Dunn

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

MICHAEL DUNN CASE NO. 6:21-CV-01535

VERSUS JUDGE ROBERT R. SUMMERHAYS

RANDY FONTENOT ET AL MAGISTRATE JUDGE DAVID J. AYO

MEMORANDUM RULING

The present matters before the Court are (1) the Rule 12(c) Motion for Judgment on the

Pleadings [ECF No. 219] filed by Ryan Young; (2) the Motion for Summary Judgment on behalf

of Defendant, Lt. Ryan Young [ECF No. 237]; (3) the Motion for Summary Judgment [ECF No.

241] filed by the City of Eunice; (4) Plaintiff Michael Dunn’s Motion for Partial Summary

Judgment [ECF No. 252]; and (5) the Motion to Dismiss under Rules (12)(b)(1), 12(b)(6), and

12(c) [ECF No. 254] filed by the City of Eunice. Oppositions have been filed to each respective

motion. The Court took these motions under advisement following oral argument. After

considering the parties’ arguments, the record, and the relevant authorities, the Court rules as

follows.

1.

BACKGROUND

Plaintiff Michael Dunn asserts First Amendment retaliation and whistleblower claims

arising out of his employment with the City of Eunice. Dunn is a lieutenant with the Eunice Police

Department (“EPD”).' He alleges that he observed “pervasive corruption and misconduct” at EPD

under former chief Fontenot’s leadership from 2017 until Fontenot’s retirement.” Dunn alleges that

1 ECF No. 128 at 19.

2 Id. at 492, 3, 32.

Page 1 of 45

he reported numerous instances of misconduct by his fellow officers, including use of excessive

force, neglect of the medical needs of inmates, mishandling evidence, and misuse of funds.* Dunn

alleges that he reported this corruption and misconduct to state, local, and federal authorities when

the EPD failed to address his complaints.* Dunn also alleges that he notified these authorities that

former chief Fontenot selectively enforced the law and “weaponized” the disciplinary process to

prevent officers from exposing misconduct within the EPD.°

According to Dunn, former chief Fontenot discovered that he had reported Fontenot’s and

EPD’s alleged misconduct to outside authorities in June of 2020.° Dunn alleges that former chief

Fontenot, Lieutenant Ryan Young and Officer Victor Fontenot (collectively the “Individual

Defendants”) then “engaged in a campaign of retaliation against [Plaintiff] in an attempt to force

his resignation from [EPD] in violation of his First Amendment rights and numerous Louisiana

state laws.” Specifically, Dunn alleges six adverse employment actions that he contends were

taken in retaliation for the exercise of his First Amendment rights: (1) former chief Fontenot placed

him on administrative leave for social media posts; (2) he was removed from the Eunice Police

Department’s K-9 Unit; (3) he was removed from the department’s narcotics unit; (4) he was

transferred to the department’s night shift; (5) he was “effectively” demoted when he was allegedly

stripped of his duties and authority as a lieutenant in the department; and (6) he was

“constructively” demoted or discharged as a result of threats, criticism, false allegations, ostracism,

and efforts by former chief Fontenot and other officers to undermine Dunn’s reputation and

authority.®

3 Id.

4 Id. at 492, 3, 5, 32.

5 Td. at 4] 3; see also J 30-31; 51-54.

6 Id. at 4 5.

7 Id. at 2; see also 4 7.

8 ECF Nos. 1, 326.

Page 2 of 45

Dunn filed the present action on June 4, 2021, seeking declaratory and injunctive relief

against the City of Eunice, and the Individual Defendants.’ He does not seek damages. Rather,

Dunn contends that he filed the present action “to end corruption and wrongdoing within the [EPD]

and to establish a legitimate and effective mechanism for investigating complaints of police

misconduct in the City of Eunice.”!° After former chief Fontenot declined to run for reelection, in

the November 2022 election, Kyle LeBouef received the majority of the vote and was sworn into

office as the Chief of Police for the City of Eunice on December 29, 2022.!!

In his Amended Complaint, Dunn seeks a declaration that “Defendants’ actions and

inactions are unlawful and unconstitutional.”!* Dunn seeks a declaratory judgment in Count 1 “that

the Individual Defendants actions violated his First Amendment rights;”!? in Count 2 “that the

Individual Defendants’ actions constituted an illegal civil conspiracy;”!* in Count 3 that statements

of former chief Fontenot and Victor Fontenot “were false and defamatory;”!° in Count 4 that the

actions of former chief Fontenot and Victor Fontenot “constituted and constitute an illegal civil

conspiracy;”!® in Count 5 that the actions of former chief Fontenot and the City of Eunice

“constitute a violation of the Louisiana Whistleblower Statute;”!” in Count 6 “that the Individual

Defendants actions constituted intentional infliction of emotional distress;”!* in Count 7 that the

actions of former chief Fontenot and Victor Fontenot “actions constitute false light invasion of

privacy;”!? and in Count 8 “that the Individual Defendants actions violate his right to free speech

° ECF No. 128 at ff 20-23.

10 Td. at { 18.

" ECF No. 159, Exhibit A, Election Returns and Oath of Office.

ECF No. 128 at J 193.

13 Td. at § 133.

4 at § 139.

IS Td, at □ 150.

'6 Id. at § 156.

7 Id. at § 164.

'8 Id. at 9171.

9 Id. at § 176.

Page 3 of 45

under the Louisiana Constitution;””? and in Count 9 that the City of Eunice is liable under the

argument of municipal liability for violation of 42 U.S.C. § 1983. Dunn seeks an injunction

ordering the Individual Defendants to “halt all unlawful and unconstitutional actions” and to

“publicly apologize” to Dunn.?! He also seeks an injunction against the City of Eunice directing

the City to take numerous actions. On March 20, 2025, the Court dismissed all claims against

former chief Fontenot. Claims remain as to the City of Eunice, Victor Fontenot, Ryan Young and

unnamed John Doe defendants.

II.

LEGAL STANDARDS

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure permit a party

to challenge the subject matter jurisdiction of the district court.?* “[A] claim is ‘properly dismissed

for lack of subject matter jurisdiction when the court lacks the statutory authority or constitutional

power to adjudicate’ the claim.” Standing and mootness are required elements of subject matter

jurisdiction and are therefore properly challenged on a Rule 12(b)(1) motion to dismiss.*4 The

burden of proof on a Rule 12(b)(1) motion lies with the party asserting jurisdiction.”° A dismissal

based upon a lack of subject matter jurisdiction is warranted when “it appears certain that the

plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.”*°

“Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint

20 Td. at { 181.

1 Id. at § 194.

22 Fed. R, Civ. P. 12(b)(1).

*3 Griener v. United States, 900 F.3d 700, 703 (Sth Cir. 2018)(quoting Jn re FEMA Trailer Formaldehyde Prods. Liab.

Litig., 668 F.3d 281, 286 (5th Cir, 2012),

*4 See Moore v. Bryant, 853 F.3d 245, 248 n.2 (Sth Cir. 2017); North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct 402,

404, 30 L.Ed.2d 413 (1971).

25 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

26 at 161,

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alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”?”? When

filed in conjunction with other Rule 12 motions, “the court should consider the Rule 12(b)(1)

jurisdictional attack before addressing any attack on the merits.”**

“Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege enough

facts to state a claim to relief that is plausible on its face and fails to raise a right to relief above

the speculative level.””? “A legally sufficient complaint does not need to contain detailed factual

allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements

of a cause of action.’*° In order to avoid dismissal for failure to state a claim, a plaintiff must plead

specific facts, not mere conclusory allegations.*! Factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption that all the allegations in the complaint

are true.*?

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are

closed but within such time as not to delay the trial, any party may move for judgment on the

pleadings.” A motion for judgment on the pleadings under Rule 12(c) is subject to the same

standard as a motion to dismiss under Rule 12(b)(6).** The “inquiry focuses on the allegations in

the pleadings” and not on whether the “plaintiff actually has sufficient evidence to succeed on the

merits.”74

28 Rammine, 281 F.3d at 161 (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)).

° National Bi-Weekly Admin. Inc. y. Belo Corp., 512 F.3d 137, 140 (Sth Cir. 2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

3! Kaiser Aluminum & Chemical Sales v. Avondale Shipyards, 667 F.2d 1045 (5th Cir. 1982).

32 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (Sth Cir. 2007).

seam v. Bean Dredging, LLC, 589 F.3d 196, 209 (Sth Cir. 2009).

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Under Rule 56 of the Federal Rules of Civil Procedure, “[a] party may move for summary

judgment, identifying each claim or defense—or the part of each claim or defense—on which

summary judgment is sought.”** “The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’° “A genuine issue of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” As summarized by the Fifth

Circuit:

When seeking summary judgment, the movant bears the initial responsibility of

demonstrating the absence of an issue of material fact with respect to those issues

on which the movant bears the burden of proof at trial. However, where the

nonmovant bears the burden of proof at trial, the movant may merely point to an

absence of evidence, thus shifting to the non-movant the burden of demonstrating

by competent summary judgment proof that there is an issue of material fact

warranting trial.*8

When reviewing evidence in connection with a motion for summary judgment, “the court must

disregard all evidence favorable to the moving party that the jury is not required to believe, and

should give credence to the evidence favoring the nonmoving party as well as that evidence

supporting the moving party that is uncontradicted and unimpeached.”*? “Credibility

determinations are not part of the summary judgment analysis.”“” Rule 56 “mandates the entry of

summary judgment . . . against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof." Under Rule 56(f), a court may “[a]fter giving notice and a reasonable time to respond

35 Fed. R. Civ. P. 56(a).

36 Ta

Quality Infusion Care, Inc. vy. Health Care Service Corp., 628 F.3d 725, 728 (Sth Cir. 2010).

38 Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (Sth Cir.1994) (internal citations omitted).

Roberts v. Cardinal Servs., 266 F.3d 368, 373 (Sth Cir.2001); see also Feist v. Louisiana, Dept. of Justice, Office of the

Aity. Gen., 730 F.3d 450, 452 (Sth Cir. 2013) (court must view all facts and evidence in the light most favorable to the non-

moving party).

Quorum Health Resources, L.L.C. v. Maverick County Hosp. Dist., 308 F.3d 451, 458 (5th Cir, 2002).

4! Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004) (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

Page 6 of 45

... (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a

party; or (3) consider summary judgment on its own after identifying for the parties material facts

that may not be genuinely in dispute.”

