Robertson v. Louisiana Board of Pardons

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ALLEN ROBERTSON, ET AL CIVIL ACTION

VERSUS

23-1494-SDD-RLB

LOUISIANA BOARD OF PARDONS,

ET AL.

RULING

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

Plaintiffs Allen Robertson, Anthony Bell, Daniel Blank, Scott Bourque, David Bowie,

Quincy Broaden, Henri Broadway, David Brown, Gregory Brown, Laderrick Campbell,

Jeffrey Clark, Sedwric Clark, Nathaniel Code, Michael Cooks, James Copeland, Frank

Cosey, Kevin Daigle, Percy Davis, Curtis Deal, Clifford Deruise, Felton Dorsey, Darrell

Draughn, Jimmy Duncan, James Dunn, Winthrop Eaton, Cedric Edwards, Antoinette

Frank, Michael Garcia, Bobby Hampton, Clarence Harris, Jessie Hoffman, Dacarius

Holliday, Daniel Irish, Kyle Joekel, Glynn Juniors, Tracy Lee, Donald Leger, Julius Lucky,

Jeremiah Manning, Jesse Montejo, Lee Roy Odenbaugh, Manuel Ortiz, Marcus Reed,

Jason Reeves, Larry Roy, Chris Sepulvado, Willie Tart, Antoine Tate, Emmett Taylor,

Michael Taylor, Lamondre Tucker, James Tyler, Todd Wessinger, and Donald Wright

(“Plaintiffs”).1 Defendants, the Louisiana Board of Pardons and Parole, Sheryl Ranatza,

Curtis Fremin, Alvin Roche, Anthony Marabella, and Bonnie Jackson (collectively, the

1 Rec. Doc. 3.

Board”) filed an Opposition to this motion,2 to which Plaintiffs filed a Reply.3 For the

reasons set forth below, the Court finds that Plaintiffs’ Motion should be denied.

I. BACKGROUND

Plaintiffs, death row Louisiana prisoners, filed this action under 42 U.S.C. § 1983,

alleging that Defendants have violated their Eighth and Fourteenth Amendment rights

under the Federal Constitution. Plaintiffs claim Defendants have violated their due

process and equal protection rights by cancelling Plaintiffs’ clemency hearings and/or

willfully violating the Governor’s directive to schedule clemency hearings.4

The Louisiana Board of Pardons and Parole (“the Board”) is made up of members

appointed by the Governor of Louisiana, and it is charged with reviewing and acting on

applications for pardon or commutation of sentences filed by persons convicted in

Louisiana.5 As for clemency applications, governing regulations give the Board complete

discretionary authority to determine whether a hearing is granted to a clemency

applicant.6 If the Board grants a clemency hearing and finds that clemency is warranted,

it then provides a recommendation to the Governor for his consideration.7 Although the

power to grant clemency ultimately resides with the Governor, he lacks the authority grant

clemency without an affirmative recommendation from the Board.8

Louisiana law provides that: “[w]ritten rules, regulations and procedures for

consideration or clemency applications shall be adopted by the Board of Pardons by

January 1, 1980. Such rules, regulations, and procedures shall be adopted in accordance

2 Rec. Doc. 25.

3 Rec. Doc. 29.

4 Rec. Doc. 1.

5 La. Const. art. IV, § 5(E)(2); La. R.S. 15:572.1.

6 22 LAC Pt V, § 105.

7 22 LAC Pt V, § 213(L)(1).

8 La. Const. art. IV, § 5(E)(1); La. R.S. 15:572(A).

with the procedures of R.S. 49:961(A)(1) and (2) and shall become effective upon

approval of the governor.”9 The Board’s policies are publicly available on its website, and

they delineate the specific protocol for clemency in capital cases in accordance with the

provisions of the Louisiana administrative code.

In June and July, 2023, 56 death row inmates applied for clemency with the Board.

In the wake of this unprecedented volume of requests in a short time period, Board

Chairman Sheryl Ranatza (“Ranatza”) sent a letter dated July 5, 2023 to Loren Lampert

(“Lampert”), Executive Director of the Louisiana District Attorneys Association, explaining

the Board’s proposed strategy to handle these requests.10 In this letter, Ranatza advised

that the number of clemency applications “far exceeded the average of 35 non-capital

applications the Board typically receives in any given month,” and the Board “deemed

unfeasible and inappropriate” any attempt to employ the ordinary process of completing

administrative review of the applications by July.11 However, feeling the need for

expediency, Ranatza advised Lampert that any capital cases that survived administrative

review would be set for hearing between October and December of 2023.12 She also

explained the Board’s plans to notify trial officials and victims’ families as part of the

process.13

Subsequently, objections were raised regarding the Board’s authority to waive the

requirement set forth in 22 LAC Pt V, § 203(E), which provides that “Any offender

sentenced to death may submit an application within one year from the date of direct

9 La. R.S. 15:572.4.

10 Rec. Doc. 25-1.

11 Rec. Doc. 25, p. 3.

12 Rec. Doc. 25-1.

13 Id.

appeal decision.” Without this waiver, none of the clemency applications were timely

under Louisiana law. However, 22 LAC Pt V, § 213 allows the Board to waive “each of

the provisions of [that] policy when it finds that there exists good and adequate cause to

suspend said provisions and adopt a different procedure which it finds to be better suited

to the exigencies of the individual case before it.” Thus, on July 18, 2023, by way of

resolution, the Board sought an Attorney General Opinion regarding the Board’s authority

to waive the one-year preemptive requirement. In short, Attorney General Jeff Landry

(“AG Landry”) concluded that the Board lacked the authority to consider the applications

on an emergency basis.14 AG Landry opined that the Board could not waive Rule

203(E)’s one-year eligibility requirement under the “catchall” waiver found at Rule

213(M)15

AG Landry further opined that, “even assuming arguendo that the eligibility period

provided in Rule 203(E) falls within the reach of Rule 213(M)’s waiver authority, such a

waiver would be contrary to law” under La. R.S. 49:955, La. R.S. 49:961, and La. R.S.

