute with the Proposed Motion and Supporting Documents Attached MOTION for Leave to File. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/29/2018)
137 ORDER granting 129 Motion for Leave to File Excess Pages. Signed by Judge Elizabeth E Foote on 10/29/2018. (crt,FinnSld, P) (Entered: 10/30/2018)
138 ORDER granting 134 Motion to Seal Document. Signed by Judge Elizabeth E Foote on 10/29/2018. (crt,FinnSld, P) (Entered: 10/30/2018)
139 ORDER granting 136 Motion to Withdraw 130 MOTION for Partial Summary Judgment against Judicial Defendants ; granting 136 Motion for Leave to File MOTION for Summary Judgment. Signed by Judge Elizabeth E Foote on 10/30/2018. (crt,FinnSld, P) (Entered: 10/30/2018)
140 MOTION for Partial Summary Judgment by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Memorandum / Brief, # 2 Statement of material facts, # 3 Exhibit 1−Little's Arrest Register, # 4 Exhibit 2−Little's Decl., # 5 Exhibit 3−Frederick Admiss., # 6 Exhibit 4−Murphy Arrest Register, # 7 Exhibit 5−Murphy's Decl., # 8 Exhibit 6−Frederick Depo, # 9 Exhibit 7−Bond Schedule, # 10 Exhibit 8−Feb. 27 En Banc Order, # 11 Exhibit 9−Aug. 6 En Banc Order, # 12 Exhibit 10−DeBlanc's Decl., # 13 Exhibit 11−Robertson's Decl., # 14 Exhibit 12−Fontenot's Decl., # 15 Exhibit 13−Williams' Decl., # 16 Exhibit 14−Morrison's Decl., # 17 Exhibit 15−Jones Expert Report, # 18 Exhibit 16−Jones References)(crt,FinnSld, P) (Entered: 10/30/2018)
141 NOTICE of Motion Setting regarding: 140 MOTION for Partial Summary Judgment. Motions referred to Judge Elizabeth E Foote. (crt,FinnSld, P) (Entered: 10/30/2018)
142 ORDER: Referred to Chief Judge for reassignment. Signed by Judge Elizabeth E Foote on 11/7/2018. (crt,FinnSld, P) (Entered: 11/08/2018)
143 ELECTRONIC MINUTE ENTRY issued by the Clerk. By order of Chief Judge S Maurice Hicks, Jr, this matter is hereby reassigned. Case reassigned to Judge Terry A Doughty. Judge Elizabeth E Foote no longer assigned to case. All future filings should bear the name of the new judge assignment.(crt,Whidden, C) (Entered: 11/09/2018)
144 JUDGMENT Adopting 122 Report and Recommendation of the Magistrate Judge Denying 89 Motion to Dismiss pursuant to FRCP 12(b)(1), filed by Sheriff Garber; Granting 89 Motion to Dismiss pursuant to FRCP 12(b)(6), filed by Sheriff Garber. Further Order Granting re−urged 18 Motion to Dismiss pursuant to FRCP 12(b)(6). Plaintiff's claims against Sheriff Garber are Dismissed With Prejudice. Signed by Judge Terry A Doughty on 11/14/2018. (crt,Crawford, A) (Entered: 11/14/2018)
145 JUDGMENT Adopting 123 Report and Recommendation of the Magistrate Judge denying 107 Motion for Sanctions. Further Order Denying Plaintiff's request for attorney fees contained in 109 Memorandum In Opposition. Signed by Judge Terry A Doughty on 11/14/2018. (crt,Crawford, A) (Entered: 11/14/2018)
146 ORDER Denying 131 Motion for Partial Summary Judgment as Moot. Signed by Judge Terry A Doughty on 11/14/2018. (crt,Crawford, A) (Entered: 11/14/2018)

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147 MOTION in Limine by Kristian Earles, Thomas Frederick. (Attachments: # 1 Memorandum / Brief, # 2 Proposed order)(aty,Sanders, David) (Entered: 11/15/2018)
148 NOTICE of Motion Setting regarding: 147 MOTION in Limine . Motions referred to Judge Terry A Doughty. Responses due by 12/7/2018 (crt,FinnSld, P) (Entered: 11/16/2018)
149 MEMORANDUM in Opposition re 133 MOTION for Summary Judgment filed by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Statement of material facts)(aty,Foley, Eric) (Entered: 11/16/2018)
150 MEMORANDUM in Opposition re 140 MOTION for Partial Summary Judgment filed by Kristian Earles, Thomas Frederick. (Attachments: # 1 Statement of Undisputed Material Facts)(aty,Sanders, David) Modified on 11/19/2018 to edit text (FinnSld, P). (Entered: 11/19/2018)
151 MOTION for Leave to File Reply in Support of Plaintiffs' Motion for Partial Summary Judgment with consent sought but not yet obtained by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed pleading, # 2 Proposed order)(aty,Foley, Eric) Modified on 11/27/2018 to edit text (FinnSld, P). (Entered: 11/26/2018)
Motions Transferred regarding 151 MOTION for Leave to File Reply in Support of Plaintiffs' Motion for Partial Summary Judgment. Motions referred to Judge Terry A Doughty. (crt,FinnSld, P) (Entered: 11/27/2018)
152 MOTION to Withdraw Katie M. Schwartzmann as Attorney by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Schwartzmann, Katharine) (Entered: 11/27/2018)
153 ORDER granting 151 Motion for Leave to File Reply Brief. Signed by Judge Terry A Doughty on 11/28/2018. (crt,Crawford, A) (Entered: 11/28/2018)
154 REPLY to Response to 140 MOTION for Partial Summary Judgment filed by Edward Little. (crt,Crawford, A) (Entered: 11/28/2018)
155 MEMORANDUM RULING re 133 MOTION for Summary Judgment filed by Thomas Frederick and 140 MOTION for Partial Summary Judgment filed by Edward Little, Sheila Ann Murphy. Signed by Judge Terry A Doughty on 12/3/2018. (crt,Crawford, A) (Entered: 12/03/2018)
156 ORDER denying 133 and 140 Motions for Partial Summary Judgment. It Is Further Ordered that the parties must file pre−trial memoranda no later than one month prior to the pre−trial conference. It Is Further Ordered that the Clerk issue an abbreviated scheduling order. Signed by Judge Terry A Doughty on 12/3/2018. (crt,Crawford, A) (Entered: 12/03/2018)
157 ORDER granting 152 Motion to Withdraw as Attorney. Attorney Katharine Murphy Schwartzmann terminated. Signed by Magistrate Judge Patrick J Hanna on 12/4/2018. (crt,Alexander, E) (Entered: 12/04/2018)
158 RESPONSE to Motion re 147 MOTION in Limine filed by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) (Entered: 12/07/2018)
159 MEMORANDUM RULING re 147 MOTION in Limine filed by Thomas Frederick, Kristian Earles. Signed by Judge Terry A Doughty on 12/10/2018. (crt,Crawford, A) (Entered: 12/10/2018)
160 ORDER denying 147 Motion in Limine. Signed by Judge Terry A Doughty on 12/10/2018. (crt,Crawford, A) (Entered: 12/10/2018)
161 ABBREVIATED SCHEDULING ORDER: Bench Trial set for 8/6/2019 at 9:30 AM in Lafayette Court House before Judge Terry A Doughty. Pretrial Conference set for 6/24/2019 at 10:00 AM in chambers before Magistrate Judge Patrick J Hanna. Pretrial Order due by 6/10/2019. Conference/Meeting of counsel to prepare pretrial order to be held by 5/28/2019. Motions in Limine due by 5/28/2019. Signed by Judge Terry A Doughty on 12/11/2018. (crt,Miletello, A) (Entered: 12/12/2018)

12/11/2018 12/21/2018 12/26/2018 01/03/2019 01/04/2019 01/04/2019 01/08/2019 01/11/2019 01/15/2019 01/15/2019 02/25/2019
02/25/2019
02/26/2019 05/28/2019 05/28/2019 06/05/2019 06/05/2019 06/10/2019

162 BENCH TRIAL ORDER. Signed by Judge Terry A Doughty on 12/11/2018. (crt,Crawford, A) (Entered: 12/17/2018)
163 MOTION for Entry of Judgment under Rule 54(b) by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Memorandum / Brief)(aty,Gerstein, Charles) (Entered: 12/21/2018)
164 NOTICE of Motion Setting regarding: 163 MOTION for Entry of Judgment under Rule 54(b) . Motions referred to Judge Terry A Doughty. Responses due by 1/16/2019 (crt,FinnSld, P) (Entered: 12/26/2018)
165 MOTION for James W. Craig to Enroll as Counsel by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Foley, Eric) (Entered: 01/03/2019)
166 ORDER granting 165 Motion to Enroll as Counsel. Added as counsel James William Craig for Edward Little and Sheila Ann Murphy. Signed by Magistrate Judge Patrick J Hanna on 1/4/2019. (crt,FinnSld, P) (Entered: 01/04/2019)
167 MEMORANDUM in Opposition re 163 MOTION for Entry of Judgment under Rule 54(b) filed by Mark Garber. (aty,McIntire, Patrick) (Entered: 01/04/2019)
168 MEMORANDUM in Opposition re 163 MOTION for Entry of Judgment under Rule 54(b) filed by Kristian Earles, Thomas Frederick. (aty,Sanders, David) (Entered: 01/08/2019)
169 REPLY to Response to Motion re 163 MOTION for Entry of Judgment under Rule 54(b) filed by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) (Entered: 01/11/2019)
170 MEMORANDUM RULING re 163 MOTION for Partial Final Judgment filed by Edward Little, Sheila Ann Murphy. Signed by Judge Terry A Doughty on 1/15/2019. (crt,Crawford, A) (Entered: 01/15/2019)
171 ORDER denying 163 Motion for Partial Final Judgment. Signed by Judge Terry A Doughty on 1/15/2019. (crt,Crawford, A) (Entered: 01/15/2019)
172 MOTION for Leave to File Supplemental Memorandum of Law in Support of Objections to Report and Recommendation with opposition by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed pleading, # 2 Proposed exhibit Ex. A−−McNeil opinion, # 3 Proposed order)(aty,Foley, Eric) (Entered: 02/25/2019)
Motions Transferred regarding 172 MOTION for Leave to File Supplemental Memorandum of Law in Support of Objections to Report and Recommendation with opposition . Motions referred to Judge Terry A Doughty. (crt,FinnSld, P) (Entered: 02/25/2019)
173 ORDER denying 172 Motion for Leave to File Supplemental Memorandum of Law. Signed by Judge Terry A Doughty on 2/26/2019. (crt,Crawford, A) (Entered: 02/26/2019)
174 PRETRIAL Memorandum by Kristian Earles, Thomas Frederick. (aty,Sanders, David) Modified on 5/28/2019 to edit text (JonesSld, P). (Entered: 05/28/2019)
175 PRETRIAL Memorandum by Edward Little, Sheila Ann Murphy. (aty,Gerstein, Charles) Modified on 5/28/2019 to edit text (JonesSld, P). (Entered: 05/28/2019)
176 MOTION to Withdraw William Quigley as Attorney by Edward Little. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Quigley, William) Modified on 6/5/2019 to edit text (JonesSld, P). (Entered: 06/05/2019)
177 ORDER granting 176 Motion to Withdraw as Attorney. Attorney William P Quigley terminated. Signed by Magistrate Judge Patrick J Hanna on 6/5/2019. (crt,Alexander, E) (Entered: 06/05/2019)
178 Joint PROPOSED PRETRIAL ORDER by Edward Little, Sheila Ann Murphy, Thomas Frederick, Kristian Earles. (Attachments: # 1 Plaintiffs' Proposed Findings of Fact and Conclusions of Law, # 2 Defendants' Proposed Findings of Fact, # 3 Defendants' Proposed Conclusions of Law)(aty,Foley, Eric) Modified on 6/11/2019 to

06/17/2019 06/17/2019 06/24/2019
06/24/2019 06/25/2019 07/01/2019
07/19/2019 07/22/2019 08/06/2019 08/06/2019 08/06/2019
08/06/2019 08/06/2019 08/06/2019 08/12/2019

add filers and edit text (JonesSld, P). (Entered: 06/10/2019)
179 AFFIRMATION of Settlement Negotiations by Edward Little, Sheila Ann Murphy, Kristian Earles, Thomas Frederick. (aty,Gerstein, Charles) Modified on 6/18/2019 to add filers. (Crick, S). (Entered: 06/17/2019)
180 NOTICE by Edward Little, Sheila Ann Murphy of Real−Time Glossary for Deposition Testimony of Commissioner Thomas Frederick (aty,Gerstein, Charles) (Entered: 06/17/2019)
181 MINUTES for proceedings held before Magistrate Judge Patrick J Hanna: FINAL PRETRIAL CONFERENCE held on 6/24/2019. The parties are prepared to proceed to Bench Trial on 8/6/2019 in Lafayette, Courtroom 4 before Judge Terry A Doughty. Counsel shall be prepared to start at 9:00 a.m. on the first day of trial. (Court Reporter: Gayle Wear) (crt,Chicola, C) (Entered: 06/24/2019)
182 ORDER approving and adopting re 178 Proposed Pretrial Order, filed by Edward Little, Thomas Frederick, Kristian Earles, Sheila Ann Murphy. Signed by Magistrate Judge Patrick J Hanna on 6/24/2019. (crt,Bunting, M) (Entered: 06/24/2019)
183 NOTICE of Supplemental Authority in Support of Plaintiffs' Proposed Conclusions of Law re 178 Proposed Pretrial Order by Edward Little, Sheila Ann Murphy (aty,Gerstein, Charles) Modified on 6/25/2019 to edit text (Dauterive, C). (Entered: 06/25/2019)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings for Pretrial Conference held on 6/24/2019 before Magistrate Judge Patrick J Hanna. Court Reporter: Gayle Wear, Telephone number (337)593−5222. Total pages: 11. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter.. Redaction Request due 7/25/2019. Redacted Transcript Deadline set for 8/5/2019. Release of Transcript Restriction set for 10/3/2019. (crt,Wear, G) (Entered: 07/01/2019)
185 Ex Parte MOTION to Withdraw Premal Dharia as Attorney by Edward Little, Sheila Ann Murphy. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Foley, Eric) (Entered: 07/19/2019)
186 ORDER granting 185 Motion to Withdraw as Attorney. Attorney Premal T Dharia terminated. Signed by Magistrate Judge Patrick J Hanna on 7/22/2109. (crt,Alexander, E) (Entered: 07/22/2019)
187 ORAL MOTION to Reopen Discovery by Edward Little. Motions referred to Magistrate Judge Patrick J Hanna. (crt,Chicola, C) (Entered: 08/06/2019)
188 ORAL MOTION to Dismiss Kristian Earles by Kristian Earles. Motions referred to Magistrate Judge Patrick J Hanna. (crt,Chicola, C) (Entered: 08/06/2019)
189 MINUTES for proceedings held before Judge Terry A Doughty: BENCH TRIAL held on 8/6/2019. IT IS ORDERED that the 187 ORAL Motion to Reopen Discovery is DENIED. IT IS FURTHER ORDERED the 188 Oral Motion to Dismiss Kristian Earles is DENIED. The Court will allow a post trial brief by plaintiff, to befiled no later than 21 days after the transcript has been filed in the record. The defendants shall file a reply brief 14 days after the brief has been filed. Any reply is due 7 days after response is filed. A ruling will be issued following the briefs. (Court Reporter: Cathleen E Marquardt) (crt,Chicola, C) (Entered: 08/06/2019)
190 JOINT EXHIBIT LIST by Kristian Earles, Thomas Frederick, Edward Little. (Attachments: # 1 Exhibit 1−20)(crt,Chicola, C) (Entered: 08/06/2019)
191 EXHIBIT LIST by Kristian Earles, Thomas Frederick. (Attachments: # 1 Exhibit 4)(crt,Chicola, C) (Entered: 08/06/2019)
192 WITNESS LIST filed (restricted access). (crt,Chicola, C) (Entered: 08/06/2019)
193 Joint MOTION FOR EXTENSION of Time to File Post−Trial Memoranda by Edward Little, Sheila Ann Murphy, Kristian Earles, Thomas Frederick. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Gerstein, Charles) Modified on 8/12/2019 to edit text (JonesSld, P). (Entered: 08/12/2019)

08/12/2019 08/13/2019
09/02/2019
09/20/2019 09/23/2019
09/24/2019 10/09/2019 10/09/2019 10/10/2019 12/03/2019 12/16/2019 12/23/2019

Motions Transferred regarding 193 Joint MOTION FOR EXTENSION of Time to File Post−Trial Memoranda with consent . Motions referred to Judge Terry A Doughty. (crt,JonesSld, P) (Entered: 08/12/2019)
194 ORDER granting 193 Motion for Extension of Time to File Post−Trial Memoranda. Compliance Deadline for plaintiffs' post−trial memorandum is set for 9/20/2019. Second Compliance Deadline for Judicial defendants response is set for 10/11/2019. Plaintiffs' reply, if any, is 10/18/2019. Signed by Judge Terry A Doughty on 8/12/2019. (crt,JonesSld, P) (Entered: 08/13/2019)
195 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings for BENCH TRIAL held on 8/6/2019 before Judge Terry A Doughty. Court Reporter/Transcriber: Cathleen E Marquardt, Telephone number: (337)593−5223. Total pages: 79. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter. Redaction Request due 9/26/2019. Redacted Transcript Deadline set for 10/7/2019. Release of Transcript Restriction set for 12/5/2019. (crt,Marquardt, C) (Entered: 09/02/2019)
196 TRIAL BRIEF by Edward Little, Sheila Ann Murphy. (Attachments: # 1 Proposed Findings of Fact, # 2 Exhibit A Trial Transcript)(aty,Gerstein, Charles) (Entered: 09/20/2019)
197 MOTION to Substitute Attorney James G. Evans, Andre Castaing in place of David G. Sanders by Kristian Earles, Thomas Frederick. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(Attorney James Garrison Evans added to party Kristian Earles and Thomas Frederick(pty:dft))(aty,Evans, James) Modified on 9/23/2019 to edit text (JonesSld, P). (Entered: 09/23/2019)
198 ORDER granting 197 Motion to Substitute Attorney. Added attorney Andre' C Castaing for Kristian Earles and Thomas Frederick. Attorney David Glen Sanders terminated. Signed by Magistrate Judge Patrick J Hanna on 9/24/2019. (crt,Alexander, E) (Entered: 09/24/2019)
199 Joint MOTION FOR EXTENSION of Post−Trial Briefing Deadlines by Kristian Earles, Thomas Frederick. Motions referred to Patrick J Hanna. (Attachments: # 1 Proposed order)(aty,Evans, James) Modified on 10/9/2019 to add filers (Jones, P). (Entered: 10/09/2019)
Motions Transferred regarding 199 Joint MOTION FOR EXTENSION of of Post−Trial Briefing Deadlines. Motions referred to Judge Terry A Doughty. (crt,Jones, P) (Entered: 10/09/2019)
200 ORDER granting 199 Motion for Extension of briefing deadline. Defendant's post−trial memorandum is due by 12/3/19. If Plaintiffs wish to file a reply, they must do so by 12/16/19. Signed by Judge Terry A Doughty on 10/10/2019. (crt,Crawford, A) (Entered: 10/10/2019)
201 POST−TRIAL BRIEF by Kristian Earles, Thomas Frederick. (aty,Evans, James) Modified on 12/4/2019 to edit text (Jones, P). (Entered: 12/03/2019)
202 TRIAL BRIEF Reply in Support of Post−Trial Memorandum 196 by Edward Little, Sheila Ann Murphy. (aty,Foley, Eric) (Entered: 12/16/2019)
203 MAIL RETURNED as Undeliverable: Andrew C Castaing, 977 North Ave, Atlanta, GA 30306, re: 200 Order on Motion for Extension, returned marked: Forward time expired, Rtn to sender. (crt,Jones, P) (Entered: 12/23/2019)

 </s> Case 6:17-cv-00724-EEF-PJH Document 1 Filed 06/05/17 Page 1 of 16 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

)

EDWARD LITTLE, on behalf of himself and )

all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COMMISSIONER THOMAS FREDERICK, )

in his judicial capacity as Commissioner of )

the 15th Judicial District of Louisiana; CHIEF )

JUDGE KRISTIAN EARLES, in his official )

capacity as Chief Judge of the 15th Judicial )

District of Louisiana; and SHERIFF MARK )

GARBER, in his official capacity as Sheriff )

of Lafayette Parish, Louisiana,

)

)

Defendants.

)

)

Case No. 6:17-cv-724 (Class Action)

CLASS ACTION COMPLAINT

Introduction

Many people are in the Lafayette Parish jail because they cannot deposit enough money to

purchase their liberty. Defendants employ a post-arrest wealth-based detention scheme that jails

impoverished people when they are unable to meet a secured financial condition of release

determined without regard for their ability to pay. Edward Little is currently confined in a

Lafayette Parish jail cell because, despite being otherwise eligible for release after being arrested

and charged with theft, he cannot pay $375 to purchase his liberty.

In the 15th Judicial District Court of Louisiana (“15th JDC”), which covers Lafayette,

Vermilion, and Acadia Parishes, most misdemeanor arrestees are immediately released only if they

can pay a predetermined, secured money bail that is based on a schedule promulgated by Defendant

Chief Judge Kristian Earles. Felony arrestees (and some misdemeanor arrestees) are immediately

Case 6:17-cv-00724-EEF-PJH Document 1 Filed 06/05/17 Page 2 of 16 PageID #: 2
released only if they can pay a sum of money set by Defendant Commissioner Thomas Frederick. Neither the initial schedule nor the orders imposed by Commissioner Frederick involve any inquiry into the arrestee’s ability to pay or any consideration of non-financial alternatives. Under the money bail schedule, everyone arrested for a given charge must pay the same amount in order to be released from jail; under Commissioner Frederick’s orders, secured money bail amounts are set without any consideration of the arrestee’s ability to pay them or of any non-financial alternatives.
Because Mr. Little is impoverished, Defendant Sheriff Mark Garber continues to confine him in the Lafayette Parish Correctional Center (“Jail”). If he could pay the amount of money required by Commissioner Frederick, Sheriff Garber would release him immediately. He cannot produce that money, and so he will remain in jail.
On behalf of himself and all others similarly situated, the named Plaintiff seeks injunctive and declaratory relief against the Defendants. Plaintiff seeks an order enjoining the Defendants from operating the wealth-based post-arrest detention policy, and a declaration that the Defendants violate the Fourteenth Amendment to the United States Constitution when they set secured financial conditions of release, without an inquiry into ability to pay or consideration of nonfinancial alternatives, that result in jailing the poor for no reason other than their poverty.
Nature of the Action1 Commissioner Frederick and Chief Judge Earles require secured financial conditions of release for most arrestees in the 15th JDC. The conditions necessarily result in release only for people with enough money to pay them; for everyone else, these conditions are effectively orders of pretrial detention. Chief Judge Earles promulgated a money bail schedule that considers only
1 Plaintiff makes the allegations in this Complaint based on personal knowledge as to matters in which he has personal involvement and on information and belief as to all other matters.
2

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the crime with which the arrestee is charged, and Commissioner Frederick sets secured financial conditions of release without any inquiry into whether the arrestee can bear the financial burden those conditions impose. The Sheriff implements a policy of detaining people under the schedule and Commissioner Frederick’s orders. The Defendants’ actions violate the Fourteenth Amendment to the United States Constitution.
Jurisdiction and Venue 1. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 2. Venue in this Court is proper under 28 U.S.C. § 1391.
Parties 3. Edward Little was arrested on June 3, 2017, on a charge of theft. Because he cannot afford to pay the amount of money set by Commissioner Frederick without regard to his ability to pay, Mr. Little is currently confined in jail by Sheriff Garber. 4. Defendant Commissioner Thomas Frederick is the Commissioner of the 15th JDC. He is appointed by a majority vote of the Judges of the 15th JDC. La. R.S. § 13:714. In all cases not covered by the bail schedule, Commissioner Frederick sets the initial secured financial conditions of release; he does this without considering the person’s ability to pay or non-financial alternative conditions of release. 5. Defendant Kristian Earles is the Chief Judge of the 15th JDC. In his capacity as Chief Judge, he promulgated the money bail schedule. Ex. A; La. Code Crim. Proc. Ann. art. 315. 6. Defendant Sheriff Mark Garber is the Sheriff of Lafayette Parish, Louisiana. He has implemented a policy of adhering to the money bail schedule set by Chief Judge Earles and
3

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the individual secured financial conditions of release set by Commissioner Frederick. When someone is arrested in Lafayette Parish for an offense covered by the money bail schedule,2 Sheriff Garber’s employees, at his direction, consult the schedule and demand the amount of money listed on the schedule before they will release the arrestee. For offenses not covered by the money bail schedule,3 Sheriff Garber’s employees, at his direction, demand the amount required by Commissioner Frederick. Sheriff Garber jails all arrestees who are unable to pay for their release.
7. None of the Defendants inquire into, or make findings about, any arrestee’s ability to pay money bail or her suitability for alternative non-financial conditions of release.
Factual Background A. Edward Little 8. Edward Little lives on a farm in Carencro, Louisiana, with his wife, Heather, and their two children. The Littles make their living collecting old items, refurbishing them, and selling them on the internet. 9. Their income is highly unstable, but even when the business is going well they rarely have money leftover at the end of the month and often struggle to pay expenses like food, clothing, and utilities. 10. On June 3, 2017, Mr. and Mrs. Little were arrested. Mr. Little was charged with felony theft.
2 The money bail schedule lists pre-set money bail amounts for simple battery, theft, criminal trespass, gambling, resisting arrest, and many other charges. For all charges classified as misdemeanors by the Louisiana Criminal Code and not listed on the schedule, “the bond will be set at $500” pursuant to the schedule.
3 The money bail schedule reads “must be set” for charges such as illegal carrying of a weapon, aggravated assault, and terrorizing. For these charges, Commissioner Frederick sets the initial secured money bail amount.
4

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11. Mr. Little was brought to the Lafayette Parish Jail. A guard told him that his bond was set at $3,000.
12. Mr. Little’s parents told him that he would be released if he could pay $375 to a for-profit bonding agent.
13. Neither Mr. Little nor his family can pay $375. 14. After selling things and scraping together what they could, Mr. Little and his family can pay only $250, and even then the payment would cause extreme hardship in meeting the basic necessities of life. B. The Defendants’ Policies and Practices 15. Mr. Little is currently in the Lafayette Parish Jail. He would be released immediately if he or someone acting on his behalf paid the amount of money set by Commissioner Frederick.
Arrest and Initial Financial Conditions 16. Louisiana law defines “bail”4 to include “(1) Bail with a commercial surety[;] (2) Bail with a secured personal surety[;] (3) Bail with an unsecured personal surety[;] (4) Bail without surety[; and] (5) Bail with a cash deposit.” La. Code. Crim. Proc. Ann. art. 321. Secured money bail (i.e., “Bail with a cash deposit”) requires that the arrestee deposit money in order to be released; unsecured money bail (i.e., “Bail without surety”) requires only that the arrestee promise to pay money if she violates conditions of release. In the 15th JDC, initial conditions of release for misdemeanors and most felonies are usually financial and almost always secured, which means
4 “[B]ail,” as defined by history, law, and practice, “is a mechanism for pretrial release and not for continued pretrial preventive detention.” ODonnell v. Harris Cty., Texas, No. CV H-16-1414, 2017 WL 1735456, at *12 (S.D. Tex. Apr. 28, 2017).
.
5

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that a person must, upon arrest, deposit money up front to be released. Commercial sureties generally demand that the arrestee deposit 12% of the total money bail amount.
17. Louisiana law explicitly permits detention of individuals found to be especially dangerous, regardless of the crimes with which those people are charged. La. Code Crim. Proc. Ann. art. 313. Those people may be detained only after “a contradictory hearing [and] . . . upon proof by clear and convincing evidence either that there is a substantial risk that the defendant might flee or that the defendant poses an imminent danger to any other person or the community.” Id. Defendants do not conduct such hearings prior to issuing de facto orders of pretrial detention based on unaffordable amounts of money.
18. When someone is arrested in Lafayette Parish, she is brought to the Lafayette Parish Jail. The Sheriff is the chief officer of the jail and oversees the confining of all people within it.
19. The Lafayette Parish Jail has a reported maximum safe capacity of 954 people. On May 16, 2017, at 9:13 a.m. C.S.T, there were 1,073 people in the Lafayette Parish jail, 493 of whom were pre-trial detainees. On June 5, 2017, at 2:37 p.m. C.S.T, there were 1,099 people in the jail, 521 of whom were pre-trial detainees. According to the Sheriff’s website, “at any point in time, [the jail] is at or near capacity.”5
20. If someone is arrested on a warrant, and is charged with an offense that is covered by the money bail schedule, Sheriff Garber will release her only if she or her surety can pay the amount of money listed on the schedule. For charges not covered by the schedule, Commissioner Frederick sets an initial secured financial condition of release when he approves the warrant. In any of those cases, the Sheriff will release the person only if she or her surety can pay the amount

5 The Lafayette Parish Sheriff, Corrections by the https://www.lafayettesheriff.com/site305.php (last accessed May 5, 2:31 p.m. C.S.T.).

