Smith v. Williams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KALIEGH SMITH CIVIL ACTION

VERSUS NO. 22-1550

JASON WILLIAMS et al. SECTION: “G”(4)

ORDER AND REASONS

In this litigation, Plaintiff Kaliegh Smith (“Plaintiff”) brings a Monell claim against Jason

Williams, in his official capacity as the District Attorney for Orleans Parish (“Defendant”).1

Plaintiff alleges that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful

conviction in violation of his constitutional rights by withholding material exculpatory evidence

in violation of its obligations under Brady v. Maryland.2 Before the Court is Defendant’s Motion

to Dismiss.3 Defendant argues that OPDA cannot be held liable as a “person” subject to suit under

42 U.S.C. § 1983 for its policies causing the alleged constitutional violations because the district

attorney and his assistants acted on behalf of the State of Louisiana throughout the course of

prosecuting Plaintiff.4 Plaintiff opposes the motion, arguing that the OPDA is a “person” subject

to suit because it is a local government entity and not an arm of the State of Louisiana.5 Having

1 “Louisiana law does not permit a district attorney’s office to be sued in its own name.” A plaintiff bringing

a Monell claim against the office must “be brought against the district attorney in his official capacity.” See, e.g.,

Hudson v. City of New Orleans, 174 F.3d 677, 680 (5th Cir. 1999). Plaintiff brings the instant suit against the current

Orleans Parish District Attorney in his official capacity. Rec. Doc. 1 at 1.

2 Rec. Doc. 1 at 1.

3 Rec. Doc. 5.

4 Rec. Doc. 5-1 at 8–9.

5 Rec. Doc. 12 at 11.

considered the motion, the memoranda in support and opposition, the record, and the applicable

law, the Court denies Defendant’s motion.

I. Background

Plaintiff brings a § 1983 claim against Defendant in his official capacity as the District

Attorney for Orleans Parish.6 Plaintiff alleges that Defendant and former Orleans Parish District

Attorneys and their assistants acted as “final policymaker[s] . . . responsible for the

unconstitutional policies or customs” causing OPDA’s failure to fulfill its obligations under

Brady.7 In December 2007, a grand jury indicted Plaintiff on one count of second-degree murder.8

A non-unanimous jury found Plaintiff guilty of second-degree murder on February 6, 2010.9

Plaintiff argues that OPDA withheld material exculpatory evidence regarding the credibility of the

State’s primary witness and “the possibility that a specific third-party may have been involved in

or responsible for the offense.”10 According to the Complaint, in May 2021, “OPDA confessed to

the Brady violations in resolution of [Plaintiff’s] application for post-conviction relief.”11 On May

27, 2021, the Orleans Parish Criminal District Court vacated Plaintiff’s conviction, and on June

14, 2021, the OPDA dismissed the charges.12 Plaintiff was released from custody after nearly

fourteen years in prison.13

6 Rec. Doc. 1.

7 Id. at 2, 5, 11–15.

8 Id. at 2.

9 Id.

10 Id. at 14.

11 Id. at 3.

12 Id. at 4.

13 Id.

Plaintiff alleges that OPDA “maintained an unconstitutional unwritten policy, practice,

custom, and/or usage of failing to disclose favorable information to defendants.”14 Plaintiff brings

this suit against Defendant, the current Orleans Parish District Attorney, in his official capacity,

for these alleged constitutional violations committed by OPDA during the state criminal

proceedings.15

On August 5, 2022, Defendant filed the instant motion to dismiss.16 On September 22,

2022, the Court granted Plaintiff’s unopposed second motion to continue the submission date on

the instant motion.17 On October 11, 2022, Plaintiff opposed the motion.18 On October 18, 2022,

the Court granted Defendant’s motion to continue the submission date.19 On October 26, 2022, the

Court granted Defendant’s motion for leave to file his reply brief.20

II. Parties’ Arguments

A. Defendant’s Arguments in Support of Motion to Dismiss

Defendant argues that Plaintiff has failed to state a claim under § 1983 because OPDA

acted on behalf of the State of Louisiana—and not a local government entity—in creating the

policies regarding disclosure of material exculpatory evidence.21 Defendant asserts that recent

Fifth Circuit jurisprudence forecloses Plaintiff’s § 1983 claim because Louisiana district attorneys

14 Id. at 23.

15 See id.

16 Rec. Doc. 5.

17 Rec. Doc. 10.

18 Rec. Doc. 12.

19 Rec. Doc. 14.

20 Rec. Doc. 16.

21 Rec. Doc. 5-1 at 8–9.

act on behalf of the State of Louisiana in the execution of their duties.22 Defendant primarily relies

on the Fifth Circuit’s en banc decision in Daves v. Dallas County,23 which held that county judges

who had promulgated a misdemeanor bail schedule were acting on behalf of the State of Texas,

not Dallas County, when developing the bail schedule.24 Defendant also points out that, following

