Creel v. City of Baton Rouge/Parish of East Baton Rouge

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SIYA CREEL CIVIL ACTION

VERSUS

20-880-SDD-EWD

CITY OF BATON ROUGE/PARISH OF

EAST BATON ROUGE D/B/A BATON

ROUGE POLICE DEPARTMENT AND

MURPHY PAUL, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS CHIEF OF

POLICE

SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter is before the Court on the Motion for Preliminary Injunction filed by

Siya Creel (“Plaintiff”).1 Defendants City of Baton Rouge/Parish of East Baton Rouge,

d/b/a Baton Rouge Police Department, and Murphy Paul, individually and in his official

capacity as Chief of Police (“Defendants”) opposed this motion,2 and the Court held an

evidentiary hearing on the matter on March 3, 2021. After Plaintiff rested his case,

Defendants moved for a Rule 52(c) Judgment, which the Court granted and assigned oral

reasons therefor, and denied Plaintiff’s motion for injunctive relief. The Court reserved its

right to supplement those findings of fact and conclusions of law, and the Court now

supplements as set forth below.3 The Court hereby adopts and incorporates by reference

all oral reasons assigned on March 3, 2021.

1 Rec. Doc. No. 11.

2 Rec. Doc. No. 18. Plaintiff filed a Reply at Rec. Doc. No. 21.

3 To the extent that any finding of fact constitutes a conclusion of law, the court hereby adopts it as such,

and to the extent that any conclusion of law constitutes a finding of fact, the court hereby adopts it as

such.

I. MANDATORY PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is an “extraordinary and drastic remedy” that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.4 A plaintiff

seeking a preliminary injunction must establish (1) a substantial likelihood of success on

the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3)

that their substantial injury outweighs the threatened harm to the party whom they seek

to enjoin; and (4) that granting the preliminary injunction will not disserve the public

interest.5

The decision to grant or deny a preliminary injunction is discretionary with the

district court.6 However, because a preliminary injunction is an extraordinary remedy, it

“should not be granted unless the party seeking it has clearly carried the burden of

persuasion on all four requirements.”7 Consequently, the decision to grant a preliminary

injunction “is the exception rather than the rule.”8

In addition, mandatory preliminary relief “which goes well beyond simply

maintaining the status quo pendente lite, is particularly disfavored, and should not be

issued unless the facts and law clearly favor the moving party.”9 Because “[a]n

indispensable prerequisite to issuance of a preliminary injunction is prevention of

4 Munaf v. Geren, 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008).

5 Planned Parenthood Ass'n of Hidalgo Cty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012); accord

Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

6 Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

7 Suehs, 692 F.3d at 348.

8 Miss. Power & Light Co., 760 F.2d at 621.

9 Three Expo Events, L.L.C. v. City of Dallas, Texas, 182 F.Supp.3d 614, 622 (N.D. Tex. 2016)(quoting

Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)).

irreparable injury, [o]nly in rare instances is the issuance of a mandatory preliminary

injunction proper.”10

The purpose of a preliminary injunction is limited to preserving the relative

positions of the parties until a trial on the merits can be held.11 “Given this limited purpose,

and given the haste that is often necessary if those positions are to be preserved, a

preliminary injunction is customarily granted on the basis of procedures that are less

formal and evidence that is less complete than in a trial on the merits.”12 For this reason,

the findings of fact and conclusions of law made by a court deciding whether to grant a

preliminary injunction are not binding at trial on the merits.13

Evidence at the hearing established that Plaintiff was terminated by Defendants

on December 15, 2020. Therefore, the Court finds that Plaintiff seeks a mandatory

preliminary injunction.

II. EXHAUSTION OF REMEDIES

The Court has subject matter jurisdiction over the First Amendment and Fourth

Amendment constitutional claims asserted by Plaintiff. Redress for civil rights violations

pursuant to 42 U.S.C. § 1983 does not require exhaustion of state law remedies or

procedures.14 In Patsy v. Board of Regents,15 the Supreme Court categorically rejected

any such impediment to bringing a Section 1983 suit. The Court found that imposing an

exhaustion requirement would be inconsistent with Congress' intent in enacting section

1983, i.e., protecting individuals' basic federal rights against incursions by state power.16

10 Tate v. American Tugs, Inc., 634 F.2d 869, 870 (5th Cir. 1981) (internal quotation marks omitted).

11 Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).