Numbers,

6

Case 6:17-cv-00724-EEF-PJH Document 1 Filed 06/05/17 Page 7 of 16 PageID #: 7
set by Commissioner Frederick. The Sheriff never releases anyone who cannot deposit the amount set either by the money bail schedule or Commissioner Frederick.
21. If someone is arrested without a warrant, the arresting officer calls Commissioner Frederick and describes the facts leading to the arrest. Commissioner Frederick decides whether there was probable cause to support the arrest and issues his ruling over the phone. If the offense with which the arrestee is charged is not covered by the money bail schedule, Commissioner Frederick sets secured financial conditions of release over the phone. Sheriff Garber will release the arrestee only if she or her surety can pay the amount of money set by Commissioner Frederick. The Sheriff never releases anyone who cannot deposit the amount set either by the money bail schedule or Commissioner Frederick.
22. Commissioner Frederick sets these initial financial conditions of release without any inquiry into whether the arrestee can meet them, and with no consideration of alternative, nonfinancial conditions. When he imposes these conditions, Commissioner Frederick has not communicated with the arrestee and has no information about the arrestee’s finances. Arrestees who cannot afford private lawyers are not represented by counsel at this stage. All arrestees at this point are presumed by law to be innocent, and most have not yet actually been charged with any crime by the prosecutor.
23. The Sheriff’s Department collects and holds the deposited money bail sums.6 24. The Sheriff’s Department never makes any inquiry into whether the person can pay the amount set by Commissioner Frederick or the money bail schedule.
6 Pursuant to Louisiana law, the Sheriff deposits a percentage of every secured money bail into a fund controlled by the same judges who determine whether to require a secured money bond and, if so, what amount of money bond to require for release. The Sheriff deposits another portion of every money bond into an account used to fund the District Attorney’s Office and into a separate account used to fund the Public Defender’s Office.
7

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The Initial Appearance 25. Arrestees do not see a judicial officer until their initial appearance. State law mandates that this appearance happen within 72 hours of arrest, excluding Saturdays, Sundays, and legal holidays. La. Code Crim. Proc. Ann. art. 230.1(A). These appearances are referred to as “72 hearings” or “72s.” 26. Commissioner Frederick presides over all 72 hearings, which he holds in Lafayette Parish on Tuesdays and Fridays. Those are the only days on which 72 hearings are held in Lafayette. Therefore, someone arrested immediately after the 72 hearing on a Friday will not see a judicial official for at least four days. 27. Seventy-two hearings are conducted by video-link: Commissioner Frederick presides from the bench in the courthouse while the arrestee is in a room at the jail. 28. Sheriff’s Department employees are present in the jail at every 72 hearing. 29. The Sheriff’s Department assembles groups of about a dozen arrestees at a time and brings them into a small room in the jail for the 72 hearings. The arrestees wear jail-issued jumpsuits. They are called up to the camera one-by-one as Commissioner Frederick works through the docket. 30. The 72 hearings last approximately 25 or 30 seconds. Commissioner Frederick generally asks the arrestee if her name, address, and date of birth are correctly listed on her arrest paperwork; tells the arrestee what the charges against her are; tells the arrestee her conditions of release; and asks the arrestee if she can afford a lawyer. If the arrestee cannot afford a lawyer, Commissioner Frederick formally appoints one, usually from the District Public Defender’s Office. A jail employee then gives the arrestee a sheet of paper with the Public Defender Office’s contact information on it.
8

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31. Although state law explicitly authorizes Commissioner Frederick to “review a prior determination of the amount of bail” at the 72 hearing, La. Code Crim. Proc. art. 230.1(B), his policy and practice is to refuse to address conditions of release at the hearing. He forbids the introduction of evidence and legal argument concerning release and detention. For example, when two recent arrestees told Commissioner Frederick that they could not afford their secured financial conditions of release, Commissioner Frederick told them to “read the sheet” and “take it up with your lawyer.”
32. When another recent arrestee said that he could not afford secured financial conditions of release, and that he would be stuck in jail as a result, Commissioner Frederick said only “next.” He then moved on to another arrestee’s case.
33. Commissioner Frederick does not entertain arguments to reduce secured financial conditions of release, or to impose unsecured or non-financial conditions, at the 72 hearings.
34. Because they are present at all 72 hearings, Sheriff’s Department employees know that Commissioner Frederick does not consider ability to pay at the 72 hearings.
35. Because Sheriff’s Department employees regularly effect arrests in Lafayette Parish, they know that no inquiry into ability to pay is made before the 72 hearing.
Post Initial-Appearance Detention 36. After the 72 hearing, an arrestee’s only opportunity to modify her conditions of release is by filing a motion before a Judge of the 15th JDC. If the district attorney has not yet decided whether to prosecute the arrestee by formally charging her by bill of information or indictment—locally, this is referred to as “picking up” the charge—a bail-modification motion will be heard by the judge on duty. If charges have been instituted by the district attorney, the
9

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defendant’s case will be assigned to a Division of Court and only that Division’s Judge can preside over the motion.
37. In either case, having a post-arrest release or money-bail reduction motion heard by a court can typically take a week or more. During that waiting period, the arrestee is confined in jail having had no opportunity to be heard concerning her ability to pay or alternative conditions of release.
38. People who cannot afford to pay predetermined amounts of money unrelated to their actual financial resources often spend months in jail awaiting the disposition of their cases. They are all presumed innocent.
39. Many of the 1,099 people detained pretrial in the Lafayette Parish Jail would be released immediately if they could deposit enough money.
Class Action Allegations 40. The named Plaintiff brings this action, on behalf of himself and all others similarly situated, to assert the claims alleged in this Complaint on a common basis. 41. A class action is a superior means, and the only practicable means, by which the named Plaintiff and unknown Class members can challenge the Defendants’ unlawful wealthbased post-arrest detention scheme. 42. This case can be maintained as a class action under to Federal Rules of Civil Procedure 23(a)(1)–(4) and 23(b)(2). 43. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 44. The Plaintiff proposes one Class seeking declaratory and injunctive relief: All arrestees who are or will be detained by Defendants for any amount of time after arrest because
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they are unable to pay secured money bail. A. Numerosity. Fed. R. Civ. P. 23(a)(1) 45. Every person arrested in the 15th JDC who is not lawfully preventatively detained
is subjected to the Defendants’ wealth-based detention scheme in which arrestees either pay for their liberty or, regardless of their ability to pay or personal circumstances, remain confined in a jail cell.
46. Some arrestees can pay for their release immediately. Assuming they are not otherwise detained for another matter, they will walk out of the jail upon payment. Others are forced to wait days or more until they or family members can seek out and somehow gather the required money, often resulting in increased hardship for arrestees and their families. These hardships include lost jobs, lost shelter, and lost custody of children. Many, however, are not able to pay or to find someone else to pay for their liberty. They must wait weeks or months until their cases are resolved for even the prospect of release.
47. Those kept in jail after arrest because they cannot pay the secured financial condition of release are more likely to be convicted, more likely to be sentenced to longer periods of incarceration, and more likely to be charged with a crime in the future. Research and experience in other jurisdictions demonstrates that release using unsecured bond or non-financial conditions of release is more effective at increasing rates of court appearance and preventing new crimes.
48. There are hundreds of people subject to these policies at any given time. Sherriff’s Department records show that on June 5, 2017, 521 people were detained in the Lafayette Parish Jail pretrial. Almost none of them are detained under the procedures provided for in Louisiana’s preventive detention statute; most of them are in jail on money-based de facto orders of pretrial detention entered without following any of the procedures required for a valid order of detention
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and would be released immediately if they were not impoverished. B. Commonality. Fed. R. Civ. P. 23(a)(2). 49. 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 named Plaintiff seeks relief concerning whether the Defendants’ policies, practices, and procedures violate the rights of the Class members and relief mandating the Defendants to change their policies, practices, and procedures so that the constitutional rights of the Class members will be protected in the future.
50. These common legal and factual questions arise from one central scheme and set of policies and practices: the Defendants’ wealth-based post-arrest detention process. 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 the members of the class are entitled to the constitutional relief that they seek.
51. Among the most important common questions of fact are:
 Whether Defendants have a policy and practice of determining the amount of money necessary to secure post-arrest release without inquiry into ability to pay;
 Whether Defendants implement their post-arrest detention scheme without consideration of ability to pay, without findings as to ability to pay, and without consideration of alternative, non-financial conditions;
 Whether Defendants require that pre-determined amounts of money be paid upfront before they will release a person from jail;
 How long arrestees must wait in jail after the 72-hearing before being able to raise their inability to pay for their release or non-financial alternative conditions.
52. Among the most important common question of law are:
 Whether the Defendants’ wealth-based post-arrest detention scheme, which requires that arrestees pay money upfront to be released and which does not consider ability to pay or alternative non-financial conditions of release, violates the Fourteenth Amendment’s Due Process and Equal Protection clauses.
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C. Typicality. Fed. R. Civ. P. 23(a)(3). 53. The named Plaintiff’s claims are typical of the claims of the other members of the Class, and the named Plaintiff has the same interests in this case as all other members of the Class. Each of them suffers the same injury because Defendants refuse to comply with basic constitutional requirements: the named Plaintiff and all of the Class members are confined in jail because they could not afford to pay the Defendants’ secured financial condition of release. The answer to whether the Defendants’ policies and practices are unconstitutional will determine the claims of the named Plaintiff and every other Class member. D. Adequacy. Fed. R. Civ. P. 23(a)(4). 54. The named Plaintiff is an adequate representative of the Class because his interests in the vindication of the legal claims that he raises are entirely aligned with the interests of the other Class members. The named Plaintiff is a member of the Class, and his interests coincide with, and are not antagonistic to, those of the other Class members. 55. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights. 56. Plaintiff is represented by attorney William P. Quigley7 and attorneys from Civil Rights Corps8 and the Roderick and Solange MacArthur Justice Center in New Orleans
7 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 Law Clinic and Center for Social Justice and the Gillis Long Poverty Law Center at Loyola University New Orleans College of Law.
8 Civil Rights Corps is a non-profit civil rights organization based in Washington, D.C. Lawyers with Civil Rights Corps have been counsel in nearly 20 federal civil rights class action lawsuits concerning various forms of court debt-collection, wealth-based jailing, and post-arrest detention schemes. These cases have resulted in class-wide preliminary injunction rulings and jurisdiction-wide consent decrees.
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(“MacArthur Justice Center”),9 who have experience in litigating complex civil rights matters in federal court and knowledge of both the details of the Defendants’ scheme and the relevant constitutional and statutory law.
57. The efforts of Class counsel have so far included investigation of Defendants’ money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendants’ secured money-bail regime.
58. Class counsel have studied the way that post-arrest detention systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipal entities.
59. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating complex and important cases in Louisiana federal courts.
60. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures than can and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiff and his attorneys.
E. Rule 23(b)(2) 61. Class action status is appropriate because the Defendants, through the policies,
9 The MacArthur Justice Center is a non-profit public interest law firm. Undersigned counsel Katie Schwartzmann, the co-Director of the MacArthur Justice Center, has practiced law in Louisiana for thirteen years and has litigated a wide variety of complex civil matters in state and federal court. Undersigned counsel Eric Foley, staff attorney at the MacArthur Justice Center, worked for two years as a federal judicial clerk in the District Court of Puerto Rico before beginning his practice of law in Louisiana in 2011. He has litigated civil rights cases at the trial and appellate stages in state court, and in the trial stage in federal court.
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practices, and procedures that make up their post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all class members. Defendants have created and applied a simple scheme of wealth-based post-arrest detention and release: Defendants release those who can pay and detain those who cannot.
62. The Class therefore seeks declaratory and injunctive relief to enjoin the Defendants from continuing in the future to detain impoverished arrestees who cannot afford money payments. Because the putative Class challenges the Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply perforce to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
Claims for Relief Count One: Defendants Violate Plaintiff’s Rights by Jailing Plaintiff Because He Cannot Afford a Monetary Payment. 63. Plaintiff incorporates by reference the allegations in paragraphs 1–62. 64. The Fourteenth Amendment’s Due Process and Equal Protection clauses have long prohibited jailing a person because of her inability to make a monetary payment. Defendants violate Plaintiff’s fundamental right to pretrial liberty by placing and keeping him in jail because he cannot afford to pay the monetary bail amount set without inquiry into and findings concerning ability to pay or non-financial alternative conditions.
Request for Relief WHEREFORE, Plaintiff and the other Class members request that this Court issue the following relief: a. An order and judgment preliminarily and permanently enjoining the Defendants from using money bail to detain any person without procedures that ensure an inquiry into and findings concerning the person’s ability to pay any monetary amount set and without an inquiry into and findings concerning non-financial alternative conditions of release; b. A declaratory judgment that the Defendants violate Plaintiff’s constitutional rights by setting secured financial conditions of release without inquiring into or making findings as
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to whether arrestees can pay the amounts set, and without considering non-financial alternative conditions of release; c. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and d. Any other relief this Court deems just and proper.
Respectfully submitted,
/s/ Katie Schwartzmann Katie M. Schwartzmann, La. Bar No. 30295 Eric A. Foley, La. Bar No. 34199 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119  (504) 620-2259 (p) (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org
/s/ William P. Quigley William P. Quigley, La. Bar No. 07769 7214 Saint Charles Ave Campus Box 902 New Orleans, LA 70118-3538 Phone: (504) 861-5590 Fax: (504) 861-5440 quigley77@gmail.com
/s/ Charles Gerstein Charles Gerstein D.C. Bar No. 1033346 (pro hac vice application forthcoming) Premal Dharia, D.C. Bar No. 484091 (pro hac vice application forthcoming) Civil Rights Corps 910 17th Street NW, Suite 500 Washington, DC 20001 charlie@civilrightscorps.org premal@civilrightscorps.org (202) 670-4809 Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE

CIVIL ACTION NO. 6:17-cv-00724

VERSUS

JUDGE FOOTE

THOMAS FREDERICK, ET AL.

MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION

Currently pending before this Court is the motion of defendants Judge Kristian

Earles and Commissioner Thomas Frederick seeking to dismiss pursuant to Rule

12(b)(1) for lack of subject matter jurisdiction. (Rec. Doc. 26). The motion is

opposed. (Rec. Doc. 48). Oral argument was held on October 19, 2017. For the

following reasons, the undersigned recommends that the motion be granted in part

and denied in part.

FACTUAL BACKGROUND
On June 5, 2017, the plaintiff Edward Little filed a class action complaint that

alleges, on behalf of himself and all others similarly situated, that Commissioner

Thomas Frederick, Chief Judge Kristian Earles, and Sheriff Mark Garber maintain an

unconstitutional scheme where impoverished people are detained when they are

unable to meet a secured financial condition of release that is determined without

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regard to their ability to pay.1 Two days prior, on June 3, 2017, the plaintiff was arrested and charged with felony theft and was detained at the Lafayette Parish Correctional Center. The plaintiff’s bail was set at $3,000 and he alleges that he did not have the ability to pay a bond agent $375 to secure his release.
According to the complaint, the 15th Judicial District Court (“15th JDC”) utilizes a money bail schedule that is promulgated by Judge Earles and implemented through established procedures where an arrestee’s bail is set without consideration of his inability to pay a certain monetary bail amount. The plaintiff alleges that the manner in which an arrestee’s bail is set depends on the charged offense and the circumstances of the arrest. Generally, an arrestee’s bail will initially be set based on Judge Earles’s bail schedule. However, when an arrestee is arrested pursuant to a warrant for an offense that is not covered by the bail schedule, bail is set by Commissioner Frederick when he signs the arrest warrant which would be supported by a probable cause affidavit. When a person is arrested without a warrant and the offense is not covered by the bail schedule, bail is set by Commissioner Frederick during a telephone call after he determines whether there is probable cause to support the arrest.

1

The Fifteenth Judicial District is made up of three parishes: Lafayette, Vermilion,

and Acadia. Based on the allegations, this suit appears to apply only to the procedures and personnel

in Lafayette Parish.

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The plaintiff alleges that if an arrestee is not released, he appears before Commissioner Frederick for his initial appearance, which is commonly referred to as a 72-hour hearing. The 72-hour hearings are conducted by video-link and are held on Tuesdays and Fridays. During the 72-hour hearing, Commissioner Frederick will ask the arrestee whether his name, address, and date of birth are correctly listed on the arrest paperwork, advise the arrestee of the charges against him, the conditions of release, and he will appoint counsel if the arrestee is found to be indigent. According to the complaint, after the 72-hour hearing, an arrestee can only modify his bail amount by filing a motion to seek a bail reduction, which must be heard by either the assigned district judge if he has been formally charged by the district attorney or the district judge on duty if he has not been formally charged by the district attorney.
During oral argument, the Policy of the Fifteenth Judicial District Court (“15th JDC Policy”) regarding bail bonds was introduced as an exhibit and the parties agreed that the Court could consider the policy in the context of the present motion.2 According to the 15th JDC Policy, all arrestees charged with a misdemeanor will be released on a summons without the requirement of posting bond if they are charged with a traffic offense or one of the other thirty-eight misdemeanors that are listed in the policy. However, the 15th JDC Policy provides that an arrestee charged with

2

Rec. Docs. 56, 57 pp.14-15.

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domestic abuse battery will not be released on a summons because it is prohibited by statute, and an arrestee charged with driving under the influence will be released if the arrestee meets the qualifications for the Sheriff Offender Tracking Program (“STOP”). Further, “non-summons misdemeanors may also qualify for release on the signature (personal surety) of a qualified friend or family member who can establish residential stability and employment.”3
The 15th JDC Policy further provides that the bonds for an arrestee charged with a felony “will be set initially based on the facts set forth in the probable cause for arrest affidavit, including the arrestee’s age, local vs. no local address, the circumstances of the offense, and the information on the arrestee’s rap sheet including prior warrants for failure to appear.”4 Bonds are set two to three times each day via phone or email. However, if the arrestee does not bond out, is charged with a nonviolent felony, and qualifies for STOP, he can be released without paying the set bail amount. If an arrestee meets the STOP requirements, the arrestee will be released pursuant to a court order that conditions his release upon satisfactory participation in the program. A felony arrestee may also be released on a signature (personal surety) bond. If an arrestee has not been released, then “an arrestee will be provided an

3

Rec. Doc. 56-1, p. 2.

4

Id. (Emphasis added).

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individualized bail determination within 24 hours of arrest, if practical, but in no event later than the next available 72-hour hearing after arrest.” 5
Indigent defendants are assigned counsel at the 72-hour hearing. Thereafter, if bond has not been reduced, counsel may put the individual on a weekly bond reduction duty docket where counsel for both parties will try to reach an agreement on a reduced bond amount. If no agreement can be reached, the case will be placed on the bond reduction docket of the judge assigned to the case who will hold a bond reduction hearing with evidence and argument.6
The plaintiff argues that the 15th JDC Policy is unconstitutional because the defendants set monetary bail as a condition of release without consideration of an arrestee’s ability to pay a certain monetary amount. The plaintiff further argues that Commissioner Frederick’s implementation of the 15th JDC Policy is unconstitutional because he has a policy and practice where he refuses to reconsider prior determinations of bail during an arrestee’s 72-hour hearing. In the plaintiff’s complaint, it is alleged that two recent arrestees informed Commissioner Frederick that they could not afford their bail amount during their 72-hour hearings, but Commissioner Frederick refused to address the issue and told them to “read the sheet”

5

Rec. Doc. 56-1, p. 3.

6

Rec. Doc. 56-1, p. 3.

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and “take it up with your lawyer.” Therefore, the plaintiff alleges that the defendants’ bail procedure is a violation of his fundamental right to pretrial liberty because his detention is based solely on his inability to pay his set bail amount and the defendants do not inquire into his ability to pay or non-financial alternative conditions until a motion to reduce bail is filed.
The plaintiff seeks the following relief on behalf of himself and all others similarly situated: (1) an injunction to enjoin the defendants from using money bail to detain any person without procedures that ensure an inquiry into findings concerning the person’s ability to pay any monetary amount set and without an inquiry into and findings concerning non-financial alternative conditions of release; (2) a declaratory judgment that the defendants violate the plaintiff’s rights by setting secured financial conditions of release without inquiring into or making findings as to whether arrestees can pay the amounts set and without considering non-financial alternative conditions of release; and (3) an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
LAW AND ANALYSIS The defendants styled their motion as a Rule 12(b)(1) motion to dismiss based on the lack of subject matter jurisdiction. However, their briefs contain arguments that are not related to subject matter jurisdiction. The defendants contend that the
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plaintiff’s allegations do not set forth a constitutional violation because an arrestee does not have a constitutional right: (1) to be free from detention and post bail if he is a flight risk or danger to the community; or (2) to instant release from pretrial detention. Based on the defendants’ arguments that address the merits of the case, this Court construes the defendants’ 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as a 12(b)(6) motion to dismiss for failure to state a claim.7 I. The Applicable Standard
To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”8 The allegations must be sufficient “to raise a right to relief above the speculative level,”9 and the pleading must contain more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.10 “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

7

The Court notes that counsel for the movants adopted arguments made in the motion

to dismiss filed by Sheriff Garber. (See Rec. Doc. 18). Particularly as they apply to

standing/mootness and applicability of the Younger abstention, those arguments are addressed in the

report and recommendation issued by this Court in response to Sheriff Garber’s motion and are

adopted herein as well.

8

Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007).

9

Bell Atlantic v. Twombly, 550 U.S. at 555.

10 Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004).

