Lewis v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALVIN LEWIS CIVIL ACTION

VERSUS NO. 18-4776

RANDY SMITH, individually and in his SECTION M (4)

capacity as Sheriff of St. Tammany

Parish

ORDER & REASONS

Before the Court is a motion to dismiss filed by defendant Sheriff Randy Smith,

individually and in his capacity as Sheriff of St. Tammany Parish (“Sheriff Smith”),1 to which

plaintiff Calvin Lewis (“Lewis”) responds in opposition.2 Having considered the parties’

memoranda and the applicable law, the Court issues this Order & Reasons.

I. BACKGROUND

This case concerns alleged violations of constitutional rights. Lewis is a former

employee of the St. Tammany Parish Sheriff’s Office (“STPSO”).3 In 1997, the STPSO hired

Lewis as a reserve deputy.4 Lewis was promoted several times over the years and obtained the

rank of captain in 2016.5 In 2007, Lewis met Jane Doe (“Doe”)6 while he was assigned to a

work detail, and began a relationship with her.7 Doe has a prior felony conviction.8 In 2010,

Lewis and Doe, along with Doe’s two children who were then-ages two and five, began living

together.9 Lewis alleges that he, Doe, and the children continue to live together today.10

1 R. Doc. 6.

2 R. Doc. 8.

3 R. Doc. 1 at 2.

4 Id.

5 Id. at 3.

6 Lewis refers to the woman at issue as “Jane Doe” to protect her privacy, but says her identity is known to

Sheriff Smith.

7 R. Doc. 1 at 3.

8 Id. at 4.

9 Id. at 3.

10 Id.

In January 2017, Lewis learned of a Facebook post in which an unnamed individual

commented that “a newly promoted captain” was living with a convicted felon.11 Lewis

informed Smith of the post.12 Then in May 2017, Lance Vitter, Arthur Meyers, and Major

Richard Palmisano of the STPSO internal affairs department called Lewis in to discuss the fact

that he was living with Doe, a convicted felon, in violation of the STPSO’s anti-fraternization

policy.13 The STPSO terminated Lewis’s employment on May 19, 2017.14

On May 9, 2018, Lewis filed this action against Sheriff Smith, in his official and

individual capacities, alleging that he was terminated pursuant to the STPSO’s anti-fraternization

policy, which Lewis urges is unconstitutional and selectively applied.15 The STPSO’s anti-

fraternization policy prohibits “fraternization” delineated, in pertinent part, as:

Romantic or intimate personal or other close relationships between an employee

and a known felon, Transitional Work Program inmate, or any incarcerated

individual.

* * *

Fraternization is also the undertaking of a personal relationship or association,

with or without a sexual relationship, by a Deputy with a known felon, Work

Release person, or any incarcerated individual(s) without the express written

permission of the Sheriff, or his designee. This includes any person held in

custodial confinement by arrest or imprisonment.16

Lewis brings claims against Sheriff Smith, in his official and individual capacities, under 42

U.S.C. § 1983 alleging that this policy violates the First, Fifth, and Fourteenth Amendments to

the United States Constitution by infringing upon and burdening the right of individuals to enter

into and maintain intimate relationships.17 Lewis contends that strict scrutiny applies to evaluate

11 Id.

12 Id.

13 Id. at 4.

14 Id.

15 Id.

16 Id. at 5-6. The document containing the policy is not attached to the complaint, so these provisions

entitled “Fraternization” and “Improper Relationships Between Deputies and Incarcerated Individuals,” respectively,

appear here as quoted in the complaint.

17 Id. at 4-5.

the constitutionality of the policy because “of the close and intimate nature of” his relationship

with Doe.18

Lewis also alleges that the anti-fraternization policy is unconstitutionally overbroad and

vague in violation of the Due Process Clause of the Fourteenth Amendment.19 Lewis claims that

the policy does not specifically or adequately define the terms “personal relationship,” “close

relationship,” “association,” “known felon,” “work release person,” “incarcerated individual,” or

“any person held in custodial confinement by arrest or imprisonment,” therefore likely bringing

unintended persons and relationships within the scope of the policy unbeknownst to the

deputies.20 Moreover, Lewis contends that the policy is vague because it does not provide

guidelines for granting exceptions, nor does it contain a mens rea requirement meaning that a

deputy can violate the policy without intentionally engaging in one of the prohibited

relationships.21

Finally, Lewis alleges that Sheriff Smith selectively enforces the anti-fraternization

policy in violation of the equal protection component of the Due Process Clause of the Fifth

