# Arvie v. Cathedral of Faith Missionary Baptist Church

> District Court, W.D. Louisiana · October 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10767332

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** October 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10767332

## How later opinions describe it (automated extraction)

- noting dismissal of claims with "some chance" of success is inappropriate at screening stage but affirming dismissal where pro se plaintiff's claim "[was] based upon an indisputably meritless legal theory"
- holding that a state's consent to suit against it in federal court must be expressed "unequivocally"
- applying Section 1915 to non-prisoner, former arrestee who claimed wrongful arrest and affirming dismissal under Section 1915
- explaining the distinction between factual and legal frivolousness in in forma pauperis complaints

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

HUBERT ARVIE DOCKET NO. 2:23-cv-0717

VERSUS JUDGE JAMES D. CAIN, JR.

CATHEDRAL OF FAITH MISSIONARY MAGISTRATE JUDGE WHITEHURST
BAPTIST CHURCH, ET AL

REPORT AND RECOMMENDATION

Before the court are the original and amended civil rights complaints [docs. 1,5, 17] filed
pursuant to 42 U.S.C. § 1983, La. R.S. §§ 37:218, 12:208(A); LA C.C.Arts. 2315-1216, 2324,
1953, 1997, 2997; La. C.C.P. Arts. 1871, 3601, 3781, 3861, 3864 and 3901, by plaintiff Hubert
Avrie, who is proceeding pro se and in forma pauperis in this matter.
For reasons stated below IT IS RECOMMENDED that the complaint be DISMISSED
WITH PREJUDICE as frivolous, for failing to state a claim for which relief may be granted, and
for seeking money damages against a defendant who is immune from suit, pursuant to the
provisions of 28 U.S.C. § 1915(e)(2).
I.
BACKGROUND

Plaintiff brings the instant suit against the following defendants: Cathedral of Faith
Missionary Baptist Church, Darryl Washington, Lankton Doucet, Kenneth Smith, Michael K Cox,
Richard Wilson, Somer G Brown, Wilshire Insurance Co, Martin T Ceaser, Carl R White, Jimmy
R Stevens, Tara E Clement, Robert I Siegel, Patrick O Weilbaecher, David Smeltz, Shannon J
Gremillion, Charlie G Fitzgerald, Gary J Ortego, Elizabeth A Pickett, Deputy Clerk Heather, H
Lynn Jones, Thomas Cole, Jacko Fontenot, Courtnie Anderson, Claydon Davis, Dusty Higgs, Van
C Seneca, L Paul Foreman, Christian D Chesson, James H Gibson, Calcasieu Parish Government,
State of Louisiana, Letha Reed, Anna M Grand, Jackson Ritchie, Cox Cox Filo Camel Wilson &
Brown LLC, Kenneth Miller, Matt Slomiony, Robert Campbell, Terry L Arvie, Gieger Laborde &
Laperouse LLC, David Kent Savoie, Van H Kyzar, Sharon D Wilson, H Guy Bradberry, Kenneth
Miller, Wilbur Stiles, Candyce Perret, Jonathan Perry, Ledricka J Thierry, Ulysses G Thibodeaux,
Marc T Amy, Paulin Joseph Laborde, Jr, Renee Simien, Debbie Stevens, Melodie Manuel, John L

Weimer, William J Crain, Scott J Crichton, Jefferson D Hughes, III, Jay B McCallum, Piper D
Griffin, James T Genovese, Catherine Babin, Patricia Fernandez, Louisiana Farm Bureau Casualty
Insurance Co, Dan Dinnis, Jimmy Dole, Merric Dejean, Government Employees Insurance Co,
Geico Casualty Co, Warren E Buffett, Olza Minor Nicely, Bill Roberts, Shane Wheeler, Connie
Lynch, Todd Combs, Amanda Treadwell, Del Mars Building, Del Mar Roofing, Jeffery Allen
Goudeau, Morris Mark Stogner, Kimberly Fuselier, Leah Cook, Taylor Porter Brooks & Phillips
LLP, Charles A Porter, David J Williams, Tonda Moreland, and Augustine Walker.
The instant civil rights suit appears to stem from an insurance dispute following Hurricane
Laura in Lake Charles, Louisiana in August 2020. However, in three rambling and disjointed

