Petition for Writ of Certiorari — James LeBlanc, Petitioner v. Brian McNeal

Supreme Court briefJul 5, 2024

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No. 23-_____

In the

Supreme Court of the United States

JAMES LEBLANC,

Petitioner,

BRIAN MCNEAL,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the

Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

July 5, 2024

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

MORGAN BRUNGARD

Deputy Solicitor General

AUTUMN HAMIT PATTERSON

Sp. Ass’t Solicitor General

PHYLLIS E. GLAZER

Ass’t Attorney General

QUESTION PRESENTED

A prisoner’s “attack on the legality of [his] physical

confinement itself … is the long-established function

of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475,

488 n.8 (1973); see Wilkinson v. Dotson, 544 U.S. 74,

79 (2005) (an “attack[] [on] the very duration of physical confinement … lies at the core of habeas corpus”

(cleaned up)). The question presented is:

Whether, consistent with Preiser and its progeny,

a state prisoner who alleges that he was unlawfully

confined beyond his proper release date may sue for

damages under 42 U.S.C. § 1983.

PARTIES TO THE PROCEEDING

Petitioner is Secretary James M. LeBlanc of the

Louisiana Department of Public Safety and Corrections. Petitioner was the defendant-appellant below.

Respondent is Brian McNeal. Respondent was the

plaintiff-appellee below.

iii

STATEMENT OF RELATED CASES

McNeal v. LeBlanc, No. 22-30180 (5th Cir.). Judgment entered Jan. 5, 2024; order denying petition for

rehearing en banc entered Feb. 21, 2024.

McNeal v. Louisiana Department of Public Safety

& Corrections et al., No. 18-CV-736 (M.D. La.). Orders

entered Feb. 18, 2020, and Apr. 18, 2022.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ii

STATEMENT OF RELATED CASES ...................... iii

APPENDIX TABLE OF CONTENTS ......................... v

TABLE OF AUTHORITIES ....................................... vi

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 5

JURISDICTION .......................................................... 6

STATUTORY PROVISIONS INVOLVED.................. 6

STATEMENT OF THE CASE .................................... 8

REASONS FOR GRANTING THE PETITION........ 16

THE CIRCUITS ARE SQUARELY SPLIT. ................ 16

A. The Fifth and Seventh Circuits

Permit Such Claims. .................................... 16

B. The Ninth, Tenth, and Eleventh

Circuits Adopt a Middle Ground. ................ 18

C. The Third and Eighth Circuits Bar

Such Claims.................................................. 22

II. THE FIFTH CIRCUIT’S VIEW IS WRONG. ............. 25

III. THE ISSUE PRESENTED IS IMPORTANT. .............. 29

IV. THIS IS AN IDEAL VEHICLE. ............................... 31

CONCLUSION .......................................................... 32

APPENDIX TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(January 5, 2024) . . . . . . . . . . . . . App. 1

Appendix B Ruling and Order in the United States

District Court for the Middle District

of Louisiana

(April 18, 2022) . . . . . . . . . . . . . . App. 26

Appendix C Ruling and Order in the United States

District Court for the Middle District

of Louisiana

(February 18, 2020) . . . . . . . . . . App. 54

Appendix D Order Denying Petition for Rehearing

and Petition for Rehearing En Banc in

the United States Court of Appeals for

the Fifth Circuit

(February 21, 2024) . . . . . . . . . . App. 91

TABLE OF AUTHORITIES

Cases

Arizona State Leg. v. Ariz. Indep. Redistricting

Comm’n,

576 U.S. 787 (2015) ................................................ 28

Cohen v. Longshore,

621 F.3d 1311 (10th Cir. 2010) .................... 3, 20, 21

Connick v. Thompson,

563 U.S. 51 (2011) .................................................. 14

Courtney v. Butler,

66 F.4th 1043 (7th Cir. 2023)............................. 3, 17

Crittindon v. LeBlanc,

37 F.4th 177 (5th Cir. 2022)....................... 10, 14, 15

Dare v. United States,

264 F. App’x 183 (3d Cir. 2008) ............................. 24

Deemer v. Beard,

557 F. App’x 162 (3d Cir. 2014) ......................... 3, 23

Edwards v. Balisok,

520 U.S. 641 (1997) .......................................... 18, 28

Entzi v. Redmann,

485 F.3d 998 (8th Cir. 2007) ........................ 3, 24, 25

Galanti v. Nev. Dep’t of Corr.,

65 F.4th 1152 (9th Cir. 2023)............. 3, 5, 18, 19, 28

Gilles v. Davis,

427 F.3d 197 (3d Cir. 2005)................................ 3, 23

Giroir v. LeBlanc,

No. 3:21-cv-108 (M.D. La. Jan. 22, 2024) ............ 8, 9

Glenn v. Pa. Bd. of Prob. & Parole,

410 F. App’x 424 (3d Cir. 2011) ............................. 24

vii

Heck v. Humphrey,

512 U.S. 477 (1994) ... 1, 2, 3, 4, 9, 10, 12, 13, 14, 16,

17, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 31, 32

Hicks v. LeBlanc,

81 F.4th 497 (5th Cir. 2023).. 2, 8, 11, 14, 16, 17, 25,

Kilman v. Williams,

831 F. App’x 396 (10th Cir. 2020) ................ 3, 19, 20

Marlowe v. Fabian,

676 F.3d 743 (8th Cir. 2012) .................................. 24

Morrow v. Fed. Bureau of Prisons,

610 F.3d 1271 (11th Cir. 2010) .................... 3, 21, 22

Nance v. Ward,

597 U.S. 159 (2022) .................................................. 1

Nevada Dep’t of Corr. v. Galanti,

No. 23-186 (U.S.) .................................................... 31

Newmy v. Johnson,

758 F.3d 1008 (8th Cir. 2014) ................................ 25

Preiser v. Rodriguez,

411 U.S. 475 (1973) i, 1, 2, 3, 4, 9, 10, 12, 13, 16, 17,

19, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32

Randell v. Johnson,

227 F.3d 300 (5th Cir. 2000) .................................. 32

Wilkinson v. Dotson,

544 U.S. 74 (2005) ................................. i, 1, 9, 20, 26

Williams v. Consovoy,

453 F.3d 173 (3d Cir. 2006)................................ 3, 23

Wilson v. Midland Cnty., Tex.,

89 F.4th 446 (5th Cir. 2023), reh’g en banc granted

92 F.4th 1150 (5th Cir. 2024)........................... 31, 32

viii

Statutes

28 U.S.C. § 1254(1) ...................................................... 6

28 U.S.C. § 2241 .......................................................... 6

28 U.S.C. § 2254 .......................................................... 7

42 U.S.C. § 1983 i, 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15,

16, 17, 18, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31,

PETITION FOR WRIT OF CERTIORARI

For decades, the Court has endeavored to identify

and enforce “the dividing line between [42 U.S.C.]

§ 1983 and the federal habeas statute.” Nance v.

Ward, 597 U.S. 159, 167 (2022). Relevant here, the

Court has emphasized that a prisoner’s “attack on the

legality of [his] physical confinement itself … is the

long-established function of habeas corpus.” Preiser v.

Rodriguez, 411 U.S. 475, 488 n.8 (1973); see Wilkinson

v. Dotson, 544 U.S. 74, 79 (2005) (an “attack[] [on] the

very duration of physical confinement … lies at the

core of habeas corpus” (cleaned up)).

Attacks on confinement, therefore, are subject to

the federal habeas statute. That statute “require[s] exhaustion of adequate state remedies as a condition

precedent” to federal habeas relief. Preiser, 411 U.S.

at 489. Indeed, “strong considerations of comity” “require giving the States the first opportunity to correct

the errors made in the internal administration of their

prisons.” Id. at 492. Accordingly, attacks on confinement fall within the “specific” purview of the habeas

statute and its state-remedy exhaustion requirement,

rather than “[t]he broad language of § 1983.” Id. at

489; see Heck v. Humphrey, 512 U.S. 477, 483 (1994)

(§ 1983 claims that “call into question the lawfulness

of … confinement” are not “cognizable under § 1983”).

This

case

asks

whether—notwithstanding

Preiser/Heck and their progeny—a state prisoner who

claims that he has been unlawfully confined past his

release date can (a) forego administrative and habeas

relief while in custody, (b) wait until his release, and

under § 1983.

Louisiana (and by extension, the Fifth Circuit) has

been “plagued” with claims from prisoners alleging

that they were unlawfully confined beyond their

proper release dates. Hicks v. LeBlanc, 81 F.4th 497,

510 (5th Cir. 2023); App.17 (Duncan, J., concurring)

(There “will likely [be] many more.”). This is an exemplar case. Respondent Brian McNeal served prison

time for drug charges. He claims the prison unlawfully

confined him for 41 days after his release date. But he

did not invoke the prison grievance system or seek habeas relief to obtain immediate release during those

41 days, even though all agree such relief was available. Instead, after his release, he sued petitioner—Secretary James LeBlanc, head of the Louisiana Department of Public Safety and Corrections (DPSC)—under

§ 1983, seeking compensatory and punitive damages

for each day of his alleged “overdetention.”

By denying rehearing en banc—over vigorous dissents from Judges Jones and Oldham on behalf of

seven judges—the Fifth Circuit blessed this electionof-remedies. The Fifth Circuit acknowledges

Preiser/Heck, but holds that those cases have “no place

here.” Hicks, 81 F.4th at 506. In the Fifth Circuit’s

view, “Heck does not bar claims by an overdetained

prisoner who ‘does not challenge the validity of his

sentence, [but] merely the execution of his release.’”

App.7. And “[s]uch is the case here, where McNeal

does not challenge his conviction or attendant sentence, but rather the 41 days he was imprisoned beyond his release date.” Id.

The Fifth Circuit’s decision below cements a circuit

split over whether a state prisoner may seek damages

under § 1983 for his alleged confinement beyond his

release date. On one side, the Seventh Circuit joins the

Fifth Circuit in holding that claims like McNeal’s do

not implicate Preiser/Heck because they seek to “vindicate,” “not attack,” a sentence. Courtney v. Butler,

66 F.4th 1043, 1049 (7th Cir. 2023). Accordingly,

McNeal’s claim could proceed in the Seventh Circuit

as in the Fifth Circuit. The Ninth, Tenth, and Eleventh Circuits, by contrast, stake out a middle ground

that depends on the availability of habeas relief while

the prisoner was in custody and his diligence in pursuing it. Under that standard, McNeal would lose outright in the Tenth Circuit. See Kilman v. Williams, 831

F. App’x 396, 398 (10th Cir. 2020) (per curiam) (holding § 1983 claim like McNeal’s barred by Preiser/Heck

because of prisoner’s “lack of diligence in filing any habeas petitions during his incarcerations” (citing Cohen

v. Longshore, 621 F.3d 1311, 1317 (10th Cir. 2010))).

And he would arguably lose in the Ninth and Eleventh

Circuits. See Galanti v. Nev. Dep’t of Corr., 65 F.4th

1152, 1156 (9th Cir. 2023) (permitting § 1983 claim

like McNeal’s where, unlike McNeal, prisoner allegedly could not have obtained habeas relief in custody);

Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271, 1272

(11th Cir. 2010) (same). Finally, the Third and Eighth

Circuits summarily reject claims like McNeal’s. See

Deemer v. Beard, 557 F. App’x 162, 163, 166 (3d Cir.

2014) (rejecting prisoner’s § 1983 claim that “he was

confined for a year and a day beyond the date on which

his prison sentence should have expired” under

Preiser/Heck (citing Williams v. Consovoy, 453 F.3d

173 (3d Cir. 2006); Gilles v. Davis, 427 F.3d 197 (3d

Cir. 2005))); Entzi v. Redmann, 485 F.3d 998, 1003

(8th Cir. 2007) (same). These divergent outcomes illustrate the need for this Court’s intervention.

The Fifth Circuit’s view also is wrong. It depends

on the mistaken assumption that Preiser/Heck bar

only § 1983 challenges to a prisoner’s conviction or

sentence. But that bar covers § 1983 claims that challenge a prisoner’s “physical confinement itself,” e.g.,

Preiser, 411 U.S. at 489—whether sanctioned by a conviction or sentence or not—because that is the bread

and butter of habeas. The Fifth Circuit has thus

“twisted itself into knots to avoid a conclusion that

should be obvious: A prisoner who has a habeas remedy cannot sue under § 1983.” App.102 (Oldham, J.,

dissenting from the denial of rehearing en banc). The

Fifth Circuit’s view also raises a host of other problems, not least of which is its affront to common sense

and comity. It gives prisoners like McNeal “an election

of remedies”: invoke the federal habeas statute “to get

out of jail,” or “stay in jail and then sue for compensation later” under § 1983. Id. at 93. But that turns

Preiser on its head. If States, in fact, deserve “the first

opportunity to correct the errors made in the internal

administration of their prisons,” Preiser, 411 U.S. at

492, then a prisoner cannot refuse administrative and

habeas relief because he has grander aspirations of

cashing in under § 1983. Whether a complete bar (as

in the Third and Eighth Circuits) or a diligence-based

rule (as in the Ninth, Tenth, and Eleventh Circuits) is

the right answer, the Fifth and Seventh Circuits’ blanket blessing of claims like McNeal’s is wrong.

This issue, moreover, is exceedingly important. Its

importance is reflected in the numerous and recurring

times that the issue arises in federal courts across the

country. It also is important to Louisiana and the Fifth

Circuit, which are entangled in claims like McNeal’s

that should be dismissed at the outset of litigation. In

addition, it is important to every State and municipality given the high monetary stakes involved: If prisoners may forego administrative and habeas relief (i.e.,

immediate release) in favor of money damages under

§ 1983 after their release, then that portends a seismic

shift in how this Court, States, and municipalities traditionally have understood the proper remedy for challenges to confinement. Last, the issue presented is important to States, municipalities, and prisoners alike

who are subject to different (and conflicting) rules

across the country simply because of the jurisdiction

in which they happen to reside.

Finally, this is an ideal vehicle to address the question presented. In the panel opinion below and the

opinions accompanying both the panel decision and

the 8-9 en banc vote, the Fifth Circuit squarely addressed the issue and entrenched its own mistaken position over the dissenting views of seven judges. Moreover, this petition avoids the mismatch in the petition

arising from the Ninth Circuit’s Galanti case, which

asked a question that did not directly address the nature of claims like McNeal’s. The critical question on

which the Fifth Circuit and others are split is whether

a state prisoner who challenges his alleged confinement beyond his release date may do so under § 1983.

He may not. This Court should grant the petition.

OPINIONS BELOW

The Fifth Circuit’s panel opinion is reported at 90

F.4th 425 and reproduced at App.1–25. The Fifth Circuit’s order denying the petition for rehearing en banc

is reported at 93 F.4th 840 and reproduced at App.91–

102. The district court’s April 18, 2022, order is reported at 598 F. Supp. 3d 428 and reproduced at

App.26–53. The district court’s February 18, 2020, order is not reported but is available at 2020 WL 798321

and reproduced at App.54–90.

JURISDICTION

The Fifth Circuit issued its panel opinion on January 5, 2024, App.1–25, and denied the petition for rehearing en banc on February 21, 2024, App.91–102.

On May 17, Justice Alito granted petitioner’s application to extend the deadline for filing a petition for writ

of certiorari from May 21, 2024, to July 5, 2024. See

LeBlanc v. McNeal, No. 23A1017 (U.S.). This Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by

the Supreme Court, any justice thereof, the district courts and any circuit judge within their

respective jurisdictions. The order of a circuit

judge shall be entered in the records of the district court of the district wherein the restraint

complained of is had.

…

to a prisoner unless—

…

(3) He is in custody in violation of the Constitution or laws or treaties of the United

States[.]

28 U.S.C. § 2254 provides in relevant part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment

of a State court only on the ground that he is in

custody in violation of the Constitution or laws

or treaties of the United States.

(b)(1) An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State

corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the rights of

the applicant.

42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of

the District of Columbia.

STATEMENT OF THE CASE

A. Factual Background

1. In recent years, States and the courts of appeals

have been inundated with § 1983 claims (and related

state-law claims) from state prisoners alleging that

they were unlawfully confined beyond their release

dates. This is especially true as to Louisiana and the

Fifth Circuit, which has called the claims a “plague[].”

