Traweek v. Gusman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHNNY TRAWEEK CIVIL ACTION

v. NO. 19-1384

MARLIN GUSMAN, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court are two motions by Louisiana Department of

Safety & Corrections Secretary James LeBlanc and employee Ashely

Jones: (1) Rule 12(b)(1) and Rule 12(b)(6) motion to dismiss; and

(2) motion to stay discovery. For the reasons that follow, the

motion to dismiss is GRANTED in part and DENIED in part; and the

motion to stay discovery is DENIED as moot.

Background

This civil rights lawsuit arises from Johnny Traweek’s claim

that bureaucratic incompetence delayed the processing of his

“time-served” judgment, causing him to be unlawfully imprisoned in

Orleans Parish Prison almost three weeks beyond his court-ordered

release date.

On October 2, 2017, Johnny Traweek was arrested on suspicion

of aggravated battery and detained in Orleans Parish Sherriff’s

Office custody at Orleans Parish Prison. He could not make bail.

1

Seven months later, on Wednesday, May 2, 2018, Mr. Traweek appeared

in state court, pled guilty to aggravated battery, and was

sentenced to seven months in the custody of the Orleans Parish

Sheriff, with credit for time served.1 But Mr. Traweek was not

immediately released.2 The next day, Mr. Traweek remained in

custody; Orleans Parish Sheriff’s Office created a Letter of Credit

showing that Mr. Traweek had served his entire seven-month

sentence.

When Mr. Traweek remained in custody a week later, on May 9,

2018, Mr. Traweek’s attorney, Stas Moroz, emailed Monique Filmore

and Blake Arcuri3 at the Orleans Parish Sheriff’s Office asking

why Mr. Traweek had not been released. Ms. Filmore responded

defiantly: “First of all Johnny Traweek was just sentenced on

5/2/18 so his paperwork has not went up yet.” On Monday, May 14,

2018, Mr. Moroz again wrote to Ms. Filmore and Mr. Arcuri: “Mr.

1 In rendering sentence, Judge Willard stated: “Seven months

Orleans Parish Prison. Give him credit for time served, all to

run concurrent. State has agreed to no multiple bill. This does

qualify as a crime of violence.” However, for some reason, the

docket sheet entry indicated that Mr. Traweek was in the custody

of the Louisiana Department of Corrections: “>SENTENCE: >AS TO

COUNT 1, >7 MONTHS, AT DOC >CONCURRENT WITH THESE CASES: ANY/ALL

SENTENCES NOW SERVING. >INCLUDES A CRIME OF VIOLENCE. >CREDIT FOR

TIME SERVED.”

2 Upon his return from court to Orleans Parish Prison, in

anticipation of his immediate release, Mr. Traweek gave away his

commissary items and possessions.

3 Blake Arcuri is enrolled in this lawsuit as lead counsel for

Marlin Gusman and Monique Filmore.

2

Traweek is still in jail. Could you please ensure that he is

released? I understand that the paperwork has to be send (sic) to

[the Louisiana Department of Public Safety & Corrections, or DOC],

but he has now been detained 12 days past his full term date.”

Mr. Arcuri unhelpfully responded that the Orleans Parish Sheriff’s

Office could not release Mr. Traweek since he was a Louisiana

Department of Safety & Corrections, or “DOC” inmate.4 Still

defiant, Ms. Filmore replied: “He can’t get released until DOC

sends him a release. The whole process takes about 2 weeks. He

has to wait!!!!”

On May 16, 2018, the Louisiana Department of Public Safety &

Corrections (DPSC or DOC) confirmed that the Orleans Parish

Sheriff’s Office had not even begun the process of transferring

Mr. Traweek.5 It was not until May 17, 2018 that the DOC received

Mr. Traweek’s release paperwork from the Orleans Parish Sheriff’s

Office.

Although Mr. Traweek’s paperwork “arrived” at the DOC on

Thursday, May 17, four days passed before DOC began to process his

4 Mr. Traweek characterizes Mr. Arcuri’s response as inaccurate

given that the state trial court ordered Mr. Traweek to a sentence

in the custody of the Sheriff. Regardless, Mr. Traweek alleges

that the Sheriff’s Office failed either to release him or deliver

him to the custody of the State.

5 Mr. Moroz contacted Traci DiBenedetto at the Department of

Corrections and learned that Mr. Traweek’s information had yet to

be sent to the DOC.

3

release. On Monday, May 21, 2018, DOC employee Ashley Jones

started working on Mr. Traweek’s paperwork. It is alleged that

she began computing Mr. Traweek’s credit for time-served and she

performed other searches relevant to his release. But she did not

finish Mr. Traweek’s paperwork that day. The next day, on May 22,

Mr. Moroz filed a writ of habeas corpus and motion for immediate

release on behalf of Mr. Traweek.6 Later that same day, Ms. Jones

created Mr. Traweek’s certificate of release and, at about 3:30

p.m., Mr. Traweek was released from custody. Twenty days after he

was sentenced to time-served and eligible for release from custody.

On February 14, 2019, Mr. Traweek filed this civil rights

lawsuit under 42 U.S.C. § 1983, followed by an amended complaint

on May 16, 2019, naming as defendants, in their individual and

official capacities, Marlin Gusman (as Sheriff) and Monique

Filmore (as an employee) of the Orleans Parish Sheriff’s Office as

well as James LeBlanc (as Secretary) and Ashley Jones (as an

employee) of the Louisiana Department of Public Safety and

Corrections.7 Mr. Traweek seeks to recover for a Fourteenth

6 Mr. Moroz filed a petition for Writ of Habeas Corpus, Motion for

Immediate Release, and Motion to Amend/Reconsider Sentence to

convert the Department of Corrections time to Orleans Parish Prison

time.

7 LeBlanc and Jones were first named as defendants in Mr. Traweek’s

June 2019 amended complaint; they were served on August 1, 2019.

Mr. Traweek also sues unknown individuals in their individual and

official capacities as John Does 1 to 10.

4

Amendment Due Process Clause constitutional violation underlying

his § 1983 claims; he also asserts Monell/Hinojosa failure to

train/supervise liability against Gusman and LeBlanc, as well as

various state constitutional and state law claims including false

imprisonment (against Gusman, Filmore, Jones, and Does 1-10),

negligence and failure to intervene (as to all defendants), and

respondeat superior (against Gusman). He seeks declaratory

relief, compensatory damages, special damages, attorney’s fees,

and a permanent injunction, as well as “indemnification” (as to

Gusman only).8

Mr. Traweek alleges that, for years, the Orleans Parish

Sheriff’s Office9 and the Louisiana Department of Safety and

Corrections have held prisoners indefinitely beyond their release

date, releasing prisoners only after their attorneys file habeas

8 Mr. Traweek alleges that he suffered physical harm due to his

overdetention, including an exacerbation of edema, depression, and

anxiety.