complaints, plaintiff alleges various claims against numerous defendants ranging from members
of the church parish conspiring to remove him from church leadership to Louisiana state court
judges mishandling of the insurance lawsuit.
II.
Law & Analysis
A. Frivolity Review
Plaintiff is not a prisoner; however, he is proceeding in forma pauperis. Doc. 6. District
courts have authority under Section 1915 to dismiss a complaint sua sponte where the complaint "
(1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks
monetary relief against a defendant who is immune from such relief." Malone v. La. Dep’t of Safety
& Corr., 2017 U.S. Dist. LEXIS 151143 (W.D. La. Aug. 25, 2017) (citations omitted); see Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A court may dismiss a complaint under this
standard "if it lacks an arguable basis in law or fact." Id.; see Moore v. Mabus, 976 F.2d 268, 269-
70 (5th Cir. 1992) (explaining the distinction between factual and legal frivolousness in in forma
pauperis complaints). Although courts construe pro se filings liberally in this context, dismissal is

appropriate where the claims have no chance of success, Id.; cf. Booker v. Koonce, 2 F.3d 114,
115-16 (5th Cir. 1993) (noting dismissal of claims with "some chance" of success is inappropriate
at screening stage but affirming dismissal where pro se plaintiff's claim "[was] based upon an
indisputably meritless legal theory"). Moreover, "[t]he statute applies equally to prisoner and non-
prisoner cases." Id.; see, e.g., Booker, 2 F.3d at 115 (applying Section 1915 to non-prisoner, former
arrestee who claimed wrongful arrest and affirming dismissal under Section 1915); Patel v. United
Airlines, 620 F. App'x 352 (5th Cir. 2015) (per curiam) (applying Section 1915 to non-prisoner
pro se litigant); James v. Richardson, 344 F. App'x 982, 983 (5th Cir. 2009) (per curiam) ("Section
1915(e)(2)(B) requires dismissal of frivolous IFP actions even if those actions are brought by non-

prisoner plaintiffs."). The Court finds in accord with these authorities that Section 1915(e)(2)(B)
applies to non-prisoners and prisoners alike and, accordingly, has performed an initial review of
the allegations.
B. Section 1983/Bivens
Federal law provides a cause of action against any person who, under the color of state law,
acts to deprive another of any right, privilege, or immunity secured by the Constitution and laws
of the United States. 42 U.S.C. § 1983. In order to hold the defendant liable, a plaintiff must allege
facts to show (1) that a constitutional right has been violated and (2) that the conduct complained
of was committed by a person acting under color of federal law; that is, that the defendant was a
government actor. See West v. Atkins, 108 S. Ct. 2250, 2254–55 (1988).
C. Judicial Immunity
Plaintiff sues the following judicial officials: Louisiana Supreme Court Justices John L.
Weimer, William J. Crain, Scott J. Crichton, Jefferson D. Hughes, III, Jay B. McCallum, Piper D.

Griffin and James T. Genovese; Louisiana Third Circuit Court of Appeals Judges Shannon J.
Gremillion, Charlie G. Fitzgerald, Gary Ortego, Elizabeth A. Pickett, Van H. Kyzer, Sharon D.
Wilson, H. Guy Bradberry, Wilbur Stiles, Ulysses G. Thibodeaux, Candyce Perret, Jonathan Perry
and Ledricka J. Theirry; Louisiana State Court Judges Claydon Davis and Charles A. Porter;
Louisiana Supreme Court Administrative Officer Catherine Babin; Third Circuit Court of Appeals
Deputy Clerks Heather, Debbie Stevens and Melodie Manuel, and Supervisory Clerk Renee
Simien ; 14th Judicial District Court Clerks H. Lynn Jones, Thomas Cole, Jacko Fontenot, Courtnie
Anderson; and Judicial Assistant Dusty Higgs.
It is well settled that "[j]udicial officers are entitled to absolute immunity from claims for

damages arising out of acts performed in the exercise of their judicial discretion." Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir.1994); Krueger v. Reimer, 66 F.3d 75, 76-77 (5th Cir.1995) (per curiam);
Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.1993), abrogated on other grounds by Arvie v.
Broussard, 42 F.3d 249 (5th Cir.1994). "A judge is absolutely immune from liability for his
judicial acts even if his exercise of authority is flawed by the commission of grave procedural
errors." Stump v. Sparkman, 435 U.S. 349, 359 (1978); Brandley v. Keeshan, 64 F.3d 196, 200-
201 (5th Cir.1995), cert. denied, 516 U.S. 1129 (1996). Judicial immunity is an immunity from
suit and not just from the ultimate assessment of damages. Mireles v. Waco, 502 U.S. 9, 11, 112
S.Ct. 286, 116 L.Ed.2d 9 (1991). "Although unfairness and injustice to a litigant may result on
occasion, 'it is a general principle of the highest importance to the proper administration of justice
that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own
convictions, without apprehension of personal consequences to himself.' " Id. at 10, 112 S.Ct. 286
(citation omitted).
Judicial immunity is a matter of policy and is necessary because a judge "... should not

