06062016 Opposition of Caldwell's Motion to Dismiss

8/15/2019 06062016 Opposition of Caldwell's Motion to Dismiss

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

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

MARCHMAN *

Plaintiff * JUDGE S. MAURICE HICKS

*

VERSUS * MAGISTRATE PEREZ-MONTES

*

BRIAN E. CRAWFORD; * JURY TRIAL DEMANDED

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 *

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

MEMORANDUM IN OPPOSITION TO

JAMES D. “BUDDY” CALDWELL’S MOTION TO DISMISS

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

I. INTRODUCTION ...............................................................................................................1

II. ARGUMENT AND ANALYSIS ........................................................................................2

A. Caldwell’s Claim of Eleventh Amendment Immunity ............................................2

1. F.R.C.P. 12(b)(1) Standard ..........................................................................2

2. Eleventh Amendment Immunity Does Not Bar AllOfficial Capacity Claims against Caldwell ..................................................2

B. Caldwell’s Rule 12(b)(6) Claims .............................................................................4

1. F.R.C.P. 12(b)(6) Standard ..........................................................................4

Case 3:16-cv-00515-SMH-JPM Document 28 Filed 06/06/16 Page 1 of 21 PageID #: 215


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Economy Carpets Mfrs. & Distributors, Inc. v.

Better Business Bureau of Baton Rouge, Inc., 333 So. 2d 765

(La. App. 1st Cir. 1976), writ denied, 334 So. 2d 428 (La. 1976). ...........................................13, 14

Garcetti v. Ceballos, 547 U.S. 410 (2006). .................................................................................8, 9

Hafer v. Melo, 502 U.S. 21 (1991) ..................................................................................................3

Haley v. Leary, 2009-1626 (La. App. 4 Cir. 8/4/10), 69 So. 3d 430, writ denied ,

2010-2265 (La. 12/17/10), 51 So. 3d 14, cert. denied , 132 S.Ct 104 (2011) ..................................5

Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994) ........................................................................13

Hutto v. Finney, 437 U.S. 678 (1978) ..............................................................................................3

Hynson v. City of Chester , 827 F.2d 932 (3d Cir.1987),

cert. denied , 484 U.S. 1007 (1988) ..................................................................................................7

In re Great Lakes Dredge & Dock Co., 624 F.3d 201 (5th Cir. 2010) ............................................4

Jones v. Bd. of Supervisors of the Univ. of Louisiana Sys.,2015 WL 3409477 (E.D.La. 2015) ................................................................................................15

Loughlin v. Tweed , 310 F.R.D. 323 (E.D. La. 2015) ......................................................................7

Luttrell v. Douglas, 220 F. Supp. 278 (N.D. Ill. 1963) ....................................................................5

McManus v. Cont'l Airlines, Inc., 2012 WL 704728 (W.D. La. 2012) ...........................................2

Meese v. Keene, 481 U.S. 465 (1987) ........................................................................................9, 10

Morehouse v. Jackson, 2008 WL 4664075 (M.D.La. 2008) ...........................................................2

Morgan v. Laurent , 06-467 (La. App. 5 Cir. 12/27/06),948 So. 2d 282, writ denied, 2007-0178 (La. 3/16/07), 952 So. 2d 701......................................5, 6

Parsons v. U.S. Dep't of Justice, 801 F.3d 701 (6th Cir. 2015) .................................................9, 10

Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................11

Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295 (S.D. Ala. 2000) ............................................7

Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ................................................................2

Rich v. Dollar , 841 F.2d 1558 (11th Cir. 1988) ...............................................................................7



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St. Martin v. Jones, 2008 WL 4412267 (E.D.La. 2008) ......................................................4, 13, 15

Tabb v. Norred , 277 So. 2d 223 (La. App. 3 Cir. 1973) ................................................................14

Turkish Coal. Of Am., Inc. v. Bruininks, 678 F.3d 617 (8th Cir. 2012) ...........................................9

U.S. v. Uvalde Consol. Independent School Dist., 625 F.2d 547 (5th

Cir. 1980) .............................4

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................................................11

Warnock v. Pecos Cty., 88 F.3d 341 (5th Cir. 1996) ...................................................................2, 3

Waste Commanders, LLC v. BFI Waste Servs., LLC,

2015 WL 1089320 (W.D.La. 2015) ...............................................................................................15

