McLin v. Twenty-First Judicial District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KATELYNN MCLIN CIVIL ACTION

VERSUS

TWENTY-FIRST JUDICIAL

DISTRICT, ET AL. NO. 21-00411-BAJ-RLB

RULING AND ORDER

Before the Court is the second Motion To Dismiss Under Rule 12 (Doc. 18)

submitted by Defendants the Twenty-First Judicial District (“21st JDC”) and Chief

Judge Robert H. Morrison, HI. Plaintiff opposes Defendants’ Motion. (Doe. 21). For

reasons set forth herein, Defendants’ Motion will be GRANTED, and Plaintiffs

action will be DISMISSED WITH PREJUDICE.

I. ALLEGED FACTS

In this action, Plaintiff Katelynn McLin contends that her employer, the 21st

JDC, illegally terminated her employment because of her race, and in retaliation for

engaging in protected political speech. Plaintiff asserts similar claims against her

“ultimate supervisor,” Chief Judge Morrison. For present purposes, the following

allegations are accepted as true:

The 21st JDC is one of Louisiana’s forty-three judicial districts, and is

comprised of the Parishes of Livingston, St. Helena, and Tangipahoa. La. R.S. §

13:477(21). It is conferred by the Louisiana Constitution with original jurisdiction

over all civil and criminal matters arising within its boundaries. See La. Const. art.

V, §§ 14-16. At the time of the events at issue, Judge Morrison was the Chief Judge

of the 21st JDC, tasked by the Constitution with ultimate authority over all

“administrative functions prescribed by rule of court.” La. Const. art. V, § 17.

Plaintiff identifies as “a 23-year-old, white woman.” (Doc. 14 J 20). In October

2019, Plaintiff was hired as a collections officer for the 21st JDC, assigned to work at

the Livingston Parish Courthouse. Ud. 99 12, 21, 53), Plaintiffs employment was “at

will,” and “subject to termination by either the Court or the employee at any time, for

any reason not prohibited by law.” Ud. at [J 45-46).

Plaintiff performed well in her first year of employment and was selected fora

promotion, given a raise, and even awarded a commendation letter. Ud. {| 23). Yet,

despite these accolades, Plaintiff was abruptly fired in November 2020, after her co-

workers raised concerns regarding her character and fitness for judicial employment.

The first of these concerns was raised after Plaintiff attended a staff

recognition luncheon on Friday, November 138, 2020. Ud. 4] 57). During the luncheon,

Plaintiff sat next to “T.D.”!, an African American colleague “with whom she had never

spoken.” (id, 59). Plaintiff and T.D. exchanged pleasantries and made small talk

throughout lunch. (/d. { 60). When it was time to go, Plaintiff said: “Well, time to go

back to LP [Livingston Parish] and deal with the LPians.” (/d. §] 61). T.D. questioned

what Plaintiff meant by the term “LPian,” to which Plaintiff replied: “You know,

LPians, us.” Ud, J] 63-64). T.D. did not respond, and Plaintiff left the luncheon. (id.

1 Plaintiffs Amended Complaint explains that she identifies her “non-decision-maker”

colleagues by their initials only, so as to “protect their privacy.” (Doc. 14 { 59 n.5)

4] 65). Plaintiff explains that, at the time, she believed it was “common slang to refer

to Livingston Parish as ‘LP’ and to refer to the citizens of Livingston Parish as

‘LPians,” and that she did not intend either term to be “offensive, racially charged,

or antagonistic in any possible sense.” (Id. {4 62, 66).

Evidently, Plaintiffs comments raised T.D.’s interest, such that over the

ensuing weekend T.D. conducted an online search of Plaintiffs Facebook account. (Id.

{{| 78-74). T.D.’s search yielded a public post from June 1, 2020—one week after

George Floyd’s murder, and during the term of Plaintiffs employment—in which

Plaintiff commented on a news article from the Tulsa World, Oklahoma’s “newspaper

of record.” Ud. | 75). The article itself recounted the story of “a motorist on 1-244 who

drove his vehicle and horse trailer through a blockade of protestors rallying in the

wake of George Floyd’s murder causing ... ‘minor injuries’ to two people.” (Id. □ 75).

