Taylor v. LeBlanc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERICK TAYLOR CIVIL ACTION

VERSUS No. 20-3180

JESSIE LEBLANC, ET AL. SECTION I

ORDER & REASONS

Before the Court is defendant Jessie LeBlanc’s1 (“LeBlanc”) motion2 to dismiss

plaintiff Erick Taylor’s Third Amended and Supplemental Complaint3 (the “amended

complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). Taylor opposes4 the

motion. LeBlanc filed a reply5 to that opposition and Taylor filed a surreply.6 As

explained infra, the Court grants the motion, dismissing Taylor’s federal law claims

with prejudice and his state law defamation claim without prejudice.

To be clear, though, the Court dismisses the federal claims with prejudice only

because precedent compels it to do so. This pretrial “victory” for LeBlanc should not

1 LeBlanc is sued “in her official and individual capacities.” R. Doc. No. 73, at 1.

However, Taylor has not offered any argument that the state is responsible for

LeBlanc’s actions; indeed, he has already voluntarily dismissed his claims against

the State. That concession seems incompatible with any argument that LeBlanc is

somehow liable in her official capacity. Regardless, the Court need not reach this

issue as it dismisses the claims against LeBlanc for reasons that apply with equal

force to individual and official capacity claims.

2 R. Doc. No. 74.

3 R. Doc. No. 73.

4 R. Doc. No. 75.

5 R. Doc. No. 77.

6 R. Doc. No. 81.

be seen as a vindication or an exculpation. Her conduct is a stain on the state

judiciary and far below what is justifiably expected of a judicial officer.

An impartial judiciary is part of the bedrock of American democracy. But

actual impartiality is not enough to maintain the judiciary’s legitimacy, its most vital

possession. A judge’s impartiality and freedom from bias must be beyond question.

All persons should rightfully expect and believe, without hesitation, that when they

walk into a courtroom, they will be setting foot on a level playing field. LeBlanc’s

actions will give skeptics reason to doubt that belief. That is devastating.

I.

Defendant LeBlanc is a former Judge of the 23rd Judicial District Court of the

State of Louisiana, a district comprised of Ascension, St. James, and Assumption

Parishes.7 Taylor is a deputy in the Assumption Parish Sheriff’s Office.8 Former

Assumption Parish Chief Deputy Bruce Prejean was his “superior.”9

While on the bench, LeBlanc engaged in an extramarital affair with Prejean.10

On February 27, 2020,11 well after the affair ended, the Baton Rouge Advocate

circulated a story about LeBlanc, which detailed the affair.12

7 R. Doc. No. 73, at 1–3 ¶¶ 1, 8. The Court draws the facts it recounts from the

amended complaint, accepting them as true for purposes of the instant motion.

8 R. Doc. No. 73, at 2 ¶ 7.

9 Id. at 2 ¶ 3.

10 Id.

11 Taylor’s amended complaint claims that the article ran March 5, 2020. Id. at 5 ¶

29. But the article itself (which Taylor attached as an exhibit to his original

complaint) is clearly dated February 27, 2020. R. Doc. No. 1-1, at 1. This

contradiction is irrelevant to the Court’s resolution of the instant motion.

12 R. Doc. No. 73, at 5 ¶¶ 29–30; see R. Doc. No. 1-1.

LeBlanc’s affair with Prejean ended in 2016.13 In December 2018, though,

LeBlanc became aware that Prejean was carrying on a separate affair with a

courthouse employee who LeBlanc believed was African-American.14 That revelation

set off an angry text message conversation between her and Prejean.15 During that

conversation, LeBlanc referred to Taylor as a “dirty cop,” a “thug n*****,” and a

“n*****.”16

Taylor became aware of these comments on or around February 20, 2020 when

Prejean told him about the impending article.17 And, according to the article, LeBlanc

admitted that she had sent the text messages and apologized for them during a

televised mid-February 2020 interview with WAFB.18

13 R. Doc. No. 1-1, at 4.

14 Id.; id. at 6.

15 Id. at 3, 6–7.

16 R. Doc. No. 73, at 2 ¶ 4; 5 ¶ 29. The amended complaint contradicts itself as to

whether the words “thug” and “n*****” were used disjunctively or as a single phrase.

See id. While the difference is conceivably material to the question of whether the

statement was the sort that can be defamatory, the Court does not reach that issue

and it consequently need not address the contradiction.

