Sibley v. Dick

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BRANDON SIBLEY, ET AL. CIVIL ACTION NO. 23-0024

VERSUS JUDGE S. MAURICE HICKS, JR.

SHELLY D. DICK, ET AL. MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING

Before the Court are two Motions to Dismiss filed pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). See Record Documents 50 & 57. The first motion was

filed by Defendant Chief Judge Shelly D. Dick (“Chief Judge Dick”) of the Middle District

of Louisiana. See Record Document 50. Plaintiff Melanie Jerusalem (“Jerusalem”)

opposed the Motion to Dismiss. See Record Document 61. The second motion was filed

by Defendant Metropolitan Security Services, Inc. d/b/a Walden Security (“Walden

Security”). See Record Document 57. Plaintiff Brandon Sibley (“Sibley”) opposed the

Motion to Dismiss. See Record Documents 63& 64. For the reasons set forth below,

both Motions to Dismiss (Record Documents 50 & 57) are GRANTED.

BACKGROUND

Acting pro se, Plaintiffs Howard Brown, Sibley, and Jerusalem filed the instant

lawsuit alleging a violation of constitutionally protected rights (Bivens action), violation of

42 U.S.C. § 1985 (conspiracy to violate constitutional rights), common law conspiracy,

violation of 42 U.S.C. § 2000(a), and grossly negligent infliction of emotional distress.

See Record Document 22 at 8. Their complaint centers around three COVID-related

orders issued by Chief Judge Dick in the Middle District of Louisiana. See id. at 9.

Plaintiffs maintain that these orders – Administrative Order Nos. 2020-8, 2021-5, and

2022-3 – were unconstitutional on their face. See id. They seek a declaratory judgment

that the Administrative Orders (“AOs”) are unconstitutional, to enjoin the enforcement of

the AOs, and damages for each alleged denial of entry to the Russell B. Long Federal

Building and United States Courthouse (“the Courthouse”).

Administrative Order No. 2020-8 (Pandemic Related Curtailed Operations) was

issued on June 30, 2020 and provided in pertinent part:

All employees and persons having business in the Russell B. Long

Courthouse and Federal Building shall be required to wear masks when in

any public space in the buildings, shall observe social distancing, and shall

observe all posted signs and placards.

Record Document 22-1 at 3. Administrative Order No. 2021-5 (Pandemic Related

Curtailed Operations) was issued on July 22, 2021 and provided in pertinent part:

All employees and persons having business in the Russell B. Long Federal

Building and United States Courthouse and the United States Bankruptcy

Court shall be required to wear masks when in any public space in the

buildings, shall observe physical distancing, and shall observe all posted

signs and placards, regardless of vaccination status.

Record Document 22-3 at 3. Administrative Order No. 2022-3 (Revised Pandemic

Masking Requirements) (“AO 2022-3) was issued on March 15, 2022 and provided in

pertinent part:

[P]ursuant to the authority granted to the Chief Judge presiding over a

primary courthouse building and pursuant to the approval granted by the

Facility Security Committee governing multi-tenant facilities, fully

vaccinated individuals are no longer required to wear a mask within the

Russell B. Long Federal Building and United States Courthouse and the

U.S. Bankruptcy Court (“the Courthouses”). In order to unmask, individuals

having business in the Courthouses must provide proof of vaccination upon

entry. Acceptable forms of proof of vaccination include the Centers for

Disease Control’s (CDC’s) COVID-19 Vaccination Record Card issued by

the vaccine provider or, for attorneys and others permitted to enter the

Courthouses with personal electronic devices, the SMART Health Card

record that can be found in the LA Wallet application for mobile devices. If

proof of vaccination is not provided upon entry, the individual must wear a

mask at all times in the Courthouses. Individuals who are not fully

vaccinated shall be required to wear masks. Anyone who fails or refuses to

comply will be required to leave the Courthouses immediately. This Order

does not prohibit individuals from electing to wear a mask, regardless of

vaccination status.

Record Document 22-2 at 2-3. “Fully vaccinated” was “defined as two weeks after

receiving the second dose of a two-dose vaccine (Pfizer or Moderna) or the single-does

vaccine (Johnson & Johnson).” Id. at 2 n.1. All three AOs were signed by Chief Judge

Dick. The orders were carried out by the United States Marshals Service (“USMS”) and/or

Walden Security, acting pursuant to a contract with, and under the direction of, the USMS.

