Caldwel Motion To Dismiss

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

WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JUDGE SHARON INGRAM
MARCHMAN
Plaintiff
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VERSUS
CIVIL ACTION NO. 3:16-cv-0515

JUDGE S. MAURICE HICKS
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
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JAMES D. BUDDY CALDWELLS 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 Plaintiffs 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 2 of 2 PageID #: 182
Respectfully Submitted:
JEFF LANDRY
ATTORNEY GENERAL
/s/ Mary Ann M. White____________
E. Wade Shows, La. Bar No. 7637 (Lead Attorney)
wade@scwllp.com
Mary Ann M. White, La. Bar. No. 29020
maryannw@scwllp.com
Caroline Tomeny Bond, La. Bar No. 34120
carolinet@scwllp.com
SHOWS, CALI & WALSH, L.L.P.
628 St. Louis Street (70802)
P.O. Drawer 4425
Baton Rouge, Louisiana 70821
Telephone: (225) 346-1461
Fax: (225) 346-1467
Attorneys for James D. Buddy Caldwell
May 20, 2016
Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 1 of 31 PageID #: 183

MONROE DIVISION
JUDGE SHARON INGRAM
MARCHMAN
Plaintiff
VERSUS
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BRIAN E. CRAWFORD;
JON K. GUICE;
ALLYSON CAMPBELL
Defendants
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JEFF LANDRY
ATTORNEY GENERAL
wade@scwllp.com
maryannw@scwllp.com
P.O. Drawer 4425
Telephone: (225) 346-1461
Fax: (225) 346-1467
i
TABLE OF CONTENTS
Table of Authorities ... iii

A.
CALDWELL IS ENTITLED TO ELEVENTH AMENDMENT IMMUNITY FOR

ANY OFFICIAL CAPACITY CLAIMS AGAINST HIM . 2
B.
PLAINTIFF FAILED TO STATE A CAUSE OF ACTION UPON WHICH

RELIEF CAN BE GRANTED AGAINST CALDWELL5
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. 198310
i.
Plaintiff failed to establish a violation of federal law 10

a. Public Employee Framework . 10
b. Private Citizen Framework 12
ii.
b.
Plaintiff failed to allege Caldwell violated clearly

established law. 13
First Amendment Retaliation claim pursuant to

42 U.S.C. 1985 .. 14
i.
Plaintiff failed to establish a violation of federal law ...14
ii.

established law .16
c.

to 42 U.S.C. 1986 .16
d.

to 42 U.S. C. 1988 ....17
e.
Fourteenth Amendment Retaliation claim pursuant

to 42 U.S.C. 1983 .17
ii
f.
C.
i.
Plaintiff failed to establish a violation of federal law ..18
ii.

established law 21

to 42 U.S.C. 1985 21
i.
Plaintiff failed to establish a violation of federal law .21
ii.

established law 22
g.