Ill.

STANDING AND MOOTNESS

Defendants challenge Dunn’s claims on the grounds of standing and mootness. Since these

are jurisdictional challenges, they must be addressed before addressing Defendants’ arguments on

the merits. Jurisdiction under Article II] of the Constitution requires the presence of a “case or

controversy” among the parties to a federal lawsuit.” Standing is one aspect of this case-or-

controversy requirement.** Standing identifies “those disputes which are appropriately resolved

through the judicial process,’ and “serves to prevent the judicial process from being used to usurp

the powers of the political branches.’** Courts have adopted various “prudential” standing

doctrines but Article III standing requires at a minimum, that the plaintiff show (1) an “injury in

fact,” (2) a “causal connection between the injury and the conduct complained of,” and (3) a

showing that the injury will likely “be redressed by a favorable decision.””° The injury-in-fact

requirement ensures that the plaintiff has a “personal stake in the outcome of the controversy.”

The plaintiff’s injury must be “concrete, particularized, and actual or imminent ....’”** The

causation element of standing requires that the plaintiff's injury be “fairly traceable to the

U.S. Const. amend. III, § 2; Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1549 (2016).

‘8 Spokeo, Inc., 136 §.Ct. at 1549 (“[T]he doctrine of standing derives from [Article III’s] case-or-

controversy requirement. ...”)

“4 Lujan v, Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013).

© Lujan, 504 U.S. at 560-561.

Warth vy. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks omitted).

*8 Clapper, 568 U.S. at 409 (quoting Monsanto v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)).

Page 7 of 45

defendant’s allegedly unlawful conduct,”?while “redressability” requires a showing that the

plaintiff’s injury is likely to be redressed by the relief requested in the complaint.°°

In contrast, the Fifth Circuit has described “mootness” as “the doctrine of standing in a

time frame.”*! In other words, a plaintiff must not only establish that he or she has standing under

Article III at the commencement of the case, the plaintiffs personal stake that “exist[ed] at the

commencement of the litigation (standing)” must “continue throughout [the case’s] existence

(mootness).”°* Even if a plaintiff has standing at the commencement of the case, the case may

nevertheless become moot by events that occur during litigation and eliminate the plaintiff's

personal interest in the case. **

In the present case, Dunn alleges former Eunice Police Chief Randy Fontenot conspired

with other members of the Department (including defendants Ryan Young and Victor Fontenot) to

engage in “a campaign of retaliation against [Plaintiff] in an attempt to force his resignation from

[EPD] in violation of his First Amendment rights and numerous Louisiana state laws.’”** The crux

of Defendants’ standing and mootness arguments is that Randy Fontenot is no longer the Eunice

Police Chief and Dunn cannot point any facts showing that the current Eunice Police Chief, Kyle

LeBoeuf, has engaged in any campaign to retaliate against him. As a result, according to

Defendants, the retaliatory campaign ceased with Fontenot’s departure. Because Dunn is only

seeking prospective injunctive and declaratory relief and not damages, Defendants argue that any

injuries he suffered resulting from Randy Fontenot’s actions are not redressable by purely

Allen v. Wright, 468 U.S. 737, 751 (1984).

31 owes for Individual Freedom yv. Carmouche, 449 F.3d 655, 661 (5" Cir. 2006) (quoting United States Parole

‘nv. Geraghty, 445 U.S. 388, 397 (1980)).

53 Pool v, City of Houston, 978 F.3d. 307, 313 (Sth Cir, 2020).

4 Jd. at | 2; see also 97.

Page 8 of 45

prospective relief. Alternatively, they argue that Fontenot’s departure during the pendency of the

case moots Dunn’s claims.

Dunn argues that prospective injunctive and declaratory relief would restore his reputation

and the status and duties that were stripped from him during Randy Fontenot’s tenure. Dunn points

to the allegation in his Amended Complaint that his injuries “continue to this day.”°> He alleges

that former chief Fontenot and the other defendants “launched a retaliatory campaign designed to

‘get rid’ of Lt. Dunn,” and that they “spread false allegations that Lt. Dunn was a ‘dirty’ and

‘corrupt’ cop.”°° According to Dunn, the “fallout” from this campaign “continue[] to harm Lt.

Dunn by hindering his career advancement, diminishing his job prospects, and making him a

villain in the eyes of some colleagues and residents of Eunice—which also has the consequence

of making Lt. Dunn’s job more dangerous and threatening his physical safety.”*’ Dunn argues that

the harm to his reputation and the stripping of his duties as a Eunice Police Department lieutenant

are the present and continuing adverse effects of Randy Fontenot’s conduct, and that these

continuing effects satisfy the requirements for standing.

The court agrees with Dunn that the departure of Randy Fontenot as Eunice police chief

and the termination of Fontenot’s campaign against him does not, alone, deprive Dunn of standing

or moot all of his claims. While “[p]ast exposure to illegal conduct” does not in itself establish

standing for equitable relief, it can if it is accompanied by “continuing, present adverse effects.”**®

So, if Dunn can prove the elements of a retaliation claim based on the past actions of former chief

Fontenot, Dunn could satisfy the requirements for standing by showing that he continues to suffer

from the adverse employment actions taken by Fontenot. If Dunn makes this showing, his injuries

55 ECF No. 278 at 8.

38 Ia.

8 O'Shea y. Littleton, 414 U.S. 488, 495-96 (1974); Machete Prods., L.L.C. v. Page, 809 F.3d 281, 288 (Sth Cir, 2015).

Page 9 of 45

could be redressable by prospective injunctive relief regardless of Fontenot’s subsequent departure

and that relief would not be moot. However, whether Dunn can show “continuing, present adverse

effects” from Fontenot’s conduct requires a closer examination of Dunn’s claims and the substance

of the injunctive and declaratory relief he is seeking.

A. First Amendment Retaliation Claims.

Dunn alleges six adverse employment actions that he contends were taken in retaliation for

the exercise of his First Amendment rights: (1) former chief Fontenot placed him on administrative

leave for social media posts; (2) he was removed from the Eunice Police Department’s K-9 Unit;

(3) he was removed from the department’s narcotics unit; (4) he was transferred to the department's

night shift; (5) he was “effectively” demoted when he was allegedly stripped of his duties and

authority as a lieutenant in the department; and (6) he was “constructively” demoted or discharged

as a result of threats, criticism, false allegations, ostracism, and efforts by former chief Fontenot

and other officers to undermine Dunn’s reputation and authority.°? With respect to the narcotics

unit, night shift transfer, and “effective demotion” arguments, Dunn points to evidence in the

summary judgment record that creates genuine issues of material fact as to whether Dunn’s injuries

from these actions are ongoing and whether they are redressable through injunctive relief. Dunn’s

claims for injunctive relief with respect to the remaining retaliatory acts lack standing or are moot

as discussed below.

1. Administrative Leave.

Dunn’s administrative leave allegations are based on former chief Fontenot’s use of the

Eunice Police Department’s Officer Conduct Policy to discipline Dunn for social media posts that

Fontenot did not like. These allegations are the subject of a related case that was previously

Page 10 of 45

dismissed (the “Related Action”). Specifically, Dunn created a Facebook post on his personal

account while off duty that discussed his concerns about criminal activity at the local Knights of

Columbus (“KC”) Hall.°! Dunn’s post reported a tip by another Eunice police officer about a

possible shooting threat at the KC Hall later that night.©? Dunn’s Facebook post detailed the history

of criminal activity taking place at the KC Hall and warned local residents of the possibility of a

shooting. Dunn contends that Fontenot was a friend of the managers of the KC Hall and

disapproved of Dunn’s complaints. Fontenot subsequently opened an investigation over Dunn’s

August 2019 Facebook posts, alleging that Dunn’s posts violated a section of the Eunice Police

Department Procedures Order 15-7 Code of Conduct and Ethics titled “Conduct Unbecoming of

an Officer” (the “Officer Conduct Policy”) and placed Dunn on paid administrative leave. ®* Dunn

appealed his discipline to the Eunice Municipal Fire and Police Civil Service Board, which ruled

in Dunn’s favor and reversed Fontenot’s decision to place him on leave.® The City of Eunice

Board of Alderman then took the additional step of removing Fontenot’s “appointing authority”

and, accordingly, his power to fire and discipline officers.

As the Court explained in dismissing the Related Action, Dunn lacks standing to assert a

claim based on the administrative leave imposed in connection with his social media posts or,

alternatively, the claim is moot.®’ “Requests for injunctive and declaratory relief implicate the

intersection of the redressability and injury-in-fact requirements.”°* “Because injunctive and

declaratory relief ‘cannot conceivably remedy any past wrong,’ plaintiffs seeking injunctive and

Dunn v. City of Eunice, et al.,21-cv-1063 (W.D. La. Aug. 17, 2020) (ECF No. 97, Order Dismissing Case).

51 ECF No. 128 at 96; Dunn v. City of Eunice, et al., 21-cv-1063 (ECF No. 1, Complaint).

Td:

8 Id

64 ld.

65 Ted.

86 Td.

57 Dunn vy. City af Eunice, et al.,21-cv-1063 (ECF No. 96, Memorandum Ruling)

Stringer v, Whitley, 942 F.3d 715, 720 (Sth Cir. 2019).

Page 11 of 45

declaratory relief can satisfy the redressability requirement only by demonstrating a continuing

injury or threatened future injury.”© “For a threatened future injury to satisfy the imminence

requirement, there must be at least a ‘substantial risk’ that the injury will occur.””° “Past exposure

to illegal conduct does not itself show a present case or controversy regarding injunctive relief. .

. if unaccompanied by any continuing, present adverse effects.””! Put simply, “[t]he plaintiff must

allege facts from which the continuation of the dispute may be reasonably inferred,” and “the

continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and

immediate, and create a definite, rather than speculative threat of future injury.”””