Daves, the Fifth Circuit affirmed the dismissal of § 1983 claims brought against the Dallas District

Attorney’s Office in Arnone v. Dallas County25 because it found that “the district attorney acted

as a state—not county—policymaker in promulgating or acquiescing to” a policy requiring

polygraphs for individuals in its deferred adjudication program.26 Thus, Defendant asserts that this

Court must dismiss Plaintiff’s claim because OPDA acted as a policymaker on behalf of the State

instead of the municipal entity.27

Defendant further asserts that the Fifth Circuit’s Eleventh Amendment jurisprudence

finding that OPDA is a municipal actor and not “an arm of the [S]tate of Louisiana” is inapplicable

in § 1983 cases following the Fifth Circuit’s en banc decision in Daves v. Dallas County.28

Defendant also argues that the Fifth Circuit’s opinion in Burge v. Parish of St. Tammany did not

“squarely answer the question presented in this motion, and, in any event, is undermined by the en

22 Id. at 1.

23 22 F.4th 522 (5th Cir. 2022).

24 Rec. Doc. 5-1 at 4 (citing Daves, 22 F.4th at 522).

25 29 F.4th 262, 266 (5th Cir. 2022).

26 Rec. Doc. 5-1 at 6 (citing Arnone, 29 F.4th at 268).

27 Id. at 13.

28 Id. at 14–15 (citing Hudson v. City of New Orleans, 174 F.3d 677 (5th Cir. 1999); Daves, 22 F.4th at 522).

banc decision in Daves.”29 Defendant avers that these prior cases involved “‘a different test[]’ that

‘can be misleading’” if applied to determine “whether an official was acting for a state or a local

government” for the purposes of Monell liability.30 Defendant asserts that Plaintiff has an adequate

alternative remedy because his petition for compensation for his alleged wrongful conviction is

currently pending in Orleans Parish Criminal District Court.31

Defendant argues that the criminal charges brought against Plaintiff in the instant case were

brought on behalf of the State.32 Additionally, Defendant further alleges that Plaintiff’s claims

against OPDA are “based on alleged acts and omissions in the course of his prosecution for

murder,” a state-law crime.33 Defendant asserts that like in “Arnone, the Court must determine

whether the alleged policies in this case are policies of the District Attorney’s Office or policies of

the State of Louisiana.”34 Defendant argues that like the county judges in Daves and the district

attorney in Arnone, “[t]he District Attorney and any Assistant District Attorneys involved in

[Plaintiff’s] prosecution were acting as state officials representing the State of Louisiana.”35

Defendant points out that the provision in the Louisiana Constitution establishing the office

of local district attorneys falls under Article V, the Article governing the “Judicial Branch,” and

29 Id. at 16 (citing Burge v. Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999); Daves, 22 F.4th at

522).

30 Id. at 17 (quoting Daves, 22 F.4th at 537–40).

31 Id. at 14.

32 Rec. Doc. 5-1 at 8; see State v. Kaleigh Smith, 96 So. 3d 678, 682–83 (La. App. 4th Cir. 2012).

33 Rec. Doc. 5-1 at 8; see Doc. No. 1 at 6–12.

34 Rec. Doc. 5-1 at 9.

35 Id.

not Article VI, the Article governing “Local Government.”36 Defendant avers that the “Louisiana

Constitution also establishes the powers of district attorneys, including that a district attorney ‘shall

have charge of every criminal prosecution by the [S]tate in his district, be the representative of the

[S]tate before the grand jury in his district, and be the legal advisor to the grand jury.’”37 Thus,

Defendant argues that the Motion to Dismiss should be granted in consideration of recent Fifth

Circuit jurisprudence because Louisiana district attorneys and their assistants act on behalf of the

State when prosecuting individuals for alleged violations of Louisiana law.38

B. Plaintiff’s Arguments in Opposition to Motion to Dismiss

In opposition, Plaintiff argues that Louisiana law “explicitly indicate[s] that OPDA does

not act as an arm of the state even when prosecuting state crimes.”39 Plaintiff contends that the

Supreme Court’s analysis in McMillian v. Monroe County40 guides this Court’s analysis and not

the recent Fifth Circuit decisions of Daves and Arnone.41 Plaintiff avers that under the three factors

considered in McMillian, OPDA is a municipal actor and not an actor on behalf of the State when

prosecuting individuals for alleged violations of state crimes.42

First, Plaintiff contends that Defendant’s motion fails because the Louisiana Constitution

does not vest any state power in the State’s district attorneys by merely listing them in Article V,

the relevant provision regarding the Judicial Branch, without an explicit grant of judicial or other

36 Id. at 12.

37 Id. at 12 (quoting La. Const. art. 5, § 26).

38 Id. at 3, 18.

39 Rec. Doc. 12 at 11.

40 520 U.S. 781 (1997).