15:572.4.16 AG Landry further explained his position:

An administrative board or agency may not exceed the statutory authority

set forth by the legislature. It may be permissible for the Board to waive

certain requirements set forth in rule by the Board; however, the procedures

for waiving the rule must be themselves adopted and adequately set forth

in rule. The broad and ill-defined waiver in Rule 213(M) ostensibly

empowers the Board to repeal portions of its own rules and enact new ones

at will, on an ad-hoc basis, and without any notice to the public. Such a

result is impermissible under Louisiana law.17

14 Rec. Doc. 315, A.G. Op. 23-0086 (July 18, 2023).

15 Id.

16 Id. at pp. 1-2.

17 Id. at p. 2.

AG Landry discussed the requirement of public access to and notice of agency

decision-making in the promulgation and repeal of administrative agency rules, set forth

in the Administrative Procedure Act (the “APA”), La. R.S. 49:950, et seq., and concluded

that Rule 213(M) would impermissibly allow the Board to repeal or create agency rules

arbitrarily and outside of the legal requirements of Louisiana’s APA.18

AG Landry acknowledged that, under “extraordinary circumstances,” the APA, La.

R.S. 49:962(A)(1), allows for the adoption of emergency rules in lieu of ordinary

rulemaking provisions for specific reasons.19 However, because none of the enumerated

emergencies were present, the AG concluded and advised the Executive Director of the

Board that, in his view, “Rule 213(M) does not permit the Board to waive the one-year

eligibility period contained in Rule 203.”20

On July 24, 2023, in a public meeting conducted by the Board, Plaintiffs contend

Assistant AG Grant Willis “counseled” the Board in accordance with AG Landry’s

opinion.21 During this meeting, the Board adopted a motion to remove from the agenda

any consideration of the Rule 213 waiver. Francis Abbott, the Board’s Executive Director,

issued a press release announcing that the clemency applications would be returned

based on the AG’s opinion.

Following this meeting, Plaintiffs contend that, pursuant to his constitutional

authority, on August 9, 2023, Governor John Bel Edwards “directed” the Board to

18 Id. at pp. 2-3.

19 These reasons are: (a) to prevent imminent peril to the public health, safety, or welfare; (b) to avoid

sanctions or penalties from the United States; (c) to avoid a budget deficit in the case of the medical

assistance program; (d) to secure new or enhanced federal funding; or (e) to effectively administer

provisions of law related to the imposition, collection, or administration of taxes when required due to time

constraints related to congressional, legislative, or judicial action. Id. at p. 3.

20 Id.

21 Rec. Doc. 3-7.

schedule clemency hearings for these 56 inmates. Board Policy 02-207 provides that,

“[n]otwithstanding any provision to the contrary by Board policy, in any case in which the

death sentence has been imposed, the Governor may at any time place the case on the

agenda and set a hearing for the next scheduled meeting or at a specially called meeting

of the Board.” The Board claims this letter from the Governor was not a “directive,” but

rather a “request” from the Governor to set the clemency applications for hearing.22 In any

event, on August 10, the Board made the discretionary decision to set 20 capital clemency

applications for hearing on the merits between October 13 and November 27, 2023.23

About a month later, several parish district attorneys and AG Landry filed lawsuits

against the Board in state court to enjoin the clemency hearings. Although the Board is

typically represented by the Louisiana Attorney General, given AG Landry’s adverse

position to the Board in the state court suit, the Board sought independent counsel and

retained J. Arthur Smith (“Smith”) to represent it. Smith argued on behalf of the Board that

granting a preliminary injunction in favor of the DAs and AG Landry would violate

separation of powers under the Louisiana state constitution and interfere with the

Governor’s exclusive pardon power.24

Despite his adverse interests to the Board in the state court suit, AG Landry

terminated Smith’s representation of the Board25 and purportedly retained the firm of Sher

Garner Cahill Richter Klein & Hilbert, L.L.C (“Sher Garner”) to represent the Board.

Through Sher Garner, the Board ultimately negotiated a settlement in the state court

action to resolve all the injunction cases brought by the AG and DAs. The details of this

22 Rec. Doc. 25, p. 4.

23 Rec. Doc. 3-3.

24 Rec. Doc. 3-9.

25 Rec. Doc. 3-10.

Settlement Agreement were not stated in the Board’s open hearing, but Plaintiffs contend

that a partially executed copy of the Agreement revealed the following terms: 1) the

previously scheduled capital clemency hearings would be canceled and transformed into

“administrative reviews.” At these reviews members of the Board would determine if the

applicant would be granted a hearing; 2) the Board’s schedule for administrative reviews

must remain the same, and any clemency hearings granted must be held at least 60 days

later. (As a result, only 5 capital clemency applicants could even potentially receive a

clemency hearing while Governor John Bel Edwards was in office); 3) the Board would

refuse even an administrative review any other capital Clemency Applications that were

pending before them.26 Two days after the Board voted to approve the Settlement

Agreement, all DAs and the AG dismissed the state court action for preliminary

injunctions.