Amendment.22 Lewis alleges that there are “several other” STPSO employees who are engaged

in relationships or associations that violate the policy, including Sheriff Smith, who have not

been disciplined or terminated.23 Further, Lewis contends that the policy was arbitrarily

enforced against him because he is African American.24 Lewis seeks damages, including interest

and attorney’s fees.25

18 Id. at 6-7.

19 Id. at 7.

20 Id. at 8.

21 Id. at 8-9.

22 Id. at 9.

23 Id. at 9-10.

24 Id. at 10.

25 Id.

Sheriff Smith filed the instant motion to dismiss arguing that Lewis has not stated any

viable claims for relief and that he is entitled to qualified immunity for Lewis’s claims against

him in his personal capacity.26 Lewis opposes the motion.27

III. LAW & ANALYSIS

A. Rule 12(b)(6) of the Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure require a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must

“‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’”

Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does

not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the

elements of a cause of action,” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555-57).

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Plausibility does not

equate to probability, but rather “it asks for more than a sheer possibility that a defendant has

26 R. Doc. 6.

27 R. Doc. 8.

acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that

are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility

and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the

facts pleaded in the complaint “do not permit the court to infer more than a mere possibility of

misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to

relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court

employs the two-pronged approach utilized in Twombly. The court “can choose to begin by

identifying pleadings that, because they are no more than conclusions [unsupported by factual

allegations], are not entitled to the assumption of truth.” Id. However, “[w]hen there are well-

pleaded factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id. Motions to dismiss are disfavored and rarely

granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (citing Harrington v. State Farm

Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

A court’s review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any

documents attached to the complaint, and any documents attached to the motion to dismiss that

are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain

matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc.,

540 F.3d 333, 338 (5th Cir. 2007); see also Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453,

457 (5th Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to

the allegations found in the complaint, but courts may also consider “documents incorporated

into the complaint by reference or integral to the claim, items subject to judicial notice, matters

of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App’x 408, 409

(5th Cir. 2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

B. Section 1983 Claims

Section 1983 provides a remedy against “every person,” who under color of state law,

deprives another of any rights secured by the Constitution and laws of the United States. 42

U.S.C. § 1983; Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The statute is not itself a

source of substantive rights; it merely provides a method for vindicating federal rights conferred

elsewhere. Olabisiomotosho v. City of Hous., 185 F.3d 521, 525 n.3 (5th Cir. 1999). To pursue

a claim under § 1983, a plaintiff must: (1) allege a violation of rights secured by the Constitution

or laws of the United States; and (2) demonstrate that the alleged deprivation was committed by

a person acting under color of state law. Sw. Bell Tel., LP v. City of Hous., 529 F.3d 257, 260

(5th Cir. 2008); see also West v. Atkins, 487 U.S. 42, 50 (1988). Section 1983 claims can be

brought against a person in his individual or official capacity. Hafer v. Melo, 502 U.S. 21, 23

(1991).

For Sheriff Smith to be liable in either his individual or official capacity, Lewis must first

allege constitutional violations. Lewis’s complaint purports to allege violations of the First,

Fifth, and Fourteenth Amendments related to rights of association, due process, and equal

protection.

1. Right of Association Under the First and Fourteenth Amendments

As explained by the Fifth Circuit in Walker v. Henderson, 239 F.3d 366 (5th Cir. 2000):

The seminal Supreme Court decision addressing the constitutional right of

intimate association is Roberts v. U.S. Jaycees, 468 U.S. 609 (1984). In Jaycees,

the Court reasoned that its decisions “have referred to constitutionally protected

‘freedom of association’ in two distinct senses.” Id. at 617. One set of decisions

concludes that “choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the State because of the

role of such relationships in safeguarding the individual freedom that is central to

our constitutional scheme.”[28] Id. (emphasis added). The other line of cases

recognizes “a right to associate for the purpose of engaging in those activities

protected by the First Amendment ....”[29] Id. at 618.

Freedom of association in the former sense has historically been couched in terms

of family. Marriage, childbirth, raising and educating children, and cohabitation

with one’s relatives are all intimate associations that the Court has very willingly

recognized as worthy of constitutional protection. Id. (citations omitted). From

the nature of these family relationships, the Court gleaned its basis for

determining when other relationships may warrant treatment as constitutionally

protected intimate associations.

Initially the inquiry must focus on whether by its nature the relationship at issue

involves “deep attachments and commitments to necessarily few other individuals

with whom one shares not only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one’s life.” Id. at 620. Several

factors elucidate the types of attachments and commitments that the Court would

consider constitutionally protected intimate associations. They include “such

attributes as relative smallness, a high degree of selectivity in decisions to begin

and maintain the affiliation, and seclusion from others in critical aspects of the

relationship.” Id.