Dunn’s paid administrative leave terminated prior to the filing of the present action when

the Eunice Civil Service Board reversed Fontenot’s decision and the City stripped Fontenot of

appointing authority. Dunn has not pointed to any evidence in the summary judgment record that

he is suffering any continued discipline or other sanction based on this pre-petition administrative

leave or his social media posts. Moreover, after this case was filed, Fontenot left his position with

the Eunice Police Department and Dunn has not pointed to any evidence that the current Chief of

the Eunice Police Department has attempted to reimpose that administrative leave or otherwise

discipline Dunn for his social media posts. Chief LeBouef even stated in his declaration that

“[f]rom his date of hire to the date of this declaration, Lt. Dunn has not been disciplined by the

Eunice Police Department, and he has been, and remains, an officer in good standing with the

Eunice Police Department.”” In short, Dunn has not pointed to evidence of any “continuing injury

6° 11A Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2942 at 47

(2013) (“Because injunctive relief looks to the future, and is designed to deter rather than punish, relief will be denied

if the conduct has been discontinued on the ground that the dispute has become moot and does not require the court’s

intervention.”)

7 Td. at 721.

Bauer v. Texas, 341 F.3d 352, 358 (Sth Cir. 2003) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 95- 96 (1983);

Cone Corp. v. Florida Dept of Transp., 92.1 F.2d 1190, 1205 (11th Cir. 1991)).

Id.; Serafine v. Crump, 800 Fed. Appx. 234, 236 (5th Cir. 2020).

ECF No. 272-4 at 2.

Page 12 of 45

or threatened future injury” with respect to allegations of retaliation arising from his social media

posts.”

2. Removal From K-9 Program.

Dunn next points to Fontenot’s decision to remove him from the Eunice Police

Department’s K-9 Unit as retaliation for the exercise of his First Amendment rights. In 2019, Dunn

was the sole canine handler for the Eunice Police Department. Dunn alleges that Fontenot “ordered

the removal of [Dunn’s] canine and equipment and eliminated the canine program” after Fontenot

learned that Dunn had approached the District Attorney’s Office about his concerns about the

department.’* Dunn alleges that he suffered a loss of hours, compensation, and prestige as a result

of Fontenot’s actions.”° Dunn has pointed to sufficient evidence that at least creates a genuine issue

of material fact as to the retaliatory motive for former chief Fontenot’s actions in eliminating the

Department’s K-9 Unit.

The problem with this claim is that the prospective relief requested by Dunn with respect

to his K-9 duties is now moot. Dunn seeks broad injunctive relief to end Defendants’ violations of

his First Amendment rights and a specific request to restore the duties stripped from him—

presumably the restoration of his K-9 duties. But the summary judgment record shows that, after

former chief Fontenot’s departure, current Chief LeBouef restored the K-9 program and assigned

Dunn a police dog.”’ In his deposition testimony, Dunn acknowledged that his K-9 duties had

recently been restored but testified that he had not received any K-9 assignments yet.”® However,

he also testified that he did not know why he has not received K-9-related assignments and has not

™ Even if this request for injunctive relief is not moot, Dunn’s administrative leave was not the equivalent of a

reprimand and, even it was, “a rescinded reprimand does not rise to the level of an adverse employment action if it

was rescinded through internal ... procedures.” Breaux v. City of Garland, 205 F.3d 150, 158 (5" Cir. 2000).

ECF No. 128 at § 109.

77 BCF No. 297, Exhibit 40, p. 228.

78 Id., p. 229.

Page 13 of 45

pointed to any evidence that the lack of assignments is a result of continuing retaliation against

Dunn for the exercise of his First Amendment rights.”” Dunn’s request for injunctive relief

essentially requests the Court wade into the internal management and assignment practices of the

Eunice Police Department without any evidence of ongoing retaliatory actions with respect to

Dunn’s K-9 assignments. Because Dunn has not pointed to evidence of any “continuing injury or

threatened future injury” with respect to allegations of retaliation arising from Dunn’s K-9 duties,

these allegations cannot support the prospective injunctive relief that he is requesting.®°

3. Constructive Demotion/Discharge Allegations.

Dunn also alleges a broad pattern of retaliation orchestrated by former chief Fontenot

involving a pattern of “social ostracism,” “professional disapprobation,” and “threats to physical

safety,” all designed to force Dunn out of the Eunice Police Department. Dunn alleges that he has

been “ostracized out to a corner,” and that all of his duties as a police lieutenant have been “stripped

away.”*! He alleges that this scheme to force him to quit also included threats to his safety, false

allegations of corruption, that other officers do not respect his authority, and that some of his co-

workers do not answer his back-up calls.** Dunn seeks injunctive relief barring defendants from

continuing with their scheme to force Dunn out of the department. He also seeks an injunction

ordering Defendants to restore the duties and authority of his position as a police lieutenant.

™ Dunn testified as follows when asked about his reinstatement to K-9 duties:

Yes, I have the K-9, I can do that. But just in the last three months, there's been at least 10 to 15 narcotics

operations I've begged to help with, to help to rid the drug problem. And I have yet to be allowed, be a part

of, know what's going on, nothing. What the reasoning behind it being, I don't know. Now, I have e-mails,

I have called them, I have told them, hey, I'm willing to help because this is -- this is what I do, this is what

I'm good at. Search and seizure, search warrants, stuff like this, and I have a dog. My own department hasn't

used me once,

ECF No. 297, Exhibit 40, p, 229.

8 Stringer v. Whitley, 942 F.3d 715, 720 (Sth Cir. 2019).

8! ECF No. 326 at 9-11.

83 ECF No. 128 at 193-196.

Page 14 of 45

These allegations suffer from at least two problems. First, Dunn’s “constructive demotion”

argument is based on Sharp v. City of Houston.* Dunn contends that, under Sharp, a scheme

involving “social ostracism,” “professional disapprobation,” and “threats to physical safety”

designed to force a police officer to resign in retaliation for exercising that officer’s First

Amendment rights is a “constructive demotion or discharge” that is an actionable adverse

employment action.®° This argument mischaracterizes Sharps holding. The portion of the Sharp

opinion cited by Dunn refers to “social ostracism,” “professional disapprobation,” and “threats to

physical safety” with respect to constructive notice to the plaintiff’s supervisors in the context of

hostile work environment claims under Title VII—not constructive demotion or discharge in a

First Amendment retaliation case.*° In Sharp, the plaintiff’s First Amendment retaliation was

grounded on a voluntary transfer from an “elite Mounted Patrol” to a teaching post at the Police

Academy that the court deemed the equivalent of a demotion.’’ Here, Dunn alleges that some of

his duties have been stripped but there is no evidence in the summary judgment record that he was

formally transferred, voluntarily or involuntarily, to a less prestigious position as in Sharp.

Throughout this case, as stated in Chief LeBouef’s declaration, Dunn remained a police lieutenant

in good standing at the Eunice Police Department.

Second, and more importantly, the injunctive relief requested by Dunn to address his

alleged constructive demotion—that Defendants cease the retaliatory conduct—is moot. Like the

allegations involving Dunn’s administrative leave and the elimination of the K-9 unit, these

allegations are rooted in an alleged campaign of retaliation orchestrated by former chief Fontenot.

As with these other allegations, Dunn has not pointed to evidence that former chief Fontenot’s

164 F.3d 923 (5" Cir. 1999).

85 ECF No. 326 at 9,

164 F.3d at 929-32.

8? Id. at 927-28, 933-35,

Page 15 of 45

broad retaliatory campaign and efforts to force Dunn’s resignation have continued after Fontenot

left his position as Chief of Police. While Dunn expresses disagreement with Chief LeBoeuf over

department policies, he does not cite any instances demonstrating that LeBouef has continued, or

that he is likely to resume, former chief Fontenot’s retaliatory campaign.** Accordingly, injunctive

relief to enjoin the former chief’s campaign to force Dunn out of the department is moot because

Dunn has not pointed to evidence of any “continuing injury or threatened future injury” that is not

“conjectural, hypothetical, or contingent.” ®

B. Dunn’s Reputation and Employment Prospects.

Dunn further alleges that former chief Fontenot’s retaliatory actions in concert with

Defendants have damaged his reputation and employment prospects. Dunn’s state law defamation,

intentional infliction of emotional distress, whistle-blower, and “false light invasion of privacy”

claims are grounded on these injuries but, like his First Amendment retaliation claims, Dunn does

*8 In this regard, Dunn testified:

I know -- me and the Chief, the current Chief have had this discussion, and it's just a difference of opinion.:

I think the policies are too vague. The reason why I feel they're too vague, I have no issue, I like him as a

person. I'm not saying he's the problem. But what if we get another Randy Fontenot? That policy being so

vague can be interpreted any way they wish, to punish who they want or exonerate who they want. That's

why I do not like vague policies because they can be interpreted by so many different ways and whoever is

reading them.

ECF No. 237, Exhibit A, p. 250. He also suggests elsewhere in his testimony that he is not experiencing adverse

actions under the present Chief of Police:

QO: -- sometime after January of 2023, you decided to change what you've been doing before, which

was to document everything to protect yourself, and you just decided to stop doing that at some

point. Yes?

A: To clarify.: As far as I know, I have nothing moving towards me, nobody is trying to arrest me,

nobody is trying to do anything I didn't do, so it's not affecting me.- I follow the policies that you

see a problem, you report it to your supervisor. That's as far as I go with it anymore.

ECF No. 297, Exhibit 40, p. 243,

8° Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir, 2019); Bauer v. Texas, 341 F.3d 352, 358 (Sth Cir. 2003).

Page 16 of 45

not seek money damages.’ Dunn contends that these injuries can be redressed through injunctive

and declaratory relief that restores his reputation and employment prospects, including:

e Injunctive relief requiring that “each Individual Defendant publicly apologize to

Lt. Dunn for the significant harm their conduct has inflicted, and continues to

inflict, on his employment prospects;’”!

e Injunctive relief to “halt the proliferation of Defendants’ false statements to Lt.

Dunn’s detriment,” to and “end the pattern of deliberate, repeated harassment to

Lt. Dunn’s detriment;”””

e Injunctive relief to “expunge from Lt. Dunn’s personnel records any and all

notations, complaints, and/or related references to any baseless internal

investigations or other actions taken by Defendants as retaliatory measures against

Lt. Dunn;

e Injunctive relief requiring Defendants to declare that “Lt. Dunn is an officer in

good standing and has not been under any legally justifiable or proper

investigation conducted by the Eunice Police Department since June 9, 2020;”"4

and

e adeclaratory judgment declaring that defendants retaliated against Dunn in

violation of the First Amendment, defamed him by spreading false allegations,

violated the Louisiana whistleblower statute, and committed intentional infliction

of emotional distress and false light invasion of privacy.”°

1. Injunctive Relief to Remedy Damage to Reputation.

Here, Dunn’s allegations that his reputation was damaged and his employment prospects

diminished are based solely on former chief Fontenot’s actions in the past—actions that will not

recur because Fontenot is no longer the Eunice Chief of Police. Dunn has not alleged that he

suffers from any immediate threat of future injury by former chief Fontenot. There are no

allegations that the former chief has committed or continues to commit any illegal conduct since

°° ECF No 128 at 4] 140-150 (defamation); 157-164 (whistleblower); 165-171 (intentional infliction of emotional

distress); 172-176 (false light invasion of privacy).