12 Id.

13 Id.

14 See Myrick v. City of Dallas, 810 F.2d 1382, 1388 (5th Cir.1987).

15 457 U.S. 496 (1982).

16 Id. at 503, 102 S.Ct. at 2561.

Where a plaintiff can successfully prove, by a clear and substantial likelihood of success

on the merits, that a person acting under color of law deprived him of a right guaranteed

by the Constitution or laws of the United States, the plaintiff need not demonstrate

exhaustion of administrative remedies as federal law imposes no such requirement, and

overlapping state remedies are generally irrelevant to the question of whether a cause of

action exists under section 1983.17

The Court lacks jurisdiction over Plaintiff’s ADA claims at this stage for two

reasons. First, there is an issue of fact, not resolved to the Court’s satisfaction, as to

whether Plaintiff’s ADA claim was exhausted through the EEOC. Second, the Court finds

that Plaintiff’s ADA claims must also be exhausted via the state administrative remedy

procedures provided by state law. In Pike v. Office of Alcohol & Tobacco Control of the

Louisiana Dep't of Revenue, the plaintiff sued her employer state agency for disability

discrimination, harassment, and retaliation under the ADA & the LEDL.18 The plaintiff

sought reinstatement to her position, back and front pay, and restoration of full seniority

rights and other benefits.19 Judge deGravelles held that the Civil Service Commission

“ha[d] exclusive jurisdiction over termination claims, including termination claims based

on disability discrimination.”20 However, the Court also held that it had jurisdiction over

the plaintiff’s general state tort damages because “the CSC has no authority to provide

for general tort damages.”21 As was established at the preliminary injunction hearing,

the Court did consider the damages aspect of Plaintiff’s requested relief.

17 Zinermon v. Burch, 494 U.S. 113, 124, 110 S.Ct. 975, 982, 108 L.Ed. 22 100 (1990).

18 157 F. Supp. 3d 523 (M.D. La. 2015). Although Plaintiff correctly notes that his appeal is to the Police

Civil Service Board, not the Civil Service Commission, the Court finds that Pike is still instructive in principle.

19 Id. at 529.

20 Id. at 540.

21 Id. at 541 (citing Stevenson v. Williamson, 547 F.Supp.2d 544, 557 (M.D. La. 2008).

III. FIRST AMENDMENT FREEDOM OF SPEECH/ASSOCIATION

The Court finds that Plaintiff only vaguely pled a facial challenge to the BRPD

social media policy, and Plaintiff did not brief any legal principles regarding a facial

constitutional challenge; Plaintiff only articulated this challenge in arguing against

Defendant’s Rule 52 motion at the preliminary injunction hearing. Plaintiff’s briefing and

presentation of his case at the hearing focused on an as-applied challenge to the BRPD

social media policy. Issues such as vagueness and overbreadth have not been alleged,

briefed, or supported with evidence or testimony. Indeed, relief in the form of the Court

declaring the BRPD social medial policy unconstitutional on its face is not sought in

Plaintiff’s Amended Complaint22 or his Supplement Motion for Injunctive Relief.23 As

such, the Court considered Plaintiff’s First Amendment claims as an “as-applied”

challenge to the BRPD social media policy.

As stated in oral reasons, the Court finds that there are issues of fact regarding

whether Defendants lawfully applied the BRPD social media policy to Plaintiff in retaliation

for his speech and union activity. However, the Court also stated that Plaintiff’s credibility

was seriously undermined at the hearing because, on several key points, Plaintiff’s sworn

hearing testimony and supporting evidence inexplicably controverted his sworn Affidavit.

Primarily for this reason, the Court found that Plaintiff could not satisfy the very heavy

burden of demonstrating a clear likelihood of success on the merits such that a mandatory

preliminary injunction should issue.