These guideposts establish certain general parameters. As such, the Constitution

imposes constraints on the State’s power to control the selection of one’s spouse

that would be inapplicable to regulations affecting one’s choice of fellow

employees. Id. “Between these poles ... lies a broad range of human relationships

that may make greater or lesser claims to constitutional protection from particular

[State] incursions ....” Id. Accordingly, determining which intimate associations

merit constitutional limits on State intrusion “entails a careful assessment of

where that relationship’s objective characteristics locate it on a spectrum from the

most intimate to the most attenuated of personal attachments.”1 Id.

Following Jaycees, the Court again addressed the right of intimate association

stating that “freedom to enter into and carry on certain intimate or private

relationships is a fundamental element of liberty protected by the Bill o[f]

Rights.” Board of Dir. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537,

545 (1987). Recognizing that such relationships take various forms, the Court

stated that it had not “attempted to mark the precise boundaries of this type of

constitutional protection.” Id. Moreover, the Court unambiguously reasoned that

28 “While the circuits agree upon the scope of its protection, some circuits have determined that the right of

‘intimate association’ derives not from the First Amendment, but from the substantive due process principles of the

Fourteenth Amendment.” Fioretti v. City of Holly Springs, 1997 WL 170319, at *4 n.3 (N.D. Miss. Mar. 31, 1997)

(citing Griffin v. Strong, 983 F.2d 1544, 1546-47 (10th Cir. 1993); Swank v. Smart, 898 F.2d 1247, 1251-52 (7th

Cir. 1990); IDK Inc. v. County of Clark, 836 F.2d 1185, 1191-92 (9th Cir. 1988)).

29 Lewis’s claims clearly involve intimate human relationships, not the activities expressly protected by the

First Amendment, such as freedom of expression and religion. Thus, the Court does not analyze Lewis’s complaint

for claims of expressive association.

such protection is not restricted to relationships among family members. See id.

The Court later qualified this view, however, expressing doubt that the

“Constitution recognizes a generalized right of ‘social association.’” City of

Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

Courts in this circuit have asserted that whether the intimate association right

includes relationships beyond the familial context depends upon the extent to

which the persons share qualities distinctive to family relationships. Tillman v.

City of West Point, 953 F.Supp. 145, 151 (N.D. Miss. 1996) (citing Louisiana

Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1494 (5th

Cir.1995)). This rationale is consistent with the Jaycees’ factors analysis and

underscores the inappropriateness of using “bright line determination[s] of

familial relationships” to establish the constitutional right of intimate association.

Tillman, 953 F. Supp. at 150. Nonetheless, basing the intimate association

analysis on “qualities distinctive to family relationships” can be challenging

because “the definitional boundaries that limit the types of associations that

constitute ‘family relationships’ are blurred.” Kipps v. Caillier, 205 F.3d 203,

206 (5th Cir.2000).

1 The framework Jaycees articulated to determine whether a particular relationship rises to the

level of a constitutionally protected intimate association sparked some criticism. One such

commentator found the framework problematic not only because it “fail[ed] to make the necessary

connection between familial and nonfamilial relations[,]” but also because the Court gave no

instruction regarding the relative importance of any factor. It also did not detail the fine contours

of the right to intimate association. Neal E. Devins, The Trouble With Jaycees, 34 Cath. U.L. Rev.

901, 910 (1985) (noting that the highly unstructured framework of Jaycees necessitates ad hoc

determination of which associations warrant constitutional protection).

Walker v. Henderson, 239 F.3d 366, at *2-3 (holding that plaintiff failed to allege sufficient facts

demonstrating a protected intimate association “with her family and friends” during the relevant

period) (parallel citations omitted).

Lewis’ complaint alleges that the STPSO’s anti-fraternization policy infringed on his

right to enter into a relationship with Doe that is arguably protected by the right of association.

Although Lewis and Doe are not married, Lewis alleges that they have cohabited for more than

eight years and he is involved in raising her children. This relationship may fall on the

continuum of protected relationships. While the jurisprudence does not define the precise

contours of what relationships outside of marriage are protected, the Fifth Circuit has observed

that relationships involving “deep attachments and commitments to necessarily few other

individuals with whom one shares not only a special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one’s life” are protected. Walker, 239 F.3d at

*2-3. The question becomes, then, whether the intimate relationship at issue falls within the

protection outlined at a rather high level of generality in cases like the Supreme Court’s decision

in Roberts and the Fifth Circuit’s decision in Walker. Courts have struggled to apply this general

guidance to the factual circumstances surrounding the relationships at issue in the cases before

them. Compare Isenbart v. Bd. of Cty. Comm’rs of Kit Carson Cty., 2012 WL 4378269 (D.