Hicks, 81 F.4th at 510. And the Fifth Circuit has lamented that still more will come. See App.1 (“We face

another suit against a Louisiana official for overdetention”); App.17 (Duncan, J., concurring) (“We will likely

have many more.”).

Among the Louisiana cases are two putative class

actions, which are stayed pending the outcome of this

petition. See Order at 2, Humphrey v. LeBlanc, No.

3:20-cv-233 (M.D. La. Jan. 22, 2024), ECF No. 217; Order at 2, Giroir v. LeBlanc, No. 3:21-cv-108 (M.D. La.

Jan. 22, 2024), ECF No. 120. In each case, the named

plaintiffs allege that they are or were unlawfully confined for several weeks beyond their release dates.

Second Amended Class Action Complaint at 3 ¶¶ 7–9,

Humphrey, ECF No. 43; Amended Class Action Complaint at 4 ¶ 15, Giroir, ECF No. 46. In each case, the

plaintiffs seek to represent all state prisoners since

2019 who were or will be released more than 48 hours

beyond their alleged release date.

No court has yet rendered final judgment in these

cases, and the merits of the prisoners’ claims are not

at issue here. See App.18 (Duncan, J., concurring)

(“The question is not whether overdetention is a serious problem (it is) nor whether it should be fixed (it

should).”). Instead, the litigation thus far has turned

on the remedy that the prisoners have elected to invoke (§ 1983) and the remedies that they have elected

to bypass (administrative and habeas relief).

2. Under this Court’s precedents, “a state prisoner’s § 1983 action is barred (absent prior invalidation [of a prisoner’s confinement])—no matter the relief sought (damages or equitable relief), no matter the

target of the prisoner’s suit (state conduct leading to

conviction or internal prison proceedings)—if success

in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson,

544 U.S. at 81–82. This familiar Preiser/Heck principle

forecloses § 1983 claims that challenge a prisoner’s

“physical confinement itself.” Preiser, 411 U.S. at 489.

Such challenges are instead the stuff of habeas.

That distinction matters because a claim that

sounds in habeas is subject to the federal habeas statute. That statute “require[s] exhaustion of adequate

state remedies as a condition precedent” to federal habeas relief. Id. at 489. As this Court has emphasized,

“strong considerations of comity” “require giving the

States the first opportunity to correct the errors made

in the internal administration of their prisons.” Id. at

492; see id. (“Since these internal problems of state

prisons involve issues so peculiarly within state authority and expertise, the States have an important

interest in not being bypassed in the correction of

those problems.”). Accordingly, attacks on a prisoner’s

confinement fall within the “specific” purview of the

habeas statute and its state-remedy exhaustion requirement, rather than “[t]he broad language of

§ 1983.” Id. at 489. Put plainly, a prisoner cannot use

§ 1983 to challenge his confinement.

3. The Fifth Circuit, however, has developed an exception to Preiser/Heck for a prisoner who claims that

he was unlawfully confined beyond his proper release

date and seeks damages under § 1983.

The Fifth Circuit previewed this exception in Crittindon v. LeBlanc, 37 F.4th 177 (5th Cir. 2022). There,

the majority suggested that “Heck does not bar this

suit” because “Plaintiffs do not challenge their underlying conviction nor the length of their sentence.” Id.

at 190. But the majority claimed that the issue was

not properly presented. Id. In dissent, Judge Oldham

explained that, under Preiser/Heck, “any action challenging the length of confinement—or legality of continued confinement—lies in habeas corpus rather

than § 1983.” Id. at 194 (Oldham, J., dissenting). And

“[t]hat is the beginning and the end of the Heck bar”

in a case like this: “The fact that plaintiffs’ claims were

cognizable in habeas means they’re non-cognizable in

§ 1983.” Id.

Despite stating that the Heck issue was not before

the court in Crittindon, the Fifth Circuit subsequently

reversed course. The following year, the Fifth Circuit

held in a materially similar case that “Crittindon controls this case.” Hicks, 81 F.4th at 507. Specifically,

“[a]s in Crittindon,” a § 1983 plaintiff who challenges

his confinement beyond his release date “does not

challenge the validity of his sentence, [but] merely the

execution of his release.” Id. at 506. Under that view,

such a prisoner “seeks to vindicate—not undermine—

his sentence.” Id. Thus, “Heck is no bar here” and

“Heck has no place here.” Id. at 506–07.

B. Procedural Background1

1. This is one of the § 1983 lawsuits challenging a

prisoner’s alleged confinement beyond his release

date. In 2015, respondent Brian McNeal pleaded

guilty to possessing cocaine and drug paraphernalia.

App.2. He received a five-year suspended sentence

with five years of probation. Id. He violated his probation in 2017 and was sentenced to serve 90 days at the

Steve Hoyle Program—a substance abuse program at

the Bossier Parish Correctional Center. Id. Shortly

thereafter, DPSC sent a letter to Hoyle identifying November 1, 2017, as McNeal’s release date. Id.

In the meantime, McNeal was evaluated at the

Elayn Hunt Correctional Center, where DPSC determined that a mental impairment rendered him unfit

for Hoyle. Id. As a result, McNeal remained at Hunt,

while his release letter remained at Hoyle. App.2–3.

McNeal was not released on November 1, 2017.

App.3. He alleges that his girlfriend called the parole

office to complain. Id. He also alleges that he wrote the

1 The allegations detailed below come from McNeal’s complaint,

which petitioner takes as true at this motion-to-dismiss stage.

Hunt warden on November 15, 2017, “complaining he

had not yet been taken to court and released.” Id. Approximately one month later, his probation officer notified DPSC of the delay. Id. On December 11, 2017,

DPSC emailed McNeal’s release letter to Hunt giving

Hunt the authority to release McNeal. Id. McNeal was

then released on December 12—41 days after November 1, 2017. Id.

2. McNeal later filed this lawsuit in Louisiana

state court against various defendants, including petitioner Secretary James LeBlanc. His original complaint (like his operative complaint) asserted claims

under § 1983 and the federal Constitution, as well as

state-law causes of action such as false imprisonment

and negligence. App.4. The defendants removed the

case to federal district court, App.3, which rendered a

series of decisions relevant here.

First, on February 18, 2020, the district court denied summary judgment to the defendants, rejecting

their argument that Preiser/Heck bar McNeal’s claim

that he was unlawfully confined beyond his release

date. App.3–4. The district court recognized that

McNeal did not “previously invalidate[] the nature

and duration of his confinement,” nor “has [he] been a

part of any other civil action.” App.57. In fact,

“[o]utside of his letter to the Warden, Plaintiff did not

utilize the grievance procedure or file any Administrative Remedy Procedures pertaining to his incarceration.” App.57–58. In addition, McNeal brought to the

district court’s attention that DPSC has released prisoners like him within hours of the filing of a habeas

petition, demonstrating there is no reason to think

“that overdetained prisoners cannot get habeas relief”

promptly since these claims differ dramatically “from

claims arising in the mine-run state prisoner’s case.”

See App.97 & n.1 (Oldham, J., dissenting from the denial of rehearing en banc). Nonetheless, the district

court excused McNeal from Preiser/Heck because he

“‘challenges neither his conviction nor the length of his

court-ordered sentence; he simply alleges that the

overdetention by his jailers’ failure to timely process

his release following his court-ordered time-served

judgment exceeds constitutional bounds.’” App.80.

Second, on March 30, 2020, the district court

granted McNeal leave to amend his complaint, App.4,

expressly rejecting the defendants’ argument that

amendment would be futile under Preiser/Heck, see

Dist. Ct. ECF No. 58 at 7 (futility “has been decided

adversely to Defendants, as the Court’s February 18,

2020 Ruling and Order squarely rejected Defendants’

argument that Plaintiff’s claims are Heck-barred”).

Third, on April 18, 2022—and after allowing

McNeal to amend yet again—the district court denied

the defendants’ motion to dismiss the second amended

complaint, denying (as relevant here) qualified immunity to Secretary LeBlanc. App.6; App.26–53.

3. Secretary LeBlanc appealed to the Fifth Circuit,

reurging his argument that Preiser/Heck bars

McNeal’s § 1983 claim (and related state-law claims).

In response, McNeal acknowledged that, “if you are

currently in prison past the end of your sentence and

your goal is to get released, that is [] habeas—because

you are trying to get your body out of prison.” C.A. Appellee’s Br. at 24; C.A. Oral Arg. at 25:03–07 (“That’s

right. Habeas is the remedy to get you out.”). According to McNeal, however, that changes once “you are a

free person and wish to sue for damages for the period

you were overdetained”; at that point, “Section 1983 is

your procedural vehicle.” C.A. Appellee’s Br. at 24.

Given Crittindon and Hicks, the Fifth Circuit panel

found itself “bound” to reject the Secretary’s argument. App.7. The panel noted that, “[i]n Hicks, we held

that Heck does not bar claims by an overdetained prisoner who ‘does not challenge the validity of his sentence, [but] merely the execution of his release.’” Id.

“Accordingly, Heck raises no bar to McNeal’s claims

against LeBlanc based on his alleged overdetention.”

Id.

Judge Jones wrote separately, however, to call for

the en banc Court to overrule Crittindon and Hicks.2

“This seems to me, as to Judge Oldham, a classic situation that Heck intended to address,” she said.

App.16–17 (Jones, J., concurring). McNeal’s “case concerns a challenge to ‘the fact and length of his confinement.’” App.15. “That means [his] only remedy lies in

habeas. And the Heck doctrine plainly bars [him] from

ignoring the specific terms of the habeas statute,

2 Judge Duncan likewise wrote separately to call for en banc re-

view of the Fifth Circuit’s position that the Secretary may—consistent with Connick v. Thompson, 563 U.S. 51 (2011)—be held

personally liable. App.17 (Duncan, J., concurring). He also led a

seven-judge dissent from the denial of rehearing en banc to underscore the Fifth Circuit’s serious misapplication (and indeed,

“underruling”) of Connick. App.92–93; id. at 93 (referencing Connick’s own reversal of the en banc Fifth Circuit: “If this were a

movie, it would be called The Fifth Circuit Strikes Back.”). Because that issue is better suited for summary judgment where

the Secretary is not limited by mischaracterizations in McNeal’s

complaint, the Secretary will preserve the issue for this Court’s

review (if necessary) in summary-judgment papers.

which ‘must override the general terms of § 1983.’” Id.

(quoting Judge Oldham’s Crittindon dissent). That is

especially so, she emphasized, because “McNeal made

no good faith efforts to seek state habeas relief.” Id. In

her view, “[t]his court should not enable overdetained

prisoners to neglect their obligation to seek habeas relief and instead bypass that remedy in order to pursue

Section 1983 damages by filing for the wrong type of

relief in the wrong court at the wrong time.” App.16.

The Fifth Circuit subsequently denied the Secretary’s petition for rehearing en banc in an 8-9 vote.

App.91–92. Relevant here, Judge Oldham—joined by

Judges Jones, Smith, Ho, Duncan, Engelhardt, and

Wilson—dissented. Judge Oldham underscored that

“[a]ll agree McNeal could have sought habeas relief

during [the] 41 days.” App.93 (Oldham, J., dissenting

from the denial of rehearing en banc). Yet “he chose

not to do that. He instead slept on his habeas rights,

got out of jail, and then sought declaratory relief, compensatory and punitive damages, and attorneys’ fees

under 42 U.S.C. § 1983.” Id. And the Fifth Circuit has

“blessed that approach, effectively holding the federal

habeas statute and § 1983 offer prisoners like McNeal

an election of remedies: The former allows prisoners

to get out of jail, while the latter allows prisoners to

stay in jail and then sue for compensation later.” Id.

“This court,” he concluded, “has twisted itself into

knots to avoid a conclusion that should be obvious: A

prisoner who has a habeas remedy cannot sue under

§ 1983.” App.102.

REASONS FOR GRANTING THE PETITION

I. THE CIRCUITS ARE SQUARELY SPLIT.

There is a clear, three-way circuit split over

whether a state prisoner who says he was unlawfully

confined beyond his release date may sue for damages

under § 1983 after his release. Do Preiser/Heck bar

such claims? The Fifth and Seventh Circuits say no;

the Ninth, Tenth, and Eleventh Circuits say yes and

no depending on the availability of habeas relief during the prisoner’s custody and his diligence in pursuing it; and the Third and Eighth Circuits say yes.

A. The Fifth and Seventh Circuits Permit

Such Claims.

In the Fifth and Seventh Circuits, prisoners like

McNeal may forego available administrative and habeas relief by waiting until their release to sue for

damages under § 1983. That is because, according to

those courts, a prisoner’s claim that he was unlawfully

confined past his release date does not implicate

Preiser/Heck at all.

Fifth Circuit. As detailed above, the Fifth Circuit

has now entrenched its view that claims like McNeal’s

are not subject to Preiser/Heck. Specifically, the Fifth

Circuit’s view is that a § 1983 plaintiff who challenges

his confinement beyond his release date “does not

challenge the validity of his sentence, [but] merely the

execution of his release.” Hicks, 81 F.4th at 506. Because such a prisoner “seeks to vindicate—not undermine—his sentence,” “Heck is no bar here” and “Heck

has no place here.” Id. at 506–07; see also App.7 (“Such

is the case here, where McNeal does not challenge his

conviction or attendant sentence, but rather the 41

days he was imprisoned beyond his release date.”).

Seventh Circuit. The Seventh Circuit holds the

same view. In Courtney, 66 F.4th 1043, the prisoner

sued prison officials under § 1983 for “wrongfully prolong[ing] his detention” beyond his parole release date

by a year. Id. at 1048. Like McNeal, he argued that he

could avoid Preiser/Heck because “[h]is theory was and

is that his claim for wrongful detention past his scheduled release date seeks to vindicate his underlying

sentence, not attack it.” Id. at 1049. And the Seventh

Circuit agreed as to the prisoner’s claim that the defendants unlawfully “caused him to spend an extra

year in prison rather than on mandatory supervised

release.” Id. at 1053.

Judge Brennan acknowledged in a concurrence

that this claim comes “very close to the Heck bar.” Id.

at 1054 (Brennan, J., concurring). But he reasoned

that, although the prisoner challenged the period of

his so-called overdetention, the prisoner did not seek

to “imply[] the invalidity” of his conviction or sentence.

Id. at 1055. The prisoner’s only claim was that the “defendants’ unconstitutional conduct [] caused him to

stay in prison longer than he otherwise might have.”

Id. And that § 1983 claim—like McNeal’s in the Fifth

Circuit—is viable in the Seventh Circuit. Indeed, the

Seventh Circuit’s language virtually echoes in the

Fifth Circuit’s own cases. Compare id. at 1049 (maj.

op.) (“His theory was and is that his claim for wrongful

detention past his scheduled release date seeks to vindicate his underlying sentence, not attack it.”), with

Hicks, 81 F.4th at 506 (“He seeks to vindicate—not undermine—his sentence.”).

B. The Ninth, Tenth, and Eleventh Circuits

Adopt a Middle Ground.

The viability of claims like McNeal’s is more nuanced in the Ninth, Tenth, and Eleventh Circuits,

each of which inquire into the availability of habeas

relief while the prisoner was in custody and the prisoner’s diligence in seeking that relief. As a result,

some state prisoners may succeed in claiming that

they were unlawfully confined beyond their release

dates, while others may not—and McNeal’s own claim

would likely meet different fates from jurisdiction to

jurisdiction.

Ninth Circuit. In the Ninth Circuit, prisoners

may use § 1983 to challenge their allegedly unlawful

confinement beyond their release dates. Such claims

may thus target “‘loss of good-time credits, revocation

of parole[,] or similar matters.’” Galanti, 65 F.4th at

1156; compare Edwards v. Balisok, 520 U.S. 641

(1997) (barring a current prisoner from using § 1983 to

challenge the deprivation of good-time credits). And

those claims survive in the Ninth Circuit on two conditions: (a) the prisoner does not challenge his conviction or underlying sentence, and (b) he “timely” pursues habeas relief. Galanti, 65 F.4th at 1156.

