King v. St of LA Dept of Pub

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 23, 2008

No. 07-31069 Charles R. Fulbruge III

Summary Calendar Clerk

CAROL STEWART KING

Plaintiff-Appellant

v.

STATE OF LOUISIANA; DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONS; ELAYN HUNT CORRECTIONAL CENTER; LOUISIANA

STATE PENITENTIARY; C MARTIN LENSING; THOMAS DESPORTE;

CORNEL HUBERT; MARIANA LEGER; ROBERT ABEL, BURL CAIN;

MATT REED; WAYNE EDMISTEN

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:05-CV-106

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Carol Stewart King purports to raise 71 points of error related to

numerous discovery rulings and the grant of summary judgment in connection

with her lawsuit claiming that eleven defendants violated her rights under Title

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

No. 07-31069

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, the United

States and Louisiana Constitutions, and unnamed “statutes and laws of the

State of Louisiana and the United States.” Finding absolutely no merit in her

claims, we affirm the rulings of the district court dismissing her federal claims

and remanding the remaining state claims.

I.

King was employed from February 7, 1996 through August 9, 2001 as a

licensed practical nurse (“LPN”) at the Elayn Hunt Correctional Center

(“EHCC”) in Louisiana. She then transferred to the Louisiana State Prison

(“LSP”) at Angola, where she worked until March 1, 2004.

On October 4, 1999, King filed suit against the State of Louisiana, the

Department of Public Safety and Corrections (“DOC”), and EHCC, seeking relief

and damages under Title VII of the Civil Rights Act for alleged gender and race-

based discrimination that occurred at EHCC from 1997 to 1998. Following a

jury verdict against those defendants in January of 2001, the district court

granted the defendants’ motion for judgment as a matter of law, finding that the

evidence at trial did not satisfy the requirements of Title VII. Final judgment

was rendered in favor of the defendants, and King failed to appeal.

King filed an EEOC charge on July 16, 2002, and the instant litigation

began with the filing of three identical lawsuits in various Louisiana state courts

in August and September of 2002. Each complaint charged that King was the

victim of unlawful gender and race-based discrimination and retaliation under

42 U.S.C. § 1983 and unidentified “laws of the State of Louisiana.” Specifically,

on August 9, 2002, she sued the State of Louisiana and DOC, on September 18,

2002, she added defendants EHCC, Lensing, Desporte, Leger, Hubert, and Abel

(the “EHCC defendants”), and on September 25, 2002, King added defendants

LSP, Cain, Reed, and Edmisten (the “LSP defendants”).

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No. 07-31069

The three Louisiana cases were removed to federal court, consolidated, and

King was permitted to file a consolidated federal complaint in May of 2003 and

a final “Amending and Supplemental Complaint With Jury Demand,” on August

25, 2005. In that final document, King added a number of claims, charging all

eleven defendants with violations of “Title VII of the Civil Rights Act of 1964, the

Civil Rights Act of 1991, their applicable sections and subsections as amended;

42 U.S.C. 2000e, et seq., . . . 42 U.S.C. § 1981[,] . . . 42 U.S.C. § 1983, the

Constitution of the United States of America, the Constitution of the State of

Louisiana[, and] the employment, contract and tort laws of the State of

Louisiana.” King lists a series of largely unintelligible grievances she contends

demonstrated discriminatory practices and retaliatory actions purportedly

committed due to her race, gender, her prior federal lawsuit, and her cooperation

with an investigation into inmate abuse at EHCC.

