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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHANE M. GATES, CIVIL ACTIONS

Plaintiff, NOS. 07-6983 and 13-6425

versus
JUDGE STANDWOOD R. DUVALL, JR.
SHERIFF RODNEY JACK STRAIN,
et al., MAGISTRATE JUDGE
Defendants. JOSEPH C. WILKINSON, JR.

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION

TO LIFT STAY AND DISMISS CIVIL ACTION

MAY IT PLEASE THE COURT:

The Plaintiff herein, Shane M. Gates, through his undersigned counsel, respectfully files

this Opposition to the Defendants pending Motion to Lift Stay and Dismiss (Rec. Doc. 243).

The said Motion fundamentally misrepresents the history and status of this case, was filed with-

out adequate legal or factual basis, was filed in objective bad faith, and was interposed solely for

the purpose of harassing, delaying, and obstructing Shane Gates in his pursuit of his meritorious

1983 civil claims against various persons and institutions in St. Tammany Parish, Louisiana,

claims which arose solely as a result of Mr. Gates vicious beatingwhile he was restrained and

in handcuffsby Deputies to the St. Tammany Parish Sheriff.

I. There is no single one of the current Movants who has an actual, subsisting, and le-
gitimate reason for promoting the long-expired misdemeanor charges upon which
their Motion is premised, that is, all the current Movants actually lack standing to
assert the claims they are making here.

As an inspection of the Movants pleading shows, not one of the signatories to the pend-

ing Motion as any legitimate interest in attempting to manipulate this Court into using its super-

vision over the pending civil case to ride roughshod over Shane Gates Fourteenth Amendment

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guaranteed due process rights in an unconstitutional misdemeanor prosecution so as to extort an

advantage in that civil rights case. Yet that is precisely what the Defendants/Movants have done

at every stage of these proceedings: to use the alleged pendency of bogus minor criminal

charges in St. Tammany Parish as a tool to obtain dismissal of the very serious civil rights suit

Mr. Gates filed here to obtain redress for his unlawful and unjustified torture at the hands of the

St. Tammany Parish Sheriffs Office.

The first-named among those Movants is Rodney J. Jack Strain, Jr., as former Sheriff

of St. Tammany Parish. Even when he was Sheriff, Rodney Strain had no legitimate, justiciable

interest in whether any particular misdemeanor case went forward or not; the lawful functions of

his office extended solely to the gathering of evidence for presentation to the District Attorney

for the latters consideration. It was never part of his official duties to seek to have a particular

charge brought to trial; that was the District Attorneys job, not his. Now, however, since Mr.

Strain was compelled to withdraw himself from seeking re-election, he does not even possess

that merely supporting role in the misdemeanor cases he here seeks to push forward. Thus his

only possible reason for trying to do so is to advantage himself, in violation of Rule 11, Fed. R.

Civ. Proc. and (on the part of his counsel) Rule 8.4(g), R. Prof. Cond., in defending Shane Gates

civil suit. Thus Rodney Strain has no legitimate reason whatever for joining in this instant Mo-

tion.

The second-named Movant is Nathan Miller, formerly a St. Tammany Parish Sheriffs

Deputy who was forced out of that employment on various disciplinary charges including lying

to his superiors. Even when Mr. Miller was a Deputy Sheriff, he was subordinate to Rodney

Strain and thus could not possibly have had any greater official interest in promoting a particular

misdemeanor charge than did his employer and now that he has lost that employment, he has

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even less. Thus Miller, like Strain, has no reason for the current Motion other than to bolster his

defense to the beating that Deputy Roger Gottardi administered to Shane Gates in Millers pres-

ence after Miller had handcuffed the victim. Thus, too, his participation in this Motion violates

Rule 11 and, on the part of his attorneys at least, Rule 8.4(g) as well.

The third-named Movant is Deputy Roger Gottardi, the Deputy Sheriff who was the prin-

cipal actor in Mr. Gates beating. As a subordinate Deputy Sheriff, he has no legitimate role to

play in policy determinations such as which criminal charges go forward and which ones fall by

the wayside. Thus his situation is precisely the same as Strain and Millers: his participation in

this Motion violates Rule 11 and, on the part of his attorneys at least, Rule 8.4(g) as well. The

same arguments apply with equal force to Captain Kathy Sherwood and Deputy Brian Williams,

the fourth- and fifth-named Movants, the latter of whom stood by during, and may well have as-

sisted, Gottardis beating of Mr. Gates.

Walter Reed, the sixth-named Movant, was formerly District Attorney of St. Tammany

Parish and, as such, was the only one among these Movants whose public office ever had a le-

gitimate policy-making role in determining whether a particular criminal charge should actually

be prosecuted or not. However, as of the time this Motion was filed, he no longer retained any

such official functions, having, like Strain, been compelled to refrain from seeking re-election.