9 Mr. Traweek alleges that (and names) numerous OPP inmates were

detained beyond their release dates. Traweek alleges:

When [a] person in Orleans Parish is sentenced to the

custody of the Department of Corrections, OPSO does not

immediately hand that person over to the DOC. Instead,

they drive that person’s paperwork to the DOC and then

hold the person indefinitely in OPP until the DOC sends

for them to be processed and have their sentence

calculated. This sequence can take weeks or more, and

OPSO does not deviate from it even when they know that

a person is entitled to immediate release.

5

corpus petitions.10 Mr. Traweek alleges that these widespread over

detention practices violate his civil rights and confer municipal

liability and supervisory liability. The State Defendants (LDSC

Secretary LeBlanc and employee Jones) now move to dismiss the

plaintiff’s claims against them, invoking Eleventh Amendment

immunity, Heck v. Humphrey, and qualified immunity; they also move

to stay discovery pending the Court’s ruling on their motion to

dismiss.

10 Specific to the LeBlanc and the DOC, Mr. Traweek alleges that

the DOC has a well-documented pattern of overdetention. He points

to testimony by DOC employees who state that they typically observe

at least one case of overdetention each week. In addition to DOC

employee statements acknowledging such a pattern, Mr. Traweek

notes that Attorney General Jeff Landry wrote an opinion piece

published a couple months before Mr. Traweek’s state court plea

and sentencing hearing in which Landry conceded that there “is a

layer of incompetence so deep that the Corrections Department

doesn’t know where a prisoner is on any given day of the week or

when he should actually be released from prison.” Mr. Traweek

alleges that in 2012 Secretary LeBlanc himself championed a project

to improve performance and the implementing study concluded that,

as of January 2012, DOC had a “1446 backlog of cases to have time

computed,” resulting in an average processing delay of 110 days.

Once those inmates finally had their time calculated, more than

83% of them were eligible for “immediate release upon processing.”

Mr. Traweek alleges that the overdetention problem at DOC has not

been fixed; to the contrary, an investigation revealed in 2017 DOC

“had an average of 200 cases per month considered an ‘immediate

release’ due to” calculation and data errors. Even so, Secretary

LeBlanc admitted that there has not been any “discipline or adverse

employment activity for DOC employees who have incorrectly

computed sentences or release dates.” Finally, Mr. Traweek alleges

that, in February 2019, DOC general counsel noted that “231 people

across the state ... waited an average 44 days to be released after

a judge ordered them free.”

6

I.

A.

Motions filed under Rule 12(b)(1) of the Federal Rules of

Civil Procedure allow a party to challenge a federal district

court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The

Louisiana Department of Public Safety and Corrections challenges

this Court’s subject matter jurisdiction under Rule 12(b)(1),

invoking the Eleventh Amendment’s doctrine of sovereign immunity

with respect to the plaintiff’s § 1983 claims seeking monetary

damages against LeBlanc and Jones in their official capacities.

The burden of proof for a Rule 12(b)(1) motion to dismiss is on

the party asserting jurisdiction. Choice Inc. of Texas v.

Greenstein, 627 F.3d 710, 714 (5th Cir. 2010)(citations omitted).

The Court may find a plausible set of facts to support subject

matter jurisdiction by considering any of the following: “(1) the

complaint alone; (2) the complaint supplemented by undisputed

facts evidenced in the record; or (3) the complaint supplemented

by undisputed facts plus the court's resolution of disputed facts.”

Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.

1996).

7

B.

The other ground for dismissal advanced by the defendant is

dismissal for failure to state a claim, under Rule 12(b)(6). The

standard of review applicable to motions to dismiss under Rule

12(b)(1) is similar to that applicable to motions to dismiss under

Rule 12(b)(6).1

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

a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. Such a motion is rarely

granted because it is viewed with disfavor. See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

1045, 1050 (5th Cir. 1982)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,

a pleading must contain a "short and plain statement of the claim

showing that the pleader is entitled to relief." Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he

pleading standard Rule 8 announces does not require 'detailed

factual allegations,' but it demands more than an unadorned, the-

1 See Williams v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir.

2008)(observing that the Rule 12(b)(1) and Rule 12(b)(6) standards

are similar, but noting that applying the Rule 12(b)(1) standard

permits the Court to consider a broader range of materials in

resolving the motion).

8

defendant-unlawfully-harmed-me accusation." Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Thus, in considering a Rule 12(b)(6) motion, the Court

“accepts ‘all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.’” See Martin K. Eby Constr. Co.

v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir. 2004) (quoting

Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). But, in

deciding whether dismissal is warranted, the Court will not accept

conclusory allegations in the complaint as true. Kaiser, 677 F.2d

at 1050. Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal

conclusions “must be supported by factual allegations.” Id. at

678. Assuming the veracity of the well-pleaded factual

allegations, the Court must then determine “whether they plausibly

give rise to an entitlement to relief.” Id. at 679.

“‘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.’” Gonzalez v. Kay, 577 F.3d

600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal

quotation marks omitted). “Factual allegations must be enough to

raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true (even

9

if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (“The

plausibility standard is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a defendant has

acted unlawfully.”).

II.

DOC Secretary LeBlanc and DOC employee Jones advance three

grounds for the dismissal of Mr. Traweek’s § 1983 claims.11 First,

LeBlanc and Jones invoke sovereign immunity insofar as Mr. Traweek

asserts claims against them in their official capacities. Second,

LeBlanc and Jones submit that Heck v. Humphrey’s favorable

termination rule procedurally bars Mr. Traweek’s § 1983 claims.

Finally, LeBlanc and Jones invoke qualified immunity insofar as

Mr. Traweek seeks money damages from them in their individual

capacities. The Court takes up sovereign immunity first.

11 The defendants do not mention Mr. Traweek’s state law claims.

10

A.

LeBlanc and Jones submit that the plaintiff’s claims against

them in their official capacities as Secretary and employee of the

Louisiana Department of Public Safety & Corrections must be

dismissed because the DOC enjoys sovereign immunity from suit.

The plaintiff concedes that dismissal of his official capacity

claims against LeBlanc and Jones is required. The Court agrees.

"Sovereign immunity is the privilege of the sovereign not to

be sued without its consent." Va. Office for Prot. & Advocacy v.

Stewart, 131 S. Ct. 1632, 1637 (2011); Frew ex rel. Frew v.

