Smith v. Williams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KALIEGH SMITH CIVIL ACTION

VERSUS NO. 22-1550

JASON WILLIAMS, IN HIS OFFICIAL SECTION: “G”

CAPACITY AS DISTRICT ATTORNEY FOR

ORLEANS PARISH et al.

ORDER AND REASONS

In this litigation, Plaintiff Kaliegh Smith (“Plaintiff”) brings a § 1983 claim against Jason

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

February 28, 2023, the Court entered an Order denying Defendant’s Rule 12(b)(6) motion to

dismiss (the “12(b)(6) Order”).2 Pending before the Court is Defendant’s “Motion to Certify Order

for Immediate Appeal.”3 Plaintiff opposes the instant motion.4 Having considered the motion, the

memoranda in support and opposition, the record, and the applicable law, the Court now denies

the motion for certification of interlocutory appeal of the 12(b)(6) Order.

I. Background

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

Attorney for Orleans Parish.5 Plaintiff alleges that Defendant and former Orleans Parish District

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. 18.

3 Rec. Doc. 20.

4 Rec. Doc. 25.

5 Rec. Doc. 1.

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

A non-unanimous jury found Plaintiff guilty of second-degree murder on February 6, 2010.8

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.”9 According to the Complaint, in May 2021, “OPDA confessed to

the Brady violations in resolution of [Plaintiff’s] application for post-conviction relief.”10 On May

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

14, 2021, the OPDA dismissed the charges.11 Plaintiff was released from custody after nearly

fourteen years in prison.12

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

custom, and/or usage of failing to disclose favorable information to defendants.”13 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

6 Id. at 2, 5, 11–15.

7 Id. at 2.

8 Id.

9 Id. at 14.

10 Id. at 3.

11 Id. at 4.

12 Id.

13 Id. at 23.

proceedings.14

On August 5, 2022, Defendant filed a Rule 12(b)(6) motion to dismiss.15 Defendant argued

that Plaintiff 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.16 Defendant relied on two recent Fifth Circuit cases, which were

both decided under Texas law, to argue that Louisiana district attorneys act on behalf of the State

of Louisiana in the execution of their duties.17 Plaintiff opposed the motion and argued Louisiana

law “explicitly indicate[s] that OPDA does not act as an arm of the state even when prosecuting

state crimes.”18

On February 28, 2023, this Court denied Defendant’s Rule 12(b)(6) motion to dismiss

Plaintiff’s claims.19 In the 12(b)(6) Order, the Court found that Louisiana law does not designate

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

disclosure policies.20 In reaching this conclusion, the Court relied on Burge v. Parish of St.

Tammany, where the Fifth Circuit held that Louisiana district attorneys act as autonomous local

policymakers with respect to the policies and practices governing their compliance with Brady.

The Court relied on the Fifth Circuit’s decision in Burge v. Parish of St. Tammany to find that

Louisiana district attorneys act as autonomous local policymakers with respect to the policies and

14 See id.

15 Rec. Doc. 5.

16 Rec. Doc. 5-1 at 8–9.

17 Id.

18 Rec. Doc. 12 at 11.

19 Rec. Doc. 18.

20 Id. at 21–22.

practices that govern their evidence disclosure duties.21 Additionally, the Court found that the

Louisiana Constitution and statutory provisions addressing the role and compensation of district

attorneys do not establish that they act on behalf of the State of Louisiana.22

On March 18, 2023, Defendant filed the instant motion to certify the 12(b)(6) Order for

immediate appeal pursuant to 28 U.S.C. § 1929(b).23 On April 4, 2023, the Court granted

Plaintiff’s unopposed motion to continue the submission date on the instant motion.24 On April

18, 2023, Plaintiff opposed the motion.25 On April 27, 2023, the Court granted Defendant’s motion

for leave to file his reply brief.26

II. Parties’ Arguments

A. Defendant’s Arguments in Support of the Motion to Certify for Interlocutory Appeal

Defendant argues that this Court should certify the 12(b)(6) Order for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b) because it meets all three criteria listed in the statute.27 First,