17 Id. at 5–6 ¶ 31.

18 R. Doc. No. 1-1, at 4–5. In his opposition to the pending motion to dismiss, Taylor

makes numerous allegations about the substance of the interview and LeBlanc’s

comments during it—claiming, for example, that LeBlanc did not retract her

description of Taylor as a ‘dirty cop.’ See R. Doc. No. 75, at 10. But those allegations

are nowhere to be found in Taylor’s amended complaint, which only briefly mentions

the interview. R. Doc. No. 73, at 6 ¶ 34. And they go well beyond the passing

description of the interview offered in the Advocate article. R. Doc. No. 1-1, at 4–5.

While the inclusion or omission of these allegations is not outcome determinative, the

Court finds it appropriate to explain why, were a motion to amend the complaint

actually before it, it would deny the motion (besides its futility).

According to Taylor, the impact of LeBlanc’s comments on his ability to

perform his work has been significant. On May 23, 2020, Taylor assisted in a traffic

stop.19 At the scene, a suspect told Taylor: “I will stand right here and watch you

because I don’t trust you. That Judge already said that you were dirty and she’s

gonna [sic] get your ass.”20 A few days later, Taylor assisted with the execution of a

narcotics search at a residence.21 After the search ended, two subjects called Taylor

a “dirty cop” and told him that “the suspect revealed in the search would be out of jail

soon because that judge said that [Taylor] was a ‘dirty cop.’”22 Similarly, on June 4,

2020, Taylor responded to a disturbance call.23 During the incident, the suspect “told

. . . Taylor, ‘What are you going to do? The Judge called you a n***** and you didn’t

do anything.’”24

Eventually, “the levels of harassment and disdain [Taylor] experienced from

the community while working within the Narcotics Division of the [Sheriff’s Office]”

proved to be too much, and he “was moved from narcotics to patrol.”25

And Taylor’s problems with LeBlanc following her resignation were not limited

to his professional life. Sometime after her February 2020 resignation, “LeBlanc took

on the representation of the mother of [Taylor’s] child in a custody and child support

19 R. Doc. No. 73, at 6 ¶ 35.

20 Id.

21 Id. at 6 ¶ 36.

22 Id.

23 Id. at 6 ¶ 37.

24 Id.

25 Id. at 7 ¶ 39.

matter against” him.26 Taylor claims, conclusorily, “that assuming the

representation . . . was an absolute conflict of interest” and was done “to continue to

harass” him.27

Taylor explains that, all told, the “entire ordeal has detrimentally effected [his]

ability to perform his job duties” and “has caused [him] to suffer emotional distress,”

as well as “embarrassment and humiliation.”28 He adds that this has “caused [him]

to seek medical attention for the emotional effects that have flowed from having to

dealing [sic] with the embarrassment and humiliation,” though he offers no detail

about his efforts to obtain medical attention or any treatment that occurred.29 He

does note, however, that in March 2021, “after he submitted an application for a

Special Officer Commission to join a Louisiana Office of State Police Task Force, [he]

was denied involvement due to his having to seek medical treatment for the affects

that were caused to him by” LeBlanc.30

But Taylor’s problems with LeBlanc predate the Advocate story. “[O]n August

7, 2019, . . . LeBlanc issued a bench warrant for . . . [Taylor] in the criminal case of

State v. Jennifer Leonard, Case No. 152,696, Assumption Parish, State of Louisiana,

for what . . . LeBlanc felt was [his] failure to appear as a material witness.”31 Taylor

26 Id. at 7 ¶ 40.

27 Id. at 7 ¶ 41.

28 Id. at 6–7 ¶ 38.

29 Id.

30 Id. at 7 ¶ 42. Taylor has not raised an employment discrimination claim relating

to this alleged incident, nor does he detail the matter further.

31 Id. at 4 ¶ 20. LeBlanc attached what she describes as a transcript of the relevant

proceeding to a Court-ordered reply to Taylor’s opposition. R. Doc. No. 77-1. Because

the hearing is explicitly referenced in Taylor’s amended complaint and is, by his own

alleges that LeBlanc did this despite the fact he had informed the District Attorney’s

Office a month earlier that “he would be out at a Narcotics Officers Association

training conference.”32

Taylor appeared before LeBlanc during an August 8, 2019 hearing “with

respect to the bench warrant.”33 “During the hearing . . . LeBlanc stated on the record

that she felt . . . Taylor was going to ‘do what he wanted to do, it didn’t matter what

[she] said.’”34 “LeBlanc also released a statement read on the record, in view of the

parties, that the Assumption Parish Sheriff [sic] Office had no credibility in her

courtroom.”35

On August 20, 2019, LeBlanc emailed Sheriff Falcon and others “questioning .