That rule allowed the prisoner in Galanti to survive a motion to dismiss his § 1983 claim. He claimed

that “his sentence should have expired June 1, 2018,”

rather than “August 22, 2018”—all because the prison

supposedly failed to give him credit for completing education courses, which would have bumped up his release date. Id. at 1153–54. The Ninth Circuit reversed

the district court’s dismissal of that claim. In particular, the Ninth Circuit emphasized that the prisoner

“challenges the deprivation of credit-deductions, not

his underlying sentence.” Id. at 1156. In addition, “to

the extent” Ninth Circuit precedent “imposes a diligence requirement,” the court determined that the

prisoner “had little time to obtain habeas relief”—

“only a few months.” Id. The Ninth Circuit also stated

that any such habeas petition “would have been dismissed as moot” since his sentence likely would have

“expired during the pendency of his case.” Id. And the

Ninth Circuit observed that the prisoner allegedly

“made complaints and took other efforts to rectify the

situation while in custody.” Id. For all these reasons,

the Ninth Circuit concluded that “Heck does not bar

this suit.” Id.

Galanti points in opposite directions for McNeal’s

fate. On one hand, the Ninth Circuit would agree with

the Fifth Circuit that McNeal’s challenge to the validity of his confinement beyond his release date does not

implicate Preiser/Heck. But, unlike in Galanti, it is undisputed here that McNeal could have sought (and obtained) administrative and habeas relief—i.e., immediate release—but he did not do so. So, McNeal would

either lose his claim in the Ninth Circuit (splitting

with the Fifth and Seventh Circuits), or he would present a close call on habeas availability and diligence in

custody (again splitting with the Fifth and Seventh

Circuits, which take none of that into account).

Tenth Circuit. In the Tenth Circuit, McNeal

would simply lose. The Tenth Circuit adopts the general rule that “Heck does not apply when a plaintiff

has no available habeas remedy, but the plaintiff must

show that the lack of a habeas remedy is ‘through no

lack of diligence on his part.’” Kilman, 831 F. App’x at

398 (quoting Cohen, 621 F.3d at 1317). And that rule

dictates the fate of claims like McNeal’s. In Kilman,

the prisoner claimed “he was deprived of 56 months of

statutory good-time and earned-time credits,” which

resulted in him being confined beyond his proper release date. Id. at 397. Like McNeal and the Fifth Circuit, he insisted that “Heck does not apply to his action

because he did not seek to invalidate either his convictions or his sentences but only the manner in which

his sentences were imposed.” Id.

The Tenth Circuit rejected this argument. The

Tenth Circuit emphasized that “the Supreme Court

has made clear that under its precedent, including

Heck, a writ of habeas corpus is the sole federal remedy in cases where a state prisoner seeks any relief,

damages or otherwise, that would ‘necessarily demonstrate the invalidity of confinement or its duration.’”

Id. at 398 (quoting Wilkinson, 544 U.S. at 82). And the

court reasoned that a judgment stating that prison officials “held [the prisoner] longer than they should

have” would “necessarily demonstrate that the duration of [his] confinement was invalid.” Id. “Accordingly, to obtain federal relief, [he] had to pursue a writ

of habeas corpus.” Id. But that he is where he ran

aground: He never sought habeas relief, much less did

so diligently. “The only statement in [his] appellate

brief that could be construed as relevant to the Cohen

exception is his claim that he was simply unaware of

the CDOC’s ‘corrupt time-computation practices until

he had already [been] discharged.’” Id. But that “lack

of awareness … show[ed] nothing more than a lack of

diligence in filing any habeas petitions during his incarcerations.” Id. And that spelled the end of his

§ 1983 claim. Id.

McNeal’s claim would meet the same demise in the

Tenth Circuit. That court would say that a judgment

stating prison officials “held [McNeal] longer than

they should have” would “necessarily demonstrate

that the duration of [his] confinement was invalid,”

thus implicating Preiser/Heck. Id. And because

McNeal undisputedly did not avail himself of administrative and habeas relief while in custody, the Tenth

Circuit’s Cohen cases would bar his § 1983 claim.

Eleventh Circuit. Finally, in the Eleventh Circuit, McNeal would either lose or present a close call.

In Morrow, 610 F.3d 1271, the Eleventh Circuit considered a prisoner’s claim3 for “damages for about ten

days of allegedly unjustified incarceration beyond the

end of his lawful sentence.” Id. at 1272. The Eleventh

Circuit saved it from dismissal it in two short sentences: “[W]e do not understand Heck’s rule to extend

to a case like this one: where Plaintiff is not in custody

and where Plaintiff’s action—even if decided in his favor—in no way implies the invalidity of his conviction

or of the sentence imposed by his conviction.” Id. If the

opinion stopped there, it would align with the Fifth

and Seventh Circuits. But the Eleventh Circuit went

on to say that “[t]his case is one in which the alleged

length of unlawful imprisonment—10 days—is obviously of a duration that a petition for habeas relief

could not have been filed and granted while Plaintiff

was unlawfully in custody.” Id.; see also id. n.* (caveat

noting that “[w]e say nothing about potential cases in

3 The damages claim arose under the Federal Tort Claims Act

rather than § 1983, but the Eleventh Circuit assumed arguendo

that Preiser/Heck extends to claims under the Act. Id. at 1272.

which ample time was available, although the law

might ultimately not turn on that circumstance”).

Morrow appears to hold (as the Fifth and Seventh

Circuits do) that claims like McNeal’s are wholly exempt from Preiser/Heck. But it is not clear that the

Eleventh Circuit would go that far. One reason is Morrow is limited to cases in which “a petition for habeas

relief could not have been filed and granted while

Plaintiff was unlawfully in custody,” id. at 1272—a

condition that does not exist here since McNeal could

have sought administrative and habeas relief (and

thus release) while in custody. Another reason is

Judge Anderson specially concurred to emphasize that

any exception to Preiser/Heck extends only to “plaintiffs that are no longer in custody and who, despite due

diligence, could not have obtained habeas corpus relief”—a condition satisfied in Morrow because the

plaintiff alleged that he discovered the constitutional

error only “two days before his release.” Id. at 1274

(Anderson, J., specially concurring). Again, that compressed timeframe does not exist here.

In the Eleventh Circuit, therefore, it is unclear how

McNeal’s claim would fare—and that ambiguity underscores the broader confusion among the circuits.

C. The Third and Eighth Circuits Bar Such

Claims.

On the far side of the ledger, the Third and Eighth

Circuits make quick work of claims like McNeal’s:

They simply reject them across the board under

Preiser/Heck, regardless of the availability (or not) of

habeas relief while the prisoner was in custody.

Third Circuit. The Third Circuit takes the hardest line. In a series of decisions, the Third Circuit has

reasoned that “Heck applie[s] across the board,” which

means “that ‘a § 1983 remedy is not available to a litigant to whom habeas relief is no longer available.’”

Deemer, 557 F. App’x at 166 (cleaned up) (citing Williams, 453 F.3d 173; Gilles, 427 F.3d 197). Across

these decisions, the Third Circuit does not “find at all

salient the reason why the § 1983 claimant could not

access the federal courts’ habeas corpus jurisdiction.”

Id. at 167. Thus, the Third Circuit “see[s] no cause to

distinguish” between § 1983 plaintiffs “who seem to

have voluntarily relinquished the ability to launch a

federal habeas challenge” (such as those who “sat on

[their] habeas rights”) and those “who arguably lacked

access to federal habeas relief solely due to the short

duration of [their] confinement.” Id. & n.4. Each plaintiff is out of § 1983 luck.

That baseline rule is fatal for claims like McNeal’s,

as Deemer itself illustrates. Similar to McNeal, the

§ 1983 plaintiff there “alleg[ed] that he was confined

for a year and a day beyond the date on which his

prison sentence should have expired.” Id. at 163. He

claimed that he failed to receive time served and,

“while in prison, he directed correspondence to various

agencies and individuals, explaining that he had

served his full sentence and asking to be released.” Id.

at 164. Like McNeal, that plaintiff “filed this § 1983

action for damages following his release,” having

never sought habeas relief. Id. But the Third Circuit

quickly affirmed the dismissal of his claim, adding

that Preiser/Heck unquestionably cover “individuals

who had access to federal habeas relief” (like McNeal)

as well as those who did not. Id. at 166–67 & n.5.

McNeal’s claim would thus meet the same fate in the

Third Circuit. See also Glenn v. Pa. Bd. of Prob. & Parole, 410 F. App’x 424, 426 (3d Cir. 2011) (per curiam)

(“Were we to agree with [the prisoner] that he has

been imprisoned beyond the expiration of his sentence, that would necessarily imply that the Par[o]le

Board has incorrectly determined his release date or

has failed to timely release him. Because no court has

so held, [the prisoner’s] action is barred by Heck.”);

Dare v. United States, 264 F. App’x 183, 184 (3d Cir.

2008) (same as to claim that prisoner “was confined in

prison more than 20 months past his parole eligibility

date”).

Eighth Circuit. The Eighth Circuit takes a similarly strong view. In Entzi, 485 F.3d 998, the Eighth

Circuit confronted a prisoner’s § 1983 claim that “the

loss of [] credits extended his term of imprisonment by

more than a year.” Id. at 1003. He could have obtained

relief during his incarceration “by petitioning for a

writ of habeas corpus.” Id. But he “argue[d] that because the writ of habeas corpus is no longer available

to him on a claim challenging the length of his imprisonment, Heck does not bar his § 1983 suit against the

prison officials.” Id. The Eighth Circuit nonetheless

dismissed the prisoner’s claim, citing this Court’s

statement that Preiser/Heck are “not rendered inapplicable by the fortuity that a convicted criminal is no

longer incarcerated.” Id. (quoting Heck, 512 U.S. at

490 n.10); see also Marlowe v. Fabian, 676 F.3d 743,

744, 746–47 (8th Cir. 2012) (holding that § 1983 claim

that prison officials “[u]nlawfully imprison[ed] [a prisoner] 375 days beyond the date on which he became

eligible for supervised release” is barred by

Preiser/Heck).

In a subsequent decision, moreover, the Eighth

Circuit underscored that Entzi is “not” limited to

plaintiffs who “fail[ed] to pursue habeas relief while

incarcerated.” Newmy v. Johnson, 758 F.3d 1008, 1011

(8th Cir. 2014). In that case, the prisoner “attempt[ed]

gamily to distinguish Entzi by suggesting that the decision is limited to circumstances in which an individual could have accessed federal habeas but failed to do

so.” Id. But the Eighth Circuit said no, confirming that

no matter how diligent (or not) a prisoner is in seeking

relief while in custody, a challenge to confinement as

in Entzi cannot properly be brought under § 1983.

As in the Third Circuit, therefore, McNeal’s § 1983

claim would be dead on arrival in the Eighth Circuit.

In short, McNeal’s claim would be dismissed outright in the Third, Eighth, and Tenth Circuits. But he

would survive a motion to dismiss in the Fifth and

Seventh Circuits, and potentially in the Ninth and

Eleventh Circuits as well. That nationwide conflict is

clear and it cries out for this Court’s review.

II. THE FIFTH CIRCUIT’S VIEW IS WRONG.

The Fifth Circuit also is profoundly wrong to hold

that Preiser/Heck have “no place,” Hicks, 81 F.4th at

506, where prisoners expressly challenge the validity

of their confinement beyond their alleged release

dates.

First,

the

Fifth

Circuit

misunderstands

Preiser/Heck. Its cases rest on an artificial conception

of Preiser/Heck: that those decisions govern only chal-

lenges to the validity of a prisoner’s conviction or sentence. And the Fifth Circuit solemnly repeats its incantation that prisoners like McNeal “do[] not challenge the validity” of their convictions and sentences

and thus do not implicate Preiser/Heck. Hicks, 81

F.4th at 506.

But habeas corpus is about freeing the body from

confinement—whether that confinement is judicially

authorized or not. Indeed, this Court has emphasized

that an “attack[] [on] the very duration of physical confinement … lies at the core of habeas corpus.” Wilkinson, 544 U.S. at 79 (cleaned up). And that is true

“no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings).” Id. at 82. In cases like McNeal’s, it is the

prison’s internal processes that the plaintiffs target to

challenge the duration of their physical confinement—

and that brings them squarely within Preiser/Heck.

Second, the Fifth Circuit’s election-of-remedies regime makes a mockery of basic litigation rules and this

Court’s precedents. See App.16 (Jones, J., concurring)

(“Heck imposes [a] duty to mitigate such that any overdetained prisoner must seek habeas relief at the earliest possible opportunity…. This court should not enable overdetained prisoners to neglect their obligation

to seek habeas relief and instead bypass that remedy

in order to pursue Section 1983 damages by filing for

the wrong type of relief in the wrong court at the

wrong time.”); App.93 (Oldham, J., dissenting from

the denial of rehearing en banc) (Fifth Circuit precedent “effectively hold[s] that the federal habeas statute and § 1983 offer prisoners like McNeal an election

of remedies: The former allows prisoners to get out of

jail, while the latter allows prisoners to stay in jail and

then sue for compensation later.”).

As McNeal told the Fifth Circuit, habeas relief was

the available and proper remedy while he was in custody. C.A. Appellee’s Br. at 24 (“[I]f you are currently

in prison past the end of your sentence and your goal

is to get released, that is [] habeas—because you are

trying to get your body out of prison.”); C.A. Oral Arg.

at 25:03–07 (“That’s right. Habeas is the remedy to get

you out.”). And “[a]ll also agree, of course, that McNeal

has zero remedy under § 1983” during his custody.

App.98 (Oldham, J., dissenting from the denial of rehearing en banc). It thus “turns” this Court’s cases

“upside down to say that McNeal’s world flips on Day

42 (the day of his release)—such that he then had zero

habeas remedy but limitless § 1983 remedies.” Id.

And yet, that is McNeal’s (and the Fifth Circuit’s)

unabashed position: Once “you are a free person and

wish to sue for damages for the period you were overdetained,” “then Section 1983 is your procedural vehicle.” C.A. Appellee’s Br. at 24. But that is not how the

law works. It is backwards to allow, as the Fifth Circuit does, a prisoner to “sleep on his rights until his

(ostensible) release date passes” and then, “voila—the

prisoner is no longer forced to choose the specific habeas remedy over the general § 1983 remedy.”

App.101 (Oldham, J., dissenting from the denial of rehearing en banc).

After all, this would never fly in ordinary civil litigation. As Judge Jones noted, “[i]t is well established

in civil cases that litigants have a duty to mitigate

their damages after an injury occurs.” App.16 (Jones,

J., concurring). Why not here?

What is more, the election of remedies allows prisoners to circumvent this Court’s own precedents. Take

Edwards v. Balisok: There, the Court barred a current

prisoner from using § 1983 to challenge the deprivation of his good-time credits; that is the stuff of habeas.

520 U.S. at 647–48. So long as the prisoner bides his

time, however, he can just bring his § 1983 challenge

to the deprivation of good-time credits after his release. That is the Ninth Circuit’s precise view notwithstanding that Edwards bars such a claim while the

prisoner is in custody. See Galanti, 65 F.4th at 1155–

56 (acknowledging Edwards’s holding, but permitting

the otherwise-barred § 1983 claim so long as the prisoner has been released). The message that the Fifth,

Seventh, and Ninth Circuit precedents send to this

Court? “What chumps!” Arizona State Leg. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 825 (2015)

(Roberts, C.J., dissenting).

Finally, the Fifth Circuit’s rule abridges the “federal-state comity” that Preiser sought to protect. 411

U.S. at 491. Throughout that decision, this Court emphasized that “[t]he strong considerations of comity

that require giving a state court system that has convicted a defendant the first opportunity to correct its

own errors thus also require giving the States the first

opportunity to correct the errors made in the internal

administration of their prisons.” Id. at 492. Indeed,

“because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently

and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a

better physical and practical position to deal with

those grievances.” Id. And the Court minced no words:

“[T]he States have an important interest in not being

bypassed in the correction of those problems.” Id.

But the Fifth Circuit’s election-of-remedies regime

allows the exact opposite. It incentivizes prisoners like

McNeal to bypass available administrative and habeas relief so that they can cash in under § 1983 after

their release. Federal-state comity means nothing if

prisoners can dodge State and federal habeas relief altogether in hopes of money damages under § 1983.

With all due respect to the Fifth Circuit, it seriously misapprehends Preiser/Heck and it has done

lasting damage to this Court’s cases.