Plaintiffs Facebook post responded to the article as follows:

All I'm going to say is that Silver Duramax enjoys pulling that black

horse trailer at 80mph @ #1WillrunYouOver.

(Id. 76). Plaintiff now justifies her post, stating: “In context, [Plaintiffs] public

Facebook post engaged in political and free expression insofar as [Plaintiff|

editorialized critique [sic] of the protestors’ decision to block incoming Interstate

traffic, particularly when doing so put the safety of motorists and animals at risk.”

(Ud. 4 77).

T.D. reported Plaintiffs November 13 “LPians” comment and Plaintiffs June

1 Facebook post to her supervisor, Judge Blair Edwards, who, in turn, made a

complaint to Chief Judge Morrison. (/d. 83, 86). Thereafter, on Monday, November

16, 2020, Judge Morrison terminated Plaintiffs employment, citing her Facebook

post and her “LPians” comment. Ud. 4 87-94). At Plaintiffs exit interview, Chief

Judge Morrison explained: “In today’s world that we live in, I have no other choice

but to terminate you. You need to watch what you say and do.” Ud. 95).

Plaintiff alleges that she “understood Chief Judge Morrison’s comment to mean

that his decision to terminate [her] was because of her race, the political content of

her Facebook post, her use of the word ‘LPian’ in the context of her race and T.D.’s

race, and a perception of her political beliefs or political-party affiliation.” Ud. { 96).

To the point, Plaintiff believes that “Chief Judge Morrison would not have terminated

[her] employment had she not been white,” and had she “not engaged in political

speech via Facebook.” Ud. {| 97, 99). Plaintiff further states her “belief” that other

21st JDC employees Gncluding T.D.) were engaged in similar public commentary, yet

were not terminated or otherwise disciplined. (Vid. 4] 104-107). Despite these

“beliefs,” however, Plaintiff fails to specifically identify any other instances when a

21st JDC employee used the term “LPian” or made a similar Facebook post. (See id.).

Plaintiff alleges that she suffered economic and reputational damages as a

result of her termination, and has struggled to find re-employment due to

“significantly diminished” credibility. Ud. 44] 124-126).

II, PROCEDURAL BACKGROUND

On April 14, 2021 Plaintiff timely filed a Charge of Discrimination with the

Equal Employment Opportunity Commission (EEOC), alleging that the 215* JDC

unlawfully terminated her based on her race in violation of Title VIT. (Dec. 14 | 17).

On April 20, 2021, the EEOC issued Plaintiff a right to sue letter. Ud. at 18).

Thereafter, on July 28, 2021, Plaintiff initiated this action against the 215+ JDC and

Chief Judge Morrison (in his personal capacity only). (Doc. 1).

Plaintiffs First Amended, Restated, and Superseding Complaint asserts four

claims: (1) disparate treatment on the basis of Plaintiff's race in violation Title VU,

against the 21st JDC (Doc. 14 {J 128-135); (2) disparate treatment on the basis of

Plaintiffs race in violation of 42 U.S.C. § 1981, against Chief Judge Morrison (id. □□

186-142); (8) unlawful termination for “political activity” in violation of

La. R.S. § 23:961, against the 21st JDC Gd. 143-150); and (4) unlawful termination

in retaliation for engaging in protected speech in violation of the First Amendment to

the U.S. Constitution, against Chief Judge Morrison (id. 9 151-157).

Now Defendants jointly seek dismissal of Plaintiff's action, asserting that the

Court lacks subject matter jurisdiction over Plaintiffs claims against the 215¢ JDC,

that, in any event, Plaintiff's claims fail as a matter of law because her allegations do

not establish their essential elements, and that Plaintiffs claims against Judge

Morrison are barred by qualified immunity. (Doc. 18). Plaintiff opposes Defendants’

Motion. (Doc. 21).

Til. ANALYSIS

As it must, the Court addresses the 215* JDC’s jurisdictional arguments first.

