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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

JUDGE SHARON INGRAM * CIVIL ACTION NO. 3:16-cv-0515MARCHMAN *

Plaintiff * JUDGE S. MAURICE HICKS

*

VERSUS * MAGISTRATE PEREZ-MONTES

*

BRIAN E. CRAWFORD; *

LAWRENCE W. PETTIETTE, JR. *

JAMES D. “BUDDY” CALDWELL; *

JON K. GUICE; *

JUDGE CARL V. SHARP; *

JUDGE FREDERIC C. AMMAN; *JUDGE J. WILSON RAMBO; *

JUDGE BENJAMIN JONES; and *

ALLYSON CAMPBELL

Defendants

*****************************************************************************

JAMES D. “BUDDY” CALDWELL’S MEMORANDUM IN SUPPORT OF

12(B)(1) AND 12(B)(6) MOTION TO DISMISS

NOW INTO COURT comes James D. “Buddy” Caldwell (hereinafter “Caldwell”) who

responds to the Original Complaint and the Supplemental, Amended and Restated Complaint

(hereinafter “Amended Complaint”) filed by Plaintiff, Judge Sharon Ingram Marchman

(hereinafter “Plaintiff”) in this matter. For reasons more fully explained in his attached

Memorandum in Support of Fed. R. Civ. P. 12(B)(1) and 12(B)(6) Motion to Dismiss, Caldwell

respectfully requests that his Motion to Dismiss be granted and that Plaintiff ’s claims against him

be dismissed with prejudice and for all other relief allowed by law.

Signature page follows

Case 3:16-cv-00515-SMH-JPM Document 26 Filed 05/20/16 Page 1 of 2 PageID #: 181


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Respectfully Submitted:

JEFF LANDRY

ATTORNEY GENERAL

/s/ Mary Ann M. White____________E. Wade Shows, La. Bar No. 7637 (Lead Attorney)

[email protected]

Mary Ann M. White, La. Bar. No. [email protected]

Caroline Tomeny Bond, La. Bar No. 34120

[email protected]

SHOWS, CALI & WALSH, L.L.P.628 St. Louis Street (70802)

P.O. Drawer 4425

Baton Rouge, Louisiana 70821

Telephone: (225) 346-1461Fax: (225) 346-1467

Attorneys for James D. “Buddy” Caldwell

May 20, 2016

Case 3:16-cv-00515-SMH-JPM Document 26 Filed 05/20/16 Page 2 of 2 PageID #: 182

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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i



MONROE DIVISION



*


*




JON K. GUICE; *




ALLYSON CAMPBELL

Defendants

*****************************************************************************




JEFF LANDRY

ATTORNEY GENERAL

/s/ Mary Ann M. White____________

E. Wade Shows, La. Bar No. 7637 (Lead Attorney)

[email protected]



[email protected]


P.O. Drawer 4425

Baton Rouge, Louisiana 70821Telephone: (225) 346-1461

Fax: (225) 346-1467


Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 1 of 31 PageID #: 183



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TABLE OF CONTENTS

Table of Authorities ……………………………………………………………………….….. iii

A. CALDWELL IS ENTITLED TO ELEVENTH AMENDMENT IMMUNITY FORANY OFFICIAL CAPACITY CLAIMS AGAINST HIM ……………………….… 2

B. PLAINTIFF FAILED TO STATE A CAUSE OF ACTION UPON WHICH

RELIEF CAN BE GRANTED AGAINST CALDWELL……………………………5

1. Fed. R. Civ. P. Rule 12(B)(6) …………………………………………….…….5

2. Caldwell is Entitled to Absolute Immunity From The Claims

Asserted Against Him By Plaintiff ……………………………………….….. 5

3. Caldwell is Entitled to Qualified Immunity For All Claims

Asserted Against Him in his Individual Capacity ……………………….…. 8

a. First Amendment Retaliation claim pursuant

to 42 U.S.C. 1983………………………………………………………10

i. Plaintiff f ailed to establish a violation of federal law ………10

a. Public Employee Framework ……………………………. 10

b. Private Citizen Framework ……………………………… 12

ii. Plaintiff failed to allege Caldwell violated clearly

established law………………………………………….…… 13

b. First Amendment Retaliation claim pursuant to

42 U.S.C. 1985 ……………………………………………….………. 14

i. Plaintiff failed to establish a violation of federal law ……...14


established law ……………………………………………….16

c. First Amendment Retaliation claim pursuantto 42 U.S.C. 1986 …………………………………………………….16

d. First Amendment Retaliation claim pursuant

to 42 U.S. C. 1988 ……………………………………………...…….17

e. Fourteenth Amendment Retaliation claim pursuant

to 42 U.S.C. 1983 …………………………………………………….17



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i. Plaintiff failed to establish a violation of federal law ……..18


established law ………………………………………………21

f. Fourteenth Amendment Retaliation claim pursuantto 42 U.S.C. 1985 ……………………………………………………21

i. Plaintiff failed to establish a violation of federal law …….21


established law ………………………………………………22

g. Fourteenth Amendment Retaliation claim pursuant

to 42 U.S.C. 1986 ……………………………………………………22

h. Fourteenth Amendment Retaliation claim pursuantto 42 U.S.C. 1988 ……………………………………………………23

C. CONCLUSION ……………………………………………………………… ..……23



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TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) .............................................................. 9

Anderson v. Law Firm of Shorty Dooley & Hall,

2009 WL 3837550(E.D. La., 2009) ........................................................................................... 5

Ashcroft v. Iqbal,

129 S.Ct. 1937 (2009) ................................................................................................................ 5

Bell Atlantic Corp. v. Twombly,

127 S.Ct 1955, 550 U.S. 544 (2007) .................................................................................... 5, 15

Benningfield v. City of Houston,

157 F.3d 369 (5th Cir.1998) ..................................................................................................... 11

Bradley v. Fisher ,

80 U.S. 335, 20 L. Ed. 646 (1871) ............................................................................................. 6

Briscoe v. LaHue,

460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983) ............................................................. 6

Bryan v. City of Madison, Miss.,

213 F.3d 267 (5th Cir. 2000) .................................................................................................... 20

City of Indianapolis v. Chase Nat’l Bank ,

314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941) ............................................................................ 2

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,

527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ............................................................ 3

Connor v. Reeves,

26,419 (La. App. 2 Cir. 1/25/95), 649 So. 2d 803 ..................................................................... 7Conroe Creosoting Co. v. Montgomery County,