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more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”11 If the plaintiff fails to allege facts sufficient to “nudge[] [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.”12
When considering a Rule 12(b)(6) motion, a district court is generally required to limit itself to the contents of the pleadings, including any attachments thereto.13 The court must accept all well-pleaded facts as true, and it must view them in the light most favorable to the plaintiff.14 Conclusory allegations and unwarranted deductions of fact are not accepted as true,15 and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”16
11 Id. (citations, quotation marks, and brackets omitted; emphasis added). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
12 Bell Atlantic v. Twombly, 550 U.S. at 570. 13 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). 14 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). 15 Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). 16 Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
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II. CONVERSION OF THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT IS NOT WARRANTED When considering a Rule 12(b)(6) motion, a court has complete discretion to
consider documents other than the complaint17 if those documents are attached to the motion, referenced in the complaint, and central to the plaintiff's claims.18 If a court considers materials outside of the pleadings, the motion to dismiss must be treated as a motion for summary judgment,19 and the nonmovant must be afforded the procedural safeguards of Fed. R. Civ. P. 56.20 However, the parties’ submission of extraneous materials does not automatically convert a Rule 12(b)(6) motion for summary judgment.21
Although not attached to the motion, since the 15th JDC Policy is at the very heart of the complaint and central to the plaintiff’s claims, this Court finds that
17 Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 193 n. 3 (5th Cir. 1988); Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-15 (5th Cir. 1980).
18 In re Katrina Canal Breaches Litig., 495 F.3d at 205; Collins v. Morgan Stanley, 224 F.3d at 498–99.
19 Fed. R. Civ. P. 12(d). 20 Fernandez–Montes v. Allied Pilots Ass'n, 987 F.2d 278, 283 (5th Cir. 1993); Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990). 21 United States ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir. 2015); Davis v. Bayless, 70 F.3d 367, 372 n. 3 (5th Cir. 1995).
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consideration of the exhibit setting forth the policy in writing, which was agreed to by the parties, does not convert the motion to dismiss into one for summary judgment. III. SECTION 1983 CLAIMS
Section 1983 provides a cause of action against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another person’s Constitutional rights. Section 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere.22 To state a section 1983 claim, a plaintiff must: (1) allege a violation of a right secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.23
In this case, the plaintiff asserts a claim under Section 1983, alleging that his fundamental right to pretrial liberty is being infringed in violation of the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause because the defendants set bail without consideration of the inability to pay a certain monetary
22 Graham v. Connor, 490 U.S. 386, 393-94 (1989); Baker v. McCollan, 443 U.S. 137,144, n. 3 (1979); Hernandez ex rel. Hernandez v. Texas Dep't of Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004).
23 Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013); Moore v. Willis Independent School Dist., 233 F.3d 871, 874 (5th Cir. 2000).
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amount such that arrestees remain in detention solely because they are unable to pay
their set bail amount.
(1) The State Law Framework
Title VIII of the Louisiana Code of Criminal Procedure governs the issue of
bail. Article 313 specifically vests district courts and their commissioners having
criminal jurisdiction to fix bail “in all cases.” Article 315 specifically authorizes a bail schedule such as that employed by the 15th JDC in this case. That statute provides in
pertinent part:
A. Unless the bail is fixed by a schedule in accordance with this Article, the amount of bail shall be specifically fixed in each case. In noncapital felony cases, a bail schedule according to the offense charged may be fixed by the district court.
... B. The court order setting the bail schedule shall fix the amount of bail for each offense listed, designate the officer or officers authorized to accept the bail, and order that bail be taken in conformity with the schedule.
... C. A person charged with commission of an offense for which bail is fixed by a schedule may give bail according to the schedule or demand a special order fixing bail. The bail amount fixed by schedule may be modified by the court in accordance with Article 319.
As set forth in more detail below, one of the factors specifically identified by the Legislature to consider in fixing bail is “the ability of the defendant to give bail.”24
24 La. C. Cr. Pro. Art. 316. 11

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Article 319 allows the court, on its own motion or on the motion of either the prosecution or the defendant, to either increase or reduce the amount of bail. Finally, Article 313 provides for a contradictory bail hearing in certain instances prior to setting bail with temporary detention authorized for no more than five days exclusive of weekends and legal holidays.25
This Court finds that the 15th JDC Policy is in accord with these provisions of state law as a threshold matter and the plaintiff has made no allegation that the law of Louisiana is unconstitutional either on its face or as applied. (2) Equal Protection
To prevail under the Equal Protection Clause, a Section 1983 plaintiff must prove either: (1) a state actor intentionally discriminated against the plaintiff because of membership in a protected class; or (2) the plaintiff has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.26 The plaintiff does not allege that the defendants intentionally discriminate against an arrestee based on financial status. Instead, the plaintiff contends that the defendants “employ a post-arrest wealth-based detention scheme that jails impoverished people when they are unable to meet a secured
25 These five articles were revised from their prior form as part of Acts 2016, No. 613, § 1, eff. January 1, 2017.
26 Gibson v. Texas Dep’t of Ins., 700 F.3d 227, 238 (5th Cir. 2012). 12

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financial condition of release determined without regard for their ability to pay.”27 However, even assuming that the plaintiff’s allegations are true, the Equal Protection Clause would only require that the classification rationally further a legitimate state interest because classifications based on wealth or financial status are not protected classes.28
“Generally speaking, an individual’s indigence does not make that individual a member of a suspect class for equal protection purposes.”29 In Pugh v. Rainwater, the Fifth Circuit recognized that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.”30 However, the court held that there is no presumption that an indigent defendant shall be released without a monetary bail because the “ultimate inquiry in each instance is what is necessary to reasonably assure defendant’s presence at trial.”31 This Court is not persuaded that Pugh establishes a protected class for indigent arrestees because an arrestee’s ability
27 Rec. Doc. 1 p.1 ¶ 1 28 Carson v. Johnson, 112 F.3d 818, 821-822 (5th Cir. 1997) (“Neither prisoners nor indigents constitute a suspect class.”). 29 Driggers v. Cruz, 740 F.3d 333, 337 (5th Cir. 2014) (citing Maher v. Roe, 432 U.S. 464, 471 (1977). 30 Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (citing Williams v. Illinois, 399 U.S. 235 (1970)). 31 Pugh v. Rainwater, 572 F.2d at 1057-58.
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to pay a bail amount is not the only consideration when bail is set. Therefore, the plaintiff will only prevail under the Equal Protection Clause if the defendants do not have a rational basis to intentionally treat the plaintiff differently from others similarly situated.
It is well settled that the defendants have “a compelling interest in assuring the presence at trial of persons charged with a crime.”32 The 15th JDC Policy, on its face, does not discriminate against arrestees based on their financial status. First of all, the bail amount, if set under the schedule, is set in the same manner based on the nature of the offense charged regardless of financial status in compliance with Article 315. For individualized bail that is initially set within hours of a felony arrest, the defendants consider “the facts set forth in the probable cause for arrest affidavit, including arrestee’s age, local vs. no local address, circumstances of the offense and the information on an arrestee’s rap sheet including prior warrants for failure to appear.”33 While the financial condition of the arrestee is not specifically identified in this initial individualized setting, the information that is listed in the policy may well be the only information available to the defendants during this short time period and takes into consideration other factors listed under Article 316 in order to set a
32 Pugh v. Rainwater, 572 F.2d at 1056 (citing Stack v. Boyle , 342 U.S. 1, 4 (1951)) 33 Rec. Doc. 56-1, p.2.
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sufficient bail to assure the arrestee’s presence at trial and the safety of any other person and the community.
However, pursuant to the 15th JDC Policy, an arrestee’s initial bail amount is not final and will potentially be reviewed two additional times within seventy-two hours of arrest. If the defendant wishes to pursue the argument that the monetary bail is set too high, and the other factors under Article 316 justify reduction, then bail can be adjusted based on the applicable state law implemented through the 15th JDC Policy. If the arrestee still does not get relief, there are two more opportunities for bail review including a contradictory hearing by the district judge assigned to the case. Therefore, on its face, this procedure illustrates that the defendants do not intend to detain an arrestee longer than the time required to assure the arrestee’s appearance at trial and the safety of any other person and the community. While the application of this procedure might lead to a conclusion where an arrestee with the ability to pay is released, while an arrestee with the inability to pay is detained, the defendants’ procedure is rationally related to these two compelling interests.
The 15th JDC Policy also illustrates that the defendants do not have a discriminatory purpose toward indigents when bail is initially set because there are non-financial alternatives available if an arrestee is unable to pay the monetary bail amount. The 15th JDC Policy provides that an arrestee may be released without paying
15

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a monetary bail if the requirements for the STOP program or the requirements to be released on a signature bond are met. These non-financial alternatives are available for consideration when the defendants review an arrestee’s bail, but cannot be automatically applied for all felony arrestees that are unable to pay a monetary bail amount because that procedure would thwart the more compelling interests of assuring the arrestee’s appearance at trial as well as ensuring the safety of any other person and the community.
With regard to misdemeanors, the 15th JDC Policy illustrates that the defendants provide more than what is constitutionally required because nearly all arrestees charged with a misdemeanor listed in the policy are released on a summons without any further considerations. Exceptions are for those who cannot be released on a summons as a matter of law, and those who have been arrested for the third time within the previous six months. In addition, non-summons misdemeanors may also qualify for release on the signature of a personal surety or release through the STOP program. There is no indication in the 15th JDC Policy that indigent defendants charged with a misdemeanor are held solely because they cannot afford to meet the financial conditions of their bond.
This Court finds that the 15th JDC Policy does not violate the Fourteenth Amendment’s Equal Protection Clause. Therefore, this Court recommends that the
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plaintiff’s Section 1983 claim based on the alleged violation of the Fourteenth Amendment’s Equal Protection clause should be dismissed. (3) Due Process Clause
The Due Process Clause of the Fourteenth Amendment has two components: (1) “A guarantee of procedural protections when a state seeks to deprive an individual of protected liberty or property interests, and (2) a substantive protection against conduct that ‘shocks the conscience.’”34 The first component, which establishes procedural due process, requires the plaintiff to “identify a protected life, liberty, or property interest and then prove that government action resulted in a deprivation of that interest.”35 Stated differently in the context of this case, the two-part analysis of the procedural due process component requires identification of the protected liberty interest, and then a determination of whether the state has provided adequate procedures for the vindication of that interest.36 “The liberty interests protected by the Fourteenth Amendment may arise from “the Constitution itself, by reason of

34 35 36
(2005)).

Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016). Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). Jordan v. Fisher, 823 F.3d at 810 (citing Wilkinson v. Austin, 545 U.S. 209, 213
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guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or policies.”37
“The second component of the due process analysis does not rest on state law . . . and comes into play . . . when ‘the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience’ regardless of whether the behavior in question fails to conform to state laws.”38 The second component dealing with substantive due process is not at issue in this lawsuit.
The plaintiff contends that the defendants violate an arrestee’s fundamental right to pretrial liberty by placing and keeping an arrestee in jail simply because he cannot afford to pay the monetary bail amount. However, it is unclear whether the plaintiff is asserting that an arrestee’s right to pretrial liberty is a protected interest created by the Constitution or state law. Therefore, the threshold issue before the Court is whether the right to pretrial release is a liberty interest that is created by the Constitution or a liberty interest created by a state law or policy.
In Pugh, the Fifth Circuit essentially denied that the right to pretrial liberty is a fundamental right because the right is conditioned on “what is necessary to
37 Id. (quoting Wilkinson v. Austin, 545 U.S. at 221). 38 Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 862 n.8 (1996)).
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reasonably assure the defendant’s presence at trial.”39 In U.S. v. Salerno, the Supreme Court recognized the importance and fundamental nature of the right to pretrial release, but ultimately held that the right to pretrial release is not a fundamental right.40 Based on the applicable jurisprudence, this Court is not persuaded that the right to pretrial release is a fundamental right created by the Constitution. However, the right to pretrial liberty is a protected interest created by Louisiana law.
State law can create federal liberty interests “by placing substantive limitations on official discretion,” typically through “establishing substantive predicates to govern official decision-making” and by “mandating the outcome to be reached upon a finding that the relevant criteria have been met.”41 The Louisiana Constitution provides “before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great.”42 The right to bail is also provided under Article 312
39 Pugh v. Rainwater, 572 F.2d at 1057. 40 United States v. Salerno, 481 U.S. 739, 750-51 (1987) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). 41 Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 462 (1989). 42 La. Const. Art. 1, § 18 (emphasis added). The article further states: “a person charged with a crime of violence as defined by law or with production, manufacture, distribution, or dispensing or possession with intent to produce, manufacture, distribute, or dispense a controlled dangerous substance as defined by the Louisiana Controlled Dangerous Substance Law, and the proof is evident and the presumption of guilt is great, shall not be bailable if, after a contradictory hearing, the judge or magistrate finds by clear and convincing evidence that there is a substantial risk
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of the Louisiana Code of Criminal Procedure, which states that, “except as provided in this article and article 313, a person in custody who is charged with the commission of an offense is entitled to bail before conviction.”43
Louisiana’s right to bail provision places limitations on an official’s discretion because it provides that an arrestee is entitled to bail unless the arrestee is charged with a certain offense and/or specific procedures are followed. However, an arrestee’s right to bail remains conditional on the arrestee’s ability to provide “sufficient surety” and the court setting an arrestee’s bail maintains its discretion to determine what is considered “sufficient surety” in each case. Therefore, Louisiana law creates a federal liberty interest that arrestees have the right to be released from pretrial detention, but this interest remains conditioned on an arrestee’s ability to provide “sufficient surety.”
To determine whether a liberty interest is sufficiently protected under the Due Process Clause, the Fifth Circuit applies the balancing test that was established in Mathews v. Eldridge, which requires consideration of three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such an interest through the procedures used, and the probable value, if any, of
that the person may flee or poses an imminent danger to any other person or the community.” 43 La. C. Cr. Pro. Art. 312. 20

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additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.44
In this case, the private interest that is affected by the defendants’ alleged
conduct is an arrestee’s interest in release from custody prior to trial. However, an
arrestee’s interest is not automatically erroneously deprived when a monetary bail
amount is set because not only is the interest conditional, but the procedures used
mandate that the ability to pay the bail amount is already one factor to consider.
The Louisiana legislature specifically provided that “[t]he amount of bail shall
be fixed in an amount that will ensure the presence of the defendant, as required, and
the safety of any other person and the community, having regard to” ten factors.45
While a felony arrestee’s ability to pay bail is a factor to consider (see factor 4), it
cannot be the sole factor used to determine the appropriate conditions of release. For
example, when an arrestee with a prior criminal record is charged with a violent
44 Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 45 La. C. Cr. Pro. Art. 316 (emphasis added). These factors include: (1) the seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance; (2) the weight of the evidence against the defendant; (3) the previous criminal record of the defendant; (4) the ability of the defendant to give bail; (5) the nature and seriousness of the danger to any other person or the community that would be posed by the defendant’s release; (6) the defendant’s voluntary participation in a pretrial drug testing program; (7) the absence or presence in the defendant of any controlled dangerous substance; (8) whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing; (9) any other circumstances affecting the probability of defendant’s appearance; (10) the type or form of bail.
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offense, backed by evidence of sufficient weight (factors 1, 2 & 3), the main consideration before the court is whether the arrestee will be a danger to any other person or the community if released (factor 5). When an arrestee has failed to appear on numerous occasions, the main consideration before the court is whether the arrestee will appear for trial (factor 9). In these situations, an arrestee’s ability to pay a certain bail amount, while a factor to be considered, is not necessarily in and of itself dispositive of the issue before the court when weighed against the compelling interests of assuring the safety of any other person and the community and the arrestee’s appearance as required.
However, even if the initial setting results in a bail amount that is too high for the arrestee to meet, the procedural safeguards that are in place in the 15th JDC Policy allow the arrestee multiple opportunities to have the bond reduced (potentially two times within seventy-two hours), and non-financial alternatives are available if an arrestee is unable to pay a monetary bail amount. After the 72-hour hearing, if an arrestee remains in custody, there are two more remedies available: being placed on the weekly bond reduction duty docket with a duty judge, and if no agreement can be reached with the prosecution, by being placed on the bond reduction docket with an evidentiary hearing before the judge assigned to the case.
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While there is no applicable jurisprudence to address the appropriate time period for bail to be set, there is jurisprudence that establishes a time period to determine probable cause. In Gerstein v. Pugh, the Supreme Court held that a judicial officer shall make a prompt determination of whether there is probable cause to support an arrest and the determination can be made informally without an adversarial hearing.46 The Supreme Court recognized that the determination of probable cause should be flexible and incorporated into the procedure for setting bail or fixing other conditions of pretrial release.47
In County of Riverside v. McLaughlin, the Supreme Court addressed the appropriate time period to satisfy the promptness requirement of Gerstein and held that the judicial determination of probable cause shall be made within 48 hours of an arrest.48 The Supreme Court also restated that certain proceedings, including bail hearings, may be combined with the informal procedure of determining probable cause.49

46 Gerstein v. Pugh, 420 U.S. 103, 123 (1974).

47 Gerstein v. Pugh, 420 U.S. at 104.

48 County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

49

Id., at 58.

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The 15th JDC policy illustrates that the defendants follow the intended structure set forth in County of Riverside and Gerstein, because an arrestee’s individualized bail may be initially set at the same time that a judicial officer determines whether there is probable cause for the arrest, whether by warrant or not, i.e. within hours of the actual arrest. There is no constitutional requirement that the plaintiff is entitled to an adversarial hearing at that time.
Louisiana law mandates that an arrestee shall be brought before a judge within seventy-two hours of arrest for the purpose of appointment of counsel and “if the defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.”50 Thus, Louisiana law does not mandate that an arrestee is entitled to an adversarial hearing to challenge the bail amount during the 72-hour hearing.
However, the 15th JDC Policy does mandate that an individualized bail determination is to be made “within twenty-four hours of arrest, if practical, but in no event later than the next available seventy-two (72) hour hearing after arrest.” 51 Louisiana law does not specifically require that an adversarial hearing occur at an
50 La. C. Cr. Pro. Art. 230.1 (emphasis added). 51 Rec. Doc. 56-1, p. 3.
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arrestee’s 72-hour hearing, nor does it mandate that a prior determination of bail be reviewed. However, due process does require some justification at some point that an arrestee’s right to pretrial release based on a sufficient surety is not being violated. The 15th JDC Policy provides the opportunity for that justification if amount of bail is questioned by the arrestee. This 72-hour time period is closely tailored to the appropriate time period for setting conditions of release established in the federal Bail Reform Act.52
Under Fed. R. Cr. P. 5(a), an arrestee’s initial appearance before a magistrate judge shall occur without “unnecessary delay.” A specific time period for what constitutes an unnecessary delay is not defined and is determined on a case-by-case basis. However, if an arrestee is arrested without a warrant, a 48-hour delay between arrest and a probable cause determination has been considered reasonable by the Supreme Court.53 If an arrestee is arrested pursuant to a warrant based on a complaint, which must be supported by a probable cause affidavit, the arrestee is entitled to a preliminary hearing with evidence and witnesses presented to the court to determine the existence of probable cause within no later than fourteen days if he is
52 18 U.S.C.A. § 3141 et seq. 53 County of Riverside v. McLaughlin, 500 U.S. at 57.
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incarcerated.54 It is not uncommon for preliminary hearings to be combined with detention hearings during this time frame.
Under the Bail Reform Act, a federal court is allowed to detain an arrestee pending trial if the court finds after an adversary hearing that no release conditions “will reasonably assure the appearance of the person as required and the safety of any other person and the community.”55 The adversarial hearing “shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance.”56 Except for good cause, the continuance is limited to no more than five working days if sought by the defendant or three working days if sought by the Government.57 The continuance is a matter of right and the computation of time does not include legal holidays or weekends. Thus, under the federal system, a defendant charged with a felony could possibly be held without any type of bond consideration for more than five days if the defendant is presented to the magistrate judge within 48 hours of arrest and the Government seeks a continuance.

54 Fed. R .Cr. P. 5.1(c). An arrestee is not entitled to a preliminary hearing if he is indicted by the Grand Jury.

55 18 U.S.C.A. § 3142(e).

56 18 U.S.C.A. §3142(f)

57

Id.

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Therefore, in the context of setting bail, under the 15th JDC Policy, bail can be set based on the offense charged, i.e. under the schedule, when probable cause is determined, and individualized bail is set within 24 hours of arrest but in no event no later than the next available 72 - hour hearing. In the federal system, bond conditions can also possibly be set within twenty-four hours of arrest, but on the motion of the Government, bond may not be determined until up to three days, i.e seventy-two hours, later excluding weekends or holidays.
The plaintiff argues that all arrestees are entitled to the same due process procedures established by the Supreme Court in United States v. Salerno. In Salerno, the Supreme Court reviewed the Bail Reform Act’s authorization of pretrial detention and held that the procedures required are sufficient to satisfy procedural due process requirements. The requirements include: (1) a detention hearing where the arrestee is represented by counsel; (2) the arrestee may testify on their own behalf, present information, and cross-examine witnesses; (3) the judicial officer that determines the appropriateness of detention is guided by enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community; (4) the government must prove its case by clear and convincing evidence; and (5) the judicial
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officer must include written findings of fact and a written statement of reasons for a decision to detain.58
The 72-hour hearing under state law does not contemplate the same procedures for setting conditions of bond as a detention hearing under the Bail Reform Act. However, the 15th JDC Policy provides two additional opportunities to have bail addressed, up to and including an evidentiary hearing with the district judge assigned to the case. Therefore, this Court concludes that the bail procedures employed under Louisiana law, as implemented by the 15th JDC Policy, do meet the procedural safeguards required to satisfy the plaintiff’s due process rights.
The plaintiff’s argument in this case follows the holding in Odonnell v. Harris County where the plaintiff alleged that Harris County maintains a “systematic custom of setting secured financial conditions of release on the bail schedule without any inquiry into or findings concerning an arrestee’s present ability to pay the amount set.”59 The Court recognized that under Texas law an arrestee charged with a misdemeanor should not be detained over 24 hours solely based on their inability to pay. The court used federal case law to conclude that arrestees charged with a
58 U.S. v. Salerno, 481 U.S. 739, 751-752 (1987). 59 Odonnell v. Harris County, 227 F.Supp.3d. 706, 718 (S.D. Tex. 2017). This case is on appeal to the Fifth Circuit and as of this writing has not been decided.
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misdemeanor can only be detained based on their inability to pay a monetary bail amount after the following is provided: “(1) notice that the financial and other resource information its officers collect is for the purpose of determining the misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; and (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law abiding behavior before trial.”60
Similarly, in Wheat v. Craig, the plaintiffs filed a class action complaint and alleged that indigent misdemeanor arrestees in Bossier Parish are detained up to forty-five days solely because they are unable to pay their monetary bail amount.61 The parties reached a settlement, which included that: (1) all misdemeanor arrestees except those expressly listed will be released on their own recognizance; (2) misdemeanor arrestees charged with an offense that is not listed will be provided an individualized bail determination within twenty-four hours of arrest whenever practicable but in no event later than seventy-two hours after their arrest; (3) these bail review hearings meet the requirements of due process and equal protection, and
60 Odonnell v. Harris County, 251 F.Supp.3d at 1145. 61 Wheat v. Craig, 5:17-cv-00424, Rec. Doc. 1
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no misdemeanor arrestee will be kept in jail on the basis of a secured money bond that they cannot afford.62
After reviewing these similar cases, this Court recognizes that the 15th JDC Policy essentially mirrors the constitutional standards that are illustrated in these cases for arrestees charged with misdemeanor offenses. An arrestee charged with a misdemeanor is released without bail when the charged offense is an offense listed in the policy and release without a monetary bail is not otherwise prohibited by law. Furthermore, the 15th JDC policy provides non-financial alternatives when a monetary bail is set in a misdemeanor case and the arrestee is unable to pay the monetary bail amount, i.e. a personal surety or by qualifying for STOP. Finally, it is presumed a misdemeanor arrestee who is otherwise required to post bail and doesn’t qualify for the non-financial alternatives (whether due to voluntariness on the arrestee’s part or not) would have the same procedures available to address bail as a felony arrestee in any other case, i.e. individualized bail determination within 24 hours of arrest if practicable, but in no event no later than the next 72-hour hearing.
However, there is one major factor that distinguishes these cases from the present case. Because the plaintiff in this case is charged with a felony, far more compelling interests are at stake. Nonetheless, this Court agrees with the 15th JDC
62 Wheat v. Craig, 5:17-cv-00424, Rec. Doc. 27 30

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Policy that an arrestee’s individualized bail amount should be reviewed or addressed no later than their initial appearance before a judicial officer. However, the plaintiff alleges that Commissioner Frederick has a policy and practice where he refuses to address an arrestee’s bail amount during the 72-hour hearing. The plaintiff further alleges that two recent arrestees told Commissioner Frederick that they could not afford to pay their monetary bail amount and Commissioner Frederick told them to “read the sheet” and “take it up with your lawyer.”63 This allegation suggests “the sheet” is the bail schedule rather than an individualized bail determination. Even though the plaintiff did not appear before Commissioner Frederick when this lawsuit was filed, these allegations, accepted as true, present a plausible claim regarding whether Commissioner Frederick’s actions are a violation of an arrestee’s due process rights.
This Court finds that the 15th JDC Policy, on its face, does not create a violation of an arrestee’s due process rights because the policy follows appropriate procedures and provides that an arrestee shall have an individualized bail determination within 24 hours if practical, but in no event not later than the next available 72-hour hearing following his or her arrest. The policy further provides that arrestees can challenge their bail condition two more times, including at a contradictory hearing before the
63 Rec. Doc. 1 P. 9 ¶31 31

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district judge assigned to the case if they are still unable to secure their release after the 72-hour hearing. While the plaintiff alleges that the hearing before a district judge may occur a week or more after an arrest, this time period is not unconstitutional if Commissioner Frederick makes an individualized bail determination no later than the 72-hour hearing and provides a record as to why the bail conditions are justified under Article 316 as a sufficient surety to assure their presence at trial and the safety of any other person and the community.
Whether Commissioner Frederick’s alleged refusal to address an arrestee’s conditions of bail during a 72-hour hearing is a violation of an arrestee’s due process rights is a question that must be resolved with evidence. However, since the 15th JDC Policy does contain sufficient procedural safeguards, this Court recommends that the plaintiff’s due process claims against Judge Earles should be dismissed.
CONCLUSION Based on the foregoing reasons, it is recommended that the defendants’ motion to dismiss (Rec. Doc. 26) should be granted in part and denied in part. The defendants’ motion should be granted to the extent it seeks dismissal of all of the plaintiff’s equal protection claims as well as the plaintiff’s due process claims against Judge Earles. The defendants’ motion should be denied to the extent that it seeks dismissal of the plaintiff’s due process claims against Commissioner Frederick.
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Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen days after being served with of a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Signed at Lafayette, Louisiana, this 6th day of December 2017.
____________________________________ PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE

CIVIL ACTION NO. 6:17-cv-00724

VERSUS

JUDGE FOOTE

THOMAS FREDERICK, ET AL.

MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION

Currently pending before this Court is defendant Sheriff Mark Garber’s motion

to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and Rule

12(b)(6) for failure to state a claim. (Rec. Doc. 18). The motion is opposed. (Rec.

Doc. 48). Oral argument was held on October 19, 2017. For the following reasons,

the undersigned recommends that the motion be granted in part and denied in part.

FACTUAL BACKGROUND
On June 5, 2017, plaintiff Edward Little filed a class action complaint that

alleges, on behalf of himself and all others similarly situated, that Commissioner

Thomas Frederick, Chief Judge Kristian Earles, and Sheriff Mark Garber maintain an

unconstitutional scheme by which impoverished people are detained when they are

unable to meet a secured financial condition of release that is determined without

1

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regard to their ability to pay.1 Two days prior, on June 3, 2017, the plaintiff was arrested, charged with felony theft, and detained at the Lafayette Parish Correctional Center. The plaintiff’s bail was set at $3,000, and he alleges that he did not have the ability to pay a bond agent $375 to secure his release.
According to the complaint, the 15th Judicial District Court (“15th JDC”) utilizes a money bail schedule that is promulgated by Judge Earles and implemented through established procedures where an arrestee’s bail is set without consideration of the inability to pay a certain monetary bail amount. The plaintiff alleges the manner in which an arrestee’s bail is set depends on the charged offense and the circumstances of the arrest. Generally, an arrestee’s bail will initially be set based on Judge Earles’s bail schedule. However, when a person is arrested pursuant to a warrant for an offense that is not covered by the bail schedule, bail is set by Commissioner Frederick when he signs the arrest warrant, which would be supported by a probable cause affidavit. When a person is arrested without a warrant and the offense is not covered by the bail schedule, bail is set by Commissioner Frederick during a telephone call after he determines whether there is probable cause to support the arrest.

1

The Fifteenth Judicial District is made up of three parishes: Lafayette, Vermilion,

and Acadia. Sheriff Garber is the Sheriff of Lafayette Parish.

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The plaintiff alleges that Sheriff Garber implements a policy at LPCC where an arrestee is only released when his monetary bail amount is paid. As part of the policy, Sheriff Garber’s employees demand either the monetary amount required for the offense pursuant to the bail schedule or the monetary amount that is set by Commissioner Frederick as a condition of release. The plaintiff alleges that Sheriff Garber’s employees do not consider an arrestee’s inability to pay a certain monetary bail amount.
If an arrestee has not been released from LPCC, the arrestee will appear before Commissioner Frederick for an initial appearance, which is commonly referred to as a 72-hour hearing. During the 72-hour hearing, Commissioner Frederick will ask the arrestee whether the name, address, and date of birth are correctly listed on the arrest paperwork, advise the arrestee of the charges against him and his conditions of release, and appoint counsel if the arrestee is found to be indigent. The plaintiff alleges that Sheriff Garber’s employees are present and aware that an arrestee’s inability to pay a certain bail amount will not be considered during the 72-hour hearing.
According to the complaint, after the 72-hour hearing, an arrestee can only modify his bail amount by filing a motion to seek a bail reduction, which must be heard by either the assigned judge if the arrestee has been formally charged by the
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district attorney, or by the judge on duty if the arrestee has not been formally charged by the district attorney. Therefore, the plaintiff alleges that Sheriff Garber detains arrestees solely because they are unable to pay for their release.
Based on these allegations, the plaintiff contends that the bail procedure is a violation of his fundamental right to pretrial liberty because his detention is based solely on his inability to pay his set bail amount and the defendants do not inquire into his ability to pay or non-financial alternative conditions until a motion to reduce bail is filed. As a result, the plaintiff seeks the following relief on behalf of himself and all others similarly situated: (1) an injunction to enjoin the defendants from using money bail to detain any person without procedures that ensure an inquiry into and findings concerning the person’s ability to pay any monetary amount set and nonfinancial alternative conditions of release; (2) a declaratory judgment that the defendants violate the plaintiff’s rights by setting secured financial conditions of release without inquiring into or making findings as to whether arrestees can pay the amounts set and without considering non-financial alternative conditions of release; and (3) an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
Sheriff Garber contends that the plaintiff’s complaint should be dismissed pursuant to Rule 12(b)(1) because: (1) the plaintiff’s claims are moot because he was
4

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subsequently released from jail after he paid his original bail amount; and (2) the Court should apply the Younger abstention doctrine and refrain from exercising jurisdiction. In the alternative, Sheriff Garber contends that the plaintiff’s claims against him should be dismissed pursuant to Rule 12(b)(6) because: (1) a sheriff does not have authority under Louisiana law to set an arrestee’s bail; and (2) a sheriff does not have the authority to alter an arrestee’s bail or release an arrestee contrary to the terms of a court order.
LAW AND ANALYSIS I. THE STANDARD FOR ANALYZING A RULE 12(b)(1) MOTION TO DISMISS
A motion filed under Fed. R. Civ. P. 12(b)(1) challenges the court’s subject matter jurisdiction.2 “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”3 This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice.4
“[A] motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of

2

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

3

Id.

4

Id.

5

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his claim that would entitle plaintiff to relief.”5 In evaluating a Rule 12(b)(1) motion, the court may examine “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”6 In response to a Rule 12(b)(1) motion, the party asserting jurisdiction has the burden of proving that jurisdiction is proper.7 Accordingly, the plaintiff bears the burden of proof that jurisdiction does in fact exist.
a. Mootness Article III of the Constitution limits the jurisdiction of the judiciary to “cases” or “controversies.” In order to have standing to assert federal jurisdiction, a plaintiff “must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.”8 Mootness is “the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence

5

Id., at 161.

6

Id.

7

Id.

8

Center for Biological Diversity v. BP America Production Co., 704 F.3d 413, 424 (5th

Cir. 2013) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)).

6

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(mootness).”9 “Generally, any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.”10
The Supreme Court has established an exception to the mootness doctrine for class action lawsuits. In Sosna v. Iowa, the court held that claims asserted in a class action are not considered moot when the class representative’s claim becomes moot after class certification.11 However, the Court also recognized that, depending on the circumstances, there may be cases where this exception also applies when a named plaintiff’s claim becomes moot before a district court can reasonably be expected to rule on a certification motion.12 The Sosna exception has been interpreted to apply to controversies so transitory that no single named plaintiff can maintain a justifiable claim long enough to reach the class certification stage of the litigation.13 When the Sosna exception applies, a plaintiff will meet the standing requirement under the relation back doctrine if the plaintiff had standing when the suit was filed.14

9

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006) (citing

United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)).

10

Id.

11 Sosna v. Iowa, 419 U.S. 393 (1975). 12 Id., at 402, n.11.

13 Zeidman v. J. Ray McDermott, 651 F.2d 1030, 1050 (5th Cir. 1981). See also, Gerstein v. Pugh, 420 U.S. 103, 110, n. 11 (1975).
14 Sosna, 419 U.S. at 402, n. 11.

7

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In Gerstein v. Pugh, the court addressed whether the Sosna exception applied to a class action filed by prisoners challenging the constitutionality of their pretrial detention. The Court recognized that "pretrial detention is by nature temporary and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. . . It is by no means certain that any given individual, named as a plaintiff, would be in pretrial custody long enough for a district judge to certify the class.”15 Therefore, the court concluded that suitable circumstances existed to apply the Sosna exception so that the claims asserted by the named plaintiffs were not moot even though a class action was not certified at the time their status as pretrial detainees ended.
Sheriff Garber acknowledges the Sosna exception, but argues that it should not apply because: (1) the plaintiff was released from jail five days after this lawsuit was filed when he posted his bail at the amount that was originally set; and (2) his own actions kept him in jail when he decided to pay the $400 filing fee to file this lawsuit instead of paying $375 to a bail agent to be released.
The plaintiff was not released from jail until after he filed the complaint in this suit and a motion to certify a class action. Even though the court has not ruled on the plaintiff’s pending class certification motion, the nature of pretrial detention,
15 Gerstein v. Pugh, 420 U.S. at 110, n. 11. 8

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especially in this case where bail was set, is intended to be short term. The plaintiff cannot be expected to maintain his status in jail until this litigation is complete. This case presents the “suitable circumstances” where the “relation back” doctrine should be applied. Furthermore, the factual determination of whether the plaintiff had the ability to pay his monetary bail amount when this suit was filed is an issue directed at the merits of his claim and not an issue of standing. Therefore, this Court finds that the claims asserted in this lawsuit are not moot.
b. The Younger Abstention Doctrine In Younger v. Harris, the Supreme Court established that federal courts must refrain from considering requests for injunctive relief based on constitutional challenges to ongoing state criminal proceedings.16 The Younger abstention doctrine requires that federal courts decline to exercise jurisdiction over a state criminal defendant’s claims when three conditions are met: “(1) the federal proceeding would interfere with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges.”17
16 Texas Ass’n of Business v. Earle, 388 F.3d 515, 518 (5th Cir. 2004) (citing Younger v. Harris, 401 U.S. 37, 91 (1971)).
17 Bice v. Louisiana Public Defender Bd. 677 F.3d 712, 717 (5th Cir. 2012). 9

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In Gerstein v. Pugh, the Supreme Court also addressed whether the Younger abstention doctrine applies. The court held that Younger abstention did not apply because the injunction that the plaintiffs sought “was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of their criminal prosecutions. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.”18
The plaintiff challenges whether his pretrial detention is a violation of his constitutional rights when the basis for his continued detention is his inability to pay his monetary bail amount and he does not have an adequate opportunity to challenge the amount of bail until a motion to reduce bail is filed and heard. Based on these allegations, the plaintiff seeks an injunction to enjoin the defendants from using monetary bail to detain an arrestee without a procedure that inquires into an arrestee’s ability to pay. The plaintiff’s allegations, like those in Gerstein, do not present an issue directed at the merits of his criminal prosecution in state court. Instead, the plaintiff is challenging whether his pretrial detention is a violation of his constitutional rights. Therefore, the Younger abstention does not apply to this case.
18 Gerstein v. Pugh, 420 U.S. at 108, n.9. 10

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Furthermore, even if the holding in Gerstein is not controlling over this case, the third requirement for the application of the Younger abstention is not met. Specifically, the plaintiff does not have an adequate opportunity to raise his constitutional challenges in state court. “The operation of the Younger doctrine is dependent upon the ability of the state court to provide an adequate remedy for the violation of federal rights.”19
The defendants contend that the plaintiff has an adequate state court remedy because he can file a motion to reduce bail. However, the plaintiff does not allege that he is unable to file a motion to reduce his bail amount. Rather, he asserts that the time period it takes for the defendants to consider his ability to pay a certain monetary bail amount is a violation of his constitutional rights because he remains detained solely due to his inability to pay the bail amount. Even though the plaintiff can file a motion to reduce bail to challenge the bail set by the defendants, a ruling on the motion to reduce bail would not address the constitutional challenges that the plaintiff asserts in this lawsuit. Accordingly, Younger abstention does not apply to this case.
19 Bice v. Louisiana Public Defender Bd. 677 F.3d at 718 (citing DeSpain v. Johnson,
731 F.2d 1171, 1178 (5th Cir. 1984)).
11

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Finding that the claims are not moot and that Younger abstention is not applicable, this Court recommends that the motion to dismiss under Rule 12(b)(1) be denied. 2. THE STANDARD FOR ANALYZING A RULE 12(B)(6) MOTION TO DISMISS
To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”20 The allegations must be sufficient “to raise a right to relief above the speculative level,”21 and the pleading must contain more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.22 “While a complaint . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”23 If the plaintiff fails to allege facts sufficient to “nudge[] [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.”24
20 Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). 21 Bell Atlantic v. Twombly, 550 U.S. at 555. 22 Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004). 23 Id. (citations, quotation marks, and brackets omitted; emphasis added). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 Bell Atlantic v. Twombly, 550 U.S. at 570.
12

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When considering a Rule 12(b)(6) motion, a district court is generally required to limit itself to the contents of the pleadings, including any attachments thereto.25 The court must accept all well-pleaded facts as true, and it must view them in the light most favorable to the plaintiff.26 Conclusory allegations and unwarranted deductions of fact are not accepted as true,27 and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”28
When considering a Rule 12(b)(6) motion, a court has complete discretion to consider documents other than the complaint29 if those documents are attached to the motion, referenced in the complaint, and central to the plaintiff's claims.30 If a court considers materials outside of the pleadings, the motion to dismiss must be treated as a motion for summary judgment,31 and the nonmovant must be afforded the
25 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). 26 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). 27 Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). 28 Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 29 Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 193 n. 3 (5th Cir. 1988); Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-15 (5th Cir. 1980). 30 In re Katrina Canal Breaches Litig., 495 F.3d at 205; Collins v. Morgan Stanley, 224 F.3d at 498–99. 31 Fed. R. Civ. P. 12(d).
13

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procedural safeguards of Fed. R. Civ. P. 56.32 However, the parties’ submission of extraneous materials does not automatically convert a Rule 12(b)(6) motion for summary judgment.33
During oral argument, the policy of the Fifteenth Judicial District Court regarding bail bonds (“15th JDC Policy”) was introduced as an exhibit,and the parties agreed that the court could consider the policy in the context of the present motion.34 Since the 15th JDC Policy is central to the plaintiff’s claims, this Court finds that consideration of the exhibit setting forth the policy in writing, which was agreed to by the parties, does not convert the motion to dismiss into one for summary judgment.
According to the 15th JDC Policy, all arrestees charged with a misdemeanor will be released on a summons without the requirement of posting bond if they are charged with a traffic offense or one of the other thirty-eight misdemeanors that are listed in the policy. However, the 15th JDC Policy provides that an arrestee charged with domestic abuse battery will not be released on a summons because it is prohibited by statute, and an arrestee charged with driving under the influence will
32 Fernandez–Montes v. Allied Pilots Ass'n, 987 F.2d 278, 283 (5th Cir. 1993); Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990).
33 United States ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 275 (5th Cir. 2015); Davis v. Bayless, 70 F.3d 367, 372, n. 3 (5th Cir. 1995).
34 Rec. Docs. 56, 57 pp.14-15. 14

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be released if the arrestee meets the qualifications for the Sheriff Offender Tracking Program (“STOP”). Further, “non-summons misdemeanors may also qualify for release on the signature (personal surety) of a qualified friend or family member who can establish residential stability and employment.”35
The 15th JDC Policy further states that the bond for an arrestee charged with a felony “will be set initially based on the facts set forth in the probable cause for arrest affidavit, including the arrestee’s age, local vs. no local address, the circumstances of the offense, and the information on the arrestee’s rap sheet including prior warrants for failure to appear.”36 Bonds are set two to three times each day via phone or email. However, if the arrestee does not bond out, is charged with a non-violent felony, and qualifies for STOP, he can be released without paying the set bail amount. If an arrestee meets the STOP requirements, the arrestee will be released pursuant to a court order that conditions his release upon satisfactory participation in the program. A felony arrestee may also be released on a signature (personal surety) bond. If an arrestee has not been released, then “an arrestee will be provided an individualized
35 Rec. Doc. 56-1, p. 2. 36 Id. (Emphasis added).
15

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bail determination within 24 hours of arrest, if practical, but in no event later than the next available 72-hour hearing after arrest.”37
Indigent defendants are assigned counsel at the 72-hour hearing. Thereafter, if bond has not been reduced, counsel may put the individual on a weekly bond reduction duty docket, during which counsel for both parties will try to reach an agreement on a reduced bond amount. If no agreement can be reached, the case will be placed on the bond reduction docket of the judge assigned to the case who will hold a bond reduction hearing with evidence and argument.38 III. SECTION 1983 CLAIM AGAINST SHERIFF GARBER
In Monell v. Department of Social Services, the United States Supreme Court held that municipalities are not vicariously liable for constitutional violations committed by their employees, but they are liable when their official policies cause their employees to violate another person's constitutional rights.39 The Sheriff contends that the plaintiff’s complaint fails to state a claim against him because he does not have the authority to set or reduce bail, which is the moving force for the plaintiff’s alleged constitutional violation. In opposition, the plaintiff asserts that
37 Rec. Doc. 56-1, p. 3. 38 Rec. Doc. 56-1, p. 3. 39 Monell v. Department of Social Services of City of New York, 436 U.S. 658, 692 (1978). See, also, Jones v. Lowndes County, Miss., 678 F.3d 344, 349 (5th Cir. 2012).
16

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Sheriff Garber is a proper party regardless of his authority to set or reduce bail because: (1) Sheriff Garber is a state actor to whom Monell does not apply when he enforces judicial orders that he has no authority to modify or decline, and he is subject to prospective relief in that capacity; or (2) Sheriff Garber can be enjoined under Monell because he knowingly enforces invalid orders of detention and has some discretion under state law to decline to enforce them.
In the plaintiff’s complaint, Sheriff Garber is named only in his official capacity as the sheriff of Lafayette Parish. A Section 1983 claim against a Louisiana sheriff in his official capacity or against a Sheriff’s Office “is ‘in essence’ a suit against a municipality.”40 Accordingly, the plaintiff’s claims against Sheriff Garber are claims against the Lafayette Parish Sheriff’s Office and claims against a municipality.41 Although the plaintiff argues that Monell does not apply when the sheriff enforces a judicial order over which he has no discretion, there is no claim in the plaintiff’s complaint separate and apart from the claim against the sheriff in his
40 Brown v. Strain, 663 F.3d 245, 251 (5th Cir. 2011) (citing Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005)); Williams v. Gusman, No. 15-64, 2015 WL 4509762, at *2 (E.D. La. July 24, 2015).
41 A similar issue was addressed in Cain v. City of New Orleans, 2016 WL 2849498 (E.D. La. 2016), where the court held that a Louisiana sheriff was a municipal actor and subject to Monell’s standard of liability.
17

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official capacity and, therefore, as a municipality. Thus, Monell applies to the plaintiff’s claims.
“To establish municipal liability under 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.”42 An official policy is (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the government entity or by an official to whom the entity has delegated policy-making authority, or (2) a persistent, widespread practice of officials or employees which although not authorized by officially adopted and promulgated policy is so common and well settled as to constitute a custom that fairly represents the entity’s policy.43 If the plaintiff shows that the policy was promulgated by the municipality’s policymaker, then the plaintiff must establish that the policy was the moving force behind the violation which “means there must be a direct causal link between the policy and the violation.”44
Title VIII of the Louisiana Code of Criminal Procedure governs the issue of bail. In the context of this case, Article 313 specifically vests only district courts and
42 Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017). 43 Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 289 (5th Cir. 2002). 44 Peterson v. City of Fort Worth, 588 F.3d 838, 848 (5th Cir. 2009).
18

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their commissioners having criminal jurisdiction to fix bail “in all cases.” The law
does not authorize a sheriff to fix bail in any case at all. Secondly, Article 315 specifically authorizes a bail schedule such as that employed by the 15th JDC in this
case. Paragraph B of that article states, in pertinent part:
The court order setting the bail schedule shall fix the amount of bail for each offense listed, designate the officer or officers authorized to accept the bail, and order that bail be taken in conformity with the schedule . . . . A copy of the schedule shall be sent to all jails, sheriff’s offices, and police stations within the judicial district, parish, or city.
If the schedule is the manner in which bail is set for a particular arrestee, or if bail is set on an individualized basis as set forth in the 15th JDC Policy, the sheriff is
obliged to follow that court order under Article 328, which states the following, in
pertinent part:
A. The bail undertaking shall: (1) Be in writing; (2) State the court before which the defendant is bound to appear. (3) Be entered into before an officer who is authorized to take it. (4) State a single amount of bail for each charge. B. The bail undertaking shall be enforceable if the above requirements are met . . .45
Given these statements of the law, the plaintiff’s allegations do not establish
that Sheriff Garber’s policy is the moving force for the alleged constitutional
violations. The plaintiff does not allege that Sheriff Garber has the authority to
45 See also La. C. Cr. Pro. 314 (B). 19

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release an arrestee when his bail obligations are not satisfied. Nor does the plaintiff allege that Sheriff Garber has the authority to set or modify bail. Under Louisiana law, a sheriff is the keeper of the jail in his parish and shall “preserve the peace and apprehend public offenders.”46 Sheriff Garber, as the keeper of the jail, enforces the monetary bail amounts that are set by court orders. Under state law, Sheriff Garber has no authority to modify or decline to enforce court orders as the plaintiff would have this Court authorize. Therefore, Sheriff Garber’s policy is not the moving force for the plaintiff’s alleged constitutional violations.
This Court finds that the plaintiff has failed to state a claim against Sheriff Garber and recommends that the plaintiff’s claims against Sheriff Garber be dismissed.
CONCLUSION Based on the foregoing reasons, it is recommended that Sheriff Garber’s motion to dismiss (Rec. Doc. 18) should be granted in part and denied in part. The motion should be denied to the extent that Sheriff Garber seeks dismissal pursuant to Rule 12(b)(1). The motion should granted to the extent that Sheriff Garber seeks dismissal pursuant to Rule 12(b)(6).
46 La. R.S. 13:5539. 20

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Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen days after being served with of a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglas v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Signed at Lafayette, Louisiana, this 11th day of December 2017.
_______________________________ PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
21

 </s> Case 6:17-cv-00724-TAD-PJH Document 81 Filed 03/08/18 Page 1 of 14 PageID #: 529

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE VERSUS THOMAS FREDERICK, ET AL.

CIVIL ACTION NO. 6:17-CV-00724 JUDGE FOOTE MAGISTRATE JUDGE HANNA

MEMORANDUM RULING Pending before the Court is Defendants’, Judge Kristian Earles (“Judge Earles”) and Commissioner Thomas Frederick (“Commissioner Frederick”) (collectively, “Defendants”), Motion to Dismiss [Record Document 26], which seeks complete dismissal of Plaintiff's action against them.1 The Magistrate Judge held oral argument on the motion and issued a Report and Recommendation [Record Document 58], which recommends that Plaintiff's equal protection claim be dismissed and that Plaintiff’s due process claim be dismissed as to Judge Earles. The Report and Recommendation is ADOPTED IN PART and REJECTED IN PART. The Court adopts the Report and Recommendation only to the extent that it recommends that Defendants’ motion be denied as to Plaintiff’s due process claim against Commissioner Frederick. For the reasons announced below, this Court finds that Defendant’s motion should be DENIED in its entirety.