Colo. Sept. 25, 2012) (finding constitutionally protected intimate relationship between state

employee and sheriff who “moved in together” with intention “to create a familial relationship”),

with Stevens v. Holder, 966 F. Supp. 2d 622 (E.D. Va. 2013) (finding no constitutional protection

for non-marital, non-familial, romantic relationship between FBI trainees who were divorcing

their spouses; observing “that Isenbart distinguishes between marital relationships and those

merely involving romantic association or cohabitation outside of marriage”), with Plummer v.

Town of Somerset, 601 F. Supp. 2d 358, 366 (D. Mass. 2009) (refusing to extend constitutional

protection to right to intimate association outside bounds of marriage or civil union). Lewis cites

no case directly on point holding that the kind of relationship he has with Doe undoubtedly falls

within the ambit of a protected right of association.30 However, Sheriff Smith does not dispute

that Lewis’ relationship with Doe is constitutionally protected. Under these circumstances, the

Court declines to hold otherwise. But this does not end the inquiry into whether Lewis has stated

a claim for violation of his First Amendment right of association.

Lewis argues that strict scrutiny applies to evaluate the constitutionality of the STPSO’s

anti-fraternization policy,31 while Sheriff Smith argues that rational basis review is required.32

Courts employ a two-step analysis to determine the appropriate level of scrutiny to apply to

30 In fact, Lewis concedes that “the Fifth Circuit does not appear to have definitively ruled on the issue.” R.

Doc. 8 at 15.

31 R. Doc. 8 at 7-10.

32 R. Doc. 6-2 at 7.

governmental action that allegedly infringes on the right of marriage. Montgomery v. Carr, 101

F.3d 1117, 1124 (6th Cir. 1996). Although Lewis and Doe are not married, the Court finds it is

appropriate to utilize the same approach because of the alleged marriage-like status of their

relationship. First, courts “ask whether the policy or action is a direct or substantial interference

with the right of marriage; second, if the policy or action is a direct and substantial interference

with the right of marriage, apply strict scrutiny, otherwise apply rational basis scrutiny.” Id. The

court in Montgomery v. Carr cited two examples of “direct and substantial” interference with the

right to marry – namely, the anti-miscegenation statute at issue in Loving v. Virginia, 388 U.S. 1

(1967), which prohibited persons of different races from marrying, and the statute at issue in

Zablocki v. Redhail, 434 U.S. 374 (1978), which required non-custodial parents with child

support obligations to obtain the court’s permission to marry. Montgomery, 101 F.3d at 1124-25.

The court then observed that anti-fraternization and anti-nepotism policies, on the other hand, do

not place a “direct and substantial” burden on marriage, but rather “place a non-oppressive

burden on the decision to marry” by making some potential partners less appealing than others,

and thus such policies are analyzed under a rational basis standard. Id. at 1125-26 (collecting

cases that apply rational basis test in reviewing anti-fraternization and anti-nepotism policies).

The STPSO’s anti-fraternization policy does not place a “direct and substantial” burden

on the right to intimate relationships because it does not completely prohibit one class of people

from being with another. Instead, it affects that right only incidentally by requiring STPSO

employees to relinquish their jobs if they choose to violate the policy. See, e.g., Bautista v. Cty.

of Los Angeles, 190 Cal. App. 4th 869, 877-78 (2010) (anti-fraternization policy prohibiting

peace officer’s relationship with persons under criminal investigation or indictment or having

reputation for criminal activity upheld under rational basis test). The policy has no more than an

incidental or minimal residual impact on the right to intimate association because it does not

prohibit the relationship itself. Thus, this Court will analyze the rule under the rational basis test,

as have other courts reviewing such policies.

While “public employees do not surrender all their First Amendment rights by reason of

their employment, … [w]hen a citizen enters government service, the citizen by necessity must

accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 417-18

(2006). The question is not whether the governmental entity can establish a genuine public need

for the regulation at issue, but whether the public employee attacking the regulation can

demonstrate that there is no rational connection between the regulation and the promotion of

safety of persons and property. Kelly v. Johnson, 425 U.S. 238, 247 (1976). “[A]nti-

fraternization rules prohibiting police officers from socializing with those who they know are

engaging in criminal conduct have routinely been upheld against constitutional challenges ….”

Bautista, 190 Cal. App. 4th at 878.

Under the deferential rational basis test, “[t]he question is only whether a rational

relationship exists between the [government action] and a conceivable legitimate objective.”