249 F.3d 337 (5th Cir. 2001) ...................................................................................................... 9

Culbertson v. Lykos,

790 F.3d 608 (5th Cir. 2015) .............................................................................................. 10, 12

Diaz v. Allstate Ins. Co.,

433 So. 2d 699 (La. 1983) .......................................................................................................... 6

Dickerson v. Kemp,

540 So. 2d 467 (La. Ct. App. 1989) ........................................................................................... 7

Edelman v. Jordan,

415 U.S. 651 ............................................................................................................................... 3 Felton v. Polles,

315 F.3d 470 (5th Cir.2002) ..................................................................................................... 12

Fitzpatrick v. Bitzer,

427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ................................................................ 3

Forrester v. White,

484 U.S. 219 (1988) ................................................................................................................... 5



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Foster v. Powdrill ,

463 So. 2d 891 (La. Ct. App. 1985) ........................................................................................... 7

Galloway v. State of La.,

817 F.2d 1154 (5th Cir. 1987) ............................................................................................ 17, 23

Garcetti v. Ceballos,

547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) .............................................. 10, 13, 16Gibbs v. Buck ,

307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) ...................................................................... 2

Green v. Mansour ,

474 U.S. 64 (1985) ..................................................................................................................... 4

Harlow v. Fitzgerald,

457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) .............................................................. 9

Harrington v. Harris,

118 F.3d 359 (5th Cir.1997) ..................................................................................................... 11

Hill on Behalf of Hill v. Joseph,

94-1859 (La. App. 1 Cir. 5/5/95), 655 So. 2d 486 ..................................................................... 6 Hilliard v. Ferguson,

30 F. 3d (5th Cir. 1994) ................................................................................................ 14, 15, 21

Hope v. Pelzer,

536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ............................................................ 9

Kalina v. Fletcher,

522 U.S. 118 (1997) ............................................................................................................... 5, 6

Keenan v. Tejeda,

290 F.3d 252 (5th Cir.2002) ..................................................................................................... 12

Kimel v. Florida Bd. of Regents,

528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ................................................................ 3

Kinney v. Weaver,

367 F.3d 337 (5th Cir. 2004) ............................................................................................ 8, 9, 13

Knapper v. Connick ,

96-0434 (La. 10/15/96), 681 So. 2d 944 ................................................................................ 6, 7

Lindquist v. City of Pasadena, Tex.,

525 F.3d 383 (5th Cir. 2008) .................................................................................................... 19

McLellan v. Mississippi Power & Light Co.,

545 F.2d 919 (5th Cir. 1977) .................................................................................................... 15

Mitchell v. Forsyth,

472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985) ........................................................... 6

Nelson Radio & Supply Co. v. Motorola, Inc.,

200 F.2d 911 (5th Cir.1952) ..................................................................................................... 15

Nguyen v. Louisiana State Bd. of Cosmetology,

CIV.A. 14-00080-BAJ, 2015 WL 590006 (M.D. La. Feb. 11, 2015) .................................... 5, 6

O'Neal v. Mississippi Bd. of Nursing ,

113 F.3d 62 (5th Cir. 1997) ........................................................................................................ 5



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Pearson v. Callahan,

555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) ........................................................... 8

Pegram v. Honeywell, Inc.,

361 F.3d 272 (5th Cir.2004) ..................................................................................................... 12

Pennhurst State School and Hospital v. Halderman,

465 U.S. 89 (1984) ..................................................................................................................... 4 Port Auth. Trans-Hudson Corp. v. Feeney,

495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) ............................................................ 3

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) ........................................................... 4

Richardson v. Southern University,

118 F.3d 450 (5th Cir. 1997) ...................................................................................................... 3

Seminole Tribe v. Florida,

517 U.S. 44 (1996) ..................................................................................................................... 4

Smith v. State Through Dep't of Admin.,

96-0432 (La. App. 1 Cir. 5/9/97), 694 So. 2d 1184 ................................................................... 7Tenney v. Brandhove,

341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951) .................................................................. 6

Thompson v. Gaskill ,

315 U.S. 442, 62 S. Ct. 673, 86 L.Ed. 951 (1942) ..................................................................... 2

Village of Willowbrook v. Olech,

528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) .................................................. 18, 19

Will v. Michigan Dept. of State Police,

491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ............................................................. 4

Williams v. Bramer,

180 F.3d 699 (5th Cir.1999) ..................................................................................................... 18

Yaselli v. Goff ,

8 F.2d 161 (S.D.N.Y. 1925) ....................................................................................................... 7

Statutes

42 U.S.C. 1983, 1985 and 1986 ............................................................................................. passim

42 U.S.C. § 1985(3) .......................................................................................................... 14, 16, 21

42 U.S.C. §1986 .......................................................................................................... 16, 17, 22, 23

42 U.S.C. §1988 ...................................................................................................................... 17, 23

La. R.S. 13:5106(A) ........................................................................................................................ 3

La. R.S. 13:5108.0 .......................................................................................................................... 2

La. R.S. 13:5108.1 ........................................................................................................................ 20La. R.S. 42:1 ................................................................................................................................. 10

U.S. Const. amend. XI .................................................................................................................... 3

Rules

Fed. R. Civ. P. Rule 12(b)(1) .......................................................................................................... 2



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FED. R. CIV. P. RULE 12(B)(6) .................................................................................................... 5

Fed. R. Civ. P. Rule 8(a)(2) ............................................................................................................ 5

Other Authorities

52 Am.Jur.2d Malicious Prosecution § 67 (1964) ........................................................................ 11

Restatement (Second) Of Torts § 656 (1970) ............................................................................... 11



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MONROE DIVISION



*


*




JON K. GUICE; *




ALLYSON CAMPBELL

Defendants

*****************************************************************************



NOW INTO COURT comes James D. “Buddy” Caldwell (hereinafter “Caldwell”) who

responds to the Original Complaint and the Supplemental, Amended and Restated Complaint

(hereinafter “Amended Complaint”) filed by Plaintiff, Judge Sharon Ingram Marchman

(hereinafter “Plaintiff”) in this matter. Plaintiff filed this suit against Caldwell and others

pursuant to 42 U.S.C. 1983, 1985 and 1986, as well as the First and Fourteenth Amendments to

the Constitution of the United States. In her original Complaint, Plaintiff alleges that Caldwell is

being sued in his official capacity [Doc. 1, ¶6]; however, she alleges in her Amended Complaint

that she is solely suing Caldwell “for damages in [his] individual capacity[y] for action taken

under color of state law.” [Doc. 22, ¶6]



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Specifically, Plaintiff alleges that Caldwell “conspired with and assisted Campbell in her

retaliation against Judge Marchman and submitted the pleadings in which she was accused of

committing wrongful and illegal acts.” [Doc. 22, ¶16] Plaintiff also alleges that Caldwell

“assumed the defense of Campbell in civil litigation without ever properly conducting an

investigation to determine whether she was free from criminal conduct as required by La. R.S.

