# Plumbar v. Landry

> District Court, M.D. Louisiana · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10191994

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

dfsUNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LLOYD PLUMBAR CRIMINAL ACTION

VERSUS
NO.20-00361-BAJ-RLB
JEFF LANDRY, ET AL.

RULING AND ORDER

Before the Court is Defendant, Scott Perrilloux’s Motion to Dismiss
Pursuant to Rule 12(b)(6) for Failure to State a Claim Upon Which Relief
Can Be Granted (Doc. 37). The Motion is opposed. (Doc. 38). For the reasons stated
herein, the Motion is GRANTED.
I. BACKGROUND
Cockfighting has been prohibited in Louisiana since 2008. See La. Stat. Ann.
§ 14:102.23. On April 29, 2020, Plaintiff Lloyd Plumbar was charged with several
misdemeanor criminal charges for cockfighting. (Doc. 1, ¶ 15). Plumbar is the Pastor
of Plaintiff Holy Fight Ministries, a church whose congregation “hold[s] the sincere
religious belief. . . that cockfighting is an integral and essential part of their religious
faith.” Id. at ¶ 13.
On June 12, 2020 Plaintiffs filed suit against Scott Perrilloux in his official
capacity as District Attorney of Louisiana’s 21st Judicial District,1, alleging violations

1 Plaintiffs also filed suit against Jeff Landry, in his official capacity as Attorney General of
Louisiana and Jason Ard in his official capacity as Sheriff of Livingston Parish. Plaintiffs’
claims against Defendant Landry and Ard have since been dismissed. (Docs. 18, 28).
of the Free Exercise and Establishment Clauses of the First Amendment of the
United States Constitution, as well as a violation of the Free Exercise Clause of the
Louisiana Constitution. (Doc. 1, p. 4–8). Plaintiffs’ Complaint requested four specific

categories of relief: a temporary restraining order prohibiting enforcement of
Louisiana Revised Statute § 14:102.23 against Plaintiffs; a permanent injunction
prohibiting enforcement of Louisiana Revised Statute § 14:102.23 against Plaintiffs;
compensatory, nominal, punitive, and other damages; and, attorney’s and expert
witness fees. (Doc. 1, p. 8).
On June 25, 2020, the Court held a hearing on Plaintiffs’ request for a

temporary restraining order. (Doc. 14). The motion was denied. See (Doc. 18).
Subsequently, Defendant Scott Perriloux filed the instant Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiffs claims against him
should be dismissed because he is entitled to “absolute immunity” because he was
acting “within the scope of his duties as district attorney” by bringing charges against
Plumbar. (Doc. 37-1, p. 9). In the alternative, Defendant argues that Plaintiffs have
failed to allege that any allege constitutional violations were the result of a policy of

the District Attorney’s office. (Id. at p. 12).
In opposition, Plaintiffs assert that absolute immunity is not applicable to
official capacity claims. (Doc. 38-1, p. 6). Plaintiffs further assert that they have
pleaded a claim upon which relief can be granted, solely as to their Free Exercise
Clause claims. (Doc. 38-1, p. 8).
II. LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8, which requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “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.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[F]acial plausibility” exists “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out “detailed factual allegations,”
but something “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action” is required. Twombly, 550 U.S. at 555. When conducting
its inquiry, the Court must “accept[] all well-pleaded facts as true and view[] those
facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d

458, 461 (5th Cir. 2010) (quotation marks omitted).
III. ANALYSIS
A. Absolute Immunity is Inapplicable to Official-Capacity Actions
Defendant Perrilloux argues that he is entitled to absolute immunity2 from
suit, pursuant to Imbler v. Pachtman, 424 U.S. 409 (1975). (Doc. 37-1, p. 10). Plaintiff

2 Absolute immunity exempts a government official from personal liability to a person
whose federal rights have been violated. Di Ruzzo v. Tabaracci, 480 F. App'x 796, 797 (5th
argues that, because Perrilloux has only been sued in his official capacity, absolute
immunity does not apply. (Doc. 38-1, p. 6). Rather, the Court should apply the policy
liability framework established by Monell v. New York City Dept. of Social Servs.,