Hawkins, 540 U.S. 431, 437 (2004)(citing Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 54 (1996)).3 A federal district court lacks

subject matter jurisdiction where the named defendant is protected

by Eleventh Amendment immunity. See Wagstaff v. U.S. Dep't of

Educ., 509 F.3d 661, 664 (5th Cir. 2007)(per curiam). This

jurisdictional bar applies regardless of the nature of the relief

sought and extends to a state’s agencies and departments with

identities sufficiently aligned with the state. Pennhurst State

School & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984), superseded

3 The Eleventh Amendment instructs 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 one of the United

States by Citizens of another State, or by Citizens or Subjects of

any foreign State."

11

by statute on other grounds, 28 U.S.C. § 1367; Regents of the Univ.

of California v. Doe, 519 U.S. 425, 429 (1997); Vogt v. Bd. of

Comm’rs of Orleans Levee Dist., 294 F.3d 684, 688-89 (5th Cir.

2002)(“Even in cases where the State itself is not named a

defendant, the State’s Eleventh Amendment immunity will extend to

any state agency or other political entity that is deemed the

‘alter ego’ or ‘arm’ of the State.”).12 Not only does the Eleventh

Amendment preclude individuals from suing a state in federal court

for money damages, it also bars injunctive and declaratory suits

against the state, unless the state consents to suit, or its

immunity is otherwise overcome by application of waiver,

abrogation, or Ex parte Young doctrines. See Halderman, 465 U.S.

at 100-01; see also Cory v. White, 457 U.S. 85, 91 (1982).

The Eleventh Amendment bar to suits by private citizens

against a state in federal court extends to protect state actors

who are acting in their official capacities. K.P. v. LeBlanc, 627

F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney, 437 U.S.

678, 700 (1978)); Will v. Michigan Dept. of State Police, 491 U.S.

21, 25 (1991)(A suit against a state official in an official

12 The State’s Department of Public Safety and Corrections is

indisputably an “arm of the state.” See Champagne v. Jefferson

Parish Sheriff’s Office, 188 F.3d 312, 314 (5th Cir. 1999)(applying

six factor test and concluding that the Louisiana Department of

Public Safety and Corrections is an “arm of the state”).

12

capacity for monetary damages is treated as a suit against the

state and is therefore barred by the Eleventh Amendment.).

There is a narrow exception to this immunity from suit: the

Ex parte Young exception, which “is based on the legal fiction

that a sovereign state cannot act unconstitutionally[; t]hus,

where a state actor enforces an unconstitutional law, he is

stripped of his official clothing and becomes a private person

subject to suit.” See K.P. v. LeBlanc, 627 F.3d at 124 (emphasis

added)(citing Ex parte Young, 209 U.S. 123 (1908)); see also Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10

(1989)(noting “[o]f course a state official in his or her official

capacity, when sued for injunctive relief, would be a person under

§ 1983 because ‘official-capacity actions for prospective relief

are not treated as actions against the State’”).

Ex parte Young thus limits the plaintiff to prospective relief

and bars money damages. Verizon Md. Inc. v. Pub. Serv. Comm'n of

Md., 535 U.S. 635, 645 (2002). To determine whether Ex parte

Young's mandate is satisfied, "a court need only conduct a

straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly

characterized as prospective." See id. (internal quotation marks

and citations omitted)(alteration in original); see also

Delaughter v. Woodall, 909 F.3d 130, 137 (5th Cir. 2018).

13

Here, it is undisputed that the plaintiff seeks only money

damages against LeBlanc and Jones in their official capacities as

Secretary and employee of the State Department of Public Safety

and Corrections; LeBlanc and Jones have thus permissibly invoked

sovereign immunity and Ex parte Young is not implicated. Mr.

Traweeks’s claims against LeBlanc and Jones in their official

capacities must be dismissed as barred by the Eleventh Amendment.

B.

LeBlanc and Jones next contend that plaintiff’s individual

capacity § 1983 claims are procedurally barred by Heck v. Humphrey,

512 U.S. 477 (1994), and its progeny. In Heck, the United States

Supreme Court held that a convicted person cannot collect damages

for unconstitutional conviction or imprisonment under § 1983

unless “the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state

tribunal . . . , or called into question by a federal court’s

issuance of a writ of habeas corpus.” 512 U.S. at 486-87. The

complaint must be dismissed if a “judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction

or sentence.” Id. at 487. By seeking to impose the Heck procedural

bar to Mr. Traweek’s claims, the defendants emphasize form over

substance, begin from a faulty assumption, and ignore a critical

component of Heck that is absent here. If Mr. Traweek succeeds on

14

the merits, neither his underlying conviction for aggravated

battery nor his seven-month sentence will be impliedly

invalidated. See id. at 486 (the favorable termination rule does

not bar a § 1983 suit when “the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff.”). Here, Mr. Traweek

challenges neither his conviction nor his sentence. He accepts

both. Therefore, the reasoning underlying Heck’s favorable

termination prerequisite is simply not implicated: it would be

illogical to require Mr. Traweek to first seek to invalidate his

conviction or sentence in order to proceed in this lawsuit. The

constitutional violation he advances here is that he was imprisoned

20 days past his release date; he does not take issue with his

criminal judgment of conviction or the sentence rendered, but,

rather, challenges the constitutionality of the administration of

his release after he had served his sentence. Mr. Traweek alleges

that his jailers failed to timely release him once the legal basis

to incarcerate him had expired by court order. The only conduct

the factfinder will probe is that performed by jail officials in

administering his release after his release date.

Another Section of this Court has rejected Secretary LeBlanc’s

attempt to invoke Heck in a factually-similar overdetention

context, Grant v. Gusman, 17-cv-02797, R. Doc. 46 (E.D. La. March

15

27, 2018)(Brown, C.J.). There, the plaintiff, who had served seven

years in state custody, was arrested upon his release based on a

warrant issued years earlier for a different crime predating the

one for which he served the seven-year prison term. The plaintiff

pled guilty and the state court sentenced him to “a one year

sentence, with credit for time served for the seven years he had

just served.” Id. at 3. Like Mr. Traweek, an administrative logjam

between OPSO and DOC caused the plaintiff to be detained an

additional 27 days after his sentencing, notwithstanding the state

trial court’s order (and the judge’s email directly to OPSO’s

attorney directing) that Grant’s release be expedited. Id. at 3-

5. In moving to dismiss Grant’s § 1983 claims, Secretary LeBlanc

also invoked Heck. Chief Judge Brown rejected the argument, noting

“[p]laintiff does not argue that his conviction or sentence were

invalid. . . . [H]e contends that DOC Defendants violated his

constitutional rights by failing to release him from prison.

