Hawkins v. Sanders

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GERALYN HAWKINS, ET AL., CIVIL ACTION

Plaintiffs

VERSUS NO. 19-13323

SHELLY SANDERS, ET AL., SECTION: “E” (1)

Defendants

ORDER AND REASONS

Before the Court is Defendants’, Franz Zibilich, Dawn Plaisance, Jan Schmidt, and

the Orleans Parish Criminal District Court Rules of Court Committee, Motion to Dismiss.1

Plaintiffs oppose the motion.2 Defendants have filed a reply.3 With leave of the Court,4

Plaintiffs have filed a supplemental opposition.5 Having reviewed the pleadings and the

case law, the Court rules as follows.

I. Background6

Plaintiffs Geralyn Hawkins, Nichole Thompson, and Chad Lightfoot (sometimes

collectively referred to as “Plaintiffs”) sue numerous Defendants, captioning their

complaint as a “Civil Rights Complaint 42 U.S.C. Section 1983; 1985; and 1986.” Plaintiffs’

claims stem from a pending criminal proceeding against Lightfoot for perjury, RICO theft,

and RICO identity fraud in Louisiana state criminal court.7 Lightfoot has a criminal and

civil history in Louisiana federal and state courts dating back to 1996.8

1 R. Doc. 63.

2 R. Doc. 97.

3 R. Doc. 104.

4 R. Doc. 136.

5 R. Doc. 137.

6 The following allegations are based on the third amended complaint. R. Doc. 57.

7 R. Doc. 57, ¶ 56.

8 See, e.g., United States v. Lightfoot, Civ. A. No. 17-00274, 2018 WL 5269827 (W.D. La. Oct. 22, 2018)

(“Lightfoot is charged in the Indictment [Doc. No. 1] with one count of Fraud Scheme in Connection with

Hawkins, Thompson, and Lightfoot obtained personal loans in 2010 from

Defendant Greater New Orleans Federal Credit Union (“the Union”).9 To apply for the

loans, Plaintiffs submitted personal and/or private information to the Union, such as

their places of employment, social security numbers, and drivers’ license information.10

In 2012, the Union conducted an internal investigation of numerous loans when it became

suspicious because many of the loan applicants had the same information, such as

addresses or job information.11 Plaintiffs’ loans were among those investigated.12

Defendants Shelly Sanders, Heather Rodgers, and Gerry Kish, employees of the Union,

assisted with the investigation.13 Ultimately, Louisiana authorities accused Plaintiffs of

participating in an “auto loan shopping scam” and fraud against the Union, and Lightfoot

was arrested on October 15, 2015 and later charged with one count of perjury, one count

of RICO identity theft, and one count of fraud.14

Plaintiffs filed this lawsuit in October 2019.15 Plaintiff Lightfoot alone sues

Defendants former Orleans Parish Criminal District Court Judge Franz Zibilich; Dawn

Plaisance and Jan Schmidt, two court reporters in Judge Zibilich’s section of the court;

and the Orleans Parish Criminal District Court Rules of Court Committee (collectively,

“Defendants”) for “deny[ing] the plaintiff of [sic] evidence necessary to determine if he is

Major Disaster or Emergency Benefits, in violation of 18 U.S.C. § 1040(a)(2).”), affirmed, 809 F. App’x. 246

(5th Cir. 2020); Lightfoot v. Corrections Corp. of Am., 101 F.3d 699 (5th Cir. 1996), 1996 WL 661267, at *1

(barring Lightfoot from filing any civil lawsuit as a pauper within the jurisdiction of the Fifth Circuit).

9 R. Doc. 57 ¶¶ 20-21, 23.

10 Id. ¶¶ 22, 24.

11 Id. ¶ 26.

12 Id. ¶ 27-29.

13 Id. ¶¶ 26-28.

14 Id. ¶ 25, 32-33. In the third amended complaint, Plaintiffs allege that multiple grand juries were

convened, multiple indictments issued against Lightfoot on various charges that were later dismissed when

the later grand jury superseded those charges, and Lightfoot was arrested no fewer than four times. Id. at

pp. 4-5. It appears that the three charges noted above are now the only charges pending as of the date of

filing the third amended complaint.

15 R. Doc. 1.

being afforded a fair trial to which he is entitled.” This allegation stems from Lightfoot’s

state charges, in which Lightfoot requested Judge Zibilich recuse himself from his case.16

This request was heard before another judge, Judge Hunter.17 Judge Hunter issued several

subpoenas for audio recordings of all proceedings in Lightfoot’s case before Judge

Zibilich, but each time Judge Zibilich allegedly instructed his court reporters not to

comply with the subpoenas because the recordings were not public records.18 Judge

Zibilich allegedly submitted the question of whether the recordings were public record to

the Orleans Parish Criminal District Court Rules of Court Committee (the “Rules

Committee”), which opined:

After considering the law and facts, it is the opinion of the Rules of the Court

Committee, based on the showing made, that the audio recordings in

question are not required to be released by the Court based on the law (see

R.S. 44:4(45)). The proper procedural vehicle to secure these materials is

by formal transcript request to the court reporter to produce a certified

official transcript of the proceedings associated with this case subject to the

normal rules of the court.19

An en banc meeting of the Orleans Parish Criminal District Court accepted this opinion.20

After reviewing only the transcripts, because he was unable to obtain the audio

recordings, Judge Hunter ruled that Judge Zibilich was not required to recuse himself.21

Plaintiff Lightfoot alleges that Defendants Zibilich, Plaisance, and Schmidt

“conspired to deny Plaintiff Lightfoot of rights entitled to him through due process in a

state law proceeding causing injury to his person or property.”22 Because this Court must

16 R. Doc. 57 ¶¶ 62-63.

17 Id. ¶ 64.

18 Id. ¶¶ 72-78.

19 Id. ¶ 79. As Judge Hunter noted, however, the Rules Committee cited the incorrect provision; the correct

provision is La. Rev. Stat. § 44:4(47). Louisiana v. Lightfoot, No. 526-754, slip op. at 3 n.7 (La. Crim. Dist.