have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption
[and] [i]mposing such a burden on judges would contribute not to principled and fearless
decisionmaking but to intimidation." Pierson v. Ray, 386 U.S. 547, 554 (1967). Consequently,
judicial immunity cannot be overcome even by allegations of bad faith or malice; such immunity
"applies even when the judge is accused of acting maliciously and corruptly." Id. at 11, 112 S.Ct.
286 (internal quotation marks and citation omitted). In determining whether a judge is entitled to
immunity, "[i]t is the Judge's actions alone, not intent, that we must consider." Malina v. Gonzales,
994 F.2d 1121, 1125 (5th Cir.1993).
Judicial immunity can only be defeated by showing that the judge's actions were of a non-

judicial nature or that he acted in the complete absence of jurisdiction. Mireles v. Waco, 502 U.S.
9, 11-12 (1991). In determining whether the complained of actions were non-judicial in nature,
that is to say, whether the judge acted outside the scope of his judicial capacity, the court should
consider a variety of factors: (1) whether the precise act complained of is a normal judicial
function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the
judge's chambers; (3) whether the controversy centered around a case pending before the court;
and (4) whether the acts arose directly out of a visit to the judge in his official capacity. Malina,
994 F.2d at 1124 (citation omitted). These factors must be broadly construed in favor of immunity.
Id.
Courts use the "functional" approach in deciding whether an act is judicial for purposes of
immunity. Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985). The issue of "immunity analysis
rests on the status of the defendant. Absolute immunity flows not from rank or title or 'location
within the Government,' but from the nature of the responsibilities of the individual official." Id.
In deciding whether absolute judicial immunity applies, a court should consider the nature of the

act taken, namely whether it is a function normally performed by a judge, and the expectations of
the parties, namely whether they dealt with the judge in his judicial capacity. Stump v. Sparkman,
435 U.S. 349, 362 (1978).
Plaintiff’s claims against the above-named judicial officials arise out of numerous civil and
criminal matters spanning decades. The gravamen of his complaint centers around the 2023
lawsuit filed in the 14th Judicial District Court, presided over by Judge Davis. Plaintiff attacks
numerous rulings made by Judge Davis including denial of a motion to recuse and denial of
plaintiff’s request for preliminary injunction. He also faults the state appellate court judges for the
manner in which they ruled upon motions heard by those courts. Clearly, plaintiff sues the judges

for acts that arose out of their normal judicial function and they are entitled to absolute judicial
immunity.
Moreover, plaintiff's claims against the judicial officials- clerks, administrative officers
and assistants, must also fail. The Fifth Circuit has held that court personnel - including the Clerk
of Court - are entitled to absolute immunity from suit to the extent that they are acting at the judge's
direction. Clay v. Allen, 242 F.3d 679, 682 (5th Cir.2001) (holding that court clerks are entitled to
absolute immunity for acts they are specifically required to do under court order or at a judge's
discretion). A judge's law clerk is also absolutely immune from damage claims arising from
actions taken by the law clerk in assisting the judge in carrying out his judicial functions. Mitchell
v. McBryde, 944 F.2d 229, 230 (5th Cir.1991). The Court officials named herein are thus immune
from suit.
D. Eleventh Amendment Immunity
As to plaintiff's claims against the State of Louisiana, the Eleventh Amendment bars a
federal court from "entertain[ing] a suit brought by a citizen against his own State." Pennhurst

State School & Hospital v. Halderman, 465 U.S. 89, 98 (1984); Voisin's Oyster House, Inc. v.
Guidry, 799 F.2d 183, 185-86 (5th Cir.1986). Although a state may waive its Eleventh Amendment
sovereign immunity, the State of Louisiana has not done so. See Edelman v. Jordan, 415 U.S. 651,
673 (1974) (holding that a state's consent to suit against it in federal court must be expressed
"unequivocally"). Thus, plaintiff's claims against the state must be dismissed in accordance with
the provisions of 28 U.S.C. § 1915(e)(2)(B)(iii).
E. Calcasieu Parish
Plaintiff has sued Calcasieu Parish. In order to hold a Louisiana parish liable under Section
1983 for the misconduct of its employees, a civil rights plaintiff must allege that an official policy