13:5108.0.” [Doc.22 ¶18] Plaintiff claims that the alleged actions of Caldwell are in violation of

her First Amendment Right to free speech and her Fourteenth Amendment Right to equal

protection.

For the following reasons, Caldwell is entitled to qualified and absolute immunity for all

of Plaintiff‟s claims against him; thus, all claims against Caldwell must be dismissed with

prejudice. To the extent Plaintiff brings her claims against Caldwell in his official capacity, he is

entitled to sovereign immunity pursuant to the Eleventh Amendment and those claims must be

dismissed without prejudice.

A. CALDWELL IS ENTITLED TO ELEVENTH AMENDMENT IMMUNITY FOR

ANY OFFICIAL CAPACITY CLAIMS AGAINST HIMA challenge to subject matter jurisdiction pursuant to Fed. R. Civ. P. Rule 12(b)(1) may

be raised at any time, by any party or by the court. Thompson v. Gaskill , 315 U.S. 442, 62 S. Ct.

673, 86 L.Ed. 951 (1942). The burden lies with the party invoking the jurisdiction of the court.

City of Indianapolis v. Chase Nat’l Bank , 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941). In

evaluating whether subject matter jurisdiction exists, the court accepts all uncontroverted factual

allegations as true. Gibbs v. Buck , 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939).

Although Plaintiff‟s Amended Complaint states that she brings her allegations against

Caldwell in his individual capacity, out of an abundance of caution, and because Plaintiff

asserted in her original Complaint claims against Caldwell in his official capacity, Caldwell



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states that any claims brought in his official capacity must be dismissed on the basis of Eleventh

Amendment immunity as shown herein below.

The Eleventh Amendment provides that “(t)he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against any one

of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.”

U.S. Const. amend. XI. The Supreme Court has “consistently held that an unconsenting State is

immune from suits brought in federal courts by her own citizens as well as citizens of another

State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct.1347, 39 L.Ed.2d 662 (1974).

The Eleventh Amendment is not an absolute bar, however, because states may consent to

suit. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868, 109 L.Ed.2d 264

(1990). It is clear that Louisiana, by statute, has refused to waive any Eleventh Amendment

sovereign immunity to suit in federal court with respect to the state and any state agency. See

La. R.S. 13:5106(A), which provides:

No suit against the state or a state agency or political subdivision shall be

instituted in any court other than a Louisiana state court.

Eleventh Amendment immunity from suit is not absolute. College Savings Bank v.

Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 670, 119 S.Ct. 2219,

144 L.Ed.2d 605 (1999). Congress may authorize a private party to bring a federal court suit

against unconsenting states in the exercise of its power to enforce the Fourteenth Amendment.

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000);

College Savings, 527 U.S. at 670, 119 S.Ct. 2219 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96

S.Ct. 2666, 49 L.Ed.2d 614 (1976)). However, Congress has not waived sovereign immunity for

Section 1983 actions. See Richardson v. Southern University, 118 F.3d 450, 453 (5th

Cir. 1997)



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State officials named in their official capacities are not considered “persons” for purposes

of 42 U.S.C. § 1983 because a suit against a state official in his official capacity is, in essence, a

suit against the state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,

2312, 105 L. Ed. 2d 45 (1989). It follows that the same analysis would apply to a suit against a

state official in his official capacity pursuant to §1985 and 1986. Therefore, a state official

named in his official capacity is entitled to sovereign immunity.

There is a limited exception to this rule, the Ex Parte Young doctrine. The Ex Parte

Young doctrine is a very narrow exception to sovereign immunity set forth in the Eleventh

Amendment and is applied on a case-by-case basis. Seminole Tribe v. Florida, 517 U.S. 44

(1996). In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court held that an individual may

sue a state official for prospective equitable relief requiring the state official to cease violating

federal law, even if the state itself is immune from suit under the Eleventh Amendment. See

generally, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). Ex Parte

Young abrogates sovereign immunity for State Officials only when the violation of federal law is

ongoing and the injunctive relief will directly end the violation of federal law. Green v. Mansour ,

474 U.S. 64, 68-69 (1985). The Ex Parte Young doctrine only applies to prospective relief and

does not allow judgments against state officials based on some past violation of federal law.

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S. Ct. 684,

688, 121 L. Ed. 2d 605 (1993).

Although Plaintiff has requested injunctive relief, Ex Parte Young does not apply to the

present case. The alleged violations of law for which Plaintiff seeks injunctive relief do not

constitute ongoing violations of federal law. Plaintiff alleges that Caldwell submitted pleadings

accusing her of wrongful and illegal acts; however, the alleged actions of Caldwell are past



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actions which are not alleged to be ongoing. As such, the Ex Parte Young exception does not

apply to the present case, and Caldwell is entitled to sovereign immunity for any claims asserted

against him in his official capacity.

B. PLAINTIFF FAILED TO STATE A CAUSE OF ACTION UPON WHICH

RELIEF CAN BE GRANTED AGAINST CALDWELL

1. FED. R. CIV. P. RULE 12(B)(6).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts “to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct 1955, 550 U.S. 544, at 547 (2007)). A claim is

facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The

court is not, however, bound to accept as true legal conclusions couched as factual allegations.

Iqbal, 129 S.Ct. at 149-50; Anderson v. Law Firm of Shorty Dooley & Hall, 2009 WL 3837550,

2(E.D. La., 2009). But where the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged- but it has not “show[n]” “that the

pleader is entitled to relief.” Fed. R. Civ. P. Rule 8(a)(2).

2. CALDWELL IS ENTITLED TO ABSOLUTE IMMUNITY FROM

THE CLAIMS ASSERTED AGAINST HIM BY PLAINTIFF

Absolute immunity denies a person whose federal rights have been violated by a

government official any type of remedy, regardless of the conduct. Nguyen v. Louisiana State

Bd. of Cosmetology, CIV.A. 14-00080-BAJ, 2015 WL 590006, at *4 (M.D. La. Feb. 11,

2015)(citing O'Neal v. Mississippi Bd. of Nursing , 113 F.3d 62, 65 (5th Cir. 1997)). “Whether an

official may assert absolute or qualified immunity depends on „the nature of the function

performed, not the identity of the actor who performed it.‟” Nguyen, supra, citing Kalina v.