1The Sheriff of Lafayette Parish, Mark Garber, is also a defendant in this suit. He has filed his own Motion to Dismiss [Record Document 18], which is the subject of a separate Report and Recommendation [Record Document 59].
Page 1 of 14

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BACKGROUND In his complaint, Plaintiff alleges that the 15th Judicial District Court of Louisiana (“15th JDC”), which covers Lafayette, Vermilion, and Acadia Parishes, utilizes a bail system that fails to consider an individual’s financial condition or ability to pay a bail amount. The 15th JDC utilizes a money bail schedule created by Judge Earles that considers only the crime with which the arrestee is charged. Generally, when an individual is arrested with a warrant for an offense covered in the schedule, the Sheriff will release him only if he can pay the amount of money required by the schedule. When an arrestee is arrested on a warrant for an offense not covered by the schedule, bail is set by Commissioner Frederick when he approves the warrant. Record Document 1, p. 6. When a person is arrested without a warrant for an offense not covered by the schedule, bail is set by Commissioner Frederick during a telephone call after he determines whether there is probable cause to support the arrest. Commissioner Frederick makes the bail determination without any inquiry into the arrestee’s financial condition and with no consideration of alternative non-financial conditions of release. Plaintiff alleges that if an arrestee is not released, he appears before Commissioner Frederick for his initial appearance, which is commonly referred to as a 72-hour hearing. These hearings are conducted by video-link between the courthouse and the jail and are held on Tuesdays and Fridays. At the hearing, an arrestee will be called to stand in front of a camera and address Commissioner Frederick. Commissioner Frederick will ask the arrestee to confirm that his name, address, and date of birth are correctly listed on the
Page 2 of 14

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arrest paperwork, advise the arrestee of the charges against him, inform the arrestee of his conditions of release, and appoint an attorney if the arrestee cannot afford one. According to the complaint, although state law allows Commissioner Frederick to review a prior bail determination at the 72-hour hearing, it is his policy and practice to refuse to address conditions of release at the hearing. Instead, when arrestees attempt to explain that they cannot afford their secured financial conditions of release, they are told to “read the sheet,” “take it up with your lawyer,” or are simply ignored altogether. Record Document 1, p. 9. If an arrestee wishes to modify his conditions of release, he must file a motion seeking bail reduction. This motion will be heard either by the assigned district judge if the arrestee has been formally charged by the district attorney, or by the judge on duty if the arrestee has not been formally charged. Id. at 9-10. In either case, having the motion heard by the court “can typically take a week or more.” Id. at 10. During that waiting period, the arrestee remains confined.
During oral argument, the Policy of the Fifteenth Judicial District Court Regarding Bail Bonds (“15th JDC Policy”) [Record Document 56-1] was introduced as an exhibit and the parties agreed that the policy could be considered in ruling on the motions to dismiss. Record Document 57, pp. 14-15. Defendants represented that the policy was not new, but had previously been the policy of the 15th JDC; it was simply put into writing. Id. at 14. Plaintiff’s position was that the 15th JDC Policy does nothing to resolve the constitutional claims because the policy document reflects the same concerns alleged in his Complaint, at least with regard to setting of bail for persons arrested for felonies.
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The 15th JDC Policy states that, with few exceptions, all arrestees charged with a misdemeanor will be released on a summons without posting bond if charged with a traffic offense or one of the other thirty-eight listed misdemeanors. For the misdemeanors not listed, bond is set in the same manner as for felony arrests. The policy further provides that felony bonds are “set initially based on facts set forth in the probable cause for arrest affidavit, including [the] arrestee’s age, local vs no local address, circumstances of the offense and the information on an arrestee’s rap sheet including prior warrants for failure to appear.” Record Document 56-1, p. 2. Bonds are set two to three times each day via phone or email. If the arrestee does not bond out and is charged with a non-violent offense, he may qualify for the Sheriff Offender Tracking Program (“STOP”). If an arrestee is released by court authority through STOP, his release is conditioned on satisfactory participation in the program. A felony arrestee may also be released on a signature bond (personal surety). If an arrestee is not released through one of these methods, he “will be provided an individualized bail determination within twenty-four (24) hours of arrest, if practical, but in no event later than the next available seventy-two (72) hour hearing after arrest.”2 After the 72-hour hearing, an arrestee’s counsel “may put them on a weekly bond reduction duty docket” where counsel for the arrestee and the State will attempt to reach an agreement on a reduced bond amount. If no agreement is reached, “the arrestee may be placed on a bond reduction docket with the judge assigned to their case for the
2Plaintiff alleges that, as a practical matter, an individualized bail determination does not occur at the 72-hour hearing, and at no time prior to or at the 72-hour hearing is consideration given to an arrestee’s ability to afford bail or non-financial alternative conditions of release.
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presentation of evidence and argument.” Id. at 3. Plaintiff alleges that this system as implemented by the 15th JDC results in the
jailing of individuals who are otherwise eligible for release for no other reason than their poverty. Accordingly, Plaintiff filed this suit seeking: (1) “[a]n order and judgment preliminarily and permanently enjoining the Defendants from using money bail to detain any person without procedures that ensure an inquiry into and findings concerning the person’s ability to pay any monetary amount set and without an inquiry into and findings concerning non-financial alternative conditions of release”; (2) a “declaratory judgment that the Defendants violate Plaintiff’s constitutional rights by setting secured financial conditions of release without inquiring into or making findings as to whether arrestees can pay the amounts set, and without considering non-financial alternative conditions of release”; and (3) an order granting attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Record Document 1, pp. 15-16.
As noted in the Report and Recommendation, Defendants style their motion as a Rule 12(b)(1) motion to dismiss based on lack of subject matter jurisdiction, but the motion itself does not explain its grounds, and the memorandum in support contains arguments attacking the merits of Plaintiff’s claims. Specifically, Defendants argue that there is no absolute right to bail and no constitutional right to speedy bail. Defendants further claim that bond schedules are not inherently unconstitutional. Accordingly, this Court agrees with the Report and Recommendation that Defendants’ motion is more appropriately considered as one under Rule 12(b)(6) for failure to state a claim.
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STANDARD In order to survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court must accept as true all of the factual allegations in the complaint in determining whether plaintiff has stated a plausible claim. See Twombly, 550 U.S. 544, 555 (2007); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). However, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944, 92 L. Ed. 2d 209 (1986).
LAW & ANALYSIS In order to successfully state a claim under 42 U.S.C. § 1983, a plaintiff must: “(1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Tex. Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008)). Here, Plaintiff alleges that Defendants infringe his fundamental right to pretrial liberty in violation of the Fourteenth Amendment due process and equal protection clauses by keeping him in jail because he cannot afford to pay a monetary bail amount set without inquiry into and findings concerning ability to
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Case 6:17-cv-00724-TAD-PJH Document 81 Filed 03/08/18 Page 7 of 14 PageID #: 535
pay or non-financial alternative conditions. Record Document 1, p. 15. 1. ODonnell v. Harris County, Texas Since the filing of Defendants’ motion and the Report and Recommendation of the
Magistrate Judge, the Fifth Circuit decided the case of ODonnell v. Harris Cty., Texas, No. 17-20333, 2018 WL 851776 (5th Cir. Feb. 14, 2018), which, as the parties are certainly aware, dealt with similar issues. In ODonnell, ODonnell and other plaintiffs (collectively, “ODonnell”) brought a class action under 42 U.S.C. § 1983 against Harris County, Texas, and a number of its officials (collectively, the “county”). ODonnell alleged the county’s system for setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the equal protection and due process clauses of the Fourteenth Amendment. The district court entered a preliminary injunction against the county and its officials, and they, in turn, appealed. The Fifth Circuit affirmed a majority of the district court’s rulings, including its conclusion that the county’s bail system violates both equal protection and due process.
By law, in Harris County, when a misdemeanor defendant is arrested, the prosecutor submits a secured bail amount according to a bond schedule. Bonds are then formally set in the first instance by hearing officers, usually at an initial probable cause hearing within 24 hours. County judges then review the hearing officers’ determinations and can adjust bail amounts at a “Next Business Day” hearing. Id. at *2. The ODonnell district court found that, in practice, the county’s procedures did not achieve any individualized assessment in setting bail. Instead, the probable cause hearing was often not conducted within 24 hours,
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sometimes lasted only seconds, and arrestees were not given an opportunity to submit evidence related to their ability to post bond. Overall, county officials imposed the scheduled bail amounts on a secured basis approximately ninety percent of the time. Similarly, the district court found that the “Next Business Day” hearing before the county judge failed to provide meaningful review of the hearing officer’s bail determination. Arrestees were routinely required to wait days for their “Next Business Day” hearing, and bail was rarely adjusted. Id.
The district court found that the county’s bail-setting procedures violated the equal protection clause because “they treat otherwise similarly-situated misdemeanor arrestees differently based solely on their relative wealth,” and the Fifth Circuit agreed. Id. at *8. In doing so, the Fifth Circuit found that the county’s customs and practices “resulted in detainment solely due to a person's indigency because the financial conditions for release are based on predetermined amounts beyond a person’s ability to pay and without any ‘meaningful consideration of other possible alternatives.’” Id. at *9 (citing Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978)). Applying intermediate scrutiny, the Fifth Circuit found no error in the district court’s conclusion that the county’s policy was not sufficiently tailored to meet its compelling interest in assuring a detainee’s future appearance and lawful behavior.
As to the due process claim, the Fifth Circuit found a state-created interest in that Texas law “creates a right to bail that appropriately weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance.” Id. at *6.
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The court noted that “when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order. Accordingly, such decisions must reflect a careful weighing of the individualized factors set forth by both the state Code of Criminal Procedure and Local Rules.” Id. It went on to agree that the county’s procedures were inadequate, but modified the district court’s findings regarding the specific procedures necessary to satisfy constitutional due process when setting bail. The district court previously found that due process required:
(1) notice that the financial and other resource information Pretrial Services officers collect is for the purpose of determining a misdemeanor arrestee’s eligibility for release or detention; (2) a hearing at which the arrestee has an opportunity to be heard and to present evidence; (3) an impartial decisionmaker; (4) a written statement by the factfinder as to the evidence relied on to find that a secured financial condition is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial; and (5) timely proceedings within 24 hours of arrest. Id. at *7. The Fifth Circuit made two alterations to these conclusions: (1) it rejected the requirement that a factfinder issue a written statement of reasons for imposing secured financial conditions of release and instead found that requiring the factfinder to specifically enunciate “individualized, case-specific reasons” is sufficient; and (2) it rejected the 24-hour requirement as too strict and instead found that federal due process entitles detainees to a hearing within 48 hours. Id. at *8. Nevertheless, the court affirmed that the county’s procedures violate due process. 2. Equal Protection In this case, Plaintiff argues that the Defendants’ bail-setting policies violate the equal protection clause because they act to detain arrestees based solely on indigence.
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Plaintiff alleges that bail is set in the 15th JDC without consideration of an individual’s ability to pay or non-financial alternative conditions of release and, as a result, two arrestees who have been arrested for the same conduct and who are identical in every way except for financial means would find themselves in two different situations: the arrestee with money would be free by virtue of his ability to pay the money bail, while the arrestee without would remain in jail. In ODonnell, the Fifth Circuit found that Harris County’s system, which operated to have the same effect, violated the equal protection clause. See ODonnell, 2018 WL 851776, at *10. Furthermore, the Fifth Circuit has previously found that “[t]he incarceration of those who cannot [afford money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Rainwater, 572 F.2d at 1057. Accordingly, Plaintiff has sufficiently stated a claim based on a violation of his equal protection rights and Defendants’ Motion to Dismiss is DENIED as to this claim.
3. Due Process A procedural due process claim requires a two-step analysis: “first a court must determine whether the plaintiff has a protected liberty or property interest and then the court must determine whether the state has provided adequate procedures for the vindication of that interest.” Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016), as revised (June 27, 2016) (citing Wilkinson v. Austin, 545 U.S. 209, 213, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005)). A liberty interest protected by the due process clause can arise from either the due process clause itself or from state law. ODonnell, 2018 WL 851776, at *6 (citing
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Case 6:17-cv-00724-TAD-PJH Document 81 Filed 03/08/18 Page 11 of 14 PageID #: 539
Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)).
Plaintiff asserts the right to pretrial liberty and claims that Defendants violate this right by keeping an arrestee in jail simply because he cannot afford a particular monetary bail amount. Plaintiff further alleges that an arrestee is not provided with an individualized bail determination that takes into account his ability to pay and alternative non-financial conditions of release until a motion is heard before a judge of the 15th JDC, and this typically takes a week or more. He argues that both the Constitution and state law create a liberty interest in pretrial release that is not sufficiently protected by Defendants’ policies and procedures.
In support of his contention that the Constitution creates such an interest, Plaintiff cites United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), which involved a challenge to a provision of the Bail Reform Act of 1984 that allowed pretrial detention under certain circumstances. The Supreme Court ultimately rejected the challenge and found that the Act provided sufficient procedural safeguards, including a hearing with counsel at which the arrestee can present witnesses and proffer evidence, after which a judicial officer must find, by clear and convincing evidence, that no condition of pretrial release would reasonably assure the appearance of the arrestee and the safety of the community, and where such findings must be in writing. In making its decision, the Court was careful to clarify that it was not minimizing the “importance and fundamental nature” of the right to liberty. Salerno, 481 U.S. at 750. The Court concluded, “In our
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Case 6:17-cv-00724-TAD-PJH Document 81 Filed 03/08/18 Page 12 of 14 PageID #: 540
society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception.” Id. at 755.
As for a state-created liberty interest, this Court agrees with the Report and Recommendation that the Louisiana Constitution generally creates a right to bail on “sufficient surety.” See La. Const. Art. 1, § 18. Louisiana Code of Criminal Procedure article 316 further provides that “[t]he amount of bail shall be fixed in an amount that will ensure the presence of the defendant, as required, and the safety of any other person and the community, having regard to,” among other factors, “[t]he ability of the defendant to give bail.”
Having found a liberty interest, whether pursuant to the Due Process Clause itself or through state law, it must then be determined whether the procedures in place are sufficient to protect the liberty interest. Here, Plaintiff claims that an individualized bail determination that considers an arrestees indigence does not occur until a motion is heard by a judge, and that this process typically takes a week or more. Because, prior to this hearing, an indigent arrestee is subject to a secured bail that he cannot afford, he is effectively under a pretrial order of detention and remains subject to that order without the procedural safeguards found sufficient in Salerno.3 Here, as in ODonnell, Plaintiff challenges both (1) the delay before any judicial officer allows an arrestee the opportunity
3This Court is mindful of the Fifth Circuit’s recognition that “when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order.” ODonnell, 2018 WL 851776, at *6.
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to raise inability to pay money bail, and (2) the refusal by judicial officers to consider nonfinancial conditions of release. See ODonnell v. Harris Cty., Texas, 227 F. Supp. 3d 706, 732 (S.D. Tex. 2016), aff’d in part, rev’d in part, No. 17-20333, 2018 WL 851776 (5th Cir. Feb. 14, 2018). In ODonnell, the Fifth Circuit upheld the district court’s finding that due process requires an impartial decision-maker and a hearing at which the arrestee has an opportunity to be heard and present evidence. In modifying the requirements for what it characterized as the “procedural floor,” the court further concluded that federal due process entitles detainees to a hearing within 48 hours. Based on these findings of the Fifth Circuit and Plaintiff’s allegations, this Court finds that Plaintiff has sufficiently stated a claim based on a violation of due process. Accordingly, Defendants’ Motion to Dismiss is DENIED as to Plaintiff’s due process claim.4
CONCLUSION For the foregoing reasons, the Court adopts the Report and Recommendation of the Magistrate Judge [Record Document 58] only to the extent that it recommends that Defendants’ motion be denied as to Plaintiff’s due process claim against Commissioner Frederick. The Court ORDERS that Defendants’ Motion to Dismiss [Record Document 26]
4While the Report and Recommendation distinguished Judge Earles from Commissioner Frederick in making a recommendation on Plaintiff’s due process claim, based on Plaintiff’s allegations, this Court does not find such defendant-specific analysis to be necessary. Nonetheless, the Court would make two observations: First, Defendants argued collectively for dismissal of Plaintiff’s claims and did not make arguments distinct to either Commissioner Frederick or Judge Earles. Second, the Report and Recommendation recommended dismissing the due process claim against Judge Earles because it found that the 15th JDC Policy contained sufficient procedural safeguards, including an individualized bail determination within 72 hours. However, in ODonnell, the Fifth Circuit found that “the federal due process right entitles detainees to a hearing within 48 hours.” ODonnell, 2018 WL 851776, at *8.
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Case 6:17-cv-00724-TAD-PJH Document 81 Filed 03/08/18 Page 14 of 14 PageID #: 542 be DENIED in its entirety. THUS DONE AND SIGNED in Shreveport, Louisiana, this 8th day of March, 2018.
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 </s> Case 6:17-cv-00724-TAD-PJH Document 83 Filed 03/09/18 Page 1 of 5 PageID #: 545

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

)

EDWARD LITTLE, on behalf of himself and )

all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

COMMISSIONER THOMAS FREDERICK, )

in his judicial capacity as Commissioner of )

the 15th Judicial District of Louisiana; CHIEF )

JUDGE KRISTIAN EARLES, in his official )

capacity as Chief Judge of the 15th Judicial )

District of Louisiana; and SHERIFF MARK )

GARBER, in his official capacity as Sheriff )

of Lafayette Parish, Louisiana,

)

)

Defendants.

)

)

)

Case No. 6:17-cv-724-EEF-PJH (Class Action)
Judge Elizabeth Foote Magistrate Patrick Hanna

FIRST SUPPLEMENTAL CLASS ACTION COMPLAINT

Plaintiff Edward Little brings this First Supplemental Complaint, on behalf of himself

and all others similarly situated, to allege that the following material facts have arisen since the

filing of Plaintiff Little’s original Complaint on June 5, 2017.

1. Plaintiffs incorporate, by reference, paragraphs 1–64 of the Complaint. (Doc. 1.);

Fed R. Civ. P. 10(b)–(c).

The Sheriff’s Tracking Offender Program (S.T.O.P.)

2. Defendant Mark Garber, in his capacity as Lafayette Parish Sheriff, operates

several diversion programs to which detainees—both pretrial and sentenced—in the Lafayette

Parish Correctional Center (“the jail”) can apply. Through these programs, detainees may be

released from the jail and, as an alternative to being detained, be permitted to participate in

Case 6:17-cv-00724-TAD-PJH Document 83 Filed 03/09/18 Page 2 of 5 PageID #: 546
employment, treatment and other programs in the community, and also possibly to be subject to certain forms of house arrest and GPS monitoring.
3. The Sheriff also operates the Sheriff’s Tracking Offender Program (S.T.O.P.), which determines a detainee’s eligibility for these programs.
4. The Sheriff revised his Policies and Procedures governing the S.T.O.P. program on December 19, 2017, six months after Mr. Little filed his Complaint.
5. Pretrial detainees may apply for S.T.O.P. through computer kiosks located inside the jail.
6. There is no written policy requiring, and the Sheriff does not ensure, that pretrial detainees are informed of S.T.O.P.’s existence or how to apply for it when they are booked into the jail.
7. The diversion programs under the S.T.O.P. umbrella for which pretrial detainees can apply include: the Alternative Sentencing Program, the Outreach Program, and the Transitional Work Program. Some diversion programs entail release from the Sheriff’s custody. In other diversion programs, detainees participate while incarcerated in the jail, or from a lessrestrictive environment operated by the Sheriff.
8. The Sheriff’s staff interview and evaluate applicants to these programs using various assessment forms before selecting the programs within S.T.O.P. for which detainees might be eligible. A supervising Sheriff’s deputy then approves or denies a referral to the designated diversion program. Pretrial detainees cannot enter any of the S.T.O.P. diversion programs without the approval of the Sheriff’s staff.
9. Eligibility requirements for diversion programs include, but are not limited to, the ability to pay program fees.
2

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10. These fees include, but are not limited to, drug screening fees, GPS monitoring fees, fees for mandatory alcohol- and drug-treatment programs, and fees for telephone monitoring programs.
11. Admission to those diversion programs that allow for a pretrial detainee’s release from jail, such as the Alternative Sentencing Program or third-party rehabilitation providers, must be approved by both the supervising Sheriff’s deputy and a judge of the 15th Judicial District Court.
12. A judge of the 15th Judicial District Court cannot place a pretrial detainee in a S.T.O.P. diversion program without the referral and approval of the Sheriff.
13. If the Sheriff’s S.T.O.P. supervisor denies a pretrial detainee’s application for admission to a diversion program, there is no mechanism by which Commissioner Frederick, or any other judge of the 15th Judicial District Court, can review that decision.
14. In his role supervising the screening, selection, and approval for release of pretrial detainees through S.T.O.P. programs in Lafayette Parish, Sheriff Garber acts as a final policymaker for the Lafayette Parish Sheriff’s Office.
Commissioner Frederick’s Delegation of Authority for Pretrial Release 15. As a matter of policy, Commissioner Frederick refuses to consider ordering release on recognizance at the 72-hour hearing. Instead he sometimes advises detainees to apply to S.T.O.P. 16. In February 2018, eight months after Mr. Little filed his Complaint, an arrestee appeared before Commissioner Frederick for a 72-hour hearing via video link from the jail after being arrested on a misdemeanor charge. Commissioner Frederick informed the arrestee that a money-bail amount of $2,500 was required for his release.
3

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17. Upon being asked by the arrestee if release without a money bond was possible, Commissioner Frederick responded that he could apply to S.T.O.P.
18. The arrestee asked what S.T.O.P. was and Commissioner Frederick responded, “The ‘S’ in the S.T.O.P. program stands for ‘Sheriff.’ Ask them; it’s their program.”
19. As a matter of policy, Commissioner Frederick generally will not release someone without money bond unless the Sheriff approves the pretrial detainee for a S.T.O.P. diversion program.
20. In practice, therefore, Commissioner Frederick delegates authority for pretrial release to the Sheriff, who has the power to deny admission to his various diversion programs, without review by Commissioner Frederick or others, and whose approval is required for release into such diversion programs.
Request for Relief WHEREFORE, Plaintiffs and the other Class members request that this Court issue the relief previously requested in the original Complaint: a. An order and judgment preliminarily and permanently enjoining the Defendants from using money bail to detain any person without procedures that ensure an inquiry into and findings concerning the person’s ability to pay any monetary amount set and without an inquiry into and findings concerning non-financial alternative conditions of release; b. A declaratory judgment that the Defendants violate Plaintiffs’ constitutional rights by setting secured financial conditions of release without inquiring into or making findings as to whether arrestees can pay the amounts set, and without considering non-financial alternative conditions of release; c. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and d. Any other relief this Court deems just and proper.
4

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Respectfully submitted,
/s/ Eric Foley Katie M. Schwartzmann, La. Bar No. 30295 Eric A. Foley, La. Bar No. 34199 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119  (504) 620-2259 (p) (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org
/s/ William P. Quigley William P. Quigley, La. Bar No. 07769 7214 Saint Charles Ave Campus Box 902 New Orleans, LA 70118-3538 Phone: (504) 861-5590 Fax: (504) 861-5440 quigley77@gmail.com
/s/ Charles Gerstein Charles Gerstein D.C. Bar No. 1033346 (pro hac vice) Premal Dharia, D.C. Bar No. 484091 (pro hac vice) Civil Rights Corps 910 17th Street NW, Suite 200 Washington, DC 20006 charlie@civilrightscorps.org premal@civilrightscorps.org (202) 670-4809 Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of February, 2018, I caused a copy of the foregoing
document to be served on all parties by the Electronic Case Filing System for the United States
District Court for the Western District of Louisiana.
/s/ Eric Foley
5

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE

CASE NO. 6:17-CV-00724

VERSUS

JUDGE FOOTE

THOMAS FREDERICK ET AL

MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION

Currently pending is defendant Sheriff Mark Garber’s Motion to Dismiss the

First Supplemental Class Action Complaint and Re-urged Motion to Dismiss the

Original Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6).

[Rec. Doc. 89]. The plaintiff filed memoranda in opposition [Rec. Docs. 94, 101,

106], to which Sheriff Garber replied [Rec. Docs. 95, 104]. The motion was referred

to the undersigned for review, report, and recommendation, in accordance with the

provisions of 28 U.S.C. § 636 and the standing orders of this Court. Considering the

evidence, the law, and the arguments of the parties, and for the reasons fully

explained below, the undersigned recommends that the motion to dismiss be granted

in part and denied in part.

Procedural History

The undersigned previously issued a report and recommendation addressing

Sheriff Garber’s first motion to dismiss.1 The district court adopted the

1 See Rec. Doc. 59 (report and recommendation) addressing Rec. Doc. 18 (motion to dismiss).

Case 6:17-cv-00724-TAD-PJH Document 122 Filed 08/28/18 Page 2 of 31 PageID #: 839
recommendation insofar as it denied Sheriff Garber’s motion to dismiss under Rule 12(b)(1); however, citing a then-pending motion for leave to file a supplemental complaint, the district court rejected the undersigned’s recommendation that it grant Sheriff Garber’s motion to dismiss under Rule 12(b)(6).2 Given that granting the plaintiff leave to file a supplemental complaint would result in the district court considering additional allegations contained therein, Sheriff Garber’s Rule 12(b)(6) motion to dismiss was denied, with the right to re-urge, after the district court ruled on the motion for leave to supplement the complaint. Over Sheriff Garber’s opposition, the district court granted the motion; therefore, the facts below are based on the allegations contained in both the original and supplemental complaints.3
Background Facts In his original class action complaint, filed on June 5, 2017, plaintiff Edward Little alleges, on behalf of himself and all others similarly situated, that the Fifteenth Judicial District Court of Louisiana (“the 15th JDC”), through Commissioner Thomas Frederick, Chief Judge Kristian Earles, and Lafayette Parish Sheriff Mark Garber, utilizes a bail system that fails to consider an individual’s financial condition
2 See Rec. Doc. 79 (order adopting in part and rejecting in part this Court’s earlier Report and Recommendation); Rec. Doc. 76 (plaintiff’s motion for leave to file supplemental complaint). 3 See generally Rec. Docs. 1 (original class action complaint), 59 (previously-issued report and recommendation), 82 (order granting motion to amend the complaint), and 83 (first supplemental class action complaint). Because the facts, as alleged in the original complaint, were fully recited in the previously issued report and recommendation, those facts have been somewhat condensed herein.

Case 6:17-cv-00724-TAD-PJH Document 122 Filed 08/28/18 Page 3 of 31 PageID #: 840
or ability to pay a bail amount, resulting in those who can pay being released and those who cannot pay being detained.4 Plaintiff Little was arrested on June 3, 2017, two days prior to the commencement of this lawsuit, charged with felony theft, and detained at the Lafayette Parish Correctional Center (“LPCC”). Little’s bail was set at $3,000, and he was allegedly unable to pay a bond agent $375 to secure his release.
According to the original complaint, the 15th JDC utilizes Judge Earles’ money bail schedule, pursuant to which an arrestee’s bail amount depends on the charged offense and the circumstances of the arrest. Generally, an arrestee’s bail will initially be set based on Judge Earles’ bail schedule; however, when a person is arrested for an offense not covered by the bail schedule, Commissioner Frederick sets bail, the circumstances of which depend upon whether the arrest was made pursuant to an arrest warrant. For arrests made pursuant to an arrest warrant, supported by probable cause affidavit, Commissioner Frederick sets bail when he signs the arrest warrant; for arrests made without a warrant, bail is set by Commissioner Frederick during a telephone call after he determines whether the arrest is supported by probable cause.
Pursuant to the original complaint, it is alleged that Sheriff Garber implements a policy at LPCC, whereby an arrestee is only released when his monetary bail amount is paid, whether the amount is set by the bail schedule or by Commissioner
4 Louisiana’s Fifteenth Judicial District consists of Lafayette, Vermillion and Acadia Parishes.