Williams v. Wood , 612 F.2d 982 (5th

Cir. 1980) ..............................................................................4

Yates v. Vill. of Hoffman Estates, Ill ., 209 F. Supp. 757 (N.D. Ill. 1962) ........................................5

Statutes Page

42 U.S.C. § 1983 ........................................................................................................3, 8, 10, 12, 13

42 U.S.C. § 1985 ................................................................................................8, 10, 12, 13, 14, 15

42 U.S.C. § 1986 ............................................................................................................8, 10, 12, 15

42 U.S.C. § 1988 ........................................................................................................2, 8, 10, 12, 15

F.R.C.P. 12(b)(1) .........................................................................................................................1, 2

F.R.C.P. 12(b)(6) .............................................................................................................1, 4, 10, 13

F.R.C.P. 15….. ...............................................................................................................................15

La. C.C. art. 2324 ...........................................................................................................................14

La. R.S. 13:5108.1 .................................................................................................................6, 7, 12

U.S. Constitution, Amendment I............................................................................................8, 9, 10

U.S. Constitution, Amendment XIV ............................................................................10, 11, 12, 13



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MAY IT PLEASE THE COURT:

Plaintiff, Judge Sharon Ingram Marchman, hereby submits her opposition to the Motion

to Dismiss filed by Defendant James D. “Buddy” Caldwell pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. Therein, Caldwell argues that Judge

Marchman has failed to state a claim against him; however, as discussed below, Judge

Marchman has met her burdens under F.R.C.P. 12(b)(1) of proving jurisdiction and under

F.R.C.P. 12(b)(6) of stating claims. Therefore, Defendant’s motion should be denied, and Judge

Marchman should be allowed to prosecute her claims against Caldwell. In the event that this

Court finds, however, that no claim has been stated, Judge Marchman would request that she be

granted 30 days in which to ask for leave to amend her complaint.

I. INTRODUCTION

The claims asserted by Judge Marchman in her Supplemental, Amended, and Restated

Complaint1 (“Amended Complaint”) arise out of the retaliation and actions to which she has

been subjected due to her efforts to reveal payroll fraud, document destruction, and the

conspiracy to conceal same, at the Fourth Judicial District Court (“Fourth JDC”), where she has

served as a duly-elected judge since the year 2000. As set forth in the Amended Complaint,

Defendant Caldwell and Defendants Brian E. Crawford and Lawrence W. Pettiette, Jr., conspired

with and assisted their client, Defendant Allyson Campbell, a Fourth JDC law clerk, in her

retaliation against Judge Marchman and filed pleadings in the matter of Palowsky v. Campbell,

4th

JDC Docket No. 15-2179, in which Judge Marchman was accused of improperly disclosing

information about Campbell, committing illegal acts, and having a “vendetta” against Campbell.2

1 Doc. No. 22.2 Doc. No. 22, ¶¶ 16, 18, 73 – 74.



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Defendant Caldwell was acting under color of law when he committed these acts, which

constituted violations of Judge Marchman’s constitutional rights.

II. ARGUMENT AND ANALYSIS

A. Caldwell’s Claim of Eleventh Amendment Immunity

1. F .R.C.P. 12(b)(1) Standard

Caldwell argues first that pursuant to the Eleventh Amendment, this Court has no

jurisdiction over any of Judge Marchman’s claims against him in his official capacity; therefore,

said claims should be dismissed under F.R.C.P. 12(b)(1) for lack of jurisdiction. Caldwell bears

the burden of proving that this Court has no jurisdiction. McManus v. Cont'l Airlines, Inc., 2012

WL 704728, at *1 (W.D. La. 2012)(citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001)). A motion to dismiss for lack of subject matter jurisdiction should only be granted “if it

appears certain that the plaintiff cannot prove any set of facts in support of his claim that would

entitle plaintiff to relief.” Id. Further, any claims barred by sovereign immunity can only be

dismissed without prejudice. Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996).

2. Eleventh Amendment Immuni ty Does Not Bar Al l Off icial Capacity

Claims against Caldwell .