Plaintiffs express their belief that Sher Garner “illegally” represented the Board.27

Subsequent to the filing of this federal action and the pending motion, on October 19,

2023, State Court Judge Richard “Chip” Moore disqualified the Sher Garner firm from

representing the Board based on existing conflicts of interests. Judge Moore was highly

critical of AG Landry’s “end-around” maneuvering in the matter despite his obvious and

significant conflicts of interests. Plaintiffs have moved the state court to void the

Settlement Agreement, and that issue remains pending before Judge Moore.

26 Rec. Doc. 3-1, pp. 7-8. The actual Settlement Agreement is found at Rec. Doc. 1-12; Plaintiffs’ version

of the terms are not fully supported by the terms of Agreement.

27 Id. at p. 8.

II. PARTIES’ ARGUMENTS

A. Plaintiffs’ Position

Plaintiffs move for a preliminary injunction asking the Court to enjoin the Board

from violating the Governor’s Directive and implementing the terms of the Settlement

Agreement. Plaintiffs contend they are substantially likely to succeed on the merits

because “Defendants deliberately violated Louisiana law and the Pardon Board’s own

policies, practices, and procedures, knowing that it would result in the increased risk of

execution of some or all of Plaintiffs.”28 Plaintiffs rely on Justice O’Connor’s concurrence

in Ohio Adult Parole Authority v. Woodard,29 arguing that AG Landry has “manipulated

the Plaintiffs’ clemency proceedings to the point of rendering them all but meaningless.”30

Plaintiffs discuss the exclusive power of the Governor over pardons and clemency and

detail the process utilized by the Board in carrying out its function of hearing clemency

applications. Plaintiffs argue that “[t]he Board’s violation of its own rules to cancel

scheduled hearings and preclude any additional hearings from being scheduled violated

Plaintiffs’ rights to due process.”31 Plaintiffs claim the terms of the Settlement Agreement

present “new, unwritten procedural hurdles” that would “be applied for the first time,

retroactively, to Plaintiffs.”32 Plaintiffs aver that the Board has never “granted a hearing,

either on its own accord or at the lawful directive of the governor, and then rescinded the

hearing. These new procedural hurdles, unwritten rules, and rescissions of hearings,

intentionally violate the Governor’s directive, serve as substantive infringement of

28 Id. at p. 9.

29 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998).

30 Rec. Doc. 3-1 at p. 12.

31 Id. at p. 18.

32 Id. at p. 19.

Plaintiffs due process rights.”33 Finally, Plaintiffs maintain that the clemency process has

been “infected by the improper interference by” AG Landry rending Louisiana’s clemency

scheme “constitutionally defective.”34 Plaintiffs accuse the Board of “misconduct,”

arguing it “violat[ed] the Governor’s directive and enter[ed] into a void and unenforceable

settlement agreement” which has resulted in the violation of Plaintiffs’ constitutional

rights.35

As to irreparable harm, Plaintiffs maintain that they “face a real possibility of death

if this preliminary injunction is not granted.”36 Plaintiffs characterize this harm as “the

increased risk of execution of some or all Plaintiffs.”37

Turning to the balancing of Defendants’ potential harm if the preliminary injunction

is granted and the effect on the public interest, Plaintiffs contend that only they face a risk

of harm; Defendants face none if the Court enjoins the Board’s actions. Plaintiffs also

contend a preliminary injunction would serve the public interest by “enforcing the

Governor’s constitutional authority to grant clemency,” by ensuring state laws are followed

and the state constitution is given “full effect,” and by ensuring that the “criminal justice

system operates as intended and does not waste resources.”38

B. The Board’s Position

The Board disputes Plaintiffs’ characterization of the Governor’s powers in the

clemency process. It also disagrees with Plaintiffs’ interpretation of the Board’s policies

and its conduct in handling their clemency applications. The Board also disagrees with

33 Id.

34 Id. at p. 11.

35 Id. at p. 19.

36 Id. at p. 20.

37 Id. at p. 9.

38 Id. at pp. 20-21.

Plaintiffs’ interpretation of applicable jurisprudence. First, the Board takes issue with

Plaintiffs’ claim that the Governor “directed” the Board to set clemency hearings, citing

the Board’s own discretionary authority to set such matters. Further, the Board discusses

the precise language of the Governor’s letter wherein he states he is “asking” the Board

to set the cases for hearing “in a manner least disruptive to the non-capital cases currently

pending before the Board.”39 The Board maintains that the Governor’s letter constituted

a request rather than a directive, which is supported by the context of the entire letter.

Second, the Board maintains that the terms of the state court Settlement

Agreement do not violate any ordinary protocols. The Board has traditionally conducted

an administrative review process to determine whether a clemency hearing is

warranted.40 Although in the past, the Board conducted administrative reviews outside of

public hearings, the Board recently decided to conduct this process in public hearings.41

An administrative review allows an applicant’s attorney, prosecutor, any victim, and

victim’s family member, and the general public to provide comments to the Board.42 At

the conclusion of an administrative review hearing, the Board votes on whether to set the

matter for a clemency hearing to be conducted “at a later date but no sooner than 60

days.”43 Pursuant to the Settlement Agreement, the Board conducted five administrative

review hearings on October 13, 2023; none of the inmates received enough votes to

advance to a clemency hearing.44 The Board maintains the process received by these

39 Rec. Doc. 3-3.

40 Rec. Doc. 25-2, Declaration of Francis Abbott, ¶ 3.

41 Id. at ¶¶ 4-5.

42 Id. at ¶ 6.

43 Id. at ¶ 7.

44 Id. at ¶ 8.

inmates was certainly not the “toss of the coin” arbitrary denial of any access to the

clemency process described in Woodard.