King’s allegations against EHCC and its employees Lensing, Desporte,

Hubert, Abel, and Leger, largely arise from a February 13, 2001 disciplinary

meeting in which Desporte, the assistant warden at EHCC, and Hubert, a

deputy warden, met with King to discuss allegedly false testimony provided by

King in connection with a lawsuit charging mistreatment of individuals at the

facility. Desporte and Hubert concluded that King had presented materially

false statements to her supervisors, and had failed to report mistreatment of

patients. As a result of this determination, Assistant Warden Abel on June 15,

2001 proposed to demote King and decrease her pay, and Deputy Warden Leger

affirmed the decision on June 20, 2001. Warden Lensing upheld the finding and

approved the penalty on July 2, 2001, and King’s request for an additional

appeal hearing was denied by letter dated July 25, 2001. This correspondence

confirmed that King would be demoted effective October 1, 2001. Her salary

would also be reduced.

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No. 07-31069

On August 9, 2001, King transferred back to LSP. King claimed that she

chose this transfer rather than “endure the intentional infliction of emotional

distress, and mental anguish and the unfair, retaliatory and discriminatory

treatment meted out by the named and other unnamed employees of EHCC.”

King left EHCC before her demotion was effective, and prior to her receipt of a

September 20, 2001 confirmation letter.

At LSP, King claims that she informed her new supervisor, Edmisten, of

her testimony and proposed demotion around September of 2001. King contends

that Edmisten became unfriendly toward her. Less than a month thereafter,

Edmisten allegedly threatened to place King on probationary status because of

a complaint lodged by Reed, who served as a security officer at LSP. King claims

that Reed was rude to her and improperly ordered her to dispose of empty pill

packets, and that this was sufficiently upsetting to require her to be placed on

medical leave for three weeks.1 King also claims as discrimination or retaliation

an average evaluation she received in 2003,2 and challenges the 2003

effectuation of her demotion, resulting in her salary being reduced to repay

amounts paid from 2001 through 2003. King states that she was “constructively

1

We specifically note that King explains her sole reason for involving Reed in this

protracted litigation, and alleging federal, state, and constitutional violations against him, as

follows:

Ms. King sued Sergeant Reed, because he created an incident in which he

approached Ms. King, while she was carrying out her duties on a cellblock and

ordered her to take and dispose of empty pill packs which he held. Ms. King

declined and stated that she was not on the cellblock for that purpose. Sergeant

Reed then turned to Jeanette Mayeaux, a similarly situated white LPN, who

walked upon the incident and he instructed her to tell Ms. King to follow his

instructions. Ms. Mayeaux declined and went about her nursing duties which

included getting rid of the empty pill packs.

2

Although King urges that her September 2003 evaluation was poor, her overall rating

was “meets requirements,” and her numerical score was 3.00, which was in the “meets

requirements zone” of between 2.50 and 3.49. In 2002, King successfully challenged a

performance review grade of 3.00, but, curiously, chose not to do so during the pendency of this

case in September of 2003.

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No. 07-31069

discharged” in February, 2004, following four months of sick and Family Medical

Leave taken due to the stress brought on by her mediocre work evaluation.

The procedural history of this case is lengthy, and generally not pertinent

to resolution of this appeal. It is sufficient to state that mediation was

unsuccessful, a motion to strike items improperly included in King’s final

complaint was granted, and there were a number of discovery disputes

throughout the litigation which culminated in the magistrate awarding costs and

attorney’s fees against King. The district court eventually adopted the

magistrate judge’s grant of summary judgment against King, dismissing all

federal claims and remanding all state claims to the Louisiana court.

Applying de novo review, we affirm the district court’s grant of summary

judgment, holding that the claims against all defendants fail to create material

issues of fact.3

II.

A. Standard of Review

We review a grant of summary judgment de novo, under the same

standard applied by the district court. City of Shoreacres v. Waterworth, 420

F.3d 440, 445 (5th Cir. 2005) (citing Terrebonne Parish Sch. Bd. v. Mobil Oil

Corp., 310 F.3d 870, 877 (5th Cir. 2002)). Summary judgment is appropriate

when there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Terrebonne Parish

Sch. Bd., 310 F.3d at 877. All well-pled facts are viewed in the light most

favorable to the non-movant and all reasonable doubts about the facts should be

resolved in favor of the non-moving party. Id. The district court’s discovery

3

We do not address each of King’s 71 issues because many challenge immaterial

questions of fact, or constitute little more than rhetorical questions. All such questions become

moot based on our affirmance of the district court’s grant of summary judgment and our

determination that the discovery rulings were not an abuse of discretion.