°! ECF No. 128 at 4133.

2 Id. at | 150, 171, 176.

3 Id. at 4 195(b).

4 Id. at 7 195(c).

Td. at Tf 133, 150, 164, 171, 176.

Page 17 of 45

he left office. Nor has Dunn pointed to any evidence that current Police Chief LeBouef or the

remaining defendants have continued the former chief’s campaign of retaliation. In short,

injunctive relief at this point “cannot conceivably remedy any past wrong” with respect to the

alleged injuries to Dunn’s reputation.”°

Dunn cites the district court’s injunction in Johnson v, Southwest Research Inst. as grounds

for an injunction ordering Defendants to expunge his files of negative comments and to document

that he is an officer in good standing.”’ Johnson does not support the relief requested for at least

two reasons. First, Johnson is factually distinguishable. The jury in Johnson found that the plaintiff

was unlawfully discharged in retaliation for filing a complaint of sex discrimination.”* One of the

defendant’s retaliatory acts in that case involved sending false information to the Defense

Counterintelligence and Security Agency (“DCSA”)—the government agency charged with

overseeing civilian security clearances—and this information resulted in a DCSA incident report

stating that the plaintiff could “pose a security risk by becoming an ‘insider threat.’””? Because the

DCA incident report could have prevented the plaintiff from maintaining a security clearance and

working in her field, the district court granted an injunction ordering the defendant to issue a letter

to the DCSA stating that the plaintiff “would not have been terminated but for her complaints of

sex discrimination” and requesting that the DCSA withdraw the negative incident report.

Here, Dunn was not terminated nor has he pointed to evidence that, unlike the defendant’s

actions in Johnson, Defendants’ actions could prevent him from working as a law enforcement

officer. Moreover, in Johnson, the purpose of the “retraction” letter was to request the DCA to take

Stringer, 942 F.3d at 720.

97 384 F. Supp. 3d 722, 729-30 (W.D. Tex. 2019); see ECF No. 326 at 27.

384 F. Supp. 3d 722, 729-30.

Id.

100 Fd.

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concrete action to restore the plaintiff’s ability to obtain a security clearance. In contrast, it is

entirely speculative whether the relief requested by Dunn in the present case—an apology and

formal exoneration—will restore his reputation or improve his employment prospects.

Second, and more importantly, this requested relief is moot in the present case. Current

Police Chief LeBouef filed a declaration stating that he reviewed Dunn’s files and “[f]rom the date

of hire to the date of this declaration, Lt. Dunn has not been disciplined by the Eunice Police

Department, and he has been, and remains, and officer in good standing with the Eunice Police

Department.”!”! In contrast, Dunn has not pointed to any evidence showing negative statements in

his record or statements suggesting that he is not an officer in good standing. Moreover, with

respect to the investigation and administrative leave imposed as a result of Dunn’s social media

posts, the Eunice Civil Service Board exonerated Dunn when it reversed former chief Fontenot’s

decision and the City stripped Fontenot of appointing authority.

Dunn’s remaining requests for injunctive relief to redress his loss of reputation are similarly

flawed. Dunn seeks an injunction ordering Defendants to “halt all unlawful and unconstitutional

actions” and to “publicly apologize” to Dunn.!” All of Dunn’s allegations and the injunctive relief

he seeks stem from Fontenot’s conduct while he was Chief of Police. However, as noted above,

former chief Fontenot is no longer in a position to violate Dunn’s rights under federal and state

law or take any adverse employment action against him. “The emotional consequences of a prior

act simply are not a sufficient basis for an injunction absent a real and immediate threat of future

injury by the defendant.”!” “[W]here reputational injury is the lingering effect of an otherwise

101 ECF No. 272-4 at 4 2,7.

102 ECF No. 128 at { 194.

13 City of Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983)

Page 19 of 45

moot aspect of a lawsuit, no meaningful relief is possible, and the injury cannot satisfy the

requirements of Article I1I.”!

Dunn also requests a mandatory permanent injunction ordering Defendants to publicly

apologize to Dunn “for the significant harm [his] conduct has inflicted, and continues to inflict, on

his employment prospects and well-being[.]”'®> Dunn cites no authority, constitutional or

otherwise, to support his argument that he has the right to a public apology nor that the Court has

the power to order Defendants to issue one. Instead, Dunn focuses on distinguishing the cases cited

by Defendants and relies on inapplicable jurisprudence.!°° For example, Dunn cites Carter, which

did not involve a request for a mandatory injunction ordering an individual to publicly

apologize.'°’ Rather, that case involved the imposition of sanctions against a commercial defendant

in a Title VII religious discrimination suit.!°* The court in Carter specifically stated that it “is not

requiring [the defendant] to apologize.”!”

Dunn also cites Philip Morris, which did not involve an injunction ordering an individual

to publicly apologize.!!® Rather, Philip Morris was a Racketeer Influenced and Corrupt

Organizations Act (“RICO”) case where the court ordered cigarette manufacturers to issue a

corrective statement about the negative health effects of smoking to prevent them from violating

104 Panos v. Jones, 652 F.3d 577, 584 (Sth Cir. 2011); Jackson v. Mayorkas, 2023 WL 5311482, (N.D. Tex. Aug. 17,

2023) (An interest in vindicating reputation is not “constitutionally sufficient to avoid mootness.”),

'05 ECF No. 128 at 194.

1% See Woodruff v. Ohman, 29 F. App’x 337, 346 (6th Cir. 2002) (concluding “the district court exceeded its equitable

power when it ordered [defendant] to apologize” and holding that “[w]e are not commissioned to run around getting

apologies”); McKee v. Turner, 491 F.2d 1106, 1107 (9th Cir. 1974).

107 ECF No. 163 at 23 (citing Carter v. Transp. Workers Union of Am., Loc. 556, 686 F.Supp.3d 503 (N.D. Tex. Aug.

7, 2023))

Carter, at 518,

109 Td.

110 ECF No. 163 at 23-24 (citing United States v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C. Cir. 2009)).

Page 20 of 45

RICO in the future.''' Dunn has cited no authority to establish that he has the right to an apology

and what, if any, authority the Court has to order Defendants to publicly apologize.'”

Even assuming Dunn has the right to a public apology and that the Court has the authority

to order Defendants to apologize, Dunn has not shown that a public apology would redress his

harm.''? Dunn alleges that an apology would repair his reputation and the trust of Eunice Police

Department officers, remedy his anxiety and depression, and vindicate “him as a good officer in

the eyes of Eunice citizens and other law enforcement agencies.”!!4 As noted above, however, it is

purely speculative as to whether an apology would, in any way, affect Dunn’s reputation and

restore the trust of other officers. Moreover, as noted by another court, “compelled apologies are,

by definition, insincere, and they are unlikely to adequately convey a person’s remorse or help a

wronged individual move on.”!!°

2. Declaratory Relief to Remedy Damage to Reputation.

Finally, Dunn seeks a declaratory judgment stating that Defendants’ actions amounted to

retaliation under the First Amendment and the Louisiana Constitution, conspiracy, defamation,

intentional infliction of emotional distress, false light invasion of privacy, and a violation of the

Louisiana Whistleblower Act. Courts generally engage in a three-step inquiry in deciding whether

to grant declaratory relief. First, the Court must determine whether the declaratory relief requested

is justiciable, In other words, does an “actual controversy” exists between the parties to the

Philip Morris, 566 F.3d at 1139-1140.

Mallory v. Mun. Court of Tupelo, 2019 WL 6174938 at *4 (N.D. Miss. Nov. 19, 2019) (“There is no right to an

apology[.]”)

3 Lujan, 504 U.S. at 561.

ECF No. 163 at 22, 24.

"3 Hawbecker v. Hall, 276 F. Supp. 3d 681, 690 (S.D. Tex. 2017) (declining to issue an injunction ordering the

defendant to apologize in a defamation case and noting “the law’s disfavor against injunctive relief in defamation

actions”).

Page 21 of 45

action.!!® Whether a controversy exists is a question of law.'!” Second, if there is jurisdiction, then

the Court must resolve whether it has the “authority” to grant declaratory relief in the case

presented.!'® Third, the Court has to determine how to exercise its broad discretion to decide or

dismiss a declaratory judgment action.!!®

Here, Dunn seeks declaratory relief to clear his name. But this requested relief does not

clear the threshold justiciability hurdle for declaratory relief. “A claim for declaratory judgment

seeks to define the legal rights and obligations of the parties in anticipation of some future conduct,

not to proclaim liability for a past act.”!?° The declaratory relief that Dunn seeks would not redress

the present or future relations of the parties and would only proclaim liability for alleged past bad

acts.'?! Specifically, Dunn alleges that he continues to suffer harm to his “reputation,”

“employment prospects,” “safety,” and his “well-being” from past violations.'2? However, “to

establish redressability, a plaintiff must show a ‘substantial likelihood’ that the requested relief will

remedy the alleged injury in fact.”!?? Here, Dunn has not pled facts showing a substantial

likelihood that the declaration he seeks—that Defendants’ prior conduct was unlawful—will

redress any continuing harm with respect to his reputation. Dunn eschews any recovery for

damages, so he has not shown that a declaration of legal and constitutional harm in the past will

enable him to recover for emotional or reputational harm. Nor has he pled facts showing that a

"6 Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 27-28 (Sth Cir.1989).

re Canion (Randall & Blake, Inc. v. Evans), 196 F.3d 579, 584 (5th Cir.1999).

Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, Inc., 996 F.2d 774, 776 (Sth Cir.1993) (“Prior to determining

whether the district court abused its discretion by failing to review the merits of this case, this Court must first

determine whether the district court had authority to grant a declaratory judgment here.”).

at 778 (a court has broad discretion in the declaratory judgment context).

Haggard, 547 F. App’x at 620 (citing Bauer, 341 F.3d at 358).