436 U.S. 658 (1978). (Id.). Defendant counters that “[t]he Supreme Court did not
expressly limit its holding in Imbler to claims against district attorneys in their
individual capacities,” and therefore invites the Court to hold that “the absolute
immunity given to district attorneys is equally applicable to claims against them in
their official capacities.” (Doc. 37-1, p. 12).
While the Supreme Court in Imbler was silent as to whether absolute

immunity applied to official capacity suits, it clarified its holding in Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).
The Court held that “unlike various government officials, municipalities do not enjoy
immunity from suit—either absolute or qualified—under § 1983.” Id. at 165.
“Official-capacity suits . . . ‘generally represent only another way of pleading an
action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473
U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690 n. 55 (1978)). Therefore, because

“a § 1983 suit naming defendants only in their ‘official capacity’ does not involve
personal liability to the individual defendant[,] [c]oncomitantly, defenses such as
absolute quasi-judicial immunity, that only protect defendants in their individual

Cir. 2012) (per curium) (quoting O'Neal v. Miss. Bd. of Nursing, 113 F.3d 62, 65 (5th
Cir. 1997)); Austin Mun. Sec., Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 757 F.2d 676, 687 (5th
Cir. 1985). It extends to officials, such as judges and prosecutors, whose functions are
intimately connected to the judicial process. See Hart v. O'Brien, 127 F.3d 424, 439 (5th
Cir. 1997), abrogation on other grounds recognized by Spivey v. Robertson, 197 F.3d 772,
775–76 (5th Cir. 1999); Austin Mun. Sec., Inc., 757 F.2d at 688.
capacities, are unavailable in official-capacity suits.” Turner v. Houma Mun. Fire and
Policy Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000); See also Hafer v. Melo, 502
U.S. 21, 25 (1991) (“[T]he only immunities available to the defendant in an official-

capacity action are those that the governmental entity possesses.”).
In this case, because Plaintiffs have sued Scott Perrilloux in his official
capacity as District Attorney of Louisiana’s 21st Judicial District, they have
effectively sued the 21st Judicial District, not Scott Perrilloux individually.
Therefore, absolute immunity does not apply.
B. Plaintiffs Have Not Adequately Pleaded Monell Liability
Defendant, in the alternative, argues that Plaintiffs have failed to state a claim

against him, even in his official capacity, because Plaintiffs have not pointed to an
official policy or custom that motivated the alleged violation of their constitutional
rights. (Doc. 37-1, p. 12).
To defeat a Motion to Dismiss under Rule 12(b)(6) here, Plaintiff “must show
that (1) an official policy (2) promulgated by the municipal policymaker (3) was the
moving force behind the violation of a constitutional right.” Peña v. City of Rio Grande

City, 879 F.3d 613, 621 (5th Cir. 2018) (citations omitted). In the absence of an official
policy, a plaintiff may also allege that:
a persistent, widespread practice of city 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 municipal policy. Actual or constructive knowledge of such
custom must be attributable to the governing body of the municipality
or to an official to whom that body had delegated policy-making
authority.
Bennett v. City of Slidell, 735 F.2d 861 (5th Cir. 1984) (per curium).
The Fifth Circuit is clear that “[t]o proceed beyond the pleading stage, a
complaint's ‘description of a policy or custom and its relationship to the underlying
constitutional violation . . . cannot be conclusory; it must contain specific facts.’”

Peña, 879 F.3d at 622 (citing Spiller v. City of Tex. City, Police Dep't,
130 F.3d 162, 167 (5th Cir. 1997)). A general allegation of a policy is not sufficient.
See Spiller, 130 F.3d at 167. Nor is mere “speculation that any particular
policymaker . . . knew about the alleged custom.” Peña, 879 F.3d at 623.
Plaintiffs allege that the District Attorney’s Office disregarded probable cause
in their arrest and prosecution of Plumbar, in violation of their official duties.

(Doc. 38-1, p. 10). Further, Plaintiffs allege that the legislation which bans
cockfighting in Louisiana is “so vague, overly broad, and sweeping in scope that it
intrudes upon the Federal and State guarantees of freedom of religion.” (Doc. 1 at
¶ 4). In opposition to Defendant’s Motion, Plaintiffs specifically argue that
Louisiana’s prohibition on cockfighting solely deprived Plaintiffs of their ability to
“free[ly] exercise [] their religious beliefs.”3 (Doc. 38-1, p. 12). Therefore, Plaintiffs are
deemed to have abandoned their Establishment Clause claim. See Robertson v.