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No. 07-31069

rulings are considered under an abuse of discretion standard. Seiferth v.

Helicopteros Atuneros, Inc., 472 F.3d 266, 270 (5th Cir. 2006).

B. Prescription

Although 42 U.S.C. §§ 1981 and 1983 and corresponding constitutional

claims are not subject to specific federal statutes of limitations, we borrow the

forum state’s general personal injury limitations period. Piotrowski v. City of

Houston, 237 F.3d 567, 576 (5th Cir. 2001).4 In Louisiana, the applicable

limitations period is one year. Johnson v. Crown Enters., Inc., 398 F.3d 339, 341

(5th Cir. 2005); LA. CIV. CODE ANN. art. 3492 (1992). Federal law determines the

time at which the cause of action accrues, and dictates that the statute of

limitations here begins to run “the moment the plaintiff becomes aware that he

has suffered an injury or has sufficient information to know that he has been

injured.” Piotrowski, 237 F.3d at 576 (quoting Russell v. Bd. of Trustees, 968

F.3d 489, 493 (5th Cir. 1992)). “Actual knowledge is not required if the

circumstances would lead a reasonable person to investigate further.” Id.

(citation and internal quotation marks omitted).

A Title VII plaintiff must file a charge of discrimination with the EEOC

within 300 days after learning of the conduct alleged; otherwise, her claims are

prescribed. Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (citing 42

U.S.C. § 2000e-5(e)(1)).

Like the district court, we conclude that many of King’s claims arising

under 42 U.S.C. §§ 1981 and 1983 and Title VII are barred by the applicable

limitations periods. King’s allegations against EHCC and the individual EHCC

defendants (Lensing, Desporte, Leger, Hubert, and Abel) were brought by a

4

Section 1981’s prohibitions against a private actor’s racial discrimination are properly

asserted against a state actor under 42 U.S.C. § 1983. Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 735 (1989); Oden v. Oktibbeha County, Miss., 246 F.3d 458, 463-64 (5th Cir. 2001).

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No. 07-31069

September 18, 2002 lawsuit. Other than a claim regarding the failure to receive

a 1997 pay increase, which we agree is barred by res judicata, all concern

disciplinary actions the EHCC defendants took culminating in a demotion and

salary decrease that was conveyed to King by letter dated July 25, 2001.

Although King argues that the conduct was only effective upon the confirmation

letter she received on September 20, 2001, the Supreme Court has made clear

that, for statute of limitations purposes, “the proper focus is upon the time of the

discriminatory acts, not upon the time at which the consequences of the acts

became most painful.” Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980)

(quoting Abramson v. Univ. of Haw., 594 F.2d 202, 209 (1979)) (emphasis in

original). Here, King alleges that EHCC and the EHCC defendants

discriminated against her by proposing to demote her on account of race, gender,

or in retaliation for her previous lawsuit or deposition testimony, quashing her

free speech rights, concocting two unspecified disciplinary charges, and

providing compensatory leave rather than wages. However, all such conduct

was concluded and known to King well before September 18, 2001. King

concedes as much by claiming her August 9, 2001 transfer to be compelled by the

“retaliatory and discriminatory treatment” and “harassment the wardens were

exacting under the color of law” at EHCC. Accordingly, all claims against them

are prescribed.5

King’s remaining claims arising under Title VII, section 1981, and section

1983 are alleged against Louisiana, the DOC, LSP, Cain, Reed, and Edmisten

5

King’s reliance on the Louisiana theory of “contra non valentem” is unavailing, since

that theory only delays the commencement of the prescriptive period “where the cause of action

is not known or reasonably knowable by the plaintiff.” Cole v. Celotex Corp., 620 So.2d 1154,

1156-57 (La. 1993).