Therefore, Heck v. Humphrey is not applicable to this case.” Id.

at 32. This reasoning applies equally to Mr. Traweek, who, like

Grant, challenges neither his conviction nor the length of his

court-ordered sentence; he simply alleges that the overdetention

by his jailers’ failure to timely process his release following

16

his court-ordered time-served judgment exceeds constitutional

bounds.13

Mr. Traweek’s lawsuit, if successful, will not demonstrate or

imply the invalidity of any criminal judgment or court-imposed

sentence. He simply alleges that the procedures and action (or

inaction) that caused him to be incarcerated for 20 days longer

than his criminal judgment permitted unconstitutionally deprived

him of his right to due process. Heck’s procedural bar is patently

inapplicable.

13 Nor does Mr. Traweek dispute his jailers’ substantive

calculation of his time-served sentence. There is simply nothing

for him to dispute given his allegations (accepted as true) that

he was sentenced to serve seven months, with credit for time

served, on the first day of his seventh month in custody. Many of

the district court decisions invoked by the defendants to support

their Heck argument are distinguishable because the plaintiffs in

those other cases alleged that their sentences had been

miscalculated and, thus, those plaintiffs indeed challenged the

substantive duration of their confinement. (There is no quarrel

that the Supreme Court extended Heck to the prison discipline

context in Edwards v. Balisok, 520 U.S. 641 (1997)). Mr. Traweek

does not allege that the defendants miscalculated his release date

by improperly calculating credits. Nor does he challenge the

criminal judgment itself or the punishment imposed. Rather, he

challenges the administrative morass that caused him to be

detained, without legal process, beyond his undisputed release

date.

17

III.

A.

Title 42, United States Code, Section 1983 creates a damages

remedy for the violation of federal constitutional or statutory

rights under color of state law; it provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any . . . person

within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured.

Because § 1983 merely provides a remedy for designated rights,

rather than creating any substantive rights, “an underlying

constitutional or statutory violation is a predicate to

liability.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.

1997)(citation omitted). To plead a § 1983 claim, the plaintiff

must allege facts demonstrating:

(1) deprivation of a right secured by the U.S.

Constitution or federal law,

(2) that occurred under color of state law, and

(3) was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)

(citation omitted).

This case is about state and municipal actors’ alleged

knowing, deliberate choices not to process Mr. Traweek’s release,

or adhering to (or failing to adopt) policies deliberately

18

indifferent to his overdetention plight, despite it being clear on

the face of his paperwork compared to his state sentencing judgment

that he was entitled to immediate release. Mr. Traweek charges

that DOC Secretary LeBlanc and DOC employee Jones deprived him of

his right to due process by unreasonably prolonging his detention

after his court-ordered release. When, as here, a plaintiff seeks

money damages for alleged violations of constitutional rights,

government officials sued in their individual capacities may

invoke the defense of qualified immunity. LeBlanc and Jones now

do so.

B.

“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)(noting

that “[t]he protection of qualified immunity applies regardless of

whether the government official’s error is ‘a mistake of law, a

mistake of fact, or a mistake based on mixed questions of law and

fact.’”). Once invoked, the plaintiff has the burden of negating

the defense of qualified immunity. Collier v. Montgomery, 569

F.3d 214, 217 (5th Cir. 2009). When defendants invoke qualified

immunity at the pleadings stage, the Court “must first find ‘that

19

the plaintiff’s pleadings assert facts which, if true, would

overcome the defense of qualified immunity.’” Backe v. LeBlanc,

691 F.3d 645, 648 (5th Cir. 2012)(citation omitted)(“[A] plaintiff

seeking to overcome qualified immunity must plead specific facts

that both allow the court to draw the reasonable inference that

the defendant is liable for the harm he has alleged and that defeat

qualified immunity with equal specificity.”); Fleming v. Tunica

Cty. Miss., 497 Fed.Appx. 381, 388 (5th Cir. 2012)(citation

omitted)(“[n]egating qualified immunity ‘demands more than bald

allegations and conclusionary statements.”) If the plaintiff’s

pleadings meet this requirement, but the Court is not able to rule

on the immunity defense without additional facts, the Court “may

issue a discovery order ‘narrowly tailored to uncover only those

facts needed to rule on the immunity claim.’” Backe, 691 F.3d at

648 (citation omitted). If the Court denies a motion to dismiss

asserting qualified immunity, the government officials are not

precluded from litigating the immunity issue on summary judgment.

McGee v. Carrillo, 297 Fed.Appx. 319, 321-22 (5th Cir. 2008).

Resolving immunity defenses calls for application of a

bifurcated test: “[q]ualified immunity shields...state officials

from money damages unless a plaintiff pleads facts showing (1)

that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

20

the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).14

The Court may consider these prongs in either sequence and need

not consider both. See Pearson, 555 U.S. at 232-36.

What does it mean for a right to be clearly established? This

is a “demanding standard,” which requires “precedent [so]

clear...that every reasonable official would interpret it to

14 “The second prong of the qualified immunity test,” the Fifth

Circuit has observed, “is better understood as two separate

inquires: whether the allegedly violated constitutional rights

were clearly established at the time of the incident; and, if so,

whether the conduct of the defendants was objectively unreasonable

in light of that then clearly established law.” Hare v. City of

Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998)(citations

omitted, emphasis in original). “[L]aw is clearly established,”

the Fifth Circuit has observed, “if it puts an objectively

reasonable official on fair warning that his conduct is unlawful.”

Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 469 n.2

(5th Cir. 2014)(citation omitted). This thorny second prong has

instigated scholarly criticism and debate and its misapplication

has precipitated many summary reversals by the Supreme Court. See,

e.g., Morrow v. Meachum, 917 F.3d 870, 876 (5th Cir. 2019)(citing

cases and cautioning in an excessive force case that “we must think

twice before denying qualified immunity”; noting that, although

“[t]he Supreme Court reserves ‘the extraordinary remedy of summary

reversal’ for decisions that are ‘manifestly incorrect[,]’” the

Supreme Court “routinely wields this remedy against denials of

qualified immunity.”); Cole v. Carson, 935 F.3d 444, 472, 473-74

(5th Cir. 2019)(en banc court holding that it was clearly

established in 2010 that officers’ use of deadly force without

warning where officers were not in immediate danger violated Fourth

Amendment, but fact issues persisted as to whether officers had

time to give the plaintiff warning to disarm before shooting

him)(Willett, J., dissenting; Ho, J., dissenting)(citations

omitted).

21

establish the particular rule the plaintiff seeks to apply.”