'21 See, e.g., Muslow v. Bd. of Supervisors of La. State Univ., 2020 WL 1864876, (E.D. La. April 14, 2020) (finding

no standing to seek declaratory relief based on alleged past injury); Waller v. Hanlon, 922 F.3d 590, 603-04 (Sth Cir.

2019),

122 ECF No. 163 at 20-21.

123 Denning v. Bond Pharmacy, Inc., 50 F.Ath 445, 451 (5th Cir, 2022)

Page 22 of 45

declaration addressing past conduct will affect his future safety or future job prospects. It is purely

speculative that a declaration that former chief Fontenot’s conduct was unlawful would alter the

opinions of other officers or members of the community as to Dunn’s reputation.

C. Chilling of First Amendment Rights.

Dunn further alleges that Defendants’ actions have “chilled” the exercise of his First

Amendment rights to report wrongdoing at the Eunice Police Department in the future.

Constitutional violations may arise from the “chilling” effect of a statute or government regulation

that falls “short of a direct prohibition over the exercise of First Amendment rights.”!*4

Accordingly, courts have held that “government actions that chill protected speech without

prohibiting it” can satisfy the injury-in-fact requirement for Article III standing.'?°

It is unclear here whether Dunn has stated a “chilled speech” claim that is separate and

distinct from his First Amendment retaliation claim. In Lowry v. Mills, the Fifth Circuit addressed

a case where a plaintiff asserted First Amendment retaliation claims and alleged that his speech

was chilled as a result of the defendants’ actions.'*° The Lowry court declined to recognize a

“freestanding chilled-speech claim distinct from [the plaintiff’s] retaliation claim.”!?’ The court

concluded that the plaintiffs chilled speech allegation “rise[] and fall[] with his retaliation

claim.”!?8 The same analysis applies here. Dunn has not asserted a “chilled speech” claim distinct

from his retaliation claim based on the allegations in the Amended Complaint.

D. Broad Institutional Reform Relief.

Finally, Dunn seeks injunctive relief to remedy a broad array of alleged institutional

problems at the Eunice Police Department, including a request for a court-appointed monitor to

4 Laird v. Tatum, 408 U.S. 1 (1972).

25 Glass v. Paxton, 900 F.3d 233, 238-40 (Sth Cir. 2018).

126 157 F.4t 729, 740-41 (5"" Cir. 2025).

127 Id.

128 Je.

Page 23 of 45

implement the reforms. Dunn’s First Amended Complaint cites problems in the Eusdnice Police

Department including (1) use of excessive force against suspects,!”? (2) neglect of the medical

needs of detainees,'?° (3) police officers regularly leaking information about ongoing

investigations, '*! (4) officers “abus[ing] the confidential informant process,”!*? and (5) misuse of

the department’s funds, including false overtime entries, employees leaving work early, and abuse

of out-of-state training programs.!** Dunn seeks to remedy these department-wide problems with

injunctive relief impacting virtually every aspect of the department’s operations. Specifically,

paragraph 195 in Dunn’s prayer for relief requests that the Court order the City of Eunice to:

a. Issue and require the use of head-mounted body cameras or video

recording eyeglasses by all Eunice police officers;

b. Require crisis intervention and de-escalation training for all Eunice

Police Department employees who respond to mental health

emergencies;

c. Require the Eunice Police Department to revise its policies to mandate

that officers intervene to prevent the use of excessive force or other

illegal conduct by fellow officers;

d. Institute and implement mandatory policies and procedures to ensure

that employees of the Eunice Police Department submit accurate

records of daily hours worked;

e. Fund and appoint a full-time, paid investigator to the Eunice Civil

Service Board;

f. Eliminate all fees charged for the furnishing of copies of public

records requested pursuant to the Louisiana Public Records Act, La.

R.S. 44:1, et seq., in the custody of the City of Eunice or the Eunice

Police Department;

g. Require the Chief of Police to disclose to the public, on a quarterly

basis, the number and substance of internal and external complaints of

129 ECF No. 128 at (933-37.

130 Td. at 938-39.

31 at 4940-43.

132 Td. at []44-45.

133 7d. at (9146-50,

Page 24 of 45

police misconduct that were received, investigated, deemed

unsubstantiated, and/or closed by the Eunice Police Department;

h. Establish a qualified and independent oversight agency to investigate,

mediate, and/or prosecute complaints of Eunice Police Department

misconduct, including, but not limited to, complaints of excessive use

of force; discrimination based on race, gender, religion, national origin,

age, or disability; incidents involving death or serious injury; witness or

evidence tampering; falsifying reports; bribery; sexual misconduct; use

of drugs or alcohol while on duty; and/or inmate abuse;

i. Deploy Eunice police officers with appropriate and adequate

supervision; and

j. Install a qualified monitor to oversee and report to the Court on

implementation of the policies and procedures included herein,

including through periodic and regular reviews and audits of the Eunice

Police Department’s practices.!*4

Defendants argue that Dunn lacks standing for this broad institutional reform relief because

he is not seeking to redress his own injuries but instead to redress injuries to third parties who are

not before the Court. “The Art. II] judicial power exists only to redress or otherwise to protect

against injury to the complaining party, even though the court’s judgment may benefit others

collaterally.”!°5 Accordingly, “a federal court’s jurisdiction ... can be invoked only when the

plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal

action... ..’”!3° The broad institutional reform relief requested here is not tailored to redress Dunn’s

injuries—i.e. the injuries he suffered as a result of former chief Fontenot’s retaliatory actions—but

instead attempts to redress the distinct injuries allegedly suffered by arrestees subject to excessive

force, detainees whose medical needs have not been met, confidential informants, and the City of

Eunice with respect to the misuse city funds. Dunn does not allege that he suffered the same

injuries as these third parties, nor does he explain how injunctive relief addressing these third-party

134 Td at 9196.

135 Warth v. Seldin, 422 U.S. 490, 499 (1975).

Td. (quoting Linda R.S. v. Richard D,, 410 U.S. 614, 617 (1973)).

Page 25 of 45

injuries will redress his own injuries. The Supreme Court has recognized some cases where a

plaintiff can seek relief that vindicates the rights of third parties.'°” But the relief Dunn requests

here does not fall within these special cases.

Finally, the Court is mindful of the Supreme Court’s warning in Rizzo v. Goode about the

limits of a federal court’s equitable powers with respect to broad injunctive relief that imposes

“sharp limitations” on the internal affairs and operations of a municipality’s police department.'**

The Rizzo court emphasized that “appropriate consideration must be given to principles of

federalism in determining the availability and scope of equitable relief.’”'°? Here, Dunn’s request

for institutional reform relief—including the imposition of a court-appointed monitor—seeks to

impose a “sharp limitation” on the internal operations of the Eunice Police Department yet is not

tailored to redress Dunn’s individual claims and injuries. This overbroad request for injunctive

relief exceeds the limits of the Court’s equitable powers.

kok *

In sum, Dunn’s retaliation claims under the First Amendment and Louisiana State

Constitution are DISMISSED to the extent that they are based on (1) the investigation and

administrative leave resulting from Dunn’s social media posts, (2) the elimination of the Eunice

Police Department’s K-9 program, and (3) Dunn’s allegations of constructive demotion or

discharge. As explained above, these claims for prospective injunctive and declaratory relief are

moot.

137 June Med. Servs. L. L. C. v. Russo, 591 U.S. 299, 318 (2020).

138 493 U.S. 362, 379 (1976).

139

Page 26 of 45

Dunn’s claims for injunctive and declaratory relief designed to restore his reputation and

job prospects as outlined above are also DISMISSED on the grounds of standing (the injuries are

not redressable by prospective injunctive or declaratory relief) or they are moot as discussed above.

Dunn’s claims for the broad institutional reform relief requested in paragraph 195 of his

Prayer for Relief are DISMISSED for lack of standing (they seek to vindicate the rights of parties

not before the Court) and the relief requested exceeds the equitable powers of the Court.

Finally, to the extent that Dunn asserts a separate and distinct claim that his First

Amendment rights were chilled by Defendants’ actions, these claims are DISMISSED. As in

Lowry, Dunn’s allegations do not give rise to a distinct “chill” claims but rise and fall on his

retaliation claims.

IV.

MERITS OF REMAINING FEDERAL CLAIMS

A. First Amendment Retaliation.

As discussed above, the Court’s standing and mootness rulings do not dispose of all of

Dunn’s retaliation claims. Dunn alleges six distinct acts or courses of conduct on which his First

Amendment retaliation claims are based. Three of those acts and courses of conduct cannot support

a retaliation claim because the relief requested to remedy those claims is moot, as discussed above.

With respect to the remaining three instances of retaliation, Dunn has come forward with sufficient

evidence to create a genuine issue of material fact as to whether the effects of these incidents are

continuing and whether the injuries arising from these incidents can redressed by appropriately

framed injunctive relief. Accordingly, they clear the standing/mootness hurdle.

The remaining instances of retaliation are (1) Dunn’s allegation that he was removed from

the department’s narcotics unit; (2) his allegation that he was transferred to the department’s night

Page 27 of 45

shift; and (3) his allegation that he was “effectively” demoted when he was allegedly stripped of

his duties and authority as a lieutenant in the department. Defendants, however, challenge these

claims on the merits. To recover on a First Amendment retaliation claim, Dunn must prove that:

(1) he suffered “an adverse employment decision”; (2) his “speech ... involve[d] a matter of public

concern”; (3) his “interest in commenting on matters of public concern must outweigh the

Defendants’ interest in promoting efficiency”; and (4) his “speech must have motivated the

Defendants’ action.” '4° Defendants argue that the remaining retaliation allegations do not show

that Dunn suffered an adverse employment action. “Adverse employment actions are discharges,

demotions, refusals to hire, refusals to promote, and reprimands.”!' “[MJere accusations or

criticism,” “investigations,” “false accusations,” and threats are not adverse employment actions

given the Fifth Circuit’s “narrow view of what constitutes an adverse employment action.”!”

Indeed, the Fifth Circuit has “declined to expand the list of actionable [adverse employment]

actions,” and, as a result “some things are not actionable even though they have the effect of

chilling the exercise of free speech.””? In Lowery, the Fifth Circuit recently addressed the Supreme

Court’s expansion of the definition of an adverse employment action for purposes of a Title VII

employment discrimination claim.'4 The court’s opinion noted that the Fifth Circuit has never

applied this expanded definition to a First Amendment retaliation claim.'*? Accordingly, the

narrower definition set forth in Lowery and Breaux vy. City of Garland apply to Dunn’s remaining

retaliation claims.

