# Ohle v. Napoleon

> District Court, E.D. Louisiana · October 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10186060

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** October 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JOHN B OHLE, III, ET AL. CIVIL ACTION

v. NO. 20-1949

CHELSEY RICHARD NAPOLEON, in her capacity SECTION “F”
as Clerk of Court in and for the
Civil District Court, Parish of Orleans,
State of Louisiana

ORDER AND REASONS
The plaintiffs in this putative class action have sued the
defendant Chelsey Richard Napoleon (in her official capacity as
Clerk of Court in and for the Civil District Court of Orleans
Parish) under 42 U.S.C. § 1983.
Before the Court is the defendant’s motion to dismiss. For
the reasons that follow, the motion is GRANTED.
Background
The plaintiffs are defendants in a case pending in the Orleans
Parish Civil District Court.1 On February 28, 2020, the plaintiffs
filed four exceptions in a single transaction in that case. For
that transaction, they paid a single filing fee of $94.00. On
March 5, 2020, the defendant here (the Clerk of Court of the Civil

1 See Booth & Booth APLC v. Ohle et al., No. 2019-11185 “C-10”.
District Court of Orleans Parish, hereinafter, the “Clerk”)
informed the plaintiffs that they would be required to pay separate
filing fees for each of the four exceptions contained within their

February 28, 2020 filing. Believing the Clerk’s demand to be
unlawful, the plaintiffs refused to do so. In response to the
plaintiffs’ violation of her office’s protocols, the Clerk has
refused to process the plaintiffs’ exceptions. As a result of the
Clerk’s refusal to docket and forward the plaintiffs’ exceptions
to the presiding judge, the court entered preliminary default
against the plaintiffs (defendants there) – with the Clerk’s
administrative blessing. To date, the plaintiffs persist in their
refusal to pay the filing fees they deem unlawful and
unconstitutional, and the Clerk persists in her corresponding
refusal to docket the plaintiffs’ “unpaid exceptions” for the
presiding judge’s attention.

In a distinctly American fashion, the plaintiffs have
responded by taking the Clerk to federal court (on behalf of both
themselves and scores of other similarly situated litigants).
Alleging that the Clerk has violated their constitutional rights
to due process and access to courts, the plaintiffs seek damages
under 42 U.S.C. § 1983, as well as declaratory and injunctive
relief. The plaintiffs also charge the Clerk with violating the
Louisiana state constitution.
The Clerk now moves to dismiss under Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(1).
I.

A.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint that fails to state
a claim upon which relief can be granted. “To survive a motion to
dismiss” under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To demonstrate a facially plausible basis for relief, a
plaintiff must plead facts which allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In determining whether a plaintiff has

met this burden, a court must “accept all well-pleaded facts as
true and view all facts in the light most favorable to the
plaintiff,” but must not accord an assumption of truth to
conclusory allegations and threadbare assertions. Thompson v.
City of Waco, 764 F.3d 500, 502 (5th Cir. 2014).
The foregoing presumptions are not to be applied mindlessly,
however. Thus, in considering a motion to dismiss, the Court may
review any documents attached to or incorporated into the
plaintiff’s complaint by reference. Causey v. Sewell Cadillac-
Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). In addition,
the Court may judicially notice matters of public record and other
facts not subject to reasonable dispute. See United States ex
rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379

(5th Cir. 2003).
B.
42 U.S.C. § 1983 supplies a private right of action for the
redress of violations of federal constitutional or statutory
rights under color of state law. Specifically, it provides that:
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.

“The purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims if
such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
Because § 1983 merely provides a vehicle for the vindication of
substantive federal rights, “an underlying constitutional or
statutory violation is a predicate to liability under § 1983.”
Johnston v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1574
(5th Cir. 1989). Thus, to state a claim for § 1983 liability, a
plaintiff must plausibly allege that “(1) a deprivation of a right
secured by federal law (2) [] 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).
C.

The plaintiffs allege that the Clerk has deprived them of
their Fourteenth Amendment rights to due process and access to
courts by charging multiple filing fees for their filing of a
single document containing multiple exceptions. See, e.g.,
Compl., ¶ 13 (“The Clerk overcharged Plaintiffs and members of the
class by charging multiple filing fees and/or denying access to
the court, and failing to give either pre-deprivation or post-
deprivation notice as required by the Due Process Clause of the
Fourteenth Amendment . . . .”). They further allege that the
Clerk’s enforcement of this policy is her “established custom and
practice.” See id. ¶ 59. And, they allege that the Clerk’s
advancement of this policy is unlawful and constitutionally