Defendant asserts that the issue addressed in the 12(b)(6) Order involves a controlling question of

law.28 Defendant points out that the United States Supreme Court and the United States Court of

Appeals for the Fifth Circuit have held that the issue of which governmental entity a party acts on

21 Id. at 22.

22 Id. at 19–20.

23 Rec. Doc. 20.

24 Rec. Doc. 22.

25 Rec. Doc. 25.

26 Rec. Doc. 27

27 Rec. Doc. 20-1 at 1.

28 Id. at 2.

behalf of for the purposes of Monell liability presents a controlling question of law.29

Second, Defendant contends that there is “substantial ground for difference of opinion on

the legal question of whether the Fifth Circuit’s holding in Burge v. Parish of St. Tammany . . .

remains good law in light of subsequent Fifth Circuit precedent.”30 Defendant notes that the Fifth

Circuit has decided under Texas law that Texas district attorneys act on behalf of the state in

conducting criminal prosecutions and investigations.31 Defendant avers that if the Court had more

fully considered the recent Fifth Circuit per curiam opinion in Kimble v. Jefferson Parish Sheriff’s

Office, it would conclude that Plaintiff’s claims must be dismissed because “the alleged policies

that [Plaintiff] complains of are attributable to Orleans Parish–not to the District Attorney’s Office

as an independent local governmental entity.”32 Defendant further argues that this Court’s

McMillian analysis and interpretation of several provisions of the Louisiana Revised Statutes

provide substantial reasons for the Fifth Circuit to examine the Court’s findings.33 For these

reasons, Defendant asserts that there is sufficient difference of opinion on a controlling question

of law to warrant certification under 28 U.S.C. § 1292(b).34

Third, Defendant argues that a decision from the Fifth Circuit on the applicability of his

defense will materially advance the termination of this litigation.35 Defendant points out that “there

are currently three other lawsuits against the District Attorney’s office pending in the Eastern

29 Id.

30 Id.

31 Id. at 3.

32 Id. at 4.

33 Id. at 5–8.

34 Id. at 4.

35 Id. at 9.

District of Louisiana that assert § 1983 claims based on alleged failure to disclose Brady

evidence.”36 Defendant argues that defending against these suits on the merits places “demands on

[OPDA’s] limited resources [and] do[es] not facilitate the District Attorney’s efforts to stem

violent crime and examine claims by people serving sentences under prior convictions.”37 Thus,

Defendant asserts “that guidance from the Fifth Circuit sooner rather than later serves the public

interest.”38

B. Plaintiff’s Arguments in Opposition to the Motion to Certify for Interlocutory Appeal

In opposition, Plaintiff brings three arguments to support his position that an interlocutory

appeal should not be certified under 28 U.S.C. § 1292(b).39 Each argument centers on whether

Defendant has satisfied the central requirement “that there be substantial ground for difference of

opinion on the question of law” at issue.40 Plaintiff points out that the Fifth Circuit has stated that

“[a] district court cannot certify an order for interlocutory appeal unless all three criteria [from §

1292(b)] are present.”41 Plaintiff asserts that although “a controlling question of law is present

here. . . . [the] satisfaction of only one condition is insufficient to warrant certification of this non-

final Order for immediate appeal.”42

First, Plaintiff argues that there is no substantial ground for difference of opinion as to the

36 Id. at 9–10.

37 Id. at 10.

38 Id. at 11.

39 Rec. Doc. 25 at 6.

40 Id. at 1.

41 Id. at 3 (citing Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n.2 (5th Cir. 1981); David v. Signal Intern.,

LLC, 37 F. Supp. 3d 836, 839 (E.D. La. Oct. 14, 2014)).