III. THE ISSUE PRESENTED IS IMPORTANT.

The pressing importance of the issue presented is

apparent from the foregoing discussion. It is principally important because courts all over the country

frequently encounter claims by prisoners who complain about some period of incarceration that they believe was unlawful, wholly apart from what they perceive to be their lawful conviction and sentence. Just

look at the numerous recent opinions throughout the

courts of appeals that comprise the circuit split. See

supra Section I. This issue arises again and again. And

regardless of how this Court resolves the question presented, a serious number of the courts of appeals are

currently applying the wrong legal standard every

time the issue arises. That problem requires correction now.

The issue also is critically important to the State of

Louisiana. As the Fifth Circuit has observed, these

kinds of claims have “plagued” courts within the Fifth

Circuit for years—and there seemingly is no end to the

onslaught. Indeed, the two pending putative class actions, which have been stayed for this petition, are a

clear example of the potentially sweeping damage

from the Fifth Circuit’s underruling of Preiser/Heck.

See supra at 8–9. By denying en banc review of this

issue, the Fifth Circuit has entrenched its position,

thereby ensuring—absent this Court’s intervention—

that both the Fifth Circuit and Louisiana will be forced

to continue to process § 1983 claims that never should

have made it past the motion-to-dismiss stage.

The monetary implications of this issue, too, are extraordinarily important for every State and municipality. Section 1983 is alluring because it offers what

habeas does not: compensatory and punitive damages,

plus attorney’s fees. The Fifth Circuit’s rule thus entices prisoners to ride out an alleged constitutional violation in exchange for money. That incentive is perverse in itself, because the law should incentivize all

relevant actors to immediately resolve alleged constitutional violations, not tolerate them. But more fundamentally, the risk of monetary liability—by settlement or final judgment—sows deep uncertainty in

States’ and municipalities’ expectations about the

proper remedy for challenges to confinement. They

need, and deserve, clarity on the proper mechanism

for resolving such challenges.

Finally, the differential treatment of this issue

across the country is deeply important to prisoners,

States, and municipalities alike. If the Fifth and Seventh Circuits are correct, then prisoners in the Third,

Eighth, Ninth, Tenth, and Eleventh Circuits are

(a) outright losing claims that would survive in the

Fifth and Seventh Circuits or at least (b) being subject

to heightened legal standards that are incorrect. So,

too, States and municipalities in the Fifth and Seventh Circuits are forced to litigate claims that would

not survive motions to dismiss in the Third, Eighth,

Ninth, Tenth, and Eleventh Circuits. And all this is

due to the fortuity of happening to be in an unfavorable circuit. That arbitrary and differential treatment

across the country is unfair to everyone involved. And

for that additional reason it is imperative that this

Court definitively resolve the issue once and for all.

IV. THIS IS AN IDEAL VEHICLE.

Last, this is an excellent vehicle to resolve the important circuit split outlined above. The Fifth Circuit

squarely decided the issue presented, reinforcing that

all future Fifth Circuit panels are “bound” to follow

suit. App.7. And again, with the 8-9 denial of rehearing en banc, the Fifth Circuit has confirmed that its

erroneous view is now set in stone absent this Court’s

intervention.

In addition, it bears noting that this petition avoids

the mismatch issue in the Galanti petition. See Pet.

for Writ of Cert., Nevada Dep’t of Corr. v. Galanti, No.

23-186 (U.S.). There, the petitioners framed the question presented in terms of whether Preiser/Heck bars

§ 1983 claims by prisoners who are no longer in custody. Id. at i. That is a valid question—and there is a

circuit split on it, as the Galanti petition detailed. In

fact, the Fifth Circuit currently is considering that

question en banc, at least as to a plaintiff who allegedly could not have discovered the basis of her constitutional claim while she was in custody. See Wilson v.

Midland Cnty., Tex., 89 F.4th 446 (5th Cir. 2023), reh’g

en banc granted 92 F.4th 1150 (5th Cir. 2024).

But that is not the key question in cases like this

one. The key question is instead an antecedent one:

Does a prisoner’s challenge to his confinement beyond

a release date implicate Preiser/Heck in the first place?

The Fifth and Seventh Circuits say no because the

prisoner does not challenge his conviction or sentence,

which means those courts never get to the question

whether a former prisoner’s non-custodial status affects his ability to bring a § 1983 claim. Indeed, that is

exactly how the district court sidestepped the custody

issue in this case. See App.73–76 n.3. And notably,

McNeal did not preserve an argument that his noncustodial status alone entitles him to sue under

§ 1983. That is because binding Fifth Circuit precedent (unless reconsidered in Wilson) expressly forecloses that argument. See Randell v. Johnson, 227

F.3d 300 (5th Cir. 2000). Whatever the outcome in Wilson, therefore, McNeal’s fate in this appeal rises and

falls with his (and the Fifth Circuit’s) deeply misguided claim that his challenge to confinement beyond

his release date does not implicate Preiser/Heck at all.

By focusing on the circuit split specifically involving prisoners’ challenges to confinement beyond their

release dates, therefore, this petition presents a pristine vehicle.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

ELIZABETH B. MURRILL

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

MORGAN BRUNGARD

Deputy Solicitor General

AUTUMN HAMIT PATTERSON

Sp. Ass’t Solicitor General

PHYLLIS E. GLAZER

Ass’t Attorney General

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(January 5, 2024) . . . . . . . . . . . . . App. 1

Appendix B Ruling and Order in the United States

District Court for the Middle District

of Louisiana

(April 18, 2022) . . . . . . . . . . . . . . App. 26

Appendix C Ruling and Order in the United States

District Court for the Middle District

of Louisiana

(February 18, 2020) . . . . . . . . . . App. 54

Appendix D Order Denying Petition for Rehearing

and Petition for Rehearing En Banc in

the United States Court of Appeals for

the Fifth Circuit

(February 21, 2024) . . . . . . . . . . App. 91

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 22-30180

[Filed January 5, 2024]

______________________________

BRIAN MCNEAL,

)

Plaintiff—Appellee,

)

versus

)

JAMES LEBLANC,

)

Defendant—Appellant. )

_____________________________ )

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:18-CV-736

______________________________

Before JONES, STEWART, and DUNCAN, Circuit Judges.

PER CURIAM:

We face another suit against a Louisiana official for

overdetention, “now a euphemism for prisoners

illegally incarcerated beyond the terms of their

sentence.” Hicks v. LeBlanc, 81 F.4th 497, 500 (5th Cir.

2023). Pursuant to 42 U.S.C. § 1983 and state law,

Brian McNeal sued Louisiana Department of Public

Safety and Corrections (“DPSC”) Secretary James

App. 2

LeBlanc in his individual capacity for wrongfully

detaining McNeal 41 days after his sentence expired.

The district court denied LeBlanc’s motion to dismiss

premised on qualified immunity. Following our

precedent, we AFFIRM.

McNeal pled guilty of possessing cocaine and drug

paraphernalia in 2015.1 The Orleans Parish Criminal

District Court sentenced him to a five-year suspended

sentence, with five years of probation. In 2017, McNeal

was arrested for violating probation. His probation was

revoked, and on August 3, 2017, he was sentenced to

serve 90 days at the Steve Hoyle Program (“Hoyle”)—

an in-patient substance abuse program at the Bossier

Parish Correctional Center. A few days later, the DPSC

generated a release letter that set McNeal’s release

date as November 1, 2017. A DPSC employee,

anticipating his eventual transfer, sent the release

letter to Hoyle.

Rather than transfer him directly to Hoyle,

however, DPSC directed the Orleans Sheriff to transfer

McNeal to the Elayn Hunt Correctional Center

(“Hunt”), where McNeal would be classified before

enrolling in Hoyle. While at Hunt, authorities

determined McNeal was unfit for Hoyle due to a mental

impairment. So, McNeal remained at Hunt and was

The facts are taken from the allegations in McNeal’s complaint,

which we accept as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

App. 3

never transferred to Hoyle. But his release letter

remained at Hoyle, and no DPSC official took steps to

ensure the letter made its way to Hunt.

McNeal was not released on November 1, 2017.

Sometime thereafter, his girlfriend called the New

Orleans Probation and Parole Office, asking why he

had not been released. On November 15, 2017, McNeal

wrote the Hunt warden, complaining he had not yet

been taken to court and released. The warden’s office

responded: “If your presence was required in court, the

proper documents would have been sent for you to be

transported.”

On December 6, 2017, after his girlfriend’s further

inquiry, McNeal’s probation officer and lawyer

investigated the situation. Realizing McNeal’s release

date had passed, his probation officer notified DPSC.

On December 11, 2017, a DPSC employee emailed

McNeal’s release letter to Hunt, stating, “This is your

authority to release the offender on 11/01/2017, as

having completed said sentence that was imposed at

the time of revocation.” The email explained that DPSC

thought McNeal was at a different facility. McNeal was

released on December 12, 2017, 41 days after his

proper release date.

In 2018, McNeal sued LeBlanc and other Louisiana

officials in state court. The defendants removed the

case to federal court. In 2020, the federal district court

granted McNeal’s motion for partial summary

judgment but denied the defendants’ summary

judgment motion. In that order, the court ruled that

App. 4

McNeal’s overdetention claims were not barred by Heck

v. Humphrey, 512 U.S. 477 (1994).

A month later, the district court granted McNeal’s

motion to amend his complaint. McNeal’s first

amended complaint, the district court found, “failed to

state a viable claim of supervisor liability against

LeBlanc.” But the court again granted McNeal leave to

amend, and McNeal filed a second amended complaint

(the operative complaint) against LeBlanc and others.

In this complaint, McNeal sued LeBlanc for false

imprisonment, negligence, violation of his Fourteenth

Amendment due process rights, violations of the

Louisiana Constitution, violations of Monell v.

Department of Social Services, 436 U.S. 658 (1978), and

failure to train or supervise. McNeal sought

declaratory relief, compensatory and punitive damages,

and attorney fees.

McNeal alleges that, in 2012, DPSC performed an

internal review called the “Lean Six Sigma,” examining

how long it took to calculate prisoner release dates. The

review was “champion[ed]” by LeBlanc, who had been

DPSC Secretary since 2008. Lean Six Sigma “found a

widespread pattern of people being held past their legal

release date,” with 83% of DPSC prisoners being

overdetained. The review determined that, on average,

inmates were held 71.69 days past their release dates.

After learning of the issue, LeBlanc set the goal to

detain “450 persons per year, for an average of 31 days

per person.” LeBlanc’s changes reduced the number of

overdetained persons from “2,252 per year to 1,612,

and the average number of overdue days was reduced

from 71.7 to 60.52 days.” Despite these efforts, LeBlanc

App. 5

conceded that “the ‘functional processes’ around the

transmission of documents” at the DPSC “remain as

antiquated as they were in 1996.”

Even after the Lean Six Sigma review,

overdetention issues persisted. For example, four

DPSC employees testified in a 2015 state case, Chowns

v. LeBlanc, La. 37th JDC 26-932, that DPSC employees

were well aware of prisoner overdetention. In 2017, a

report by the Louisiana Legislative Auditor

documented DPSC’s problems calculating and

processing prisoners’ release dates. DPSC itself

conducted an internal review, which “confirmed that

the pattern of overdetention it learned about in 2012”

from Lean Six Sigma “was ongoing.” In a grant

application to the U.S. Department of Justice, DPSC

disclosed that in 2017 it “had an average of 200 cases

per month considered an ‘immediate release’ due to

[processing] deficiencies,” and the prisoners in these

cases “were held an ‘average of 49 days past the end of

their sentences.’” In 2018, then-Louisiana Attorney

General Jeff Landry wrote an op-ed with U.S. Senator

John Kennedy, stating there was “a layer of

incompetence so deep that the Corrections Department

doesn’t know where a prisoner is on any given day of

the week or when he should actually be released from

prison.”

McNeal further alleges that LeBlanc knew

overdetention issues still plagued the DPSC as of

November 2017. Specifically, after Lean Six Sigma,

LeBlanc learned that thousands of people in the

custody of DPSC “were being held past their release

date.” LeBlanc also admitted that, even after the

App. 6

changes he instituted, the DPSC “still had ‘people

being held an average of about two months past their

release date.’” Yet, LeBlanc never fired, demoted,

penalized, or reprimanded anyone for holding inmates

past their release dates. Between 2012 and 2017,

multiple officials reached out to LeBlanc about

overdetained prisoners. LeBlanc was also personally

involved in “the back-and forth with the auditor,”

which eventually led to the 2017 Louisiana Legislative

Audit.

LeBlanc moved to dismiss McNeal’s second

amended complaint for failure to state a claim, arguing

he enjoyed qualified immunity. The district court

denied LeBlanc’s motion to dismiss. LeBlanc now

appeals, arguing that (1) Heck bars McNeal’s claims

and (2) the district court erred by denying him

qualified immunity.

II.

We have jurisdiction to review by interlocutory

appeal the denial of a motion to dismiss based on

qualified immunity. Ramirez v. Escajeda, 921 F.3d 497,

500 (5th Cir. 2019). We review such denials de novo,

“accepting all well-pleaded facts as true and viewing

them in the light most favorable to the plaintiff.”

Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). On

interlocutory appeal, “our review is restricted to

determinations of questions of law and legal issues.”

Ramirez, 921 F.3d at 500 (citation and internal

quotation marks omitted). In this posture, we review

only “whether the facts pleaded establish a violation of

clearly-established law.” Id. at 501 (quoting Ashcroft,

556 U.S. at 673) (cleaned up).

App. 7

III.

We first address whether McNeal’s claims are

barred under Heck. LeBlanc frames McNeal’s challenge

as to both the validity and the duration of his sentence.

McNeal counters that Heck’s bar does not apply

because he merely challenges his overdetention, not the

underlying conviction or sentence. Following our recent

caselaw, we are bound to agree with McNeal.

In Hicks, we held that Heck does not bar claims by

an overdetained prisoner who “does not challenge the

validity of his sentence, [but] merely the execution of

his release.” Hicks, 81 F.4th at 506; see also Crittindon

v. LeBlanc, 37 F.4th 177, 190 (5th Cir. 2022) (“The

Heck defense ‘is not . . . implicated by a prisoner’s

challenge that threatens no consequence for his

conviction or the duration of his sentence.’” (quoting

Muhammad v. Close, 540 U.S. 749, 751 (2004))), cert.

denied, 144 S. Ct. 90 (2023). Thus, “Heck is no bar”

where success on a § 1983 claim is based on the period

a prisoner “was held beyond his original sentence

[because] it would not invalidate the conviction or its

attendant sentence.” Hicks, 81 F.4th at 506. Such is the

case here, where McNeal does not challenge his

conviction or attendant sentence, but rather the 41

days he was imprisoned beyond his release date.

Accordingly, Heck raises no bar to McNeal’s claims

against LeBlanc based on his alleged overdetention.

LeBlanc also raises a qualified immunity argument

similar to those we have rejected in prior DPSC

App. 8

overdetention cases. LeBlanc argues he enjoys qualified

immunity because McNeal fails to allege a pattern of

similar overdetentions at DPSC. We have already

addressed this argument based on almost identical

allegations made in Parker v. LeBlanc, 73 F.4th 400

(5th Cir. 2023). We held there, as we are bound to hold

here, that the overdetained prisoner alleged a pattern

of similar violations at the DPSC sufficient to deny

LeBlanc qualified immunity at the motion to dismiss

stage. See id. at 406.

Qualified immunity protects public officials from

liability if “their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (citation omitted).

To overcome qualified immunity, the plaintiff must

allege facts showing (1) “a violation of a constitutional

right,” and (2) that “the right at issue was ‘clearly

established’ at the time of defendant’s alleged

misconduct.” Id. at 232. A right is clearly established if

“it would be clear to a reasonable official that his

conduct was unlawful in the situation he confronted.”

Porter v. Epps, 659 F.3d 440, 445 (5th Cir. 2011)

(alteration adopted) (citation omitted).