22 Rec. Doc. No. 14.

23 Rec. Doc. No. 11.

Courts have consistently held that preliminary injunctions are not appropriate in

cases permeated with factual disputes.24 In Van Nortrick v. Lavespere, Judge

deGravelles in another section of this Court denied a prisoner’s motion for a preliminary

injunction, finding:

“While Plaintiff has presented evidence indicating that he might win at a trial

on the merits, there are too many unresolved issues of fact and medical

expert opinion to conclude on the record before it that there is a “substantial

likelihood” of success so as to warrant a preliminary injunction.”25

This Court also denied a request for similar injunctive relief in Randolph v. East Baton

Rouge Parish School Board,26 an employment dispute where plaintiff claimed she had

been constructively discharged after being subjected to discrimination and harassment

and sought a preliminary injunction at the inception of the case seeking that the defendant

school board be ordered to follow its own policies and procedures and enjoined from

“harassing, intimidating, and humiliating” the plaintiff.

Accordingly, while Plaintiff has presented evidence such that he may succeed at

trial on this claim, considering the extremely high burden applied to this motion, there are

too many unresolved issues of fact to warrant a mandatory preliminary injunction.

IV. FOURTH AMENDMENT CLAIMS

The Court found that Plaintiff failed to demonstrate a substantial likelihood of

success on the merits as to his Fourth Amendment claim that he had a reasonable

expectation of privacy in his work emails, and the Defendants’ audit of his work computer

24 Goodman v. Dell Publishing Co., 1995 WL 301380, *2 (E.D. La. May 15, 1995).

25 2019 WL 852121, *5 (M.D. La. Feb. 22, 2019)(citing Cement Enamel Dev., Inc. v. Cement Enamel of

New York, Inc., 186 F. Supp. 803, 804 (D.C.N.Y. 1960)(“ Where issues of fact are involved, the drastic

remedy of preliminary injunction should not be granted until the facts have been tested out in the crucible

of oral examination and cross-examination.”)).

26 2016 WL 3579224 (M.D. La. June 28, 2016).

was unlawful. Evidence was admitted demonstrating that Plaintiff signed an

acknowledgment of the BRPD’s right to access officers’ work computers at any time.

Further, In Pack v. Wood County, Texas, the court held that a county employee did not

have a reasonable expectation of privacy in his work computer because the computer

was in the employee's work office, was owned by and paid for by the county, and was

provided to the employee in connection with his duties as Justice of the Peace.27 Other

than conclusory statements and speculative accusations, the employee put forth no

meaningful evidence that he had a subjective expectation of privacy in his county-owned

computer. Relying on long-settled Fifth Circuit jurisprudence, the court explained:

A Fourth Amendment analysis requires a determination of whether Plaintiff

had a constitutionally protected reasonable expectation of privacy. United

States v. Ward, 561 F.3d 414, 417 (5th Cir.2009). Plaintiff had a reasonable

expectation of privacy if he can show an actual, subjective expectation of

privacy with regard to his work computers and if he can show an objectively

reasonable expectation of privacy as well. Id. Employees' expectations of

privacy in the workplace are reviewed on a case-by-case basis. O'Conner

v. Ortega, 480 U.S. 709, 718, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). While

private employees may have a reasonable expectation of privacy, id. at 716,

public employees' expectation of privacy may be reduced by office

practices, procedures, or legitimate regulation. Id. at 717. Further, a

public employee's privacy interest in his or her place of work is far

less than that in their home or other personal places. Ortega, 480 U.S.

at 725.28

Plaintiff relied heavily on the Supreme Court’s decision in City of Ontario, Cal. v.