0 Breaux v. City of Garland, 205 F.3d 150, 156 (5th Cir, 2000),

'41 Tq at 157 (quoting Pierce v. Texas Dep't of Crim. Just., Institutional Div., 37 F.3d 1146, 1149 (Sth Cir, 1994)).

on 157 F.4th at 743 (quoting Breaux, 205 F.3d at 157-58).

18 157 □□ at 741-42,

145

Page 28 of 45

1. Removal From Narcotics Unit.

Dunn alleges that former chief Fontenot retaliated against him, in part, by allegedly

removing him from narcotics investigations. The Fifth Circuit has held that the “loss of some job

duties” is not an adverse employment action sufficient to support a retaliation claim.'** Nor is a

change in an employee’s work assignments or shifts.'*” Here, current Police Chief LeBouef states

in his declaration that Dunn was never assigned a specialized narcotics unit, nor was he expressly

designated as a narcotics officer.'4* Instead, narcotics investigations are only one aspect of the

duties of a police lieutenant at the Eunice Police Department. In his deposition, Dunn testified that

K-9 handlers often work on narcotics cases but that he had not been assigned to any narcotics cases

as a K-9 officer.'*? Dunn has not pointed to evidence that he was formally removed from narcotics

cases or that his job description was formally re-written to remove these duties as in Thompson v.

City of Waco.'*° In Thompson, the leadership of the police department formally re-wrote the

plaintiff’s job description so that the written changes in his duties were so “significant and

material” that the changes were essentially a demotion.!*!

In contrast, narcotics investigations are only one aspect of Dunn’s duties, and the summary

judgment record does not show that those duties were ever formally removed. Dunn retained his

position as a police lieutenant and the record does not reflect that he was demoted, that his job

duties were formally changed, or that he was disciplined in any way.!** These allegations simply

'46 Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n. 2 (Sth Cir. 2003); Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 532 n. 2 (Sth Cir.2003); see also Kidd vy. Mando Am. Corp., 731 F.3d 1196, 1204 n. 11

(11th Cir.2013) (observing that “it’s a rare case where a change in employment responsibilities qualifies as an adverse

employment action”)

47 Watts v. Kroger Co., 170 F.3d 505, 511-12 (Sth Cir.1999) (holding that a change in work schedule and request that

an employee perform two additional tasks did not rise to the level of an adverse employment action).

M8 ECF 272, Exhibit C.

149 ECF 297, Exhibit 40, p. 229.

150 764 F.3d 500, 502-504 (5" Cir 2014).

151 Td

152 As Chief LeBouef stated in his declaration, the Department's records show that Dunn has been an officer in good

standing during the relevant period of this case. ECF No. 272, Exhibit C.

Page 29 of 45

do not rise to the level of an adverse employment action to support a First Amendment retaliation

claim. Accordingly, Dunn’s retaliation claims based on the alleged removal of narcotics duties are

dismissed.

2. ‘Transfer to Night Shift.

Dunn next alleges that former chief Fontenot retaliated against him by transferring him to

“more dangerous night shifts.”'*? He alleges that Fontenot used shift transfers as punishment, and

that the Department’s night shifts were short staffed and included other officers “openly hostile to

Lt. Dunn.”!™ Standing alone, transfers are not adverse employment actions.'°> However, “[a]

transfer may also constitute a demotion ... if the new position is objectively worse—such as being

less prestigious or less interesting and providing less room for advancement.”!*° A plaintiff’s

“subjective perception” that demotion has occurred is not sufficient—the new position must be

objectively worse.'*’ Moreover, transfers to different time shifts, as alleged here, generally do not

rise to the level of an adverse employment action.'**

Here, the summary judgment record shows that the Eunice Police Department rotates entire

shifts from day to night duty and back every two weeks as a standard practice. Specifically, in his

declaration, Chief LeBoeuf states that:

Under my predecessor, Randy Fontenot, shifts rotated (day shift officers moved to night

shift and night shift officers moved to day shift) every two weeks. When I took office,

this rotation changed to every month. It was the practice of the Eunice Police

Department under former chief Fontenot, and remains the practice of the Eunice Police

Department under my tenure that entire shifts are moved from night to day and vice

versa, !%?

'53 ECF No. 326 at 5.

154 Td.

Sharp v. City of Houston, 164 F.3d 923, 933 (5" Cir. 1999).

156 Td.

57 Forsyth v. City of Dallas, 91 F.3d 769, 774 (5" Cir. 1996).

158 Warts, 170 F.3d at 511-12.

ECF No. 272-4 at 3.

Page 30 of 45

Dunn does not point to any evidence contradicting Chief LeBouef’s explanation of shift changes.

Dunn also alleges in a conclusory fashion that the night shifts were more dangerous and

understaffed but does not point to objective evidence—such as staffing or crime statistics—to

support these allegations. Dunn’s subjective perception that he suffered a demotion is not sufficient

to support the “adverse employment action” element of his claim.'©°

The cases relief on by Dunn to support these claims are distinguishable. In Forsyth v. City

of Dallas, the plaintiff police officer was transferred to the department’s night patrol.'°! However,

there, the plaintiff did not just transfer to the night shift, she transferred from her prior position in

the department’s intelligence unit to a qualitatively different position on the night patrol.'®

According to the court, intelligence unit positions were “more prestigious, had better working

hours, and were more interesting than night patrol.’”!®’ The facts alleged by Dunn do not rise to

that level. Dunn maintained his position as a police lieutenant in the Department and, presumably,

rotated from day to night duties with the rest of his shift.

Watts v. Jackson is similarly distinguishable.'© There, the court addressed whether the

plaintiff's allegations, taken as true, were sufficient to survive a Rule 12(b)(6) motion to dismiss.

The plaintiff in Watts alleged that he was moved from “Special Projects” in the department’s

Downtown Division, where he worked the day shift, to a different precinct working the

“sraveyard” shift, which was considered “more dangerous” and used primarily for punishment.!®

There, however, plaintiff was not only transferred to the night shift, he was moved to the “night

patrol division” of a different precinct and no longer was assigned to “special projects” in

169 Forsyth, 91 F.3d at 774.

Fg.

162 Td

183 Ja

164 664 F. Supp. 2d 680, 684-85 (S.D. Miss. 2009),

165

Page 31 of 45

downtown Jackson. Moreover, there is no evidence cited in the Wa/fs opinion that, as in the present

case, entire shifts were regularly rotated through the “graveyard” shift. In sum, Dunn’s night shift

allegations do not support a retaliation claim.!°

3. Effective Demotion.

Finally, Dunn argues that a combination of actions by former chief Fontenot in concert

with other officers (including defendants Young and Victor Fontenot) effectively resulted in his

demotion by stripping Dunn of the authority, powers, and duties he had held as a police lieutenant.

As a result, Dunn contends that was “‘a lieutenant in name only” under former chief Fontenot.!®7

Specifically, Dunn alleges that:

e he was not allowed to give orders or supervise and manage a division, unit,

section, or platoon of the police department;!*

e lower-ranked officers ignored his orders and the chain of command;!®

e he had fewer officers to supervise;!”°

e his evaluations were “ignored or thrown out;”!7! and

e he was stripped of essential duties such as serving in the narcotics and K-9

units. !7

The Court has already addressed the allegations that Dunn was stripped of K-9 and narcotics duties.

With respect to the other allegations, Dunn relies primarily on Thompson v. City of Waco to support

a retaliation claim based on an effective demotion. However, as explained previously, Thompson

Even if former chief Fontenot’s use of time shift assignments could amount to an adverse employment action,

prospective injunctive relief to remedy that injury would be moot as explained above because there is no evidence in

the record that the current Chief LeBouef has used—or that he is likely to use in the future—the time shift rotation to

punish officers for exercising their First Amendment rights.

RCF No. 326 at 7-8.

168 Ta.

169 Id.

170 Id.

1

172 Td.

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is distinguishable. In Thompson, the department imposed specific, written restrictions on the

plaintiff’s ability to exercise his duties as a detective.’ Specifically, these written restrictions

barred the plaintiff from “(1) search[ing] for evidence without supervision; (2) log[ging] evidence;

(3) work[ing] in an undercover capacity; (4) be[ing] an affiant in a criminal case; (5) be[ing] the

evidence officer at a crime scene; and (6) be[ing] a lead investigator on an investigation.”!”

According to the Thompson court, the department “wrote and restricted [the plaintiff's] job

description to such an extent that he no longer occupies the position of a detective; he now

functions as an assistant to other detectives.”!”> Dunn does not point to similar evidence showing

written changes to his job duties that effectively resulted in his demotion. Rather, Dunn’s

allegations appear to rest on charges of mismanagement and lack of discipline within the

Department under former chief Fontenot.

kk *

In sum, (1) Dunn’s allegation that he was removed from the department’s narcotics unit;

(2) his allegation that he was transferred to the department’s night shift; and (3) his allegation that

he was “effectively” demoted when he was allegedly stripped of his duties and authority as a

lieutenant in the department do not amount to adverse employment actions sufficient to support

Dunn’s First Amendment retaliation claims based on the summary judgment record. These claims

are therefore dismissed.!”°

3764 F.3d 502.

174 Ta.

175 Ta.

'%6 Tyunn also alleges separate claims for conspiracy and violations of the free speech protections in Article 1, Section

7 of the Louisiana State Constitution. ECF No. 128 at ff] 134-139; 151-156;177-181. These claims are inextricably

linked with Dunn’s First Amendment claims. Since the First Amendment claims are dismissed, these counts must be

dismissed as well.

Page 33 of 45

B. Monell Claims Against the City of Eunice.

Defendants next challenge Dunn’s Monell claims against the City of Eunice. The City may

not be held liable under Section 1983 ona theory of vicarious liability.'”” It may, however, be liable

under Monell v. Dep t of Soc. Servs., if allegedly unconstitutional conduct “implements or executes

a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that

body’s officers.”'”8 In other words, the unconstitutional conduct at issue must be directly

attributable to the execution of a municipality’s official policy. Accordingly, to state a Section 1983

Monell claim, a plaintiff must allege facts demonstrating that (1) an official policy, (2) promulgated

by the municipal policymaker, (3) was the moving force for the violation of a constitutional

right.'”? Official policies include “written policy statements, ordinances, or regulations, but may

also arise in the form of a widespread practice that is so common and well-settled as to constitute

a custom that fairly represents municipal policy.”!®° Monell claims based on allegations of a wide-

spread practice require proof of “sufficiently numerous prior incidents,” as opposed to “isolated

instances.”!*! A plaintiff “must do more than describe the incident that gave rise to his injury."