A. Rule 12(b)(1) Standard

Under Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a claim is “properly

dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or

constitutional power to adjudicate” the claim. In re FEMA Trailer Formaldehyde

Prods. Liab. Litig., 668 F.3d 281, 286-287 (6th Cir. 2012}. A court should consider a

Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. /d.

i. The 218* JDC Lacks Capacity To Be Sued

The 218 JDC argues that it is not “a juridical person capable of being sued

under the Federal Rules and Louisiana law.” (Doc. 18-1 at p. 12). Under Rule 17(b),

Louisiana law determines whether a party maintains capacity to be sued. Fed. R. Civ.

P. 17(b)(8). And, under Louisiana law, judicial districts lack capacity to be sued. See,

e.g., Laugand v. Bank of New York Mellon, No. 17-cv-00083, 2017 WL 4276474, at *2

(M.D. La. Sept. 26, 2017) (Jackson, J.) (dismissing plaintiffs claims against the 19th

Judicial District Court (citing authorities)). Consistent with this well-established

authority, Plaintiffs claims against the 21st JDC will be dismissed.

Plaintiff strains to distinguish her case from this established authority,

insisting that even if Louisiana law prohibits claims against a judicial district court,

it does not prohibit claims against the judicial district itself. (Doc. 21 at pp.7-19). The

Court is not persuaded. Indeed, Plaintiff's argument is foreclosed by the Louisiana

Supreme Court, which counsels as follows:

The important determination with respect to the juridical status or legal

capacity of an entity is not its creator, nor its size, shape, or label, Rather

the determination that must be made in each particular case is whether

the entity can appropriately be regarded as an additional and separate

government unit for the particular purpose at issue. In the absence of

positive law to the contrary, a local government unit may be deemed to

be a juridical person separate and distinct from other government

entities, when the organic law grants it the legal capacity to function

independently and not just as the agency or division of another

eovernmental entity.

Roberts v. Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 346-47 (La. 1994).

Significantly, the Louisiana Constitution draws no distinction between a

judicial district and the district court(s) located within its boundaries. See La. Const.

art. V, § 14 (“The state shall be divided into judicial districts, each composed of at

least one parish and served by at least one district judge.”); see also id. art. V, §§ 15-

16). The upshot is that the judicial district court is part-and-parcel of the judicial

district it serves. Obviously, neither the judicial district nor the judicial district court

could function independently of the other. And because the law is settled that a

judicial district court may not be sued, see Laugand, 2017 WL 4276474, at *2, it

necessarily follows that the judicial district itself also may not be sued, Roberts, 634

So. 2d at 346-472

Having determined that the 21st JDC lacks capacity to be sued, the Court

dismisses Plaintiffs claims on this basis alone, and does not address the 21st JDC’s

alternative argument that Eleventh Amendment sovereign immunity bars Plaintiffs

a last ditch effort, Plaintiff argues that the U.S. Constitution’s Supremacy Clause enables

her to pursue at least her Title VII claims against the 21% JDC, reasoning that “no

[qualifying] employer is beyond the reach of Title VII under substantive federal law, and any

conflicting Louisiana state law that purports to deprive Title VII of jurisdiction over a

discriminating employer is preempted as a matter of federal supremacy,” (Doc. 21 at p 15),

Plaintiff paints this argument only in the broadest strokes, without citing even one case

holding that the Supremacy Clause supersedes Louisiana law establishing that a state court

lacks capacity to be sued. On the other hand, Defendants do not address Plaintiffs argument

in their reply brief.

Again, the Court is not convinced by Plaintiffs position. As a general rule, the

Supremacy Clause requires that state law must give way to federal law only when state and

federal law “directly conflict.” PLIVA, Inc. v. Mensing, 564 U.S. 604, 617 (2011). Here, there

is no direct conflict of laws; rather, the federal rules merely dictate that state law determines

what entities may be sued under Title VII. Fed. R. Civ. P. 17(b)(3}.

Regardless, even if the Court assumes that the Supremacy Clause somehow supplants

Louisiana law and that the 21st JDC ts capable of being sued under Title VIT, Plaintiffs Title

VII claim fails on the merits, for the reasons set forth below. See Section III(B)@), infra.

claim under La. R.S. § 23:961.