Ct. Orleans Par. Dec. 20, 2019) (Hunter, J.), provided in R. Doc. 97-1, at pp. 12-15.

20 R. Doc. 57 ¶ 81.

21 Id. ¶ 83; see also Lightfoot, slip op. at 4.

22 R. Doc. 57 ¶ 73.

“give pro se briefs a liberal construction,” the Court construes this claim as one under 42

U.S.C. § 1983.23 Plaintiff Lightfoot also alleges that Zibilich and the Rules Committee

violated his Fifth and Fourteenth Amendment rights to due process as well as the “Ex Post

Facto Laws of the United States . . . Constitution.”24 Because Plaintiff Lightfoot seeks

damages, the Court construes these claims as arising under Section 1983. Plaintiff sues

Zibilich, Plaisance, and Schmidt in their official and individual capacities.25 Lightfoot also

alleges Defendants violated Louisiana Code of Criminal Procedure article 673 and Article

I, Section 23 of the Louisiana Constitution.26

Plaintiff Lightfoot seeks a declaratory judgment that Defendants Zibilich and the

Rules Committee violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth

Amendment rights as well as the ex post facto clause of the United States Constitution for

allegedly denying Lightfoot the audio recordings.27 Lightfoot also asks for a preliminary

injunction requiring Zibilich and the Rules Committee to turn over the audio recordings.28

All Plaintiffs, including Hawkins and Thompson, allege against all Defendants

nebulous violations of their Eight Amendment rights.29 All Plaintiffs seek damages from

Defendants for all violations. 30 Finally, Plaintiffs ask this Court to charge Defendants

Zibilich, Plaisance, and Schmidt with criminal violations of various Louisiana statutes

under 42 U.S.C. § 1983.

Plaintiffs also sue former District Attorney Leon Cannizzaro, Jr. and Assistant

District Attorney Andre Gaudin for allegedly fabricating evidence to support the criminal

23 Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012).

24 R. Doc. 57 ¶ 89.

25 Id. ¶¶ 9, 13-14.

26 Id. at p. 1, ¶¶ 84, 113.

27 Id. ¶¶ 84, 113.

28 Id. ¶ 84.

29 Id. ¶ 125.

30 Id. ¶¶ 115-22.

allegations against Plaintiffs and for bad faith prosecution.31 Plaintiffs also sue the Union,

Sanders, Rodgers, and Kish for allegedly improperly turning their private bank records

over to the Gaudin.

Defendants Zibilich, Plaisance, Schmidt, and the Rules Committee now move to

dismiss Plaintiffs’ claims against them under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6).32

II. Legal Standard

A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction; without jurisdiction conferred by

statute, they lack the power to adjudicate claims.”33 A motion to dismiss under Federal

Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.34

Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction

when the court lacks the statutory or constitutional power to adjudicate the case.”35 “Lack

of subject-matter jurisdiction may be found in the complaint alone, the complaint

supplemented by the undisputed facts as evidenced in the record, or the complaint

supplemented by the undisputed facts plus the court’s resolution of the disputed facts.”36

“When, as here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule

31 R. Doc. 57 ¶¶ 32-44.

32 R. Doc. 67. Defendant Plaisance also moved to dismiss Plaintiffs’ claims against her under Federal Rules

of Civil Procedure 12(b)(5) for insufficient service of process; however, Plaisance has since accepted service.

R. Doc. 85.

33 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th

Cir. 2012).

34 See Fed. R. Civ. P. 12(b)(1).

35 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal

quotation marks and citation omitted).

36 In re FEMA, 668 F.3d at 287.

12(b)(6), the Court should, if necessary, dismiss only under the former without reaching

the question of failure to state a claim.”37

B. Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss

a complaint, or any part of it, for failure to state a claim upon which relief may be granted

if the plaintiff has not set forth factual allegations in support of his claim that would entitle

him to relief.38 “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.’”39

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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

alleged.”40 The court, however, does not accept as true legal conclusions or mere

conclusory statements, and “conclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to prevent a motion to dismiss.”41 “[T]hreadbare

recitals of elements of a cause of action, supported by mere conclusory statements” or

“naked assertion[s] devoid of further factual enhancement” are not sufficient.42

In summary, “[f]actual allegations must be enough to raise a right to relief above

the speculative level.”43 “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

37 Valdery v. Louisiana Workforce Comm’n, No. CIV.A. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept.

10, 2015).

38 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

39 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

40 Id.

41 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

42 Iqbal, 556 U.S. at 663, 678 (citations omitted).

43 Twombly, 550 U.S. at 555.

show[n]’—that the pleader is entitled to relief.”44 “Dismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”45

III. Legal Analysis

A. Claims Against “All Defendants” Are Dismissed Without

Prejudice.