The Board argues Plaintiffs have failed to demonstrate a substantial likelihood of

success on the merits as a matter of fact and law, noting extensive jurisprudence holding

that there is no constitutional right to clemency or a clemency hearing.45 The Board

disputes the Plaintiffs’ factual allegations in this matter; however, the Board maintains

that even if those facts were true, the law is clear that a violation of the Board’s own

policies does not constitute a due process violation. As the Fifth Circuit held in in Faulder

v. Texas Board of Pardons and Paroles, minimal procedural safeguards in the clemency

process are required,46 but allegations that “the Board ... violated state law and its own

regulations” was not an example of the type of “extreme situation[ ]” that Justice O’Connor

identified as a potential constitutional violation in her concurring opinion in Woodard.47

The Faulder court also noted that, because clemency “decisions are not traditionally the

business of courts,” there is an extremely “low threshold of judicial reviewability.”48 The

Board cites to numerous cases within the Fifth Circuit that have followed Faulder.49

The Board claims Plaintiffs have failed to plead facts or present evidence

establishing that they have been arbitrarily denied access to Louisiana’s clemency

45 Rec. Doc. 25, p. 9 (citing Garcia v. Jones, 910 F.3d 188 (5th Cir. 2018)(citing Conn. Bd. of Pardons v.

Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) (“[A]n inmate has ‘no constitutional

or inherent right’ to commutation of his sentence.” (quoting Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Ohio Adult Parole Auth. v. Woodard, 523

U.S. 272, 280–82, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (applying Dumschat’s reasoning to a death row

inmate’s petition for clemency))).

46 Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343, 344 (5th Cir.), cert. denied, 527 U.S. 1017, 119

S.Ct. 2362, 144 L.Ed.2d 767 (1999) (stating clemency process requires minimal procedural safeguards).

47 Id. at 344–45 (citing Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring)); see also

Tamayo v. Perry, 553 F. App'x 395, 402 (5th Cir. 2014) (holding no procedural due process violation where

Board members allegedly communicated with interested parties in violation of the Board’s own

rules)(emphasis added).

48 Id.

49 Rec. Doc. 25, pp. 10-12.

process or that their administrative reviews constituted a “flip of a coin” scenario. Plaintiffs

have failed to provide legal authority for the proposition that they have a right to a

clemency hearing, much less to demand that said clemency hearings must be completed

by December 28, 2023. The Board contends Plaintiffs’ allegations are factually “identical”

to those addressed in Faulder and should be similarly rejected.50

Regarding the allegations of AG Landry’s “collusion and overreach,” the Board

disputes Plaintiffs’ factual assertions but also argues that, even if Plaintiffs’ allegations

were true, the conduct attributed to the Board and AG Landry does not rise to the high

standard required for the grant of a preliminary injunction. The Board presents

jurisprudence contrary to Plaintiffs’ position that AG Landry’s purported blanket objection

to clemency rises to the level of a constitutional violation. Further, Plaintiffs have

presented no evidence that they have been deprived of due process in the consideration

of their clemency applications based on any alleged conduct of AG Landry.

Regarding irreparable harm, the Board notes that none of the Plaintiffs are

scheduled for execution, and this Court recently dismissed an action challenging

Louisiana’s lethal injection protocol because the state has been unable to obtain

execution drugs.51 Thus, there is no imminent threat that any Plaintiff will be executed

before they have an opportunity to apply for clemency under the governing law and

regulations. Further, the Board cites numerous federal court decisions across the country

that have held that there is no irreparable injury when a clemency hearing is re-set or

50 Id. at

51 See Hoffman v. Jindal, No. CV 12-796-SDD-EWD, 2022 WL 969050 (M.D. La. Mar. 30, 2022),

reconsideration denied, No. CV 12-796-SDD-EWD, 2022 WL 16571312 (M.D. La. Nov. 1, 2022).

does not occur on a desired timeline.52 Notably, in Turner Indus. Grp., LLC v. Rain CII

Carbon LLC, the federal district court for the Eastern District of Louisiana rejected the

proposition that the alleged “arbitrary changing of a hearing date less than two weeks

before a hearing” constituted a due process violation sufficient to grant injunctive relief.53

The Board contends Plaintiffs have submitted no evidence that their clemency

applications will be summarily rejected or that their administrative reviews will be unfair

or impartial: “The Plaintiffs[‘] position that they are entitled to have a guaranteed clemency

hearing, to be conducted by a certain date less than two months from now, is contrary to

all law.”54 Moreover, the Board highlights the Governor’s request that the Board manage

these capital cases “in a manner least disruptive to the non-capital cases currently

pending before the Board.”55 The Board maintains that it has attempted to accommodate

the Governor’s request, but “the flurry of litigation and legal chess-match which followed

has resulted in the delay of over forty hearings of non-capital prisoners, who have the

same right to clemency consideration as the Plaintiffs, and who initiated their requests

long before the Plaintiffs.”56 Accordingly, given that none of the Plaintiffs have a

scheduled execution date, the Court should deny injunctive relief for Plaintiffs’ failure to

present an imminent threat of harm. If the Court granted the requested injunctive relief,

52 Rec. Doc. 25, p. 16 (citing Baker v. Ivey, No. 2:22-CV-375-RAH-SMD, 2023 WL 5499872 (M.D. Ala. June

23, 2023), report and recommendation adopted, No. 2:22-CV-375-RAH-SMD, 2023 WL 5493532 (M.D. Ala.