41 Id.

42 Id. at 11–20.

state power.43 Plaintiff argues that “district attorneys are not mentioned in the constitutional

description of any other branch nor included amongst the enumerated officials in whom those

branches’ powers are vested.”44 Plaintiff contrasts this to Daves where the Fifth Circuit found that

the Texas Constitution expressly vested judicial powers in the county courts, the acting defendant-

policymakers in that case.45

Second, Plaintiff argues that OPDA is a municipal entity because the Louisiana

Legislature’s promulgation of several provisions of the Louisiana Revised Statutes “demonstrate[]

[its] clear intent that district attorneys do not act on behalf of the [S]tate.”46 Plaintiff asserts that

Louisiana Revised Statutes §§ 42:1441.1, 42:1441.2, which govern limitation of liability, provide

that the State “is not vicariously liable for ‘parish officials’ . . . [and] specifically nam[es] district

attorneys in the list of parish officials.”47 Plaintiff further argues that Louisiana Revised Statute

§ 13:5108.1, which governs the indemnification of state officers subject to lawsuits for civil rights

violations resulting from the “performance of the duties of his office or employment,” excludes

district attorneys and other local officers from coverage.48 Plaintiff points out that a Louisiana

appellate court held that these statutes establish that “the District Attorney’s Office is not the State

and the State is not liable for the acts of the District Attorney or his employees.”49

43 Id. at 12.

44 Id. at 12–13.

45 Id. at 13–14.

46 Id. at 14.

47 Id.

48 See La. R.S. § 13:5108.1(E)(3)(b).

49 Rec. Doc. 12 at 15 (quoting Gibson v. State, 94-476 (La. App. 4th Cir. 10/27/94); 644 So.2d 1148, 1150).

Third, Plaintiff argues that Orleans Parish, and not the State of Louisiana, can exert control

over the acts of its district attorney.50 Plaintiff avers that although both the State and Orleans Parish

contribute to OPDA’s budget, only the New Orleans Mayor and City Council can restrict or

increase its “substantial budget contributions to reward and/or punish OPDA on an annual basis

for particular policies or acts.”51 Plaintiff further argues that the Mayor and City Council “have

utilized budget cuts for OPDA when dissatisfied with policies enacted by the District Attorney.”52

Thus, Plaintiff argues that this Court should deny Defendant’s motion because OPDA is a

municipal actor and not an arm of the [S]tate pursuant to the McMillian factors.53

Plaintiff further asserts that the factual findings established about OPDA and Louisiana

district attorneys in the Fifth Circuit’s prior Eleventh Amendment jurisprudence is applicable.54

Plaintiff concedes that “state sovereign immunity under the Eleventh Amendment presents a

different issue than [local government] liability under § 1983.”55

Alternatively, Plaintiff argues that “if the Court were to find that Louisiana law does

provide for the District Attorney to at times act as an arm of the state under McMillian,” that

Defendant may still be liable because “[t]he promulgation of the policy at issue in this case was

not an instance of Defendant performing a state function over which Louisiana has exclusive

purview.”56 Plaintiff asserts that the Fifth Circuit has held that “a municipality only acts on behalf

50 Id. at 16–17.

51 Id. at 17.

52 Id. at 18.

53 Id. at 20.

54 Id. at 21–22.

55 Id. at 21.

56 Id. at 22.

of the [S]tate in creating a policy where the policy in question executes a state-specific function.”57

Plaintiff avers that unlike Daves and Arnone, OPDA does not conduct any specific state function

in its policy of disclosing exculpatory evidence because “[u]nlike the right of bail [under Texas

law] in Daves, the disclosure of exculpatory evidence in criminal cases is not a right created” by

the Louisiana Constitution.58 Therefore, Plaintiff asserts that this Court should deny the instant

motion because “Defendant did not perform an enumerated state function, and thus Defendant did

not act as an arm of the state in this case.”59

C. Defendant’s Further Arguments in Support of Motion to Dismiss

Defendant raises four arguments in his reply.60 First, Defendant argues that the Louisiana