Simi Inv. Co. v. Harris Cty., 236 F.3d 240, 249 (5th Cir. 2000). If the question is at least

debatable, there is no violation. Lewis contends that the STPSO has not identified a legitimate

objective for its anti-fraternization policy. However, the STPSO has a legitimate interest in

regulating the behavior of its employees, especially its most senior officers like Lewis, to

minimize the risk for potential conflicts of interest posed by any association with persons of

notoriety and to protect the credibility and integrity of the office. The STPSO’s legitimate

interests in preventing its officers from placing themselves in compromising positions and in

preserving the STPSO’s reputation in the public and in the law enforcement community are

reasonably advanced by the anti-fraternization policy and therefore are sufficient to uphold the

policy under the rational basis test. See Keeney v. Heath, 57 F.3d 579, 580 (7th Cir. 1995)

(upholding anti-fraternization prison regulation under rational basis review; while regulation

made it more costly for prison guard to marry prisoner, “the cost being the loss of her job, or

more precisely the loss of whatever margin made it a better job for her than any other that she

could get,” it did not forbid her from marrying); Parks v. City of Warner Robins, 43 F.3d 609,

614 (11th Cir. 1995) (anti-fraternization policy does not infringe right to intimate association

where it “does not ‘order’ individuals not to marry”); Poirier v. Mass. Dep’t of Correction, 532

F. Supp. 2d 275, 280-81 (D. Mass. 2008) (Department of Correction’s rule prohibiting

fraternization with inmates advanced department’s “interest in assuring the integrity and

objectivity of its correction officers in the discharge of their official duties,” rejecting need to

apply strict scrutiny analysis), aff’d, 558 F.3d 92, 96 (1st Cir. 2009) (upholding rule under either

rational basis review or intermediate scrutiny); Wolford v. Angelone, 38 F. Supp. 2d 452, 461-62

(W.D. Va. 1999) (Department of Corrections’ anti-fraternization policy, which prohibited prison

guard from retaining job if she married convicted felon, upheld under rational basis review; rule

was passed “to regulate work place relations and not marital relations”). Accordingly, Lewis has

failed to state a claim for violation of his alleged right of association.

2. Procedural Due Process Under the Fifth Amendment

Lewis alleges that Sheriff Smith violated his Fifth Amendment right to due process by

selectively enforcing the anti-fraternization policy. “The Fifth Amendment applies only to

violations of constitutional rights by the United States or a federal actor.” Jones v. City of

Jackson, 203 F.3d 875, 880 (5th Cir. 2000) (citing Morin v. Caire, 77 F.3d 116, 120 (5th Cir.

1996)). Lewis has not alleged that Sheriff Smith acted under authority of the federal

government. Thus, Lewis has not stated a claim against Sheriff Smith for violations of his rights

secured by the Fifth Amendment.

3. Procedural Due Process under the Fourteenth Amendment

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV. To state a procedural

due process claim, a plaintiff must allege that: “(1) he has a property interest in his employment

sufficient to entitle him to due process protection, and (2) he was terminated without receiving

the due process protections to which he was entitled.” Ristow v. Hansen, 719 F. App’x 359, 364-

65 (5th Cir. 2018) (quotations and brackets omitted). Whether a plaintiff has a property interest

in his employment that entitles him to due process is governed by state law and exists only when

he has a legitimate right to continued employment. Id. (citations omitted).

Although Lewis alleges that he was entitled to “due process,” he does not allege that he

had a legitimate right to continued employment under Louisiana law. In Louisiana, a public

employee is generally considered an at-will employee and thus has no legitimate entitlement to

continued employment in the absence of a contractual or statutory term providing otherwise.

See, e.g., Tucker v. Trustmark Ins. Co., 2016 WL 6563424, at *5 (E.D. La. Nov. 4, 2016) (citing

Quebedeaux v. Dow Chem. Co., 820 So. 2d 542, 545-46 (La. 2002)). Lewis points to no

contractual or statutory term providing otherwise. Therefore, Lewis has not stated a Fourteenth

Amendment procedural due process claim.

4. Equal Protection Under the Fourteenth Amendment

“The Equal Protection Clause of the Fourteenth Amendment is ‘essentially a direction

that all persons similarly situated should be treated alike.’” Wood v. Collier, 836 F.3d 534, 538

(5th Cir. 2016) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).

“To establish a Fourteenth Amendment equal protection claim, [a plaintiff] ‘must allege and

prove that he received treatment different from that received by similarly situated individuals and

that the unequal treatment stemmed from a discriminatory intent.’” Williams v. Bedison, 729 F.