42 Id. at 5.

question of law addressed in the 12(b)(6) Order because the Fifth Circuit’s decision in Burge

controls.43 Plaintiff states that the Fifth Circuit’s decision in Burge “forecloses the argument that

there is any substantial ground for difference of opinion as to the Court’s ruling.”44 Plaintiff points

out that several Judges in the Eastern District of Louisiana have found that “Burge does control

and [] remains good and binding law following Daves.”45

Second, Plaintiff argues that Defendant’s motion fails because the Court’s McMillian

analysis contained a mixed application of law to fact which is inappropriate for certification.46

Plaintiff asserts that orders addressing mixed questions of law and fact fail to meet the conditions

of § 1292(b) because only pure questions of law may be certified for interlocutory appeal.47

Plaintiff avers that Defendant’s arguments “attacking different pieces of the Court’s McMillian

analysis fail to present any substantial ground for difference of opinion as to the Court’s finding.”48

Thus, Plaintiff contends that Defendant has failed to present viable grounds for disagreement as to

the controlling question of law underlying the Court’s 12(b)(6) Order.49

Third, Plaintiff argues that “[i]mmediate appeal of the underlying question of law in this

case will substantially delay the ultimate termination of the litigation in this case.”50 Plaintiff

43 Id.

44 Id. at 6.

45 Id. at 9 (citing Reeder v. Williams, No. 22-4614, 2023 WL 2771481, at *3 (E.D. La. 2023); Floyd v.

Dillman, No. 19-8769, 2023 WL 2866955, at *7, 9 (E.D. La. 2023)).

46 Id. at 10.

47 Id. at 9–10.

48 Id. at 10.

49 Id. at 12.

50 Id.

contends that “Defendant’s hope that the Fifth Circuit will reverse itself on Burge amounts to a

request for re-litigation of already decided issues.”51 Plaintiff avers that “[t]he public interest is

not served where wrongfully-convicted plaintiffs, seeking to be made whole, must bear time and

expense of arguing for the continued recognition of already-controlling precedent before being

allowed to proceed with the litigation brought to vindicate their Constitutional rights.”52 For these

reasons, Plaintiff argues that the Court should deny Defendant’s motion for certification of

interlocutory appeal pursuant to 28 U.S.C. § 1292(b).53

C. Defendant’s Arguments in Further Support of the Motion to Certify for Interlocutory

Appeal

In his reply, Defendant avers that he is not trying to re-litigate issues this Court already

decided and merely requests for the Fifth Circuit “to rule on a question of law that has great

significance in this case and beyond.”54 Defendant asserts that certifying the 12(b)(6) Order for

appeal would not substantially delay the ultimate termination of the litigation because Plaintiff has

not conducted any discovery in this case.55 Defendant contends that “there are substantial reasons

to conclude that the holding in Burge has been abrogated by the recent en banc decision in

Daves.”56 Defendant avers that this Court’s 12(b)(6) Order may be certified under § 1292(b)

because the statute only requires that the Order “involve ‘a’ controlling question of law that meets

51 Id. at 13.

52 Id.

53 Id.

54 Rec. Doc. 28 at 1.

55 Id. at 2.

56 Id.

every other statutory criteria.”57 Thus, Defendant argues that this Court should certify the 12(b)(6)

Order for immediate appeal pursuant to 28 U.S.C. § 1292(b).58

III. Legal Standard

Title 28, United States Code, Section 1292(b) allows for interlocutory appeals when a

district court finds that a non-final order “[1] involves a controlling question of law as to which

[2] there is substantial ground for difference of opinion and that [3] an immediate appeal from the

order may materially advance the ultimate termination of the litigation.”59 The moving party

carries the burden of showing the necessity of interlocutory appeal.60 The availability of appeal

under § 1292(b) does not “jeopardiz[e] the usual role of not permitting an appeal until all the

proceedings on the trial court level are complete.”61 An interlocutory appeal is “exceptional” and

“does not lie simply to determine the correctness of a judgment.”62 The decision of whether or not

to grant such a request lies within the sound discretion of the trial court.63

IV. Analysis

In the 12(b)(6) Order, the Court found that Plaintiff’s claims may proceed because the

Orleans Parish District Attorney and his subordinates act as an independent local autonomous

57 Id. at 6–7.

58 Id. at 8.

59 28 U.S.C. § 1292(b); see also In re Ichinose, 946 F.2d 1169, 1177 (5th Cir. 1991).