Constitution explicitly vests Louisiana district attorneys with power to act for the State in a

provision stating that a district attorney “shall have charge of every criminal prosecution by the

[S]tate in his district.”61 Defendant further argues that the Louisiana Supreme Court held in Diaz

v. Allstate Insurance Co.62 that “[a] district attorney is a constitutional officer who serves in the

judicial branch and exercises a portion of the sovereign power of the [S]tate within the district of

his office.”63 Therefore, Defendant asserts that the Louisiana Constitution “unambiguously vests

district attorneys with power to act on behalf of the [S]tate.”64

57 Id. at 23.

58 Id.

59 Id. at 25.

60 Rec. Doc. 15-2 at 1–2 (quoting La. Const. art. V, § 26).

61Id. at 2.

62 433 So. 2d 699 (La. 1983).

63 Id.

64 Id. at 3.

Second, Defendant argues that state legislation insulating the State from liability for the

actions of district attorneys and other local actors cannot be interpreted to deprive district attorneys

of their vested state powers.65 Defendant asserts that Plaintiff’s argument regarding the

Legislature’s restrictions of the doctrines of respondeat superior and indemnification of state

officials or employees is erroneous because “[t]he question of whether an official is acting on

behalf of the [S]tate is entirely separate . . . from the question of whether the [S]tate itself may be

liable for the actions of that official.”66 In sum, Defendant avers that Louisiana law does not

overrule the Louisiana Supreme Court’s constitutional interpretation in Diaz “holding that

Louisiana district attorneys serve in the judicial branch of the state government and exercise the

sovereign power of the [S]tate.”67

Third, Defendant asserts that OPDA is subject to direct control by the State of Louisiana

and not Orleans Parish or the City of New Orleans.68 Defendant contends that the issue of

“‘control’ is of secondary importance . . . . [because] [t]he relevant question is whether an official

is empowered to act on behalf of the [S]tate–not whether he is subject to control by some other

state official when doing so.”69 Defendant further argues that OPDA is not subject to control by

Orleans Parish or the City of New Orleans because the office is established in the Louisiana

Constitution, while other actors subject to the City of New Orleans’s control, like a City Attorney,

65 Id. at 4.

66 Id. at 4–5.

67 Id. at 5.

68 Id. at 6.

69 Id.

are established by the Orleans Parish Home Rule Charter.70 Defendant avers that the City

Council’s and Mayor’s procedures for reducing OPDA’s budget is merely an exercise of indirect

control which the Supreme Court found unpersuasive in McMillian.71 Thus, Defendant asserts that

OPDA is an arm of the state because the State of Louisiana exercises control over Louisiana district

attorneys.72

Lastly, Defendant argues that decisions and policies regarding the disclosure of evidence

to criminal defendants “constitute an exercise of state power and are attributable to the [S]tate.”73

Defendant asserts that “discovery and disclosure are integral to criminal proceedings” and that the

Fifth Circuit has stated that a prosecutor’s disclosure decisions are “intimately associated with the

judicial phase of the criminal process.”74 Defendant further argues that Plaintiff’s assertion that

prosecutors’ disclosure obligations are not governed by Louisiana law is misguided given the

provisions of the Louisiana Code of Criminal Procedure and the Rules of Professional Conduct

that compel prosecutors to make routine disclosures of certain sources of evidence.75

III. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed for

“failure to state a claim upon which relief can be granted.”76 A motion to dismiss for failure to

70 Id. at 7 (citing New Orleans Home Rule Charter, art. IV, § 4-106(1)).

71 Rec. Doc. 15-2 at 9.

72 Id.

73 Id. at 10.

74 Id. at 10–11.

75 Id. at 11–12.

76 Fed. R. Civ. P. 12(b)(6).

state a claim is “viewed with disfavor and is rarely granted.”77 “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.’”78 “Factual allegations must be enough to raise a right to relief above the

speculative level.”79 A claim is facially plausible when the plaintiff has pleaded facts that allow

the court to “draw the reasonable inference that the defendant is liable for the misconduct

alleged.”80

On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,

and all facts pleaded are taken as true.81 However, although required to accept all “well-pleaded

facts” as true, a court is not required to accept legal conclusions as true.82 “While legal conclusions

can provide the framework of a complaint, they must be supported by factual allegations.”83

Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” will not suffice.84 The complaint need not contain detailed factual allegations, but it

must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a

cause of action.85 That is, the complaint must offer more than an “unadorned, the-defendant-

77 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

78 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

79 Twombly, 550 U.S. at 555.

80 Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556).

81 Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993); see also

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).