. . Taylor’s credibility.”36 Two days later, in an email, “Sheriff Falcon took issue with

. . . LeBlanc’s act of questioning . . . Taylor’s credibility.”37 LeBlanc emailed Sheriff

account, central to his claims, R. Doc. No. 75, at 8, and because Taylor does not

challenge the legitimacy of the transcript, the Court could likely consider the

transcript for purposes of the instant 12(b)(6) motion. See Collins v. Morgan Stanley

Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000). The Court need not reach the

transcript, though, because it concludes that, assuming arguendo the hearing went

as described in Taylor’s amended complaint, dismissal of the federal claims is still

appropriate.

32 R. Doc. No. 73, at 4 ¶ 21.

33 Id. at 4 ¶ 23.

34 Id. at 5 ¶ 24.

35 Id. at 5 ¶ 25.

36 Id. at 5 ¶ 26.

37 Id.

Falcon again on September 3, 2019, “rescinding her questioning of . . . Taylor’s

credibility.”38 At that point, Taylor “felt that all was fine with the stated parties.”39

Another incident occurred in November 2019. That month, “Taylor executed a

traffic stop wherein he ultimately found the operator of the motor vehicle was found

[sic] to have illegal narcotics within her possession.”40 Shortly thereafter, he

“submitted a warrant request to then Judge . . . LeBlanc with respect to the discovery

of the narcotics that was revealed during the traffic stop”41 and “submitted the

retrieved narcotics to the Louisiana State Police for analysis.”42

That same day, Taylor “received an SMS text message from . . . LeBlanc

advising that either his request for a warrant or the factual basis that he presented

within his request for a warrant contained information or material that was

‘Insufficient to establish probable cause.’”43 Taylor responded to LeBlanc’s text

message, writing back “Yes ma’am.”44

Later that day, “Assumption Parish [Sheriff] Leland Falcon contacted . . .

LeBlanc inquiring as to why she was denying the warrant request, as everything

appeared to have been in order.”45 In an apparent response to this inquiry, LeBlanc

38 Id. at 5 ¶ 27.

39 Id. at 5 ¶ 28. This statement is hard to square with Taylor’s allegations regarding

a November 2019 incident, discussed infra and raised earlier in his amended

complaint.

40 Id. at 3 ¶ 12.

41 Id. at 3 ¶ 13.

42 Id. at 3 ¶ 14.

43 Id. at 3 ¶ 15.

44 Id. at 4 ¶ 16.

45 Id. at 4 ¶ 17.

texted Taylor once more, advising him that “[i]t is within [her] discretion as to

whether probable cause exist [sic].”46 Perplexed, Taylor responded “[y]es ma’am I

completely understand.”47

According to Taylor, the Advocate article “contained a blurb stating that in

December of 2019 Sheriff Falcon issued a memorandum advising that he felt . . .

LeBlanc ‘. . . demonstrates an apparent bias towards Lieutenant Erick Taylor who

serves in my Narcotics Division.’”48 According to Taylor, “this revelation severely

impacted [his] ability . . . to perform his Assumption Parish job duties.”49

Taylor’s amended complaint lists four counts. The first alleges that LeBlanc

violated 42 U.S.C. § 1983 by intentionally taking actions that “constituted defamation

and/or libel and were inspired by racial prejudice.”50 It does not identify the source

of the allegedly violated rights. The second count is identical except that it alleges

that those same actions constituted a “violation of the Fourteenth Amendment,”

though it does not further explain that claim.51 In the instant motion, LeBlanc noted

46 Id. at 4 ¶ 18.

47 Id. at 4 ¶¶ 18–19.

48 Id. at 6 ¶ 32. The Court assumes Taylor means that Falcon claimed LeBlanc was

biased against Taylor. The Court’s acceptance or rejection of this allegation is

immaterial to its disposition of this case. Nonetheless, the Court notes that the

allegation is directly contradicted and disproven by the article itself, which Taylor

attached to his original complaint and upon which he relies heavily. R. Doc. No. 1-1.

The article, in fact, contains no mention of any such statement by Falcon. See id.

Given the obviousness of the misrepresentation, and counsel’s previously mentioned

confusion about the date of the article’s publication, the Court will assume the

misstatement was an error.