Aug. 24, 2023)(Parole Board’s failure to provide a parole hearing date does not constitute a due process

violation); Carter v. Hartley, No. 1:12-CV-00829-JLT, 2012 WL 1898929 (E.D. Cal. May 23, 2012)(Parole

Board’s failure to set a hearing date within 5 years is not a due process violation); Randall v. Utah Bd. of

Pardons & Parole, No. 4:22-CV-27 DN, 2023 WL 5000993 (D. Utah Aug. 4, 2023)(Parole Board’s

scheduling of hearing in 2039 not a due process violation for purposes of injunctive relief); Johnson v. Duffy,

No. 2:13-CV-1962 DAD P, 2014 WL 3956689 (E.D. Cal. Aug. 13, 2014)(Parole Board’s refusal to advance

hearing date after request by inmate does not constitute a due process violation).

53 No. CIV.A. 14-1031, 2014 WL 1870622 at FN. 13 (E.D. La. May 8, 2014).

54 Rec. Doc. 25, p. 17.

55 Rec. Doc. 3-3.

56 Rec. Doc. 25, p. 17.

the Board posits that its growing backlog of non-capital cases would continue to grow and

the process for those applicants would be sidelined for months. Denying the injunctive

relief would only result in the Plaintiffs waiting “their respective turns for fair and impartial

consideration of their applications.”57

Finally, the Board argues that injunctive relief would disserve the public interest by

enjoining a legally imposed sentence on a convicted person. The Board relies on the

Fifth Circuit decision in United States v. Vialva, holding that the public’s interest in timely

enforcement of the death sentence outweighs the plaintiff’s request for more time.58

III. 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.59 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.60 Notably, “‘[f] the movant fails to meet its burden regarding any one of the

necessary elements, a court need not address the other elements necessary for granting

a preliminary injunction.’”61

57 Id. at p. 18 (citing Rec. Doc. 25-2, ¶ 9).

58 976 F.3d 458 (5th Cir. 2020)(citing Calderon v. Thompson, 523 U.S. 538, 556, 118 S. Ct. 1489, 1501,

140 L.Ed.2d 728 (1998) (stating that delay “inflict[s] a profound injury to the ‘powerful and legitimate interest

in punishing the guilty,’ an interest shared by the State and the victims of crime alike”) (quoting Herrera v.

Collins, 506 U.S. 390, 421, 113 S. Ct. 853, 871, 122 L.Ed.2d 203 (1993) (O'Connor, J., concurring)).

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

60 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).

61 TWTB, Inc. v. Rampick, 152 F.Supp.3d 549, 558 (E.D. La. 2016)(quoting Roho, Inc. v. Marquis, 902 F.2d

356, 361 (5th Cir.1990) (declining to address the remaining elements necessary to obtain a preliminary

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

district court.62 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.”63 Consequently, the decision to grant a preliminary

injunction “is the exception rather than the rule.”64

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.65 “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.”66 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.67

IV. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiffs cannot prevail on their Motion for Preliminary Injunction because the law

of the United States, the Fifth Circuit, and the Middle District of Louisiana unequivocally

establishes that there is no constitutional right to a clemency hearing for a death row

inmate. Plaintiffs casually dismiss as “mostly inapplicable” the host of cases from and

within the Fifth Circuit explicitly rejecting the arguments Plaintiffs have asserted herein.68

injunction after finding that plaintiff failed to show a substantial likelihood of success on the merits); see also

Barton v. Huerta, 613 Fed.Appx. 426, 427 (5th Cir.2015) (“[F]ailure to succeed one any one of the elements

results in a denial of injunctive relief.”)).

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

63 Suehs, 692 F.3d at 348.

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

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

66 Id.

67 Id.

68 Rec. Doc. 29, p. 5.

To the contrary, the Court finds these cases directly applicable and counter to Plaintiffs’

unsupported legal conclusions.

In 1998, the United States Supreme Court held in Ohio Adult Parole Authority v.

Woodard69 that Ohio's clemency procedures did not violate the Constitution; Justice

O'Connor's concurrence (providing the fifth vote) stated that only “minimal procedural

safeguards apply to clemency proceedings.”70 Justice O'Connor suggested relief “might,

for example, be warranted in the face of a [clemency] scheme whereby a state official

flipped a coin to determine whether to grant clemency, or in a case where the State

arbitrarily denied a prisoner any access to its clemency process.”71

Thereafter, in accordance with Justice O'Connor's position in Woodard, the Fifth

Circuit ruled in Faulder v. Texas Board of Pardons and Paroles that minimal procedural

safeguards in the clemency process are required.72 However, the Faulder court

specifically held that allegations that “the Board ... violated state law and its own

regulations” was not an example of the type of “extreme situation[ ]” referred to by

Justice O’Connor in her concurring opinion in Woodard.73 The court also noted that,

because clemency “decisions are not traditionally the business of courts,” there is an

extremely “low threshold of judicial reviewability.”74

69 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998).

70 Id. at 289, 118 S.Ct. 1244 (O'Connor, J., concurring)(emphasis in original).

71 Id. (emphasis added).

72 Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343, 344 (5th Cir.), cert. denied, 527 U.S. 1017, 119

S.Ct. 2362, 144 L.Ed.2d 767 (1999) (stating clemency process requires minimal procedural safeguards).

73 178 F.3d at 344–45 (citing Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor, J., concurring)); see

also Tamayo v. Perry, 553 F. App'x 395, 402 (5th Cir. 2014) (holding no procedural due process violation

where Board members allegedly communicated with interested parties in violation of the Board’s own

rules)(emphasis added).