B. Rule 12(b)(6) Standard

Plaintiffs remaining claims target Chief Judge Morrison, in his individual

capacity. Defendants seek dismissal of these claims under Rule 12(b)(6).

Alternatively, Defendants assert that Chief Judge Morrison is entitled to qualified

immunity.

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 fis]...

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. “[FJacial plausibility” exists “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is hable for the misconduct alleged.” /d. at 678 (citing Twombly,

550 U.S. at 556). When conducting its inquiry, the Court must “accept[] all well-

pleaded facts as true and view|] those facts in the hght most favorable to the plaintiff.”

Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation marks

omitted).

i. Plaintiff Fails To Plausibly Allege That She Was

Treated Differently From Any Other Co-Workers

Plaintiff contends that Chief Judge Morrison unlawfully fired her due to her

race.’ Plaintiff does not allege any direct evidence of Judge Morrison’s discriminatory

motive—i.e., a “statement or written document showing a discriminatory motive on

its face,” see Portis v. First Nat. Bank of New Albany, Miss., 34 F.8d 325, 329 (6th Cir.

1994)—and therefore must prove her case through circumstantial evidence, according

to the burden-shifting framework established by the U.S. Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1978). □

To make a prima facie case of discriminatory discharge, Plaintiff must

plausibly allege that she: “(1) is a member of a protected class; (2) was qualified for

her position; (8) was subject to an adverse employment action; and (4) was replaced

by someone outside the protected class, or, in the case of disparate treatment, shows

that others similarly situated were treated more favorably.” Okoye v. Univ. of Texas

Houston Health Sa. Ctr., 245 F.3d 507, 512-138 (6th Cir. 2001) (quotation marks

omitted).

Plaintiff satisfies the first three elements of her claim: she belonged to a

3 Plaintiff pursues race-based termination claims under both 42 U.S.C. § 1981 (against Chief

Judge Morrison) and Title VII (against the 218 JDC). The distinction is without difference,

however, because “retaliation claims under § 1981 and Title VII are parallel causes of action,

which means they require proof of the same elements in order to establish liability.” Johnson

v. Halstead, 916 F.3d 410, 420 (5th Cir, 2019) (quotation marks and alterations omitted)). As

such, the Court addresses Plaintiffs race-based termination claims according to the elements

generally required to establish Defendants’ liability, without specific citation to the various

sources of law. Further, because the elements are the same, the analysis set forth in this

section applies equally to the merits of Plaintiffs race-based termination claims against Chief

Judge Morrison and the 215* JDC.

protected class (white), excelled at her position, and was nonetheless fired. Still, as

noted in Defendants’ dismissal papers, (see Doc. 18-1 at p. 16), Plaintiff falters at the

fourth element because she has not plausibly alleged any differential treatment,

which requires allegations establishing that a “similarly situated” comparator was

not fired despite committing nearly the same misconduct. See Okoye, 245 F.3d at 514

To the point, Plaintiff must allege the existence of at least one non-white co-worker

working in “nearly identical circumstances” that maintained her job after

demonstrating the same character and fitness concerns ascribed to Plaintiff. See id.

(“[T]o establish disparate treatment a plaintiff must show that the employer gave

preferential treatment to another employee under nearly identical’ circumstances;

that is, that the misconduct for which the plaintiff was discharged was nearly

identical to that engaged in by other employees.” (quotation marks and alterations

omitted)).

Notably, in this regard, Plaintiffs allegations sink to the realm of suspicion

and innuendo. Specifically, Plaintiff states:

104. Upon information and belief, other 21st JDC employees publicly

discuss topics and political issues that concern or adjacent to politics and

social justice, and these employees have these discussions both face to

face and online.

105. Upon information and belief, at least some of these other 21st JDC

employees are not white and have not been terminated or reprimanded

in written or verbal form.

106. Specifically, upon information and belief, the complainant T.D.

(and upon information and belief others) has posted political

endorsements online and via Facebook that presumably violate the 21st

JDC policy prohibiting such public political endorsements.