At prong one, we ask whether McNeal has alleged

facts showing a Fourteenth Amendment violation. The

Fourteenth Amendment guarantees that no state may

“deprive any person of life, liberty, or property, without

due process of law.” U.S. CONST. amend. XIV, § 1. Our

precedent establishes, accordingly, “that a jailer has a

duty to ensure that inmates are timely released from

App. 9

prison.” Porter, 659 F.3d at 445. Relevant to LeBlanc’s

liability, we recently “held that ‘it is without question

that holding without legal notice a prisoner for a month

beyond the expiration of his sentence constitutes a

denial of due process.’” Parker, 73 F.4th at 404 (quoting

Crittindon, 37 F.4th at 188); see also Douthit v. Jones,

619 F.2d 527, 532 (5th Cir. 1980) (“Detention of a

prisoner thirty days beyond the expiration of his

sentence in the absence of a facially valid court order or

warrant constitutes a deprivation of due process.”).

McNeal alleges that LeBlanc, as DPSC Secretary,

violated his Fourteenth Amendment rights.

It is black-letter law, however, that § 1983 does not

create respondeat superior liability. Jason v. Tanner,

938 F.3d 191, 197 (5th Cir. 2019) (citing Monell, 436

U.S. at 694–95). That being said, a supervisory official

may, in limited circumstances, be liable under § 1983

for failure to train or to adopt policies if a plaintiff

shows (1) the supervisor “failed to train the officers

involved,” (2) “that failure to train . . . caused the

violation of the plaintiff’s rights,” and (3) “the failure to

train . . . constituted deliberate indifference.” Id. at

196.

Supervisory officials are deliberately indifferent if

they retain a program for which they are on “notice

that a particular omission in their training program

causes [their] employees to violate citizens’

constitutional rights.” Connick v. Thompson, 563 U.S.

51, 61 (2011). Ordinarily, to show deliberate

indifference, a plaintiff must point to “[a] pattern of

similar constitutional violations by untrained

employees.” Id. at 62. Constitutional violations must be

App. 10

“very similar” to “jointly form a pattern.” Jason, 938

F.3d at 198 (citing Connick, 563 U.S. at 62).

In Parker, we held that LeBlanc’s knowledge of

three facts put him on notice of “a pattern of similar

constitutional violations by untrained employees.”

Parker, 73 F.4th at 405. In Parker, the plaintiff alleged

that, in September 2017, a DPSC employee improperly

labeled him a sex offender. Id. at 402. This error caused

the plaintiff, who should have been released on

October 9, 2017, to remain incarcerated until

September 10, 2018. Id. at 402–03. The plaintiff alleged

LeBlanc knew about the following:

(1) an October 2017 legislative audit report on

the Louisiana DPSC entitled “CFE Management

of Offender Data: Processes for Ensuring

Accuracy Department of Corrections”; (2) a 2018

editorial by Senator John Kennedy and Attorney

General Landry entitled, “Criminal Justice

Reform Actually Hurting Public Safety,”

published in the newspaper “The Advocate”; and

(3) testimony by DPSC employees admitting to

rampant over-detention in a similar suit in

Louisiana state court, Chowns v. LeBlanc, La.

37th JDC 26-932.

Id. at 405. Relying on Crittindon, we held these

allegations demonstrated LeBlanc’s notice of a pattern

of similar overdetentions to survive prong one of

qualified immunity at the motion to dismiss stage. Ibid.

App. 11

We are faced with two of the same relevant factual

allegations made in Parker, and more.2 Like the

plaintiff there, McNeal alleges that LeBlanc knew

about the October 2017 legislative audit and testimony

by DPSC employees in Chowns v. LeBlanc, La. 37th

JDC 26-932, admitting to rampant overdetention.

McNeal also alleges LeBlanc had intimate knowledge

about the results from the Lean Six Sigma report

before McNeal’s overdetention occurred. Finally,

McNeal alleges that before 2017, multiple public

officials reached out to LeBlanc regarding overdetained

prisoners. The Parker panel found fewer allegations

sufficient to establish LeBlanc’s knowledge of a pattern

of overdetention. We are thus bound under the rule of

orderliness to find McNeal’s more numerous allegations

sufficient to show deliberate indifference and to survive

prong one of qualified immunity. See ibid.; see also

United States v. Traxler, 764 F.3d 486, 489 (5th Cir.

2014).

At prong two, we ask whether McNeal’s right was

clearly established at the time of LeBlanc’s alleged

deliberate indifference. We determine “what

constitutes clearly established law” by “first look[ing]

to Supreme Court precedent and then to our own.”

Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir.

2018). The touchstone at this prong is “fair warning” to

While McNeal also alleges LeBlanc knew about the 2018

Kennedy-Landry editorial, that knowledge is not relevant to

LeBlanc’s liability in this case. According to McNeal’s complaint,

the op-ed was not published until 2018, after McNeal’s November

2017 overdetention and December 2017 release.

App. 12

the official “that his conduct deprived his victim of a

constitutional right.” Hope v. Pelzer, 536 U.S. 730, 740

(2002). In other words, the law can be clearly

established “despite notable factual distinctions

between the precedents relied on and the cases then

before the Court, so long as the prior decisions gave

reasonable warning that the conduct then at issue

violated constitutional rights.” Ibid. We must

determine, accordingly, “whether it would be clear to a

reasonable official that his conduct was unlawful in the

situation he confronted.” Porter, 659 F.3d at 445

(alteration adopted) (citation omitted).

We held in Parker that by the fall of 2017 our law

was “clear that a jailer like LeBlanc ha[d] a duty to

ensure inmates [were] timely released from prison.” 73

F.4th at 407 (citation omitted). At the time of the

overdetention in Parker, there was “sufficient clearly

established law regarding the constitutional right to a

timely release from prison.” Id. at 408. LeBlanc

therefore had “fair warning that his failure to address”

overdetention at the DPSC “would deny prisoners . . .

their immediate or near-immediate release upon

conviction.” Ibid. (cleaned up) (quoting Crittindon, 37

F.4th at 188). LeBlanc’s alleged deliberate indifference

thus violated the prisoner’s clearly established right to

a timely release. Ibid.

Parker constrains us to reach the same result in this

case. McNeal’s alleged overdetention occurred in the

fall of 2017, the same period the overdetention occurred

in Parker. As in Parker, LeBlanc at that point had “fair

warning that his failure to address” rampant

overdetention in the DPSC “would deny prisoners like

App. 13

[McNeal] their immediate or near-immediate release

upon conviction.” Ibid. (cleaned up) (quoting

Crittindon, 37 F.4th at 188). Therefore, we are bound

to follow that panel’s decision at prong two of qualified

immunity. See Traxler, 764 F.3d at 489.

Accordingly, under our precedents, the district court

did not err in denying LeBlanc qualified immunity at

this stage.

IV.

The district court’s judgment is AFFIRMED.

EDITH H. JONES, Circuit Judge, concurring:

I concur that our precedent currently requires that

Secretary LeBlanc be denied qualified immunity. See

Parker v. LeBlanc, 73 F.4th 400 (5th Cir. 2023);

Crittindon v. LeBlanc, 37 F.4th 177 (5th Cir. 2022),

cert. denied, --- S. Ct. --- (2023). I further agree with

Judge Duncan’s special concurrence advocating en banc

review of this “mistaken” precedent, which “makes

LeBlanc answerable for the errors of subordinates,

creating vicarious liability in contravention of Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018

(1978), and Connick v. Thompson, 563 U.S. 51, 131

S. Ct. 1350 (2011).” In this case, for instance, there is

nothing at all to connect LeBlanc with the events that

resulted in McNeal’s overdetention.

But I also write separately because McNeal’s claims

fail for an additional reason: they are barred by Heck v.

Humphrey, 512 U.S. 477, 114 S. Ct. 2394 (1994). Judge

App. 14

Oldham explained in depth the reasons for Heck bar in

Crittindon v. LeBlanc, as he stated “[b]oth the federal

habeas statute, 28 U.S.C. § 2241, and the Civil Rights

Act of 1871, 42 U.S.C. § 1983, create causes of action

for prisoners with constitutional claims. But the

remedies offered by those two statutes—and Congress’s

limitations on them—differ radically.” 37 F.4th 177,

192 (5th Cir. 2022) (Oldham, J., dissenting).

Specifically, “the habeas statute offers a singular

equitable remedy: release from custody. But § 1983

goes further and also offers money damages and

attorney’s fees.” Id. at 193 (citations omitted).

Moreover, § 1983 “comes with none of” the “numerous

severe limitations” that Congress has placed on federal

habeas. Id. at 193, 192 (citing The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104–132, 110 Stat. 1214).

In Heck, the U.S. Supreme Court “recognized this

‘potential overlap between’ habeas and § 1983, and it

cut off access to the latter in cases where the prisoner’s

claim sounds in the former.” Id. at 193 (quoting Heck,

512 U.S. at 481, 114 S. Ct. at 2369–70). “The upshot is

that, where a prisoner can obtain relief through

habeas, he cannot sue under § 1983.” Id. Heck built on

the rule announced twenty years earlier in Preiser v.

Rodriguez: “Congress has determined that habeas

corpus is the appropriate remedy for state prisoners

attacking the validity of the fact or length of their

confinement, and that specific determination must

override the terms of § 1983.” 411 U.S. 475, 490–91, 93

S. Ct. 1827, 1836 (1973). The U.S. Supreme Court has

repeatedly reaffirmed this principle, stating that “we

have insisted that § 1983 contains an ‘implicit

App. 15

exception’ for actions that lie ‘within the core of habeas

corpus.’” Nance v. Ward, 597 U.S. 159, 167, 142 S. Ct.

2214, 2221 (2022) (quoting Wilkinson v. Dotson, 544

U.S. 74, 79, 12 S. Ct. 1242, 1246 (2005)).

In this case, McNeal was released from custody 41

days late because the Louisiana Department of Public

Safety and Corrections sent his release paperwork to

the wrong facility. Thus, his case concerns a challenge

to “the fact and length of his confinement.” Id. “That

means [his] only remedy lies in habeas. And the Heck

doctrine plainly bars [him] from ignoring the specific

terms of the habeas statute, which ‘must override the

general terms of § 1983.’” Crittindon, 37 F.4th at 193

(quoting Preiser, 411 U.S. at 491, 93 S. Ct. at 1836).

But McNeal made no good faith efforts to seek state

habeas relief. Unlike some of the Crittindon plaintiffs,

who at least filed petitions for writs of habeas corpus in

Louisiana state court, 37 F.4th at 194, McNeal never

made any such filings. At most, he alleges that he

“wrote a letter” to the warden of the facility where he

was detained and spoke with some of the officers.

These actions fall well short of a good faith effort to

seek state habeas relief. Under Heck, only after McNeal

successfully obtained such relief via a valid state court

order declaring the confinement “invalid” could he state

a claim under § 1983. 512 U.S. at 477, 114 S. Ct. at

2372.

Allowing McNeal and other “overdetention”

plaintiffs to obtain § 1983 relief without requiring them

to make even a good faith effort to obtain state habeas

relief not only violates the unambiguous language of

Heck and Preiser—as well as centuries of habeas

App. 16

jurisprudence—, it yields perverse incentives for

litigants as well. It is well established in civil cases

that litigants have a duty to mitigate their damages

after an injury occurs. See, e.g., Energy Intel. Grp., Inc.

v. Kayne Anderson Capital, 948 F.3d 261, 274 (5th Cir.

2020). In the criminal context, Heck imposes an

analogous duty to mitigate such that any overdetained

prisoner must seek habeas relief at the earliest possible

opportunity.1 State habeas, after all, comprises the

most traditional and effective tool to obtain the

equitable relief a prisoner ultimately seeks: release

from custody. This court should not enable

overdetained prisoners to neglect their obligation to

seek habeas relief and instead bypass that remedy in

order to pursue Section 1983 damages by filing for the

wrong type of relief in the wrong court at the wrong

time.

Louisiana has serially defaulted in its obligation to

release prisoners on time. It is beyond this panel’s

purview to analyze, much less solve this critical

problem. However, we should have demonstrated

confidence in the state courts’ ability, through habeas

corpus, to resolve individual cases by remitting

individuals like McNeal to the state court system for

exhaustion of remedies. This seems to me, as to Judge

Oldham, a classic situation that Heck intended to

Federal habeas relief is textually available to any federal or state

prisoner who is “in custody” in violation of the Constitution or laws

or treaties of the United States. 28 U.S.C. § 2241(c)(3). The

definition of custody does not textually depend on the length or

nature of the confinement. I assume state habeas statutes are

similarly expansive. The Great Writ, after all, began with Magna

Carta to limit the king’s ability to imprison people.

App. 17

address. We should revisit Crittindon en banc and

overrule it.

STUART KYLE DUNCAN, Circuit Judge, concurring:

I concur in denying Secretary LeBlanc qualified

immunity but only because our precedent requires that

result. See Parker v. LeBlanc, 73 F.4th 400 (5th Cir.

2023); Crittindon v. LeBlanc, 37 F.4th 177 (5th Cir.

2022), cert. denied, 144 S. Ct. 90 (2023). Our precedent

is mistaken, however. It makes LeBlanc answerable for

the errors of subordinates, creating vicarious liability

in contravention of Monell v. Dep’t of Soc. Servs., 436

U.S. 658 (1978), and Connick v. Thompson, 563 U.S. 51

(2011). To repair that far-reaching error, our court

should rehear this case en banc.

We have had several overdetention cases involving

DPSC and LeBlanc.1 We will likely have many more.

See Hicks v. LeBlanc, 81 F.4th 497, 510 (5th Cir. 2023)

(“[O]ur Court remains plagued by claims arising from

inexplicable and illegal over-detention in Louisiana

See, e.g., Hicks v. LeBlanc, 81 F.4th 497 (5th Cir. 2023); Parker, 73

F.4th 400; Crittindon, 37 F.4th 177; Frederick v. LeBlanc, 2023 WL

1432014 (5th Cir. Feb. 1, 2023) (per curiam) (unreported) (vacating

denial of qualified immunity where plaintiff alleged his release date

was miscalculated); Traweek v. LeBlanc, 2022 WL 2315444 (5th Cir.

June 28, 2022) (per curiam) (unreported) (vacating denial of

summary judgment and remanding for further proceedings in light

of Crittindon where plaintiff alleged DPSC and Orleans Parish

improperly calculated time served credits); Grant v. LeBlanc, 2022

WL 301546 (5th Cir. Feb. 1, 2022) (per curiam) (unreported)

(granting qualified immunity to LeBlanc where plaintiff alleged

DPSC improperly placed a parole hold on him).

App. 18

prisons[.]”). The question is not whether overdetention

is a serious problem (it is) nor whether it should be

fixed (it should). The question, instead, is about the

proper remedy: whether LeBlanc, the head of a large

and complex state agency, can be held personally liable

under § 1983 for causing a prisoner’s overdetention.

To answer that question, our circuit borrows the

standard for finding a municipality liable under § 1983.

See, e.g., Southard v. Tex. Bd. of Crim. Just., 114 F.3d

539, 551 (5th Cir. 1997) (noting “the close relationship

between the elements of municipal liability and an

individual supervisor’s liability,” and holding “the same

standards of fault and causation should govern”

(quotation omitted)). Under that framework, LeBlanc

cannot be vicariously liable for an overdetention caused

by a subordinate’s error. See Thompson v. Upshur

County, 245 F.3d 447, 459 (5th Cir. 2001). LeBlanc

must have caused the overdetention himself. To

establish that, one must show that LeBlanc’s

“deliberately indifferent” failure to train subordinates

caused the overdetention. See Jason v. Tanner, 938

F.3d 191, 196 (5th Cir. 2019) (holding warden could be

liable only if his deliberately indifferent failure to train

“caused the violation of the plaintiff’s rights”).2 And the

True, there are other ways to make a supervisory official liable.

One could show the violation was caused by an actual policy

promulgated by the official or by the official’s own policymaking

decision. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520

U.S. 397, 407 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469,

480 (1986); Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking

Task Force, 379 F.3d 293, 309 (5th Cir. 2004). But neither ground

is alleged here. So, the only way to find LeBlanc liable is through

a failure-to-train theory.