Quon, wherein a police officer brought a Section 1983 action against the city and other

defendants alleging that the department’s review of the officer’s text messages violated

the Fourth Amendment.29 Notably, the Quon Court stated that, under the approach of the

O'Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for

27 No. CIV.A. 6:08CV198, 2009 WL 1922897 (E.D. Tex. July 1, 2009).

28 Id. at *8 (emphasis added).

29 560 U.S. 746 (2010).

the “investigatio[n] of work-related misconduct,” a government employer's warrantless

search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are

reasonably related to the objectives of the search and not excessively intrusive in light

of’” the circumstances giving rise to the search.” 30 Ultimately, the Quon Court found that

the plaintiff’s constitutional rights were not violated:

Furthermore, and again on the assumption that Quon had a reasonable

expectation of privacy in the contents of his messages, the extent of an

expectation is relevant to assessing whether the search was too intrusive.

Even if he could assume some level of privacy would inhere in his

messages, it would not have been reasonable for Quon to conclude that his

messages were in all circumstances immune from scrutiny. Quon was told

that his messages were subject to auditing. As a law enforcement officer,

he would or should have known that his actions were likely to come

under legal scrutiny, and that this might entail an analysis of his on-

the-job communications. Under the circumstances, a reasonable

employee would be aware that sound management principles might

require the audit of messages to determine whether the pager was

being appropriately used. Given that the City issued the pagers to Quon

and other SWAT Team members in order to help them more quickly

respond to crises—and given that Quon had received no assurances of

privacy—Quon could have anticipated that it might be necessary for the City

to audit pager messages to assess the SWAT Team's performance in

particular emergency situations.

From OPD's perspective, the fact that Quon likely had only a limited privacy

expectation, with boundaries that we need not here explore, lessened the

risk that the review would intrude on highly private details of Quon's life.

OPD's audit of messages on Quon's employer-provided pager was not

nearly as intrusive as a search of his personal e-mail account or pager, or

a wiretap on his home phone line, would have been. That the search did

reveal intimate details of Quon's life does not make it unreasonable, for

under the circumstances a reasonable employer would not expect that such

a review would intrude on such matters. The search was permissible in

its scope.31

Courts have noted the limitations of the Quon decision. In Adkisson v. Paxton, the

court stated: “The Supreme Court's opinion in Quon does not establish a broad right to

30 Id. at 761.

31 Id. at 762-63 (emphasis added).

privacy that would necessarily protect public information contained in a government

official's personal e-mail account. Here, as in Quon, it would not be reasonable for the

Commissioner to conclude that his communications were in all circumstances immune

from scrutiny.”32

At the close of Plaintiff’s case on this motion, applying the jurisprudence to the

facts, the Court found that Plaintiff failed to demonstrate a clear and substantial likelihood

of success on the merits of his Fourth Amendment claim as it relates to his work emails.

Plaintiff claims Defendants’ December 15, 2020 Press Release addressing

Plaintiff’s termination attached a photograph of Plaintiff in violation of La. R.S. 40:2532,

and a subsequent press release disclosing Plaintiff’s health care insurance coverage

information. The court questions its jurisdiction over these claims as they allege violations

of Louisiana statutes; thus, the Court may lack jurisdiction over such matters if they are

pending before the Police Civil Service Board, for which Plaintiff has a hearing date next

month. Further, these claims are irrelevant to prospective injunctive relief.

Notably, Chapter 40 is entitled “Rights of a Law Enforcement Officer While Under

Investigation.” And, Section 2531 limits its applicability to “police employees” as defined

by § 40:1372(5), which defines a “’police employee’ [as] any employee who is assigned

to police work as a police offer pursuant to R.S. 40:1739.” Thus, it was not established to

a certainty that Plaintiff was protected by these statutes as the information was released

when he was no longer a police officer. On the other hand, if Plaintiff proves violations of

these statutes that should have protected him, damages for proven violations on the part

of the Defendants are available to compensate any harm. As stated previously, Plaintiff

32 459 S.W.3d 761, 776-77 (Tex.App.-Austin 2015)(citations omitted).

may succeed on these claims at trial; however, Plaintiff has failed to carry his particularly

high burden for issuance of a mandatory preliminary injunction.

Accordingly, for the foregoing reasons and the oral reasons assigned on March 3,

2021, Plaintiff’s Motion for Preliminary Injunction is DENIED.33

Baton Rouge, Louisiana, this 8th day of March, 2021.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

33 Rec. Doc. No. 11.