Holmes v. White

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL R. HOLMES CIVIL ACTION

VERSUS No. 23-1247

ROBERT M. WHITE ET AL. SECTION I

ORDER & REASONS

Before the Court is a motion1 for summary judgment filed by defendants Daniel

R. Martiny (“Martiny”) and Sheriff Gerald A. Turlich, Jr. (“Turlich”) (collectively,

“defendants”). Pro se plaintiff Michael R. Holmes (“Holmes”) has not filed any

opposition to the motion, and the deadline for doing so has passed.2 For the reasons

that follow, the Court grants the motion in part and denies it without prejudice in

part.

I. FACTUAL BACKGROUND

The Court set forth the factual background of this lawsuit in a previous order

and reasons.3 This lawsuit arises from a September 23, 2018 incident in which

Holmes alleges he was “unreasonably detained, assaulted and battered, and

unlawfully arrested by deputies of the Plaquemines Parish Sheriff’s Office” after he

was seen taking photographs of a carnival amusement ride at a Catholic school’s fair

1 R. Doc. No. 54.

2 During a status conference held on April 30, 2024, the Court set a briefing schedule

for defendants to file the present motion for summary judgment. R. Doc. No. 53, at 2.

Pursuant to that briefing schedule, defendants’ deadline to file their motion was May

14, 2024. Id. Holmes’s deadline to respond to such motion was May 22, 2024. Id.

Defendants timely filed their motion. To date, Holmes has not filed any response.

3 See R. Doc. No. 44, at 1–5.

event.4 This is Holmes’s second federal lawsuit relating to this incident.

In Holmes’s first lawsuit pursuant to 42 U.S.C. § 1983, this Court held a three-

day jury trial.5 On May 17, 2023, the jury found Sheriff’s Deputy Corbett Reddoch

(“Reddoch”) liable to Holmes for Fourth Amendment violations, state-law battery,

state-law false arrest or imprisonment, and state-law malicious prosecution.6

Martiny represented Reddoch and other defendants, including Turlich, in that

litigation.7 Following the jury verdict, this Court entered judgment in Holmes’s

favor.8 That judgment is now on appeal to the U.S. Court of Appeals for the Fifth

Circuit.9

Holmes initially filed the instant lawsuit asserting claims only against

defendants Charles J. Ballay (“Ballay”), individually and in his official capacity as

district attorney of Plaquemines Parish, and Robert M. White (“White”), individually

and in his official capacity as assistant district attorney.10 After Ballay and White

filed a motion to dismiss Holmes’s original complaint,11 the Court granted Holmes

leave to file an amended complaint.12

Holmes’s amended complaint, brought pursuant to 42 U.S.C. § 1983, alleges

4 R. Doc. No. 23, ¶ 10.

5 E.D. La. Case No. 19-12749, R. Doc. No. 205 (minute entry for jury trial).

6 Id.

7 See generally E.D. La. Case No. 19-12749 (docket sheet).

8 E.D. La. Case No. 19-12749, R. Doc. No. 230 (judgment).

9 E.D. La. Case No. 19-12749, R. Doc. No. 231 (notice of appeal).

10 See generally R. Doc. No. 1. The Court notes that Holmes’s later-filed amended

complaint did not name White “individually and in his official capacity as assistant

district attorney.” See R. Doc. No. 44, at 1 n.2 (citing R. Doc. No. 23, ¶¶ 5, 94).

11 R. Doc. No. 10.

12 R. Doc. No. 20.

that Ballay and White violated his First, Fourth, and Fifth Amendment rights.13 It

further alleges that Ballay and White committed several Louisiana state-law torts,

including infliction of emotional distress, defamation, fraud, and abuse of process.14

Holmes’s amended complaint also added Turlich, Martiny, and Martiny & Associates,

LLC as defendants and asserted the same claims against these new defendants.15

On February 22, 2024, the Court granted Ballay’s and White’s second motion

to dismiss Holmes’s claims against them pursuant to Federal Rule of Civil Procedure

12(b)(6).16 Turlich, Martiny, and Martiny & Associates, LLC did not join in that

motion.