App. 19

usual way of establishing failure-to-train liability is to

show “[a] pattern of similar constitutional violations by

untrained employees.” Connick, 563 U.S. at 62.3

That’s where the problem begins. The pattern

requirement is critical because it keeps failure-to-train

from collapsing into respondeat superior. See Jason,

938 F.3d at 197–98 (holding a pattern of “very similar”

violations is required to avoid “pure respondeat

superior liability under § 1983”); cf. Connick, 563 U.S.

at 60 (warning against holding municipal governments

“vicariously liable under § 1983 for their employees’

actions”). The prior violations must be closely similar

to the present one. Otherwise, a supervisor would not

be on notice of a flaw in the agency’s training program,

nor would he have any idea how to change the training

to fix the problem. See Connick, 563 U.S. at 62

Here, McNeal has sued LeBlanc under both failure-to-train

and failure-to-supervise theories. I assume for present purposes

those are distinct theories. But like failure-to-train, a failure-tosupervise claim must point to a “causal link” between a

supervisor’s failure to supervise, amounting to “deliberate

indifference,” and a subordinate’s acts that “cause[d] plaintiff’s

constitutional injury.” Tuttle v. Sepolio, 68 F.4th 969, 975 (5th Cir.

2023) (citation omitted). McNeal does not allege facts showing

LeBlanc’s individual failure to supervise led to this particular

delayed release. I therefore only discuss whether McNeal

sufficiently alleged a claim for failure to train.

Yes, there’s a rare alternative where a single incident is enough

to show that a supervisor was deliberately indifferent. See

Connick, 563 U.S. at 63 n.7 (discussing City of Canton v. Harris,

489 U.S. 378, 395 (1989) (O’Connor, J., concurring in part and

dissenting in part)). But no one argues that unusual exception

applies here.

App. 20

(“Without notice that a course of training is deficient in

a particular respect, decisionmakers can hardly be said

to have deliberately chosen a training program that

will cause violations of constitutional rights.”). In other

words, absent an alarm bell rung by a pattern, the

supervisor’s liability would depend solely on his

subordinate’s error, not on anything the supervisor

himself failed to do. That is respondeat superior

liability, and it is excluded in § 1983 claims. See

Monell, 436 U.S. at 694–95.

The paradigm illustration of the pattern

requirement comes from Connick, 563 U.S. 51. A line

prosecutor violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose exculpatory evidence.

Could the district attorney’s office be liable for that

misdeed because the office failed to properly train

prosecutors on Brady? The answer turned on whether

the office had a pattern of previous violations.

Critically, though, it wasn’t enough to say, “The office

had past Brady violations.” Cf. Connick, 563 U.S. at

62–63. The Supreme Court demanded more. Prior

violations had to be specific enough to “put [the district

attorney] on notice that the office’s Brady training was

inadequate with respect to the sort of Brady violation at

issue here.” Id. at 62 (emphasis added); see also Jason,

938 F.3d at 198 (holding no deliberate indifference

where the specific kind of complained-of prison attack

had not previously occurred).

Respectfully, our circuit has not correctly applied

Connick’s pattern requirement in DPSC overdetention

cases. Overdetentions occur for many reasons, as our

cases show. A department employee may misclassify a

App. 21

prisoner. See Parker, 73 F.4th at 402. Or an employee

may fail to apply time-served credits. See Hicks, 81

F.4th at 501. Or an employee may misapply the law for

calculating time-served credits. See Taylor v. LeBlanc,

68 F.4th 223, 225 (5th Cir. 2023), withdrawn by 2023

WL 4155921 (5th Cir. June 23, 2023). Or local jails may

fail to timely transmit pre-classification paperwork to

DPSC. See Crittindon, 37 F.4th at 183. To make

LeBlanc liable for any one of these overdetentions,

Connick requires evidence of a pattern of closely

similar violations sufficient to notify LeBlanc that his

department’s flawed training caused the particular

violation. See, e.g., Jason, 938 F.3d at 198 (“[T]he

Supreme Court in Connick required that only very

similar violations could jointly form a pattern.” (citing

Connick, 563 U.S. at 62)). Our cases, however, have

watered down this pattern requirement.

Parker is a good example. Parker was overdetained

because a DPSC employee allegedly “misclassif[ied]

him as a sex offender.” 73 F.4th at 402. Although

reciting Connick’s pattern requirement, id. at 405, the

panel rejected the argument that Parker failed to

allege a pattern of similar misclassifications. See id. at

406 (rejecting LeBlanc’s “distinction” between

overdetention due to “misclassification” and

overdetention due to other causes). Instead, the panel

held that Parker satisfied Connick by pointing to “three

pieces of evidence”: (1) an audit of DPSC; (2) the

Kennedy-Landry op-ed; and (3) the Chowns testimony.

Id. at 405; see also Op. at 8–9 (discussing this

evidence). This evidence, the panel explained,

supported a pattern of “similar” overdetentions by

showing “LeBlanc was aware of the deficiencies of

App. 22

implemented policies that routinely led to errors like

the one that violated [Parker’s] constitutional rights.”

Ibid.

That reasoning misapplies Connick. “[O]nly very

similar violations could jointly form a pattern [under

Connick],” as our court has correctly explained. Jason,

938 F.3d at 198. So, what is “very similar” about the

pattern of prior overdetentions in Parker and the

overdetention at issue there? The pattern evidence, the

panel claimed, showed LeBlanc knew about

“deficiencies in the way . . . DPSC calculated and

implemented release dates.” Id. at 403. That is plainly

insufficient. The violation in Parker wasn’t caused by

generic errors in “calculating and implementing release

dates.” It was caused by an employee’s misinterpreting

Parker’s criminal history to include an offense

requiring sex-offender registration. See id. at 403–04.

Parker did not explain how its pattern evidence had the

slightest thing to do with that classification mistake.4

Our decision in Crittindon similarly misapplies the Connick

pattern requirement. Crittindon involved an overdetention caused

by a communication breakdown between DPSC and parish prisons.

37 F.4th at 186–88. Focusing on the Lean Six Sigma review, we

found LeBlanc on notice merely that “DPSC prisoners were

annually held past their release date” due “to delays in

determining prisoners’ release dates.” Id. at 187. But the panel did

not ask, as Connick requires, whether this particular cause of the

delays had cropped up before, much less whether a pattern of

similar occurrences should have put LeBlanc on notice that this

was an issue. Instead, we merely addressed overdetention writ

large and found the evidence sufficient to show a “pattern of

delays” in determining release dates. See id. at 187–88 (holding

“[a] reasonable factfinder could conclude that [LeBlanc’s]

awareness of this pattern of delays [and unlawful detentions of

App. 23

Without the pattern evidence required by Connick,

a failure-to-train claim against LeBlanc collapses into

vicarious liability. That is, under our precedent,

LeBlanc can be liable as a supervisory official based

merely on the fact that overdetentions and delays in

processing release dates, writ large, have occurred

within DPSC. If that were enough to prove deliberate

indifference, though, Connick would have come out the

other way. The district attorney would have been liable

for failing to train prosecutors merely because previous

Brady violations had occurred in his office. Of course,

that is not what Connick held. The required pattern

had to show, instead, that “the office’s Brady training

was inadequate with respect to the sort of Brady

violation at issue [t]here.” Connick, 563 U.S. at 62

(emphasis added). That stringent evidentiary

foundation is missing here because our precedent, in

contravention of Connick, rejects it. Our en banc court

should correct that farreaching error.

One final note. Our cases speak in the same breath

of a supervisor’s liability for “failure to train” and for

“failure to adopt policies.” See Parker, 73 F.4th at

404–05 (discussing a supervisor’s liability for “failure

to adopt policies if that failure causally results in a

constitutional injury” (quoting Crittindon, 37 F.4th at

186)); see also Porter v. Epps, 659 F.3d 440, 446 (5th

Cir. 2011) (discussing “[l]iability for failure to

promulgate policy and failure to train or supervise”). It

is unclear to me whether those are meant to be

different theories of supervisory liability or different

prisoners] and [his] conscious decision not to address it rises to the

level of deliberate indifference”).

App. 24

articulations of the same theory. See, e.g., Parker 73

F.4th at 405–06 (toggling between LeBlanc’s liability

for “failure to train” and “failure to adopt policies”). If

the former, then I seriously doubt that a “failure to

adopt policy” theory has any basis in the Supreme

Court’s case law. Connick is quite specific that it was

addressing liability for a “failure to train.” See Connick,

563 U.S. at 61–63. It said nothing about a generic

“failure to adopt or promulgate policies.”

Imposing liability because a supervisor “fails to

adopt policies” opens a much broader vista of

supervisory liability than for “failing to train”

subordinates. Indeed, Connick explained that the “most

tenuous” type of deliberate-indifference liability was

“failure to train.” Id. at 61; see also Oklahoma City v.

Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)

(holding inadequate training is “far more nebulous, and

a good deal further removed from the constitutional

violation, than was the policy in Monell”). That is

because the theory is based not on a municipality’s

action but its omission. Premising liability on failing to

“adopt policies,” however, is even more tenuous. At

least a failure to train is focused on a supervisor’s

omissions with respect to a particular duty (training

employees) and in response to a problem that training

could solve (a pattern of prior employee violations

linked to inadequate training). A “failure to adopt

policies,” by contrast, appears to open supervisors to

liability merely for failing to be clairvoyant. That

cannot meet the stringent standard of deliberate

indifference. See Connick, 563 U.S. at 62 (“Without

notice that a course of training is deficient in a

particular respect, decisionmakers can hardly be said

App. 25

to have deliberately chosen a training program that

will cause violations of constitutional rights.”).

That problem aside, however, our precedent is clear

that a supervisor’s liability in a case like this must be

grounded on a pattern of prior, similar violations. See

Jason, 938 F.3d at 198 (citing Connick, 563 U.S. at 62).

That requirement has not been met here.

We should rehear this case to fix the problem. As

noted, we will likely have many more overdetention

cases against LeBlanc and others. We need to clarify

when officials can be liable for overdetaining prisoners.

If we fail to do that, we risk turning § 1983 into a

source of vicarious liability for the heads of State

agencies. In addition to violating Supreme Court

precedent, such a misguided project would be futile.

The overdetention problem is obviously a serious one.

But if evidence does not connect the problem to

something LeBlanc himself has done or failed to do,

then making him personally liable for overdetentions

will solve nothing.

I urge our court to rehear this pressing issue en

banc.

App. 26

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION NO. 18-736-JWD-EWD

[Filed April 18, 2022]

_____________________________________________

BRIAN MCNEAL

)

VERSUS

)

LOUISIANA DEPARTMENT OF

)

PUBLIC SAFETY & CORRECTIONS ET AL

)

____________________________________________ )

RULING AND ORDER

This matter comes before the Court on the Motion

to Dismiss Plaintiff’s Second Amended Complaint (Doc.

93) filed by Defendants, State of Louisiana, through the

Department of Public Safety & Corrections (“DPSC” or

“DOC”), Secretary James M. LeBlanc (“LeBlanc”), and

Breunkia Collins (“Collins”) (collectively,

“Defendants”). Plaintiff Brian McNeal (“Plaintiff”)

opposes the motion. (Doc. 97.) Defendants filed a reply.

(Doc. 98.) Defendants also filed a supplemental

memorandum in support of their motion. (Doc. 106.)

Plaintiff filed a response to Defendants’ supplemental

memorandum. (Doc. 107.) Oral argument is not

necessary. The Court has carefully considered the law,

the facts alleged in the Second Amended Complaint

App. 27

(“Amended Complaint”) (Doc. 91), and the arguments

and submissions of the parties and is prepared to rule.

For the following reasons, the motion is granted in part

and denied in part.

Relevant Factual Background

This lawsuit arises from an over-detention claim

brought by Plaintiff. (Doc. 91 at ¶ 14.) In the Amended

Complaint, Plaintiff alleges that he was held in prison

for 41 days beyond his legal release date. (Id. at 4–7.)

The Amended Complaint alleges that, following

Plaintiff’s arrest for a parole violation, on August 3,

2017, Plaintiff’s probation was revoked, and he was

sentenced to serve 90 days at the Steve Hoyle program

in the Bossier Parish Correctional Center. (Id. at

¶¶ 21–23.)

Plaintiff alleges that, on August 22, 2017, Collins, a

DOC employee (id. at ¶ 17), sent a release letter to the

Steve Hoyle program directing that Plaintiff be

released on November 1, 2017. (Id. at ¶ 24.) A week

later, however, Plaintiff was transferred from the

Orleans Parish Prison to the DOC’s Elayn Hunt

Correctional Center (“Hunt”) near Baton Rouge. (Id. at

¶ 26.) Plaintiff was not transferred to the Steve Hoyle

program thereafter; instead, he remained incarcerated

at Hunt. (Id. at ¶ 27.) Plaintiff alleges that Collins

specifically knew that his release letter had been sent

to the Steve Hoyle program and that Plaintiff was

being housed at Hunt, but she did nothing to correct

this problem. (Id. at ¶¶ 30–32.) Nor did any other

Defendant take steps to ensure that Plaintiff’s release

letter got to the correct facility, according to the

Amended Complaint. (Id. at ¶ 32.) As a result, Plaintiff

App. 28

alleges that he was not released on November 1, 2017,

as legally required. (Id. at ¶ 36.)

After several inquiries were made on Plaintiff’s

behalf (id. at ¶¶ 37–45), on December 11, 2017, DOC

headquarters emailed a letter to Hunt authorizing

Plaintiff’s release as of November 1, 2017 and

explaining that he “was thought to be at a different

facility.” (Id. at ¶ 46.) The following day—41 days after

his legal release date—Plaintiff’s lawyer called the

Warden’s Office at Hunt to ask why Plaintiff was still

in custody, and Plaintiff was released. (Id. at

¶¶ 50–51.)

Plaintiff alleges that DPSC has a well-documented

and known pattern of over-detention. (Id. at ¶ 73.) In

the Amended Complaint, Plaintiff details the findings

of the Louisiana Legislative Auditor report (id. at

¶¶ 85–94), which found that “the DOC had a serious

problem of not knowing where its inmates were

located, or when their proper release date was.” (Id. at

¶ 9.) Plaintiff also alleges that “the DOC’s own

counsel,” Attorney General Jeff Landry, admitted to

the pattern of over-detention in a March 8, 2018 op-ed,

in which he conceded that there “is a layer of

incompetence so deep that the Corrections Department

doesn’t know where a prisoner is on any given day of

the week or when he should actually be released from

prison.” (Id. at ¶ 12.)

Plaintiff filed his Second Amended Complaint on

December 22, 2020, asserting various causes of action

against Defendants DPSC, LeBlanc, and Collins. (Doc.

91.) Plaintiff asserts a claim for violation of his

Fourteenth Amendment Due Process rights under the

App. 29

U.S. Constitution (Count 3) (id. at ¶¶ 195–97) and a

Monell failure to train/supervise claim (Count 5) (id. at

¶¶ 201–32) against LeBlanc. Plaintiff also asserts state

law claims for false imprisonment (Count 1) (id. at

¶¶ 185–89), negligence (Count 2) (id. at ¶¶ 190–94),

violation of his rights under the Louisiana Constitution

(Count 4) (id. at ¶¶ 198–200), respondeat superior

(Count 6) (id. at ¶¶ 233–34), and indemnification

(Count 7) (id. at ¶¶ 235–37). Defendants now move for

dismissal with prejudice of all claims in Plaintiff’s

Amended Complaint. (Doc. 93.)

II.

Rule 12(b)(6) Standard

“Federal pleading rules call for a ‘short and plain

statement of the claim showing that the pleader is

entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not

countenance dismissal of a complaint for imperfect

statement of a legal theory supporting the claim

asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11

(2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil

Procedure, the Fifth Circuit has explained:

The complaint (1) on its face (2) must contain

enough factual matter (taken as true) (3) to raise

a reasonable hope or expectation (4) that

discovery will reveal relevant evidence of each

element of a claim. “Asking for [such] plausible

grounds to infer [the element of a claim] does not

impose a probability requirement at the pleading

stage; it simply calls for enough facts to raise a

reasonable expectation that discovery will reveal

[that the elements of the claim existed].”

App. 30

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th

Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007)).

Applying the above case law, the Western District

of Louisiana has stated:

Therefore, while the court is not to give the

“assumption of truth” to conclusions, factual

allegations remain so entitled. Once those

factual allegations are identified, drawing on the

court’s judicial experience and common sense,

the analysis is whether those facts, which need

not be detailed or specific, allow “the court to

draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

[Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)];

Twombly, 55[0] U.S. at 556. This analysis is not

substantively different from that set forth in

Lormand, supra, nor does this jurisprudence

foreclose the option that discovery must be

undertaken in order to raise relevant

information to support an element of the claim.