The facts pled must also show incidents similar to the conduct at issue in the instant case. Actual

or constructive knowledge of such a custom must be attributed to the governing body or the

municipality or to an official to whom that body had delegated policy-making authority.

Defendants argue that Dunn’s Monell claims are grounded in the actions of former chief

Fontenot but Dunn cannot prove that Fontenot was a final policymaker for the City of Eunice. A

policy or custom is official only “when it results from the decision or acquiescence of the municipal

"7 Hicks-Fields v. Harris Cty., Texas, 860 F.3d 803, 808 (Sth Cir. 2017), cert. denied sub nom. Hicks-Fields v. Harris

Cty, Tex, _U.S.__, 138 S. Ct. 510 (2017).

178 436 U.S. 658, 690 (1978).

Blanchard-Daigle v. Geers, No. 18-51022, 2020 WL 730586, at *2 (5th Cir. Feb. 12, 2020).

Bt icone v. City of Houston, 863 F.2d 1180, 1184 (Sth Cir.1989).

'82 Ratliff v. Aransas Cty, Texas, 948 F.3d 281, 285 (Sth Cir. 2020).

Page 34 of 45

officer or body with ‘final policymaking authority’ over the subject matter of the offending

policy.”!® “Whether an official possesses final policymaking authority for purposes of municipal

liability is a question of state and local law.”!*4 The City of Eunice is a Lawrason Act municipality,

so whether Fontenot possessed final policymaking authority turns on the allocation of power and

authority under the Act. Courts have held that elected police chiefs are final policymakers under

the Lawrason Act with respect to law enforcement activities.'®° This law enforcement authority

includes the “inherent authority” to supervise the operations of the police department, including

the authority to set work schedules and assignments.'** However, an elected chief does not have

final authority to hire, fire, promote or discipline officers. Under the Lawrason Act, an elected

chief “shall make recommendations to the mayor and board of aldermen for appointment of police

personnel, for the promotion of officers, to effect disciplinary action, and for dismissal of police

personnel.”!87

Here, Dunn’s claims include allegations pertaining to changes in work assignments and

duties, transfers, and work schedule changes, all of which fall within the police chief’s inherent

authority under the Act. However, as discussed, these types of actions are not, standing alone,

“adverse employment actions” sufficient to support a First Amendment Retaliation claim. Rather,

“la]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote,

and reprimands.”!'*’ All of these actions fall within the ambit of appointments, promotions,

'83 Jett vy, Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).

184 Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010).

'85 La. R.S. §33:423(A)(providing that a police chief “shall have general responsibility for law enforcement in the

municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable

state laws.”) Hernandez v. Theriot, 38 F. Supp. 3d 745, 748 (M.D. La. 2014) (holding that police chief was the final

policymaker with respect to law enforcement and the alleged unconstitutional acts—abuse of power with respect to

persons in police custody—arose in connection with the exercise of that law enforcement authority).

186 Id.

87 La, R.S. §33:423(A).

'88 at 157 (quoting Pierce v. Texas Dep't of Crim. Just., Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994)).

Page 35 of 45

disciplinary actions, and dismissals, over which a municipality’s mayor and Board of Aldermen

have final decision-making authority. A separate provision in the Act modifies this allocation with

respect to the City of Eunice. La. R.S. § 33:423.27 states that the Board of Aldermen for the City

of Eunice “may, by resolution, designate the chief of police as the appointing authority of the police

department and thereby authorize him to appoint, discipline, and discharge police personnel

subject to the budgetary limitations established by the mayor and board of aldermen....” It is

undisputed that Eunice’s Board adopted such a resolution in the past but that, in 2019, the Board

stripped former chief Fontenot of his appointing powers. As a result, these appointing powers

reverted to the Eunice Mayor and Board of Aldermen. In sum, former chief Fontenot was not the

final policymaker with respect to the types of personnel actions that qualify as ‘“‘adverse

employment actions” for purposes of a First Amendment retaliation claim.

The question then becomes whether the Mayor and Board can be charged with an adverse

employment action against Dunn. “If a final policymaker approves a_ subordinate's

recommendation and also the subordinate’s reasoning, that approval is considered a ratification

chargeable to the municipality.”'*’ The Fifth Circuit’s decision in Howell v. Town of Ball, is

instructive.!*° There, the plaintiff offered evidence that the city’s police chief sought to retaliate

against him for cooperating with an FBI investigation of the city.'*! As in the present case, the

police chief lacked final authority to terminate the plaintiff but could recommend termination to

the city’s board of aldermen.!?* The board approved the plaintiff’s termination.! According to the

court, the board had knowledge of the chief’s retaliatory motive when it approved his

Culbertson, 790 F.3d at 621; Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001) (a plaintiff “must

impute [a subordinate's] allegedly improper motives to the board by demonstrating that the board approved both [the

subordinate’s| decision and the basis for it’’).

190 897 F.3d 515, 527-28 (5th Cir. 2016).

191 Fe.

192 Td

Fel.

Page 36 of 45

recommendation to fire the plaintiff, and this created a triable issue as to whether the plaintiff’s

protected activity was a motivating factor in the board’s decision.'** Here, in contrast, Dunn has

not pointed to evidence that the Eunice Board of Alderman adopted any recommendation by

former chief Fontenot to demote or otherwise discipline Dunn.

Dunn, however, argues that the identity of the final policymaker is “beside the point” and

a “strawman” argument.!?° According to Dunn, “even after the City removed his final

policymaking status on disciplinary matters, Chief Fontenot continued to retaliate against Lt.

Dunn” and this “retaliation was not reviewable by the Mayor or the Board of Aldermen.”!”° In

essence, Fontenot “started disciplining people that wouldn’t be on paper.”!®’ As a result, Dunn

argues, Fontenot’s “plenary authority to operate EPD’s day-to-day—not his authority to formally

discipline—makes him the relevant policymaker.”!°8 Moreover, according to Dunn, “if Chief

Fontenot is not the City’s policymaker for purposes of this litigation, the Mayor and Board of

Aldermen certainly are, and so the City is liable” because the Eunice Mayor and Board “were well

aware of Chief Fontenot’s repeated retaliation against Lt. Dunn.”'” In short, Dunn argues that he

“prevails on his Monell claims no matter the policymaker.”?”

Dunn’s argument is wrong on the law. “[I]t is not enough for a § 1983 plaintiff merely to

identify conduct properly attributable to the municipality.”?°! Rather the “plaintiff must also

demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind

the injury alleged.”?°? “That is, a plaintiff must show that the municipal action was taken with the

194

199 ECF No. 297 at 15-16.

196 Td. at 16-17.

197 Fd. at 17.

198 Fey

199 Id.

200

201 Bd. of Cnty. Comm'rs of Bryan Cnty, Ol. v. Brown, 520 U.S. 397, 403-05 (1997).

202 Fd

Page 37 of 45

requisite degree of culpability and must demonstrate a direct causal link between the municipal

action and the deprivation of federal rights.””°? The requirement for municipal action by one with

final policymaking authority ensures that a municipality is “held liable only for those deprivations

resulting from the decisions of its duly constituted legislative body or of those officials whose acts

may fairly be said to be those of the municipality.” ?°' As the Supreme Court has cautioned,

“TrJigorous standards of culpability and causation must be applied to ensure that the municipality

is not held liable solely for the actions of its employee.’”*°* The record here simply does not support

a “direct causal link” between the actions of a final policymaker and the adverse employment

actions alleged by Dunn. Dunn’s contrary argument is essentially a back-door attempt to impose

vicarious liability on the City of Eunice for the alleged actions of former chief Fontenot and

officers Young and Victor Fontenot.

Dunn also argues that the Mayor and Board had actual or constructive knowledge of former

chief Fontenot’s actions. However, Dunn’s cites to the record in this regard involve testimony from

Eunice Mayor Scott Fontenot that “Dunn would send me long novels of messages sometimes...

. Obviously, he was letting me know that they were messing with him ....”?°° But the record does

not show that the Mayor and the Board were on notice that former chief Fontenot allegedly took

the “adverse employment actions” Dunn alleges or that they ratified Fontenot’s conduct. The fact

that the Board ultimately responded by removing Fontenot’s appointment powers cuts against

Dunn’s suggestion that the Board ratified Fontenot’s actions. In short, the summary judgment

record does not show the culpability or causal link between actions of the final policymaker—the

Mayor and the Board—and the retaliatory actions taken by Chief Fontenot. In sum, Dunn has not

203 ld.

204 Tad

205 Td.

206 ECF No. 237, Exhibit F, pp. 162-163.

Page 38 of 45

shown triable issues on each element of his Monell claim against the City. This claim is therefore

dismissed,

Vv.

STATE LAW CLAIMS

A. Defamation, Intentional Infliction of Emotional Distress, and False Light

Invasion of Privacy.

Next, Defendants challenge Dunn’s state law claims for defamation, intentional infliction

of emotional distress and false light invasion of privacy. While Dunn alleges injuries to his

reputation and future employment prospects as a result of Defendants’ conduct, he is seeking solely

prospective injunctive as well as declaratory relief. As previously explained, these injuries are not

redressable—and hence, Dunn lacks standing—by prospective injunctive or declaratory relief.

With respect to injunctive relief targeting future conduct, the relief he requests is moot, as

discussed above. Accordingly, Dunn’s state law claims for defamation, intentional infliction of

emotional distress, and false light invasion of privacy are dismissed.

B. Louisiana Whistleblower Act.

Finally, Defendants challenge Dunn’s Louisiana Whistleblower Act claims. The Louisiana

Whistleblower Statute provides that:

An employer shall not take reprisal against an employee who in good faith, and

after advising the employer of the violation of law:

(1) Discloses or threatens to disclose a workplace act or practice that is in

violation of state law.

(2) Provides information to or testifies before any public body conducting

an investigation, hearing, or inquiry into any violation of law.

(3) Objects to or refuses to participate in an employment act or practice that

is in violation of law.”