Fletcher, 522 U.S. 118, 127 (1997) ( Forrester v. White, 484 U.S. 219, 229 (1988)).



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It is well-settled that absolute immunity only applies when the official‟s challenged

conduct was pursuant to “traditional official duties.” Nguyen, supra, see also Kalina, 522 U.S. at

131. In deciding whether officials performing a particular function are entitled to absolute

immunity, the U.S. Supreme Court has generally looked for a historical or common-law basis for

the immunity in question. Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S. Ct. 2806, 2813, 86 L.

Ed. 2d 411 (1985)(citing Briscoe v. LaHue, 460 U.S. 325, 330, 103 S. Ct. 1108, 1113, 75 L. Ed.

2d 96 (1983)). The immunities for judges, prosecutors, and witnesses established by our cases

have firm roots in the common law. Mitchell , 472 U.S. at 521. The judicial process is an arena

of open conflict, and in virtually every case there is, if not always a winner, at least one loser. Id.

It is inevitable that many of those who lose will pin the blame on judges, prosecutors, or

witnesses and will bring suit against them in an effort to relitigate the underlying conflict.

Mitchell , 472 U.S. at 521-22 (citing Bradley v. Fisher , 80 U.S. 335, 20 L. Ed. 646 (1871)).

Officials who are entitled to absolute immunity from liability for damages are subject to other

checks that help to prevent abuses of authority from going unredressed. Mitchell , 472 U.S. at

522. Legislators are accountable to their constituents, and the judicial process is largely self-

correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need

for damages actions to prevent unjust results. Mitchell , 472 U.S. at 522-23 (citing Tenney v.

Brandhove, 341 U.S. 367, 378, 71 S. Ct. 783, 789, 95 L. Ed. 1019 (1951)).

In addition, the Louisiana Supreme Court has also held that state prosecuting attorneys

acting within the scope of their prosecutorial duties are entitled to essentially the same immunity

extended to judges. Knapper v. Connick , 96-0434 (La. 10/15/96), 681 So. 2d 944, 946(citing

Diaz v. Allstate Ins. Co., 433 So. 2d 699 (La. 1983); Hill on Behalf of Hill v. Joseph, 94-1859

(La. App. 1 Cir. 5/5/95), 655 So. 2d 486 writ denied, 95-1841 (La. 11/3/95), 661 So. 2d 1381;



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Connor v. Reeves, 26,419 (La. App. 2 Cir. 1/25/95), 649 So. 2d 803 writ denied, 95-0771 (La.

4/28/95), 653 So. 2d 601; Dickerson v. Kemp, 540 So. 2d 467 (La. Ct. App. 1989); Foster v.

Powdrill , 463 So. 2d 891 (La. Ct. App. 1985). As noted by the Louisiana Supreme Court,

When they are officers of the state such as a prosecuting attorney orattorney general, it seems that attorneys at law are protected by an

absolute privilege and that their immunity is indefeasible.... “Unless so

protected, it would be but human that they might refrain from presentingto a grand jury or prosecuting a matter which in their judgment called for

action but which a jury might, possibly determine otherwise.” Fowler V.

Harper et. al., The Law of Torts § 4.3, at 413-14 (2d ed.1986), citing

Yaselli v. Goff , 8 F.2d 161, 162 (S.D.N.Y. 1925) aff'd, 12 F.2d 396 (2dCir. 1926) aff'd, 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927).

The Restatement (Second) Of Torts § 656 (1970) likewise provides that a“public prosecutor acting in his official capacity is absolutely privileged to

initiate, institute, or continue criminal proceedings.” See also, W. Page

Keeton et. al., Prosser and Keeton on the Law of Torts, § 132, at 1056-59

(5th ed.1984); 52 Am.Jur.2d Malicious Prosecution § 67 (1964).

Knapper , 681 So. 2d at 946-47

Furthermore, the Louisiana Court of Appeal for the Fi rst Circuit has explained that “the

absolute prosecutorial immunity adopted by the supreme court in the Knapper case covers the

actions taken by an assistant attorney general acting in the role of advocate for the state.” Smith

v. State Through Dep't of Admin., 96-0432 (La. App. 1 Cir. 5/9/97), 694 So. 2d 1184, 1187 writ

denied, 97-1493 (La. 11/14/97), 703 So. 2d 1288. Thus, Caldwell is entitled to absolute

immunity when his actions clearly fall within the scope of his role as an advocate for the state

and are intimately associated with the judicial phase of a judicial proceeding.

There can be no question that the actions taken by Caldwell that form the bases of

Plaintiff‟s claims against him were all taken within the scope of his role as an advocate for the

state. Louisiana Constitutional article 4, section 8 sets forth that “[a]s necessary for the assertion

or protection of any right or interest of the state, the attorney general shall have authority (1) to



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institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of

a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause,

when authorized by the court which would have original jurisdiction and subject to judicial

review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to

supersede any attorney representing the state in any civil or criminal action.”

Plaintiff alleges that “Caldwell was acting as the Attorney General for the State of

Louisiana” and filed pleadings on behalf of Campbell which “disparaged and falsely accused

Judge Marchaman of illegal acts.” [Doc. 22,¶18] The alleged actions of filing pleadings on

behalf of a state employee are certainly actions in which the Attorney General has the

constitutional authority to take. Moreover, the Attorney General clearly has the discretion to

determine whether his intervention is necessary for the assertion or protection of any right or

interest of the state or any state actor. Since Caldwell‟s alleged actions fall within the traditional

functions of Attorney General, Caldwell is entitled to absolute immunity from all of Plaintiff‟s

claims against him, regardless of the relief sought or the capacity in which he was sued.

3. CALDWELL IS ENTITLED TO QUALIFIED IMMUNITY FOR ALL CLAIMS

ASSERTED AGAINST HIM IN HIS INDIVIDUAL CAPACITY

In the alternative, should this Court find Caldwell is not entitled to absolute immunity for

Plaintiff‟s claims, Caldwell submits that he is entitled to qualified immunity for all claims

against him. Qualified immunity provides state officials with immunity from suit. Pearson v.