74 Id.

In Sepulvado v. Louisiana Bd. Of Pardons and Parole,75 the Fifth Circuit again

addressed a constitutional challenge to Louisiana’s clemency process. The plaintiff, a

death-row prisoner, sued under Section 1983, alleging that Louisiana’s clemency

procedure violated the Eighth and Fourteenth Amendments. Specifically, the plaintiff’s

complaint sought “to distinguish Louisiana's clemency procedure from those in other

States, claiming, inter alia, because Louisiana law does not guarantee a clemency

hearing, its procedure falls below the minimum due-process threshold.”76 The Fifth Circuit

rejected this argument stating that, “[o]ther cases involving constitutional challenges to

clemency procedures, including Woodard and Faulder, however, do not establish specific

requirements States must follow.”77 Because “Louisiana state law allows every inmate to

apply for clemency (which Sepulvado did),” the court held that the plaintiff failed to state

a claim.78

The court further explained the clemency process in Louisiana, noting that “[t]he

Governor may commute a sentence only upon the Board's recommendation.”79 The court

noted that “[t]he Board has discretion to grant a clemency hearing; Louisiana law lists

eight reasons for which the Board, in its discretion, may deny one.”80 The plaintiff’s

application “was denied, without a hearing, for two of § 105's listed reasons: (1) because

his offense was serious in nature; and (2) because he had not served sufficient time.”81

In rejecting the plaintiff’s claims, the court explained:

Sepulvado was allowed to apply for clemency, and the complaint does

not allege the Board failed to consider his application before denying it.

75 171 Fed. Appx. 470 (5th Cir. 2006).

76 Id. at 472 (emphasis in original).

77 Id. (emphasis in original).

78 Id.

79 Id. (citing La. Const. art. IV, § V; La.Rev.Stat. Ann. § 15:572).

80 Id. (citing La. Admin. Code tit. 22, § V.105.

81 Id.

Instead, Sepulvado makes a facial challenge to the procedure. His

complaint alleges, for example, the Governor rarely grants clemency to

violent offenders; this, however, does not state a claim for a due-process

violation.

Sepulvado contends dismissal was inappropriate because, without

discovery, he cannot determine whether clemency was denied arbitrarily,

possibly even based on the coin-flip example in Justice O'Connor's

concurring opinion in Woodard. Sepulvado's complaint, however, does not

allege he was denied clemency in that fashion; and, as discussed earlier,

we are confined to reviewing only the complaint when considering a Rule

12(b)(6) motion.

In the light of the allegations in the complaint, Sepulvado had full access

to the clemency process, and the Board considered his application before

denying him a clemency hearing. Under the highly deferential Faulder

standard of review, Sepulvado does not state a due-process-denial claim

for which relief can be granted.82

More recently, in 2018, the Fifth Circuit reviewed a similar claim brought under

Section 1983 alleging that the Texas Board of Pardons and Paroles violated the plaintiff-

inmate’s Fourteenth Amendment due process rights. In Garcia v. Jones,83 the plaintiff

alleged that the Board’s composition violated his constitutional rights because “the Board

as currently constituted violates the requirement under Texas Government Code §

508.032(a) that the Board be ‘representative of the general public’ because six of the

seven Board members are former employees of the Texas Department of Criminal Justice

or former law enforcement officers and six of the seven Board members are male.”84 The

plaintiff moved for a preliminary injunction to bar the Board from making a

recommendation and an order staying his execution.85

82 Id. at 473 (emphasis added). The Court denied the plaintiff’s Eighth Amendment claim for the same

reasons.

83 910 F.3d 188 (5th Cir. 2018).

84 Id. at 189.

85 Id. at 189-90.

The court began: “Though we lack jurisdiction to consider a claim requesting that

we order the Board to recommend clemency, we have jurisdiction to consider challenges

to state clemency proceedings when the relief the party seeks ‘will not spell speedier

release.’”86 The court continued: “Garcia does not assert a constitutional entitlement to

clemency, and it is well-established that no such right exists.87 Instead, Garcia asserts

an entitlement under due process to minimal procedural safeguards in clemency

proceedings.”88

The court also relied upon its reasoning in Faulder, finding that “Garcia’s argument

that the Board’s composition violates Texas law does not assert an arbitrary clemency

proceeding akin to the flip of a coin or a complete denial of access to the clemency

process.”89 Additionally, “Garcia’s allegations do not reflect the complete lack of

process that we have held may violate the minimal due process protections that

exist in the clemency context … Accordingly, the district court did not err in denying

Garcia’s motion preliminary injunction.”90 “For the same reason—because Garcia has

not alleged a violation of the Constitution or laws of the United States—the district court

correctly dismissed Garcia’s § 1983 complaint on the merits.”91

86 Id. at 190 (quoting Young v. Gutierrez, 895 F.3d 829, 831 (5th Cir. 2018) (finding jurisdiction over a

challenge to state clemency proceedings that would “result only in a stay until [the § 1983 claimant] is

afforded a clemency proceeding commensurate with the Constitution”)).

87 Id. at 190-91 (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.2d

158 (1981) (“[A]n inmate has ‘no constitutional or inherent right’ to commutation of his sentence.” (quoting

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668

(1979))); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280–82, 118 S.Ct. 1244, 140 L.Ed.2d 387

(1998) (applying Dumschat’s reasoning to a death row inmate’s petition for clemency).

88 Id.

89 Id. at 191 (citing Faulder, 178 F.3d at 344 (citing Woodard, 523 U.S. at 289, 118 S.Ct. 1244 (O’Connor,

J., concurring))).

90 Id. (emphasis added).

91 Id. (citing Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008) (noting that § 1983

“provides a remedy for the violation ... of rights secured under the Constitution and laws of the United

States” (quoting Kirchberg v. Feenstra, 708 F.2d 991, 1000 (5th Cir. 1983)))).