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)(citations

omitted, emphasis added). “Clearly established” law is “settled

law” that “place[s] the constitutionality of the officer’s conduct

‘beyond debate.’” Id. (citation omitted). Although the Supreme

Court does not require “a case directly on point,” the legal

principle must be specific, not general, and either “controlling

authority” has adopted the rule, or there is “a robust consensus

of cases of persuasive authority” embracing it. Id. at 589-90

(citation omitted). Stated another way, “[a] [g]overnment

official’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right [are]

sufficiently clear’ that every ‘reasonable official would [have

understood] that what he [or she] is doing violates that right.’”

al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). This demanding second prong thus ensures that

“government officials [have] breathing room to make reasonable but

mistaken judgments about open legal questions.” Id. at 743.

Indeed, “the qualified immunity standard ‘gives ample room for

mistaken judgments’ by protecting ‘all but the plainly incompetent

or those who knowingly violate the law.’” Mendenhall v. Riser,

213 F.3d 226, 230 (5th Cir. 2000)(quoting Malley v. Briggs, 475

U.S. 335, 343 (1986)).

22

Applying these principles, Mr. Traweek has pled facts that,

if true, would permit the inference that LeBlanc and Jones are

liable under § 1983 for a Fourteenth Amendment violation and would

overcome their assertion of qualified immunity.

1. Traweek plausibly alleges that LeBlanc and Jones

violated his Fourteenth Amendment right to timely

release from confinement.

The Fourteenth Amendment forbids states from “depriv[ing] any

person of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. XIV. “The touchstone of due process is

protection of the individual against arbitrary action of

government.” Jauch v. Choctaw Cty., 874 F.3d 425, 430 (5th Cir.

2017)(quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). “The

procedural due process analysis starts with one inquiry: whether

the state has ‘deprived the individual of a protected interest[.]’”

Id. Quite obviously, the Supreme Court has recognized that the

“loss of personal liberty through imprisonment” is sufficient to

trigger due process protections. Id. (quoting Turner v. Rogers,

564 U.S. 431, 445 (2011)).15

15 In Jauch, by county policy, Jessica Jauch was detained in the

sheriff’s custody without an arraignment or bond hearing until the

next court term convened, 96 days after she was taken into custody.

A case of “confinement with process deferred.” Id. at 431. The

Fifth Circuit held that Jauch’s prolonged detention without legal

process violated the detainee’s Fourteenth Amendment right to due

process. Id.

23

Mr. Traweek alleges that LeBlanc’s failure to adopt

safeguards despite knowing DOC’s pattern of overdetaining inmates

and Jones’s direct failure to timely process his release despite

knowing he was overdue to be released violated his right to timely

release from custody. Because Mr. Traweek has a right to be timely

released from custody, his over detention, or detention absent (or

beyond the expiration of) legal process, violates an incarcerated

person’s right to due process. See id.

2. Traweek plausibly alleges that his right to timely

release from custody was clearly established at the time

that LeBlanc and Jones received his release paperwork

and that their delay in securing his release was

objectively unreasonable in light of the clearly

established law.

There is no dispute that an incarcerated person’s right to

timely release from custody is clearly established and was so,

well before 2018 at the time that Traweek remained in custody

despite the court order mandating his release. See id. (citations

omitted). In addition to determining that Jauch’s 96-day detention

without a hearing deprived her of liberty without legal or due

process, the Fifth Circuit determined that the law had been clearly

established in Jones v. City of Jackson, 203 F.3d 875 (5th Cir.

2000);16 thus, the court denied qualified immunity to the sheriff

16 Joseph Jones was held on a bench warrant for nine months without

a court appearance. There, the Fifth Circuit held that Jones’s

right to due process was violated because “[p]rohibition against

24

in whose custody the plaintiff remained for 96 days. Jauch, 874

F.3d at 436 (finding that the sheriff’s attempt to shift blame to

immune judicial officers was misdirected given that sheriff’s

actions and decisions caused constitutional injury: “[e]ither

Sheriff Halford is plainly incompetent, or he knowingly violated

the law.”).

Even before Jauch and Jones -- to underscore just how clear

the law was -- the Fifth Circuit had instructed that the Fourteenth

Amendment forbids the intentional tort of “false arrest,” and a

prisoner has a Fourteenth Amendment due process right to timely

release from prison. See, e.g., Whirl v. Kern, 407 F.2d 781 (5th

Cir. 1968)(holding that a jailer has a duty to effect a prisoner’s

timely release).17 Whirl, who remained in jail for nine months

after all charges against him had been dismissed, sued the sheriff

for deprivation of civil rights under § 1983 and Texas law false

imprisonment. Id. at 786. The jury returned a verdict for the

improper use of the ‘formal restraints imposed by the criminal

process’ lies at the heart of the liberty interests protected by

the Fourteenth Amendment due process clause.” Id. at 880.

17 William Whirl was arrested for felony theft and was transferred

to custody in Harris County jail. On November 4, 1962, the

indictments against Whirl were dismissed by a Harris County judge.

Id. at 785. The court minutes and a list of dismissals were

purportedly sent to the sheriff’s office, but the sheriff says he

was not apprised of the proceedings; there was apparently some

miscommunication between the district clerk’s office and the

sheriff’s office. Id. at 785-86.

25

sheriff. The Fifth Circuit reversed, holding that the district

court erred in failing to grant the plaintiff’s motion for directed

verdict as to liability because the sheriff was “chargeable with

constructive notice of the termination of all proceedings against

Whirl, or alternatively, that absence of such notice was not a

legal justification for Whirl’s continued imprisonment.” Id. at

793.18

Notwithstanding the Whirl v. Kern panel’s ostensible

dismissal of immunity prospects for jailers in a false imprisonment

civil rights case,19 the en banc Fifth Circuit revisited the

18 The Fifth Circuit observed that the sheriff’s duty to the

prisoner:

is not breached until the expiration of a reasonable

time for the proper ascertainment of the authority upon

which his prisoner is detained. We are not to be

interpreted as holding that a sheriff commits an instant

tort at the moment when his prisoner should have been

released. However, in the present case what is or is

not a reasonable time is not at issue. It may safely be

said that [the sheriff’s] ignorance for nine long months

after the termination of all proceedings against Whirl

was, as a matter of law, ignorance for an unreasonable

time.

Id. at 792.