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No. 07-31069

for conduct that occurred after her August, 2001 transfer. Taken in the light

most favorable to King, they are not prescribed. They are addressed below.6

C. Qualified Immunity

It is well-settled that a section 1981 or 1983 suit against a state official in

his or her official capacity is a suit against the state itself; accordingly, the

district court correctly dismissed the actions against all defendants sued in their

official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

Oden, 246 F.3d at 464. In addition, the Title VII claims against the defendants

were properly dismissed, because “a party may not maintain a suit against both

an employer and its agent under Title VII.” Indest v. Freeman Decorating, Inc.,

164 F.3d 258, 262 (5th Cir. 1999); See also Ackel v. Nat’l Commc’ns Inc., 339

F.3d 376, 381 n.1 (5th Cir. 2003) (“[i]ndividuals are not liable under Title VII in

either their individual or official capacity”). Therefore, there is no official

liability as to Reed, Edmisten, or Cain.7

Qualified immunity applies to a state official sued in his or her individual

capacity unless the facts alleged show that the official’s conduct violated a

constitutional right and that “it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

194, 202 (2001). For there to be liability under section 1983, a defendant must

have been personally involved in the conduct causing a deprivation of

constitutional rights, or there must be a causal connection between the actions

6

The district court also dismissed the claims against Louisiana and the DOC because

of the statute of limitations; however, taken in a light most favorable to King, there may be

claims against these entities for conduct occurring after August 9, 2001.

7

Because Lensing, Desporte, Leger, Hubert, and Abel were sued outside the proper

limitations period, we do not consider whether qualified immunity applies to the claims against

them.

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No. 07-31069

of that person and the constitutional right sought to be redressed. Lozano v.

Smith, 718 F.2d 756, 768 (5th Cir. 1983).

Here, the allegations against Cain, Edmisten, and Reed fail to overcome

qualified immunity. The sole claim against Cain is that he signed a 2003 letter

instituting the 2001 demotion and requesting the repayment of amounts

overpaid since that time. Although King sets forth in argument a number of

immaterial issues regarding Cain,8 none of these arguments remotely suggest

that Cain had personal involvement in the alleged constitutional deprivations,

or even specify which constitutional rights Cain violated. Indeed, Cain had

apparently never met King, and it is not clear from the summary judgment

evidence that he was even aware of the 1999 lawsuit or King’s prior testimony.

In sum, there are no allegations and no summary judgment evidence to

overcome Cain’s claim of qualified immunity.

The allegations against Reed and Edmisten similarly fail to set forth any

constitutional violation. The claims against Reed – that he was rude to King,

asked her to dispose of some empty pill packets, and complained to her

supervisor when she was rude to him – do not constitute clearly unlawful

deprivations of constitutional rights. Similarly, the allegations of wrongdoing

by Edmisten consist solely of King’s belief that he was unfriendly toward her,

that he reprimanded her in front of another employee, and that he threatened

to place her on probation. There is not the faintest hint of unconstitutional

motive or conduct in these allegations, even if proved true. In sum, there is no

summary judgment evidence that the individual defendants committed a

8

For example, King claims: (1) “Genuine issues of material fact exit [sic] when the

district court found that wardens, Lensing and Cain, were not personally involved,” and (2) “A

genuine issue of material fact exists as to whether Warden Cain and LSP staff were

sufficiently notified by Ms. King about the pending adverse employment actions when she

transferred to LSP.”

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No. 07-31069

constitutional violation. Accordingly, qualified immunity applies to all

individual defendants, and the claims against them were properly dismissed.