49 R. Doc. No. 73, at 6 ¶ 33.

50 Id. at 7–8 ¶¶ 43–45.

51 Id. at 8 ¶¶ 46–48.

that the violation alleged in the second count is “only actionable through Section

1983.”52 Taylor’s opposition did not dispute this, instead treating his claim as arising

under Section 1983 for a violation of the Fourteenth Amendment.

“Section 1983 creates a private right of action for redressing the violation of

federal law by those acting under color of state law.” Colson v. Grohman, 174 F.3d

498, 504 n.2 (5th Cir. 1999) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465

U.S. 75, 82 (1984)). “It is not itself a source of substantive rights, but merely provides

a method for vindicating federal rights conferred elsewhere.” Id. (citing Albright v.

Oliver, 510 U.S. 266, 271 (1994)). In light of this precedent, as well as the parties’

treatment of counts one and two as a single merged claim, the Court will assume the

two counts are in fact one and address them accordingly. The amended complaint is

also silent as to the nature of Taylor’s Fourteenth Amendment claim. But, while

Taylor’s initial opposition to the instant motion was ambiguous as to whether his

claim sounded in due process or equal protection, Taylor’s counsel clarified during an

August 12, 2021 status conference that the claim implicates only a violation of

Taylor’s due process rights and not that he was treated differently from others in

violation of the Equal Protection Clause.53

Taylor’s third count alleges that the same actions constitute defamation and/or

libel under Louisiana law.54

52 R. Doc. No. 74-1, at 6.

53 R. Doc. No. 80, at 1.

54 R. Doc. No. 73, at 8 ¶¶ 49–50.

The fourth ‘count’ of Taylor’s amended complaint is titled “Waiver of Judicial

Immunity” and argues that a Seventh Circuit case from 1979 dictates that LeBlanc

is not entitled to judicial immunity for her actions.55 As explained in detail infra,

LeBlanc agrees that judicial immunity does not apply to her actions except those

taken in her role as a judge. And Taylor’s counsel conceded during the August 12,

2021 status conference that judicial immunity protects those actions LeBlanc took

from the bench.56 While the Court will address the extent of LeBlanc’s judicial

immunity in its resolution of Taylor’s substantive claims, there is nothing else for it

to do with Count 4.

II.

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of

a complaint when a plaintiff fails to set forth well-pleaded factual allegations that

“raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The

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 Twombly, 550 U.S. at 570).

A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the

court to infer more than the mere possibility of misconduct,” then “the complaint has

55 Id. at 8–9 ¶¶ 51–54.

56 R. Doc. No. 80, at 1.

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. Proc. 8(a)(2)) (alteration in original).

In assessing the complaint, a court must accept all well-pleaded facts as true

and liberally construe all factual allegations in the light most favorable to the

plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Gentilello v.

Rege, 627 F.3d 540, 543–44 (5th Cir. 2010). However, courts “do not accept as true

conclusory allegations, unwarranted factual inferences, or legal conclusions.” Plotkin

v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). Furthermore, “the Court must

typically limit itself to the contents of the pleadings, including attachments

thereto.” Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., No. 08-5096, 2011

WL 4352299, at *3 (E.D. La. Sept. 16, 2011) (Vance, J.) (citing Collins v. Morgan

Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). “Dismissal is appropriate

when the complaint ‘on its face show[s] a bar to relief.’” Cutrer v. McMillan, 308 F.

App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970

(5th Cir. 1986) (alteration in original)).

III.

Judicial Immunity

“[J]udicial immunity is an immunity from suit, not just from ultimate

assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). “Accordingly, [it] is not overcome by allegations

of bad faith or malice[.]” Id. (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)). “It is

the Judge’s actions alone, not intent, that” must be considered. Malina v. Gonzales,

994 F.2d 1121, 1125 (5th Cir. 1993). “Although unfairness and injustice to a litigant

may result on occasion, it is a general principle of the highest importance to the

proper administration of justice that a judicial officer, in exercising the authority

vested in him, shall be free to act upon his own convictions, without apprehension of

personal consequences to himself.” Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005)

(quoting Mireles, 502 U.S. at 10).

Still, “judicial immunity can be overcome in two sets of circumstances: (1) ‘a

judge is not immune from liability for nonjudicial actions, i.e., actions not taken in

the judge’s judicial capacity’; and (2) ‘a judge is not immune for actions, though

judicial in nature, taken in the complete absence of all jurisdiction.’” Id. (quoting

Mireles, 502 U.S. at 11–12) (proceeding to conclude that neither of these exceptions

applied to a judge’s issuance of a bench warrant).