19 The court rejected invocation of a good faith defense for

unlawful imprisonment, observing:

The responsibility for a failure of communication

between the courts and the jailhouse cannot justifiably

be placed on the head of a man immured in a lockup when

the action of the court has become a matter of public

record. Ignorance and alibis by a jailer should not

vitiate the rights of a man entitled to his freedom. A

jailer, unlike a policeman, acts at his leisure. He is

not subject to the stresses and split second decisions

26

availability of qualified immunity to a jailer and held that,

indeed, “a defense of official immunity is available to a jailer

who has acted in reasonable good faith[.]” Bryan v. Jones, 530

F.2d 1210, 1214 (5th Cir. 1976)(en banc).20 But, the court

concluded, “the standard of reasonableness by which the

availability of qualified immunity to an official would be gauged

varie[s] according to the degree of discretion that he

exercise[s].” Douthit v. Jones, 619 F.2d 527, 535 (5th 1980)(citing

of an arresting officer, and his acts in discharging a

prisoner are purely ministerial. Moreover, unlike his

prisoner, the jailer has the means, the freedom, and the

duty to make necessary inquiries. While not a surety

for the legal correctness of a prisoner’s commitment, he

is most certainly under an obligation, often statutory,

to carry out the functions of his office. Those

functions include no only the duty to protect a prisoner,

but also the duty to effect his timely release....

Failure to know of a court proceeding terminating all

charges against one held in custody is not, as a mater

of law, adequate legal justification for an unauthorized

restraint.

Whirl, 407 F.2d at 792 (internal citations omitted).

20 There, Henry Lee Bryan sued the Dallas County Sheriff and others

after he remained in custody until April 7, 1972, despite the

charges against him being dismissed on March 3, 1972. Id. at 1211-

12. Although the sheriff received notice that the indictment was

dismissed (either on March 3 or March 13) and a separate “release

notice” on March 6, the sheriff kept Bryan in custody because the

records indicated that he was being held on the authority of a

warrant, which had not been properly cross-indexed to Bryan’s

indictment. Id. The jury rendered a verdict in Bryan’s favor

against Sheriff Jones, who appealed. The original panel remanded

for retrial of damages but ruled that good faith is not an

available defense. Id. at 1211. On rehearing, the en banc court

held that the defense of reasonable good faith may be raised by a

jailer in § 1983 false imprisonment case. Id. at 1215.

27

Bryan, 530 F.2d at 1215). Thus, “[w]here a plaintiff alleges

that he was imprisoned without valid authority, the court ruled

that it would hold the jailer to a high standard of reasonableness

since he exercises no discretion and is under relatively little

time pressure.” Id. Whether a jailer’s overdetention of a

prisoner violates due process depends on context; as a matter of

law, “[d]etention of a prisoner thirty days beyond the expiration

of his sentence in the absence of a facially valid court order or

warrant constitutes a deprivation of due process.” Id. at 532.21

The Fifth Circuit observed that “[t]he large number of incarcerated

persons about whom [the jailer] must make decisions, while

increasing his administrative burden, does not affect the scope of

his narrow discretion to hold or release the individuals in his

custody.” Id. at 535.

21 Troy Lee Douthit sued former Dallas sheriff, Clarence Jones and

the deputy sheriff seeking damages for wrongful imprisonment under

§ 1983 and Texas state law. Id. at 529. The Fifth Circuit reversed

the district court’s judgment in favor of Jones and McCallam on

the basis of the jury’s finding that they had acted on a reasonable

good faith belief that they had lawful authority to imprison

Douthit. Id. at 535-37 (underscoring a jailer’s “narrow

discretion” to hold or release incarcerated persons and holding

that the sheriff and deputy must present evidence of objective

facts on which they could base a good faith belief that they had

the legal authority to continue to hold Douthit once he had

satisfied his sentence, but remanding to allow defendants the

opportunity to present such evidence).

28

Given the above-mentioned case literature, the Fifth Circuit

has since unsurprisingly expressly recognized that “there is a

clearly established right to timely release from prison.” Porter

v. Epps, 659 F.3d 440, 445 (5th Cir. 2011). There, the court

considered whether a jailer, Epps, the Commissioner of and

policymaker for the Mississippi Department of Corrections, was

entitled to qualified immunity in the face of Will Porter’s claim

that he was falsely imprisoned for 15 months beyond the expiration

of the sentence imposed by the Mississippi state trial court. Id.

at 443. Porter alleged that Epps implemented the policies that

led to his unconstitutional detention, that Epps was aware of the

MDOC records department’s failure to interpret sentencing orders

correctly, yet took no steps to institute procedural safeguards,

train staff, or otherwise hire competent staff, and that Epps’s

indifference resulted in Porter’s unlawful imprisonment. Id. at

444. After being instructed on qualified immunity and supervisory

liability, the jury returned a verdict for Porter, awarding him

$150,000. Id. The district court denied Epps’ motion for judgment

as a matter of law in which he invoked qualified immunity and

argued that he was impermissibly found liable on a theory of

respondeat superior. Id. Epps appealed, and the Fifth Circuit

reversed.

29

Having assumed that Epps violated Porter’s constitutional

right and having already determined that there is a clearly

established right to timely release from prison, the Fifth Circuit

moved on to consider whether Epps’s actions, in light of his duty

to ensure Porter’s timely release from prison, were objectively

reasonable. The Fifth Circuit concluded that Epps, who supervised

a department that made a single mistake, was entitled to qualified

immunity. Id. at 447. The Fifth Circuit first summarized the

relevant authority regarding supervisory liability, which applies

equally to Traweek’s claims against LeBlanc:

A supervisory official may be held liable ... only if

(1) he affirmatively participates in the acts that cause

the constitutional deprivation, or (2) he implements

unconstitutional policies that causally result in the

constitutional injury.” Gates v. Texas Dep’t of Prot.

& Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008). “In

order to establish supervisor liability for

constitutional violations committed by subordinate

employees, plaintiffs must show that the supervisor

act[ed], or fail[ed] to act, with deliberate

indifference to violations of others’ constitutional

rights by their subordinates. Id. (internal quotation

marks and citations omitted, alterations and emphasis in

original). “A failure to adopt a policy can be

deliberately indifferent when it is obvious that the

likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” Rhyne v.

Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992). A

supervisor may also be liable for failure to supervise

or train if: “(1) the supervisor either failed to

supervise or train the subordinate official; (2) a

causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights;

and (3) the failure to train or supervise amounts to

30

deliberate indifference.” Goodman v. Harris Cnty., 571

F.3d 388, 395 (5th Cir. 2009).

Id. at 446. The “stringent standard” of deliberate indifference,

which requires that a state actor disregard “a known or obvious

consequence of his actions” and often requires a pattern of similar

constitutional violations, is necessary to avoid turning failure

to train claims into “de facto respondeat superior liability.”

Id. at 446-47 (citation and internal quotation marks omitted).

That a singular error was made in the records department did not

suffice to show that Epps’s actions were objectively unreasonable

and, thus, he was entitled to qualified immunity on Porter’s

failure to promulgate policy and failure to train/supervise

claims. Id. at 447-48 (there was no evidence showing that Epps’s

policies or lack of policies were unreasonable; indeed, Epps could

not recall other incidents in which persons had been kept beyond

their sentences because of records department errors and Porter

presented no evidence of similar false imprisonments).