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Frederick as a condition of release. Sheriff Garber’s employees do not consider an arrestee’s inability to pay a certain monetary bail amount.
If an arrestee is not released from LPCC, he will appear before Commissioner Frederick for an initial appearance, or “72-hour hearing,” during which Commissioner Frederick will confirm that the arrestee’s name, address, and date of birth are correctly listed on the arrest paperwork, advise the arrestee of the charges against him and his conditions of release, and appoint counsel if the arrestee is found to be indigent. Sheriff Garber’s employees are allegedly present and aware that an arrestee’s inability to pay a certain bail amount is not considered during the 72-hour hearing. Thereafter, an arrestee can only modify his bail amount by filing a motion to seek a bail reduction, which is heard by the assigned judge, if the arrestee has been formally charged by the district attorney, or by the duty judge if the arrestee has not been so charged. Therefore, the original complaint alleges that Sheriff Garber detains arrestees solely because they are unable to pay for their release.
Prior to issuing the report and recommendation on Sheriff Garber’s original motion to dismiss, the undersigned held oral argument on October 19, 2017, at which time the parties agreed to submit for consideration with the motion, the 15th JDC’s policy regarding bail bonds (“15th JDC Policy”).5 According to the 15th JDC Policy,
5 Rec. Doc. 56-1 (15th JDC Policy); Rec. Doc. 57, pp. 14-15 (transcript of oral argument); Rec. Doc. 59, pp. 14-15 (report and recommendation).

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all arrestees charged with a misdemeanor are released on a summons, without the requirement of posting bond, if charged with a traffic offense or one of the other thirty-eight misdemeanors listed therein. The 15th JDC Policy further provides that, by statute, an arrestee charged with domestic abuse battery will not be released on a summons, and an arrestee charged with driving under the influence may be released if the arrestee meets the qualifications for the Sheriff Offender Tracking Program (“STOP”).6 “[N]on-summons misdemeanors may also qualify for release on the signature (personal surety) of a qualified friend or family member who can establish residential stability and employment.”7
The 15th JDC Policy further states that the bond for an arrestee charged with a felony “will be set initially based on the facts set forth in the probable cause for arrest affidavit, including arrestee’s age, local vs no local address, circumstances of the offense, and the information on an arrestee’s rap sheet including prior warrants for failure to appear.”8 Bonds are “set two to three times each day via phone or email.”9 However, if the arrestee does not bond out, is charged with a non-violent felony, and qualifies for STOP, he may be released without paying the set bail
6 Rec. Doc. 56-1, p. 2. There is some discrepancy in the record as to whether the underlying program is called the “Sheriff Offender Tracking Program,” (Rec. Doc. 56-1), or the “Sheriff’s Tracking Offender Program, (Rec. Doc. 83, p. 2, ¶ 3). Regardless, there is no doubt that the parties are referring to one and the same program through the acronym “STOP.” 7 Rec. Doc. 56-1, p. 2. 8 Id. (emphasis added). 9 Id.

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amount, pursuant to a court order that conditions his release upon satisfactory participation in the program. A felony arrestee may also be released on a signature (personal surety) bond. If an arrestee has not been released, he will be provided an individualized bail determination within 24 hours of arrest, if practical, but in no event later than the next available 72-hour hearing after his arrest.10
As stated, indigent defendants are assigned counsel at the 72-hour hearing. Thereafter, if bond has not been reduced, counsel may put the individual on a weekly bond reduction duty docket, at which time counsel for both parties will try to reach an agreement on a reduced bond amount. If no agreement is reached, the case is placed on the bond reduction docket of the assigned judge, who will hold a bond reduction hearing with evidence and argument.11
Through the supplemental complaint, the plaintiff describes the details of STOP.12 The plaintiff alleges that, through the operation of STOP, Sheriff Garber determines the eligibility of both pretrial and sentenced detainees to participate in various diversion programs as alternatives to detention.13 Some diversion programs entail release from the sheriff’s custody; others allow detainees to participate while
10 Rec. Doc. 56-1, p. 3. 11 Rec. Doc. 56-1, p. 3. 12 It is alleged that, on December 19, 2017, six months after this lawsuit commenced, Sheriff Garber revised his policies and procedures governing STOP. Rec. Doc. 83, p. 2, ¶ 4; see also Rec. Doc. 76, p. 2. It is unclear how those revisions differ from the policies and procedures that were in place in connection with the 15th JDC Policy, considered in the report and recommendation issued on the sheriff’s original motion to dismiss, as discussed above. 13 Rec. Doc. 83, pp. 1-2, ¶¶ 2-3.

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incarcerated or in some other, less-restrictive environment within the sheriff’s custody.14
In the supplemental complaint, the plaintiff alleges that pretrial detainees may apply for STOP through computer kiosks inside the jail; however, there is no written policy requiring that pretrial detainees be informed of, or instructed regarding, STOP when they are booked into the jail.15 Using “various assessment forms,” Sheriff Garber’s staff interview and evaluate STOP applicants, decide which diversion programs are available to a particular detainee, and then submit a referral to a supervising sheriff’s deputy for approval or denial.16 Admission into those programs allowing release from jail require the approval of both a sheriff’s deputy as well as a 15th JDC judge.17 Eligibility requirements for diversion programs include, but are not limited to, the ability to pay program fees, such as those for drug screening, GPS or telephone monitoring, and substance abuse treatment.18
The supplemental complaint emphasizes that neither Commissioner Frederick nor any 15th JDC judge has the ability to place a detainee in a STOP diversion program without the referral and approval of Sheriff Garber.19 Furthermore, if a supervising sheriff’s deputy denies a detainee’s STOP application,
14 Rec. Doc. 83, p. 2, ¶ 7. 15 Rec. Doc. 83, p. 2, ¶¶ 5-6. 16 Rec. Doc. 83, p. 2, ¶ 8. 17 Rec. Doc. 83, p. 3, ¶ 11. 18 Rec. Doc. 83, pp. 2-3, ¶¶ 9-10. 19 Rec. Doc. 83, p. 3, ¶¶ 12-13.

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there is no mechanism by which the commissioner or any judge may review that decision.20 The plaintiff alleges that Commissioner Frederick regularly delegates authority for pretrial release to Sheriff Garber, generally declining to release someone without money bond unless the sheriff approves the detainee for STOP.21 Therefore, through STOP, Sheriff Garber “acts as a final policymaker” in the screening, selection and approval for release of pretrial detainees.22
Based on the allegations contained in the original and supplemental complaints, the plaintiff contends that the 15th JDC’s bail procedure is a violation of his fundamental right to pretrial liberty, in violation of the Fourteenth Amendment’s due process and equal protection clauses, because detention is based solely on an inability to pay the set bail amount, without inquiry into ability to pay or non-financial alternative conditions until a motion to reduce bail is filed. The plaintiff alleges that Sheriff Garber is a policymaker through his operation of STOP, by which he unconstitutionally detains people for their inability to pay a sum of money.23 The plaintiff seeks the following relief on behalf of himself and all other class members: (1) an injunction to enjoin the defendants from using money bail to detain any person without procedures that ensure an inquiry into and findings
20 Rec. Doc. 83, p. 3, ¶ 13. 21 Rec. Doc. 83, p. 4, ¶¶ 19-20. 22 Rec. Doc. 83, p. 3, ¶ 14. 23 The plaintiff explicitly states that the supplemental complaint neither alleges separate claims from those alleged in the original complaint nor does it allege that STOP itself is unconstitutional. Rec. Doc. 94, p. 4.

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concerning the person’s ability to pay any monetary amount set and non-financial alternative conditions of release; (2) a declaratory judgment that the defendants violate the plaintiffs’ rights by setting secured financial conditions of release without inquiring into or making findings as to whether arrestees can pay the amounts set and without considering non-financial alternative conditions of release; and (3) an order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.24
The Contentions of the Parties In support of the instant motion to dismiss, Sheriff Garber seeks dismissal of the supplemental complaint, under Rule 12(b)(1), for lack of standing, because the plaintiff suffered no particularized injury arising from STOP. In the alternative, Sheriff Garber moves for dismissal of the supplemental complaint, under Rule 12(b)(6), because the plaintiff has no constitutional right to participate in STOP and has failed to allege that any sheriff’s policy is the moving force for any alleged constitutional violations. Finally, Sheriff Garber re-urges his original motion to dismiss, on the basis of this Court’s prior recommendation that the district court dismiss the original complaint under Rule 12(b)(6), for failure to establish that the sheriff’s policies are the moving force behind any alleged constitutional violations.
24 Rec. Docs. 1, 83.

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The plaintiff asserts two bases for prospective relief against Sheriff Garber.25 First, the plaintiff asserts that Sheriff Garber, through the operation of STOP, is a municipal policymaker, implementing an unconstitutional policy, through which he has discretion under state law to modify pretrial detainees’ conditions of release.26 The plaintiff argues that the facts now alleged, through the supplemental complaint, show that Sheriff Garber has a policy of detaining people due to their inability to pay money and that policy is the moving force behind the plaintiff’s injuries, sufficient to establish liability under Monell.27 Second, even if he simply enforces judicial orders over which he has no discretion, the plaintiff asserts that Sheriff Garber may be enjoined as a state actor committing constitutional violations.28
Sheriff Garber replies, inter alia, that the Fifth Circuit’s decision in ODonnell v. Harris County, Texas (“ODonnell I”), “strongly supports the Sheriff’s position in this matter[;] [n]o other authority which plaintiff cited is applicable to this matter.”29 ODonnell I arose out of a § 1983 class action suit against Harris County, Texas and a number of its officials, including the sheriff (collectively, “the County”), alleging that the County’s system of setting bail for indigent misdemeanor arrestees violates, inter alia, the Fourteenth Amendment’s equal protection and due process clauses.
25 Rec. Doc. 94, pp. 4, 9. 26 Rec. Doc. 94, p. 4. 27 Id. at p. 5. 28 Id. 29 Rec. Doc. 95, p. 1 (citing ODonnell v. Harris Cty., Texas, 882 F.3d 528 (5th Cir.) (ODonnell I), withdrawn, 892 F.3d 147 (5th Cir. 2018) (ODonnell II)).

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After a hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, finding that they were likely to succeed on their procedural due process and equal protection claims.30 The County appealed, seeking vacatur of the injunction and raising numerous legal challenges, including the district court’s finding that the sheriff was a municipal policymaker under § 1983 and Monell.31 ODonnell I went beyond the requested relief and dismissed the sheriff from the case.
After the parties had fully briefed the instant motion, the Fifth Circuit granted a petition for panel rehearing and withdrew its earlier opinion, in favor of a substituted opinion, ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018) (“ODonnell II”), prompting the plaintiff to file a “Notice of Supplemental Authority,” to which he attaches ODonnell II.32 In the petition for rehearing, the plaintiff-appellees challenged the sheriff’s outright dismissal, given that the appeal merely challenged whether he was a county policymaker, not whether he may be enjoined under § 1983.33 Thus, where ODonnell I dismissed the sheriff, ODonnell II concludes only that the sheriff “does not qualify as a municipal policymaker under § 1983.”34 Here, the plaintiff argues that ODonnell II establishes that he has, at least,
30 ODonnell II explained that “[t]he fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for the individual arrestee’s personal circumstances.” 892 F.3d at 163. 31 ODonnell I, 882 F.3d at 534; Rec. Doc. 101-1, pp. 2-3. 32 Rec. Doc. 101. 33 Rec. Doc. 104-1, p. 5. 34 Rec. Doc. 101, p. 2; 101-1, p. 9; see also ODonnell II, 892 F.3d at 156.

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stated a claim against Sheriff Garber in his capacity as a Louisiana state official if not also a municipal policymaker.35
Sheriff Garber responds by, first, explaining that ODonnell II’s cited limitation stems solely from the fact that the sheriff’s status as a state official was simply not at issue on appeal.36 The County’s appeal sought vacatur of the preliminary injunction, pursuant to which the district court explicitly did “not order relief against the County Judges or Sheriff in their capacities as state actors[.]”37 Thus, the Fifth Circuit had no cause to consider that issue on appeal. Second, Sheriff Garber emphasizes that ODonnell II does not disturb the Fifth Circuit’s rationale, namely that “the Sheriff is legally obliged to execute all lawful process and cannot release prisoners committed to jail by a magistrate’s warrant—even if prisoners are committed ‘for want of bail.’”38 Sheriff Garber argues that the same rationale would apply to any claims against the sheriff as an alleged state actor had they been at issue in the ODonnell appeal.
In reply, the plaintiff argues that ODonnell II is not limited to the preliminary injunction itself; rather, it should be read to affirm the district court’s conclusion, in
35 Rec. Doc. 101, pp. 1, 3. 36 The district court in this case acknowledged this limitation and ordered further briefing prior to considering the undersigned’s report and recommendation on Sheriff Garber’s original motion to dismiss. See Rec. Doc. 71, p. 2 n. 1. 37 ODonnell v. Harris County, Texas, 251 F.Supp.3d 1052, 1162 (S.D. Tex. Apr. 28, 2017) (Judge Rosenthal’s order denying summary judgment and granting preliminary injunction). 38 Rec. Doc. 104, p. 1 (quoting ODonnell II, 892 F.3d at 156).

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its separate order denying the sheriff’s motion to dismiss,39 that the Harris County
Sheriff may be enjoined in his capacity as a state actor.40 The plaintiff points out
that, in recommending appropriate modifications to the district court’s injunction,
the Fifth Circuit included the sheriff:
The Harris County Sheriff is therefore authorized to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided.41
Thus, the plaintiff contends that, in this case, Sheriff Garber may be enjoined in his
capacity as a state actor.
Law and Analysis
A. Rule 12(b)(1) Standard
“Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure
allow a party to challenge the subject matter jurisdiction of the district court to hear
39 ODonnell v. Harris Cty., Texas, 227 F. Supp. 3d 706, 752 (S.D. Tex. Dec. 16, 2016) (Judge Rosenthal’s ruling on defendants’ motion to dismiss). 40 Rec. Doc. 106, p. 2 (citing Magnolia Marine Transp. Co. v. Laplace Towing Corp., 964 F.2d 1571, 1580 (5th Cir. 1992)). The undersigned rejects this cite, as Magnolia Marine clearly involved one district court order, which granted an injunction and denied a motion to dismiss, such that “[t]he ground for denying the dismissal of the declaratory judgment suit, being precisely the same [as the grounds for injunction], must be likewise rejected in this decision.” 964 F.2d at 1580. Magnolia Marine is clearly distinguishable from references to ODonnell II in this case. Here, not only does the plaintiff ask this Court to merge two distinct orders, but the only order at issue in the ODonnell appeal was the order granting the preliminary injunction, which explicitly did not order relief against the sheriff in his capacity as a state actor, such that the issue and underlying ruling thereon were clearly not at issue on appeal. 41 Rec. Doc. 106, p. 2 (quoting ODonnell II, 892 F.3d at 165).

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a case.”42 “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”43 This prevents a court without jurisdiction from prematurely dismissing a case with prejudice.44
“[A] motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.”45 “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”46 The plaintiff, as the party asserting jurisdiction, constantly bears the burden of proof that jurisdiction does in fact exist.47
1. Standing Article III of the United States Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.”48 “In order to have standing to assert federal jurisdiction, a plaintiff ‘must have suffered, or be threatened with, an actual injury
42 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Fed. R. Civ. P. 12(b)(1)). 43 Id. (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)). 44 Id. 45 Id. (citing Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)). 46 Id. (citing Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). 47 Id. 48 U.S. Const., Art. III, § 2.

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traceable to the defendant and likely to be redressed by a favorable judicial
decision.’”49 Thus, “[t]o establish standing, a plaintiff must show: (1) it has suffered,
or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury
is fairly traceable to the defendant’s conduct; and (3) a favorable judgment is likely
to redress the injury.”50 “To satisfy the injury-in-fact requirement, a plaintiff must
allege an injury that is ‘actual or imminent, not conjectural or hypothetical.’”51 “For
an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and
individual way.’”52
Recognizing that the district court has already upheld the undersigned’s
finding that the plaintiffs’ claims are not moot,53 Sheriff Garber argues that “a
plaintiff must demonstrate standing separately for each form of relief sought.”54
Sheriff Garber argues that the supplemental complaint fails to establish a
particularized, “personal and individual” injury, arising from STOP. However, the
49 Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 424 (5th Cir. 2013) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation marks and citation omitted)). 50 Hous. Chronicle Publ’g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 51 Cruz v. Abbott, 849 F.3d 594, 598 (5th Cir. 2017) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (citation and internal quotation marks omitted)). 52 Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S. Ct. 1540, 1548 (2016), as revised (May 24, 2016) (citations omitted). 53 Rec. Doc. 59, pp. 6-9; Rec. Doc. 79. 54 Rec. Doc. 95, p. 3 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see also Lewis v. Casey, 518 U.S. 343, 358 n. 6 (1996) (because “standing is not dispensed in gross,” a plaintiff who has been subject to one form of harm does not thereby have standing to litigate a similar injury to which he has not been subject)).

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supplemental complaint merely seeks to legally implicate the sheriff in the same constitutional deprivation alleged in the original complaint, namely, the plaintiff’s fundamental right to pretrial liberty grounded in the Fourteenth Amendment’s due process and equal protection clauses. The plaintiff does not allege any independent property or liberty interest in a work-release program such as STOP. Thus, the supplemental complaint neither affects this Court’s previously-issued mootness analysis, as adopted by the district court, nor undermines the plaintiff’s standing in this case.55 B. Rule 12(b)(6) Standard
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is properly granted when a defendant attacks the complaint because it fails to state a legally cognizable claim.56 When considering such a motion, a district court must limit itself to the contents of the pleadings, including any attachments thereto,57 accept all well-pleaded facts as true, and view the facts in a light most favorable to the plaintiff.58 However, conclusory allegations and
55 See Rec. Doc. 59, pp. 6-9 (mootness analysis); and Rec. Doc. 79 (district court’s order adopting the undersigned’s recommendation to deny the sheriff’s original motion to dismiss on the basis of Rule 12(b)(1)). 56 Ramming, 281 F.3d at 161. 57 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). 58 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotations omitted) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

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unwarranted deductions of fact are not accepted as true,59 and courts “are not bound
to accept as true a legal conclusion couched as a factual allegation.”60
To survive a Rule 12(b)(6) motion, the plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”61 The allegations must be
sufficient “to raise a right to relief above the speculative level,”62 and “the pleading
must contain something more. . . than. . . a statement of facts that merely creates a
suspicion [of] a legally cognizable right of action.”63 “While a complaint. . . does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”64 If the plaintiff fails to
allege facts sufficient to “nudge[ ][his] claims across the line from conceivable to
plausible, [his] complaint must be dismissed.”65
A claim meets the test for facial plausibility “when the plaintiff pleads the
factual content that allows the court to draw the reasonable inference that the
59 Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Alabama Power Company, 505 F.2d 97, 100 (5th Cir. 1974)); see also Collins, 224 F.3d at 498. 60 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 61 Twombly, 127 U.S. at 570. 62 Twombly, 127 U.S. at 555. 63 Twombly, 127 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). 64 Twombly, 127 U.S. at 555 (citations, quotation marks, and brackets omitted; emphasis added); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 65 Twombly, 127 U.S. at 570.

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defendant is liable for the misconduct alleged.”66 “[D]etermining whether a complaint states a plausible claim for relief. . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”67 Therefore, “[t]he complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim.”68
1. Section 1983 Claim Against Sheriff Garber Section 1983 does not create substantive rights;69 it is a procedural rule that provides a private cause of action for redressing a violation of federal law. Therefore, an underlying constitutional or statutory violation is a predicate to any theory of liability under § 1983.70 In the instant motion, the sheriff argues that, even considering the additional allegations contained in the supplemental complaint, the plaintiff has still failed to establish that any sheriff’s policy is the moving force behind Commissioner Frederick’s bail determinations, even if his bail decisions are partly based upon the sheriff’s STOP eligibility determinations. In response, the plaintiff argues that (a) the supplemental complaint establishes that the sheriff exercises policymaking
66 Iqbal, 556 U.S. at 678. 67 Iqbal, 556 U.S. at 679. 68 Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Twombly, 127 U.S. at 556); see also In Re Southern Scrap, 541 F.3d 584, 587 (5th Cir. 2008). 69 Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008). 70 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989).

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authority and, therefore is a proper party for municipal liability purposes under Monell; and (b) even if ODonnell II precludes the sheriff’s liability under Monell, he may still be enjoined as a state actor. Regardless of the theory, the alleged constitutional violation remains the same: the denial of pretrial liberty based solely on an inability to pay a set bail amount, without inquiry into ability to pay or alternative, non-financial conditions of release.71
At the outset, the sheriff argues that the supplemental complaint fails for failure to allege any constitutional right allegedly violated by STOP; however, the plaintiff concedes that he does not allege that STOP itself is unconstitutional or that the plaintiff has a constitutional right to participate in STOP. Indeed, the Fifth Circuit has confirmed that “no federal or state law creates a right to participate in a work release program.”72 Furthermore, this Court has applied that precedent to the Lafayette Parish Sheriff’s STOP policy to find that a plaintiff “is not constitutionally entitled to participate in the STOP program[.]”73
71 “[A] complaint should not be dismissed merely because a plaintiff’s allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848–49 (8th Cir. 2014) (citation omitted). As will be explained herein, the plaintiff’s allegations do not provide relief on any possible theory, as no sheriff’s policy is the moving force behind the alleged constitutional deprivation. 72 Welch v. Thompson, 20 F.3d 636, 639 (5th Cir. 1994). 73 Dickerson v. Reardon, No. 11-CV-1628, 2012 WL 5335952, at *4-5 (W.D. La. Oct. 3, 2012) (Hanna, M.J.), rep’t and rec. adopted, No. 11-CV-1628, 2012 WL 5334767 (W.D. La. Oct. 25, 2012) (Doherty, J.).

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Given that the plaintiff does not have a constitutional right to participate in
STOP, the following allegations do not support an actionable claim: “[t]he Sheriff
operates STOP, which determines a detainee’s eligibility for [certain diversion]
programs[;]”74 “[p]retrial detainees cannot enter any of the [STOP] diversion
programs without the approval of the Sheriff’s staff[;]”75 “[e]ligibility requirements
for diversion programs include, but are not limited to, the ability to pay program
fees[;]”76 “[a] judge of the 15th [JDC] cannot place a pretrial detainee in a [STOP]
diversion program without the referral and approval of the Sheriff[;]”77 and “[i]f the
[sheriff] denies a pretrial detainee’s application for admission to a diversion
program, there is no mechanism by which Commissioner Frederick, or any other
judge of the 15th [JDC], can review that decision.”78 Further, the plaintiff’s
allegation that “Commissioner Frederick generally will not release someone without
money bond unless the Sheriff approves the pretrial detainee for a [STOP] diversion
74 Rec. Doc. 83, pp. 1-2, ¶¶ 2-3. 75 Id. at p. 2, ¶ 8. 76 Id. at p. 2, ¶ 9. By emphasizing that program fees may be required to participate in STOP, the plaintiff implies that the alleged constitutional deprivation may be expanded to reach any sum of money, rather than just a set bail amount, required to be paid by a detainee. However, the sheriff points out that the alleged constitutional right at issue is the “fundamental right to pretrial liberty by placing and keeping [plaintiff] in jail because he cannot afford to pay the monetary bail amount. . .” Rec. Doc. 89-1, p. 6 (quoting Rec. Doc. 1, p. 16, ¶ 64 (emphasis added)). The mere fact that STOP eligibility—to which the plaintiff is not constitutionally entitled—depends, in part, on a detainee’s ability to pay program fees does not render that requirement violative of any constitutional rights. See La. R.S.15:711(C) (“Every inmate with work release privileges shall be liable for the cost[s] . . .”) (emphasis added). 77 Id. at p. 3, ¶ 12. 78 Id. at p. 3, ¶ 13.

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program[,]”79 fails to state a claim against the sheriff.80 Even assuming that Commissioner Frederick improperly relies upon the sheriff’s STOP determinations, such an allegation implicates the commissioner and the 15th JDC’s bail policy, not the sheriff and STOP. Because there is no constitutional right to participate in STOP, the plaintiff argues instead that the sheriff somehow uses STOP to set bail policy. For the reasons explained below, neither the record nor state law supports such an argument.
As noted in the prior report and recommendation, Sheriff Garber is named only in his official capacity as the sheriff of Lafayette Parish.81 The Fifth Circuit has recognized that “[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.”82 Thus, the plaintiff’s official-capacity claims against Sheriff Garber are actually claims against the Lafayette Parish Sheriff’s Office itself, which are claims against a municipality.83 Because it remains true, the undersigned repeats: “Although the plaintiff argues that Monell does not apply when the sheriff enforces a judicial order over which he has no discretion, there is no claim in the plaintiff’s complaint separate and apart from
79 Rec. Doc. 83, p. 4, ¶ 19. 80 As explained below, the sheriff is statutorily authorized to establish and administer STOP; he is not legally authorized to fix bail. See La. R.S. 15:711; La. Code Crim. Proc. art. 314(A)(1). 81 Rec. Doc. 59, p. 17. 82 Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). 83 See Rec. Doc. 59, p. 17 (citing Cain v. City of New Orleans, No. 15-4479, 2016 WL 2849498, at *6 (E.D. La. May 13, 2016) (Vance, J.) (recognizing that a Louisiana sheriff was a municipal actor and subject to Monell’s standard of liability).