problematic in a multitude of ways. See, e.g., id. ¶¶ 60–73.
The plaintiffs fail to state a claim upon which relief can be
granted.
1. The Plaintiffs’ Due Process Claims
On the plaintiffs’ claims that the Clerk has violated their
constitutional rights to due process, the Fifth Circuit’s
consideration of a similar § 1983 filing-fees challenge in Woodard
v. Andrus is particularly instructive. See 419 F.3d 348 (5th Cir.
2005). There, the Fifth Circuit found that the plaintiff had
stated a valid Fourteenth Amendment due process claim against the
Clerk of Court for the Civil District Court of Calcasieu Parish –
a peer official of the Clerk here. However, none of the factors

that supported that finding are present in this case. In fact, in
many ways, this case marks the polar opposite of Woodard.
First, where in Woodard the defendant clerk of court was “the
final authority and ultimate repository of the municipality’s
power on matters related to fees charged in connection to civil
litigation,” the Clerk here is merely an administrator carrying
out the directives of a higher authority – the judges of the
Orleans Parish Civil District Court sitting en banc.2 See LA. REV.
STAT. § 13:1213.1; Woodard, 419 F.3d at 352.
Second, where in Woodard the defendant clerk of court
“systematically charged and collected . . . fees in excess of, or
not authorized by state statute,” the Clerk here has charged fees

in accordance with the clearly articulated fee schedule enacted by

2 Why the special treatment for this defendant? Because the
Clerk here is the district clerk in Orleans Parish, which is
treated uniquely under the pertinent provisions of Louisiana law.
See Woodard, 419 F.3d at 352 (“Under Louisiana law, the Clerk of
Courts are ‘ex officio notary public and parish recorder of
conveyances, mortgages,’ and are responsible for ‘other acts and
shall have other duties and powers provided by law. Among the
duties specifically delegated to district clerks, except for
district clerks in Orleans Parish, is the authority to demand and
receive certain enumerated fees in civil matters.” (emphasis
added) (first quoting LA. CONST. art. 5, § 28; then quoting LA. REV.
STAT. § 13:841)). Accordingly, unlike the civil district clerks in
every other parish in Louisiana, the Clerk here is not a
policymaker with respect to filing fees.
the en banc judges. See id. at 352–53. Indeed, as the Clerk notes
in her motion to dismiss, the court’s policy of charging multiple
fees for multiple exceptions is clear on the face of the schedule,
which the plaintiffs’ have attached to their complaint. See

Compl., Ex. A (the court’s “Civil Fee Filing Schedule,” requiring
a $94 fee for “dispositive motions or exceptions” and a $47 fee
for “[a]ll other motions and exceptions”). The Clerk is correct.
Simply put, there is no way to reconcile the court’s published fee
schedule with the plaintiffs’ argument that “the Clerk has
confiscated [their single] filing fee without notice of the
multiple fees and without notice that [the plaintiffs’] exceptions
would not be forwarded to the district court judge” in the absence
of their compliance. The plaintiffs’ proposed reading would render
the fee schedule absurd and ineffectual – indeed, why the need to
set different fees for different exceptions if multiple exceptions

could just be filed in a single transaction; and, if a litigant
were to file a dispositive and a nondispositive exception in a
single transaction, would the transaction cost $94 or $47? As
such, as the fee schedule attached to the plaintiffs’ complaint
makes clear, while the Clerk in Woodard violated his applicable
commands, the Clerk here has followed hers to a tee.
Third, where “the disputed fees [in Woodard] were drawn from
a fund that [the complainant] was required to deposit with the
court in advance and [had] already been confiscated by the Clerk
of Court,” the disputed fees here are simply fees that the
plaintiffs have refused to pay in light of their difference of
opinion with the Clerk. See id. at 353–54. Far from confiscating

the plaintiffs’ money in an unlawful fashion, the Clerk has merely
held fast to her requirements under the lawful directives of the
en banc judges of her court. Louisiana law broadly empowers the
en banc judges of the Orleans Parish Civil District Court to set
filing fees; those judges have done so; and the Clerk, also in
accordance with Louisiana law, has simply attempted to collect
those fees in a lawful manner. Thus, this case is a far cry from
Woodard.
Taken together, these significant factual distinctions compel
a different result here. The plaintiffs’ argument that the Clerk
has charged them multiple filing fees without notice is both
plainly incorrect and nothing like the Woodard plaintiff’s valid

constitutional claim. In Woodard, the defendant clerk set the
fee-collection policies himself; here, the Clerk administers the
fee-collection policies imposed by the en banc court. In Woodard,
the defendant clerk charged fees in excess and violation of state
law; here, the Clerk collects fees in accordance with the valid
prescripts of her superiors, who have in turn enacted those
prescripts in accordance with state law. In Woodard, the defendant
clerk took funds from the plaintiff’s account with impunity; here,
the Clerk has simply asked the plaintiffs to pay the fees they
rightfully owe.
While one could conceivably challenge (albeit quixotically)