App’x 350, 351 (5th Cir. 2018) (quoting Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)).

Lewis alleges that Smith violated the Equal Protection Clause by selectively enforcing

the anti-fraternization policy against him due to his race when there are other STPSO employees

who are engaged in relationships or associations that violate the policy.33 Lewis has not

satisfactorily alleged that any other STPSO employees were “similarly situated” to him. He has

not stated their ranks or positions with the STPSO, nor has he stated their races or the types of

relationships and associations in which they are allegedly involved. Thus, because there is no

information from which to glean whether these other employees are similarly situated to Lewis,

he has not stated an equal protection claim. See L&F Homes & Dev., L.L.C. v. City of Gulfport,

538 F. App’x 395, 403 (5th Cir. 2013) (noting lack of comparator in selective-enforcement

claim).

5. Overbroad

In the First Amendment context, the Supreme Court “recognizes ‘a second type of facial

challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”

United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). Lewis’s allegations

regarding the overbreadth of the anti-fraternization policy are as follows:

28.

In addition to the unconstitutionality of Defendant’s policies as applied to

Plaintiff, Defendant’s policies are also overbroad and vague.

29.

Pursuant to the Due Process Clause of the Fourteenth Amendment, a law

or regulation must be drafted with sufficient clarity so as to give persons of

ordinary intelligence a reasonable opportunity to know what is proscribed and to

provide explicit standards for those who apply the law or regulation.

33 R. Doc. 1 at 9-10. Lewis states that the claim arises under the Due Process Clause of the Fifth

Amendment. The claim actually arises under the Equal Protection Clause of the Fourteenth Amendment and the

Court will analyze it as such.

30.

The Due Process Clause also requires that a law or regulation cannot be so

overbroad as to sweep within its prohibitions constitutionally protected conduct.

31.

A law or regulation that is so overbroad that it would chill constitutional

conduct is unconstitutional on its face.34

These allegations are nothing more than formulaic legal conclusions. Lewis’s complaint

is devoid of any facts from which one could find that “a substantial number of [the anti-

fraternization policy’s] applications are unconstitutional, judged in relation to the [policy’s]

plainly legitimate sweep.” Moreover, as Lewis himself recognizes,35 “[r]arely, if ever, will an

overbreadth challenge succeed against a law or regulation that is not specifically addressed to

speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”

Virginia v. Hicks, 539 U.S. 113, 124 (2003). In any event, Lewis wholly fails to explain how the

policy is overbroad in his view. Therefore, Lewis has not stated a claim that the anti-

fraternization policy is overbroad under the First Amendment.

6. Vagueness

In Walker v. Savers, the Fifth Circuit explained:

In general, an enactment is void for vagueness if its prohibitions are not clearly

defined. Such enactments fail to provide fair warning to the innocent. Because

we assume that man is free to steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intelligence a reasonable opportunity

to know what is prohibited, so that he may act accordingly. For this reason, laws

must provide explicit standards for those who apply them. …

… In a facial challenge to the vagueness of a law, our first task is to determine

whether the enactment reaches a substantial amount of constitutionally protected

conduct. Accordingly, a law that does not implicate constitutionally protected

conduct should be upheld only if it is impermissibly vague in all possible

applications. In contrast, a law that inhibits the exercise of constitutionally

protected rights should only be upheld if it survives a more stringent test, because

the degree of vagueness that the Constitution tolerates – as well as the relative

34 R. Doc. 1 at 7.

35 R. Doc. 8 at 15.

importance of fair notice and fair enforcement – depends in part on the nature of

the enactment. In addition, such a challenge is appropriate only on an allegation

that the law is vague not in the sense that it requires a person to conform his

conduct to an imprecise but comprehensible normative standard, but rather in the

sense that no standard of conduct is specified at all.

Walker v. Savers, 658 F. App’x 720, 729-30 (5th Cir. 2016) (quotations, citations, and brackets

omitted).

In his complaint, Lewis alleges that the anti-fraternization policy is vague because several

terms, including “personal relationship,” “close relationship,” “association,” “known felon,”

“work release person,” “incarcerated individual,” or “any person held in custodial confinement

by arrest or imprisonment,” are not adequately defined.36 Lewis also alleges that the policy is

vague because it does not explain when Sheriff Smith or his designee will grant “express written

permission” to engage in one of the prohibited relationships.37 Lewis’ void-for-vagueness claim

is a facial challenge to the policy; he does not challenge the policy as applied to him.