107. Upon information and belief, T.D. (and upon information and belief

10

others) has not been terminated or reprimanded in written or verbal

form for these express violations of 21st JDC’s social media policies.

(Doc, 14 at J 104-107).

As a rule, an “information and belief’ allegation cannot stand on its own;

rather, it must be accompanied by sufficient additional detail to make the allegation

“plausible on its face.” See Twombly, 550 U.S. at 551, 557 (rejecting plaintiffs

conclusory “information and belief’ allegation that the defendants had entered into a

conspiracy absent additional facts to make that allegation plausible); see also Funk

u. Stryker Corp., 873 F. Supp. 2d 522, 525 (6.D. Tex. 2009) (Miller, J.) “In Twombly,

the plaintiffs based one of their allegations (that the defendants had entered into an

anti-competitive conspiracy) ‘upon information and belief, and the Supreme Court

held that this allegation, without more, failed to provide sufficient facts “to state a

claim to relief that is plausible on its face.”), aff'd 6381 F.3d 777 (5th Cir. 2011).

“Moreover, ... allegations based upon information and belief are particularly

inappropriate in cases where the allegations are based on matters of public record.”

Funk, 673 F. Supp. 2d at 525.

Here, Plaintiff alleges that she alone was singled out for using the term

“LPians” to describe the citizens served by the 218+ JDC, and for crudely threatening

to “run over” protesters marching in the wake of the George Floyd murder. Yet,

Plaintiff fails to specify any instance when other employees engaged in similar

conduct, and posits merely her “belief’ that other such instances must have occurred.

Judicial experience and common sense dictate that an employee with 13 months’

workplace experience and a demonstrated ability to navigate Facebook should be able

11

to identify with some certainty at least one occasion when a co-worker used slang to

describe the 218t JDC’s constituents, or used Facebook to sound off regarding the

George Floyd protestors (or any other matter of public concern). See [gbal, 556 U.S.

at 678. Such statements are essentially “matters of public record,” easily accessible

to Plaintiff to the extent they exist. Funk, 673 F. Supp. 2d at 525.

In short, Plaintiffs reliance upon mere “information and belief” allegations to

establish that others engaged in similar activities but were not fired renders her race-

based termination claim facially implausible. Iqbal, 556 U.S. at 678; cf. Twombly, 550

U.S. 551, 570 (plaintiffs’ “information and belief’ allegation, without more, failed to

plausibly establish that defendants had entered into an anti-competitive conspiracy);

Mann v. Palmer, 713 F.3d 1306, 1815 (11th Cir. 2013) (plaintiffs “information and

belief’ allegation, without more, failed to plausibly establish that Florida possessed

only expired, illegally obtained, or compounded pentobarbital); Howard v. ABN

AMRO Mortg. Grp., Inc., No. 18-cv-543, 2014 WL 1237317, at *3 (S.D. Miss. Mar. 26,

2014) (Starrett, J.) (plaintiffs “information and belief’ allegation, without more,

failed to plausibly establish the existence of an indemnity agreement among the

defendants); Irons v. City of Dallas, No. 3:11-cv-1894, 2012 WL 1986585, at *4 (N.D.

Tex. Apr. 4, 2012) (Stickney, M.J.)} (plaintiffs’ “information and belief’ allegations,

without more, failed to plausibly establish the existence of prior false arrests and

other police misconduct).

Having failed to satisfy the elements of her prima facie case, Plaintiffs claim

12

of discriminatory discharge against Chief Judge Morrison must be dismissed.4

ii. Qualified Immunity Defeats Plaintiff's First

Amendment Retaliation Claim Against Chief Judge

Morrison

Finally Plaintiff contends that Chief Judge Morrison unlawfully fired her after

she engaged in protected political speech—specifically, her Facebook post. In

response, Judge Morrison invokes qualified immunity. (Doc. 18-1 at pp. 19-21).

Qualhfied immunity shields a government official from liability “when an

official’s conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” City of Escondido, Calif. v.