On April 30, 2024, the Court held a status conference with Holmes and counsel

for the remaining defendants.17 During this conference, Holmes narrowed his

outstanding claims against those defendants to include only: (1) a federal § 1983 claim

for conspiring with the district attorney’s office to prevent Holmes’s earlier § 1983

claim from going forward by “manufacturing a Heck bar” and threatening him with

state criminal charges; and (2) various state-law claims, including defamation and

malicious prosecution claims.18

Following the conference, Holmes also advised the Court that he did not intend

to proceed with his claims against Martiny & Associates, LLC.19 Accordingly, the

13 R. Doc. No. 23, ¶¶ 69–72.

14 Id. ¶¶ 75–79.

15 Compare R. Doc. No. 1 with R. Doc. No. 23.

16 R. Doc. No. 44.

17 R. Doc. No. 53 (minute entry following status conference).

18 Id. at 1.

19 See R. Doc. Nos. 55, 57, 58.

Court dismissed those claims.20

Holmes’s amended complaint alleges that, on December 6, 2018, Ballay and

White charged Holmes with one count of resisting an officer in violation of Louisiana

Revised Statute § 14:108.1 despite knowing that the charge was baseless.21 According

to Holmes, Ballay and White filed the charge in order “to extract or coerce an

agreement by [Holmes] to forego filing a civil claim against Sheriff [Turlich] and the

[S]heriff’s deputies.”22 White allegedly reviewed Holmes’s photos and stated they

were “innocuous.”23 However, Holmes asserts that White “refused to dismiss the

charge unconditionally and . . . insisted that [Holmes] agree to an ‘informal diversion’

and to forego civil action.”24 Holmes asserts that the purpose of the diversion

agreement was “to protect the Sheriff and his deputies from civil liability” pursuant

to Heck v. Humphrey, 512 U.S. 477 (1994).25 Holmes pleaded not guilty to the charge

and continued to refuse to agree to any arrangement requiring him to give up his

right to file a civil lawsuit.26

Nevertheless, the state court record reflected a minute entry dated September

24, 2019 which read: “On motion of the State, this matter is dismissed. Completed

informal diversionary program.”27 According to the minute entry, the district court

20 R. Doc. No. 55.

21 R. Doc. No. 23, ¶¶ 29–37.

22 Id. ¶ 37.

23 Id. ¶ 38.

24 Id.

25 Id. ¶ 44.

26 Id. ¶¶ 38–41.

27 Id. ¶ 42.

judge, the assistant district attorney, and the district court reporter were present in

court at the time of the dismissal.28 Holmes alleges that he was unaware of the minute

entry until Martiny mentioned it in a motion for summary judgment filed in Holmes’s

original civil rights lawsuit before this Court.29 In August 2021, Holmes filed a motion

to correct the minute entry, asserting that the minute entry was inaccurate because

it was based on his completion of a pretrial diversion program which he did not

complete. State v. Holmes, 338 So. 3d 46, 46 (La. App. 4th Cir. 2022).30 The state court

denied Holmes’s motion, but it noted that his criminal case seemed to be active

because the record contained no written record of a dismissal. Id. at 47.

On October 8, 2021, Holmes filed a motion to quash the bill of information

based on the expiration of the one-year time limitation for trial for misdemeanors

pursuant to Louisiana law. Id. The State opposed the motion to quash, arguing that

the district attorney had already orally dismissed Holmes’s case, as evidenced by the

minute entry. Id. at 47–48. The state district court held a hearing on the motion to

quash and found that Louisiana law “require[d] the State to either file a written

statement of dismissal in the court record or dismiss the bill of information orally in

open court.” Id. at 48. Because there was neither a written statement of dismissal in

the record nor a transcript reflecting an oral dismissal made in open court, the state

district court granted Holmes’s motion to quash. Id. at 48. The State appealed. Id.

28 Id.

29 Id.

30 The Court notes that Holmes attached this Louisiana Fourth Circuit Court of

Appeal opinion to his amended complaint. See id. at 24–31.

On April 13, 2022, the Louisiana Fourth Circuit Court of Appeal affirmed the

state district court’s decision to quash the bill of information. Id. at 49. In so doing,

the appellate court noted that Holmes had “cast[] doubt on the accuracy of

the . . . minute entry.” Id. at 49. Again, according to Holmes, the minute entry’s

assertion that Holmes had agreed to an informal diversion “was nothing more than

an attempt to obtain protection from suit for [Turlich].”31

Holmes’s amended complaint also asserts that, during the course of Holmes’s

original civil rights lawsuit in this Court, Martiny, while acting as Turlich’s agent,

conspired with Ballay and White to deprive Holmes of his constitutional rights.32

Martiny allegedly threatened Holmes that he would contact the district attorney and

ask them to reinstate the charge against Holmes.33 The complaint also asserts that