or custom was a cause in fact of the deprivation of rights inflicted. To satisfy this requirement, the
plaintiff must allege that the custom or policy he has identified either served as a moving force
behind the constitutional violation at issue or that his injury resulted from the execution of an
official policy or custom. The description of a policy and its relationship to the underlying
constitutional violation cannot be conclusory; it must contain specific facts. Spiller v. City of Texas
City, Police Department, 130 F.3d 162, 167 (5th Cir.1997) Further, "[a] plaintiff may not infer a
policy merely because harm resulted from some interaction with a governmental entity." Colle v.
Brazos County, Texas, 981 F.2d 237, 245 (5th Cir.1993). Plaintiff has failed to do so.
F. State Actors
Under § 1983, individuals maintain a private right of action to redress the violation of
constitutional rights or federal law by those acting under color of state law. Tex. Mfr'd. Hous. Ass'n,
Inc. v. City of Nederland, 101 F.3d 1095, 1106 (5th Cir. 1996). The statute is not itself a source of
substantive rights, but rather it "merely provides 'a method for vindicating federal rights elsewhere

conferred.'" Albright v. Oliver, 114 S. Ct. 807, 811 (1994) (quoting Baker v. McCollan, 99 S. Ct.
2689, 2694, n.3 (1979)). To state a claim of relief under § 1983, the plaintiff must allege that
defendants were persons acting under color of state law who deprived him of a right secured by
the Constitution or the laws of the United States. American Mfrs. Mut. Ins. Co. v. Sullivan, 119 S.
Ct. 977, 985 (1999); Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984). A private person or
non-state actor may also be liable under § 1983 if there is some proof of an overt joint action taken
with the State or one of its agents, to violate his constitutional rights. Dennis v. Sparks, 449 U.S.
24, 27-28 (1980); Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993); Hobbs v. Hawkins, 968
F.2d 471, 480 (5th Cir. 1992).

Plaintiff’s claims against his church, Cathedral of Faith Missionary Baptist Church,
individuals, Darryl Washington, Lankton Doucet, Kenneth Smith, Tonda Moreland and Augustine
Walker, and Pastors Martin T. Ceaser, Carl R. White, Jimmy R. Stevens, Terry L. Avrie are barred
because these individuals are not state actors, nor has plaintiff provided any proof of an overt joint
action taken with the State or one of its agents to violate his constitutional rights.
The Court also concludes that Plaintiff has not alleged sufficient facts to fulfill the state
action requirement against Wilshire Insurance Company, Louisiana Farm Bureau Casualty
Insurance Company, and Government Employees Insurance Co. (GEICO); claims adjusters David
Smeltz, Kenneth Miller, Matt Slomiony, Dan Dinnis, Jimmy Dole and Amanda Treadwell; GEICO
executives Olza Minor Nicely, Bill Roberts, Shane Wheeler and Todd Combs; Del Mars Building,
Del Mar Roofing, Morris Mark Stogner, Kimberly Fuselier, Jeffery Allen Goudeau, Merric
Defejan and Warrden Buffett. Accordingly, Plaintiff cannot state a § 1983 claim against them.
Finally, claims against attorneys Michael K. Cox, Richard Wilson, Somer G. Brown, Tara
E. Clement, Robert I. Siegel, Patrick O. Weilbaecher, Van C. Seneca, L. Paul Foreman, Christian

D. Chesson, James H. Gibson, Anna M. Grand, Jackson Ritchie, Marc T. Amy, Paulin Joseph
Laborde, Jr. Leah Cook, David J. Williams, Connie Lync, the law firms of Taylor Porter Brooks
& Phillips, Cox Cox Filo Camel Wilson & Brown , LLC, Geiger Laborde & Laperouse, LLC, are
barred because they are not state actors. A private attorney is not a state actor within the meaning
of Section 1983. See Mouton v. Louisiana, 547 Fed. Appx. 502, 502-03 (5th Cir. 2013). For the
same reasons, claims against paralegal Letha Reed and legal secretary Patricia Fernandez are
barred.
III.
CONCLUSION

For reasons stated above, IT IS RECOMMENDED that this matter be DISMISSED
WITH PREJUDICE as frivolous, for failing to state a claim for which relief may be granted, and
for seeking money damages against a defendant who is immune from suit, pursuant to the
provisions of 28 U.S.C. § 1915(e)(2)..
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties have fourteen (14) days from receipt of this Report and Recommendation to
file written objections with the Clerk of Court. Failure to file written objections to the proposed
factual findings and/or the proposed legal conclusions reflected in this Report and
Recommendation within fourteen (14) days of receipt shall bar an aggrieved party from attacking
either the factual findings or the legal conclusions accepted by the District Court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1429-30
(5th Cir. 1996).
THUS DONE AND SIGNED in Chambers this 9" day of October, 2024.

CAROL B.WHITEHURST ~—
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10767332. Public record. Not legal advice.