82 Iqbal, 556 U.S. at 678–79.

83 Id. at 679.

84 Id. at 678.

85 Id.

unlawfully-harmed-me accusation.”86 From the face of the complaint, there must be enough

factual matter to raise a reasonable expectation that discovery will reveal evidence as to each

element of the asserted claims.87 If factual allegations are insufficient to raise a right to relief above

the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”

bar to relief, the claim must be dismissed.88

IV. Analysis

In Monell v. Department of Social Services of the City of New York, the Supreme Court

held that plaintiffs may bring § 1983 claims against local government entities or officials for

policies they promulgate.89 A valid Monell claim requires “(1) a policymaker; (2) an official

policy; and (3) a violation of a constitutional right whose ‘moving force’ is the policy or custom.”90

The instant motion challenges the first element. “A policymaker is an ‘official[] whose decisions

represent the official policy of the local governmental unit.’”91 The Fifth Circuit has declared that

“[s]ometimes a policymaker wears more than one hat.”92 For instance, an official “sometimes acts

for the county, and sometimes acts for another governmental entity, like the state.”93 However,

86 Id.

87 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

88 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Hum. Serv. Dist., No. 09-6470,

2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

89 Monell v. Dep’t of Soc. Servs. Of City of N.Y., 436 U.S. 658, 690 (1978).

90 Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (en banc) (citation omitted).

91 Arnone, 29 F.4th at 266.

92 Id.

93 Id.

“only county [or local government] policymakers count for liability under Monell.”94 When a

policymaker acts on behalf of both the state and local government, a court must “weigh state law

and the policymaker’s complained-of action” to determine “which entity is to blame.”95

The central question at issue here is whether Louisiana district attorneys and their assistants

operate on behalf of the State of Louisiana or as a local governmental unit in their practice of

disclosing evidence to criminal defendants under Brady. In McMillian v. Monroe County, the

Supreme Court examined whether a sheriff acted on behalf of the State of Alabama or the county

when exercising his “final policymaking authority” in the area of law enforcement.96 The

McMillian court held that the sheriff had acted as a state policymaker.97 The Supreme Court stated

that its analysis was not “all or nothing,” but instead asked “whether governmental officials are

final policymakers for the local government in a particular area, or on a particular issue” under

state law.98 In analyzing Alabama law, the Supreme Court considered the plain text of the Alabama

Constitution, the statutory provisions governing Alabama sheriffs, the legislative history

underscoring those provisions, and the extent of control exercised by the State of Alabama and the

County over the sheriff.99

94 Id.

95 See id.

96 McMillian, 520 U.S. at 785.

97 Id. at 783.

98 Id. at 785–86.

99 Id. at 787–89 (examining historical developments of the Alabama Constitution); Id. at 789–90 (analyzing

the provisions of the Alabama Code governing sheriffs); Id. at 791–92 (evaluating which sovereign maintained control

over the sheriff).

The Court must “identify the level of government for which an official was acting when

establishing the policy that is relevant to the claims.”100 A determination “of the actual function of

a governmental official, in a particular area, will necessarily be dependent on the definition of the

official’s functions under relevant state law.”101 Therefore, “McMillian holds [that courts must]

examine function, not funding, when deciding whether an official is acting for the state or local

government in a case brought pursuant to Section 1983.”102

Two years after McMillian, the Fifth Circuit decided Burge v. Parish of St. Tammany.103

In Burge, an individual sued a Louisiana district attorney and local sheriff and alleged that the

officials violated their obligations under Brady during their efforts to secure his wrongful

conviction.104 Applying McMillian, the Fifth Circuit analyzed the Louisiana Constitution,

Louisiana Revised Statutes, and prior tort cases and concluded that “a district attorney . . . is

virtually an autonomous local government official” under Louisiana law.105 The Fifth Circuit

pointed out that “[s]ubject to a narrow, rarely invoked exception, the Louisiana Constitution

provides that a district attorney has charge of every criminal prosecution by the State in his district,

and is the representative of the State before, and legal advisor to, the grand jury.”106 Additionally,

a Louisiana district attorney is constitutionally authorized to select assistants and “constitutionally

100 Daves, 22 F.4th at 533 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

101 Id. (quoting McMillian, 520 U.S. at 786).

102 Id.

103 Burge, 187 F.3d at 452.

104 Id.at 457–58, 462.

105 Id. at 469 (citing La. Const. art. V, §§ 26, 27; art. VI, §§ 5(G), 7(B), 25; La. Rev. Stat. §16:1, et seq.).

106 Id. (citing La. Const. art. V, § 26(B)).

shielded from the effect of powers granted other local government entities.”107 Therefore, the Fifth

Circuit concluded that:

[I]n a suit against a [Louisiana] district attorney in his official capacity under § 1983

for constitutional torts caused by the district attorney’s policies regarding the

acquisition, security, and disclosure of Brady material, a victory for the plaintiff

imposes liability on the district attorney’s office as an independent local entity.108

Ultimately, the Fifth Circuit found that the plaintiff’s Monell claim failed on the merits against the

district attorney because no pattern of Brady violations existed prior to his case.109 Therefore, the

Fifth Circuit affirmed the grant of summary judgment to the district attorney on that claim.110

Defendant argues that the Fifth Circuit’s opinion in Burge v. Parish of St. Tammany did

not “squarely answer[] the question presented in this motion, and, in any event, is undermined by

the en banc decision in Daves.”111 The Court disagrees with Defendant’s characterization of Burge.

The 1999 decision by the Fifth Circuit clearly answers the issue presented in the instant motion

and finds that Louisiana district attorneys act as an independent local entity, not on behalf of the

State, in creating policies for disclosure of evidence to criminal defendants under Brady.

Burge was decided by the Fifth Circuit in 1999, and Defendant contends that it is called

into question by the Fifth Circuit’s 2022 en banc decision in Daves and the 2022 panel decision in

Arnone. In Daves, the Fifth Circuit, sitting en banc, held that county judges who had promulgated

a misdemeanor bail schedule were acting on behalf of the State of Texas, not Dallas County, when

107 Id. (citing La. Const. art. V, § 26(a), art. VI, §§ 5(G), 7(B)).

108 Id. at 470.

109 Id. at 471–73 (analyzing the processes and procedures regarding evidence disclosure in the defendant-

district attorney’s office).

110 Id. at 475–76.

111 Rec. Doc. 5-1 at 16–17 (first citing Burge v. Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999);

and then citing Arnone, 29 F.4th at 270–72).

developing the bail schedule.112 In Arnone, a Fifth Circuit panel held that the Dallas District

Attorney acted as a state policymaker in creating policies requiring charged individuals to submit

to polygraph testing because the Texas Constitution gives its district attorneys the role of

representing the State in matters within their districts and the Texas legislature “a direct role in

regulating both the scope of prosecutorial duties and compensation for district attorneys.”113

As an initial matter, the Court notes that this analysis must be undertaken under Louisiana

law.114 Therefore, Daves and Arnone are not determinative because both of those cases involved

interpretation of Texas law. Additionally, following Daves and Arnone, the Fifth Circuit has

continued to apply Burge to claims brought against Louisiana district attorneys.115 Accordingly,

the Court finds that the Fifth Circuit’s decision in Burge is instructive in this case. As in Burge,

Plaintiff brings the same claim for a similar harm—arising out of alleged Brady violations—

against a Louisiana district attorney.116 Nevertheless, for completeness, the Court continues to

examine the Louisiana Constitution and Louisiana Revised Statutes to examine whether Louisiana

law still supports the same interpretation as the Fifth Circuit in Burge.

112 Daves, 22 F.4th at 522.

113 Arnone, 29 F.4th at 262.

114 Jett, 491 U.S. at 737 (“Whether a particular official has ‘final policymaking authority’ is a question of

state law.”).

115 Kimble v. Jefferson Par. Sheriff's Off., No. 22-30078, 2023 WL 1793876, at *3 (5th Cir. Feb. 7, 2023)

(per curiam) (quoting Burge v. Par. of St. Tammany, 187 F.3d 452, 470 (5th Cir. 1999) (“For purposes of ‘official

capacity’ suits under § 1983, the district attorney’s office resembles other local government entities.”)).

116 See Burge, 187 F.3d at 468.

A. Whether the Louisiana Constitution Vests State Power in Louisiana District Attorneys

The Court turns to whether the Louisiana Constitution “supports that the district attorney

acts for the state.”117 In Article V, § 1 of the Louisiana Constitution, the only explicit grant of state

power, judicial power is vested in the Louisiana Supreme Court, courts of appeal, district courts

and other courts authorized within the Article.118 Article V, § 26(B) states that district attorneys

and their assistants “shall have charge of every criminal prosecution by the [S]tate in his district

[and] be the representative of the [S]tate before the grand jury in his district.”119 Additionally, a

district attorney is constitutionally authorized to select assistants as authorized by law, and other

personnel.120 A district attorney is also constitutionally shielded from the effect of powers granted

other local government entities.121 Therefore, the Louisiana Constitution grants specific powers

and duties to the district attorneys of this State. “These constitutional [] provisions indicate that a

district attorney is the independent and final official policymaker for all of the administrative and

prosecutorial functions of his office," as a wholly autonomous local government official.122