D. No Evidence of Discrimination

After dismissal for statutes of limitations and qualified immunity, there

remain claims against Louisiana, the DOC, and LSP under Title VII and section

1983.9 Section 1983 and Title VII are “parallel causes of action.” Cervantez v.

Bexar County Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). Accordingly,

the “inquiry into intentional discrimination is essentially the same for individual

actions brought under sections 1981 and 1983, and Title VII.” Lauderdale v.

Tex. Dep’t of Criminal Justice, 512 F.3d 157, 166 (5th Cir. 2007) (quoting Wallace

v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)).

Our Title VII and section 1983 jurisprudence is well-settled:

Assuming a plaintiff has exhausted his administrative remedies, he

may prove a claim of intentional discrimination or retaliation either

by direct or circumstantial evidence. We analyze cases built on the

latter, like this one, under the framework set forth in McDonnell

Douglas Corp. v. Green. Under that framework, the plaintiff must

first establish a prima facie case of discrimination, which requires

a showing that the plaintiff (1) is a member of a protected group; (2)

was qualified for the position at issue; (3) was discharged or suffered

some adverse employment action by the employer; and (4) was

replaced by someone outside his protected group or was treated less

favorably than other similarly situated employees outside the

protected group. To establish a prima facie case of retaliation, the

plaintiff must establish that: (1) he participated in an activity

protected by Title VII; (2) his employer took an adverse employment

action against him; and (3) a causal connection exists between the

protected activity and the adverse employment action.

McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (citations

omitted).

9

The section 1981 claims against these remaining state actors are properly considered

under 42 U.S.C. § 1983, because section 1981 does not provide a separate cause of action

against governmental entities. Oden, 246 F.3d at 462-3.

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Accordingly, proof of an adverse employment action is a requisite element

of the plaintiff’s prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). We have historically held that “ultimate employment

decisions,” include only actions such as hiring, granting leave, discharging,

promoting, or compensating. McCoy, 492 F.3d at 556 (quoting Green v. Adm’rs

of Tulane Educ. Fund, 284 F.3d 642, 657 (5th Cir. 2002)). Our discrimination

jurisprudence has held that poor performance evaluations, unjust criticism, and

being placed on probation do not constitute “ultimate employment decisions.”

Id.; Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (abrogated

by Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53, 68 (2006)). However,

the Supreme Court has recently explained that an adverse employment action

in the retaliation context is somewhat broader. Burlington N., 548 U.S. at 68.

The Court explained that a retaliation claim may rest on an action that “a

reasonable employee would have found . . . [to be] materially adverse, which in

this context means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Id. (citation and internal

quotation marks omitted).

In her allegations that are not barred by prescription, King urges that she

was discriminated against or retaliated against by: (1) Edmisten’s change in

attitude toward her; (2) the verbal reprimands of Edmisten (including one in

front of a co-worker); (3) Reed’s request that she dispose of empty pill packets;

(4) being retained in an undesirable unit; (5) the recapture of salary paid

between 2001 and 2003; (6) an average evaluation in 2003 which resulted in

missing a merit salary increase; and (7) her alleged constructive discharge.10

Because King claims that “all defendants are liable to Ms. King with

10

The incident in which King was reprimanded for wearing purple lipstick is not

properly before this court. The 1997 missed salary increase is barred by res judicata, as

discussed above.

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respect to all causes of action, according to the just application of all laws to

which Ms. King has resorted,” we will assume in the summary judgment context

that she claims all conduct to be retaliatory and discriminatory. Even taken in

a light most favorable to King, allegations of unpleasant work meetings, verbal

reprimands, improper work requests, and unfair treatment do not constitute

actionable adverse employment actions as discrimination or retaliation. See

Burlington N., 548 U.S. at 68; see also Breaux v. City of Garland, 205 F.3d 150,

158 (5th Cir. 2000) (holding that criticism, oral threats, abusive remarks, and

threats of termination did not rise to the level of adverse employment action).

Even under the broadest conceivable reading of Burlington Northern, the only

conduct remotely actionable under Title VII and 42 U.S.C. § 1983, that a

reasonable employee would have found to be materially adverse, is the

undesirable work assignment; the missed salary increase because of an average

evaluation; and her “constructive discharge.”