In numerous paragraphs of the third amended complaint, Plaintiffs allege that “all

named Defendants,” “all Defendants,” or “named Defendants” violated their

constitutional or statutory rights.46 Mere “conclusory allegations against [d]efendants as

a group” that “fail[ ] to allege the personal involvement of any defendant” are insufficient

to put Defendants on notice of their alleged wrongdoing.47 A plaintiff must allege facts

that “establish each individual [d]efendant’s liability for the misconduct alleged.”48 When

a number of defendants are named in a complaint, a plaintiff cannot refer to all

defendants “who occupied different positions and presumably had distinct roles in the

alleged misconduct” without specifying “which defendants engaged in what wrongful

conduct.”49 A complaint that contains “impermissibly vague group pleading” will be

dismissed.50

Accordingly, the claims against “all named Defendants,” “all Defendants,” or

“named Defendants,” including Zibilich, Plaisance, Schmidt, and the Rules Committee,

44 Id. (quoting Fed. R. Civ. P. 8(a)(2)).

45 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).

46 See, e.g, R. Doc. 57, ¶¶ 18, 85-88, 90, 92, 95, 125.

47 Galicki v. New Jersey, No. 14-169, 2015 WL 3970297, at *2 (D.N.J. June 29, 2015) (dismissing plaintiffs’

claims without prejudice for failure to provide each defendant with notice of its alleged participation in the

racketeering enterprise).

48 Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (finding that a plaintiff must plead that each

Government-official defendant, through the official's own individual actions, has violated the Constitution);

Aruanno v. Main, 467 F. App'x 134, 137-38 (3d Cir. 2012) (dismissal of § 1983 action was appropriate where

Defendants were collectively sued as “[government] personnel” and failed to allege the personal

involvement of the individual Defendants).

49 Falat v. County of Hunterdon, No. 12-6804, 2013 WL 1163751, at *3 (D.N.J. Mar. 19, 2013).

50 Id.

are dismissed without prejudice for impermissible group pleading and failing to specify

how Zibilich, Plaisance, Schmidt, and the Rules Committee violated Plaintiffs’ rights.51

However, to the extent the Plaintiffs referenced any of these claims elsewhere in their

third amended complaint against specific Defendants, these claims are addressed below.

B. Plaintiffs Lack Standing to Request Criminal Charges Against

Defendants.

Plaintiffs request the Court invoke its “pendent/supervisory jurisdiction” under 42

U.S.C. § 1983 to charge Defendants Zibilich, Plaisance, and Schmidt with criminal

violations of various Louisiana statutes.52 As the Court has stated before, this is beyond

its authority and jurisdiction.53 “Section 1983 and Bivens actions are available to seek

damages and injunctive relief. They are not avenues for private citizens to bring criminal

charges.”54 “[A] private citizen lacks a judicially cognizable interest in the prosecution or

non-prosecution of another.”55 Because Plaintiffs lack standing to bring criminal charges

against Defendants, these claims must be dismissed without prejudice for lack of

standing.

C. The Federal Law Claims by Hawkins and Sanders Against

Defendants Are Dismissed.

In their motion to dismiss and reply, Defendants argue that Plaintiffs Hawkins and

Sanders have no standing to assert claims against Defendants because they have suffered

no injury from any of the alleged misconduct in Lightfoot’s prosecution; only Lightfoot

has suffered an alleged injury to establish standing. Defendants also argue the Rules

51 These claims are dismissed as to all Defendants in this lawsuit for the same reasons, notwithstanding that

this Order and Reasons addresses only Ziblich, Plaisance, Schmidt, and the Rules Committee’s motion to

dismiss.

52 R. Doc. 57, ¶¶ 96-111.

53 R. Doc. 148.

54 Banks v. Gillie, No. 03-3098, 2004 U.S. Dist. LEXIS 5413, at *20 (E.D. La. Feb. 25, 2004).

55 See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

Committee is not a juridical entity capable of being sued. They argue that Lightfoot’s

claims for injunctive and declaratory relief against Zibilich and the Rules Committee are

moot because Judge Zibilich is no longer on the bench. Alternatively, they argue that the

Court must abstain from deciding Lightfoot’s claims for injunctive and declaratory relief

against Defendants under the Younger56 and Rooker-Feldman57 doctrines. Finally,

Defendants argue that any claims for damages against Plaisance and Schmidt in their

official capacities are barred by the Eleventh Amendment and any claims against them in

their individual capacities are barred by qualified immunity.

Plaintiffs argue in their opposition and supplemental opposition that Hawkins and

Sanders have standing to bring claims because they have an interest in the outcome of

Lightfoot’s prosecution due to their relationship with him and Defendants’ conduct has

caused them mental, emotional, and financial suffering. They alternatively argue

Hawkins and Sanders have third-party standing. Plaintiffs admit the Rules Committee is

not an entity capable of being sued but argue they should be allowed to identify the correct

entity through discovery. Plaintiffs argue the claims for injunctive and declaratory relief

are not moot because they still dispute the legality of the Defendants’ actions. They argue

Younger abstention is not applicable because Lightfoot’s prosecution is in bad faith and

because the alleged misconduct by Defendants in this case is an exceptional circumstance

that the Court must address. Plaintiffs argue the Rooker-Feldman doctrine is inapplicable

because they do not seek Judge Zibilich’s recusal. They admit that any claims for damages

against Defendants in their official capacities are barred by the Eleventh Amendment.