207 LSA-R.S, 23:967(A)

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“Reprisal” includes “firing, layoff, loss of benefits, or any discriminatory action the court finds

was taken as a result of an action by the employee that is protected under Subsection A of this

Section.””°? While this definition is framed broadly, the Fifth Circuit has held that a “reprisal”

under section 23:967 “is defined as ‘a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.””?°? As far as the violations of law supporting a

Whistleblower Act claim, the statute applies only to actual violations of state law, not federal

law,?!

Dunn alleges that he reported state law violations within the Eunice Police Department,

including (1) violations of La. Rev. Stat. Ann. § 14:122.2 (threatening a public official or law

enforcement), (2) violations of La. Rev. Stat. Ann. § 14:130.1 (obstruction of justice), (3)

violations of La. Rev. Stat. Ann. § 14:111 (assisting inmate escape), and (4) violations of La. Rev.

Stat. Ann. § 2140 (law enforcement officers’ duties). He further alleges that his reports resulted in

reprisals by former chief Fontenot as outlined above, and that these reprisals violated the

Whistleblower Act. These reprisals track the six instances of retaliation on which Dunn bases his

First Amendment retaliation claims. As with his First Amendment claims, Dunn seeks solely

declaratory and prospective injunctive relief. Specifically, he seeks “a declaratory judgment that

the City’s and Chief Fontenot’s actions constitute a violation of the Louisiana Whistleblower

Statute, La. Rev. Stat. Ann. § 23:967(A).” He seeks prospective injunctive relief to remedy the

City’s alleged reprisals by:

(1) assigning Lt. Dunn to any departmental duties comparable to the rank of a

lieutenant at Eunice Police Department, including but not limited to reinstating Lt.

208 Td.

209 Rayborn y. Bossier Par. Sch. Bd., 881 F.3d 409, 415 (Sth Cir. 2018) (quoting Zatum v. United Parcel Serv,, Inc,, 79

$o0.3d 1094, 1103-04 (La, Ct. App. 2011)).

210 Wilson v. Tregre, 787 F.3d 322 (5 Cir, 2015).

Page 40 of 45

Dunn to handle narcotics investigations; (2) expunging from Lt. Dunn’s personnel

records any and all notations, complaints, and/or related references to any baseless

internal investigations or other actions taken by Defendants as retaliatory measures

against Lt. Dunn, including without limitation Defendant Officer Fontenot’s

baseless investigation into Lt. Dunn during the period of June 2020 to March 2021;

(3) declaring that Lt. Dunn is an officer in good standing and has not been under

any legally justifiable or proper investigation conducted by the Eunice Police

Department since June 9, 2020; and (4) acknowledging that the retaliatory actions

against Lt. Dunn, which have impeded Lt. Dunn’s ability to seek future

employment and tarnished Lt. Dunn’s moral character and reputation, were in fact

retaliatory and unlawful.?!!

This relief mirrors the relief Dunn requests with respect to his First Amendment claims and, for

the same reasons, these state law claims must be dismissed. With respect to the request to expunge

Dunn’s records and declare that he is an officer in good standing, the summary judgment record

includes a declaration by the current Police Chief LeBouef stating that, according to the

Department’s records, Dunn has been an officer in good standing throughout the relevant time

period covered by his allegations.?!* With respect to the investigation of his social media posts and

placement on paid administrative leave, Dunn was vindicated by the Civil Service Board and,

ultimately, the Board of Aldermen’s decision to strip former chief Fontenot of his appointing

powers.”!> Accordingly, the prospective injunctive relief Dunn requests is moot.

With respect to Dunn’s request to restore his duties, the Court has previously ruled that the

alleged removal of Dunn’s duties were not “adverse employment actions.” For the same reasons,

they do not rise to the level of “reprisals” under Fifth Circuit precedent.?!* The remainder of the

relief is merely a request for a formal apology and acknowledgement of wrongdoing by the City.

As the Court has previously explained, Dunn cites no authority, constitutional or otherwise, to

211 ECF No. 128 at 9164.

212 ECF No, 272-4 at ff 2,7.

213 ECF No. 128 at 6; Dunn v. City of Eunice, et al., 21-cv-1063 (ECF No, 1, Complaint),

214 Rayborn, 881 F.3d at 415.

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support his argument that he has the right to a public apology or that the Court has the power to

order Defendants to issue one.

Finally, even if Dunn has standing to seek this relief and the prospective relief he requests

is not moot, Dunn has not shown that the City of Eunice or former chief Fontenot committed the

four actual violations of state law cited in Dunn’s Amended Complaint.?!° A plaintiff must

establish that the employer—not merely its employees—violated state law to prove a claim under

section 23:967.?!® The unauthorized actions of employees or subordinates do not support a claim

under 23:967.?!" With respect the violation of La. Rev. Stat. Ann. § 14:122.2 (threatening a public

official or law enforcement), Dunn alleges that he “filed a report detailing repeated threats by

Officer [Victor] Fontenot of physical violence directed at Lt. Dunn and his police canine,

including, inter alia, threats to ‘break his motherf---ing fingers’ and ‘put two [bullets] in his

head.’”?!* Dunn alleges that Victor Fontenot’s statements “were in direct violation of Departmental

policy, which provides that ‘[a] member shall never behave disrespectfully or use threatening or

insulting language toward any other member engaged in the execution of his/her position or

duties.’”?!° These allegations involve the conduct of an employee (or subordinate officer), not the

City or former chief Fontenot. Nor does Dunn point to any evidence in the summary judgment

record that raises a triable issue as to whether the actions of Victor Fontenot, if proven, were

authorized.

213 ECF No. 128 at 9159.

216 Richardson y, Axion Logistics, LLC, 780 F.3d 304, 306 (Sth Cir. 2015).

217 Dillon v. Lakeview Regional Med. Ctr. Auxiliary, Inc., 2011-1878 (La. App. 1 Cir. 6/13/12), 2012 WL 2154346, at

*5 n.8, writ denied, 2012-1618 (La,10/26/12), 99 So.3d 651 (“it could be concluded that the employer must be the

actor who violated the law, in order for there to be a cause of action under” § 23:967, and that “there is no indication”

that the statute “would encompass unauthorized acts of ... employees”).

218 ECF No. 128 at 959.

219 ld.

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With respect to the alleged violation of La. Rev. Stat. Ann. Section 14:130.1 (obstruction

of justice), Dunn alleges that he “filed a report detailing policy violations committed by officers

investigating a rape, including the improper storage of DNA evidence in the locked trunk of a

vehicle for over five days (which compromised the evidence)” and that “Chief Fontenot conducted

a cursory investigation of the incident, and issued a verbal reprimand to the officers involved,

including Officer Fontenot.””*° Dunn alleges that he “subsequently filed a complaint with the Civil

Service Board, which investigated the incident and concluded that the officers involved had

violated the law and that a verbal reprimand was insufficient punishment for the misconduct.””!

Again, the alleged violations cited by Dunn were committed by subordinate officers and he has

not shown any violations of the cited state statute by the City or former chief Fontenot. Nor has he

shown that this conduct was authorized.

Similarly, with respect to the alleged violations of La. Rev. Stat. Ann. Section 14:111

(assisting inmate escape), and La. Rev. Stat. Ann. Section 2140 (law enforcement officers’ duties),

Dunn’s allegations focus on the conduct of subordinate officers and does not show that the City

directly violated state law or authorized the violations of state law reported by Dunn. In sum,

Dunn’s Whistleblower claims under section 23:967 must be dismissed.

VI.

REMAINING DEFENDANTS

With the dismissal of claims against Lt. Young and the City of Eunice, the only remaining

claims are those asserted against Victor Fontenot and numerous John Doe defendants. As to the

John Doe defendants, the time for filing an amended complaint has now lapsed and accordingly,

No. 128 at 458.

Page 43 of 45

Dunn may not now amend to substitute actual defendants in the place of the John Doe defendants.

The claims against the John Doe defendants are therefore dismissed.

The claims against Victor Fontenot would suffer the same issues as those raised by Lt.

Young but counsel for Officer Fontenot failed to timely file a dispositive motion. Under Rule 56(f)

of the Federal Rules of Civil Procedure, however, the Court may “grant summary judgment for a

non-movant” after providing the opposing party notice and reasonable time to respond.

Accordingly, the Court hereby provides Plaintiff with notice under Rule 56(f) that, for the reasons

discussed above, the Court intends to grant summary judgment in favor of the Victor Fontenot to

the same extent and for the same reasons as stated above as the other Individual Defendants.

Pursuant to Rule 56(f), Plaintiff has thirty (30) days from the date of this ruling to file a response

as to why summary judgment should not be granted in favor of the Victor Fontenot. Mr. Fontenot

will then have fourteen (14) days to respond to the Plaintiffs filing.

VII.

CONCLUSION

For the reasons stated above, the Rule 12(c) Motion for Judgment on the Pleadings [ECF

No. 219] filed by Ryan Young is GRANTED IN PART and DENIED IN PART and the Motion for

Summary Judgment on behalf of Defendant, Lt. Ryan Young [ECF No. 237] is GRANTED. All

claims against Ryan Young are DISMISSED. The Motion to Dismiss under Rules (12)(b)(1),

12(b)(6), and 12(c) [ECF No. 254] filed by the City of Eunice is GRANTED IN PART AND

DENIED IN PART and the Motion for Summary Judgment [ECF No. 241] filed by the City of

Eunice is GRANTED. All claims against the City of Eunice are DISMISSED. Further, all claims

the John Doe defendants are DISMISSED. Plaintiff Michael Dunn’s Motion for Partial Summary

Judgment [ECF No. 252] is DENIED. Pursuant to Rule 56(f), Plaintiff has thirty (30) days from

the date of this ruling to file a response as to why summary judgment should not be granted in

Page 44 of 45

favor of the Victor Fontenot. Mr. Fontenot will then have fourteen (14) days to respond to the

Plaintiff's filing.

Due to the dismissal of all claims against the City of Eunice and Ryan Young, the Motion

in Limine [ECF No. 235], Motion to Adopt Motion in Limine [ECF No. 236], Motion to Adopt

Motion in Limine [ECF No. 244], the Motion in Limine [ECF No. 309], the Motion to Strike [ECF

No. 287] and the Motion to Strike [ECF No. 292] are DENIED.

THUS DONE in Chambers on this 26th day of August, 2026.

UNITED STATES DISTRICT JUDGE

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