Section 1983

Section 1983 provides a private right of action against parties acting “under

color of any statute, ordinance, regulation, custom, or usage, of any State” to redress

the deprivation of rights secured by the United States Constitution or federal law.

Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). “Section 1983 ‘is not itself a source

of substantive rights,’ but merely provides ‘a method for vindicating federal rights

elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979)).

“To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right

secured by the Constitution or laws of the United States and (2) demonstrate that the

alleged deprivation was committed by a person acting under color of state law.’”

Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (quoting James v. Tex. Collin

Cnty., 535 F.3d 365, 373 (5th Cir. 2008)), cert. denied, 572 U.S. 1087 (2014).

“A person acts ‘under color of state law’ if he engages in the ‘misuse of power,

possessed by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.” Bryant v. Military Dep’t of Miss., 597 F.3d

678, 686 (5th Cir. 2010) (quoting Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002))

(alteration omitted). “However, a state officer does not act ‘under color of state law’

if he ‘pursues personal objectives without using or misusing the power granted to him

by the state to achieve the personal aim.’” Id. (quoting Moya, 291 F.3d at 861). This

is true of judges acting as private citizens, even when the things they do involve the

judicial system, see, e.g., Washington v. Atmos Energy Corp., No. 07-50296, 2007 WL

2493492, at *1 (5th Cir. Sept. 4, 2007) (per curiam) (concluding that a judge “did not

act under color of law when he filed a criminal complaint as a private individual”), or

when their actions involve the trappings of their office but they do not “intend[] to

use [their] judicial powers” or “us[e their] office to magnify the impact of [their]

private action.” Tierney v. Vahle, 304 F.3d 734, 741 (7th Cir. 2002) (concluding that

a judge’s use of his official stationary was not enough to render the sending of a

recommendation letter an action taken under color of law).

To state a § 1983 claim against LeBlanc in her official capacity, the allegations

in the amended complaint must satisfy the elements required to establish state

liability. This is because § 1983 claims asserted against officers in their official

capacities are really claims against the government entity. Goodman v. Harris Cty.,

571 F.3d 388, 396 (5th Cir. 2009) (“[O]fficial capacity suits are really suits against the

governmental entity[.]”); Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229

F.3d 478, 485 (5th Cir. 2000) (“In any case in which a defendant government official

is sued in his individual and official capacity, and the city or state is also sued . . .

[t]he official-capacity claims and the claims against the governmental entity

essentially merge.”).

Defamation, Section 1983, and the Fourteenth Amendment’s Due Process

Clause.

In Paul v. Davis, the Supreme Court rejected two premises that might

otherwise offer Taylor relief. 424 U.S. 693 (1976). First, the Court concluded that an

official’s violation of a state defamation law cannot, in and of itself, provide the basis

for a Section 1983 suit based on a violation of the Due Process Clause. Id. at 699–

700. Explaining that the plaintiff “apparently believe[d] that the Fourteenth

Amendment’s Due Process Clause should ex propio vigore extend to him a right to be

free of injury wherever the State may be characterized as the tortfeasor,” the Court

reasoned that “such a reading would make of the Fourteenth Amendment a font of

tort law to be superimposed upon whatever systems may already be administered by

the States.” Id. at 700–01. Noting an earlier plurality opinion’s observation that a

“[v]iolation of local law does not necessarily mean that federal rights have been

invaded,” it proceeded to reject the premise outright. Id. (quoting Screws v. United

States, 325 U.S. 91, 108–09 (1945)).

Next, the Court held that a claim of defamation and consequential reputational

damage, or stigma, does not implicate a right protected by the Fourteenth

Amendment and is accordingly not actionable under Section 1983. Id. at 712; see also

Davis v. City of Aransas Pass, 605 F. App’x 429, 430 (5th Cir. 2015) (per curiam) (“A

plaintiff’s claim of defamation by a state actor, standing alone and apart from any

other government action against him, does not implicate a constitutionally protected

interest under the Fourteenth Amendment”). Specifically, the Court held that an

“interest in reputation . . . is neither ‘liberty’ or ‘property’ guaranteed against state

deprivation without due process of law.” Paul, 424 U.S. at 712. It reasoned, therefore,

that the defendants’ “defamatory publications, however seriously they may have

harmed [the plaintiff’s] reputation,” were not a violation of the Fourteenth

Amendment and Section 1983. Id.