A statute or policy “is unconstitutionally vague if it does not give a person of ordinary

intelligence a reasonable opportunity to know what is prohibited.” Rowell v. Pettijohn, 816 F.3d

73, 83 (5th Cir. 2016) (quotations omitted). “In a civil action, a law is void for vagueness only if

it ‘commands compliance in terms so vague and indefinite as really to be no rule or standard at

all’ or if it is ‘substantially incomprehensible.’” Glass v. Paxton, 2016 WL 8904948, at *3

(W.D. Tex. Aug. 22, 2016) (quoting Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 507

(5th Cir. 2001)). In examining the text of a challenged statute or policy, “words are given their

ordinary meaning unless defined in the statute [or, here, policy].” Rowell, 816 F.3d at 84.

Under STPSO’s anti-fraternization policy, employees of the STPSO are prohibited from

entering “romantic or intimate personal or other close relationships” with “a known felon,

Transitional Work Program inmate, or any incarcerated individual,” and STPSO deputies are

36 R. Doc. 1 at 8.

37 Id.

prohibited from undertaking “a personal relationship or association, with or without a sexual

relationship, … with a known felon, Work Release person, … any incarcerated individual,” and

“any person held in custodial confinement by arrest or imprisonment” except with “the express

written permission of the Sheriff.” When these words are given their ordinary meaning and read

in context of the policy as a whole, see La. Civ. Code arts. 9-13 (addressing interpretation of

laws), the policy is readily understood and hardly incomprehensible.

By reading the anti-fraternization policy to mean what it states, STSPO employees are

barred from “personal” and “close” relationships of the “romantic” and “intimate” variety

expressly forbidden and as to which Lewis does not claim vagueness. Under the contextual

canon ejusdem generis, the general terms “personal” and “close” are interpreted by reference to

the more specific descriptors (i.e., “romantic” and “intimate”) preceding them. And since the

policy later expands the “fraternization” barred to deputies to include “personal relationships or

associations, with or without a sexual relationship,” it is implied that the “personal” and “close”

relationships barred to STSPO employees involve a sexual component. Of the persons with

whom STSPO employees are not to have these relations, Lewis complains that only the terms

“known felon” and “incarcerated individual” are vague. However, a person of ordinary

intelligence can readily understand these commonly used words to forbid relationships with

persons known to them to be felons or jailed.

STSPO deputies – a narrower category than STSPO employees – are barred from a

slightly broader range of “personal relationships” and “personal associations,” which may or

may not involve sexual relationships, but are nevertheless “personal” as opposed to professional

or work-related. And the persons with whom deputies are barred from relating or associating

include those described by terms – “known felon,” “Work Release person,” “incarcerated

individual,” and “any person held in custodial confinement by arrest or imprisonment” – whose

generally prevailing or technical meanings would be apparent to persons employed as deputies.

It would be hard to imagine how a person of ordinary intelligence, much less an STSPO deputy

of ordinary intelligence, could not understand these terms to provide fair notice of the kinds of

persons with whom the policy forbids such relationships.

Nor has Lewis explained how the policy was or could be applied to him or any similarly-

situated STSPO employee in a discriminatory or other improper way as a result of any alleged

vagueness. Accordingly, Lewis has not stated a claim that the STPSO’s anti-fraternization

policy is void for vagueness, either as applied to him or on its face.

C. Lewis’s Official Capacity Claims against Sheriff Smith

Had Lewis stated claims that the anti-fraternization policy either infringed the right of

association or was void for vagueness, such claims against Sheriff Smith in his official capacity

“generally represent only another way of pleading an action against an entity of which an officer

is an agent.” Monell, 436 U.S. at 690 n.55. To succeed on a Monell claim, the plaintiff must

establish: (1) an official policy or custom, of which (2) a policymaker can be charged with actual

or constructive knowledge, and (3) a constitutional violation whose “moving force” is that policy

or custom. Valle v. City of Hous., 613 F.3d 536, 541-42 (5th Cir. 2010).

The “policymaker” prong is satisfied if actual or constructive knowledge of a policy is

attributable to the municipality’s governing body or to an official to whom the municipality has

delegated policy making authority. Webster v. City of Hous., 735 F.2d 838, 842 (5th Cir. 1984).

Under Louisiana law, the sheriff is the final policymaker for a parish’s law enforcement. See La.

Const. art. 5, § 27 (“[The sheriff] shall be the chief law enforcement officer in the Parish.”).

Sheriff Smith is the policymaker for the STPSO.