Callahan, 555 U.S. 223, 231-32, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). “The doctrine

of qualified immunity seeks to strike a balance between competing social objectives, providing

breathing space for the vigorous exercise of official authority while at the same time allowing a

possibility of redress for victims of officials' abuses.” Kinney v. Weaver, 367 F.3d 337, 349-50

(5th Cir. 2004). “As against claims under federal law, government officials performing



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discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id., citing Harlow v. Fitzgerald, 457 U.S. 800, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982). (Emphasis Added). “Qualified immunity operates to ensure

that before they are subjected to suit, officers are on notice that their conduct is unlawful.” Hope

v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The U.S. Supreme Court

has refined the qualified immunity standard by defining “clearly established” in a way that

encompasses the “objective reasonableness” inquiry. To be “clearly established,” the contours of

the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97

L.Ed.2d 523 (1987). The question of whether the right was clearly established requires an

assessment of whether the official's conduct would have been objectively reasonable at the time

of the incident. Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337, 340 (5th Cir.

2001). An official‟s conduct is protected by qualified immunity unless the very action in

question has been held unlawful. Kinney, 367 F.3d at 349-350, citing Anderson, supra.

A necessary concomitant to the determination of whether the constitutional right asserted

by a plaintiff is “clearly established” at the time the defendant acted is the determination of

whether the plaintiff has asserted a violation of a constitutional right at all. Id. Therefore, before

engaging in the inquiry into whether the official unreasonably violated clearly established law,

courts should first determine whether the challenged conduct, viewed in the light most favorable

to the plaintiff, would actually amount to a violation of federal law in the first place. Id. For the

reasons set forth below, the Caldwell is entitled to qualified immunity for all claims brought

against him in the Amended Complaint.



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a. First Amendment Retaliation claim pursuant to 42 U.S.C. 1983

Plaintiff alleges that Caldwell violated her “Fir st Amendment right to free speech by

retaliating against her when she tried to stop the cover-up of Defendant Campbell‟s payroll fraud

and document destruction and when she tried to rightfully expose same.” [Doc. 22, ¶28] The

alleged conduct of Caldwell is not a violation of federal law, and Caldwell is entitled to qualified

immunity. Alternatively, should this Court find that the alleged conduct is a violation of federal

law, the conduct is not a “clearly established” violation of federal law; thus, Caldwell is entitled

to qualified immunity.

i. Plaintiff failed to establish a violation of federal law

There are two frameworks under which First Amendment retaliation claims are analyzed;

(1) alleged retaliation by the government against a private citizen and (2) alleged retaliation by a

government employer against its public employee. According to the facts as alleged in the

Amended Complaint, Caldwell is not alleged to be Plaintiff ‟s employer; however, Plaintiff is

alleged to be a judge in the Fourth Judicial District Court and, therefore, a public official. La.

R.S. 42:1.

a. Public Employee Framework

With respect to the retaliation claim in the public employment context, it is well-settled

that speech made pursuant to official duties is not protected by the First Amendment. Garcetti v.

Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); see also Culbertson v.

Lykos, 790 F.3d 608, 618 (5th Cir. 2015). The facts as alleged in the Amended Complaint show

that Plaintiff ‟s alleged speech was pursuant to her official duties as a judge of the Fourth Judicial

District Court and as chair of the personnel committee. [Doc. 22, ¶19] Specifically, the protected

speech Plaintiff alleges is that she discussed Defendant Campbell‟s attendance issues with

Defendant Judges Rambo and Amman [Doc. 22, ¶19]; she turned over a complaint against



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Defendant Campbell to the chief judge [Doc. 22, ¶38]; she moved to terminate Defendant

Campbell in a meeting of the judges [Doc. 22, ¶51]; she disagreed with the consensus at a

judge‟s meeting regarding production of documents, she urged Judge Winters to reconsider and

reiterated her position in a meeting of the judges [Doc. 22, ¶¶54, 55, 57]; she refused to recuse

herself from an employee matter [Doc. 22, ¶60]; and she questioned Judge Sharp‟s directive to

give certain documents subject to a subpoena [Doc. 22, ¶69]. All of this speech was made

pursuant to Plaintiff ‟s official duties as a Fourth Judicial District Court judge and/or as chair of

the personnel committee. Furthermore, Plaintiff has not alleged that her speech was made as a

private citizen; thus, Plaintiff ‟s claims for First Amendment retaliation analyzed in the public

employment context must fail.

In the alternative, should this Court decide that Plaintiff ‟s speech was not made pursuant

to her official duties, Plaintiff ‟s First Amendment retaliation claim analyzed in the public

employment context must still fail as to her claims against Caldwell. A First Amendment

retaliation claim by a public employee must include facts showing (1) that the employee's speech

involved a matter of public concern, (2) that the employee suffered an adverse employment

action for exercising her First Amendment rights, and (3) that the employee's exercise of free

speech was a substantial or motivating factor in the adverse employment action. See Harrington

v. Harris, 118 F.3d 359, 365 (5th Cir.1997); Benningfield v. City of Houston, 157 F.3d 369, 375

(5th Cir.1998).

First, Caldwell is not Plaintiff‟s employer and is not alleged to be her employer; thus, he

cannot take an adverse employment action against her. Second, Plaintiff has not alleged that she

suffered an adverse employment action. “An adverse employment action consists of „ultimate

employment decisions such as hiring, granting leave, discharging, promoting, and



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compensating.‟” Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.2004), citing Felton v.

Polles, 315 F.3d 470, 486 (5th Cir.2002). Here, Plaintiff has not alleged that she has been

discharged, demoted, reprimanded, or refused for hire or promotion. The only allegation of a

potential adverse employment action is Plaintiff‟s decision to resign as chair of the personnel

committee. This is not an adverse employment action. There is no need to analyze the third

factor as Plaintiff failed to allege an adverse employment action taken against her by Caldwell or

anyone else. Thus, Plaintiff cannot prevail on her First Amendment retaliation claim as analyzed

in the public employee context.

b. Private citizen framework

In order to establish a §1983 claim of retaliation for exercise of free speech analyzed in

the private citizen context against Caldwell, Plaintiff must prove that: (1) she was engaged in

constitutionally protected activity; (2) Caldwell‟s alleged actions caused her to suffer an injury

that would chill a person of ordinary firmness from continuing to engage in that activity; and (3)

Plaintiff ‟s exercise of her protected right was a substantial or motivating factor in Caldwell‟s

actions. Culbertson, 790 F.3d 608, 618; citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th

Cir.2002).