Louisiana’s federal district courts have applied the jurisprudence above in

challenges to the state’s clemency process. In Hoffman v. Cain,92 among numerous

challenges to his conviction and sentence, a death-row inmate also alleged that

Louisiana’s clemency process violated his constitutional rights.93 The plaintiff argued that

Louisiana’s clemency process failed “to meet the minimal requirements of due process

because: (1) it requires death row inmates to file an application within one year of

direct appeal, (2) it requires statements of all witness in favor of a condemned inmate to

be made public but statements opposed to be keep private, (3) it does not guarantee a

clemency hearing and provides no opportunity to be heard and argue for one, (4) it

restricts evidence allowed in the application, and (5) it restricts the number of witnesses

that may testify at a hearing.”94 The court summarily rejected this argument, relying on

the Fifth Circuit’s holding in Sepulvado.95

In 2018, this Court issued a thorough opinion in a case involving similar claims as

those presented here. In Thompson v. Ranatza,96 a pro se inmate raised a constitutional

challenge under Section 1983 arguing that his rights were violated because the Louisiana

Board of Pardon and Parole failed to properly evaluate and consider his past history, his

prison record, and his achievements during the period of his incarceration in assessing

his 2016 application for a “full pardon.”97 Of particular note, the plaintiff claimed that the

Board failed to comply with its applicable procedural rules governing documentation to be

92 No. 2012 WL 1088832 (E.D. La. Mar. 30, 2012).

93 Id. at *33.

94 Id. (Emphasis added).

95 Id.

96 No. 17-0235-JWD-EWD, 2018 WL 4214412 (M.D. La. Aug. 17, 2018).

97 Id. at *1.

considered with his pardon application.98 In response, the Board filed a Motion to Dismiss

for failure to state a claim.99

The Court concluded that the plaintiff failed to state a claim for a number of

reasons. First, “with regard to Plaintiff's assertion that Defendant Ranatza has failed to

follow state procedural rules by failing to obtain or secure required reports and

documentation relative to Plaintiff's history and purported rehabilitation, a federal court

does not concern itself with claims that a state official has failed to correctly follow state

law. Specifically, under § 1983, a federal court is solely concerned with claims involving

the alleged violation of federal law or the deprivation of rights secured by the United States

Constitution.”100 Second, the Court found that the “plaintiff misinterpreted the procedural

rules governing pardon applications in any event” noting that the Board “had discretion to

request or obtain documentation regarding Plaintiff's pertinent history in evaluating his

pardon application but was not required to do so.”101 Third, the Court held that, even if

the Defendant failed in some way to follow appropriate state procedures in handling the

plaintiff’s application, “a federal district court lacks jurisdiction to review actions in the

nature of mandamus to compel state officers or employees to perform duties owed the

plaintiff.”102

The Court also found that the plaintiff’s substantive due process claim “fare[d] no

better.”103 The Court relied on language from the Eastern District of Louisiana in

98 Id.

99 Id.

100 Id. at *2 (emphasis added).

101 Id. (citing Richey v. Hunter, 407 So.2d 427, 430 (La. App. 1 Cir. 1981) (concluding that the Board of

Pardon has discretion to deny pardon applications without scheduling a hearing and that such denials do

not violate state or federal due process requirements)).

102 Id. (citing Samuels v. Emanuel, No. 13-2775-P, 2014 WL 50851, *2 (W.D. La. Jan. 7, 2014)(citing

Rothstein v. Montana State Supreme Court, 637 F. Supp. 177 (D. Mont. 1986))).

103 Id. at *3.

Robinson v. Cain, wherein the court stated: “Generally, a prisoner has no cognizable

liberty interest in meaningful access to state clemency mechanisms.”104

Simply put: “[A] prisoner has no liberty interest with respect to any

procedures available to vindicate an interest in state clemency

because clemency is inherently discretionary and subject to the

whim, or grace, of the decisionmaker; it is, in other words, a

form of relief to which a prisoner has no right.”105

Applying the foregoing jurisprudence to the facts in Thompson, the Court noted

that “the decisional law in this area, however, does not delimit any specific procedures

that a State must follow in evaluating such an application, and it is clear that there is an

‘extremely low threshold of judicial reviewability’ in the consideration thereof.”106 Further,

[A]lthough Plaintiff had the right to have his pardon application evaluated

and to have it not be rejected arbitrarily (as by the mere flipping of a coin,

for example), it is clear that Plaintiff did not have a right to a hearing and

did not have a right to any specific procedures in the evaluation

thereof. Accordingly, in the absence of any allegations of fact suggesting

that the Board of Pardons failed to review and consider his application

before rejecting it, this claim is lacking in constitutional merit.107

As clearly demonstrated above from the Supreme Court, Fifth Circuit, and

Louisiana federal district courts, there is no constitutional right to a clemency hearing, nor

is there a right to challenge the Board’s failure to follow its own procedures. Plaintiffs

have presented no evidence that they have been denied access to Louisiana’s clemency

104 Id. (quoting Robinson v. Cain, No. 14-1029, 2015 WL 770458, *3 (E.D. La. Feb. 23, 2015)(citing

McKithen v. Brown, 626 F.3d 143, 151 (2nd Cir. 2010))).

105 Id. (quoting Robinson, 2015 WL 770458 at *3 note 23 (quoting McKithen, 626 F.3d at 151; Brady v.

Norris, No. 5:08cv00147, 2008 WL 5002929 (E.D. Ark. Nov. 20, 2008) (noting that a prisoner “has no federal

or state liberty interest in the possibility of obtaining parole, furlough or clemency, or any type of early

release, and he is thus not entitled to any due process protections in connection with diminishment of those

possibilities”))(emphasis added).