60 See Chauvin v. State Farm Mut. Auto. Ins. Co., No. CIV.A. 06-7145 R(5), 2007 WL 4365387, at *2 (E.D.

La. Dec. 11, 2007) (Vance, J.) (citing Complaint of L.L.P.&D. Marine, Inc., No. CIV.A. 97-1668, 1998 WL 66100,

at *1 (E.D. La. Feb. 13, 1998)).

61 10 Charles Alan Wright et al., Fed. Prac. & Proc. § 2658.2 (3d ed.).

62 Clark-Dietz & Assoc.-Eng’r, Inc. v. Basic Const. Co., 702 F.2d 67, 68 (5th Cir. 1983).

63 Swint v. Chambers Cnty Com’n, 514 U.S. 35, 46 (1995) (explaining that in passing 28 U.S.C. § 1292,

“Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals”).

entity for the purposes of Monell claims.64 In reaching this conclusion, the Court found that the

Fifth Circuit’s recent decisions on this issue under Texas law do not govern the inquiry.65 In both

his Motion to Dismiss and the instant Motion to Certify, Defendant acknowledges that this “inquiry

is dependent on an analysis of state law.”66 Defendant requested that this Court evaluate

jurisprudence decided under Texas law and ignore settled, binding precedent decided under

Louisiana law.67

The Court relied on the Fifth Circuit’s decision in Burge v. Parish of St. Tammany to find

that Louisiana district attorneys act as autonomous local policymakers with respect to the policies

and practices that govern their evidence disclosure duties.68 In its analysis, the Court rejected

Defendant’s argument that Louisiana district attorneys act as policymakers on behalf of the State

of Louisiana while establishing and executing its evidence disclosure policies.69

Defendant now urges the Court to certify the 12(b)(6) Order for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b).70 Defendant argues that the 12(b)(6) Order involves a “controlling

question of law” and presents “substantial ground for difference of opinion.”71 Plaintiff counters

that the high standard for interlocutory appeal under 28 U.S.C. § 1292(b) is not satisfied in this

case because Burge controls the outcome. Plaintiff points out that several other Judges in this

64 Rec. Doc. 18 at 21–22.

65 Id.

66 See, e.g., Rec. Doc. 20-1 at 2.

67 See Rec. Doc. 5 at 1.

68 Rec. Doc. 18 at

69 Id. at 19–20.

70 Rec. Doc. 20-1 at 1.

71 Id.

District have denied Defendant’s motions to dismiss similar cases for the same reasons found by

this Court.”

As an initial matter, the Court finds that the 12(b)(6) Order does satisfy the first condition

enumerated in § 1292(b) as it addressed a “central question at issue” in this litigation. However,

Defendant’s motion fails at the second condition enumerated in § 1292(b) because there is no

substantial ground for difference of opinion on the controlling question of law implicated in this

case. Every federal district court to consider this issue has reached the same conclusion that Burge

controls.’? Thus, the Court finds that Defendant fails to meet his high burden of showing that the

12(b)(6) Order involves a controlling issue of law as to which there is substantial ground for

difference of opinion.’ Therefore, immediate appeal of the Court’s 12(b)(6) Order is not

warranted under 28 U.S.C. § 1292(b).

Accordingly,

IT IS HEREBY ORDERED that Defendant’s “Motion to Certify Order for Immediate

Appeal”’> is DENIED.

NEW ORLEANS, LOUISIANA, this 20th day of June, 2023.

esrette burt Barve

NANNETTE JOUAVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

” Rec. Doc. 25 at 12-13.

See, e.g., Reeder, 2023 WL 2771481, at *3; Floyd, 2023 WL 2866955, at *7, 9.

74 La. State Conf, of NAACP y. Louisiana, 495 F. Supp. 3d 400, 414 (M.D. La. 2020) (quoting So. United

States Trade Ass‘n v. Unidentified Parties, No. 10-1669, 2011 WL 2790182, at *2 (E.D. La. July 14, 2011)).

® Rec. Doc. 20.

1]