Plaintiff failed to allege all essential elements of her §1983 claim of retaliation for

exercise of free speech against Caldwell. Plaintiff ‟s speech is not protected under the First

Amendment because, as explained above, she made the speech in furtherance of her official

duties as judge of the Fourth Judicial District Court and chair of personnel committee; thus there

is no need in analyzing the remaining elements of her claim.



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Whether Plaintiff‟s claims are analyzed under the public or the private framework,

Plaintiff has failed to assert a violation of a federal right with respect to her First Amendment

allegations against Caldwell and he is entitled to qualified immunity for said claims.

ii. Plaintiff failed to allege Caldwell violated clearly established law

In the unlikely event this Court decides that Plaintiff did allege a violation of a federal

right with respect to her §1983 First Amendment retaliation claims against Caldwell, Caldwell

shows that he did not violate clearly established law because the right at issue was not clearly

established at the time of Caldwell‟s alleged conduct. A state official will not lose his qualified

immunity unless the law is clear that the particular action by the state official violates a protected

right. Kinney, supra, at 349-350. Instead, Caldwell asserts that the alleged actions were not

clearly established as violations of Plaintiff‟s right to free speech.

As previously mentioned, Plaintiff‟s alleged protected speech was made in furtherance of

her official duties as judge and chair of personnel matters. The law clearly establishes that

speech made in connection with official duties is not protected under the First Amendment.

Garcetti, 547 U.S. 410. Here, Plaintiff alleges that Caldwell violated her First Amendment right

to free speech by retaliating against her when she attempted to halt and expose Defendant

Campbell‟s alleged payroll fraud and document destruction. [Doc.22, ¶98] Because Plaintiff‟s

right to First Amendment protections for her speech were not clearly established, it cannot be

shown that Caldwell was on notice that Plaintiff‟s rights were vulnerable to violation by his

alleged actions.

Therefore, Caldwell is entitled to qualified immunity and to have Plaintiff‟s claims

against him for First Amendment violation pursuant to 42 U.S.C. 1983 dismissed because



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Plaintiff failed to allege that Caldwell violated her federal rights and/or that Plaintiff‟s federal

rights were clearly established.

b. First Amendment Retaliation claim pursuant to 42 U.S.C. 1985

Plaintiff alleges Caldwell conspired to “violate her First Amendment right to free speech

by retaliating against her when she tried to end the cover-up of Defendant Campbell‟s payroll

fraud and document destruction and when she tried to rightfully expose same.” [Doc. 22,¶101]

The alleged conduct of Caldwell is not a violation of federal law and Caldwell is entitled to

qualified immunity. Alternatively, should this Court find that the alleged conduct is a violation of

federal law, the conduct is not a “clearly established” violation of federal law; thus, Caldwell is

entitled to qualified immunity.


“To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy

involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person

or class of persons of the equal protection of the laws, or equal privileges and immunities under

the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or

property, or a deprivation of any right or privilege of a citizen of the United States.” Hilliard v.

Ferguson, 30 F. 3d at 652-653 (5th Cir. 1994). Plaintiff has not alleged all essential elements for

her claim of conspiracy against Caldwell.

Plaintiff will be unable to show a conspiracy involving two or more persons with respect

to her allegations against Caldwell. Regarding Defendant Campbell, it is not possible for

Caldwell to have conspired with Defendant Campbell. Plaintiff alleges that Caldwell took all

actions as Defendant Campbell‟s attorney. Assuming Plaintiff‟s allegations as true, Caldwell

acted as Defendant Campbell‟s agent and thus, was acting as one and not as two separate people.



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It is well-established that a conspiracy requires two or more persons. Nelson Radio & Supply Co.

v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952). “It is a long-standing rule in this circuit that

a „corporation cannot conspire with itself any more than a private individual can, and it is the

general rule that the acts of the agent are the acts of the corporation.‟” Hilliard , 30 F.3d 649, 653,

citing Nelson, supra. To that end, the alleged actions of Caldwell and Campbell regarding

pleadings filed in Campbell‟s legal matter have the same agent relationship, thus they are

incapable of conspiracy.

Likewise, Caldwell is not capable of conspiring with special assistant attorneys general

because they have the same agent relationship. It is alleged that Caldwell, Defendant Crawford

and Defendant Pettiette all provided legal representation to Defendant Campbell in the same

matter. Taking Plaintiff‟s allegations as true, Plaintiff cannot show a conspiracy because

Defendant Campbell‟s attorneys similarly act as one for the benefit of Defendant Campbell, not

as two or more.

Lastly, Plaintiff failed to allege any factual allegations regarding this alleged conspiracy

between Caldwell and the Defendant Judges. Although Plaintiff makes a blanket, baseless

assertion in her Amended Complaint that all Defendants committed the alleged conspiracy to

violate her First Amendment right, she failed to plead any particulars regarding this allegation

with respect to Caldwell and the Defendant Judges. It is well-settled that baseless assertions

without more are not sufficient to state a valid claim. Twombly, at 557, 127 S.Ct. 1955.

With regard to the second factor, it is a requirement that the alleged conspirators must

have violated a law which affords the plaintiff some protection. In McLellan v. Mississippi

Power & Light Co., 545 F.2d 919, 925 (5th Cir. 1977), the Fifth Circuit analyzed the issue in this

manner,



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If the object of the defendants' conspiracy did not include a violation of some law

(independent of section 1985(3) itself) which protects the plaintiff, the conspiracy

could not have deprived the plaintiff of the “protection of the laws”. Put moresimply, there can only be a deprivation of the rights of a plaintiff when the action

of the defendants is otherwise illegal. If the defendants have not conspired to act

contrary to law, an object of a section 1985(3) conspiracy has not been made outand the section is inoperable, regardless of whether the legal rights of the plaintiffare somehow affected.

As stated herein, Caldwell has not violated Plaintiff‟s First Amendment right, or any

other right, because all of the alleged speech was made in furtherance of her duties as a judge

and chief of the personnel committee and she is not entitled to First Amendment protection for

said speech. Thus, Plaintiff failed to sufficiently allege the first and second element of her

§1985(3) First Amendment retaliation claim. As Plaintiff cannot meet all of the essential

elements of her First Amendment §1985 claim, Caldwell is entitled to qualified immunity.


Alternatively, even if this Court were to find that Plaintiff sufficiently stated a claim

against Caldwell for conspiracy to violate her First Amendment right, Caldwell shows that such

right was not clearly established at the time of his alleged conduct . Plaintiff‟s speech was made

as part of her duties as judge and chair of the personnel committee and the law is clear that acts

in furtherance of official duties are not protected by the First Amendment. Garcetti, 547 U.S.