And the cloud under which his former official functions stand has now thickened to the point

where he is at this moment fighting to stay out of jail, on bond, pending his appeal from the

eighteen felony convictions on which he is due to be sentenced next week. Thus not only does

his participation in this instant Motion violate Rule 11 but, where he is a suspended member of

the bar, he is in violation of Disciplinary Rule 8.4(g) as wellas, of course, is his counsel who

filed this Motion on his behalf.

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Ronald Gracianette, the seventh-named Movant, is an Assistant District Attorney in St.

Tammany Parish, which means he is, at most, a subordinate ministerial officer to Warren Mont-

gomery, the current St. Tammany District Attorney. Mr. Montgomery is the only individual or

official in St. Tammany properly to have a voice in the maintenance vel non of the misdemeanor

charges now at issue but he is noticeably absent from these proceedings. Presumably he feels he

has nothing to gain by associating himself with past misconduct by his predecessor Reed

fourteen of whose eighteen felony convictions involve misfeasance in officeor by Mr. Gra-

cianette when the latter worked for and under that felon. Thus the only person who can even be

argued to have standing to support the continuance of the two charges concerned, more than ten

years after the expiration of the state speedy-trial statute, is neither present as a party to these

proceedings nor is taking any action here to support the suggestion those unconstitutional

charges should still be tried. So the only possible conclusion is that both Mr. Gracianette and his

counsel are simply trying to obtain an improper advantage in defense of the civil suit and so are

both in violation of Rules 11 and 8.4(g).

Nicholas Noriea, the eighth-named Movant, and his present counsel are both in precisely

the same position as are Mr. Gracianette and his counsel, with the added proviso that Mr. Noriea

is no longer an Assistant District Attorney in St. Tammany Parish. Thus he was formerly with-

out independent policy-making authority, but only exercised only such functions as were dele-

gated to him by the disgraced Walter Reed, but now he does not possess even those. Kathryn

Landry, the ninth-named Movant, as a former St. Tammany Parish Assistant District Attorney, is

in precisely the same situation as is Nicholas Noriea.

James D. Caldwell, the tenth-named Movant, is the former Louisiana Attorney General.

Even when he was in office, he had no legitimate voice or role in maintaining criminal charges

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against Shane Gates because the disgraced Walter Reed never recused himself from Mr. Gates

cases. Thus Mr. Caldwells participation in this instant Motion violates both Rule 11 and Rule

8.4(g).

Judge Richard Schwartz, the eleventh-named Movant, certainly never should have had

any role in promoting a particular charge inasmuch as his constitutional duty was limited to ad-

judicating such motions, exceptions, and hearings as might be brought before him. Thus for him

to be appearing here and now before this Court, attempting to further the prosecution of a case

that was formerly pending before him, is a gross impropriety and a breach of every possible

canon of judicial impartiality.

Marie-Elise Prieto, the twelfth-named Movant, is another former St. Tammany official

who did not find it prudent to run for re-election. However, even when she was an office-holder,

her functions as Clerk of Court did not properly or lawfully include any role in determining

whether particular criminal charges went forward to trial. Thus her participation in this instant

Motion is another violation of Rule 11 and, on the part of her counsel at least, of Rule 8.4(g) as

well.

Charles M. Hughes, Jr., the thirteenth-named Movant, is the civil attorney for the Parishs

liability insurance carrier. As such, he had no legitimate role to play in determining whether any

particular criminal charge be instituted or be brought to trial. However, despite the fact that his

lawful functions were limited to defending this civil suit, it has been established that (a) he is the

person who obtained the misdemeanor charge of resisting arrest; (b) he did so strictly in order to

obtain an advantage for his client insurance company in its defense of Mr. Gates tort claims; and

(c) he was so adamant about having that charge filed that he obtained and provided his co-

Defendant Ronald Gracianette with a forged letter purporting to come from co-Defendant Nathan

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Miller that further purported to request the institution of that charge. (Rec. Docs. 240 & 240-1.)

The bad faith and procedural and ethical violations inherent in those actions needs no further ex-

position here.

Philip Duiett, the last and fourteenth-named Movant was the emergency room nurse at

Louisiana Heart Hospital who testified at Shane Gates felony trial on the charge of aggravated

flight. Mr. Duietts role was to bolster the prosecutions case by papering over the severe and

inescapable evidentiary problems inherent in attempting to introduce unverified and almost cer-

tainly forged medical records so, as a fact witness for the prosecution in one case, he has no le-

gitimate standing to promote the prosecution of separate misdemeanor charges that the State had

made the tactical decision not to bring to trial along with the felony charge in which it was most

interested (Rec. Docs. 240 & 240-1.) Thus, as with all the preceding Movants, Mr. Duietts par-

ticipation in this pending Motion violates Rule 11 and his counsels bringing it on his behalf vio-

lates both Rule 11 and Rule 8.4(g).