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

to 42 U.S.C. 1988 23
CONCLUSION ..23
iii
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 Natl 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 ..................................................................... 7
Conroe 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
iv
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, 16
Gibbs 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
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 ................................................................... 7
Tenney 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 ........................................................................................................................ 20
La. R.S. 42:1 ................................................................................................................................. 10
U.S. Const. amend. XI .................................................................................................................... 3
Rules
Fed. R. Civ. P. Rule 12(b)(1) .......................................................................................................... 2
vi
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
JUDGE SHARON INGRAM
MARCHMAN
Plaintiff
VERSUS
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BRIAN E. CRAWFORD;
JON K. GUICE;
ALLYSON CAMPBELL
Defendants
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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]
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 Plaintiffs 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 HIM
A 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 Natl 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 Plaintiffs 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)
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
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 officials 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 selfcorrecting: 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;
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 or
attorney 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 presenting
to 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 (2d
Cir. 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 First 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
Plaintiffs 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
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 Caldwells alleged actions fall within the traditional
functions of Attorney General, Caldwell is entitled to absolute immunity from all of Plaintiffs
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
Plaintiffs 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 officials 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.
a.
First Amendment Retaliation claim pursuant to 42 U.S.C. 1983
Plaintiff alleges that Caldwell violated her First Amendment right to free speech by
retaliating against her when she tried to stop the cover-up of Defendant Campbells 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 Plaintiffs 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 Plaintiffs 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 Campbells attendance issues with
Defendant Judges Rambo and Amman [Doc. 22, 19]; she turned over a complaint against
10
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
judges 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 Sharps directive to
give certain documents subject to a subpoena [Doc. 22, 69]. All of this speech was made
pursuant to Plaintiffs 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, Plaintiffs claims for First Amendment retaliation analyzed in the public
employment context must fail.
In the alternative, should this Court decide that Plaintiffs speech was not made pursuant
to her official duties, Plaintiffs 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 Plaintiffs 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
11
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 Plaintiffs 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) Caldwells 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)
Plaintiffs exercise of her protected right was a substantial or motivating factor in Caldwells
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. Plaintiffs 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.
12
Whether Plaintiffs 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 Caldwells 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 Plaintiffs right to free speech.
As previously mentioned, Plaintiffs 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
Campbells alleged payroll fraud and document destruction. [Doc.22, 98] Because Plaintiffs
right to First Amendment protections for her speech were not clearly established, it cannot be
shown that Caldwell was on notice that Plaintiffs rights were vulnerable to violation by his
alleged actions.
Therefore, Caldwell is entitled to qualified immunity and to have Plaintiffs claims
against him for First Amendment violation pursuant to 42 U.S.C. 1983 dismissed because
13
Plaintiff failed to allege that Caldwell violated her federal rights and/or that Plaintiffs federal
rights were clearly established.
b.
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 Campbells 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.
i.
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 Campbells attorney. Assuming Plaintiffs allegations as true, Caldwell
acted as Defendant Campbells agent and thus, was acting as one and not as two separate people.
14
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 Campbells 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 Plaintiffs allegations as true, Plaintiff cannot show a conspiracy because
Defendant Campbells 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,
15
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 more
simply, 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 out
and the section is inoperable, regardless of whether the legal rights of the plaintiff
are somehow affected.
As stated herein, Caldwell has not violated Plaintiffs 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.
ii.
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. Plaintiffs 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.
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
16
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, Plaintiffs 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.
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 Plaintiffs claims.
As stated hereinabove, Plaintiff must show that the conduct of Caldwell was a clearly
established violation of federal law in order to overcome Caldwells 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
17
i.
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
Campbells payroll fraud and document destruction. [Doc. 22,85] Plaintiffs equal protection
claim appears to stem from a narrow exception known as the class of one theory. 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 Campbells actions and that the other judges attempted to cover-up Defendant
Campbells alleged wrongdoing. [Doc. 22, 7] Because Plaintiff failed to allege that other
judges in the Fourth Judicial District Court also attempted to expose Campbells actions and
were treated differently than Plaintiff, Plaintiffs cause of action must fail. Id. In essence,
18
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 plaintiffs 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 plaintiffs 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 15foot 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 Campbells 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 Campbells 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 Caldwells 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 Plaintiffs allegations as true, she cannot show a
19
lack of rational basis because Caldwells 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 Plaintiffs equal protection claim.
Should the Court choose to analyze Plaintiffs equal protection claims in the selective
enforcement context, Plaintiffs 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
Caldwells 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
20
ii.
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 Plaintiffs Fourteenth Amendment retaliation claims pursuant to 1983.
f.
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 Caldwells 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.
i.
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
21
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 Plaintiffs First Amendment conspiracy claims,
Plaintiffs 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.
ii.
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.
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
22
action against Caldwell pursuant to 42 U.S.C. 1985; thus, Plaintiffs 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.
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 Plaintiffs 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
23
JEFF LANDRY
ATTORNEY GENERAL
wade@scwllp.com
maryannw@scwllp.com
P.O. Drawer 4425
Telephone: (225) 346-1461
Fax: (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 Courts Case
Management/Electronic Case Filing (CM/ECF) System.
/s/ Mary Ann M. White
Mary Ann M. White
24

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

UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 3:16-cv-0515

For reasons more fully explained in his attached

Signature page follows

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

May 20, 2016

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

UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 3:16-cv-0515

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 2 of 31 PageID #: 184

Table of Authorities ... iii

CALDWELL IS ENTITLED TO ELEVENTH AMENDMENT IMMUNITY FOR

PLAINTIFF FAILED TO STATE A CAUSE OF ACTION UPON WHICH

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

Caldwell is Entitled to Absolute Immunity From The Claims

Caldwell is Entitled to Qualified Immunity For All Claims

First Amendment Retaliation claim pursuant

Plaintiff failed to establish a violation of federal law 10

Plaintiff failed to allege Caldwell violated clearly

First Amendment Retaliation claim pursuant to

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

Plaintiff failed to allege Caldwell violated clearly

First Amendment Retaliation claim pursuant

First Amendment Retaliation claim pursuant

Fourteenth Amendment Retaliation claim pursuant

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 3 of 31 PageID #: 185

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

Plaintiff failed to allege Caldwell violated clearly

Fourteenth Amendment Retaliation claim pursuant

Plaintiff failed to establish a violation of federal law .21

Plaintiff failed to allege Caldwell violated clearly

Fourteenth Amendment Retaliation claim pursuant

Fourteenth Amendment Retaliation claim pursuant

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 4 of 31 PageID #: 186

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 5 of 31 PageID #: 187

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 6 of 31 PageID #: 188

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 7 of 31 PageID #: 189

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

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 8 of 31 PageID #: 190

UNITED STATES DISTRICT COURT

CIVIL ACTION NO. 3:16-cv-0515

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 9 of 31 PageID #: 191

Plaintiff also alleges that Caldwell

CALDWELL IS ENTITLED TO ELEVENTH AMENDMENT IMMUNITY FOR

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 10 of 31 PageID #: 192

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 11 of 31 PageID #: 193

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 12 of 31 PageID #: 194

PLAINTIFF FAILED TO STATE A CAUSE OF ACTION UPON WHICH

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

CALDWELL IS ENTITLED TO ABSOLUTE IMMUNITY FROM

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 13 of 31 PageID #: 195

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 14 of 31 PageID #: 196

Thus, Caldwell is entitled to absolute

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 15 of 31 PageID #: 197

As against claims under federal law, government officials performing

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 16 of 31 PageID #: 198

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 17 of 31 PageID #: 199

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

Plaintiff failed to establish a violation of federal law

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 18 of 31 PageID #: 200

Case 3:16-cv-00515-SMH-JPM Document 26-1 Filed 05/20/16 Page 19 of 31 PageID #: 201

Private citizen framework