While Caldwell argues that Eleventh Amendment sovereign immunity bars all Judge

Marchman’s claims against him in his official capacity, he is incorrect. The Eleventh

Amendment does not bar claims against Caldwell in his official capacity for declaratory relief or

attorney fees under 42 U.S.C. § 1988. Declaratory relief “is not barred by the Eleventh

Amendment when the defendants are sued in their official capacity for violation of federal law. ”

Morehouse v. Jackson, 2008 WL 4664075, at *4 (M.D.La. 2008)(citing Warnock, 88 F.3d at

343). Additionally, claims “f or fees associated with prospective relief and fees that may be



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awarded as costs are not barred by the Eleventh Amendment.” Warnock, 88 F.3d at 343 (citing

Hutto v. Finney, 437 U.S. 678 (1978)).

Further, in her Amended Complaint, Judge Marchman clarified that she is not seeking to

recover monetary damages from the Louisiana treasury for Caldwell’s actions.3 To the contrary,

she is seeking to impose individual liability and recover damages from Caldwell personally for

his actions under color of law which violated her constitutional rights.4 Significantly, the

Eleventh Amendment “provides no shield for a state official confronted by a claim that he had

deprived another of a federal right under the color of state law.” Hafer v. Melo, 502 U.S. 21, 30

(1991)(citations omitted). In other words, “the Eleventh Amendment does not erect a barrier

against suits to impose ‘individual and personal liability’ on state officials under § 1983.” Id. at

30 – 31 (emphasis added). Consequently, because Judge Marchman is not seeking to recover

damages from the state for Caldwell’s actions but is instead seeking to recover from him

personally, there is absolutely no Eleventh Amendment bar to her claims against Caldwell in his

individual capacity for actions he took under color of law.

Under clear jurisprudence, claims against Defendant Caldwell in his official capacity for

attorney fees and declaratory relief and in his individual capacity for monetary damages are not

barred by the Eleventh Amendment. As such, Caldwell’s request that all Judge Marchman’s

claims against him in his official capacity be dismissed for lack of jurisdiction lacks merit, and it

must be denied.

3 Doc. No. 22, ¶ 6.4 Id.



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B. Caldwell’s Rule 12(b)(6) Claims

1. F .R.C.P. 12(b)(6) Standard

To survive a challenge under Rule 12(b)(6), “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal ,

556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

However, as this Court is aware, in considering Caldwell’s motion it must accept Judge

Marchman’s well- pleaded facts as true, and it must “construe the complaint in a light favora ble

to that plaintiff.” BRFHH Shreveport, LLC v. Willis Knighton Med. Ctr., 2016 WL 1271075, at

*5 (W.D.La. 2016)(quoting In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir.

2010)).

A claim is “facially plausible” when a plaintiff pleads f acts that permit the court to

“reasonably infer a defendant is liable for the alleged misconduct.” Id. (citations omitted). “So

long as it raises a plausible right of recovery and puts the defendant on notice of the plaintiff's

claim and grounds upon which it rests, however, the complaint does not need to specify detailed

factual allegations.” Id. at 15 (citing Twombly, 550 U.S. at 555). In fact, “[i]nitial pleadings are

only required to give notice of a claim, and must be construed liberally so as to do substantial

justice.” St. Martin v. Jones, 2008 WL 4412267, at *7 (E.D.La. 2008)(citing U.S. v. Uvalde

Consol. Independent School Dist., 625 F.2d 547, 549 (5th

Cir. 1980)).

2. Caldwell Does Not En joy Absolu te Immunity for H is Actions.

Caldwell next argues that as attorney general, he is entitled to “essentially the same

immunity extended to judges.”5 However, judicial immunity is not completely absolute. For

example, there is no immunity when a judge is acting outside the scope of his jurisdiction.

Williams v. Wood , 612 F.2d 982, 985 (5th

Cir. 1980). In fact, judges only have immunity when

5 Doc. No. 26-1, p. 6.



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they are “acting within the scope of their subject matter jurisdiction” and are performing acts “in

their judicial capacities.” Haley v. Leary, 2009-1626 (La. App. 4 Cir. 8/4/10), 69 So. 3d 430,

432 – 33, writ denied , 2010-2265 (La. 12/17/10), 51 So. 3d 14, cert. denied , 132 S.Ct 104

(2011).

Clearly not every action by a judge is done in the exercise of his judicial function. Yates

v. Vill. of Hoffman Estates, Ill ., 209 F. Supp. 757, 759 (N.D. Ill. 1962). “For example, it is not a

judicial function for a judge to commit an intentional tort even though the tort occurs in the

courthouse.” Id. Furthermore, “[j]udicial officers may not escape liability for the commission of

illegal acts merely by committing them in the courthouse.” Luttrell v. Douglas, 220 F. Supp.