106 Id. (quoting Sepulvado, 171 Fed. Appx. 470 (citing Faulder, 178 F.3d 343)).

107 Id. (citing Sepulvado, 171 Fed. Appx. 470)(explaining Louisiana's clemency procedures and rejecting a

prisoner's challenge to the procedures in the absence of an allegation that his application had not been

evaluated in fact or had been denied arbitrarily)).

process and no evidence that converting a hearing to an administrative review amounts

to a constitutional violation; indeed, it is still access. There is no evidence before the Court

that the Board has or intends to arbitrarily reject a clemency application. Setting

administrative reviews and/or hearings within the applicable time frame is not a violation

of Plaintiffs’ rights. The Governor’s letter demonstrates his understanding when he asked

the Board to manage these cases “in a manner least disruptive to the non-capital cases

currently pending before the Board.”108

Plaintiffs’ reliance on the recent Fifth Circuit decision in Galbraith v. Hooper109 is

misplaced. Galbraith is easily distinguished from the present case. In Galbraith, the circuit

affirmed the district court’s finding that the plaintiff had a liberty interest in parole that had

been granted and then rescinded two days prior to his effective release date. The district

court found that, “Although Galbraith did not have a liberty interest in the granting of

parole, there was a state-created liberty interest at issue here because the Parole Board

regulations in effect at the time permitted rescission of a parole grant only in two

circumstances, neither of which was applicable to Galbraith's situation,” and thus,

“Galbraith was therefore entitled to notice and a meaningful opportunity to be heard prior

to rescission of his parole grant, but he received neither.”110 The Fifth Circuit

distinguished the facts of Galbraith from cases that the defendant relied upon, noting the

following distinction:

Galbraith's case significantly differs from Sinclair's — most clearly in the fact

that his petition for parole was granted, not denied. Galbraith had a parole

hearing and was granted a Certificate of Parole. The Parole Board set his

release date and arranged with the State of Texas to have Galbraith serve

108 Rec. Doc. 29-3, p. 1.

109 --- F.4th ---, 2023 WL 6968754 (5th Cir. 2023).

110 Id. at *4.

his parole there. Galbraith's parole grant was rescinded two days prior to

his release for a reason that appears unauthorized by statute at the time.111

The Court further noted that jurisprudence concerning “non-grantees” was “not instructive

of whether a parole grantee—such as Galbraith—has a protected liberty interest.”112

The present case does not involve the grant and subsequent rescission of parole

without notice and an opportunity to be heard. Galbraith’s claim was different because

he had achieved success that was then taken away without due process and for reasons

not allowed by the law. No success has been achieved by the Plaintiffs herein, and the

law is well-established that they are not entitled to clemency hearings or preferred timing

in the evaluation of their applications upon administrative review. Galbraith is entirely

inapplicable here.

The Court does not reach Plaintiffs’ claims that the Board colluded with AG Landry

to “interfere” with the Governor’s exclusive executive powers enumerated in the Louisiana

state constitution. The Court finds that Plaintiffs have failed to demonstrate a substantial

likelihood of success on the merits of a federal constitutional claim. The parallel

proceeding remains pending in state court; the state court is imminently qualified to

determine whether any separation of powers violations have occurred under the

Louisiana state constitution, and the Court will abstain from providing an advisory opinion

in that regard.

V. IRREPARABLE HARM

“‘Irreparable harm requires a showing that: (1) the harm to Plaintiff[ ] is imminent

(2) the injury would be irreparable and (3) that Plaintiff[ ] ha[s] no other adequate legal

111 Id. at *8.

112 Id. at *10.

remedy.’”113 The Court finds that Plaintiffs have failed to demonstrate that the harm is

imminent. As the Board noted, none of the Plaintiffs are scheduled for execution, and the

state of Louisiana has been unable to obtain lethal injection drugs for several years.

There is absolutely no evidence before the Court that any Plaintiff will face execution

before he or she is able to apply for clemency. There is no right to a clemency hearing

during any particular administration.

Additionally, Plaintiffs turn the law on its head, arguing that they “face a real

possibility of death if this preliminary injunction is not granted,” and denying this relief

subjects them to “the increased risk of execution of some or all Plaintiffs.” In Woodard,

the United States Supreme Court, relying on its own precedents, stated:

The individual's interest in release or commutation “‘is indistinguishable

from the initial resistance to being confined,’” and that interest has already

been extinguished by the conviction and sentence. Id., at 464, 101 S.Ct. at

2464 (quoting Greenholtz, supra, 442 U.S. at 7, 99 S.Ct. at 2103). The Court

therefore concluded that a petition for commutation, like an appeal for

clemency, “is simply a unilateral hope.” 452 U.S. at 465, 101 S.Ct. at

2465.114

The Woodard Court further stated: “Respondent is already under a sentence of death,

determined to have been lawfully imposed. If clemency is granted, he obtains a benefit;

if it is denied, he is no worse off than he was before.”115

Having failed to establish a substantial likelihood of success on the merits or

imminent irreparable harm, Plaintiffs have failed carry their burden for the issuance of a

preliminary injunction.

113 J.H. by and through N.H. v. Edwards, 2020 WL 3448087 at *44 (quoting Gonannies, Inc. v. Goupair.Com,

Inc., 464 F. Supp. 2d 603, 608 (N.D. Tex. 2006) (citing Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.

1975))).

114 Woodard, 523 U.S. at 280 (emphasis added).

115 Id. at 285 (emphasis added).

VI. CONCLUSION

Considering the foregoing law and analysis, the Court DENIES Plaintiffs’ Motion

for Preliminary Injunction.116

IT IS SO ORDERED.

Baton Rouge, Louisiana, this _9_th_ day of November, 2023.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

116 Rec. Doc. 3.