“Following [Paul], [the Fifth Circuit has] consistently required plaintiffs

alleging that the defamatory statements of a government official operated to deprive

them of a protected liberty interest to satisfy what has sometimes been referred to as

the ‘stigma plus infringement’ test.” Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir.

1996) (citing San Jacinto Savings & Loan v. Kacal, 928 F.2d 697, 701–02 (5th Cir.

1991); Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995)). “[F]or a

statement to be sufficiently stigmatizing to satisfy the first prong of the test, the

statement must be both false and assert some serious wrongdoing on the part of the

plaintiff.” Id. (citations omitted). In order to satisfy the second prong, a plaintiff

must “allege the deprivation of a protected interest.” Id. And “[n]either harm to

reputation nor the consequent impairment of future employment opportunities are

constitutionally cognizable injuries.” Id. (citing Siegert v. Gilley, 500 U.S. 226, 233–

35 (1991)).

IV.

Taylor’s Federal Claims

At bottom, LeBlanc argues that Taylor’s claims fail as a matter of law because

“defamation cannot provide the . . . basis for a Section 1983 claim” and Taylor “alleges

no loss of a constitutionally protected liberty or property interest which would except

his claims from” that rule.57

LeBlanc points out that, assuming arguendo that LeBlanc’s reference to Taylor

as a ‘dirty cop’ satisfies the ‘stigma’ prong of the test articulated in Vander Zee, Taylor

has not alleged any deprivation of a protected interest, rendering the second prong of

the test insurmountable.58

LeBlanc argues alternatively that, assuming Taylor’s claim satisfies the test

set forth in Vander Zee, it fails because LeBlanc’s sending of text messages to Prejean

was not an action taken under color of state law, a requirement of a Section 1983

claim.59

Taylor does not argue that his claim satisfies the requirements of Paul as

articulated in Vander Zee; instead, he argues that the “position . . . supported by the

57 R. Doc. No. 74-1, at 1–2.

58 Id. at 10 (citing Vander Zee, 73 F.3d at 1369).

59 Id. at 14.

Paul case . . . is absolutely incorrect[.]”60 According to Taylor, this case “should be

assessed using the standards applied in the case Harris v. Harvey.”61

In support of that notion, Taylor points to perceived factual and legal

similarities between the instant matter and that case. He notes that the defendant

judge in that matter also argued that the defamation claims against him were not

actionable under Section 1983 pursuant to Paul and that the Seventh Circuit rejected

that contention.62 Adding that the Seventh Circuit distinguished Paul as “basically

a libel suit,” he argues that, like the plaintiff in Harris, he was subjected to a “racially

motivated campaign to discredit and damage” him.63 In support of this contention,

he cites (1) the bench warrant hearing, (2) LeBlanc’s email to Sheriff Falcon, (3)

LeBlanc’s text messages to Prejean, and (4) LeBlanc’s representation of his child’s

mother in custody proceedings.64

Turning to LeBlanc’s argument that her actions were not taken under state

law, Taylor offers a varied response. First, he acknowledges that LeBlanc’s

representation of his child’s mother was not an act “under color of state law,” but

argues that it is relevant to show LeBlanc’s motives.65 Next, he argues that the

issuance of the bench warrant was “done under the ‘color of law’” as it occurred while

LeBlanc “was sitting on the bench as an elected District Court Judge.”66

60 R. Doc. No. 75, at 6–7.

61 Id. at 12 (referencing Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979)).

62 Id. at 7 (citing Harris, 605 F.2d at 330).

63 Id. at 7–8.

64 Id. at 8–9.

65 Id. at 3–4.

66 Id. at 6.

Turning to the text messages LeBlanc sent Prejean, Taylor suggests the matter

is a close call, explaining that “I guess the question will be, where is the true

demarcation point from when Ms. LeBlanc was a judge during her communications

with [Prejean] and when were her communications deemed private with [Prejean].”67

He goes on to argue that both the professional relationship between Prejean and

LeBlanc and the fact that LeBlanc was married to someone other than Prejean at the

time she sent the text messages weigh in favor of a conclusion that the text messages

were sent ‘under color of state law.’68

Both of Taylor’s arguments miss the mark. Despite the supposed factual

similarity between the instant matter and Harris,69 the claims raised are easily

67 Id.

68 Id. Taylor concludes this argument by explaining that “[i]t appears that this is why

the publication of the subject text messages by the media appears to have gone

unpunished by Ms. LeBlanc.” Id. The Court does not understand this argument.