See Record Document 22 at 18, 21, 26, & 32. On March 29, 2023, Chief Judge Dick

issued Administrative Order No. 2023-2 (“AO 2023-2”). See United States District Court,

Middle District of Louisiana, https://www.lamd.uscourts.gov/orders/public_

orders/AO%202023-2.pdf (last visited March 11, 2025). It rescinded AO 2022-3 and

provided that “entrants to the Russell B. Long Federal Building and United States

Courthouse and the U.S. Bankruptcy Court are no longer required to wear a mask,

regardless of vaccination status.” Id.1

At various times, Plaintiffs were denied entry to the Courthouse since they did not

provide proof of vaccination and would not wear a mask. Plaintiffs allege that Chief Judge

Dick acted outside the scope of her judicial capacity as a United States District Judge in

issuing the AOs. See Record Document 22 at 5. More specifically, Plaintiffs contend that

Chief Judge Dick defied “logic and reason in forcing medical decisions upon the general

public; requiring the Plaintiffs and others similarly situated . . . to either take experimental

1 Federal Rule of Civil Procedure Rule 201(b) provides that “the court may judicially notice

a fact that is not subject to reasonable dispute because it: (1) is generally known within

the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.” Judicial notice of matters of

public record includes materials like court orders. See Davis v. Bayless, 70 F.3d 367,

372 (5th Cir. 1995) (taking judicial notice of state court orders). Generally, the court does

not look beyond the face of the pleadings in deciding a Rule 12(b)(6) motions. However,

courts are permitted to consider materials subject to judicial notice. See Norris v. Hearst

Trust, 500 F.3d 454, 461 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion

to take judicial notice of matters of public record.”).

drugs or to forcibly wear a mask to enter the Federal Courthouse.” Id. at 6. Plaintiffs

submit that Chief Judge Dick acted without “any legal or lawful authority.” Id.

Walden Security is a federal contractor that employed Court Security Officers

(“CSOs”) at the Courthouses. See id. at 20. Plaintiffs allege that the CSOs employed by

Walden Security “acted in a wanton disregard for the rule of law, hiding behind capricious

and arbitrary administrative orders.” Id. Additionally, they maintain the CSOs conspired

“to violate inherent, sacred, and inviolable rights.” Id.

Chief Judge Dick and Walden Security have now moved to dismiss all of Plaintiffs’

claims against them. See Record Documents 50 & 57. Chief Judge Dick asserts absolute

judicial immunity and further notes that Plaintiffs’ claims for declaratory and injunctive

relief are moot since the AOs have been rescinded. See Record Document 51 at 2.

Walden Security asserts derivative absolute immunity. See Record Document 57-1 at 4-

5.

LAW AND ANALYSIS

I. Rule 12(b)(1) and 12(b)(6) Standards.

“Under Federal Rule of Civil Procedure 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.” Turner v. Scott, No. 18-00998, 2019 WL 3771751, at *1

(M.D. La. Aug. 9, 2019) (quoting In re FEMA Trailer Formaldehyde Prods. Liability

Litigation, 668 F. 3d 281, 286 (5th Cir. 2012)). Furthermore, “[a] motion to dismiss under

Rule 12(b)(1) is analyzed under the same standard as a motion to dismiss under Rule

12(b)(6).” Id. (citing Benton v. United States, 960 F. 2d 19, 21 (5th Cir. 1992)). The party

asserting jurisdiction has the burden of proof under Rule 12(b)(1). See Wells v. Dep’t of

Children and Family Servs., No. 23-354, 2024 WL 3319925, at *2 (M.D. La. Jan. 24,

2024).

Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a

party’s pleading for failure to state a claim upon which relief may be granted. FED. R.

CIV. P. 12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss, a court generally “may

not go outside the pleadings.” Colle v. Brazos Cnty., Tex., 981 F. 2d 237, 243 (5th Cir.

1993). Additionally, courts must accept all allegations in a complaint as true. See Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). However, courts do not have

to accept legal conclusions as facts. See id. Courts considering a motion to dismiss

under Rule 12(b)(6) are only obligated to allow those complaints that are facially plausible

under the Iqbal and Twombly standards to survive such a motion. See id. at 678–79,

1949–50. If the complaint does not meet this standard, it can be dismissed for failure to

state a claim upon which relief can be granted. See id.