Emmons, 189 8. Ct. 500, 503 (2019). Its intended purpose is to strike a balance

“between the interests in vindication of citizens’ constitutional rights and in public

officials’ effective performance of their duties” by making it possible for government

officials “reasonably [to] anticipate when their conduct may give rise to lability for

damages.” See Anderson v. Creighton, 4838 U.S. 635, 639 (1987) (quoting Davis v.

Scherer, 468 U.S, 188, 195 (1984)). Put differently, “[q]ualified immunity gives

government officials breathing room to make reasonable but mistaken judgments

about open legal questions. When properly applied, it protects ‘all but the plainly

incompetent or those who knowingly violate the law.” Asheroft v. al-Kidd, 563 U.S.

4 Having determined that Plaintiff's race-based unlawful discharge claim fails on the merits,

the Court has no need to consider whether Chief Judge Morrison is entitled to qualified

immunity on this claim. Further, as indicated above, supra n.3, the foregoing merits analysis

applies equally to Plaintiffs race-based unlawful discharge claim against the 215 JDC. In

short, whether pursued under 42 U.5S.C. § 1981 (against Chief Judge Morrison) er Title VII

(against the 21st JDC), Plaintiff's race-based discharge claim fails because she cannot show

any unfavorable treatment vis-a-vis her non-white colleagues.

13

731, 7438 (2011) (quoting Malley v, Briggs, 475 U.S. 385, 341 (1986)),

The Fifth Circuit’s two-pronged test for qualified immunity asks (1) “whether

the facts, viewed in the light most favorable to the party asserting the injury, show

that the official’s conduct violated a constitutional [or statutory] right,” and (2)

“whether the right was ‘clearly established.” Cunningham v. Castloo, 983 F.3d 185,

190-91 (5th Cir, 2020}. A court may analyze these prongs in either order, and resolve

the case on a single prong. Jd. at 190. Importantly, “[a]lthough nominally an

affirmative defense, the plaintiff has the burden to negate the assertion of qualified

immunity once properly raised.” Collier v. Montgomery, 569 F.3d 214, 217 (6th Cir.

2009).

To prevail on a § 1983 First Amendment retaliation claim, a public

employee must establish the following: (1) she suffered an adverse

employment action; (2) her speech involved a matter of public concern;

(8) her interest in commenting on matters of public concern outweighs

the employer's interest in promoting efficiency; and (4) her speech

motivated the employer's adverse action.

Modica v. Taylor, 465 F.3d 174, 179-80 (5th Cir. 2006) (quotation marks and citations

omitted). Here, Plaintiffs allegations satisfy the first, second, and fourth elements of

her claim: she was fired after making a crude public Facebook post regarding a matter

of public concern (the George Floyd protests), and “Chief Judge Morrison admitted

that his decision to terminate [Plaintiff] was based on [her] Facebook post.” (Doc. 14

4 94).

This leaves the third element-—specifically, whether Plaintiffs interest in

commenting on the George Floyd protests outweighed Chief Judge Morrison’s

constitutional duty to promote the efficient operation of the 215 JDC.

14

To determine whether a plaintiff's interest in speech outweighs the

government's interest in promoting efficiency, we consider “whether the

statement impairs discipline by superiors or harmony among co-

workers, has a detrimental impact on close working relationships for

which personal loyalty and confidence are necessary, or impedes the

performance of the speaker's duties or interferes with the regular

operation of the enterprise.”

Johnson v. Louisiana, 369 F.3d 826, 881 (5th Cir. 2004) (quoting Rankin v.

McPherson, 488 U.S. 378, 388 (1987)), abrogated on other grounds by Sims v. City of

Madisonville, 894 F.3d 632 (5th Cir. 2018). Additionally, the Court properly considers

“the degree to which the employee's activity involved a matter of public concern,” “the

time, place, and manner of the employee's activity,” and “whether the employee's

activity may be characterized as hostile, abusive, or insubordinate.” Brady v. Fort

Bend Cnty., 145 F.3d 691, 707 (th Cir. 1998). The Court balances these

considerations below, mindful of the axiomatic truth—set forth eloquently by the

Louisiana Supreme Court—that “the judicial branch depends upon the confidence of

the people it serves. Without that necessary confidence, the judiciary cannot serve its

paramount purpose of providing a fair and impartial open forum in which the public

may resolve its disputes.” In re Benge, 2009-1617 (La. 11/6/09), 24 So. 3d 822, 845.