410. Thus, it was not clearly established that Plaintiff had a right to freedom of speech and

Caldwell is entitled to qualified immunity for her §1985 claims.

c. First Amendment Retaliation claim pursuant to 42 U.S.C. 1986

Plaintiff asserts a claim against Caldwell pursuant to 42 U.S.C. §1986 for alleged

violation of her First Amendment right to free speech. 42 U.S.C. §1986 provides a cause of

action against “[e]very person who, having knowledge that any of the wrongs conspired to be

done, and mentioned in section 1985 of this title, are about to be committed, and having power to



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prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such

wrongful act be committed…” As explained above, Plaintiff failed to state a cause of action

against Caldwell pursuant to 42 U.S.C. §1985; thus, Plaintiff‟s claim against Caldwell pursuant

to 42 U.S.C. §1986 must also fail. Galloway v. State of La., 817 F.2d 1154 (5th Cir. 1987).

Additionally, Caldwell is entitled to qualified immunity for said claims because Plaintiff

failed to allege a clearly established violation of law.

d. First Amendment Retaliation claim pursuant to 42 U.S.C. 1988

Plaintiff asserts a claim against Caldwell pursuant to 42 U.S.C. §1988 for attorneys‟ fees

and costs associated with her claims pursuant to 42 U.S.C. §1983, 1985, and 1986. Since

Plaintiff failed to state a cause of action against Caldwell pursuant to 42 U.S.C. §1983, 1985, and

1986 as previously stated, her request for attorney fees and costs must also fail. Id.

e. Fourteenth Amendment Retaliation claim pursuant to 42 U.S.C. 1983

Plaintiff alleges that Caldwell violated her Fourteenth Amendment rights to equal

protection by “singling her out for unfavorable treatment without adequate justification.” [Doc.

22, ¶107] Plaintiff further claims her Fourteenth Amendment rights were violated by Caldwell

creating a hostile work environment. [Doc. 22, ¶108] Caldwell is entitled to qualified immunity

for Plaintiff‟s claims.

As stated hereinabove, Plaintiff must show that the conduct of Caldwell was a clearly

established violation of federal law in order to overcome Caldwell‟s qualified immunity. The

alleged conduct of Caldwell is not a violation of federal law, and Caldwell is entitled to qualified

immunity. Alternatively, should this Court find that the alleged conduct is a violation of federal

law, the conduct is not a “clearly established” violation of federal law; thus, Caldwell is ent itled




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To successfully assert an equal protection claim under 42 U.S.C. § 1983, the plaintiff

must show that “a state actor intentionally discriminated against the plaintiff because of

membership in a protected class”. Williams v. Bramer, 180 F.3d 699, 705 (5th Cir.1999).

Plaintiff has not alleged that she is a member of a protected class, nor has she alleged that she

possesses a protected characteristic. Instead, Plaintiff claims that she has been “singled out for

disparate treatment” because she has “tried to do the right thing and stop the cover -up of

Campbell‟s payroll fraud and document destruction.” [Doc. 22,¶85] Plaintiff‟s equal protection

claim appears to stem from a narrow exception known as the “class of one” theor y. The “class

of one” exception, however, does not apply to the present case.

“In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 1074-75, 145

L.Ed.2d 1060 (2000), the Court held that a plaintiff who does not allege membership in a

protected class or group may still hold a cause of action pursuant to the Equal Protection Clause

under the theory of a “class of one” exception. In order state a sufficient claim for relief, the

“class of one” plaintiff must allege intentionally different treatment from others similarly situated

and “that no rational basis existed for such treatment.” Id.

The class of one exception, however, does not apply in the present case. Plaintiff failed

to allege that she was subjected to intentionally different treatment from others similarly situated.

According to the allegations of the Amended Complaint, Plaintiff avers she attempted to “expose

Defendant Campbell‟s actions” and that the other judges attempted to cover-up Defendant

Campbell‟s alleged wrongdoing. [Doc. 22, ¶7] Because Plaintiff failed to allege that other

judges in the Fourth Judicial District Court also attempted to “expose Campbell‟s actions” and

were treated differently than Plaintiff, Plaintiff‟s cause of action must fail. Id. In essence,



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Plaintiff failed to allege that she is similarly situated to any other individuals with respect to her

claims. Thus, her “class of one” equal protection claim must fail.

In Olech, the plaintiff filed suit after the Village of Willowbrook was willing to connect

the plaintiff‟s property to the municipal water supply only on the condition that the plaintiff grant

the Village a thirty-three (33) foot easement. Olech, 528 U.S. at 564. The plaintiff claimed that

this was an equal protection violation because the Village only required a fifteen (15) foot

easement from other property owners. Id . The court found that the plaintiff had stated a claim

for relief under the Equal Protection Clause because the plaintiff‟s “complaint can fairly be

construed as alleging that the Village intentionally demanded a 33-foot easement as a condition

of connecting her property to the municipal water supply where the Village required only a 15-

foot easement from other similarly situated property owners.” Id. at 565.

In contrast, in this case, Plaintiff failed to allege that other judges of the Fourth Judicial

District attempted to expose Campbell‟s “history of payroll fraud and document destruction.”

[Doc. 22, ¶14]. On the contrary, Plaintiff alleged that the other Fourth Judicial District judges

attempted to “cover -up [] Defendant Campbell‟s history of wrongdoing.” [Doc., 22, ¶7] Since

the parties at issue in this matter are not alleged to have been seeking similar outcomes and/or

taking the same actions as is alleged in Olech, there can be no finding of a plausible claim for

equal protection.

Even if Plaintiff could establish that she was treated differently than other similarly

situated persons, she has not alleged that Caldwell‟s alleged action lacked a rational basis.

Plaintiff is required to „negat[e] any reasonably conceivable state of facts that could provide a

rational basis' for [the alleged] differential treatment.” Lindquist v. City of Pasadena, Tex., 525

F.3d 383, 387 (5th Cir. 2008). Even accepting Plaintiff‟s allegations as true, she cannot show a



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lack of rational basis because Caldwell‟s alleged actions were purportedly taken in his role as

Attorney General, and it is well-settled that the Attorney General has a statutory duty to provide

representation to state employees in lawsuits against them when the state employee is accused of

conduct in the performance of his official duties and is free of criminal conduct. La. R.S.

