Kimble v. Connick

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RAYMOND HAROLD KIMBLE, III CIVIL ACTION

VERSUS NO. 22-3093

PAUL D. CONNICK, JR. et al. SECTION: “G”

ORDER AND REASONS

Before the Court are Plaintiff Raymond Harold Kimble III’s (“Plaintiff”) objections to the

Report and Recommendation of the United States Magistrate Judge assigned to the case.1 Plaintiff,

a Louisiana state prisoner, filed this civil rights action against Jefferson Parish District Attorney

Paul D. Connick, Jr. (“DA Connick”), Assistant District Attorney Lindsay Truhe (“ADA Truhe”),

Assistant District Attorney Emily Booth (“ADA Booth”), the Parish of Jefferson, and the Jefferson

Parish District Attorney’s Office (“DA’s Office”).2 Plaintiff asserts that his constitutional and

statutory rights were violated because he alleges that Defendants prosecuted him in two cases,

which eventually were dismissed, knowing the charges were pursued without probable cause.3 The

Magistrate Judge recommends that all of the Section 1983 claims be dismissed, subject to the right

of Plaintiff to file an amended complaint against DA Connick setting forth the necessary elements

to establish an unconstitutional policy or custom of the DA’s Office.4 The Magistrate Judge further

recommends that the Court decline to exercise supplemental jurisdiction over any state law

1 Rec. Doc. 14.

2 Rec. Doc. 4.

3 Id.

4 Rec. Doc. 7.

claims.5 In response, Plaintiff filed an Amended Complaint and objections to the Report and

Recommendation.6 For the reasons discussed in more detail below, the Amended Complaint does

not cure the pleading deficiencies identified by the Magistrate Judge. Accordingly, having

considered the Complaint, the Amended Complaint, the Report and Recommendation, Plaintiff’s

objections, the record, and the applicable law, the Court overrules the objections, adopts the Report

and Recommendation, and dismisses Plaintiff’s claims.

I. Background

A. Factual Background

On September 15, 2022, Plaintiff filed a complaint against Defendants in this Court.

Plaintiff alleges that on August 26, 2011, he was arrested by officers of the Jefferson Parish

Sheriff’s Office (“JPSO”) on charges of simple burglary of an inhabited dwelling, a charge that

was dismissed in November of 2011.7 Around the same time, JPSO re-booked him on a charge of

being a felon in possession of a firearm or carrying a concealed weapon.8 Plaintiff alleges that the

DA’s Office, which was headed by DA Connick, filed a bill of information and prosecuted him on

these charges without probable cause until the charges were dismissed on April 4, 2013.9 He

asserts that he remained incarcerated throughout that period.10

Plaintiff further alleges that, on December 11, 2013, he was arrested by officers of the

Harahan Police Department, a city within Jefferson Parish, and imprisoned on two charges of

5 Id.

6 Rec. Docs. 14 and 15.

7 Rec. Doc. 4 at 3.

8 Id.

9 Id.

10 Id.

simple burglary of an inhabited dwelling.11 He was rebooked on December 18, 2013, with two

additional charges of simple burglary of an inhabited dwelling.12 The DA’s Office filed a bill of

information on February 14, 2014, under 24th Judicial District Court (“24th JDC”) Case No. 14-

0064.13 According to Plaintiff, the DA’s Office prosecuted him on these charges without probable

cause until August 19, 2015, when the charges were dismissed.14

Plaintiff claims that, on May 19, 2016, he was arrested by JPSO officers for four charges

of simple burglary of an inhabited dwelling.15 The DA’s Office filed a bill of information on July

19, 2016, under 24th JDC Case No. 16-3960.16 According to Plaintiff, the DA’s office prosecuted

him on these charges without probable cause through February 7, 2022, when the charges were

dismissed.17 Plaintiff asserts that these charges were used to amplify the case in his trial on other

charges in 24th JDC Case No. 16-3781.18

Plaintiff further claims that, on August 16, 2016, he was arrested by JPSO officers for two

charges of simple burglary.19 The DA’s Office filed a bill of information on October 3, 2016, under

24th JDC Case No. 16-5822.20 According to Plaintiff, the DA’s Office prosecuted him on these

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

charges without probable cause through February 7, 2022, when the charges were dismissed.21

Plaintiff asserts that these charges also were used to amplify the case in his trial on other charges

in 24th JDC Case No. 16-3781.22

Plaintiff alleges that DA Connick is an official policymaker for the DA’s Office, which

prosecuted him without probable cause and subsequently terminated the cases against him.23 He

contends that the DA’s Office through DA Connick has “continually harassed and/or exercised

abuse of process by an execution of an unconstitutional practice, policy, or custom which inflicted

injury and damage upon plaintiff.”24 He alleges that the foregoing facts demonstrate a pattern of

similar incidents where he was prosecuted without probable cause with charges subsequently

terminated in his favor.25 He contends that this is “a persistent, wide spread, practice that is so

common and well settled as to constitute a custom that fairly represents municipal policy.”26