First, plainly, Plaintiff's post involved a matter of public concern. In the wake

of George Floyd’s murder, hundreds of protests erupted around the country, many of

which included rallies and marches that disrupted interstate traffic. Certainly,

divergent views exist regarding the propriety of a protest that interferes with

interstate travel.

Second, however, Plaintiffs post did not contribute anything meaningful to the

public discourse regarding the protestors’ tactics. Indeed, Plaintiffs assertions that

15

her Facebook post “editorialized” the Tulsa World article, and “offered a critique of

the protestors’ decision to block incoming Interstate traffic,” are unpersuasive. (Doc.

21 at p. 4). Rather, Plaintiffs post may indeed be characterized as overtly hostile and

abusive:

All ’m going to say is that Silver Duramax enjoys pulling that black

horse trailer at 80mph @ WillrunYouOver.”

(Doc. 14 76). The post provides no analysis or opportunity for dialogue. It issues a

threat: “#1 Willrun YouOver.”

Third, the timing, placement, and manner of Plaintiff's post was optimized to

invoke outrage, and to undermine public confidence in the impartiality of the □□□□

JDC on the issue of protesters’ tactics. Plaintiff made her post on June 1, 2020, one

week after George Floyd was killed, six days after the video of George Floyd’s death

was originally released, and two days after Officer Derek Chauvin was arrested and

charged with murder, just as courts around the country were being asked to

adjudicate cases involving protestors’ tactics and officials’ responses to the same.

5 inter alia, Sasso v. City of Dallas, No. 20-cv-1398, 2020 WL 2839217, at *4 (N.D. Tex.

June 1, 2020) (declining plaintiff-protestor’s request for a temporary restraining order (TRO)

blocking enforcement of Dallas’s curfew imposed to quell vandalism, looting, and violence

coinciding with the George Floyd protests); Abay v. City of Denver, 445 F. Supp. 3d 1286, 1294

(D. Colo. June 5, 2020) (granting plaintiff-protestors’ request for a TRO prohibiting Denver’s

Police Department from employing chemical weapons or projectiles against persons engaging

in peaceful protests or demonstrations); Don't Shoot Portland v. City of Portland, 465 F.

Supp. 3d 1150, 1157 (D. Or. June 9, 2020) (granting plaintiff-protestors’ request for a TRO

prohibiting Portland’s Police Department from using tear gas unless “lives or safety of the

public or the police are at risk”); Goyette v. City of Minneapolis, No. 20-cv-1302, 2020 WL

3056705, at *8, 6 (D. Minn. June 9, 2020) (denying plaintiff-reporters’ request for a TRO

enjoining Minneapolis Police Department “from arresting and threatening members of the

news media, and from using chemical irritants or physical force ... against members of the

news media”); Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep't,

466 F. Supp. 3d 1206, 1216 (W.D. Wash. June 12, 2020) (granting plaintiff-protestor’s request

for a TRO prohibiting Seattle’s Police Department from “employing chemical irritants or

16

Plaintiff did not make her post “private,” or even limit her post to her Facebook

“friends”; instead, she made her post “public,” available to anyone capable of

conducting an internet search. (Doc. 14 72-74). And, again, Plaintiffs remarks

most certainly may be characterized as overtly hostile. It is one thing to articulate a

disagreement with protesters’ methods, it is quite another to publicly state

“#lWilirun YouOver.”

Fourth, Plaintiffs own allegations establish that her post weakened workplace

morale and impaired harmony among co-workers. Otherwise, why would “T.D.” have

reported the post to her supervisor (Judge Edwards) who, in turn made a complaint

to Chief Judge Morrison?