Taking as true his allegations, Mr. Traweek has plausibly

alleged that his constitutional right to timely release was

violated by both the defendants. There is no dispute that

Traweek’s incarceration 20 days beyond the term of his court-

ordered sentence implicates the due process clause. LeBlanc and

Jones are entitled to qualified immunity unless Traweek has alleged

31

facts establishing that they violated his constitutional right to

timely release and their actions were objectively unreasonable in

light of clearly established law.

Mr. Traweek has alleged facts sufficient to overcome

LeBlanc’s and Jones’s assertions of qualified immunity at the

pleadings stage. Mr. Traweek alleges his paperwork (including the

OPSO-prepared Letter of Credit, which was created on May 3 and

showed he had served his entire seven-month sentence) had not been

sent to DOC by OPSO until Thursday, May 17, 2018. That paperwork

sat at DOC unreviewed until Monday, May 21, when Ashley Jones

“began computing” Traweek’s credit and “performing other searches

relevant to his release.” Notwithstanding Mr. Traweek’s

allegations indicating that his paperwork and Letter of Credit

when compared to his criminal court judgment on its face obviously

entitled him to immediate release, it was not until sometime later

the next day, Tuesday, May 22, after Traweek’s counsel filed a

petition for habeas corpus, that Ms. Jones created Mr. Traweek’s

Certificate of Release; he was released on 3:00 p.m. that day.

Mr. Traweek alleges that LeBlanc and the DOC have “a well-

documented pattern of overdetention.” Mr. Traweek specifically

alleges that:

•

four DOC employees testified in other cases that they

frequently encounter inmates who are eligible for immediate

release and that the DOC staff have discovered at least one

32

or two cases each week of inmates who have been overdetained

and eligible for immediate release;

•

DOC’s counsel, Attorney General Jeff Landry, wrote an op-ed

stating that there “is a layer of incompetence so deep that

the Corrections Department doesn’t know where a prisoner is

on any given day of the week or when he should actually be

released from prison”;

•

LeBlanc himself championed a review project, Lean Six Sigma,

which found that, as of January 2012, the DOC had a “1446

backlog of cases to have time computed,” resulting in an

average processing delay of 110 days and once those inmates

had their time calculated, more than 83% were eligible for

immediate release;

•

Interventions by the Lean Six Sigma reduced but did not

eliminate the problem: the average days of overdetained

inmates due for immediate release was reduced from 71.7 to

60.52 days;

•

LeBlanc and DOC still did not fix the overdetention problem,

as determined by an October 2017 audit, reporting basic data

errors at the DOC at a rate of 26 errors per 100 inmates and

reporting that staff used different methods to calculate the

release dates on the same offender with results differing by

186 days;

•

The DOC’s own 2017 investigation found that it had “an average

of 200 cases per month considered an ‘immediate release’ due

to...deficiencies”

•

LeBlanc admitted that there has not been a single example of

discipline or adverse employment activity for DOC employees

who have incorrectly computed sentences or release dates from

2000 to the present.

a.

LeBlanc’s § 1983 individual capacity liability is predicated

solely on his supervisory role as Secretary of DOC; there are no

allegations that he affirmatively participated in the acts that

caused Mr. Traweek’s constitutional deprivation. Thus, LeBlanc is

only liable under § 1983 if Mr. Traweek plausibly alleged that he

33

implemented unconstitutional (or failed to implement) policies

that causally resulted in his overdetention. Mr. Traweek contends

that his pattern allegations overcome LeBlanc’s assertion of

qualified immunity and that another Section of this Court has

determined that similar allegations suffice to allege a pattern of

overdetention at the DOC of which LeBlanc was aware but nonetheless

acted with deliberate indifference by failing to discipline or

train employees or to implement any policy to correct the

unconstitutional problem. See Grant v. Gusman, No. 17-2792, 2018

WL 3869494, at *10 (E.D. La. Aug. 14, 2018)(Brown, C.J.). The

Court agrees. Mr. Traweek’s allegations regarding DOC’s pattern

of overdetention and LeBlanc’s deliberate failure to act or

implement policies addressing the overdetention problem suffice to

overcome LeBlanc’s invocation of qualified immunity. Mr. Traweek

alleges that the DOC’s system of administrative processing, in

practice, amounts to a policy of deliberate indifference. It is

alleged that LeBlanc has known about the DOC’s pattern of

overdetention for years and yet has failed to adopt policies to

correct this problem and that this failure to adopt training or

disciplinary policies to address it constitutes deliberate

indifference to MR. Traweek’s constitutional right to timely

release. Mr. Traweek also alleges that, consistent with the known

delays inherent in processing releases at DOC, it took DOC four

34

days to even begin “computing” Traweek’s time and then another day

to effect his release. This suffices to overcome LeBlanc’s

invocation of qualified immunity at the pleadings stage.

b.

Ms. Jones’s individual capacity liability is predicated on

her conduct in processing Traweek’s paperwork and delaying the

preparation of his certificate of release until the day after she

reviewed his paperwork. Mr. Traweek contends that controlling

precedent renders it beyond debate that any reasonable official

would know that failing to process Traweek’s release within at

least several hours or at most several days of receiving paperwork

making it obvious that he was overdue for release violated his

Fourteenth Amendment right to timely release. Ms. Jones argues

that she acted objectively reasonably by calculating Traweek’s

credit and issuing his certificate of release within a one-day

period. “[A]ll Ms. Jones had to do,” Mr. Traweek counters, “was

compare Mr. Traweek’s sentence to his jail credit letter to see

that his sentence was equal to his period of pre-trial detention.

That could take five minutes or less.” Mr. Traweek alleges that

it took her a day or more22 to process his release, which ultimately

22 Mr. Traweek notes that he alleges that the DOC received his

paperwork four days before Jones reviewed it. Absent discovery,

Mr. Traweek says he does not know whether the papers sat on her

desk unreviewed for a week.

35

may be deemed unreasonable by the trier of fact in the context

here, where a jailer lacks discretion to keep in custody a prisoner

entitled to release.

Ms. Jones argues that Mr. Traweek’s allegations fail to

overcome her assertion of qualified immunity because Porter v.

Epps does not clearly establish that taking some time less than 24

hours to process an inmate’s release constitutes deliberate

indifference. To be sure, Porter v. Epps does not directly speak

to what amount of time is reasonable for a jailer to process an

inmate’s release and Whirl suggests that the administrative

process cannot be expected to be instantaneous. However, Mr.

Traweek identifies a body of persuasive authority that clearly

establishes that what amount of time is reasonable is context-

specific such that continuing to detain an inmate entitled to

release for as few as several hours might be unreasonable as a

matter of law.