However, Plaintiffs maintain they have the right to request damages from Defendants in

56 Younger v. Harris, 401 U.S. 37 (1971).

57 Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).

their individual capacities. They argue Zibilich does not have absolute immunity for his

actions because he lacked jurisdiction at that time since the motion to recuse had been

transferred to Judge Hunter. Finally, Plaintiffs argue Plaisance and Schmidt are not

entitled to qualified immunity because they violated rights guaranteed to Plaintiffs by the

Louisiana Constitution and Louisiana statutes.

1. Plaintiffs Hawkins and Sanders Lack Standing to Sue for

Injuries Allegedly Sustained by Lightfoot.

Standing to sue is a doctrine rooted in the traditional understanding of a case or

controversy.58 The doctrine developed to ensure federal courts do not exceed their

authority as it has been traditionally understood.59 The doctrine limits the category of

litigants empowered to maintain a lawsuit in federal court to seek redress for a legal

wrong.60

The Supreme Court has established that the “irreducible constitutional minimum”

of standing consists of three elements.61 The plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

likely to be redressed by a favorable judicial decision.62 Injury in fact is a constitutional

requirement and cannot be erased.63 To establish injury in fact, a plaintiff must show that

he or she suffered “an invasion of a legally protected interest” that is “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical.”64 For an injury

58 Spokeo, Inc. v. Robins, 578 U.S. 856 (2016).

59 See id. at 820.

60 See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S.

464, 473 (1982); Warth v. Seldin, 422 U.S. 490, 498-499 (1975).

61 Lujan v, Defenders of Wildlife, 504 U.S. 555, 560 (1992).

62 Id. at 560–561.

63 See Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009); Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91, 100 (1979) (“In no event . . . may Congress abrogate the Art. III minima”).

64 Lujan, 504 U.S. at 560 (internal quotation marks omitted).

to be “particularized,” it “must affect the plaintiff in a personal and individual way.”65 A

“concrete” injury must be “de facto”; that is, it must actually exist.66 “Concrete” is not,

however, necessarily synonymous with “tangible.”67

“[E]ven when the plaintiff has alleged injury sufficient to meet the ‘case or

controversy’ requirement, [the Supreme] Court has held that the plaintiff generally must

assert his own legal rights and interests, and cannot rest his claim to relief on the legal

rights or interests of third parties.”68 In other words, “injury alone is not sufficient to

establish standing”; rather, a person can generally only pursue claims “to vindicat[e] that

person’s own rights.”69 For example, in Danos v. Jones, the secretary of a federal judge

sued the Judicial Council of the United States for allegedly unconstitutionally suspending

the judge from employing staff, which resulted in the secretary’s termination of

employment.70 The secretary claimed she had standing because she “suffered an injury-

in-fact by losing her job.”71 However, the Fifth Circuit held the “alleged rights at issue— .

. . to employ a secretary under § 752—are rights of the judge, not of the secretary.”72

Accordingly, even though the secretary was injured, she “lack[ed] standing to pursue this

constitutional claim, because she [could ]not assert the rights of [the judge].”73

Nevertheless, “there may be circumstances where it is necessary to grant a third

party standing to assert the rights of another.”74 In order for a third party to have third-

65 Id. at n.1.

66 Spokeo, Inc., 136 S. Ct. at 1548.

67 Id. at 1549.

68 Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Danos v. Jones, 721 F. Supp. 2d 491, 498 (E.D. La.

July 8, 2010) (citing Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)) (“[P]rudential standing considerations

generally limit a person to vindicating that person's own rights.”), aff’d, 652 F.3d 577 (5th Cir. 2011).

69 Danos, 721 F. Supp. 2d at 498.

70 Danos, 625 F.3d at 580.

71 Danos, 721 F. Supp. 2d at 498.

72 Danos, 625 F.3d at 580.

73 Id.

74 Kowalski, 543 U.S. at 129-30.

party standing, the third party must “make two additional showings”: 1) the third party

must have a “’close’ relationship with the person who possesses the right,” and 2) there

must be a “’hindrance’ to the possessor’s ability to protect his own interests.”75

In this case, Plaintiffs’ claims stem solely from Lightfoot’s pending prosecution,

namely his motion to recuse Judge Zibilich. Hawkins and Sanders have never been

arrested or charged in connection with the case against Lightfoot.76 Hawkins and Sanders

do not assert that Defendants violated their own constitutional rights; rather, they rest

their claims on alleged violations of Lightfoot’s constitutional rights. Although they argue

that Defendants’ alleged misconduct against Lightfoot has caused them mental,

emotional, and financial suffering, injury alone is not sufficient to assert the rights of

others.77 Like the plaintiff in Danos, Hawkins and Sanders have failed to assert a violation

of their own rights.78 Moreover, Hawkins and Sanders cannot assert third-party standing

to bring Lightfoot’s claims because there is no hindrance to his ability to protect his own

interests. It is undisputed that Lightfoot is a party in this very litigation and is asserting

his rights against Defendants.

For these reasons, Hawkins and Sanders lack standing to bring the asserted claims

against Defendants. Accordingly, any claims by Hawkins and Sanders against Defendants

must be dismissed without prejudice for lack of standing.

75 Id. at 130 (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)).

76 R. Doc. 57, at p. 10.

77 Warth v. Seldin, 422 U.S. at 499; Danos, 625 F.3d at 580; Danos, 721 F. Supp. 2d at 498.

78 Hawkins and Sanders also point to their claims against the other Defendants in this case, Gaudin,

Cannizzaro, the Union, Sanders, Rodgers, and Kish, to assert that they have an interest in Lightfoot’s

prosecution sufficient to establish standing against Zibilich, Plaisance, Schmidt, and the Rules Committee.