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the claim against the sheriff in his official capacity and, therefore, as a municipality. Thus, Monell applies to the plaintiff’s claims.”84
“To establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.”85 For purposes of the instant motion, STOP constitutes official policy promulgated by Sheriff Garber, as a municipal policymaker.86 However, in establishing Monell liability, “whether an official ha[s] final policymaking authority is a question of state law.”87 In Louisiana, Article 314 of the Louisiana Code of Criminal Procedure specifically vests authority to fix bail in “[d]istrict courts and their commissioners having criminal jurisdiction, in all cases.”88 Louisiana law does not authorize a sheriff to fix bail in any case at all.89 Thus, while the sheriff has final policymaking authority regarding STOP, pursuant to La. R.S. 15:711, it remains true that he lacks any legal authority to set bail.
Instead, as explained in the prior report and recommendation, Article 315 specifically authorizes a bail schedule, such as that created by Judge Earles and
84 Rec. Doc. 59, pp. 17-18. 85 Trammell v. Fruge, 868 F.3d 332, 344 (5th Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009)). 86 See Rec. Doc. 83, pp. 1-2, ¶¶ 2-4, 8, and 11-12. 87 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); ODonnell II, 892 F.3d at 155. 88 La. Code Crim. Proc. art. 314(A)(1). 89 Rec. Doc. 59, pp. 18-19.

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employed by the 15th JDC in this case.90 Paragraph B of that article states, in
pertinent part:
The court order setting the bail schedule shall fix the amount of bail for each offense listed, designate the officer or officers authorized to accept the bail, and order that bail be taken in conformity with the schedule. . . . A copy of the schedule shall be sent to all jails, sheriff’s offices, and police stations within the judicial district, parish, or city.91
Whether a particular arrestee’s bail is set pursuant to the schedule or on an
individualized basis in accordance with the 15th JDC Policy, the sheriff is obliged
to follow that court order under Article 328, which describes the requirements of a
particular bail undertaking and states that “[t]he bail undertaking shall be
enforceable” if the stated requirements are met.92
Given these statements of the law, this Court previously found:
The plaintiff does not allege that Sheriff Garber has the authority to release an arrestee when his bail obligations are not satisfied. Nor does the plaintiff allege that Sheriff Garber has the authority to set or modify bail. Under Louisiana law, a sheriff is the keeper of the jail in his parish and shall “preserve the peace and apprehend public offenders.”93 Sheriff Garber, as the keeper of the jail, enforces the monetary bail amounts that are set by court orders. Under state law, Sheriff Garber has no authority to modify or decline to enforce court orders as the plaintiff would have this Court authorize. Therefore, Sheriff Garber’s policy is not the moving force for the plaintiff’s alleged constitutional violations.94
90 Id. at p. 19 (citing La. Code Crim. Proc. art. 315). 91 Id. at p. 19 (citing La. Code Crim. Proc. art. 315(B)). 92 Id. at p. 19 (citing La. Code Crim. Proc. art. 328(A) and (B)); see also La. Code Crim. Proc. art. 314. 93 Rec. Doc. 59, p. 20 (quoting La. R.S. 13:5539). 94 Id. at p. 20.

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This Court finds that this remains the state of the law, and nothing in the supplemental complaint cures the cited deficiencies.
Again, Monell’s third element requires that STOP, as the only relevant policy promulgated by the sheriff, be the moving force behind the alleged constitutional violation, i.e. the denial of pretrial liberty based solely on inability to pay a set bail amount, without inquiry into ability to pay or alternative non-financial conditions of release. To establish that a policy is the moving force behind the violation, the plaintiff “must show direct causation.”95 “‘[T]here must be a direct causal link’ between the policy and the violation.”96 Thus, there must be a direct causal link between STOP, which is a work release program, and the denial of pretrial liberty based solely on an inability to pay a set bail amount, without inquiry into ability to pay or alternative non-financial conditions of release.
As explained by the sheriff, bail and work-release programs are entirely separate legal concepts arising from different authorities. The right to bail in Louisiana is set forth in the Louisiana Constitution, article 1, section 18; federal courts have found a fundamental right to reasonable access to the bail system, and both the state and federal constitution explicitly provide that “[e]xcessive bail shall
95 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848 (5th Cir. 2009) (citing Piotrowski, 237 F.3d at 580). 96 Id.

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not be required.”97 On the other hand, work release programs, such as STOP, to
which there is no constitutional right, derive from Louisiana Revised Statute 15:711,
pursuant to which the sheriff of each parish is “authorized to establish and
administer” such programs and “determine those inmates who may participate”
therein. Furthermore, bail and work release programs serve different purposes. “Bail
is the security given by a person to assure a defendant’s appearance before the proper
court whenever required[;]”98 work release programs and related privileges are
generally “designed to improve the skills and abilities of the inmate.”99
The plaintiff argues that it is the Sheriff who “decides whether someone may
be released from his jail[,]” because “[h]is approval, pursuant to his policy, is
necessary (albeit insufficient) for anyone to be released who is detained because she
cannot pay money bail.”100 The plaintiff also states that the sheriff “has a policy of
recommending that certain detainees be released; all other detainees remain in
jail.”101 Yet, in the supplemental complaint, the plaintiff concedes that “[a]dmission
97 Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003) (citing Schilb v. Kuebel, 404 U.S. 357 (1971) and Bell v. Wolfish, 441 U.S. 520 (1979)); see also Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc) (concluding that “[t]he incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”); La. Const. Ann. art. I, § 18; U.S. Const. amend. VIII. For purposes of the instant motion, it is sufficient to delineate the differences between bail and work release, as the merits of the case—and whether the plaintiff can prevail on his due process and/or equal protection claims—will be determined at a later time. 98 La. Code Crim. Proc. art. 311(1). 99 La. R.S. 15:711(B). 100 Rec. Doc. 94, p. 10. 101 Rec. Doc. 94, p. 12.

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to those diversion programs that allow for a pretrial detainee’s release from jail . . . must be approved by both the supervising Sheriff’s deputy and a judge of the 15th [JDC.]”102 Thus, the plaintiff still has not alleged that Sheriff Garber has the authority to release an arrestee when his bail obligations are not satisfied nor that he has the authority to set or modify bail. It remains true that Sheriff Garber, as the keeper of the jail, enforces the monetary bail amounts that are set by court orders, and he has no authority, under Louisiana law, to modify or decline to enforce court orders.103 Having reviewed the plaintiff’s supplemental allegations, the undersigned finds that the plaintiff has failed to cure the original complaint’s infirmities; therefore, the plaintiff has failed to state a claim against the sheriff under Monell.
Alternatively, the plaintiff argues that, even if he has failed to state a claim against the sheriff under Monell, the sheriff may still be enjoined as a state actor, for doing “no more than execut[ing] unconstitutional judicial orders that he is required to follow under state law.”104 For this argument to succeed, this Court would have
102 Rec. Doc. 83, p. 3, ¶ 11 (emphasis added). 103 See La. Const. art. 5, § 27 (“In each parish a sheriff shall be elected[,] . . . and [he] shall execute court orders and process.”); La. R.S. 13:5539(B) (“Each sheriff . . . shall execute all writs, orders, and process of the court or judge thereof directed to him.”). On this basis, the undersigned also rejects the following argument made by the plaintiff: “The fact that [the sheriff] may not alone decide whether someone may be released is of no moment; once someone is in jail pursuant to an unconstitutional order of detention, the Sheriff can decide that he will remain there.” Rec. Doc. 94, pp. 12-13. 104 Rec. Doc. 94, p. 13.

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to bypass the elements required to establish Monell liability.105 This argument is
foreclosed by the Supreme Court’s holding in Los Angeles County, Cal. v.
Humphries, 562 U.S. 29, 39 (2010), “that Monell’s ‘policy or custom’ requirement
applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.”106 Indeed, as the Fifth Circuit reiterated in ODonnell II, “[l]iability
under § 1983 attaches to local government officers ‘whose [unlawful] decisions represent the official policy of the local governmental unit.’”107 And, in addressing
the merits of ODonnell II, the Fifth Circuit repeatedly analyzed the County’s “bail
system,” “bail-setting procedures,” and “custom and practice,” underscoring the
threshold requirement and finding that § 1983 liability attaches only to unlawful decisions that represent official policy.108
The undersigned rejects the argument, as did the Supreme Court in
Humphries, “that applying Monell’s requirement to prospective relief claims will leave some set of ongoing constitutional violations beyond redress.”109 To the extent
105 See, e.g., Rec. Doc. 94, p. 14 (“The Sheriff’s motion should therefore be denied regardless of whether the Court concludes that the Sheriff may be enjoined under Monell.”). 106 Los Angeles County, Cal. v. Humphries, 562 U.S. 29, 39 (2010); see id. at 37 (“To find the [‘policy or custom’] requirement inapplicable where prospective relief is at issue would undermine Monell’s logic. For whether an action or omission is a municipality’s ‘own’ has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court.”); see also Cain, 2016 WL 2849498, at *6. 107 ODonnell II, 892 F.3d at 155 (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). 108 ODonnell II, 892 F.3d 147 passim. 109 Humphries, 562 U.S. at 38.

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the 15th JDC’s bail system results in the constitutional deprivations alleged in this
case, it is not the sheriff’s policies which act as the moving force, such that his
dismissal does not leave any alleged violations beyond redress.
ODonnell II does not change, and in fact supports, this Court’s analysis herein.
As explained, ODonnell II arose out of the County’s appeal of the district court’s
ruling, which both granted the plaintiffs’ motion for preliminary injunction and
denied the County’s motion for summary judgment.110 On the merits of the
constitutional claims, ODonnell II affirmed the district court’s rulings that Harris
County’s bail system violates both due process and equal protection. In doing so, the
Fifth Circuit specifically identified “the constitutional defect in the process afforded
[as] the automatic imposition of pretrial detention on indigent misdemeanor
arrestees[.]”111 The applicability of ODonnell II to the underlying facts and merits
of this case will ultimately depend upon the district court’s assessment of the 15th
JDC’s bail policy, in light of Louisiana and federal law.112
110 As noted in footnote 40, supra, the appeal did not involve the district court’s separate order denying the Harris County defendants’ motion to dismiss, upon which the plaintiff herein seeks to rely. Furthermore, the ruling that was at issue included an explicit, limiting acknowledgment that the district court was “not order[ing] relief against the County Judges or Sheriff in their capacities as state actors[.]” See footnote 37, supra, citing ODonnell v. Harris County, Texas, 251 F.Supp.3d 1052, 1162 (S.D. Tex. Apr. 28, 2017) (Judge Rosenthal’s order denying summary judgment and granting preliminary injunction). 111 ODonnell II, 892 F.3d at 160 (emphasis in original). 112 The undersigned notes that ODonnell II’s applicability may also ultimately be affected by the “plenary resolution of [the ODonnell] appeal by a merits panel[,]” as recently noted in the Fifth Circuit’s grant of the Harris County Judges’ motion for a partial stay of the district court’s revised preliminary injunction, issued after the parties supplemented their briefing herein. See ODonnell v. Goodhart, ___ F.3d ___, 2018 WL 3853454, at * 2 (5th Cir. 2018). In this most

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However, for purposes of ruling on the instant motion, ODonnell II supports
dismissal of the sheriff. Before addressing the underlying constitutional claims, the
Fifth Circuit first acknowledged that “[t]he County raises a number of arguments
that do not implicate the merits,” including whether the Harris County Sheriff is an
appropriate party for attaching municipal liability.113 In contrast to the Harris County
Judges, ODonnell II found that the sheriff “does not have the same policymaking
authority[,]” because he “is legally obliged to execute all lawful process and cannot
release prisoners committed to jail by a magistrate’s warrant—even if prisoners are
committed ‘for want of bail.’”114 In Louisiana, both constitutional and statutory
authority directs that each parish’s sheriff shall execute court orders and process.115
The mandatory nature of a Louisiana sheriff’s duty to execute court orders has long
been recognized by Louisiana jurisprudence, as well.116 Thus, as was the case in
recent ODonnell ruling, the Fifth Circuit found that certain sections of the revised injunction repeated the mistake of the first, in that the injunction was overbroad and “amount[ed] to the outright elimination of secured bail for indigent misdemeanor arrestees[,]” despite there being “no such . . . fundamental substantive due process right to be free from any form of wealthbased detention.” Id. at * 7. 113 ODonnell II, 892 F.3d at 155. 114 Id. at 156 (citing Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov’t Code § 351.041(a) (noting the Sheriff’s authority is “subject to an order of the proper court”)). 115 La. Const. art. 5, § 27 (“In each parish a sheriff shall be elected[,] . . . and [he] shall execute court orders and process.”); La. R.S. 13:5539(B) (“Each sheriff . . . shall execute all writs, orders, and process of the court or judge thereof directed to him.”). 116 See Rec. Doc. 95, pp. 6-7 (citing, e.g. Wong v. E. Baton Rouge Par. Sheriff’s Office, 522 So. 2d 1134, 1141 (La. Ct. App. 1988) (“Because a sheriff’s duty to execute court orders is constitutionally and statutorily imposed with the word ‘shall’, that duty is mandatory.”); Crow v. Manning, 45 La. Ann. 1221, 14 So. 122 (1893); Citadel Sec., Inc. v. Blue D Corp., 467 So. 2d 118, 120 (La. Ct. App. 1985)).

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ODonnell II and as previously discussed herein, Louisiana state law does “not authorize [Sheriff Garber] to avoid executing judicial orders imposing secured [or unsecured] bail by unilaterally declaring them unconstitutional.”117 It therefore follows, too, that Sheriff Garber “does not qualify as a municipal policymaker under § 1983” and must be dismissed.118
Conclusion Based on the foregoing reasons, it is recommended that Sheriff Garber’s motion to dismiss [Rec. Doc. 89] should be granted in part and denied in part. The motion should be denied to the extent that Sheriff Garber seeks dismissal pursuant to Rule 12(b)(1); the motion should be granted to the extent that Sheriff Garber seeks dismissal pursuant to Rule 12(b)(6). It is further recommended that Sheriff Garber’s re-urged motion to dismiss [Rec. Doc. 18], pursuant to Rule 12(b)(6), should be granted. Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within fourteen days after
117 ODonnell II, 892 F.3d at 156. This finding applies with even more force to a Louisiana sheriff, given that “Texas law provides a significant role for sheriffs in setting and taking bail in misdemeanor cases[,] at the heart of the ODonnell case. ODonnell v. Harris Cty., Texas, 251 F. Supp. 3d 1052, 1164 (S.D. Tex. 2017) (Judge Rosenthal’s order denying summary judgment and granting preliminary injunction). 118 Id.

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being served with of a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error.119
Signed at Lafayette, Louisiana, this 28th day of August 2018.
________________________________________ PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE
119 See Douglas v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE VERSUS THOMAS FREDERICK ET AL

CASE NO. 6:17-CV-00724 JUDGE FOOTE MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION Currently pending is Sheriff Mark Garber’s Motion for Sanctions against plaintiff’s counsel, pursuant to Federal Rule of Civil Procedure 11(c)(2), for the filing of the First Supplemental Class Action Complaint. [Rec. Doc. 107]. Plaintiff Edward Little, on behalf of himself and all others similarly situated, filed an opposition [Rec. Doc. 109], to which Sheriff Garber replied [Rec. Doc. 110]. The motion was referred to the undersigned for review, report, and recommendation, in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. Oral argument was held on August 23, 2018. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the undersigned recommends that the motion be denied.
The Contentions of the Parties Sheriff Garber moves, pursuant to Federal Rule of Civil Procedure 11(c)(2), for the imposition of sanctions upon, and recovery of attorney’s fees from, the

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plaintiff’s attorneys for the filing of the First Supplemental Class Action Complaint, as well as the filing of the instant motion for sanctions, for the following reasons.1 First, the sheriff states that the supplemental complaint was filed after the undersigned had recommended dismissal of the original complaint against the sheriff and after the Fifth Circuit’s original opinion in ODonnell v. Harris Cty., Texas, 882 F.3d 528 (5th Cir.) (“ODonnell I”), withdrawn and superseded on rehearing, 892 F.3d 147 (5th Cir. 2018) (“ODonnell II”). Second, the sheriff argues that the supplemental complaint is limited to allegations surrounding the Sheriff’s Tracking Offender Program (“STOP”), which is a work release and rehabilitation program that does not give rise to any rights which might support a claim under 42 U.S.C. § 1983. Sheriff Garber asserts that the supplemental complaint was therefore frivolous, not warranted by existing law or supported by any nonfrivolous argument for a change in the law, and presented solely for the purpose of delaying the sheriff’s dismissal, thereby needlessly increasing his costs.
The plaintiff’s attorneys not only oppose the motion but seek recovery of their own attorneys’ fees incurred in responding thereto. They emphasize that the supplemental complaint was filed with leave of court, over the sheriff’s opposition, and in response to the district court’s indication that it was “inclined to agree” with
1 Specifically, Sheriff Garber names attorneys Eric Foley, William P. Quigley, and Charles Gerstein, as the attorneys whose signatures are attached to the relevant pleading.

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the undersigned’s recommendation “regarding Plaintiff’s Monell claim against the Sheriff under 42 U.S.C. § 1983[,]” in light of ODonnell I.2 They argue that the supplemental complaint was properly filed after “discovering further evidence of Sheriff Garber’s liability,” i.e. the details of STOP, as outlined in the policies and procedures revised in December 2017, which allegedly demonstrate that the sheriff exercises discretion over who remains incarcerated.3 In doing so, they confirm that the asserted constitutional deprivation remains grounded in the Fourteenth Amendment’s due process and equal protection clauses rather than any property or liberty interest in a work-release program such as STOP. Accordingly, the plaintiff’s attorneys argue that the supplemental complaint asserts meritorious claims against the sheriff as both a state actor and a municipal policymaker and was filed with leave of court, on the basis of sound legal arguments, rather than for any improper purpose.
Law and Analysis A. Rule 11 Standards
Under Rule 11(c)(1), “[i]f, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”4 Rule 11(b) provides:
2 Rec. Doc. 71, p. 1. Again, ODonnell I has since been withdrawn and superseded. 3 Rec. Docs. 109, p. 8 and 76, p. 2, 4 Fed. R. Civ. P. 11(c)(1).

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By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.5
A violation of any subpart justifies sanctions as each provides an independent basis
for sanctions.6
Although decided before the 1993 amendments to Rule 11, in Thomas v.
Capital Security Services, Inc., 836 F.2d 866, 874 (5th Cir. 1988) (en banc), the
Fifth Circuit stated:
5 Fed. R. Civ. P. 11(b). Rule 11(c)(2) provides the requirements for the separate filing, content, and service of the motion for sanctions, as well as the safe harbor provisions. Plaintiff’s counsel acknowledge that they were served with notice of the instant motion more than twenty-one (21) days before the filing thereof. Rec. Doc. 109, p. 7 n. 2. This Court finds that the sheriff complied with the letter, if not the spirit, of Rule 11(c)(2). 6 Whitehead v. Food Max of Miss., Inc., 332 F.3d 796,802-04 (5th Cir. 2003) (en banc); F.D.I.C. v. Maxxam, 523 F.3d 566, 577 (5th Cir. 2008).

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[A] construction of Rule 11 which evaluates an attorney’s conduct at the time a “pleading, motion, or other paper” is signed is consistent with the intent of the rulemakers and the plain meaning of the language contained in the rule. Like a snapshot, Rule 11 review focuses upon the instant when the picture is taken—when the signature is placed on the document.
Thomas’s “snapshot” rule ensures that Rule 11 liability is assessed only for a
violation existing at the moment of filing.7
In deciding whether a pleading has been filed for any improper purpose under
Rule 11(b)(1), “the standard under which the attorney is measured is an objective,
not subjective, standard of reasonableness under the circumstances.”8 If “it is
objectively ascertainable that an attorney submitted a paper to the court for an
improper purpose[,]” even if the paper contains nonfrivolous representations or
papers well-grounded in fact and law, sanctions may still be warranted.9
“Accordingly, an attorney’s good faith will not, by itself, protect against the
imposition of Rule 11 sanctions.”10 To determine whether a party pursued an
illegitimate purpose to increase costs or harass a party, the court must identify
“unusual circumstances” that support an inference of such purposes by looking to
7 Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 570 (5th Cir. 2006). 8 Jenkins v. Methodist Hospital of Dallas, Inc., 478 F.3d 255, 264 (5th Cir. 2007) (en banc) (quoting Whitehead, 332 F.3d at 802) (quoting Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1024 (5th Cir. 1994))(emphasis in original)). 9 Whitehead, 332 F.3d at 805; see also Maxxam, 523 F.3d at 584 (quoting National Ass’n of Government Employees, Inc. v. National Federation of Federal Employees, 844 F.2d 216, 224 (5th Cir. 1988) (“we do not hold that the filing of a paper for an improper purpose is immunized from Rule 11 sanctions simply because it is well grounded in fact and law.”)). 10 Jenkins, 478 F.3d at 264 (citing Childs, 29 F.3d at 1024) (emphasis in original).

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“objectively ascertainable circumstances rather than subjective intent[.]”11 “If a reasonably clear legal justification can be shown for the filing of the paper in question, no improper purpose can be found and sanctions are inappropriate.”12
In determining whether an individual has complied with his or her obligations of reasonable inquiry into the facts, the court may look to a number of factors, including:
the time available to the signer for investigation; the extent of the attorney's reliance upon his client for the factual support for the document; the feasibility of a prefiling investigation; whether the signing attorney accepted the case from another member of the bar or forwarding attorney; the complexity of the factual and legal issues; and the extent to which development of the factual circumstances underlying the claim requires discovery.13 “As to the determination of whether a reasonable inquiry into the law has been made, a district court may consider the time available to the attorney to prepare the document; the plausibility of the legal view contained in the document; the pro se status of a litigant; and the complexity of the legal and factual issues raised.14 As to the type of sanction imposed under Rule 11, the court “should utilize the sanction that furthers the purposes of Rule 11 and is the least severe sanction
11 Maxxam, Inc., 523 F.3d at 585-86 (citations omitted). 12 Maxxam, 523 F.3d at 585 (quoting National Ass’n of Government Employees, 844 F.2d at 224 (internal citation omitted)). 13 Thomas, 836 F.2d at 875. 14 Id. at 875-76.

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adequate to such purpose.”15 “On the other hand, sanctions should be ‘sufficient to deter repetition of [similar] conduct.’”16 B. Sanctions are not Warranted
In a separate report and recommendation, issued contemporaneously herewith, the undersigned has fully fleshed out both the factual and procedural background applicable to the instant motion and therefore will not repeat that background herein. In that ruling, the undersigned recommends granting both the sheriff’s motion to dismiss the supplemental complaint and his re-urged motion to dismiss the original complaint, insofar as those motions sought dismissal under Rule 12(b)(6). Recognizing that those recommendations are subject to the district court’s approval, the issuance thereof plays a significant role in addressing a majority of the arguments made in connection with the instant motion. As the undersigned noted at the outset of the hearing on August 23, 2018, both the instant motion and response thereto have been used as vehicles for rearguing the merits of the issues underlying the motions to dismiss and supplemental complaint, respectively.17 While some degree of merging between allegedly sanctionable conduct and the underlying merits may be expected in connection with a Rule 11 motion, the seamless and
15 Jenkins, 478 F.3d at 265 (quoting Thomas, 836 F.2d at 878). 16 Id. (quoting Fed. R. Civ. P. 11(c)(2), now Rule 11(c)(4)). 17 During oral argument, it was obvious to this Court that counsel on both sides of the pending issues feel strongly – the sheriff about the merits of the instant motion for sanctions and frivolity of the supplemental complaint, and the plaintiff about the merits of the supplemental complaint and impropriety of the motion for sanctions.

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comprehensive nature of the overlap in this case clearly indicates to the undersigned that sanctions are not warranted herein.
In connection with the report and recommendation on the sheriff’s motions to dismiss, the undersigned discussed in some detail the ongoing nature of the ODonnell appeal and the parties briefing as it relates thereto. The parties disagree as to the applicability of the various rulings contained in both the district court’s and the Fifth Circuit’s rulings in ODonnell; however, regardless of the parties’ relative positions, ODonnell clearly indicates the timely and relevant nature of this litigation and the plethora of competing interests and legal issues involved herein. As the Fifth Circuit acknowledged in ODonnell II, the underlying district court ruling “comprised over 120 pages of factual findings, including not only the specific details of [Harris County Texas’s] bail-setting procedures, but also the history of bail and recent reform attempts nationwide.”18 While ODonnell may ultimately prove to be distinguishable from the instant case in material ways, both the undersigned and the district court herein have indicated their recognition of the ODonnell appeal’s potential applicability to this case or portions thereof. Although the undersigned has now concluded that ODonnell II supports the sheriff’s dismissal, the timing of that decision cuts harder against the sheriff’s decision to file the instant motion than it does against the plaintiff’s decision to seek leave to file the supplemental complaint.
18 ODonnell v. Harris Cty. (“ODonnell II”), 892 F.3d 147, 153 (5th Cir. 2018) (emphasis added).