II. It is not Shane Gates who has failed to prosecute his civil rights action here, it is the
current Movants who have, at every turn, obstructed and delayed his prosecution of
that suit. Now those same Movants seek to take advantage of their own misconduct
by claiming it was not they who are but he who is responsible for the delays that are
attributable solely to the successive stays they themselves have sought.

The instant Motion is predicated upon Rule 41(b), Fed. R. Civ. Proc. (Rec. Doc. 243-1, p.

4). As the text of that Rule showsand it is quoted by these Movantsit applies to a plaintiffs

failure to prosecute an action. In the instant case, however, all of the delays and interruptions in

prosecution of Shane Gates 1983 suit have been created and fostered not by him, as Plaintiff

but by the Defendants. They are the ones who have requested each of the successive stays and

they are the ones who have, in clear and facial violation of Mr. Gates Fourteenth Amendment

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due process rights, have attempted to resurrect the long-expired misdemeanor charges upon

which their requests for those stays were predicated.

Their attempt now to use their own misconduct to his disadvantage is a perfect example

of the Yiddish term chutzpah, which the late Leo Rosten illustrated by citing a man who, when

convicted of murdering his parents, threw himself on the mercy of the court on the ground that

he was an orphan.

These Defendants/Movants have engineered a fallacious impasse which they now argue

requires the dismissal of Mr. Gates suit for redress from his Rodney King-like beating. In

that, they have the matter precisely backward: what is required is for them to cease and desist

from continuing to pretend that there is a live and triable criminal case pending and for this Court

to pierce their smoke screen by staying those now-bogus, because long-outdated, charges.

None of the cases cited by these Movants is actually apposite to the instant situation be-

cause none of them dealt with facts where it was the defendants, not the plaintiffs, who were ma-

nipulating the proceedings to retard those cases going to trial. Nor is their argument helped by

their repeated false descriptions of Mr. Gates as a fugitive. On the day the felony trial jury re-

turned a verdict of not guilty in Mr. Gates favor, the DUI and resisting arrest charges about

which these Movants are so concernedeven though the only one with a legitimate official role

regarding them was the felon Walter Reedwere already four years past their sell by date un-

der Article 578, La. Code Crim. Proc., and were already past the five-year limitation imposed by

the Federal constitutional jurisprudence under the speedy trial branch of Fourteenth Amendment

due processto say nothing of their fatal infirmity arising from the evidentiary fact bar of the

double jeopardy guarantee.

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Thus when Mr. Gates was released from that felony charge, there were no remaining

valid criminal charges remaining against him. Despite that, he continued for some time to reside

in St. Tammany Parish, during which time his whereabouts were well known to the St. Tammany

Parish authorities. It was only months laterundoubtedly at the instigation of their insurance

carrierthat they attempted to resurrect those already-dead misdemeanor charges.

Thus it is grossly inappropriate for them now to try to slander Mr. Gates as a fugitive; it

was not his absenting himself from their parish that caused those charges to lapse, any more than

it was his decision to have them shoot their wad with respect to the DUI and resisting arrest

charges by putting on that evidence to try to salvage their felony flight trial. The fault lies upon

several of these Movants, whose tactical decisions, if not outright sloth and incompetence,

caused them to lose any further chance to pursue him lawfully and constitutionally.

This Court is charged with vindicating his Federal constitutional rights, not with tram-

pling them down to save money for a gaggle of former elected officials, which is what these

Movants are asking it to do. Mr. Gates has exhausted his available opportunities to have the

Louisiana state trial and appellate courts uphold those rights but they allwithout ever giving

one single reason for their nonfeasancehave refused to do so. Thus he has no place now to

turn except to this Court, asking it to stay the improper prosecution below, to lift its stay of his

too-long-delayed 1983 suit, and to proceed to give him the opportunity to make his case for

civil redress for wild and unrestrained police misconduct.

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WHEREFORE, Shane Gates respectfully requests this Honorable Court to deny the

Movants pending Motion to Lift Stay and Dismiss.

/s/ J. A. Hollister
JOHN A. HOLLISTER (La. Bar #6963)
613 Bon Temps Roul
Mandeville, Louisiana 70471
(985) 792-5353
jahollister@yahoo.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the above and foregoing pleading was filed electronically

with the Clerk of the United States District Court for the Eastern District of Louisiana on March

8, 2017, using that Courts CM/ECF system, which system will send a notice of electronic filing

to appearing parties in accordance with the Courts established policies and procedures.

/s/ J. A. Hollister
JOHN A. HOLLISTER

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