However, the claims against the other Defendants relate to their use of Hawkins and Sanders’s financial

information in Lightfoot’s prosecution, which in no way relate to their claims against Zibilich, Plaisance,

Schmidt, and the Rules Committee for allegedly denying Lightfoot certain evidence in Zibilich’s recusal

hearing. Hawkins and Sanders cannot use their standing to sue some defendants as standing to sue others

when they assert no personal cognizable interest against those other defendants.

2. The Rules Committee is not an Entity Capable of Being

Sued.

Under Louisiana law, “[a]n entity must qualify as a juridical person to have the

capacity to be sued.”79 “A juridical person is an entity to which the law attributes

personality, such as a corporation or a partnership.”80 The Louisiana Supreme Court has

adopted a “functional approach” for determining whether a political subdivision is a

separate and distinct juridical person.81 In this case, numerous courts have recognized

that Louisiana district courts are not juridical entities capable of being sued,82 and nothing

about the Rules Committee, an internal committee of judges organized by the Orleans

Parish Criminal District Court, makes the outcome any different.83 Lightfoot admits the

Rules Committee is not a juridical entity: “The plaintiffs are in agreement with the

defendants, Section 1983 DOES NOT permit the plaintiffs to take action against the Rules

Committee named herein . . . in their [sic] official capacities [sic].”84 Accordingly, an

analysis of whether the Rules Committee is a juridical person is not necessary. For these

reasons, Lightfoot’s claims against the Rules Committee must be dismissed with

prejudice.85

79 Dejoie v. Medley, No. 41,333, at p. 4 (La. App. 2 Cir. 12/20/06); 945 So. 2d 968, 972.

80 La. Civ. Code art. 24 (2021).

81 Roberts v. Sewerage & Water Bd. of New Orleans, No. 92-2048 (La. 3/21/94); 634 So. 2d 341, 346-47.

82 See, e.g., Griffith v. Louisiana, 808 F. Supp. 2d 926 933-34 (E.D. La. 2011) (collecting cases); Durden v.

Bryson, No. 5:17-cv-214, 2017 WL 4855437, at *2 (W.D. La. Sept. 26, 2017) (same).

83 R. Doc. 57 at 15.

84 R. Doc. 97, at p. 5.

85 Plaintiffs ask the Court to permit discovery so that they can identify the members of the Rules Committee

and add them to this case. However, discovery is currently stayed. R. Doc. 85. Federal Rule of Civil

Procedure 15(a) provides the Court should grant leave to amend freely when justice so requires. Leave to

amend is not “automatic,” but the Court must possess a “substantial reason” to deny leave to amend. Jones

v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.2005). A court possesses a “substantial reason”

when, for instance, a plaintiff has acted with “undue delay, bad faith or dilatory motive” in seeking leave to

amend, the plaintiff has made “repeated failures to cure deficiencies by amendments previously allowed,”

“undue prejudice [will result] to the opposing party by virtue of allowance of the amendment,” or the

amendment would be completely futile. Id. The Court finds any amendment in this case would be futile.

For the reasons stated in this Order, Plaintiffs’ claims against the Rules Committee fail, and adding the

individual members as defendants would not change that. The Court also notes that most of the acts giving

rise to Plaintiffs’ complaint occurred between 2010 and 2014; a few acts occurred in 2018 and 2019.

3. Lightfoot’s Claims for Damages Against Zibilich, Plaisance,

and Schmidt in Their Official Capacities Are Barred by the

Eleventh Amendment.

“A foundational premise of the federal system is that States, as sovereigns, are

immune from suits for damages, save as they elect to waive that defense.”86 “As an

exception to this principle, Congress may abrogate the States' immunity from suit

pursuant to its powers under § 5 of the Fourteenth Amendment.”87 “Congress has not

expressly waived sovereign immunity for § 1983 suits.”88 “While Louisiana may have

waived sovereign immunity with respect to some claims [in tort and contract], La. Const.

art. 1 § 26 makes it clear the State has not waived its sovereignty within the federal

system.”89 “Suits against state officials in their official capacity . . . should be treated as

suits against the State.”90 For this reason, suits against Louisiana district judges in their

official capacity have been found to be barred by the Eleventh Amendment.91

In this case, Lightfoot’s claims for damages under Section 1983 against Zibilich,

Plaisance, and Schmidt in their official capacities are treated as claims against the State

Plaintiffs filed their lawsuit in 2019. The Court will not now, in 2023, after Plaintiffs have already filed four

complaints, give leave for Plaintiffs to file yet another amended complaint. Accordingly, to the extent

Plaintiffs are requesting leave from the Court to file an amended complaint in order to add the individual

members of the Rules Committee as defendants, that request is denied.

86 Coleman v. Ct. of Appeals of Md., 566 U.S. 30, 35 (2012).

87 Id.

88 Richardson v. S. Univ., 118 F.3d 450, 453 (5th Cir. 1997) (first citing Quern v. Jordan, 440 U.S. 332, 340-

45 (1979); and then citing Voisin’s Oyster House Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986)).

89 Holliday v. Bd. Of Supervisors of LSU Agric. & Mech. Coll., No. 2014-0585, at pp. 2-3 (La. 10/15/14);

149 So. 3d 227, 228-29.

90 Hafer v. Melo, 502 U.S. 21, 25 (1991).

91 See, e.g., Sampay v. Terrebonne Par. 32nd Jud. Ct., No. 22-1173, 2022 WL 2712873, at *5 (E.D. La. June

9, 2022), report and recommendation adopted, No. 22-1173, 2022 WL 2704573 (E.D. La. July 12, 2022);

see also Greathouse v. 32nd J.D.C. of Terrebonne Par., No. 22-1939, 2022 WL 2721349, at *2 (E.D. La.