278, 279 (N.D. Ill. 1963). Accordingly, just as not every act by a judge will be covered by

judicial immunity, neither will every act by Caldwell, as the former Attorney General, be

covered by absolute immunity.

Caldwell claims that he is entitled to absolute immunity for any statements he made about

Judge Marchman in pleadings that he filed on behalf of Defendant Campbell in the matter of

Palowsky v. Campbell because he was acting “within the scope of his role as an advocate for the

state,” and his actions “[we]re intimately associated with the judicial phase of a judicial

proceeding.”6 Caldwell’s argument is based on the premise that Campbell, a law clerk, was a

state employee whom he was entitled to defend.

Nevertheless, in the matter of Morgan v. Laurent , 06-467 (La. App. 5 Cir. 12/27/06), 948

So. 2d 282, writ denied, 2007-0178 (La. 3/16/07), 952 So. 2d 701, in order to avoid liability, the

state argued stridently that a law clerk in Jefferson Parish was not a state employee. The state

specifically contended that law clerks are not included in the definition of “covered employee”

6 Doc. No. 26-1, p. 14.



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found in La. R.S. 13:5108.1, which addresses defense and indemnification of state employees.

Id. at 285. That statute provides that the term “covered individual” includes those

[i]n the state supreme court or in the office of the clerk thereof or office of judicial

administrator thereof, in one of the circuit courts of appeal or in the office of clerkthereof, or in any of the family, juvenile, or judicial district courts of the state orin the offices of the judicial administrators thereof.

La. R.S. 13:5108.1(E)(1)(c). The Fifth Circuit agreed with the state that law clerks are not

included in the definition of “covered employee,” and it granted the state’s summary judgment

and held that the state could not be held liable for damages caused by a law clerk. Id.

Consequently, it is clear that Campbell was not actually entitled to a defense from the

Attorney General in Palowsky v. Campbell . As such, Caldwell was acting outside his

“jurisdiction,” to use the term applicable in judicial immunity scenarios, when he accused Judge

Marchman of criminal acts. That being the case, then he cannot be entitled to absolute immunity

for statements he made during his defense of Campbell.

3. Caldwell Has No Quali fi ed Immuni ty

Caldwell’s next argument is that he is entitled to qualified immunity with respect to all

Judge Marchman’s claims. Qualified or “good faith” immunity shields government officials

performing discretionary functions from liability “unless their conduct violates ‘clearly

established statutory or constitutional rights of which a reasonable person would have kno wn.’”

Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)(citations omitted).

Contrary to Caldwell’s argument, the threshold issue in the qualified immunity context is

not whether Judge Marchman’s constitutional rights were violated but whether he was

performing a discretionary function at the time of the actions at issue. The qualified immunity

defense “requires a threshold showing that the official ‘was performing a ‘discretionary function’

at the time the alleged violation of federal law occurred. ’” Baker v. DeKalb Cty., Ga., 2014 WL



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Given the allegations that Caldwell knowingly and falsely accused Judge Marchman of

criminal acts, that he conspired with his client and her other counsel, and that Campbell was

never entitled to a defense from the Attorney General, it should not be disputed that Caldwell

was not acting in good faith, nor was he acting reasonably. Accordingly, his claim to qualified

immunity is once again negated, and any consideration by this Court of the remainder of

Caldwell’s arguments as to qualified immunity should be pretermitted.

4. Judge Marchman Has Suf fi ciently Al leged that Her Constituti onal

Rights Were Violated.

Should this Court find, however, that Caldwell passed the threshold test of proving that

he was performing a discretionary function, and doing so reasonably and in good faith, Judge

Marchman submits that Caldwell’s qualified immunity claim still is not valid because he violated

her clearly established constitutional rights. Of course at this stage, Judge Marchman does not

have to prove the violations, she only has to prove that she has sufficiently alleged same.

a. First Amendment Rights

The essence of Caldwell’s verbose argument with respect to Judge Marchman’s § 1983

claim (and the related claims under §§ 1985, 1986, and 1988) stemming from the violation of her

First Amendment rights is that as a judge, she has no First Amendment rights. Caldwell’s

argument is based on the case of Garcetti v. Ceballos, 547 U.S. 410 (2006). Nevertheless, the

question presented in that case was “whether the First Amendment protects a government

employee from discipline based on speech made pursuant to the employee's official duties.” Id.

at 413 (emphasis added). And therein lies the problem with Caldwell’s position.