The “official policy” prong requires that the deprivation of constitutional rights be

inflicted pursuant to an official custom or policy. “Official policy is ordinarily contained in duly

promulgated policy statements, ordinances or regulations.” Piotrowski v. City of Hous., 237 F.3d

567, 579 (5th Cir. 2001). The STPSO’s anti-fraternization policy is an official policy of the

department, and Lewis alleges that it is the moving force behind the alleged constitutional

violations. Therefore, assuming Lewis’ claims of constitutional violation had legs, Lewis would

have stated claims against Sheriff Smith in his official capacity.

D. Lewis’s Individual Capacity Claims against Sheriff Smith

Personal-capacity claims are brought against a government official as an individual.

“[P]laintiffs suing governmental officials in their individual capacities must allege specific

conduct giving rise to a constitutional violation.” Anderson v. Pasadena Indep. Sch. Dist., 184

F.3d 439, 443 (5th Cir. 1999). Further, the defendant sued in his individual capacity must be

“either personally involved in the constitutional violation or [one] whose acts are causally

connected to the constitutional violation alleged.” Id.

Lewis alleges that Sheriff Smith promulgated the policy and terminated his employment

for violating it.38 Sheriff Smith argues that he is entitled to qualified immunity on Lewis’s

individual capacity claims against him.39

Qualified immunity protects a government official from liability for civil damages if his

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

reasonable person would have known.” Charlot v. City of Hous., 757 F. App’x 310, 312 (5th

Cir. 2018) (quotation omitted). The doctrine allows government officials “to make reasonable

but mistaken judgments, and protects all but the plainly incompetent or those who knowingly

violate the law.” Id. at 313 (quotation omitted). The Fifth Circuit has explained the purpose of

the doctrine of qualified immunity this way: “Qualified immunity balances two important

interests – the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity

38 R. Doc. 1 at 4-7.

39 R. Doc. 6-2 at 24-23.

involves not only immunity from liability, but also immunity from suit.

In evaluating a claim of qualified immunity, courts consider: “(1) whether an officer’s

conduct violated a federal right and (2) whether this right was clearly established.” Charlot, 757

F. App’x at 313 (quotation omitted). “A right is clearly established when controlling authority –

or a robust consensus of persuasive authority – [defines] the contours of the right in question

with a high degree of particularity.” Id. (quotation omitted). “To be clearly established, a right

must be sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015). It is not required that

there be “a case directly on point,” but “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “Clearly

established” means “settled law.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

Mere implication from precedent does not suffice. Id. at 590. As the Fifth Circuit instructs:

“This demanding standard protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs,

U.S. 335, 341 (1986)). In sum, [qualified immunity] “represents the norm, and

courts should deny a defendant immunity only in rare circumstances.” Romero v.

City of Grapevine, 888 F.3d 170, 176 (5th Cir. 2018) (internal quotation marks

and citations omitted). “It is the plaintiff’s burden to find a case in his favor that

does not define the law at a high level of generality.” Vann v. City of Southaven,

884 F.3d 307, 310 (5th Cir. 2018) (per curiam) (internal quotation marks and

citation omitted).

Rich v. Palko, 920 F.3d 288, 294 (5th Cir. 2019). The central concern is that the official has fair

warning. Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018).

Given the Court’s analysis and disposition of Lewis’ claims of constitutional violation,

including infringement of his right of association and vagueness of the anti-fraternization policy,

it is not necessary to address whether Sheriff Smith is entitled to qualified immunity. However,

in an abundance of caution, the Court will do so, especially since the issue is so easily resolved.

With respect to whether his own intimate relationship with Doe falls within the ambit of

protection afforded by the right of association, Lewis has pointed the Court to no decision on

point or precedent placing the constitutional question beyond doubt, instead admitting that “the

Fifth Circuit does not appear to have definitively ruled on the issue.”40 Nor has Lewis identified

a case holding that an anti-fraternization policy like STSPO’s breached a right of association

under the rational basis test. And Lewis has not cited a case finding any of the policy’s specific

terms to which he objects to be void for vagueness or even ambiguous under some other

constitutional doctrine. Moreover, the Court has determined, under the circumstances of this

case, that even if Lewis’ relationship with Doe was constitutionally protected, STPSO’s anti-

fraternization policy does not transgress that right on rational basis review, and that the policy is

not void for vagueness. Therefore, it cannot be said that Lewis’ right to be free of the violations

of which he complains is clearly established. Hence, even if Lewis had stated claims of

constitutional violation, Sheriff Smith is entitled to qualified immunity as to such claims.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Sheriff Smith’s motion to dismiss (R. Doc. 6) is GRANTED and

Lewis’s claims are dismissed with prejudice.

New Orleans, Louisiana, this 2nd day of August, 2019.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

40 R. Doc. 8 at 15.