the constitutionality of a state’s collection of judicial filing
fees altogether, the plaintiffs have not done so here. Instead,
they have asserted that the Clerk has violated their constitutional
rights by doing exactly what she was required to do: namely,
demanding the plaintiffs’ payment of filing fees for each exception
filed in a civil case proceeding in her court. The Clerk’s doing
so has not deprived the plaintiffs “of a right secured by federal
law,” as there is no federal right to avoid paying valid state-
imposed fees one would rather not pay. See Larpenter, 369 F.3d at
482. Thus, even when taking each of the plaintiffs’ allegations
as true, the plaintiffs have not stated a valid § 1983 claim for
violations of the due process afforded them by the Fourteenth

Amendment.
2. The Plaintiffs’ Access to Court Claims
As an additional theory of § 1983 liability, the plaintiffs
contend that the Clerk’s refusal to docket their multiple
exceptions results in a deprivation of their constitutionally
protected right of access to the courts. This theory fares no
better than the plaintiffs’ due process theory.
The Fifth Circuit has “characterized the right of access [to
courts] . . . to be implicated where the ability to file suit was
delayed, or blocked altogether.” See Foster v. City of Lake
Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (citation omitted).
Here, nothing of the sort has occurred. Far from delaying or

blocking altogether the plaintiffs’ access to the courts, the Clerk
has simply required the plaintiffs to pay their dues while already
in court. It is simply not the case that a court denies a
litigant’s right of access to the courts any time it – and/or its
lawful deputies – requires a litigant to comply with its valid
policies. As should go without saying, the courts in this country
have certain rules of the road that are obviously valid and
constitutional when articulated openly and applied even-handedly.
As legitimately as the Delaware Court of Chancery may reject briefs
not bearing Times New Roman, Size 14 font, the Civil District Court
of Orleans Parish may refuse to docket unpaid exceptions.
In presumable recognition of this reality, the plaintiffs’

opposition on this point resorts to recasting the gravamen of their
entire action: namely, “that the Clerk, while acting in her
official capacity charged multiple filing fees contrary to law,”
“failed to give adequate notice of the multiple filing fees,” “and
denied Plaintiffs the right to access the court by withholding the
Plaintiffs’ exceptions.” See Opp. at 9–10. As detailed above,
those arguments are unavailing. See supra subsection I.C.1.
* * *
To state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must demonstrate, among other things, “a deprivation of
a right secured by federal law.” Larpenter, 369 F.3d at 482. The

plaintiffs’ complaint here satisfies the second half of this
element, but not the first. Indeed, while the plaintiffs are
certainly entitled to due process and access to the courts under
the Fourteenth Amendment, their complaint does not allege that
their rights to those privileges were in fact deprived in any
cognizable way. To the contrary, the defendant Clerk has merely
required the plaintiffs to comply with the valid dictates of a
legitimate state policy that she had no part in enacting.
That policy, as it appears in Exhibit A to the plaintiffs’
complaint, clearly contemplates that every exception filed in
Orleans Parish Civil District Court carries its own filing fee.
See supra subsection I.C.1. Thus, even assuming their truth, the

plaintiffs’ allegations fail to state a claim upon which relief
can be granted.
Because their overarching § 1983 claims fall flat, the
plaintiffs have likewise failed to meet their pleading burden with
regard to their declaratory judgment and permanent injunction
causes of action. Moreover, having dispensed with the plaintiffs’
federal causes of action, the Court lacks subject matter
jurisdiction to consider the plaintiffs’ remaining state-law
claims. See 28 U.S.C. § 1367 (reserving federal supplemental
jurisdiction to “civil action[s] of which the district courts have
original jurisdiction”). This fact compels the Court’s dismissal
of such claims under Rule 12(b) (1).
Accordingly, IT IS ORDERED: that the defendant’s motion to
dismiss is GRANTED. The plaintiffs’ complaint is DISMISSED WITH
PREJUDICE. 3?

New Orleans, Louisiana, October 28, 2020

Newt Cela
MARTIN LW C. FELDMAN
UNITED STATES DISTRICT JUDGE

3 Although Rule 15(a)(2) provides that courts “should freely
give leave [to amend the pleadings] when justice so requires,” the
Court finds that “justice [does not] so regquire[]” here, as any
amendment of the plaintiffs’ complaint is more likely to be
frivolous than meritorious.
12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186060. Public record. Not legal advice.