Judge Marchman has not claimed that she was subject to lawful or appropriate discipline

for attempting to expose Defendant Campbell’s payroll fraud and document destruction. Indeed,

she has alleged that she has been subjected to threats, intimidation, and false (and very public)



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accusations of wrongdoing and criminal activity. Those allegations differ greatly from the ones

made by the plaintiff in Garcetti, which included “reassignment from his calendar deputy

position to a trial deputy position, transfer to another courthouse, and denial of a promotion.” Id.

at 415. Accordingly, Garcetti is distinguishable and cannot support Caldwell’s position that

Judge Marchman’s speech related to Defendant Campbell was not protected by the First

Amendment.

Judge Marchman will also add that when she produced documents related to Defendant

Campbell in response to a valid subpoena duces tecum, she was not acting as an official, she was

acting as a private citizen. So once again, the argument that Judge Marchman has no First

Amendment rights that were violated is incorrect. It follows then, that Caldwell’s argument that

Judge Marchman did not allege that he violated a clearly established law has no merit.

Caldwell also argues that Judge Marchman did not allege any injury, though she did

detail the effects that the actions of Caldwell and his fellow defendants have had on her.7 She

also specifically alleged that her free speech was chilled.8 Courts have held that when

determining whether someone has standing to assert a First Amendment claim, “[r]eputational

injury . . . is sufficient to establish an injury in fact.” Parsons v. U.S. Dep't of Justice, 801 F.3d

701, 711 (6th Cir. 2015)(citing Meese v. Keene, 481 U.S. 465, 473 – 76 (1987)(exhibitor of

foreign films had standing to challenge the DOJ's label of certain films as “political

propaganda”); Turkish Coal. Of Am., Inc. v. Bruininks, 678 F.3d 617, 622 – 23 (8th Cir.

2012)(cognizable injury to reputation pled resulting from defendant labeling plaintiff's website

“unreliable”)).

7 Doc. No. 22, ¶¶ 85 – 96.8 Id. at ¶¶ 99, 102, 105.



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More specifically, “where claims of a chilling effect are accompanied by concrete

allegations of reputational harm, the plaintiff has shown injury in fact.” Id. (citing Meese, 481

U.S. at 473 – 75). Thus, to be clear, such reputational injuries “are cognizable claims under First

Amendment and due process causes of action.” Id. at 712 (citing Meese, 481 U.S. at 473 – 74).

Because Judge Marchman alleged that her reputation has been harmed, that her standing in the

community has been harmed, that she has become a pariah at the courthouse, and that all the

defendants, including Caldwell, are attempting to interfere with her ability to do her job as a

duly-elected judge by accusing her of wrongful acts, threatening her, and trying to intimidate her,

then she has certainly alleged an injury sufficient to pass F.R.C.P. 12(b)(6) muster.

Caldwell also argues Judge Marchman did not show or allege that her exercise of free

speech was a substantial or motivating factor in Caldwell’s actions. Judge Marchman

respectfully disagrees, though, because the entirety of her Amended Complaint makes it clear

that Caldwell only acted as he did after Judge Marchman tried to expose his client’s payroll fraud

and document destruction. Had Judge Marchman remained silent, Caldwell would have never

conspired with Campbell to retaliate against Judge Marchman, and he would have never filed

pleadings accusing her of wrongdoing and committing criminal acts.

In short, Judge Marchman has sufficiently alleged a violation of her First Amendment

rights so as to have asserted a § 1983 cause of action and survive Caldwell’s 12(b)(6) motion.

Moreover, and as discussed below, Judge Marchman’s claims under §§ 1985, 1986, and 1988

which derive from her § 1983 First Amendment claim also should survive Caldwell’s motion.

b. Fourteenth Amendment Rights

The crux of Caldwell’s argument with respect to Judge Marchman’s Fourteenth

Amendment claim is that she did not assert that she was a member of a protected class or that she



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was treated differently from others “similarly-situated” to her; therefore, she did not sufficiently

allege a violation of her constitutional rights. Caldwell admits that per the Supreme Court in

Village of Willowbrook v. Olech, 528 U.S. 562 (2000), someone who has not alleged that he or

she is a member of a protected class can have a Fourteenth Amendment claim if that person

alleges that he or she has been treated differently from others who are similarly-situated.