However, this Court must look to state law as a whole to determine whether Louisiana district

attorneys act for the State in the functions giving rise to this suit.123

117 Arnone, 29 F.4th at 268.

118 La. Const. art. V, § 1.

119 La. Const. art. V, § 26(B).

120 La. Const. art. V, § 26(A).

121 La. Const. art. VI, §§ 5(G), 7(B), and 25.

122 Burge, 187 F.3d at 469.

123 The Fifth Circuit rejected an “all or nothing” test and specified that a Court must examine whether the

alleged municipal policymaker acted on behalf of the State in the execution of the specific conduct challenged in the

suit. See Daves, 22 F.4th at 536.

B. Whether Louisiana Law Clearly Establishes that Louisiana District Attorneys Act on

Behalf of the State During Criminal Prosecutions

The issue of whether Louisiana statutory law clearly establishes that Louisiana district

attorneys act on behalf of the State in making evidentiary disclosure decisions is a much closer

question.124 Defendant avers that OPDA acts on behalf of the State of Louisiana in criminal

prosecutions because the Louisiana Constitution states that Louisiana district attorneys “shall have

charge of every criminal prosecution by the state in his district.”125 Defendant points out that the

Louisiana Supreme Court held in Diaz v. Allstate Insurance Co. that “[a] district attorney is a

constitutional officer who serves in the judicial branch and exercises a portion of the sovereign

power of the state within the district of his office.”126 However, Defendant neglects to mention the

effect of the Louisiana Legislature’s 1984 and 1985 statutory amendments that overruled Diaz.127

In Diaz, the Louisiana Supreme Court considered whether Louisiana Revised Statute

§ 42:1441(A) shielded the State of Louisiana from liability for damages in tort caused by an

employee of the district attorney.128 The Diaz court held that § 42:1441 was unconstitutional but

124 The Court notes that within this prong of its McMillian analysis, the Fifth Circuit in Arnone examined

Texas case law and statutory law to make its determination. See Arnone, 29 F.4th at 269 & nn. 52, 55.

125 Rec. Doc. 5-1 at 10.

126 82-2846 (La. 1983); 433 So. 2d 699, 700.

127 See Hudson v. City of New Orleans, 174 F.3d 677, 686 (5th Cir. 1999). Additionally, the Louisiana

Attorney General released numerous opinions which led to his ultimate conclusion that the legislative intent behind

the 1984 and 1985 legislative actions to amend the indemnification and limitation of liability statutes clearly

establishes that Louisiana district attorneys are considered employees of their respective parishes even though they

may exercise some constitutional and statutory authority. See, e.g., La. Atty. Gen Op. No. 90-104 (May 25, 1990)

(concluding that district attorneys are employees of the parish which they serve); La. Atty. Gen. Op. No. 87-238 (July

1, 1987) (finding that the legislative amendments in 1984 and 1985 evidenced a shift of responsibility over actions of

the district attorneys from the state level to the local level).

128 Diaz, 433 So. 2d at 700.

nevertheless found that “a district attorney’s employee is an employee of the state for purposes of”

the indemnification statute codified as Louisiana Revised Statute § 13:5108.2.129

In 1984, a year after Diaz, the Louisiana Legislature adopted §§ 42:1441.1, 1441.2, and

1441.3, with each provision specifying limitations of liability on the State and its officers and

employees for damages caused by local officials in the course of their duties.130 § 42:1441.1

declares that master-servant liability “shall not extend or apply to . . . the State for the offenses and

quasi-offenses of any person who is not expressly specified by R.S. 13:5108(A) to be an official,

officer, or employee of the state entitled to indemnification” under the indemnification statute.131

Louisiana Revised Statute § 42:1441.3(E) also provides that district attorneys “shall be separate

political subdivisions.”132

In 1985, the Louisiana Legislature also revised Louisiana Revised Statute § 13:5108.1(A)

in response to the Louisiana Supreme Court’s holding in Diaz. In its revised formulation, the

statute provides that “[t]he state shall defend and indemnify a covered individual against any

claims” arising from the individual’s “performance of the duties of their office or employment

with the state.”133 § 5108.1(E)(3)(b) expressly excludes Louisiana district attorneys and their

employees from the definition of a “covered individual.”134 The provision includes Louisiana

129 Id. at 701.

130 See Gibson v. State, 94–476 (La. App. 4th Cir. 10/27/94), 644 So. 2d 1148, 1150.

131 La. Rev. Stat. § 42:1441.1. The Court notes that the section is titled “Nonimposition of master-servant

liability on state by Civil Code Article 2320 and other laws for torts of persons not designated state officials, officers,

or employees by R.S. 13:5108.2.”