That an inmate has a due process right to “timely” release

from custody after a judicial determination that he is entitled to

release begs the question: how much time is reasonable and how

much tolerance is there for administrative delay attendant to

processing an inmate’s release? “Courts have not settled on any

concrete number of permissible hours of delay in the context of

post-release detentions.” Berry v. Baca, 379 F.3d 764, 771 (9th

36

Cir. 2004)(emphasis added). Persuasive authorities have declined

to endorse a presumptive reasonable number of hours. See, e.g.,

Berry v. Baca, 379 F.3d 764 (9th Cir. 2004)(reversing district

court’s grant of summary judgment dismissing official capacity

claims, finding a fact issue as to whether application of county

policies which resulted in 29-hour overdetentions was unreasonable

under the circumstances and thus amounted to a policy of deliberate

indifference to arrestees’ constitutional rights); Davis v. Hall,

375 F.3d 703, 719-20 (8th Cir. 2004)(affirming denial of summary

judgment as to those defendants invoking qualified immunity who

had knowledge of the court order calling for inmate’s release but

nonetheless failed to act and noting that “even a thirty-minute

detention after being ordered released could work a violation of

a prisoner’s constitutional rights under the Fourteenth

Amendment.”); Brass v. Cty. Of Los Angeles, 328 F.3d 1192, 1201-

02 (9th Cir. 2003)(affirming dismissal of arrestee’s Monell claim

for failure to state a claim, finding that the 39-hour delay

resulting from the discretionary custom of processing court-

ordered releases at the end of the processing day after it had

processed all other releases did not unreasonably violate his

constitutional rights and acknowledging that the Fourteenth

Amendment “permits a reasonable postponement of a prisoner’s

release” to allow time for processing); cf. Lewis v. O’Grady, 853

37

F.2d 1366 (7th Cir. 1988)(reversing district court’s order

granting a directed verdict in favor of the sheriff sued in his

official capacity and remanding for the jury to consider whether

the 11 hours it took the sheriff to discharge Lewis was reasonable,

but granting summary judgment in favor of defendants sued in their

individual capacities on the basis of qualified immunity); Barnes

v. District of Columbia, 793 F. Supp. 2d 260, 276 (D.D.C.

2011)(“courts appear to agree that the maximum permissible

administrative delay in the overdetention context likely falls

well short of the 48-hour horizon [applied in the Fourth Amendment

context to detentions pending probable cause determinations after

warrantless arrests in [Cnty. Of Riverside v. McLaughlin, 500 U.S.

44 (1991).]”).

Insofar as Ms. Jones argues that, as a matter of law, she

could not be instantly liable for Mr. Traweek’s overdetention, of

course the Court agrees. See, e.g., Whirl v. Kern, 407 F.2d 781,

792 (5th Cir. 1968)(a jailer does not commit “an instant tort at

the moment” the prisoner should have been released, but, rather,

a jailer’s “duty to [her] prisoner is not breached until the

expiration of a reasonable time for the proper ascertainment of

the authority upon which his prisoner is detained”). However, the

Court declines Ms. Jones’s invitation to embrace a per se rule of

reasonableness where persuasive case literature (which Jones

38

ignores) has reasonably declined to adopt one.23 At this stage of

the proceedings, the Court need only consider the alleged facts

and ask whether Mr. Traweek’s allegations overcome her assertion

of qualified immunity; that is, whether Mr. Traweek alleges facts

that, if proved, demonstrate that Ms. Jones acted objectively

unreasonably in light of clearly established law. Although Ms.

Jones suggests that the plaintiff fails to allege that she knew he

was being detained beyond his release date, Mr. Traweek indeed

alleges facts suggesting that she subjectively knew or should have

known that he was entitled to release once she saw his paperwork

on May 21, but that she nevertheless failed to generate his

certificate of release until the afternoon of the following day.

Mr. Traweek alleges facts, if proved, that a simple comparison of

23 Ms. Jones contends that Mr. Traweek alleges that, within one day

of beginning the process of calculating Mr. Traweek’s release

credit, she issued a Certificate of Release that allowed him to be

released at 3:00 p.m. the next day. And yet she then makes the

puzzling argument that, to state that she was liable for

overdetention “would necessarily require that the Court draw the

conclusion that even if Defendant Jones had received and processed

the Plaintiff’s claim in less than one minute, she would still be

liable for the approximately one minute of overdetention.” Not

so. Critical to determining whether Traweek’s allegations

overcome Jones’s assertion of qualified immunity is determining

the objective reasonableness of Jones’ conduct in the context of

the alleged circumstances confronting Jones at the time. At the

motion to dismiss stage, the Court need not indulge Ms. Jones’s

hypothetical; rather, the allegations of the complaint -- that she

failed to generate a certificate of release on the day that she

discovered that Mr. Traweek was overdue to be released -- are taken

as true.

39

the jail credit letter to Mr. Traweek’s sentence made it

unmistakably clear that he had spent more than two weeks in custody

beyond his court-ordered release date; it is Ms. Jones’s failure

to certify his release despite her knowledge that he was overdue

for release that he claims constitutes deliberate indifference to

a known consequence of her action, which violated his clearly

established right to timely release.24 In essence, Mr. Traweek

alleges that Ms. Jones’s conduct delayed the processing of his

release and that this action (or inaction) was objectively

unreasonable in light of clearly established law; he alleges facts

that, if proved, demonstrate that Ms. Jones was plainly incompetent

or knowingly violated the law. This suffices to overcome her

invocation of qualified immunity at this stage of the proceedings.

Accordingly, for the foregoing reasons, IT IS ORDERED: that

the defendants’ motion to dismiss GRANTED, in part, as to the

plaintiff’s claims against Jones and LeBlanc in their official

capacities, and DENIED, in part, as to the defendants’ Heck

argument and as to their invocation of qualified immunity as to

24 Although “no one is entitled to an error-free bureaucracy,” West

v. Tillman, 496 F.3d 1321, 1333 (11th Cir. 2007), Mr. Traweek does

not allege that Ms. Jones erred or was merely negligent. He alleges

that she knew he had been lingering in custody past his release

date and still failed in her ministerial duty to certify his

release until the next day. Should discovery reveal that Jones

was merely negligent, the Court shall have another opportunity to

assess qualified immunity.

40

the plaintiff's Section 1983 claims against LeBlanc and Jones in

their individual capacities. 25 IT IS FURTHER ORDERED: that the

defendants’ motion to stay discovery is DENIED as moot.

New Orleans, Louisiana, October 23, 2019

MARTIN . Cc. ELDMAN

UNITED STAVES DISTRICT JUDGE

25 The defendants did not move to dismiss the plaintiff's state law

claims.

41