June 28, 2022) (finding a case brought against a Louisiana district court barred by the Eleventh

Amendment), report and recommendation adopted, No. 22-1939, 2022 WL 2713411 (E.D. La. July 13,

2022); Henderson v. 32nd Jud. Dist. Of Terrebonne Par., No. 18-7683, 2018 WL 6380793, at *2 n.5 (E.D.

La. Nov. 2, 2018) (same), report and recommendation adopted, No. 18-7683, 2018 WL 6335773 (E.D. La.

Dec. 5, 2018); Jefferson v. La. State Sup. Ct., 46 Fed. App’x 732 (5th Cir. 2002), 2002 WL 1973897, at *1

(unpublished) (finding a suit against the Louisiana Supreme Court barred by the Eleventh Amendment); S.

Christian Leadership Conf. v. Sup. Ct. of State of La., 252 F.3d 781, 782 n.2 (5th Cir. 2001) (stating suits

against state supreme courts are barred by the Eleventh Amdnment).

of Louisiana. Because Congress has not waived the states’ sovereign immunity with

respect to Section 1983 claims and because Louisiana has not waived its sovereign

immunity either, Lightfoot’s claims for damages against Zibilich, Plaisance, and Schmidt

in their official capacities are barred by the Eleventh Amendment. Accordingly,

Lightfoot’s claims for damages under Section 1983 against Zibilich, Plaisance, and

Schmidt in their official capacities must be dismissed without prejudice.

4. Lightfoot’s Claims for Injunctive and Declaratory Relief

Against Zibilich Are Moot.

Article III grants federal courts jurisdiction over only cases and controversies.92

“[A]n ‘actual controversy’ must exist not only ‘at the time the complaint is filed,’ but

through ‘all stages’ of the litigation.”93 “A case becomes moot—and therefore no longer a

‘Case’ or ‘Controversy’ for purposes of Article III—'when the issues presented are no

longer “live” or the parties lack a legally cognizable interest in the outcome.’”94 “No matter

how vehemently the parties continue to dispute the lawfulness of the conduct that

precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any

actual controversy about the plaintiffs' particular legal rights.’”95 “The mootness doctrine

applies to equitable relief but will not bar any claim for damages, including nominal

damages.”96

However, “a defendant cannot automatically moot a case simply by ending its

unlawful conduct once sued.”97 “Otherwise, a defendant could engage in unlawful

conduct, stop when sued to have the case declared moot, then pick up where he left off,

92 Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013).

93 Id. at 91 (quoting Alvarez v. Smith, 558 U.S. 87, 92 (2009)).

94 Id. (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).

95 Id. (quoting Alvarez, 558 U.S. at 93).

96 Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 345 (5th Cir. 2017) (citing Morgan v. Plano Indep.

Sch. Dist., 589 F.3d 740, 748 n.32 (5th Cir. 2009)).

97 Already, 568 U.S. at 90.

repeating this cycle until he achieves all his unlawful ends.”98 A defendant claiming

mootness because he cannot or will not perform the alleged wrongful activity again “bears

the formidable burden of showing that it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur.”99

In this case, Lightfoot seeks injunctive and declaratory relief to require Zibilich to

turn over the audio recordings of the proceedings before him in Lightfoot’s case to

determine whether Zibilich would afford him a fair trial. However, since the third

amended complaint was filed, Zibilich was not reelected to the Orleans Parish Criminal

District Court.100 Accordingly, Zibilich no longer has the authority to deny Lightfoot access

to the audio recordings. Moreover, Zibilich is no longer presiding over Lightfoot’s case, so

there is no danger that Zibilich would deny Lightfoot a fair trial. Because Zibilich is no

longer on the bench and is no longer involved in Lightfoot’s case, Defendants have met

their formidable burden that the alleged wrongful conduct cannot recur. For these

reasons, Lightfoot’s claims for injunctive and declaratory relief against Zibilich must be

dismissed without prejudice as moot.

5. The Rooker-Feldman Doctrine Bars Consideration of

Lightfoot’s Constitutional Claims for Damages Against

Zibilich, Plaisance, and Schmidt in Their Individual

Capacities.

In Rooker v. Fidelity Trust Co.101 and District of Columbia Court of Appeals v.

Feldman102 the Supreme Court held that “federal district courts lack jurisdiction to

entertain collateral attacks on state court judgments” and orders.103 “[S]tate courts must

98 Id.

99 Id. (quoting Friends of Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)).

100 R. Doc. 104, at p. 3.

101 263 U.S. 413 (1923).

102 460 U.S. 462 (1983).