69 The Court notes that the allegations against LeBlanc, while serious and largely

undisputed, fall well short of the conduct of the defendant judge in Harris. In that

case, the defendant judge “urged [the district attorney] to have a complaint sworn out

against [the plaintiff],” told a police officer “he was going to get that ‘black bastard,’”

engaged in a campaign to force plaintiff’s attorneys and friends to disassociate from

him, threatened witnesses with prosecution for perjury when they failed to

incriminate the plaintiff, and issued a warrant for plaintiff’s arrest which he

proceeded to read over the radio along with a press release prepared by the district

attorney. 605 F.2d at 333–34. He then “attempted to have the Chief of Police suspend

or fire” the plaintiff or, at a minimum “be forced to take a lie detector test.” Id. at

334. He then commented publicly on the merits of the charges against the plaintiff

and called him “a fixer, a briber, and a sycophant” before submitting “an affidavit in

a legal proceeding making racial and derogatory remarks about” him. Id. He also

“met with officials of the Wisconsin Attorney General’s office and threatened to accuse

plaintiff of bribery, ticket-fixing, and other illegal activities in the public press unless

the Attorney General ‘would do something about’” him. Id. This is just a sampling

of the relevant allegations.

distinguishable. The Harris plaintiff’s claims sounded in both due process and equal

protection. 605 F.2d at 333. And the Seventh Circuit distinguished the case from

Paul (escaping its rule, which dooms Taylor’s claims) by noting that Paul “presented

no equal protection issue.” Id. at 338. Accordingly, Harris offers the Court no reason

to think that Paul and its Fifth Circuit progeny like Vander Zee are not controlling

where the only claim raised sounds in due process.70

Vander Zee made clear that “[n]either harm to reputation nor the consequent

impairment of future employment opportunities are constitutionally cognizable

injuries”—at least for purposes of Paul analysis. 73 F.3d at 1369. The Fifth Circuit

recently reiterated that rule and concluded that “secondary harms resulting from [an

allegedly defamatory act] . . . fail[] to show a due process violation under the stigma-

plus test.” Does 1–7 v. Abbott, 945 F.3d 307, 313 (5th Cir. 2019) (citing Vander Zee,

73 F.3d at 1369).

As explained infra, Harris is inapposite for legal reasons, rendering the factual

distinction irrelevant. But the Seventh Circuit did explain in reaching its decision

that it “realize[d] that the types of injuries claimed in this case may often result from

ordinary defamation” but that “the ongoing campaign to have plaintiff relieved of his

job, which was motivated by racial animus and carried out under color of law,

distinguishes this case from ordinary defamation cases.” Id. at 338 n.9. And

LeBlanc’s only actions that might, liberally, be described as part of such an effort

were her email to Sheriff Falcon and possibly the bench warrant hearing and text

messages to Prejean, though neither of those is clear cut. That is a far cry short of

the judge’s campaign in Harris.

70 Of course, the Seventh Circuit’s opinion in Harris could not overrule or abrogate

Paul, a Supreme Court case. Nor can its persuasive value, assuming it has some,

overcome the binding authority of Vander Zee, a published Fifth Circuit opinion.

Taylor does not allege anything other than secondary harms. He argues that

LeBlanc’s “actions . . . were harmful to [his] reputation and employment.”71 The

closest any of his allegations come to alleging a negative impact on his job with

Assumption Parish is his claim that he was reassigned from narcotics to patrol

because of LeBlanc. But he offers the Court nothing it could conceivably use to

conclude that he had a protected interest in his particular assignment.

But even if Taylor could satisfy Paul and Vander Zee on some set of allegations,

the ‘color of state law’ requirement and judicial immunity would still, combined, merit

dismissal as a matter of law.

Taylor is correct that LeBlanc’s issuance of a bench warrant and holding of a

hearing, as well as the comments she made during the hearing, were taken under

color of state law. LeBlanc was a state officer carrying out the duties of her position.

That is more than enough. But, as Taylor concedes, judicial immunity bars any claim

based on LeBlanc’s conduct at the hearing, whether motivated by malicious intent or

not. See Mireles, 502 U.S. at 11. So, even assuming those actions might be useful

evidence of LeBlanc’s intent down the road, they cannot form the basis of the claim

or of LeBlanc’s liability.