According to Caldwell’s literal interpretation, though, the only individuals who could have been

similarly-situated to Judge Marchman would have been other judges who tried to expose

Campbell’s payroll fraud and document destruction. This position, though, is without merit.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr ., 473 U.S. 432, 439 (1985)(citing Plyler v. Doe, 457 U.S.

202, 216 (1982)). In other words, its purpose is “to secur e every person within the State’s

jurisdiction against intentional and arbitrary discrimination . . . .” Vill. of Willowbrook,, 528

U.S. at 564 (citations omitted).

Under Caldwell’s theory, in order to assert a Fourteenth Amendment equal protection

claim, Judge Marchman would have to allege that she was treated differently from other judges

who tried to expose Campbell’s activities. However, the equal protection clause applies to those

“similarly” situated, not “identically” situated. Here, it is plain to see that no other judges tried

to expose Campbell’s activities, so that in and of itself would kill Judge Marchman’s claim if

Caldwell were correct. Such a result would be illogical. A more appropriate analysis would be

to determine whether Judge Marchman was treated differently from other judges at the Fourth

Judicial District Court. When the treatment of Judge Marchman is compared to the treatment



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of the other judges, it is obvious that she has been singled out and treated differently, and

moreover, she has been subjected to a hostile work environment.

Caldwell also argues that Judge Marchman did not allege that Caldwell’s actions had no

rational basis. He claims that because he was defending Campbell pursuant to La. R.S.

13:5108.1, then his actions had a rational basis. As discussed above, though, Caldwell should

not have provided Campbell with a defense as she is not enumerated as a “covered person” in

said statute. Thus, there was no rational basis for him to even be filing pleadings on Campbell’s

behalf. There certainly was no rational basis for him to accuse Judge Marchman of criminal

activity.

Caldwell further argues that Judge Marchman did not allege that his acts were motivated

by any improper consideration, “such as . . . the desire to prevent the exercise of a constitutional

right.”9 To the contrary, the whole of Judge Marchman’s Amended Complaint alleges that the

actions of Caldwell and the other defendants were specifically designed to keep her from

exercising her right to free speech, i.e., her right to let the public know that Campbell had

committed payroll fraud and destroyed public documents and that multiple judges had conspired

to, and did, cover-up same. Caldwell’s argument in this regard simply must be ignored.

Given the above, Judge Marchman has sufficiently alleged a § 1983 claim for the

violation of her right to equal protection under the Fourteenth Amendment. As such, her related

claims under §§ 1985, 1986, and 1988 must also survive Caldwell’s motion. Out of an

abundance of caution, though, Judge Marchman will briefly address same.

5. Lawyers and Cli ents Can Conspire with Each Other.

In addition to arguing that Judge Marchman’s 42 U.S.C. § 1985 conspiracy claims, §

1986 refusal-to-stop-conspiracy claims, and related § 1988 claim for attorney fees must fail

9 Doc. No. 26-1, p. 20.



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because she has not shown any First or Fourteenth Amendment violations, Caldwell also argues

that those claims must be dismissed now because Caldwell was legally incapable of conspiring

with his client or with her attorneys. As shown above, Judge Marchman has sufficiently alleged

constitutional violations to withstand a 12(b)(6) motion on her § 1983 claims. As for the

conspiracy itself, Caldwell argues that legally, he, his client, and her other counsel all constitute

one entity; therefore, there can be no conspiracy as there are not two “persons” involved.

Caldwell bases this untenable position on the case of Hilliard v. Ferguson, 30 F.3d 649 (5th Cir.

1994), which held as follows:

We follow the reasoning of the other courts on this question and hold that aschool board and its employees constitute a single legal entity which is

incapable of conspiring with itself for the purposes of § 1985(3).

Id. at 653 (emphasis added).

The court in Hilliard made no mention of conspiracies between attorneys and clients.

Instead, it focused on the “intracorporate conspiracy” doctrine, the original purpose of which was

to “enable corporations to act, permitting the pooling of resources to achieve social benefits and,

in the case of tortious acts, to require a corporation to bear the costs of its business enterprise.”