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As explained herein, Thomas’s “snapshot” rule ensures that Rule 11 liability is assessed only for a violation existing at the moment of filing. At the time that plaintiff’s counsel filed the motion for leave to file the supplemental complaint, they had before them the district court’s clear indication that it was “inclined” to adopt the undersigned’s conclusion as to the sheriff’s Monell liability but that there was at least some lack of clarity as to the sheriff’s status in this case, following the Fifth Circuit’s original opinion in ODonnell I.19 In light thereof, and in consideration of the ongoing nature of the ODonnell appeal and the many, varied legal issues at play in this litigation, the undersigned finds that sanctions would be inappropriate in this case. As the Fifth Circuit has recognized, “misapplication of Rule 11 can chill counsel’s ‘enthusiasm and stifle the creativity of litigants in pursuing novel factual or legal theories,’ contrary to the intent of its framers.”20
Although, as indicated in the report and recommendation on the sheriff’s motions to dismiss, the undersigned finds that the sheriff is subject to dismissal from this case, that conclusion was not based on the frivolity of any independent allegation of a constitutional deprivation arising from STOP itself. Indeed, the plaintiff has made clear that he made no such argument. Even though the additional allegations did not change the undersigned’s ultimate recommendation from that which was
19 See Rec. Doc. 71, pp. 1-2. 20 CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791, 794 (5th Cir. 1993) (quoting Thomas, 836 F.2d 885).

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previously issued on the sheriff’s original motion to dismiss,21 it does not follow that
the plaintiff’s filing of the supplemental complaint was frivolous. Again, “[c]ourts
have a duty to impose the least severe sanction that is sufficient to deter future conduct.”22 “A sanction under Rule 11 is ‘an extraordinary remedy, one to be exercised with extreme caution.’”23 Having considered the motion and had the opportunity to discuss the propriety of both sides’ positions during oral argument,24
the undersigned finds that the issuance of sanctions is neither appropriate nor
necessary to deter any future conduct. Likewise, the plaintiff’s request for attorney’s
fees should be denied.
Conclusion
For the foregoing reasons, and based on the record, the applicable law, and
the arguments of the parties, it is the recommendation of the undersigned that Sheriff
Mark Garber’s Motion for Sanctions under Rule 11 [Rec. Doc. 107] be DENIED. It
is further recommended that the plaintiff’s request for attorney’s fees under Rule
11(c)(2) be DENIED.
21 See Rec. Doc. 59. 22 Mark’s Airboats, Inc. v. Thibodaux, No. 13-0274, 2015 WL 1467097, at *2 (W.D. La. Mar. 27, 2015) (Haik, J.) (citing Fed. R. Civ. P. 11(c)(4); Mendoza v. Lynaugh, 989 F.2d 191, 196 (5th Cir. 1993)). 23 Id. (quoting SortiumUSA, LLC v. Hunger, No. 11-cv-1656, 2014 WL 1080765, *3 (N.D. Tex. Mar. 18, 2014)). 24 Simultaneous with oral argument on the motion for sanctions, the undersigned held a Rule 16 conference with all counsel, in connection with the instant motion, as well as the briefing regarding the sheriff’s motion for a protective order, seeking to quash depositions. See Rec. Docs. 121, 117; and 115, 118, 119, and 120.

Case 6:17-cv-00724-TAD-PJH Document 123 Filed 08/29/18 Page 11 of 11 PageID #: 879
Under the provisions of 28 U.S.C. §636(b)(1)(c) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of court. A party may respond to another party’s objections within fourteen days after being served with a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglas v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Signed at Lafayette, Louisiana this 29th day of August, 2018.
______________________________________ PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

 </s> Case 6:17-cv-00724-TAD-PJH Document 155 Filed 12/03/18 Page 1 of 5 PageID #: 2031

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE, ET AL.

* CIVIL ACTION NO. 6:17-0724

VERSUS

* JUDGE TERRY A. DOUGHTY

THOMAS FREDERICK, ET AL.

* MAG. JUDGE PATRICK J. HANNA

RULING

Pending before the Court is a Motion for Summary Judgment [Doc. No. 133] filed by

Defendant Thomas Frederick (“Frederick”) and a Motion for Partial Summary Judgment [Doc.

No. 140] filed by Plaintiffs Edward Little (“Little”) and Sheila Ann Murphy (“Murphy”). The

motions are fully briefed. See [Doc. Nos. 149, 150& 154].

For the following reasons, the motions are DENIED.

I.

FACTS AND PROCEDURAL HISTORY

Little and Murphy brought this lawsuit against Frederick, Commissioner of the Fifteenth

Judicial District Court, and Judge Kristian Earles, Chief Judge of the Fifteenth Judicial District Court.1

Little was arrested on June 3, 2017, on a charge of felony theft and detained in the

Lafayette Parish Correctional Center. The following day, Frederick determined probable cause

for his arrest and set his bail as a $3,000 secured bond. Little could not afford to pay that amount

remained incarcerated until June 10, 2017.

Murphy was arrested on February 3, 2018, on a charge of felony possession of narcotics

1Plaintiffs also brought suit against Sheriff Mark Garber, but he was recently dismissed as a Defendant. [Doc. No. 144].

Case 6:17-cv-00724-TAD-PJH Document 155 Filed 12/03/18 Page 2 of 5 PageID #: 2032
and two related misdemeanors. She was detained at the Lafayette Parish Correctional Center. Frederick determined probable cause for Ms. Murphy’s arrest and set her bail as a $2,500 secured bond. She then appeared via closed-circuit television at a 72-hour hearing before Frederick, during which he affirmed the bond amount. Murphy could not afford that amount of bond and remained incarcerated until February 10, 2018.
Frederick makes the initial bail determinations for all arrestees in Lafayette, Vermillion, and Acadia Parishes. Before February 2018, a bail schedule governed the release of certain misdemeanor offenses, meaning that Lafayette Parish Sheriff’s deputies would refer to a predetermined list of bond amounts, organized by offense, to determine the conditions of an arrestee’s pretrial release. The most recent bail schedule was ordered by Judge Earles in 2013.
In February 2018, the judges of the Fifteenth Judicial District issued an en banc order rescinding the previous schedule and replacing it with an order requiring the Sheriff to automatically release with a summons all persons arrested on certain misdemeanor charge unless it was their third arrest within six months. All other misdemeanor arrestees were to have their bonds set in the same manner as felony arrestees.
In August 2018, the en banc order was revised to list all misdemeanor charges for which there would not be an automatic release with a summons, directing the Sheriff to release all others unless it was their third arrest within six months. All persons arrested for the misdemeanors listed on the order would have their bonds set in the same manner as felony arrestees.
In general, the parties do not dispute Frederick’s past and current procedures for setting bond amounts. However, Plaintiffs contend that Frederick does not take the financial conditions of arrestees into account, while Frederick denies this contention and further points out that, with regard to felony bonds, he does not have the authority to reduce those bonds.
2

Case 6:17-cv-00724-TAD-PJH Document 155 Filed 12/03/18 Page 3 of 5 PageID #: 2033
On October 26, 2018, Frederick filed a Motion for Partial Summary Judgment [Doc. No. 133]. Although the motion was filed only by Frederick, he moves for partial summary judgment against the “Juridical Defendants.”
On October 30, 2018, Plaintiffs filed a Motion for Summary Judgment [Doc. No. 140]. On November 16, 2018, Plaintiffs filed an opposition memorandum to Frederick’s motion. On November 19, 2018, Frederick and Earles filed an opposition memorandum to Plaintiffs’ motion. On November 28, 2018, with leave of Court, Plaintiffs filed a reply memorandum in support of their motion. II. LAW AND ANALYSIS
A. Standard of Review Summary judgment “shall [be] grant[ed] . . . if 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). A fact is “material” if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id. If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
3

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must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255.
B. Analysis The Court has carefully considered the memoranda and the factual presentations of the parties. In order to give the issues in this case complete and fair consideration, the Court finds that certain issues raise credibility determinations, particularly surrounding Frederick’s explanation of whether he considered the financial condition of arrestees and the way bonds are handled since the en banc orders of the Fifteenth Judicial District Court. Under these circumstances and given the recent reassignment of this case, the Court finds that the interests of justice require a bench trial on Plaintiffs’ claims. Accordingly, the Court will deny both motions for summary judgment and will consider these matters at a bench trial. However, it is not the intent of the Court to unnecessarily cause costs or expenses to the parties. To the extent that the parties can stipulate to testimony and/or the admission of evidence, the Court encourages them to do so.
C. Remaining Relief Sought Based on Plaintiffs’ memoranda, the Court understands that they no longer seek injunctive relief or attorneys’ fees, but seek only a declaratory judgment. As these claims were made in their pleadings originally, the Court considers them withdrawn. If the Court’s understanding is incorrect, Plaintiffs should file a memorandum stating that they do intend to proceed with the claims for injunctive relief and attorneys’ fees no later than December 17, 2018.
D. Issues to be Briefed Before Trial At least one month prior to the trial, the parties are required to brief the issues of constitutional mootness with regard to any of Plaintiffs’ allegations. Specifically, the Court
4

Case 6:17-cv-00724-TAD-PJH Document 155 Filed 12/03/18 Page 5 of 5 PageID #: 2035 expects counsel to brief whether the en banc order and its subsequent application rendered any of Plaintiffs’ claims moot. Additionally, the Court and all parties are familiar with the O’Donnell decisions issued by the United States Court of Appeals for the Fifth Circuit. No later than one month prior to the pre-trial conference, counsel should also brief whether the fact that Plaintiffs were charged with felonies has any effect on the analysis under O’Donnell I and II. III. CONCLUSION For the foregoing reasons, Frederick’s Motion for Summary Judgment [Doc. No. 133] and Plaintiffs’ Motion for Partial Summary Judgment [Doc. No. 140] are DENIED. Consistent with the Court’s Ruling, no later than one month prior to the pre-trial conference, the parties must file pre-trial memoranda on the issues of mootness and the implications of Plaintiffs’ felony charges on the O’Donnell analysis. Finally, the Clerk of Court is instructed to issue an abbreviated scheduling setting this matter for a bench trial in due course, setting a pre-trial conference before Magistrate Judge Hanna, and setting a deadline for motions in limine and pretrial submissions. MONROE, LOUISIANA, this 3rd day of December, 2018.
TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE
5

 </s> Case 6:17-cv-00724-TAD-PJH Document 170 Filed 01/15/19 Page 1 of 6 PageID #: 2081

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

EDWARD LITTLE, ET AL.

* CIVIL ACTION NO. 6:17-0724

VERSUS

* JUDGE TERRY A. DOUGHTY

THOMAS FREDERICK, ET AL.

* MAG. JUDGE PATRICK J. HANNA

RULING Pending before the Court is Plaintiffs’ Motion for Partial Final Judgment [Doc. No. 163]. Defendants oppose the motion. [Doc. Nos. 167 & 168]. Plaintiffs filed a reply [Doc. No. 169] in support of the motion. For the reasons set forth herein, Plaintiffs’ motion is DENIED. I. FACTS AND PROCEDURAL BACKGROUND This is a dispute over the bail procedures in the Fifteenth Judicial District. Plaintiffs were both arrested and then detained at the Lafayette Correctional Center. They could not afford the secured bond amounts set in their cases and, therefore, remained in detention. They brought suit against Defendants Thomas Frederick, Commissioner of the Fifteenth Judicial District Court, Judge Kristian Earles, Chief Judge of the Fifteenth Judicial District Court (“Judicial Defendants”), and Lafayette Parish Sheriff Mark Garber (“Garber”). On July 3, 2017, Garber filed a Motion to Dismiss [Doc. No. 18]. On July 17, 2017, the Judicial Defendants filed a Motion to Dismiss [Doc. No. 26]. After briefing was complete, Magistrate Judge Hanna issued Reports and Recommendations on the pending motions to dismiss. [Doc. Nos. 58 & 59]. He recommended that the Court grant in part and deny in part as to each motion. With regard to the Judicial Defendants, on December 6, 2017, Magistrate Judge Hanna recommended that the Court grant

Case 6:17-cv-00724-TAD-PJH Document 170 Filed 01/15/19 Page 2 of 6 PageID #: 2082
the motion to the extent that they sought dismissal of all Plaintiffs’ equal protection claims, as well as Plaintiffs’ due process claims against Earles. [Doc. No. 58]. He further recommended that the Court deny the motion to the extent that the Judicial Defendants sought dismissal of Plaintiffs’ due process claims against Frederick. Id.
With regard to Garber, on December 11, 2017, Magistrate Judge Hanna recommended the Court grant the motion to the extent that he sought dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), but denied to the extent that he sought dismissal pursuant to Rule 12(b)(1). Magistrate Judge Hanna found that the claims against Garber, who was named only in his official capacity, should be dismissed because Plaintiffs’ allegations “do not establish that Sheriff Garber’s policy is the moving force for the alleged constitutional violations.” [Doc. No. 58, p. 19].
After the time period for objections, on March 6, 2018, the Court adopted the Report and Recommendation in part and denied Garber’s Motion to Dismiss [Doc. No. 79]. The Court noted that since the issuance of the Report and Recommendation, Plaintiffs’ Complaint was amended.
On March 8, 2018, the Court also denied the Judicial Defendants’ Motion to Dismiss [Doc. No. 81].
On March 27, 2018, Garber filed a second Motion to Dismiss [Doc. No. 89]. While the second Motion to Dismiss was pending, Garber also filed a Motion for Sanctions [Doc. No. 107].
After briefing was complete, in August 2018, Magistrate Judge Hanna issued Reports and Recommendations [Doc. Nos. 122 & 123] on Garber’s pending motions. He recommended that the re-urged Motion to Dismiss be granted in part, to the extent that Garber sought dismissal of
2

Case 6:17-cv-00724-TAD-PJH Document 170 Filed 01/15/19 Page 3 of 6 PageID #: 2083
the claims against him under Rule 12(b)(6). [Doc. No. 122]. Magistrate Judge Hanna recommended denial of the Motion for Sanctions. [Doc. No. 123].
After the time period for objections and responses, the Court adopted Magistrate Judge Hanna’s Reports and Recommendations on both motions. [Doc. Nos. 144 & 145]. As a result, Plaintiffs’ claims against Garber were dismissed with prejudice.
On October 2018, Plaintiffs filed a Motion for Partial Summary Judgment [Doc. No. 131] against Garber.
On October 26, 2018, Frederick filed a Motion for Partial Summary Judgment [Doc. No. 133]. Although the motion was filed only by Frederick, he moves for partial summary judgment in favor of both Judicial Defendants.
On October 30, 2018, Plaintiffs filed a Motion for Summary Judgment [Doc. No. 140] against the Judicial Defendants.
On November 14, 2018, after having dismissed the claims against Garber, the Court issued an Order [Doc. No. 146] denying Plaintiffs’ Motion for Partial Summary Judgment against Garber [Doc. No. 131] as moot.
After briefing was complete, on December 3, 2018, the Court issued a Ruling and Order [Doc. Nos. 155 & 156] denying the remaining dispositive motions [Doc. Nos. 133 & 140].
On December 21, 2018, Plaintiffs filed the instant Motion for Partial Final Judgment [Doc. No. 163]. On January 4, 2019, Garber filed an opposition memorandum. [Doc. No. 167]. On January 8, 2019, the Judicial Defendants filed an opposition memorandum. [Doc. No. 168]. On January 11, 2019, Plaintiffs filed a reply memorandum in support of their motion. [Doc. No. 169].
The motion is ripe.
3

Case 6:17-cv-00724-TAD-PJH Document 170 Filed 01/15/19 Page 4 of 6 PageID #: 2084
II. LAW AND ANALYSIS A. STANDARD OF REVIEW Federal Rule of Civil Procedure Article 54(b) states in pertinent part as follows: When an action presents more than one claim for relief – whether as a claim, counterclaim, crossclaim or third-party claim – or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
[emphasis added].
When deciding whether to certify a judgment under Rule 54(b), a court must make two determinations: (1) that it is dealing with a “final judgment” (an ultimate disposition of an individual claim); and (2) whether any just reason for delay exists. Briargrove Shopping Center Joint Venture v. Pilgrim Enters, Inc. 170 F.3d 536 (5th Cir. 1999). There is no question that the decision qualifies as a “final judgment,” as the decision dismissed all claims against Defendant Garber.
The primary question in this matter is whether there is any “just reason for delay.” Rule 54(b) reflects a balancing of two policies: (1) avoiding the danger of hardship or injustice or delay which would be alleviated by immediate appeal and (2) avoiding piecemeal appeals. Eldredge v. Martin Marietta Corp., 207 F.3d 737 (5th Cir. 2000). In determining whether the dismissal qualifies the court looks at a number of factors. A court should consider such factors as: (1) the relationship between adjudicated and the unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by
4

Case 6:17-cv-00724-TAD-PJH Document 170 Filed 01/15/19 Page 5 of 6 PageID #: 2085
future developments in the district court; (3) the possibility that the reviewing court might be obligated to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like. Akers v. Alvey, 338 F.3d 491 (6th Cir. 2003).
Additionally, a district court should grant certification only when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal. It should not be entered routinely as a courtesy to counsel. Unrestrained application of Rule 54(b) is strongly disfavored. PYCA Indus. Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 81 F.3d 1412 (5th Cir. 1996).
Plaintiffs argue that there is no just reason for delay because Garber was dismissed as a Defendant on the basis that he may not be enjoined in his official capacity unless Plaintiffs plead that he is a policymaker under Monell. They contend that “there are no overlapping factual or legal issues between the dismissal of the Sheriff and the case against Judicial Defendants.” [Doc. No. 163, p. 2].
Garber, joined by the Judicial Defendants, responds that Plaintiffs claim that the judges of the Fifteenth Judicial District Court are violating the constitutional rights of “impoverished arrestees when setting bail they cannot afford, and that the Sheriff should be enjoined from enforcing such bail orders.” [Doc. No. 167, p. 2]. Therefore, Garber argues that the claims against all Defendants are intertwined, even if the basis for the dismissal of Garber is particular to him.
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B. LEGAL ANALYSIS This Court finds that it would be inappropriate at this time to designate its November 14, 2018 Judgment [Doc. No. 144] as a final judgment. Federal courts strongly disfavor piecemeal appeals, Rule 54(b) judgments should only be used in the infrequent harsh case. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978). Although the claims against Garber were dismissed under Monell, Plaintiffs’ claims against Garber are contingent on their proving a constitutional violation against the Judicial Defendants. To allow this matter to be addressed on appeal at this time would be inefficient in that there would be an appeal of an issue that may never have to be decided. If Plaintiffs are not able to prove their claim, or if their claim is settled, these issues would never have to be appealed. Finally, this matter is set for a bench trial in August of this year. Even if the Judgment dismissing Garber were certified for appeal, and the United States Court of Appeals for the Fifth Circuit accepted the appeal, this case is likely to be tried around the same time an appeal could be heard. It may never be necessary to reach this issue at all, and this Court believes it is in the interest of judicial economy to wait until the entire matter is resolved for any appeal. III. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Partial Final Judgment is DENIED. Monroe, Louisiana, this 15th day of January, 2019.
__________________________________________ TERRY A. DOUGHTY, JUDGE UNITED STATES DISTRICT COURT
6


[CONTENT] June 5, 2017 | Louisiana | the U.S. District Court | the Western District ||| 375 | 3000 ||| the 15th | Judicial District of Louisiana | 1983 | 28 ||| Civil Rights Corps | MacArthur Justice Center | Loyola University School of Law | Acadia | Lafayette | Vermillon Parishes ||| Due Process and Equal Protection | the Fourteenth Amendment |||  ||| Magistrate | Patrick Hanna | Robert G. James ||| James | Elizabeth E. Foote |||  |||  ||| July 20 | Hanna ||| several months |||  ||| December 6, 2017 | Hanna | Report and Recommendation |||  |||  ||| December 11, 2017 | Hanna | second | Report and Recommendation | Sheriff ||| Younger ||| Hanna ||| Foote ||| January 12, 2018 | Foote ||| February 14, 2018 | 6:18-cv-00159 ||| February 26 | Foote ||| Foote | second | Report and Recommendations | March 6, 2018 ||| 2018 | 1188077 ||| March 8 | Hanna ||| 2018 WL 1221119 ||| March 9 | first | June 5, 2017 ||| the Sheriff’s Tracking Offender Program ||| March 27 ||| Discovery ||| April 12 | Foote ||| June 28, 2018 ||| August 28, 2018 | Hanna | Report and Recommendations ||| March 27 | first ||| 2018 | 6036911 ||| The next day | Hanna ||| 2018 | 6028683 ||| October 26, 2018 ||| the same day ||| October 30 ||| November 9 | Terry A. Doughty ||| November 14 | Doughty | the Report and Recommendation | Hanna | FRCP | 12(b)(6 |||  ||| 2018 | 5993879 ||| Doughty | second | Report and Recommendation ||| 2018 | 5987022 ||| December 3, 2018 | Doughty ||| 2018 | 6314730 ||| Bench | August 6, 2019 ||| September 20 | December 3 |||  [SUMMARY] On June 5, 2017, a male Louisiana detainee filed this class-action lawsuit in the U.S. District Court for the Western District of Louisiana. He had been arrested and detained after being charged with felony theft and was unable to post the $375 bond to a for-profit bonding agent to clear his $3000 bail. The plaintiff sued the Sheriff, County Commissioner, and Chief Judge for the 15th Judicial District of Louisiana under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Represented by Civil Rights Corps, MacArthur Justice Center, and Loyola University School of Law, the plaintiff sought to represent a class of all arrestees who were or would be detained in that state district--which covered Acadia, Lafayette, and Vermillon Parishes--for any amount of time after an arrest because they were unable to pay money bail. He claimed that the district scheme of setting bail amounts without further inquiry into a person's ability to pay violated his Due Process and Equal Protection rights under the Fourteenth Amendment. He sought an injunction, declaratory relief, and attorney's fees and costs.

This case was referred to Magistrate Judge Patrick Hanna and Judge Robert G. James. Judge James recused himself and the case was reassigned to Judge Elizabeth E. Foote. 

The defendants filed motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. They also argued that the claim was moot because the plaintiff was no longer in jail. On July 20, the case was stayed as the parties engaged in settlement talks under Judge Hanna's orders. After several months of unsuccessful settlement talks, the stay was lifted even though settlement discussions continued. The defendants claimed there was nothing to settle and the plaintiff claimed irreparable harm was ongoing.

On December 6, 2017, Judge Hanna filed a Report and Recommendation in response to the Commissioner's motion to dismiss. The report recommended that the motion should be granted with respect to plaintiff's equal protection claims and due process claims against the County Judge. The Judge also recommended that the motion be denied to the extent that it requested dismissal of due process claims against the Commissioner.

On December 11, 2017, Judge Hanna filed a second Report and Recommendation in response to the Sheriff's motion to dismiss. The report recommended the motion be denied with respect to subject matter jurisdiction claims because the claim was not moot and Younger abstention did not apply. However, the plaintiff had requested relief that could not be granted, and so Judge Hanna recommended dismissal. The plaintiff objected to both of these reports and sought oral argument before Judge Foote. On January 12, 2018, Judge Foote granted a hearing. 

On February 14, 2018, the plaintiff and an intervenor filed a motion to intervene or to consolidate the case with the intervenor's individual case, 6:18-cv-00159, with this case. On February 26, the plaintiff filed a motion to amend the complaint with opposition, which was granted later by Judge Foote.

Judge Foote adopted partially the second Report and Recommendations and denied the Sheriff’s motion to dismiss for lack of jurisdiction on March 6, 2018. 2018 WL 1188077. On March 8, Judge Hanna denied the plaintiff’s motion to certify class without prejudice. 2018 WL 1221119.

On March 9, the plaintiff filed the first supplemental class-action complaint to allege material facts that have arisen since the original complaint on June 5, 2017. Specifically, the Sheriff revised his policies and procedures governing the Sheriff’s Tracking Offender Program (S.T.O.P), which determines a detainee’s eligibility for these programs. On March 27, the defendant filed a motion to dismiss the supplemental complaint and original complaint for failure to state a claim. 

Discovery then followed. On April 12, Judge Foote granted the plaintiff’s motion to intervene and denied the motion to consolidate cases. On June 28, 2018, the defendant filed a motion for sanction regarding the plaintiff’s supplemental complaint.

On August 28, 2018, Judge Hanna filed a Report and Recommendations. She recommended that the Sheriff’s motion to dismiss filed on March 27 should be granted in part and denied in part, and that the re-urged first motion to dismiss the original complaint should be granted. 2018 WL 6036911. The next day, Judge Hanna filed an additional Report and Recommendations, recommending that the motion for sanctions be denied. 2018 WL 6028683.

On October 26, 2018, the plaintiffs filed a motion for partial summary judgment against the Sheriff but later withdrew this motion. On the same day, the defendants also filed a motion for summary judgment to dismiss the plaintiffs’ claims. The plaintiffs filed a motion for partial summary judgment again on October 30.

On November 9, this case was reassigned to Judge Terry A. Doughty. On November 14, Judge Doughty adopted the Report and Recommendation of Judge Hanna, granting the motion to dismiss the supplemental complaint and original complaint pursuant to FRCP 12(b)(6). The plaintiffs’ claims against the Sheriff were dismissed without prejudice. 2018 WL 5993879. Furthermore, Judge Doughty adopted the second Report and Recommendation and denied the motion for sanctions. 2018 WL 5987022.

On December 3, 2018, Judge Doughty denied both the plaintiffs’ and defendants’ motions for summary judgment and the parties were required to file pre-trial memoranda. 2018 WL 6314730.

Bench trial was held on August 6, 2019 and the parties were asked to file post-trial briefs. The plaintiffs filed their brief on September 20 and the defendants filed their brief on December 3. The case is ongoing.