# Traweek v. Gusman

> District Court, E.D. Louisiana · October 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10184928

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184928

## How later opinions describe it (automated extraction)

- 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.’”
- 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
- observing that the Rule 12(b)(1) and Rule 12(b)(6

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184928. Public record. Not legal advice.