As for the text messages: LeBlanc concedes they do not implicate judicial

immunity. But Taylor’s argument that their sending was an action taken under color

of state law is simply unpersuasive. The amended complaint and attached Advocate

article make clear that these were text messages sent by a jealous ex-lover. Taylor

71 R. Doc. No. 75, at 12.

has offered no precedent to support the proposition that all communications between

state officials and individuals with whom they interact in their official capacity are

made ‘under color of state law.’ And Taylor’s reference to the fact that LeBlanc was

married at the time she sent the messages to Prejean seems irrelevant. LeBlanc was

also married when she engaged in her affair with Prejean. Does that mean that every

communication between the two of them during the affair was an official act? That

cannot be. Accordingly, any injury based on the subsequent publication of those

messages cannot form the basis of Taylor’s claim.

That leaves Taylor with only LeBlanc’s email to Sheriff Falcon on which to rely.

But Taylor explicitly alleges that (1) Sheriff Falcon explicitly rejected the premise of

LeBlanc’s email; (2) LeBlanc herself explicitly rescinded her criticism of Taylor in a

subsequent email; and (3) following LeBlanc’s recission of her criticism, “it was felt

that all was fine with the . . . parties.”72 Setting aside the already-identified fatal

deficiencies with Taylor’s claim, what injury can he possibly trace to the email based

on those allegations?

As explained, accepting Taylor’s non-conclusory allegations as true, the Court

finds he has failed to state a viable Section 1983 claim for a violation of his due process

rights protected by the Fourteenth Amendment. Taylor has already amended his

complaint numerous times and has not asked the Court for leave to amend again.

Accordingly, the Court will dismiss the claim set forth in the amended complaint’s

first two counts with prejudice. See United States ex rel. Jamison v. Del-Jen, Inc.,

72 R. Doc. No. 73, at 5 ¶¶ 26–28.

747 F. App’x 216, 221 (5th Cir. 2018) (per curiam) (noting that Federal Rule of Civil

Procedure 15(a) “only ‘applies where plaintiffs expressly request[] to amend’”)

(quoting United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d

375, 387 (5th Cir. 2003)); McClaine v. Boeing Co., 544 F. App’x 474, 477 (5th Cir.

2013) (“A party who neglects to ask the district court for leave to amend cannot expect

to receive such a dispensation from the court of appeals.”) (quoting Willard, 336 F.3d

at 387); see also Stringer v. Alben, 89 F. App’x 449, 452–53 (5th Cir. 2004) (finding

district court did not err by entering judgment without allowing plaintiff to amend

complaint where the plaintiff “did not request leave to amend his complaint in his

reply brief” or by motion).

Taylor’s State Law Defamation Claim

Only Taylor’s state law defamation claim remains. A district court may decline

to exercise supplemental jurisdiction over a state law claim if the court “has dismissed

all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). When all

federal claims have been dismissed, a district court has “wide discretion” in deciding

whether to exercise jurisdiction over remaining state law claims. Guzzino v.

Felterman, 191 F.3d 588, 595 (5th Cir. 1999). In the Fifth Circuit, the “general rule

is to dismiss state law claims when the federal claims to which they are pendent are

dismissed.” Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th

Cir. 1992). Courts in the Fifth Circuit also consider judicial economy, convenience,

fairness, and comity. Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008). These

factors, as well as the statutory factors set out in § 1367(c), weigh in favor of

dismissing the Louisiana state law claim, without prejudice, so that Taylor may

assert this claim in a state court.

“[D]eference in this case with respect to the state law issue[s] promotes the

important interest of comity to state courts” and “encourages fairness between the

parties by ‘procuring for them a surer-footed reading of applicable law.’” Bitte v. EMC

Mortg. Corp., No. 07-9273, 2009 WL 1950911, at *2 (E.D. La. July 1, 2009) (Africk,

J.) (citations omitted) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)). Furthermore, the litigation in this case is still in its early stages so the

parties will not be prejudiced. See Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 351

(1988) (noting that when federal claims are eliminated at an “early stage” of the

litigation, “the District Court ha[s] a powerful reason to choose not to continue to

exercise jurisdiction”).

Therefore, the Court declines to exercise supplemental jurisdiction over the

remaining state law claim.

V.

Accepting the facts alleged by Taylor as true, the Court finds that he has failed

to state a claim for relief. That LeBlanc’s actions were detestable does not in and of

itself afford Taylor a viable claim. Accordingly,

IT IS ORDERED that Taylor’s federal claim based on a violation of his due

process rights is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Taylor’s state-law defamation claim is

DISMISSED WITHOUT PREJUDICE to it being timely asserted in a state court

proceeding.

New Orleans, Louisiana, August 19, 2021

LANGE M. AFRICK

UNITED STATES DISTRICT JUDGE

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