“Although a ‘pro se complaint is to be construed liberally with all well-pleaded

allegations taken as true,’ a pro se plaintiff nevertheless must plead sufficient factual

matter that supports her claim to relief in order to survive a Rule 12(b)(6) motion to

dismiss.” Craig v. Bolner, No. 15-00815, 2017 WL 4228757, at *1 (M.D. La. Sept. 22,

2017) (quoting Johnson v. Atkins, 999 F. 2d 99, 100 (5th Cir. 1993)). Furthermore, “[e]ven

a liberally construed pro se civil rights complaint, however, must set forth facts giving rise

to a claim on which relief may be granted.” Id.

II. Sovereign Immunity.

An action against a federal official in his official capacity is actually a suit against

the sovereign – the United States. See McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407,

413-414 (5th Cir. 2004). Federal courts generally lack jurisdiction to entertain such claims

in accordance with principles of sovereign immunity. See McCarrell v. Davis, No. A-17-

CV-668-LY-ML, 2017 WL 11221248, at *2 (W.D. Tex. July 31, 2017), report and

recommendation adopted, No. 1:17-CV-668-LY, 2017 WL 11221249 (W.D. Tex. Aug. 25,

2017). The United States may not be sued without its consent. See United States v.

Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965 (1983). The existence of consent is a

prerequisite for jurisdiction. See id. “A waiver of sovereign immunity cannot be implied

but must be unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538, 100

S.Ct. 1349, 1351 (1980). “Thus, a party seeking to bring a claim against a federal official

acting in his or her official capacity – and therefore, as a matter of law, against the United

States—must identify a specific waiver of immunity in order to establish jurisdiction.”

McCarrell, 2017 WL 11221248, at *2.

III. Absolute Judicial Immunity and Derivative Judicial Immunity.

“Like other forms of official immunity, judicial immunity is an immunity from suit,

not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11, 112 S.

Ct. 286, 288 (1991). Judicial immunity cannot be overcome by allegations of bad faith or

malice. See id. Absolute judicial immunity is defeated in only two instances: (1) the

“judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the

judge’s judicial capacity”; and (2) “a judge is not immune for actions, though judicial in

nature, taken in the complete absence of all jurisdiction.” Id. “The scope of [a] judge’s

jurisdiction must be construed broadly where the issue is the immunity of the judge.”

Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1105 (1978).

In determining whether an act is judicial in nature, courts must consider four

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 [or her]

official capacity.” Laird v. Spencer, No. 20-30237, 2025 WL 79826, at *3 (5th Cir. Jan.

13, 2025). The Fifth Circuit broadly construes these factors in favor of immunity. See id.

Court are permitted to extend immunity even if one or more of the factors is not satisfied.

See id.

“Derived judicial immunity shields individuals who act pursuant to explicit directions

or procedures of a judge, such as a court clerk, a bailiff, or a sheriff involved in judicial

process.” Brown v. United States Postal Inspection Serv., 206 F. Supp. 3d 1234, 1251

(S.D. Tex. 2016), citing Clay v. Allen, 242 F.3d 679, 682 (5th Cir.2001). “The significant

reasons underlying the grant of absolute immunity to those officials who carry out the

facially valid orders of a court with proper jurisdiction are not difficult to discern.” Mays v.

Sudderth, 97 F.3d 107, 112 (5th Cir. 1996). “[E]nforcing or executing a court order is

intrinsically associated with a judicial proceeding.” Bush v. Rauch, 38 F.3d 842, 847 (6th

Cir.1994). Immunity afforded for enforcement of a valid court order “is essential to insure

the fearless and unhesitating execution of court orders necessary if the court’s authority

and ability to function are to remain uncompromised.” Mays, 97 F.3d at 112. Additionally,

“because judges are absolutely immune from suit for judicial actions taken pursuant to

their jurisdiction, to deny similar protection to government officials executing their orders

would render the officials lightning rods for harassing litigation aimed at judicial orders.”

Id. at 113. Officials charged with executing a facially valid court order have no choice but

to do so and they “should not be required to make the . . . choice between disobeying the

court order or being haled into court to answer for damages.” Id. Thus, courts generally

“conclude that an official acting within the scope of his authority is absolutely immune

from a suit for damages to the extent that the cause of action arises from his compliance

with a facially valid judicial order issued by a court acting within its jurisdiction.” Id.