Martiny and Turlich “improperly withheld the names and identities of witnesses and

potential witnesses and the substance of any statements or information provided by

them.”34 Further, Holmes alleges that Martiny, while acting as Turlich’s agent,

defamed Holmes by falsely portraying Holmes “as a person who was a threat to the

safety of others, and a sexual predator[,]” including by arguing in a brief to the Fifth

Circuit that Holmes’s conduct satisfied the elements of the crime of video voyeurism.35

Finally, Holmes alleges that Turlich “continues to defame [Holmes] . . . in recent

postings on social media and other statements regarding the civil litigation, falsely

31 Id. ¶ 49.

32 Id. ¶¶ 61, 67.

33 Id.

34 Id. ¶¶ 62–63.

35 Id. ¶¶ 65–66.

portraying [Holmes] as a threat to the safety of children and other citizens.”36

In their motion for summary judgment, Martiny and Turlich argue that

Holmes’s § 1983 claim against them is prescribed, that Holmes’s state-law claims

against them are prescribed, that Holmes’s federal claims against Turlich in his

official capacity fail as a matter of law, and that Holmes’s state-law defamation claim

fails as a matter of law.37 Martiny and Turlich also assert that Holmes’s remaining

claims are “so unintelligible that they do not warrant a response.”38 As mentioned,

Holmes did not file any opposition, and the deadline for doing so has passed.

II. STANDARD OF LAW

Summary judgment is proper when, after reviewing the materials in the

record, a court determines that there is “no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]

party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary

judgment need not produce evidence negating the existence of a material fact; it need

only point out the absence of evidence supporting the other party’s case. Id.; see also

Fontenot v. Upjohn Co., 780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound

reason why conclusory allegations should suffice to require a trial when there is no

36 Id. ¶ 68.

37 R. Doc. No. 54-1, at 9-17.

38 Id. at 17.

evidence to support them even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine dispute is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine dispute of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

The party responding to the motion for summary judgment may not rest upon

the pleadings but must identify specific facts that establish a genuine issue.

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255. If the nonmovant fails to meet its burden of showing a genuine

dispute for trial that could support a judgment in favor of the nonmovant, summary

judgment must be granted. See Little, 37 F.3d at 1075–76.

III. ANALYSIS

a. Time Bars

i. Federal Claims

Defendants first argue that Holmes’s § 1983 claim against them is prescribed

and that they are therefore entitled to summary judgment on that claim.39 As

explained, during a status conference with the Court, Holmes clarified that his only

remaining federal claim against defendants is a § 1983 claim for conspiring with the

district attorney’s office to prevent his earlier § 1983 claim from going forward by

manufacturing a Heck bar and threatening him with state criminal charges.40

As the Court previously explained, “[t]he limitations period for § 1983 claims

is determined by state personal injury law.” Walker v. Epps, 550 F.3d 407, 411 (5th

Cir. 2008). The applicable period in this case is one year. See La. Civ. Code Ann. art

3492 (“Delictual actions are subject to a liberative prescription of one year.”).

While Louisiana law determines the limitations period for Holmes’s § 1983

claims, federal law determines the accrual of these claims. Walker, 550 F.3d at 414.

Pursuant to federal law, an action accrues when a plaintiff has “a complete and

present cause of action” or when “the plaintiff can file suit and obtain relief.” Id.

(quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)). “[T]he limitations period begins

to run ‘the moment the plaintiff becomes aware that he has suffered an injury or has

sufficient information to know that he has been injured.’” Id. (quoting Piotrowski v.

39 R. Doc. No. 54-1, at 9–12.

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

City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)). In the context of a § 1983

conspiracy claim, “any cause of action against [the] defendants accrue[s] as soon as

[the] plaintiff knew or should have known of the overt acts involved in the alleged

conspiracy.” Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987); see also Baptiste

v. Decou, No. 19-CV-488, 2019 WL 3022029, at *2 (W.D. La. June 3, 2019) (quoting

Helton, 832 F.2d at 335).41

Holmes filed the instant lawsuit on April 13, 2023.42 To the extent that Holmes

contends that the allegedly falsified minute entry constitutes an “overt act” in an

alleged civil rights conspiracy against him, the Court has already held that, as a

matter of law, any § 1983 claim related to the minute entry accrued at least as early

as September 28, 2021.43 On that date, Holmes filed a supplemental memorandum in

support of his state-court motion to correct the minute entry, making many of the

same allegations he has made in the present lawsuit.44 Accordingly, any claim

pertaining to the allegedly falsified minute entry is prescribed. Additionally, to the

extent Holmes’s federal § 1983 claim is analogous to a malicious prosecution claim,

Holmes’s prosecution “ended without a conviction” in 2021, when the state trial court

41 The Court notes that Martiny is a private citizen and that, “[f]or a private

citizen . . . to be held liable under section 1983, the plaintiff must allege that the

citizen conspired with or acted in concert with other state actors.” Priester v. Lowndes

Cnty., 354 F.3d 414, 420 (5th Cir. 2004). “The plaintiff must allege (1) an agreement

between the private and public defendants to commit an illegal act and (2) a

deprivation of constitutional rights.” Id. Martiny has not argued that, as a matter of

law, Holmes cannot meet his burden of showing an agreement between Martiny and

the public defendants to commit an illegal act.