Plaintiff also alleges that the DA’s office through DA Connick, ADA Truhe, and ADA

Booth, prosecuted 24th JDC Case Nos. 16-3960 and 16-5822 to ensure a conviction in 24th JDC

Case No. 16-3781.27 He claims that the other 2016 cases were used as other crimes evidence to

obtain his illegal conviction on December 17, 2021, and then dismissed on February 7, 2022, in

21 Id.

22 Id.

23 Id. at 4.

24 Id.

25 Id.

26 Id.

27 Id.

his favor.28 He asserts that the DA’s Office demonstrated intentional indifference to the risk of

violating his constitutional and statutory rights.29

B. The Report and Recommendation

The Magistrate Judge recommends that any official capacity claims against ADA Truhe

and ADA Booth be dismissed because Plaintiff does not allege that they are final policymakers for

JPSO or the DA’s Office.30 The Magistrate Judge also recommends that any individual capacity

claims for monetary damages against ADA Truhe and ADA Booth be dismissed because they

enjoy absolute immunity from suit for conduct related to their roles and actions as prosecutors.31

The Magistrate Judge points out that Plaintiff’s claims against DA Connick in his official

capacity are the same as his claims against the DA’s Office and Jefferson Parish.32 The Magistrate

Judge recommends that Plaintiff’s malicious prosecution claim against DA Connick in his official

capacity as the District Attorney be dismissed because Plaintiff has not sufficiently alleged that

DA Connick acted pursuant to an unconstitutional municipal policy or custom.33 The Magistrate

Judge points out that Plaintiff failed to cite any facts to support his conclusory assertion that there

was no probable cause for the charges brought against him.34 Therefore, the Magistrate Judge

recommends that the official capacity claims against DA Connick be dismissed with prejudice but

subject to Plaintiff’s right to file an amended complaint setting forth additional facts to support

28 Id.

29 Id.

30 Rec. Doc. 15 at 9.

31 Id. at 9–10.

32 Id. at 11.

33 Id. at 11–13.

34 Id. at 13.

this claim.35 The Magistrate Judge also recommends that any individual capacity claims for

monetary damages against DA Connick be dismissed because he enjoys absolute immunity from

suit for conduct related to his actions as a prosecutor.36 Finally, the Magistrate Judge recommends

that this Court decline to exercise supplemental jurisdiction over any state law malicious

prosecution claim.37

C. The Amended Complaint

As directed in the Report and Recommendation, Plaintiff filed an amended complaint in

an attempt to clarify his claims against DA Connick.38 In the Amended Complaint, Plaintiff cites

multiple burglaries that occurred in Jefferson Parish, Orleans Parish, and St. Tammany Parish in

June and July of 2015.39 Plaintiff alleges that an individual named Dustin Johnson was a suspect

in these burglaries, and the police came to suspect Plaintiff was his accomplice.40 Plaintiff then

cites multiple burglaries that occurred in Jefferson Parish and St. Tammany Parish between

December 2015 and April 2016.41 Plaintiff alleges that an individual named Brian Ernst was a

suspect in these burglaries, and the police came to suspect Plaintiff was his accomplice.42 Plaintiff

states that he was arrested by JPSO officers on April 20, 2016. 43

35 Id.

36 Id. at 13–14.

37 Id. at 14–15.

38 Rec. Doc. 15.

39 Id. at 1–2.

40 Id. at 3.

41 Id. at 4–5.

42 Id. at 5.

43 Id. at 6.

Plaintiff alleges that these investigations ultimately led to him being charged in 24th JDC

Case Nos. 16-3781, 16-3960, and 16-5822.44 Plaintiff alleges that he was found guilty in 24th JDC

Case No. 16-3781 on December 17, 2021, and the DA’s Office dismissed the other cases on

February 7, 2022.45 Plaintiff alleges that these cases “were all simultaneously placed on Plaintiff

with the intent to amplify each individual case to ensure a conviction.”46 Plaintiff alleges that he

was “originally arrested through the wrongful institution of legal process.”47 Plaintiff alleges that

the investigating officer included numerous false statements and omitted relevant facts from the

arrest warrant.48 According to Plaintiff, the DA’s Office had no intention of bringing him to trial

in 24th JDC Case Nos. 16-3960 and 16-5822, as evidenced by the fact that the prosecutors

dismissed the charges shortly after his trial in 24th JDC Case No. 16-3781.49

II. Parties’ Arguments

In objection to the Report and Recommendation, Plaintiff states that he has established an

unofficial custom or policy of the DA’s Office that causes malicious prosecutions.50 Plaintiff

asserts that the DA’s Office filed multiple bills of information against him without probable cause,

and the prosecutors subsequently dismissed two of those cases in Plaintiff’s favor.51 He submits