St. Martin, 2008 WL 4412267, at *10 (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,

603 (5th

Cir. 1981)). Nonetheless, the Fifth Circuit has even “noted that ‘officers and directors of

a single corporation could be liable for conspiracy under 42 U.S.C. § 1985(3).’” Id. (quoting

Dussouy, 660 F.2d at 603).

Still, the “intracorporate conspiracy” doctrine has no applicability to the conspiracy

between an attorney and his client. Significantly, the issue of an attorney’s liability for

conspiring with his client was addressed in the Louisiana case Economy Carpets Mfrs. &

Distributors, Inc. v. Better Business Bureau of Baton Rouge, Inc., 333 So. 2d 765 (La. App. 1st



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evidence because ‘conspirators rarely formulate their plans in ways susceptible of proof by direct

evidence.’” Jones v. Bd. of Supervisors of the Univ. of Louisiana Sys., 2015 WL 3409477, at *8

(E.D.La. 2015)(quoting St. Martin, 2008 WL 4412267, at *7 – 8). In fact, in St. Martin, the court

found that the plaintiffs alleged sufficient facts to make out a § 1985(3) claim by merely stating

“that there was a litany of complaints against one defendant and that the other defendants knew

about the complaints but chose not to act upon them.” 2008 WL 4412267, at *8.

Judge Marchman has alleged that Caldwell conspired with Defendant Campbell, her

other attorneys, and the attorneys for the defendant judges in Palowsky v. Campbell to further

Campbell’s plan to retaliate against, threaten, intimidate, and harm Judge Marchman. Judge

Marchman alleged that Caldwell furthered Campbell’s plan by filing pleadings which falsely

accused Judge Marchman of wrongdoing and criminal acts. Judge Marchman additionally

alleged that Caldwell had the power to stop Campbell and the defendant judges from carrying on

their threats, intimidation, and harm, but he refused to do so. Accordingly, Judge Marchman

respectfully submits that she has sufficiently alleged claims under § 1985, § 1986, and § 1988.

C. Leave to Amend

Rule 15 of the Federal Rules of Civil Procedure states that a court should freely give a

party leave to amend its complaint when justice so requires. Waste Commanders, LLC v. BFI

Waste Servs., LLC, 2015 WL 1089320, at *4 – 6 (W.D.La. 2015). In Big River Indus., Inc. v.

Headwaters Res., Inc., 971 F. Supp. 2d 609 (M.D. La. 2013), the defendant argued that the

plaintiff therein should not be allowed to amend its complaint as it would have been futile. The

court disagreed and explained as follows:

Despite Defendant's argument to the contrary, the Court does not believe that

allowing BRI to amend its claim would be futile. Though the Complaint is

deficient in many ways, there are enough factual allegations, taken as true, thatgive reason for some suspicion.



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Id. at 625. Likewise, should this Court find that Judge Marchman’s complaint is deficient in any

manner, it should allow her an opportunity to amend and cure the deficiencies.

III. CONCLUSION

As shown above, Judge Marchman has made sufficient allegations to state a claim for

relief that is plausible on its face; therefore, Defendant Caldwell’s motion to dismiss should be

denied. Should this Court disagree, though, Judge Marchman respectfully submits that she

should be allowed 30 days within which to seek leave to amend to cure the defects in her

Amended Complaint.

Respectfully submitted:

/s/ Joseph R. Ward, Jr.JOSEPH R. WARD, JR. (T.A.)(Bar #08166)

WARD & CONDREY, LLC

409 E. Boston Street, Suite 200Covington, Louisiana 70433

Telephone: (985) 871-5223

Facsimile: (985) 871-5234

E-Mail: [email protected]

-and-

SEDRIC E. BANKS #02730

Attorney at Law

1038 North Ninth StreetMonroe, La. 71201

Telephone: (318) 388-1655

Facsimile: (318) 388-0227

E-Mail: [email protected] Attorneys for Plaintiff, Judge Sharon Ingram

Marchman



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CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of June, 2016, I presented the foregoing

Supplemental, Amended, and Restated Complaint to the Clerk of Court for filing and uploading

to the CM/ECF system.

/s/ Joseph R. Ward, Jr.

Joseph R. Ward, Jr.


06062016 Opposition of Caldwell's Motion to Dismiss

Documents

Transcript of 06062016 Opposition of Caldwell's Motion to Dismiss