King failed to proffer any competent evidence of discrimination. There is

no evidence that King’s assignment to “Camp J” reflects treatment less favorable

than a similarly situated individual outside her protected group. There is no

evidence that her salary was any different than a similarly situated individual

outside her protected group. There is no evidence that King was constructively

discharged at all. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771-

72 (5th Cir. 2001) (setting forth factors to consider for constructive discharge).

Even assuming. arguendo, that King made a prima facie showing of

discrimination or retaliation, the summary judgment evidence utterly fails to

carry King’s burden to rebut the defendants’ nondiscriminatory rationale for

each alleged act. See McCoy, 492 F.3d at 557. Accordingly, summary judgment

was appropriate.

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E. Fifth Amendment Claims

King alleges that the reduction of her salary to recapture the money paid

to her following her October 2001 demotion is an unconstitutional taking, in

violation of the Fifth Amendment. It is well-settled that a constitutional remedy

against a state actor under the Fourteenth Amendment does not lie where the

state provides a meaningful post-deprivation remedy for the loss. Hudson v.

Palmer, 468 U.S. 517, 533 (1984). We agree with the district court that King

could have resorted to state remedies to seek recovery of her property or

reimbursement of her loss. See Marshall v. Norwood, 741 F.2d 761, 763 (5th Cir.

1984). Accordingly, summary judgement was appropriate.

F. Additional Objections

Within King’s 71 issues presented for appellate review, she challenges

various rulings by the magistrate and district court, including (1) the magistrate

court’s denial of her summary judgment motion as untimely, which was later

reversed by the district court; (2) the grant of the defendants’ motion to compel;

(3) the court’s decision to conduct an in camera review of evidence requested by

King; (4) the denial of King’s broad request for employment records for all

doctors and nurses who worked within the facilities, co-workers, possible

witnesses, certain employees and defendants, and additional requested

discovery; (5) the magistrate judge’s order striking portions of certain pleadings

that include factual issues related to mediation; (6) the magistrate’s award of

attorney’s fees and costs; and (7) the district court’s alleged failure to properly

consider King’s Rule Seven response. The thorough and patient consideration

given each such issue by the district and magistrate courts compel us to find no

abuse of discretion. See Helicopteros Atuneros, 472 F.3d at 270.

G. State Law Claims

With all federal claims properly dismissed, we conclude that the district

court’s decision to decline supplemental jurisdiction for King’s claims under

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No. 07-31069

unspecified “employment, contract and tort laws” of Louisiana was not an abuse

of discretion. See Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993) (“District

courts enjoy wide discretion in determining whether to retain supplemental

jurisdiction over a state claim once all federal claims are dismissed.”); 28 U.S.C.

§ 1367 (c)(3).

III.

The district court admonished King,

The time has come to put this litigation to an end. For plaintiff to

re-file another case after she loses one or to file a case each time she

disagrees with the decisions made by her employer without having

the law and evidence to support her claims is a clear abuse of the

judicial process. The plaintiff and her attorney are warned that

plaintiff will be subject to sanctions if she continues to re-file claims

which have already been decided previously or are not supported by

the law and evidence. Title VII and section 1983 suits have specific

requirements which must be established and proven by the plaintiff

before a court may grant relief. However, filing frivolous suits

which clearly do not come within the legal and factual standards

required for relief and including allegations that can be said to

amount to harassment and an expectation that by throwing so many

allegations at the defendants with the hope that perhaps

“something might stick” cannot be tolerated by the Court.

We concur. We further warn King’s attorney that future filings of a similarly

incomprehensible and insupportable nature as the ones in this case may result

in sanctions. See FED. R. APP. P. 38.

For the foregoing reasons, the district court’s grant of summary judgment

as to all federal claims is AFFIRMED.

14