13:5108.1. Since Caldwell was fulfilling that role in providing a defense of Defendant Campbell

through the Special Assistant Attorneys General, he has articulated a sufficient rational basis to

overcome Plaintiff‟s equal protection claim.

Should the Court choose to analyze Plaintiff‟s equal protection claims in the “selective

enforcement” context, Plaintiff‟s claims still must fail. In a selective enforcement case, Plaintiff

must not only show that the defendant selectively used his powers against her, but must also

show “the government official's acts were motivated by improper considerations, such as race,

religion, or the desire to prevent the exercise of a constitutional right.” Bryan v. City of Madison,

Miss., 213 F.3d 267, 277 (5th Cir. 2000). Plaintiff failed to allege that Caldwell selectively used

his powers against her by providing legal representation for Defendant Campbell and allegedly

instituting certain pleadings containing allegations about Plaintiff. As noted above, Caldwell has

a statutory duty to provide a defense to Campbell, and Plaintiff does not claim that Caldwell

refused to provide a defense for Plaintiff, nor does she point to any other way that she was

treated differently than Campbell by Caldwell. Furthermore, Plaintiff neglected to assert that

Caldwell‟s alleged actions were motivated by illegal motive such as race, religion or the desire to

prevent the exercise of a constitutional right. Therefore, there is no claim of selective

enforcement. Plaintiff has not established that Caldwell violated a federal law, thus he is entitled




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In the alternative, should this Court find Caldwell violated federal law, he is still entitled

to qualified immunity because the federal law was not clearly established. Since Plaintiff does

not allege membership in a protected class, the only theory available for her claim is the “class of

one” exception. Since, by its very nature, it is an exception and not the general rule, it follows

that the “class of one” exception is not clearly established. Thus, Caldwell is entitled to qualified

immunity for Plaintiff‟s Fourteenth Amendment retaliation claims pursuant to §1983.

f. Fourteenth Amendment Retaliation claim pursuant to 42 U.S.C. 1985

Plaintiff alleges that Caldwell conspired to violate her Fourteenth Amendment rights to

equal protection by “singling her out for unfavorable treatment without adequate justification”

and creating a hostile work environment.” [Doc. 22, ¶110, 111] As stated hereinabove, Plaintiff

must show that the conduct of Caldwell was a clearly established violation of federal law in

order to overcome Caldwell‟s qualified immunity. The alleged conduct of Caldwell is not a

violation of federal law and Caldwell is entitled to qualified immunity. Alternatively, should this

Court find that the alleged conduct is a violation of federal law, the conduct is not a “clearly

established” violation of federal law; thus, Caldwell is entitled to qualified immunity.


“To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy

involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person

or class of persons of the equal protection of the laws, or equal privileges and immunities under

the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or

property, or a deprivation of any right or privilege of a citizen of the United States.” Hilliard, 30



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F. 3d at 652-653. Plaintiff has not alleged all essential elements for her claim of conspiracy

against Caldwell.

As explained hereinabove with respect to Plaintiff‟s First Amendment conspiracy claims,

Plaintiff‟s claims must fail because she did not allege a conspiracy involving two or more

persons. Secondly, Plaintiff did not sufficiently allege a deprivation of equal protection, as

discussed hereinabove. Thus, Plaintiff cannot establish a violation of federal law and Caldwell is

entitled to qualified immunity for the claims of conspiracy to retaliate pursuant to § 1985.


In the alternative, should this Court find Caldwell violated federal law, he is still entitled

to qualified immunity because the federal law was not clearly established. As is more fully

explained above, it is not clearly established that Plaintiff is entitled to equal protection under the

facts as alleged in the Amended Complaint. Since Plaintiff did not allege membership in a

protected class, her claims can only survive upon a showing that she falls within the “class of

one” exception. Since this is an exception and not the general rule, it follows that her alleged

rights are not clearly established. Thus, Caldwell is entitled to qualified immunity for the claims

of conspiracy to retaliate pursuant to § 1985.

g. Fourteenth Amendment Retaliation claim pursuant to 42 U.S.C. 1986

Plaintiff asserts a claim against Caldwell pursuant to 42 U.S.C. §1986 for alleged

violation of her Fourteenth Amendment right to equal protection. 42 U.S.C. §1986 provides a

cause of action against “[e]very person who, having knowledge that any of the wrongs conspired

to be done, and mentioned in section 1985 of this title, are about to be committed, and having

power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if

such wrongful act be committed…” As explained above, Plaintiff failed to state a cause of



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action against Caldwell pursuant to 42 U.S.C. §1985; thus, Plaintiff‟s claim against Caldwell

pursuant to 42 U.S.C. §1986 must also fail. Galloway v. State of La., 817 F.2d 1154 (5th Cir.

1987).

Additionally, Caldwell is entitled to qualified immunity for said claims because Plaintiff

failed to allege a clearly established violation of law.

h. Fourteenth Amendment Retaliation claim pursuant to 42 U.S.C. 1988

Plaintiff asserts a claim against Caldwell pursuant to 42 U.S.C. §1988 for attorneys‟ fees

and costs associated with her claims pursuant to 42 U.S.C. §1983, 1985, and 1986. Since

Plaintiff failed to state a cause of action against Caldwell pursuant to 42 U.S.C. §1983, 1985, and

1986 as previously stated, her request for attorney fees and costs must also fail. Id.

C. CONCLUSION

For the foregoing reasons, Caldwell respectfully submits that all of Plaintiff ‟s claims

against him should be dismissed on the basis of Eleventh Amendment immunity, absolute

immunity and/or qualified immunity. Thus, Caldwell respectfully requests that his 12(B)(1) and

12(B)(6) Motion to Dismiss be granted and for dismissal of all claims against him with prejudice

and for all other relief allowed by law, including attorneys‟ fees and costs pursuant to 42 U.S.C.

§1988.

Signature page follows



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JEFF LANDRY

ATTORNEY GENERAL

/s/ Mary Ann M. White____________E. Wade Shows, La. Bar No. 7637 (Lead Attorney)

[email protected]



[email protected]


P.O. Drawer 4425

Baton Rouge, Louisiana 70821

Telephone: (225) 346-1461Fax: (225) 346-1467


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing pleading has been served on all counsel of

record on this date, May 20, 2016, by electronic submission through the Court‟s Case

Management/Electronic Case Filing (“CM/ECF”) System.

/s/ Mary Ann M. White

Mary Ann M. White


05202016 Caldwel Motion to Dismiss

Documents

Transcript of 05202016 Caldwel Motion to Dismiss