IV. Analysis.

A. Chief Judge Dick.

Chief Judge Dick was sued in her official and individual capacities. Even affording

Plaintiffs’ complaint a liberal construction, they have failed to identify any waiver of

sovereign immunity. Accordingly, sovereign immunity deprives this court of jurisdiction

to entertain any of Plaintiffs’ claims against Chief Judge Dick in her official capacity. See

McCarrell, 2017 WL 11221248, at *2; see also Rivera v. United States, 907 F. Supp. 1027

(W.D. Tex. 1995) (“Absent a specific waiver of sovereign immunity, this Court lacks

subject matter jurisdiction.”); Smith v. Krieger, 389 F. App’x 789, 795 (10th Cir. 2010)

(explaining that the plaintiff bears the burden to identify a specific waiver of sovereign

immunity to bring official capacity claims against a federal district court judge).

As to Plaintiffs’ individual capacity claims against Chief Judge Dick, this Court must

consider absolute judicial immunity. In Coombs v. United States, No. 21-CV-3761 (LTS),

2021 WL 2453496, at *2 (S.D.N.Y. June 15, 2021), the plaintiff alleged that certain

standing orders in response to COVID-19 were unconstitutional and sued the Chief Judge

of the Southern District of New York, who had issued the standing orders. The court held:

Issuing standing orders is within the scope of former Chief Judge

McMahon’s authority and jurisdiction, and she is therefore absolutely

immune from suit for any claim arising from adoption of Standing Order

M10-468. Plaintiff’s claims against Judge McMahon are therefore

dismissed with prejudice based on absolute judicial immunity.

Id. at *3. Here, Chief Judge Dick’s AOs proscribed the conduct of civil and criminal court

proceedings and courthouse access during the novel COVID-19 pandemic. As noted in

Coombs, these actions are normal judicial functions within Chief Judge Dick’s authority

and jurisdiction. See also Odom v. Martin, 229 F.3d 1153 (6th Cir. 2000) (holding judges

“entitled to judicial immunity for their issuance of administrative orders regarding the

interpretation of the PLRA to be followed in their respective courts, as the issuance of

such orders are judicial functions.”). Chief Judge Dick is entitled to absolute judicial

immunity. Her Motion to Dismiss (Record Document 50) is GRANTED in its entirety.2

B. Walden Security.

Walden Security does not dispute that it carried out the AOs at issue, all the time

acting pursuant to a contract with, and under the direction of, the USMS. Plaintiffs make

no suggestion that any Walden Security personnel did anything more than what was

required by the AOs. Plaintiffs’ claims against Walden Security directly relate to its

personnel acting as directed by the AOs.

This Court has already determined that Chief Judge Dick is entitled to absolute

immunity since Plaintiffs’ claims flow from AOs issued as part of her normal judicial

functions and within her authority and jurisdiction. In this instance, Walden Security is

likewise entitled to derivative judicial immunity. This holding is essential to guarantee the

seamless execution of court orders and to prevent the CSOs from becoming “lightning

rods for harassing litigation aimed at judicial orders.” Mays, 97 F.3d at 112-113. Walden

Security’s Motion to Dismiss (Record Document 57) is GRANTED in its entirety.

C. Declaratory and Injunctive Relief.

To the extent necessary, the Court will now address Plaintiffs’ claims for

declaratory and injunctive relief, namely that the AOs are unconstitutional and that this

2 Absolute judicial immunity bars both federal and state law claims. See McCoy v. Bogan,

No. CV 20-388-JWD-SDJ, 2022 WL 4492781, at *7 (M.D. La. Sept. 9, 2022), report and

recommendation adopted, No. CV 20-388-JWD-SDJ, 2022 WL 4490159 (M.D. La. Sept.

27, 2022), citing Sharp v. Palmisano, 2013 WL 5969661, at *4 (E.D. La. Nov. 8, 2013)

(judicial immunity bars state law claims under Louisiana law).

Court should enjoin the enforcement of such orders. As noted previously, AO 2023-2

rescinded the previous COVID-19 restrictions, specifically stating that “entrants to the

Russell B. Long Federal Building and United States Courthouse and the U.S. Bankruptcy

Court are no longer required to wear a mask, regardless of vaccination status. See United

States District Court, Middle District of Louisiana, https://www.lamd.uscourts.gov/

orders/public_orders/AO%202023-2.pdf (last visited March 11, 2025). Because the AOs

at issue in this case have all been rescinded, there is no longer a concrete effect on

Plaintiffs. Resolution of Plaintiffs’ disputes regarding the lawfulness of the AOs no longer

presents a live case or controversy.