Gautreaux, No. CV 16-341-JJB-RLB, 2017 WL 690542, at *6 (M.D. La. Feb. 21, 2017),
aff'd in part, 731 F. App'x 337 (5th Cir. 2018) (finding that the failure to address a
defendant's arguments for dismissal is deemed abandonment of the claim). Further,

3 Plaintiffs have arguably waived this claim by asserting that the arrest at issue evidenced
secular cockfighting and was therefore “an isolated incident and not the way Plaintiffs
normally conduct their worship services.” (Doc. 38-1, p. 8). However, because this assertion
was not included in Plaintiffs’ original complaint, the Court will analyze Plaintiffs’ Free
Exercise Claim as pleaded.
as was discussed in the Order granting Defendant Ard’s Motion to Dismiss, (Doc. 28),
Plaintiffs have not alleged a violation of their constitutional rights. See (Doc. 28, p.
4).

The Free Exercise Clause of the Louisiana State Constitution and the Free
Exercise Clause of the United States Constitution, as applied to the states through
the Fourteenth Amendment, are nearly identical. As such, an analysis of Plaintiffs’
state and federal free exercise claims can proceed under the same analytical
framework.4 The protections of the Free Exercise Clause under the United States
Constitution arise if “the law at issue discriminates against some or all religious

beliefs or regulates or prohibits conduct because it is undertaken for religious
reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532
(1993).
In analyzing a Free Exercise Clause claim, “a law that is neutral and of general
applicability need not be justified by a compelling governmental interest” even if the
application of that law happens to present a burden on a particular religious practice.
The concepts of neutrality and general applicability are intertwined such that a

law that fails to satisfy the neutrality requirement will likely fail to satisfy the
requirement of general applicability, and vice versa. at 531–32. A law burdening
religious practice that is not neutral or not of general application must undergo strict

4 See Cunningham v. City of Shreveport, 407 F.Supp.3d 595, 610 (W.D. La. Aug. 22, 2019);
See also Seegers v. Parker, 241 So. 2d 213, 216–17 (1970) (“The great similarity of the
establishment clause of [the Louisiana] Constitution and that of the United States
Constitution allows us to use the United States Supreme Court interpretations of the federal
clause as an aid for interpreting our own.”).
scrutiny analysis. Id. at 546.
Plaintiffs have not put forth any evidence that the law is not neutral or
generally applicable. Louisiana Revised Statutes section 14:102.23 provides, in

pertinent part, that:
“[i]t shall be unlawful for any person to: [o]rganize or conduct any
commercial or private cockfight wherein there is a display of combat or
fighting among one or more domestic or feral chickens and in which it is
intended or reasonably foreseeable that the chickens would be injured,
maimed, mutilated, or killed.”
LA. REV. STAT. § 14:102.23(A)(1) (2019).
The text of the law reveals that the law’s purpose is to prevent animal cruelty,
as it only bans cockfighting where it is foreseeable that the animal may be injured.
Louisiana is not alone in enacting such a provision. Indeed, Louisiana was the last of
the fifty states to outlaw cockfighting. See United States v. Olney, No. 1:13-CR-2094-
TOR-19, 2016 WL 660886, at *2 (E.D. Wash. Feb. 18, 2016), aff'd, 693 F. App'x 652
(9th Cir. 2017). Further, the prohibition of acts of cruelty towards animals “has a long
history in American law, starting with the early settlement of the Colonies.” United
States of America v. Stevens, 559 U.S. 460, 469 (2010).
It is true that facial neutrality is not necessarily determinative. Church of the
Lukumi Babalu Aye, 508 U.S. at 534. However, Plaintiffs cite to nothing that
indicates that Louisiana’s prohibition on cockfighting was drafted with the intent to
discriminate against religious conduct. Plaintiffs merely argue that the cockfighting
ban burdens their religious freedoms. (Doc. 38-1, p. 8). However, a religious belief—
no matter how sincerely held—does not act as an absolute shield against generally
applicable laws. See, e.g. Reynolds v. United States, 98 U.S. 145 (1879); Braunfeld v.
Brown, 366 U.S. 599 (1961) (plurality opinion) (“[T]he freedom to act, even when the
action is in accord with one's religious convictions, is not totally free from legislative
restrictions.”).

Because Plaintiffs have failed to establish that the statute is not neutral and
not of general applicability, they have failed to state a claim upon which relief can be
granted.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion (Doc. 37) is GRANTED. Plaintiff’s
claims against Defendant, Scott Perrilloux are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED, as there are no remaining defendants, that
Plaintiffs’ claims are DISMISSED WITH PREJUDICE.
A separate judgment shall issue.

Baton Rouge, Louisiana, this 26th day of August, 2021

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191994. Public record. Not legal advice.