103 Liedtke v. State Barof Tex., 18 F.3d 315, 317 (5th Cir. 1994).

resolve constitutional questions that arise during proceedings.”104 “If the state trial court

errs in deciding the constitutional issues, the judgment is not void, but the appropriate

state appellate court must correct it.”105 “Any subsequent recourse to federal court is

limited to an application for a writ of certiorari to the United States Supreme Court.”106

Thus, the doctrine “is confined to . . . cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.”107

Accordingly, the Rooker-Feldman doctrine “usually applies only when a plaintiff

explicitly attacks the validity of a state court’s judgment, though it can also apply if the

plaintiff’s federal claims are so inextricably intertwined with a state judgment that the

federal court ‘is in essence being called upon to review the state court decision.’”108

The Fifth Circuit “has determined that issues are ‘inextricably intertwined’ when a

plaintiff casts a complaint in the form of a civil rights action simply to circumvent the

Rooker–Feldman rule.”109 This rule extends to “suits for equitable relief and damages as

attempts to attack collaterally the validity of state court judgments.”110 For example, in

Eitel v. Holland, the plaintiff filed suit in federal court under Section 1983 against the

state court judge who was presiding over his tort case and the two defense attorneys in

that state court case for allegedly conspiring to deprive the plaintiff of his due process

rights.111 Several preliminary motions in the state court case, including one for the recusal

104 Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 350 (5th Cir. 2003).

105 Id. (citing Rooker, 263 U.S. at 416).

106 Id. (citing Rooker, 263 U.S. at 416).

107 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

108 Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 391 (5th Cir. 2012) (citation omitted) (quoting Feldman, 460

U.S. at 483 n.16) (citing Weaver v. Tex. Cap. Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011)).

109 Richard, 355 F.3d at 351.

110 Liedtke, 18 F.3d at 318 n.12; see, e.g., Chrissy F. v. Miss. Dep’t of Pub. Welfare, 995 F.2d 595, 598-600

(5th Cir. 1993); Eitel v. Holland, 798 F.2d 815, 817-18; Reed v. Terrell, 759 F.2d 472, 473-74 (5th Cir. 1985).

111 Eitel, 798 F.2d at 816.

of the state court judge, were decided adversely to the plaintiff.112 Citing Feldman, the

Fifth Circuit held that because the plaintiff sought “a judgment for damages . . . that would

be tantamount to reversing the state court orders unfavorable to him,” these issues were

“inextricably intertwined” with the state court’s orders, and the federal lower courts

lacked jurisdiction to hear them.113

In this case, Lightfoot alleges he—and in turn Judge Hunter—was entitled to the

audio recordings of the proceedings in his case before Judge Zibilich to determine

whether or not Zibilich’s recusal was warranted. Lightfoot seeks damages under Section

1983 from Zibilich for allegedly instructing Plaisance and Schmidt not to turn over the

recordings and from Plaisance and Schmidt for not turning over the recordings. The

question whether Lightfoot was entitled to the audio recordings was submitted to the

Rules Committee, which opined that the recordings were not public records under

Louisiana law and could not be produced; Judge Hunter was to render his opinion in the

recusal matter based on the transcripts of the proceedings before Zibilich. Sitting en banc

the Orleans Parish Criminal District Court adopted this opinion and ruled the court,

through Zibilich, Plaisance, and Schmidt, could not produce the recordings. Complying

with the en banc order and based on the transcripts of proceedings before Zibilich, Judge

Hunter then ruled Zibilich did not have to recuse himself.114

Lightfoot’s claims for damages against Zibilich, Plaisance, and Schmidt

112 Id.

113 Id. at 818; see also Chrissy F., 995 F.2d at 597-600 (holding the Rooker-Feldman doctrine barred

plaintiff’s Section 1983 claims for injunctive, declaratory, and compensatory relief against state court

officials and other state officials for alleged depriving a minor of constitutional rights in court because the

relief were inextricably intertwined with the state court custody ruling and would essentially reverse it);

Reed, 759 F.2d at 472-74 (holding the Rooker-Feldman doctrine barred plaintiff’s claims for injunctive,

declaratory, and compensatory relief under 42 U.S.C. §§ 1983, 1985, and 1986 against the judge and court

clerk, among others, for denying his claim for attorney’s fees in divorce proceedings because the claims

were inextricably intertwined with the state court judgment and would essentially reverse it).

114 Lightfoot, slip op. at 4.

individually essentially seek to reverse the en banc court’s ruling and, ultimately, Judge

Hunter’s ruling applying it. The state court orders held that Lightfoot could not obtain the

recordings, but still, in spite of these rulings, he now maintains he can. Lightfoot

challenges the actions of the “Rules of Court Committee, Judge Franz Zibilich, and/or the

En Banc Members of the Court of Orleans Parish Criminal District Court” as “improper

and unconstitutional.”115 He alleges that Defendants conspired to deprive him of the

recordings, resulting in the Rules Committee’s opinion, but these allegations, while veiled

as a civil rights complaint, really seek to discredit the en banc court and Judge Hunter’s

unfavorable orders. As in Eitel, the Court cannot entertain claims “for damages . . . that

would be tantamount to reversing the state court orders unfavorable to” Lightfoot.116

Accordingly, Lightfoot’s claims are “inextricably intertwined” with the orders of the en

banc court and Judge Hunter.117 “A ‘state court loser’ cannot invite a federal district court

to ‘sit in direct review of state court decisions’ by asserting constitutional claims that the

state court had not directly addressed.”118 The proper avenue to challenge these orders is

the appropriate state appellate court; only afterward can Lightfoot bring these claims into

the federal judicial system through an application for a writ of certiorari to the U.S.

Supreme Court.119

For these reasons, under the Rooker-Feldman doctrine, the Court lacks

jurisdiction to hear Lightfoot’s claims for damages against Zibilich, Plaisance, and

Schmidt individually. Accordingly, Lightfoot’s claims for damages against Zibilich,

115 R. Doc. 57 ¶ 84.

116 Eitel, 798 F.2d at 818.

117 See id.

118 Truong v. Bank of Am., N.A., 717 F.3d 377, 385 (5th Cir. 2013) (first citing Exxon Mobil, 544 U.S. at 286

n.1; and then citing Feldman, 460 U.S. at 482 n.16).