The standard, under the specific language of

Fed. R. Civ. P. 8(a)(2), remains that the

defendant be given adequate notice of the claim

and the grounds upon which it is based. This

standard is met by the “reasonable inference”

the court must make that, with or without

discovery, the facts set forth a plausible claim

for relief under a particular theory of law

provided that there is a “reasonable expectation”

that “discovery will reveal relevant evidence of

App. 31

each element of the claim.” Lormand, 565 F.3d

at 257; Twombly, 55[0] U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V.,

No. 10-00177, 2011 WL 938785, at *3 (W.D. La. Feb. 9,

2011) (citation omitted).

In deciding a Rule 12(b)(6) motion, all well-pleaded

facts are taken as true and viewed in the light most

favorable to the plaintiff. Thompson v. City of Waco,

764 F.3d 500, 502–03 (5th Cir. 2014). The task of the

Court is not to decide if the plaintiff will eventually be

successful, but to determine if a “legally cognizable

claim” has been asserted. Id. at 503.

III.

Discussion

A. Plaintiff’s Requested Remedies

Defendants argue that certain “remedies” requested

in the Amended Complaint should be dismissed as a

matter of law. (Doc. 93-1 at 5.)

First, Defendants assert that Plaintiff’s demand for

“declaratory relief” should be dismissed because it fails

to provide notice of “the legal or factual basis of the

claim.” (Id. at 6 (referencing Doc. 91 at ¶ 238(A)).) In

response, Plaintiff states that “he will withdraw his

claim for declaratory relief.” (Doc. 97 at 2.) Accordingly,

Defendants’ motion on this issue is granted, and

Plaintiff’s claim for declaratory relief is dismissed.

Second, Defendants contend that Plaintiff’s claim

for attorney’s fees under Louisiana law must be

dismissed because Louisiana law provides for recovery

of such fees only if they are authorized by statute or

App. 32

contract. (Doc. 93-1 at 6 (referencing Doc. 91 at

¶ 238(D)).) In response, Plaintiff clarifies that his

Amended Complaint does not suggest that he seeks

recovery of attorney’s fees under Louisiana law. (Doc.

97 at 2.) Accordingly, Defendants’ motion on this issue

is denied as moot.

Third, Defendants argue that Plaintiff’s demand for

“other and further relief, at law or in equity (but not

injunctive relief), to which Plaintiff may be justly

entitled” should be dismissed for failure to provide

notice of the claim and the grounds upon which it is

based. (Doc. 93-1 at 6 (referencing Doc. 91 at

¶ 238(E)).) Defendants likewise seek dismissal of

Plaintiff’s request for relief as to “any and all other

causes of action [that] may become known through a

trial of this matter on its merits against any and all

other parties which are herein named . . . .” (Id. (citing

Doc. 91 at ¶ 239).) Defendants seek dismissal of this

allegation on the same grounds. (Id. at 6–7.) Notably,

Defendants cite no authority to support their

contention that such general prayers for relief are

impermissible and fail to satisfy the minimum pleading

requirements of Federal Rule of Civil Procedure 8.

Additionally, as Plaintiff points out in his opposition,

this general prayer for other relief mirrors the text of

Rule 54(c). (Doc. 97 at 2–3 (referencing Fed. R. Civ. P.

54(c)).). Accordingly, Defendants’ motion on this issue

is denied.

B. Official

LeBlanc

Capacity

Claims

Against

Defendants submit that all claims against LeBlanc

in his official capacity as Secretary of the DPSC either

App. 33

have been or should be dismissed because they are

duplicative of the claims against DPSC. (Doc. 93-1 at

8.) In response, “Plaintiff agrees that there are no

official capacity claims against Secretary LeBlanc.”

(Doc. 97 at 3.) Accordingly, Defendants’ motion on this

issue is granted, and any official capacity claims

against LeBlanc are dismissed.

C. State Law Claim for False Imprisonment

Against DPSC and LeBlanc

Defendants move to dismiss Plaintiff’s false

imprisonment claim against DPSC and LeBlanc. (Doc.

93-1 at 9.) Defendants first argue that the Court may

properly dismiss Plaintiff’s false imprisonment claim as

to both Defendants, notwithstanding the Court’s prior

ruling granting partial summary judgment in

Plaintiff’s favor, since an amended complaint generally

renders moot a motion for summary judgment on the

original complaint. (Id. at 9–10.)

Defendants then assert that “there is no cause of

action for ‘false imprisonment’ pleaded in this lawsuit,”

such that Count 1 of Plaintiff’s Amended Complaint

should be dismissed with prejudice in its entirety as to

all defendants. (Id. at 10.) In support of this assertion,

Defendants argue that Plaintiff’s over-detention claim

is not actionable under Louisiana’s false imprisonment

law. (Id.) Defendants further contend that because

plaintiff “was duly convicted and sentenced to DPSC

custody, DPSC had the legal authority to detain the

Plaintiff and the false arrest/imprisonment claim

should be dismissed.” (Id. at 11.)

App. 34

Defendants further argue that the legality of

Plaintiff’s detention and the liability of each Defendant

for Plaintiff’s over-detention claim should be evaluated

under Louisiana’s duty-risk analysis. (Id. at 11–12.)

Alternatively, Defendants argue that LeBlanc is

entitled to judgment on this claim, even under

Plaintiff’s theory of liability for false imprisonment. (Id.

at 12.)

Plaintiff responds that “the law of the case doctrine

bars Defendants’ collateral attacks” on the issue of

false imprisonment, which was already resolved by this

Court’s ruling granting partial summary judgment in

Plaintiff’s favor on the tort of false imprisonment. (Doc.

97 at 3 (referencing Doc. 56).) Next, Plaintiff contends

that, even if Defendants’ false imprisonment

arguments were not barred by the law of the case

doctrine, they lack merit. (See id.) Plaintiff cites to

Louisiana Supreme Court case law for the proposition

that, under Louisiana law, false imprisonment is

“restraint without color of legal authority.” (See id. at

3–4.) Plaintiff adds that “[a]n order of temporary

imprisonment does not give the DOC permission to

incarcerate someone indefinitely.” (Id. at 4.) Plaintiff

also rejects Defendants’ assertion that his claim should

be analyzed under Louisiana’s duty-risk framework for

general negligence. (See id.) Plaintiff maintains that no

such analysis is required because negligence is not a

requisite element of the false imprisonment tort under

Louisiana law. (See id.) Finally, Plaintiff argues that he

does not need to prove LeBlanc personally detained

him to assert a false imprisonment claim against

LeBlanc, since part of LeBlanc’s responsibilities as

App. 35

Secretary involve holding inmates for the length of

their sentences. (See id. at 4–5.)

“Under Louisiana law, ‘[f]alse imprisonment is the

unlawful and total restraint of the liberty of the

person.’” Hernandez v. Theriot, 709 F. App’x 755,

757–58 (5th Cir. 2017) (quoting Kelly v. W. Cash &

Carry Bldg. Materials Store, 745 So.2d 743, 750 (La.

Ct. App. 1999) (emphasis omitted)). “It consists of the

following two essential elements: (1) detention of the

person; and (2) the unlawfulness of the detention.” Id.

(quoting Kennedy v. Sheriff of E. Baton Rouge, 935

So.2d 669, 690 (La. 2006)).

Initially, the Court declines to revisit its previous

Ruling and Order granting summary judgment in

Plaintiff’s favor on his claim for false imprisonment.

(See Doc. 56.) Moreover, upon further consideration of

the matter, the Court agrees with its prior Ruling and

Order granting summary judgment on the issue of false

imprisonment under Louisiana law. (See id.) For that

reason, Defendants’ motion is denied as to this claim.

D. State Law Claim for Negligence Against

All Defendants

Defendants also move to dismiss Plaintiff’s

negligence claim against DPSC, LeBlanc, and Collins.

(Doc. 93-1 at 13.) Defendants argue that Plaintiff

engaged in impermissible “shotgun” pleading in

violation of Rule 8. (Id.) Specifically, they contend that

Plaintiff’s negligence allegations fail to distinguish

between the actions of each Defendant. (See id.) The

Amended Complaint, according to Defendants, “offers

no explanation for the apparent allegation that [DPSC],

App. 36

[LeBlanc], and [Collins] share ‘duties’ that would

subject them to personal liability under Louisiana law.”

(Id.)

Next, in response to Plaintiff’s allegation that “due

to their professional roles as jailors, Defendants owed

duties to avoid overdetention to persons in their

custody,” Defendants assert that no facts in the

Amended Complaint identify LeBlanc or Collins as a

“jailor.” (Id. at 14.) Instead, “DPSC was the undeniable

jailor of the Plaintiff,” according to Defendants (Id.)

Similarly, in response to Plaintiff’s allegation that

“Defendants had a duty to ensure that [Plaintiff’s]

release letter wound up in the facility he was actually

held in,” Defendants assert that there are no facts to

support the contention that LeBlanc “owed the Plaintiff

some special duty with regard to paperwork.” (Id. at

14–15.) Finally, Defendants re-urge their “shotgun

pleading” argument and aver that Plaintiff must be

required to distinguish the negligence claims against

each Defendant, or else all such claims should be

dismissed. (Id. at 15.)

In response, Plaintiff maintains that the concept of

LeBlanc and other DPSC employees sharing in the

responsibility of ensuring inmates’ timely release is

reflected in testimony given by LeBlanc himself in

another case. (See Doc. 97 at 5–6.) Plaintiff also cites to

federal and state court case law recognizing the duty to

timely release inmates as to DPSC employees and

jailors. (See id. at 6.) Plaintiff thus concludes that

Defendants’ motion as to this claim should be denied.

(Id.)

App. 37

Construing the allegations of the Amended

Complaint in a light most favorable to Plaintiff and

drawing all inferences in his favor, the Court finds that

the Amended Complaint, on its face, contains enough

factual matter, when accepted as true, to raise a

reasonable expectation that discovery will reveal

relevant evidence that each Defendant breached the

duties they owed to Plaintiff to ensure his timely

release. Regarding LeBlanc, specifically, the Court

finds that the Amended Complaint contains enough

factual matter to support a reasonable inference that

LeBlanc breached the duties he owed as the DPSC

Secretary to Plaintiff and other inmates by

implementing policies that were a legal cause of

Plaintiff’s over-detention. See Lormand, 565 F.3d at

257; Tredick v. Ekugbere, No. 17-103, 2018 WL

5504157, at *3–4 (M.D. La. Oct. 29, 2018) (deGravelles,

J.) (describing elements of negligence claim).

Consequently, the Court denies the motion to dismiss

Plaintiff’s negligence claim against all three

Defendants.

E. LeBlanc’s Entitlement

Immunity

Qualified

1. Parties’ Arguments

In support of their motion, Defendants argue that,

despite Plaintiff’s opportunity to amend to cure the

deficiencies identified in the Court’s previous ruling,

Plaintiff’s Amended Complaint fails to overcome

LeBlanc’s qualified immunity defense. (See Doc. 93-1 at

15–16.) Specifically, Defendants maintain that

“Plaintiff has failed to plead the violation of a

constitutional right whose contours were so clear that

App. 38

every official would know that [LeBlanc’s] negligence

could violate that right.” (Id. at 20.) Defendants further

contend that Plaintiff’s Amended Complaint fails to

demonstrate that LeBlanc acted with deliberate

indifference to violations of others’ constitutional rights

by sufficiently alleging a pattern of similar

constitutional violations. (Id. at 20–22.) Plaintiff’s

allegations claiming that DPSC has a well-documented

pattern of overdetention are conclusory, according to

Defendants, and insufficient to overcome LeBlanc’s

qualified immunity. (Id. at 22.) Finally, Defendants

assert that the Amended Complaint lacks factual

allegations to support Plaintiff’s claim against LeBlanc

for failing to train or supervise subordinates. (Id. at

23.) Defendants contend that “Plaintiff does not allege

or explain what training was given, or not given, and

how the training affected, or should have affected,

Plaintiff’s detention.” (Id.) Defendants conclude that

the failure to train/supervise claim must be dismissed.

(Id.)

Plaintiff responds that LeBlanc should be denied

qualified immunity. (See Doc. 97 at 6.) In support of

this assertion, he points to the allegations added to his

Amended Complaint, which, according to Plaintiff,

further detail (1) the pattern and scope of the

overdetention problem, (2) LeBlanc’s personal

knowledge of the problem, and (3) how failures in

training and discipline led to over-detentions like

Plaintiff’s. (Id. at 7 (citing Doc. 91 at ¶¶ 52–72,

75–183).) Plaintiff maintains that these allegations

remedy the issues identified in the Court’s ruling on

Defendants’ previous motion to dismiss. (See id. at 6–7

(referencing Doc. 88 at 38–39).)

App. 39

In reply, Defendants reiterate that Plaintiff’s

allegations regarding “a broad pattern of

overdetention,” “knowledge,” and causation do not

satisfy Plaintiff’s burden of overcoming LeBlanc’s

qualified immunity defense. (Doc. 98 at 7.) Defendants

add: “The Plaintiff has completely failed to identify a

particular problem with a policy or the training

program and to explain how that problem caused the

alleged constitutional violation in this case.” (Id. at

9–10.) Defendants therefore maintain that LeBlanc is

entitled to qualified immunity. (See id. at 10.)

2. Applicable Law

“Qualified immunity provides government officials

performing discretionary functions with a shield

against civil damages liability, so long as their actions

could reasonably have been thought consistent with the

rights they are alleged to have violated.” Gobert v.

Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (citing

Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “In

determining whether an official enjoys immunity, we

ask (1) whether the plaintiff has demonstrated a

violation of a clearly established federal constitutional

or statutory right and (2) whether the official’s actions

violated that right to the extent that an objectively

reasonable person would have known.” Id. (citing Hope

v. Pelzer, 536 U.S. 730 (2002)). Courts are “permitted to

exercise their sound discretion in deciding which of the

two prongs of the qualified immunity analysis should

be addressed first in light of the circumstances in the

particular case at hand.” See Pearson v. Callahan, 555

U.S. 223, 236 (2009).

App. 40

“A supervisory official may be held liable ... only if

(1) he affirmatively participates in the acts that cause

the constitutional deprivation, or (2) he implements

unconstitutional policies that causally result in the

constitutional injury.” Porter v. Epps, 659 F.3d 440, 446

(5th Cir. 2011) (quoting Gates v. Tex. Dep’t of Prot. &

Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008)). “In

order to establish supervisor liability for constitutional

violations committed by subordinate employees,

plaintiffs must show that the supervisor act[ed], or

fail[ed] to act, with deliberate indifference to violations

of others’ constitutional rights committed by their

subordinates.” Id. (quoting Gates, 537 F.3d at 435

(internal quotation marks and citation omitted)).

“‘[D]eliberate indifference’ is a stringent standard of

fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his

action.” Estate of Davis ex rel. McCully v. City of N.

Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005)

(quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 410 (1997)). “For an official to act with

deliberate indifference, the official must both be aware

of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must

also draw the inference.” Id. (quoting Smith v.

Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998)).

“Deliberate indifference requires a showing of more

than negligence or even gross negligence.” Id. (citing

City of Canton v. Harris, 489 U.S. 378, 388 (1989); Doe

v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir.

1994) (en banc)). “Actions and decisions by officials that

are merely inept, erroneous, ineffective, or negligent do

not amount to deliberate indifference and do not divest

App. 41

officials of qualified immunity.” Id. (quoting Alton v.

Tex. A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999)).