Fifth, and perhaps most important, Plaintiffs post jeopardized the regular

operation of the 218t JDC. Again, the “judicial branch depends upon the confidence of

the people it serves,” without which it “cannot serve its paramount purpose of

providing a fair and impartial open ferum in which the public may resolve its

disputes.” In re Benge, 24 So. 3d at 845. This confidence is threatened not just by

“actual partisanship’; even the mere “appearance of partisanship in the

administration of justice” undermines the judicial branch’s mission. See Brazil-

Breashears v. Bilandic, No. 93-6589, 1993 WL 496682, at *4 (N_D. Ill. Nov. 29, 1993)

(Williams, J.)

More than the legislative and executive branches of government, public

confidence in the integrity of the judicial branch depends on its ability

to distance itself from the political arena, and resolve legal disputes on

a wholly impartial basis. Absent appropriate safeguards restricting

projectiles of any kind against persons peacefully engaging in protests or demonstrations’).

17

public political activity by judicial employees, public faith in the court

system and ultimately, its effectiveness could be undermined.

Id. Plaintiffs crude post undermines this confidence by reflecting an intentional and

violent disregard for the lives and rights of protesters engaged in civil disobedience.

At the time she made her post, it was not hard to imagine that litigation involving

protestors’ tactics would also arise within the 21%* JDC. In such circumstances,

anyone reading Plaintiffs post would question whether Plaintiff, a judicial employee,

could carry out her duties fairly and impartially. Such questioning would necessarily

extend to her employer—-the 21st JDC itself--thereby undermining the court’s

“paramount purpose of providing a fair and impartial open forum.” /n re Benge, 24.

So. 3d at 845. Chief Judge Morrison, whose Constitutional duty was to protect the

fair administration of justice and maintain confidence in the 21st JDC, determined

that Plaintiffs public post undermined the 21st JDC’s “paramount purpose,” and

lawfully fired Plaintiff as a result.

In sum, the overwhelming weight of the relevant factors point to one result:

Plaintiff cannot rebut Chief Judge Morrison’s qualified immunity defense because

she cannot show that her interest in a crude Facebook post outweighed Judge

Morrison’s constitutional duty to ensure the fair, impartial, and efficient

administration of justice within the 21st JDC. See La. Const. art. V, § 17. Having

failed to show a violation of her constitutional rights, Plaintiffs First Amendment

retaliation claim must be dismissed.®

® Because Plaintiff cannot show a First Amendment viclation, the Court dismisses on this

prong of the qualified immunity analysis alone, and does not reach the issue of whether

Plaintiffs rights were “clearly established” when she was fired. See Cunningham, 983 F.3d

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IV. AMENDMENT

When a complaint fails to state a claim, the Court should generally give the

plaintiff a chance to amend under Rule 15(a) before dismissing the action with

prejudice, unless it is clear that to do so would be futile. See Great Plains Trust Co. v.

Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (“district courts

often afford plaintiffs at least one opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are incurable”); see also Jones v.

Robinson Prop. Grp., £.P., 427 F.3d 987, 994 (5th Cir. 2005) (“Rule 15(a) requires a

trial court to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a

bias in favor of granting leave to amend.” (internal quotations omitted)).

Here, Plaintiff has already amended her complaint once, in direct response to

Defendants’ original motion to dismiss. (See Docs. 1, 9, 14). Notably, Plaintiffs

opposition papers do not include a request to amend the substance of her claims

again, indicating that she has put her best foot forward. In any event, the Court

determines that further amendment would be futile because, as set forth herein, the

JDC lacks capacity to be sued, and because Plaintiff has already tried and failed

to allege facts capable of overcoming Chief Judge Morrison’s individual defenses,

including qualified immunity. As such, the Court will dismiss Plaintiffs action with

prejudice, without granting leave to amend.

V. CONCLUSION

Accordingly,

at 190-91.

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IT IS ORDERED that Defendants’ Motion To Dismiss Under Rule 12

(Doc. 18) be and is hereby GRANTED as set forth herein.

IT IS FURTHER ORDERED that Plaintiffs action be and is hereby

DISMISSED WITH PREJUDICE.

Final judgment shall issue separately.

Baton Rouge, Louisiana, this a of July, 2022

Qua.

bat

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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