42 R. Doc. No. 1.

43 See R. Doc. No. 44, at 11.

44 See id.

granted Holmes’s motion to quash the bill of information and is also therefore

prescribed.45 Summary judgment is therefore appropriate on those claims.

However, to the extent Holmes argues that Martiny’s conduct “[d]uring the

course of the civil litigation in Holmes v. Reddoch” constituted an overt act,46 the

Court cannot determine whether claims related to this alleged conduct have

prescribed. Holmes’s complaint provides no information about the date of Martiny’s

alleged threats regarding criminal prosecution.47 And, despite bearing the burden of

informing the Court of the basis for their motion for summary judgment and

identifying portions of the record they believe demonstrate the absence of a genuine

issue of material fact, defendants have not pointed the Court to any evidence that

Holmes learned of Martiny’s conduct in this respect more than one year before April

13, 2023. See Celotex Corp., 477 U.S. at 323.48

Accordingly, the Court will grant defendants’ motion for summary judgment

with respect to Holmes’s claims pertaining to the minute entry and alleged

manufacturing of a Heck bar as prescribed. However, the Court lacks sufficient

information to determine whether Holmes’s civil rights conspiracy claim based on

Martiny’s conduct during the Holmes v. Reddoch litigation, specifically, the alleged

45 Id. at 11–12 (quoting Thompson v. Clark, 596 U.S. 36, 39 (2022)). The Court also

previously explained that nothing in the record suggested there was any basis for

applying Louisiana’s contra non valentem principle to toll prescription. Id. at 12–14.

46 R. Doc. No. 23, ¶¶ 61–64.

47 The only timeframe mentioned in the complaint is that the alleged wrongdoing

occurred “[d]uring the course of the civil litigation in Holmes v. Reddoch[.]” Id. ¶¶ 61–

62. The Holmes v. Reddoch litigation began in 2019 and is presently ongoing.

48 The Court notes that defendants also have not made any other arguments for

dismissing these claims.

threats of criminal prosecution, is prescribed.49

ii. State-Law Claims

Like Holmes’s federal claims, Holmes’s state-law tort claims are subject to a

one-year prescriptive period pursuant to article 3492 of Louisiana’s Civil Code.

Defendants therefore argue that Holmes’s state-law claims are time-barred.50 To the

extent Holmes’s state claims against defendants overlap with his federal claims

related to the minute entry, the Court finds that those claims are time-barred as set

forth in the previous subsection. However, to the extent Holmes’s state claims pertain

to Martiny’s alleged conduct during the course of the Holmes v. Reddoch litigation,

defendants have not met their burden of demonstrating that they are entitled to

judgment as a matter of law.

With respect to Holmes’s defamation claim against defendants, that claim

appears to be based on Martiny’s “portray[al]” of Holmes during the Holmes v.

Reddoch case.51 The only specific example of defamation the complaint offers is that,

in a brief to the Fifth Circuit, Martiny “gratuitously asserted that [Holmes] was

acting for a lewd and lascivious purpose’, asserting that, other than motive, ‘each and

every one of the elements (of the crime of Video Voyeurism) is actually satisfied.’”52

As defendants note, the brief in question appears to have been filed with the Fifth

49 Although Holmes’s amended complaint contains certain allegations about

Martiny’s conduct during discovery in Holmes v. Reddoch, as noted, Holmes has since

narrowed his claims to focus only on the allegedly manufactured Heck bar and the

alleged threats of criminal prosecution. R. Doc. No. 53.