119 Richard, 355 F.3d at 350.

Plaisance, and Schmidt individually must be dismissed without prejudice.120

D. Plaintiffs’ State Law Claims Are Dismissed Without Prejudice

Plaintiffs also assert various state law claims against Defendants. Having dismissed

each of Plaintiffs’ federal claims, the Court declines to exercise supplemental jurisdiction over

Plaintiffs’ state law claims. District courts have discretion not to exercise supplemental

jurisdiction over a claim when all claims over which the court had original jurisdiction have

been dismissed.121 Although the “‘general rule’ is to decline to exercise jurisdiction over

pendent state-law claims” under such circumstances, the “rule is neither mandatory nor

absolute.”122 Rather, a court must consider “both the statutory provisions of 28 U.S.C. §

1367(c) and the balance of the relevant factors of judicial economy, convenience, fairness,

and comity.”123 Having considered the applicable law, the complexity of Plaintiffs’ remaining

state law claims, and the fact that the trial of this matter has not yet been set, the Court

declines to exercise supplemental jurisdiction over these claims and dismisses Plaintiff’s

remaining state law claims without prejudice.124

120 Because the Court dismisses the remaining federal claims under the Rooker-Feldman doctrine, it does

not reach Defendants’ arguments for Younger abstention or qualified immunity.

121 42 U.S.C. § 1367(c)(3). 42 U.S.C. § 1367(c) reads:

The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if:

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates

over the claim or claims over which the district court has original jurisdiction, (3) the district court

has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances,

there are other compelling reasons for declining jurisdiction.

122 Batiste v. Island Records Inc., 179 F.3d 217, 227 (5th Cir. 1999) (quoting McClelland v. Gronwaldt, 155

F.3d 507, 519 (5th Cir. 1998)).

123 Id. (citations omitted).

124 See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (stating that “in the usual case in

which all federal-law claims are eliminated before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining

state-law claims”); Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999) (reversing the district

court for declining to retain supplemental jurisdiction over the state law claims that remained following the

district court’s grant of summary judgment on all of the plaintiff’s federal claims because “the remaining

[state law] claims d[id] not involve any ‘novel or complex’ issues of state law,” and “[t]he case had been

pending in the district court for almost three years”). The Court dismisses without prejudice all of Plaintiffs’

remaining state law claims against each Defendant in this case.

IV. Conclusion

For the foregoing reasons,

IT IS ORDERED that Defendants Franz Zibilich, Dawn Plaisance, Jan Schmidt,

and the Orleans Parish Criminal District Court Rules of Court Committee’s Motion to

Dismiss125 is GRANTED.

IT IS FURTHER ORDERED Plaintiffs’ claims against “all Defendants” are

DISMISSED WITHOUT PREJUDICE as the claims are impermissibly vague.

IT IS FURTHER ORDERED that Plaintiffs lack standing to bring criminal

charges under Louisiana statutes against Zibilich, Dawn Plaisance, and Jan Schmidt and

these claims are DISMISSED WITHOUT PREJUDICE FOR LACK OF

STANDING.

IT IS FURTHER ORDERED that Hawkins and Sanders federal law claims

based on the violation of Lightfoot’s constitutional rights are DISMISSED WITHOUT

PREJUDICE FOR LACK OF STANDING.

IT IS FURTHER ORDERED that all claims against the Orleans Parish Criminal

District Court Rules of Court Committee are DISMISSED WITH PREJUDICE AS

THE COURT RULES COMMITTEE IS NOT AN ENTITY CAPABLE OF BEING

SUED.

IT IS FURTHER ORDERED Plaintiffs’ claims for damages under 42 U.S.C. §

1983 against Defendants in their official capacities are DISMISSED WITHOUT

PREJUDICE AS BARRED BY THE ELEVENTH AMENDMENT.

IT IS FURTHER ORDERED that Plaintiff Lightfoot’s claims for injunctive and

declaratory relief against Zibilich ordering him to turn over the audio recordings of the

125 R. Doc. 63.

proceedings before him are DISMISSED WITHOUT PREJUDICE AS MOOT.

IT IS FURTHER ORDERED Lightfoot’s constitutional claims under 42 USC

1983 for damages against Franz Zibilich, Dawn Plaisance, and Jan Schmidt in their

individual capacities are DISMISSED WITHOUT PREJUDICE as barred for lack of

jurisdiction by the Rooker-Feldman doctrine.126

IT IS FURTHER ORDERED Plaintiffs’ state law claims against Franz Zibilich,

Dawn Plaisance, and Jan Schmidt are DISMISSED WITHOUT PREJUDICE as the

Court declines to exercise its supplemental jurisdiction over these claims.

New Orleans, Louisiana, this 16th day of March, 2023.

SUSIE on

UNITED STATES DISTRICT JUDGE

Clerk to Notify via Mail:

Geralyn Hawkins

500 South Starrett Road

New Orleans, LA 70123

Chad Lightfoot #301162

Orleans Parish Justice Center

I.D. #2516543

300 Perdido Street

New Orleans, LA 70119

Nicole Thompson

P.O. Box 1472

Kenner, LA 70063

Clerk to Notify via E-Mail:

Geralyn Hawkins

geralynhawkins@yahoo.com

126 To the extent claims are made by Hawkins and Sanders based on the violation of Lightfoot’s

constitutional rights, those claims are dismissed without prejudice for lack of standing.

22