132 La. Rev. Stat. § 42:1441.3.

133 Prior jurisprudence cites the indemnification statute as § 13:5108.2. However, the statutes were

redesignated in 2015, with the contents of the indemnification statute now codified at §13:5108.1. See La. R.S.§

40:1299.91 (“Redesignated to R.S. 13:5108.2”).

134 The Court notes that the legislative intent surrounding the state officer indemnification provisions presents

vastly distinguishable facts from the Texas laws considered by the Fifth Circuit in Daves and Arnone. In those cases,

district attorneys and their staff in a list of local officers, including the sheriffs and clerks of

municipal and district courts, who are not indemnified by the State in civil rights suits brought

against them.135

Additionally, several intermediate appellate courts have found that the Louisiana

Legislature’s amendments to the indemnity and limitation of liability statutes evidence a strong

legislative intent to designate Louisiana district attorneys as local officers that do not act for the

State on the particular issue of their evidence disclosure policies and practices.136 With this

historical context, it cannot be said that Louisiana law empowers Louisiana district attorneys to

make policy on behalf of the State in their Brady compliance functions. Furthermore, an analysis

of the Louisiana Constitution, statutory law, and case law reaffirms this finding. Therefore, this

Court finds that Louisiana statutory law and its historical developments designate that a Louisiana

the Fifth Circuit analyzed Texas statutory provisions with few references to the local officials at issue. See, e.g.,

Arnone, 29 F.4th at 269 (reviewing the provisions governing compensation and duties of Texas district attorneys).

135 “Covered Individual” does not include . . . . (b) District attorneys, sheriffs, assessors, clerks of district

courts, coroners, justices of the peace, constables, mayor’s courts, city courts, marshals, nor the officials, officers, or

employees thereof.” La. R.S. § 13:5108.1(E)(3)(b). The Court notes that the issues of indemnification and limitation

of liability of the State and its Officers for the acts of local officials indicate that the Louisiana Legislature has

expressed intent to designate Louisiana district attorneys as local policymakers because these provisions prevent

Louisiana district attorneys from establishing Brady compliance policies on behalf of the State.

136 See, e.g., Obermier v. State, 606 So. 2d 937, 939 (La. App. 3 Cir. 1992). Defendant contends that these

statutory amendments are insufficient to find that Louisiana district attorneys are local policymakers because the

Supreme Court in McMillian, assigned “little weight” to the “several instances in the [Alabama] state code” where the

sheriff, the alleged policymaker in that case, was listed among “county officials” or “county employees.” 520 U.S. at

792 n.7. However, Defendant fails to credit the significant differences between the clearly expressed legislative intent

underscoring the 1984 and 1985 amendments in Louisiana and the legislative developments in Texas and Alabama.

In those instances, there were no significantly immediate departures from the previous interpretations regarding which

sovereign, the state or municipality, that the local official policymakers operated for in the exercise of their duties.

Defendant further argues that the Louisiana Legislature could not “overrule the Louisiana Supreme Court’s

constitutional interpretation in Diaz holding that Louisiana district attorneys serve in the judicial branch of the state

government and exercise the sovereign power of the state.” Rec. Doc. 15-2 at 5. However, this argument is not outcome

determinative in the McMillian analysis, as Daves, Arnone, and McMillian all considered statutory law and case law

to determine whether a certain officer acted on behalf of the State. See, e.g., Arnone, 29 F.4th at 269.

district attorney acts as an autonomous local government official in the exercise of his evidence

disclosure duties. °7

V. Conclusion

Considering the foregoing reasons, this Court finds that Louisiana law does not designate

Louisiana district attorneys as state policymakers with respect to their decision making in evidence

disclosure policies. Simply put, the Fifth Circuit held in Burge that Louisiana district attorneys act

as autonomous local policymakers with respect to the policies and practices governing their

compliance with Brady. Additionally, the Louisiana Legislature has clearly expressed intent to

designate district attorneys as local policymakers following Diaz. This Court finds that the

provisions of the Louisiana Constitution, Louisiana Code of Criminal Procedure, and the Louisiana

Revised Statutes that address the role and compensation of district attorneys do not establish that

they act on behalf of the State of Louisiana with regard to the functions at issue in this suit.

Accordingly,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for Failure to State a

Claim)* is DENIED.

NEW ORLEANS, LOUISIANA, this 28th day of February, 2023.

NANNETTE JOLAVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

37 See Burge, 187 F.3d at 469.

188 Rec. Doe. 5.

22