44 Id. at 7–8.

45 Id. at 8.

46 Id.

47 Id.

48 Id.

49 Id. at 10.

50 Rec. Doc. 14 at 1.

51 Id.

that this is sufficient to show a policy or custom.52 Plaintiff acknowledges that a conviction was

secured in one case, but he states that he is currently appealing that case and is innocent of the

charges.53

III. Standard of Review

A. Review of the Magistrate Judge’s Report and Recommendation

When designated by a district court to do so, a United States Magistrate Judge may consider

prisoner petitions challenging the conditions of confinement and recommend his/her disposition

to the district court judge in accordance with the Magistrate Judge’s findings of fact and

determinations of law.54 A district judge “may accept, reject or modify the recommended

disposition” of a Magistrate Judge on a dispositive matter.55 The district judge must “determine de

novo any part of the [Report and Recommendation] that has been properly objected to.”56

However, a district court’s review is limited to plain error of parts of the report not properly

objected to.57

B. Standard for Frivolousness

A district court has broad discretion in determining the frivolous nature of a prisoner’s

complaint.58 A complaint is frivolous if it lacks an arguable basis in law or fact.59 A claim has no

52 Id.

53 Id.

54 28 U.S.C. § 636(b)(1)(B).

55 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

56 Fed. R. Civ. P. 72(b)(3).

57 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).

58 See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citations omitted).

59 Id.

arguable basis in law if “it is based on indisputable meritless legal theory.”60 It lacks a basis in

facts if “the facts alleged are clearly baseless.”61 If a court finds a prisoner’s claims are frivolous,

the court must dismiss the claims sua sponte.62

IV. Law and Analysis

A. Federal Claims

The Magistrate Judge recommended that any official capacity claims against ADA Truhe

and ADA Booth be dismissed because Plaintiff does not allege that they are final policymakers for

JPSO or the DA’s Office.63 The Magistrate Judge also recommended that any individual capacity

claims for monetary damages against DA Connick, ADA Truhe, and ADA Booth be dismissed

because they enjoy absolute immunity from suit for conduct related to their roles and actions as

prosecutors.64 Plaintiff did not object to these portions of the Report and Recommendation.65

Reviewing for plain error and finding none, the Court adopts these portions of the Report and

Recommendation.

With respect to any claims against DA Connick in his official capacity, the Magistrate

Judge recommended that Plaintiff be allowed to file an amended complaint setting forth additional

facts to show an unconstitutional municipal policy or custom of the DA’s Office.66 In response,

Plaintiff filed an Amended Complaint, which sets forth detailed facts regarding the police

60 Id.

61 Id.

62 See 28 U.S.C. § 1915A; 42 U.S.C. §1997e(c).

63 Rec. Doc. 15 at 9.

64 Id. at 9–10, 14–15. In the objections to the Report and Recommendation, Plaintiff does not argue that he

should be allowed to pursue a claim for declaratory relief against the prosecutors in their individual capacities.

65 Rec. Doc. 14.

66 Rec. Doc. 7 at 13.

investigation, his arrest and conviction in 24th JDC Case No. 16-3781, and the dismissal of 24th

JDC Case Nos. 16-3960 and 16-5822.67

When a state official is sued in their official capacity, it is treated “as a suit against the

entity.”68 A supervisory official, however, may not be held liable under Section 1983 based upon

a theory of vicarious liability or respondeat superior.69 Instead, a plaintiff must allege both (i)

“that a constitutional violation occurred” and (ii) “that a municipal policy was the moving force

behind the violation.”70 Under the latter, a plaintiff must show three things: (1) an “official policy

or custom ‘was a cause in fact of the deprivation of rights inflicted,’71 (2) the policy “served as a

moving force” behind the constitutional violation, 72 and (3) the policy was decided on by a

policymaker with “either actual or constructive knowledge of the alleged policy.”73

To satisfy the first requirement, the Supreme Court, in Monell v. Department of Social

Services of New York, set out the possible methods of showing a policy or custom: “(1) [an] express

policy of violating the Constitution, (2) a widespread practice or custom—even if that custom has

not received formal approval by an official decision-making body—or (3) a decision by an

individual with express policy-making authority.”74 Under Fifth Circuit precedent, a custom may

67 Rec. Doc. 15.

68 Kentucky v. Graham, 473 U.S. 159, 166 (1985).

69 Green v. Albertson’s, Inc., 67 F. App’x 248, at *2, n.3 (citing Monell v. Dep't of Soc. Serv., 436 U.S. 658,

691 (1978)).

70 Sanchez v. Young Cnty., Texas, 956 F.3d 785, 791 (5th Cir.), cert. denied, 141 S.Ct. 901 (2020).

71 Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997) (quoting Leffall v. Dallas

Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)).