The Fifth Circuit recently discussed mootness in the context of challenges to

statutes, orders, and ordinances, reasoning:

Mootness is one of the doctrines that ensures federal courts are only

deciding live cases or controversies. Campbell-Ewald Co. v. Gomez, –––

U.S. ––––, 136 S. Ct. 663, 669, 193 L.Ed.2d 571 (2016). A matter is moot

“when it is impossible for a court to grant any effectual relief whatever to the

prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,

307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (quotations omitted).

It makes sense, then, that a case challenging a statute, executive

order, or local ordinance usually becomes moot if the challenged law has

expired or been repealed. See, e.g., Veasey v. Abbott, 888 F.3d 792, 799

(5th Cir. 2018) (“Ordinarily, a[n] [action] challenging a statute would become

moot by the legislature's enactment of a superseding law.”). Once the law

is off the books, there is nothing injuring the plaintiff and, consequently,

nothing for the court to do. See N.Y. State Rifle & Pistol Ass’n, Inc. v. City

of New York, ––– U.S. ––––, 140 S. Ct. 1525, 1526, 206 L.Ed.2d 798 (2020)

(holding that a claim for injunctive relief against a law was moot when the

law was amended to give “the precise relief that [the plaintiffs] requested”);

Amawi v. Paxton, 956 F.3d 816, 819, 821 (5th Cir. 2020) (dismissing an

appeal as moot because a statutory amendment “provided the plaintiffs the

very relief their lawsuit sought”).

Spell v. Edwards, 962 F.3d 175, 178-179 (5th Cir. 2020). Notwithstanding, a defendant

cannot moot a case simply by ending its alleged unlawful conduct once sued. See

Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 727 (2013). “Government

officials in their sovereign capacity and in the exercise of their official duties are accorded

a presumption of good faith because they are public servants, not self-interested private

parties.” Yarls v. Bunton, 905 F.3d 905, 910-911 (5th Cir. 2018). Absent evidence to the

contrary, courts “assume that formally announced changes to official governmental policy

are not mere litigation posturing.” Id. at 911. Here, Plaintiffs have not presented any

contrary evidence. Moreover, the rescission of the pandemic masking requirements in

this case resulted from a fundamental change in public health conditions, that is, the end

of the Federal COVID-19 Public Health Emergency Declaration. See Record Document

51 at 9 n.2.

This case also does not fall within the “exceptional situation[]” covered by the

“capable-of-repetition doctrine.” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 988

(1998). This exception applies when two circumstances are simultaneously present: (1)

the challenged action is in its duration too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation that the same complaining party will

be subject to the same action again. See id. Focusing on circumstance number two,

Plaintiffs cannot meet their burden to establish the capable-of-repetition doctrine

exception applies. Plaintiffs’ challenge of the AOs focused on the issuance of a mask

mandate to combat the spread of a novel pandemic in its early stages. The impacts of

the COVID-19 pandemic were felt worldwide and the majority of state and federal

government agencies had masking mandates or other COVID-19 restrictions in place.

There is no reasonable likelihood that Plaintiffs’ fact-specific dispute will repeat itself, nor

that Chief Judge Dick will issue another mask mandate due to a serious public health

danger arising from a communicable disease. See, e.g., Spell, 962 F.3d at 180 (holding

that challenge to an expired COVID-19 stay-at-home order was not capable of repetition

yet evading review because it was “speculative, at best” that a similar order raising the

same issues would recur); County of Butler v. Governor of Pennsylvania, 8 F.4th 226,

230-231 (3rd Cir. 2021) (similar); Brach_v. Newsom, 38 F.4th 6, 15 (9th Cir. 2022)

(similar); Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (similar). The Fifth

Circuit requires more than a mere theoretical possibility that the challenged conduct will

occur again. See Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010). For these

reasons and to the extent necessary, Chief Judge Dick's Motion to Dismiss (Record

Document 50) Plaintiffs’ claims for declaratory and injunctive relief is GRANTED.

CONCLUSION

For the reasons set forth above, the Motions to Dismiss (Record Documents 50 &

57) filed by Chief Judge Dick and Walden Security are GRANTED. All of Plaintiffs’ claims

against Chief Judge Dick and Walden Security are DISMISSED WITH PREJUDICE.

An order consistent with the terms of the instant Memorandum Ruling shall issue

herewith.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 12th day of March,

2025.

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