50 R. Doc. No. 54-1, at 12.

51 R. Doc. No. 23, ¶ 65.

52 Id.

Circuit on July 21, 2021.53 On December 14, 2021, the Fifth Circuit issued an opinion

granting Holmes’s motion to supplement the record with evidence of the state court’s

recent order quashing his criminal charge.54 Based on this opinion, the Fifth Circuit

vacated this Court’s prior judgment and remanded the matter for further

proceedings.55 The Fifth Circuit also issued a judgment on that date, and the mandate

issued on January 5, 2022.56

Pursuant to Louisiana law, an action arising from allegedly defamatory

statements made in a judicial proceeding “cannot be brought by a party to the judicial

proceeding until the proceeding is terminated.” Doe v. Roman Cath. Church of

Archdiocese of New Orleans, 588 F. Supp. 3d 698, 720 (E.D. La. 2022) (Morgan, J.)

(quoting Calvert v. Simon, 311 So. 2d 13, 15 (La. App. 2d Cir. 1975)). As explained,

the Fifth Circuit issued its judgment in Case No. 21-30164 on December 14, 2021 and

the mandate issued on January 5, 2022. Accordingly, Holmes’s claim based on

statements made during these proceedings prescribed before April 13, 2023.57

b. Claims Against Turlich in his Official Capacity

The Court next addresses defendants’ argument that Holmes’s complaint fails

to state a § 1983 claim against Turlich in his official capacity pursuant to pursuant

53 5th Cir. Case No. 21-30164, R. Doc. No. 18, at 17–18.

54 5th Cir. Case No. 21-30164, R. Doc. No. 57-1.

55 See id.

56 5th Cir. Case No. 21-30164, R. Doc. No. 62-2.

57 Alternatively, if that judgment did not terminate the judicial proceedings because

the case is again before the Fifth Circuit on appeal following a jury verdict, see 5th

Cir. Case No. 23-30424, Holmes’s defamation claim would be premature since

appellate proceedings are ongoing.

to Monell v. Department of Social Services, 436 U.S. 658, 694 (1978).58

“A suit against a government officer ‘in his official capacity’ is the same as a

suit against the government entity of which he is an agent.” Jason v. Par. of

Plaquemines, No. 16-2728, 2017 WL 993152, at *5 (E.D. La. Mar. 15, 2017) (Vance,

J.) (citing Burge v. Par. of St. Tammany, 187 F.3d 452, 468 (5th Cir. 1999)). “Section

1983 offers no respondeat superior liability.” Pineda v. City of Houston, 291 F.3d 325,

328 (5th Cir. 2002). However, municipalities like Plaquemines Parish “face § 1983

liability ‘when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury . . . .’” Id. (quoting Monell, 436 U.S. at 694).

“Section 1983 municipal liability requires proof of three elements: (1) a

policymaker, (2) an official policy or custom, and (3) a violation of constitutional rights

whose ‘moving force’ is that policy or custom.” Jason, 2017 WL 993152, at *5 (citing

Davis v. Tarrant Cty., Tex., 565 F.3d 214, 227 (5th Cir. 2009)). “Thus, a plaintiff

seeking to impose liability on a municipality under section 1983 must ‘identify a

municipal policy or custom that caused the plaintiff’s injury.’” Id. (quoting Bd. of Cty.

Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403–04 (1997)).

Holmes’s Monell claim against Turlich in his official capacity as Sheriff of

Plaquemines Parish fails as a matter of law. As explained, municipal liability

requires proof of an “official policy or custom” as the second element. Jason, 2017 WL

993152, at *5. “The existence of a policy can be shown through evidence of an actual

58 R. Doc. No. 54-1, at 13–14.

policy, regulation, or decision that is officially adopted and promulgated by

lawmakers or others with policymaking authority.” Valle v. City of Houston, 613 F.3d

535, 542 (5th Cir. 2010) (citing Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th

Cir.2003)). Nothing in Holmes’s complaint suggests that any “official policy or

custom” existed with respect to Holmes’s allegations against Turlich. And, as stated,

Holmes did not oppose the instant motion. Accordingly, defendants are entitled to

summary judgment dismissing any Monell claim against Turlich.

IV. CONCLUSION

For the foregoing reasons,

IT IS ORDERED that defendants’ motion for summary judgment is

GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. The

motion is GRANTED in that Holmes’s § 1983 claim against Martiny and Turlich

with respect to manufacturing a Heck bar, Holmes’s state-law claims against Martiny

and Turlich with respect to manufacturing a Heck bar, Holmes’s state-law defamation

claim, and Holmes’s claims against Turlich in his official capacity are DISMISSED

WITH PREJUDICE. The motion is DENIED WITHOUT PREJUDICE to

defendants’ right to re-urge it with respect to Holmes’s remaining federal and state-

law claims regarding Martiny’s alleged threats of criminal prosecution.

New Orleans, Louisiana, May 28, 2024.

en__

UNITED STAPES DISTRICT JUDGE

15