72 Id. (internal citations and quotation marks omitted).

73 Cox v. City of Dallas, 430 F.3d 734, 748–49 (5th Cir. 2005) (citing Piotrowski v. City of Houston, 237

F.3d 567, 579 (5th Cir. 2001)).

74 Cardenas v. Lee Cnty., Tex., 569 F. App’x 252, 255 (5th Cir. 2014) (citing Monell, 436 U.S. at 690–91).

be evidenced by “a persistent, widespread practice of officials or employees, which, although not

authorized by officially adopted and promulgated policy, is so common and well-settled as to

constitute a custom that fairly represents the municipality’s policy.”75 To render a municipality

liable for such a custom, “actual or constructive knowledge” of the custom must be “attributable

to the governing body or officials to whom that body has delegated policy-making authority,”76

meaning that the actions “must have occurred for so long or so frequently that the course of conduct

warrants the attribution to the governing body of knowledge that the objectionable conduct is the

expected, accepted practice of city employees.”77 Isolated unconstitutional actions by employees

will almost never trigger liability.78 “A pattern requires similarity, specificity, and sufficiently

numerous prior incidents.”79

Despite being provided an opportunity to file an Amended Complaint, Plaintiff has not

asserted any facts to establish a policy or widespread practice. In the Amended Complaint, Plaintiff

alleges only that the DA’s Office dismissed two 2016 cases against his conviction in a third case.

Plaintiff does not describe any policy or custom of malicious prosecution or explain how such a

policy led to the constitutional violation he alleges. Plaintiff alleges only isolated incidents that

occurred in his case. These allegations are not sufficient to assert a practice or policy of malicious

prosecution under Monell.80

75 Piotrowski, 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en

banc)).

76 Webster, 735 F.2d at 841.

77 Id. at 842.

78 Piotrowski, 237 F.3d at 581.

79 Davidson v. City of Stafford, Tex., 848 F.3d 384, 396 (5th Cir. 2017) (emphasis added).

80 In the Amended Complaint, Plaintiff also references actions taken by Jefferson Parish Sherriff’s Officers

Deroche and Parent. Specifically, Plaintiff alleges that he was “originally arrested through the wrongful institution of

legal process.” Rec. Doc. 15 at 8. Plaintiff alleges that the investigating officer included numerous false statements

and omitted relevant facts from the arrest warrant. Id. It is unclear to the Court whether Plaintiff is attempting to also

B. State Law Claims

Finally, the Magistrate Judge recommends that this Court decline to exercise supplemental

jurisdiction over any state law malicious prosecution claim.81 Plaintiff does not object to this

portion of the Report and Recommendation. Therefore, the Court will decline to exercise

supplemental jurisdiction over any state law claims.82

V. Conclusion

For the foregoing reasons, the Court dismisses Plaintiff’s Section 1983 claims pursuant to

28 U.S.C. § 1915(e) and § 1915A as frivolous, for failure to state a claim for which relief can be

granted, and for seeking relief from immune defendants. The Court declines to exercise

supplemental jurisdiction over Plaintiff’s state law claims.

IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff’s objections and

ADOPTS the Report and Recommendation.

IT IS FURTHER ORDERED that Plaintiff’s Section 1983 claims against Defendants

District Attorney Paul D. Connick, Jr., Assistant District Attorneys Lindsay Truhe and Emily

Booth, each in their individual and official capacities, the Parish of Jefferson, and the Jefferson

Parish District Attorney’s Office, are DISMISSED WITH PREJUDICE.

bring claims against these officers because Plaintiff does not name them as additional defendants. Nevertheless, it

would be futile to grant Plaintiff leave to file a second amended complaint to name these officers as defendants. To

the extent that Plaintiff is challenging his arrest and conviction in Case 16-3781, such claims would be barred under

the Heck doctrine because a judgment on any claim that there was not probable cause to arrest him would necessarily

imply the invalidity of his state court conviction in Case 16-3781. See Heck v. Humphrey, 512 U.S. 477, 486–87

(1994); Walter v. Horseshoe Ent., 483 F. App’x 884, 887 (5th Cir. 2012) (“Heck therefore bars recovery for the false

arrest claim, because the conviction necessarily implies that there was probable cause for the arrest.”).

81 Rec. Doc. 7 at 14–15.

82 A court’s decision whether to exercise supplemental jurisdiction after dismissing every claim over which

it had original jurisdiction is purely discretionary. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).

Here, the Court elects to follow the “general rule [] to dismiss state claims when the federal claims to which they are

pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Ind., 972 F.2d 580, 585 (5th Cir. 1992).

IT IS FURTHER ORDERED that Plaintiffs state law claims are DISMISSED

WITHOUT PREJUDICE.

NEW ORLEANS, LOUISIANA, this 29th day of February, 2024.

NANNETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

13