Additionally, “[a] failure to adopt a policy can be

deliberately indifferent when it is obvious that the

likely consequences of not adopting a policy will be a

deprivation of constitutional rights.” Porter, 659 F.3d at

446 (quoting Rhyne v. Henderson Cnty., 973 F.2d 386,

392 (5th Cir. 1992)). Nevertheless, “[l]iability for failure

to promulgate policy ... require[s] that the defendant ...

acted with deliberate indifference.” Id. As the Fifth

Circuit stated with respect to “failure-to-train” claims:

To establish that a state actor disregarded a

known or obvious consequence of his actions,

there must be actual or constructive notice that

a particular omission in their training program

causes ... employees to violate citizens’

constitutional rights and the actor nevertheless

chooses to retain that program. A pattern of

similar constitutional violations by untrained

employees is ordinarily necessary to

demonstrate deliberate indifference, because

without notice that a course of training is

deficient in a particular respect, decisionmakers

can hardly be said to have deliberately chosen a

training program that will cause violations of

constitutional rights. Without cabining failureto-train claims in this manner (or, logically,

failure-to-promulgate-policy claims), a standard

less stringent than deliberate indifference would

be employed, and a failure-to-train claim would

result in de facto respondeat superior liability.

App. 42

Porter, 659 F.3d at 447 (citations, alterations, and

quotations omitted).

As to the other prong of the Court’s analysis,

“[q]ualified immunity attaches when an official’s

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (quoting White v. Pauly, 137

S. Ct. 548, 551 (2017) (per curiam) (alterations and

internal quotation marks omitted)). “Because the focus

is on whether the officer had fair notice that her

conduct was unlawful, reasonableness is judged against

the backdrop of the law at the time of the conduct.” Id.

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

(per curiam)).

“Although ‘[the Supreme] Court’s caselaw does not

require a case directly on point for a right to be clearly

established, existing precedent must have placed the

statutory or constitutional question beyond debate.’” Id.

(quoting White, 137 S. Ct. at 551 (internal quotation

marks omitted)). “‘In other words, immunity protects

all but the plainly incompetent or those who knowingly

violate the law.’” Id. (quoting White, 137 S. Ct. at 551

(internal quotation marks omitted)). “Of course,

general statements of the law are not inherently

incapable of giving fair and clear warning to officers.”

Id. at 1153 (quoting White, 137 S. Ct. at 552 (internal

quotation marks omitted)). “But ... [a]n officer ‘cannot

be said to have violated a clearly established right

unless the right’s contours were sufficiently definite

that any reasonable official in the defendant’s shoes

would have understood that he was violating it.’” Id.

App. 43

(quoting Plumhoff v. Rickard, 572 U.S. 765, 779

(2014)).

In this Court’s prior ruling on Defendants’ Rule

12(b)(6) motion, McNeal v. Louisiana Dept. of Pub.

Safety & Corr., No. 18-736, 2020 WL 7059581 (M.D. La.

Dec. 2, 2020) (Doc. 88), the Court applied the foregoing

standard and found that Plaintiff failed to allege a

constitutional violation by LeBlanc to support his

individual capacity claim. See McNeal, 2020 WL

7059581, at *19–*23. Regarding the deliberate

indifference component of Plaintiff’s claim, this Court

explained:

Plaintiff has, at this point, failed to adequately

allege deliberate indifference. Plaintiff points to

a state court law suit where DPSC employees

testified about the deficiencies, but he fails to

link this suit and this pattern to LeBlanc in such

a way to establish that LeBlanc actually drew

the inference that there was a substantial risk of

harm to Plaintiff and other inmates. Further,

Plaintiff alleges that Attorney General Landry

was aware of the problem and that there was a

Louisiana Audit report documenting it, but he

fails to allege, even on information and belief,

that LeBlanc was aware of what Landry said in

the op-ed or of what was contained in the audit.

Id. at *21.

3. Analysis

Having carefully considered the matter, and upon

further consideration of the Court’s prior ruling, the

App. 44

Court finds that Plaintiff has stated a viable individual

capacity claim against LeBlanc.

First, Plaintiff has sufficiently alleged a

constitutional violation by LeBlanc. The Amended

Complaint describes a widespread pattern of

overdetention at the DPSC, which was so well-settled

as to constitute “de facto policy.” (See Doc. 91 at ¶ 202.)

Plaintiff alleges that, the day before he was

incarcerated, “the Louisiana Legislative Auditor

released a report finding that the DOC had a serious

problem of not knowing where its inmates were

located, or when their proper release date was.” (Id. at

¶ 9.) Further, Plaintiff’s allegations suggest that

LeBlanc was aware of this report. (See id. at ¶¶ 127,

129–30, 228.) Plaintiff also avers that in 2018,

Defendants’ own lawyer, the Attorney General, wrote

an op-ed conceding that there “is a layer of

incompetence so deep that the Corrections Department

doesn’t know where a prisoner is on any given day of

the week or when he should actually be released from

prison.” (Id. at ¶ 12.)

Additionally, Plaintiff alleges that “multiple DOC

employees testified” in Chowns v. LeBlanc, La. 37th

JDC 26-932—a case in which LeBlanc was sued (see id.

at ¶ 122)—regarding a well-documented pattern of

over-detention. (See id. at ¶ 73.) For instance, DOC

employee Tracy Dibenetto testified that DOC staff

“discovered approximately one case of overdetention

per week for the last nine years,” with some inmates

“incorrectly incarcerated for periods of up to a year.”

(Id. at ¶ 73(a).) Similarly, DOC records analyst Cheryl

Schexnayder testified that in the course of her job, she

App. 45

reviewed inmate sentences and found that they had

been “done wrong” and that “the inmate was entitled to

immediate release.” (Id. at ¶ 73(c).) The Amended

Complaint also alleges that in a grant application to

the federal government, the DPSC disclosed that in

2017, it “had an average of 200 cases per month

considered an ‘immediate release’” due to its pattern of

overdetention. (See id. at ¶ 91.)

Finally, Plaintiff alleges that LeBlanc championed

the “Lean Sigma Six” review of the DPSC’s inmate time

calculation processes project. (See id. at ¶¶ 54–55.) This

review project found that when the DPSC calculated

the release date of inmates, 83% were eligible for

immediate release due to an earlier release date. (See

id. at ¶ 56; see also id. at ¶¶ 57–60.) Plaintiff alleges

that despite being alerted to this problem, LeBlanc did

not set of a goal of fixing it. (Id. at ¶¶ 61–65.) For

example, in 2015, the DPSC tried an electronic record

management system for a short period before

ultimately going back “to its old 1990s era CAJUN

system.” (Id. at ¶ 69.) “As a result, the functional

processes around the transmission of documents

remain as antiquated as they were in 1996.” (Id. at

¶ 70 (citations omitted); see also id. at ¶¶ 71–72.)

In sum, construing these allegations in a light most

favorable to Plaintiff and drawing all reasonable

inferences in his favor, the Court finds that a

reasonable juror could conclude that LeBlanc

implemented defective policies and training that lead

to the over-detention of Plaintiff and others in violation

of their due process rights. A reasonable juror could

also find from the facts alleged in the Amended

App. 46

Complaint that LeBlanc was deliberately indifferent

based on the long-standing pattern of sufficiently

similar incidents described in the Amended Complaint.

As a result, Plaintiff has satisfied the first prong of the

qualified immunity analysis by alleging sufficient facts

to support the reasonable inference that LeBlanc, as a

supervisory official, violated Plaintiff’s federal and

state due process rights.

Additionally, Defendants filed a supplemental

memorandum in support of their motion, directing the

Court to the Fifth Circuit’s recent decisions in Grant v.

LeBlanc, 21-30230, 2022 WL 301546 (5th Cir. Feb. 1,

2022), and Hicks v. LeBlanc, 832 F. App’x 836 (5th Cir.

2020). (See Doc. 106.) Defendants submit that the

Grant opinion and its analysis regarding the deliberate

indifference standard further supports their arguments

that LeBlanc is entitled to qualified immunity on

Plaintiff’s Section 1983 claims. (See id.) Plaintiff, by

contrast, contends that the Fifth Circuit’s “nonprecedential decision in Grant does not substantially

change the legal framework regarding the motion

before this Court” because the Grant case is

distinguishable on its facts. (See Doc. 107.) The Court

agrees with Plaintiff.

In Grant, the Fifth Circuit reversed the district

court’s denial of qualified immunity for LeBlanc on the

plaintiff’s federal and state due process claims. 2022

WL 301546, at *7. The Fifth Circuit found that,

because the plaintiff failed to show that LeBlanc, in his

individual capacity, violated the claimed due process

rights by overdetention, LeBlanc was entitled to

qualified immunity. See id. at *1. In applying the

App. 47

deliberate indifference standard to the plaintiff’s claim,

the Fifth Circuit explained:

Moreover, Grant has not presented the requisite

pattern of due-process violations similar to the

one he asserts: DPSC’s failing to timely release

an individual, specifically as a result of the

Secretary’s failure to promulgate policy, or train

subordinates, to prevent overdetention due to

delayed delivery of the charging document.

Again, as reflected above, the delay in receiving

Grant’s bill of information was caused by

external entities—not by the Secretary.

Along that line, Grant points to items in the

summary-judgment record relied upon by the

district court in concluding the Secretary was

deliberately indifferent because he had notice of

instances of DPSC’s overdetention . . . .

Regarding the three items cited by Grant, the

district court mainly relied upon a 2012 Six

Sigma study of DPSC, a 2017 report by the

Louisiana Legislative auditor, and a grant

application DPSC submitted to the federal

government in 2019, all referencing

overdetention within DPSC. The first, however,

examined DPSC’s internal-release procedures,

not policies of external offices. The latter two, as

the Secretary notes correctly, are insufficient to

establish deliberate indifference on the part of

the Secretary. Both occurred after Grant’s

overdetention, and they fail to show, prior to

Grant’s overdetention, that the Secretary had

App. 48

knowledge of due-process violations of the type

claimed by Grant . . . .

Id. at *6 (citations omitted).

The Court observes that the Grant case is

distinguishable in several respects. First, in this case,

unlike in Grant, the Legislative Auditor released the

report before Plaintiff was incarcerated. (See Doc. 91 at

¶ 9.) Similarly, the grant application described in the

Amended Complaint references instances of

overdetention occurring in 2017 (see id. at ¶ 91), which

is during the period Plaintiff was incarcerated.

Further, the crux of the plaintiff’s constitutional

challenge in Grant “ultimately rest[ed] on the local

sheriff’s and clerk’s offices’ failure to deliver his bill of

information to DPSC in a timely manner.” See 2022 WL

301546, at *6. Whereas, here, Plaintiff objects to the

widespread pattern of continuous errors made by DPSC

and its employees; consequently, the 2012 Sigma Six

examination of DPSC’s internal-release procedures are

significantly more pertinent to the Court’s deliberate

indifference analysis.

In Hicks v. LeBlanc, the other case cited in

Defendants’ supplemental memorandum (see Doc. 106

at 2, 6), the Fifth Circuit reversed the district court’s

judgment denying qualified immunity for LeBlanc,

finding that he could not be held individually liable

under Section 1983 for failing to promulgate adequate

policies or failing to train and supervise employees

based on a DOC employee’s intentional sentencing

miscalculation and over-detention of the plaintiff in

violation of his due process rights. See 832 F. App’x

App. 49

836, 838, 841–42. In reaching this conclusion, the Fifth

Circuit observed:

Whether LeBlanc acted with deliberate

indifference is a close call. Hicks alleged that

LeBlanc knew of the DPSC’s long history of

over-detaining inmates; that DPSC employees

used different methods to calculate release

dates; and that the DPSC had not disciplined

employees who miscalculated sentences.

However, the alleged facts—which included

processing delays, data errors, inconsistent

calculation methodologies, and unspecified

deficiencies—speak to the incompetence of

DPSC employees and the lack of adequate

training and supervision. Based on these

allegations, LeBlanc could be held liable for

incompetent over-detention, such as the failure

to process a prisoner’s release or immediately

compute an inmate’s sentence after being

sentenced to time served. But it cannot be said

that LeBlanc had notice that his employees were

purposely disregarding sentencing orders out of

retaliatory intent. The complaint was devoid of

allegations supporting the reasonable inference

that a pattern of intentional over-detention

existed in the DPSC; that is, the alleged facts

suggest a pattern of over-detention caused by

quality control deficiencies and the lack of

training and supervision, not a pattern of overdetention stemming from the blatant refusal to

credit offenders with time served contrary to

sentencing orders. In the absence of such a

pattern, LeBlanc could not have acted with

App. 50

deliberate indifference to [the DOC employee’s]

intentional sentencing miscalculation and overdetention of Hicks. Accordingly, the district

court erred in denying LeBlanc’s defense of

qualified immunity.

Id. at 842 (citation omitted).

Here, the facts alleged in the Amended Complaint,

accepted as true and viewed in the light most favorable

to Plaintiff, support the reasonable inference that a

pattern of over-detention existed at the DPSC that was

caused by a lack of adequate policies, training, and

supervision to ensure inmates were timely released

from custody. Moreover, the Plaintiff’s Amended

Complaint includes numerous factual allegations

detailing the scale of the DPSC’s overdetention

problem, including the findings of the Legislative

Auditor’s report, the Lean Sigma Six review project,

the state court testimony by DOC employees, and so

forth. Unlike in Hicks, these well-pleaded facts allow

the Court to draw the reasonable inference that

LeBlanc’s continuous failures to implement policies

amounted to an intentional choice, as opposed to mere

negligent oversight. See Rhyne v. Henderson Cnty., 973

F.2d 386, 392 (5th Cir. 1992) (citations omitted). Put

differently, Plaintiff has plausibly alleged that LeBlanc

acted with deliberate indifference to constitutional

violations.

Having established that Plaintiff has met the first

qualified-immunity prong, the Court turns to the

second prong of the analysis: whether LeBlanc’s actions

were objectively unreasonable in light of clearly

established law. See Grant v. LeBlanc, 2022 WL

App. 51

301546, at *5 (5th Cir. Feb. 1, 2022) (citations omitted).

“The Fourteenth Amendment Due Process Clause is

violated where a prisoner remains incarcerated after

the legal authority to hold him has expired.” Hicks, 832

F. App’x 836, 840 (citation omitted). Further, “[a]

prisoner’s right to timely release was clearly

established well before 2017,” when the actions sued

upon occurred. See id. at 841. As previously discussed,

the allegations of Plaintiff’s Amended Complaint

describe numerous instances in which the DPSC’s

longstanding overdetention problem was publicly

highlighted or brought to the DPSC’s attention, such as

the Legislative Auditor’s report, the federal grant

application, and the state court testimony. Again, the

Court can reasonably infer from these allegations that

LeBlanc’s deliberate decision to allow defective policies

and procedures to remain at DPSC—despite having

notice of the substantial risk they posed to the

constitutional rights of others—was objectively

unreasonable in light of the clearly established law at

the time. Accordingly, Defendants’ motion to dismiss

Plaintiff’s Section 1983 claims against LeBlanc in his

individual capacity based on qualified immunity is

denied.

F. Remaining State Law Claims Against

DPSC

Defendants’ motion seeks dismissal of Plaintiff’s

Amended Complaint in its entirety pursuant to Rule

12(b)(6) (see Doc. 93), including Plaintiff’s state law

claims against DPSC for violation of the Louisiana

Constitution (Doc. 91 at ¶¶ 198–200), respondeat

App. 52

superior (id. at ¶¶ 233–34), and indemnification (id. at

¶¶ 235–37).

Regarding Plaintiff’s claim arising under the

Louisiana Constitution, DPSC suggests that it is

entitled to qualified immunity on this claim because it

is “indistinguishable from the due process claim under

the United States Constitution.” (Doc. 93-1 at 15.)1 The

Court disagrees. Having determined that the

allegations of the Amended Complaint are sufficient to

overcome LeBlanc’s assertion of qualified immunity as

to Plaintiff’s due process claim under the U.S.

Constitution, it follows that Plaintiff’s claim against

DPSC for violation of his due process rights under the

Louisiana Constitution survives dismissal based on

qualified immunity as well. Accordingly, Defendants’

motion as to this claim is denied.

Finally, Defendants’ memorandum in support of

their motion does not substantively address the merits

of Plaintiff’s respondeat superior and indemnification

claims against DPSC. Therefore, Defendants’ motion as

Defendants appear to offer an additional argument in support of

dismissal on this issue: “Plaintiff’s claim under the Louisiana

Constitution is an alternative theory of recovery under Louisiana

Law. All of plaintiff’s alternative theories under Louisiana law are

moot now that this Honorable Court has entered summary

judgment on Plaintiff’s false imprisonment claim.” (Doc. 93-1 at 15

n.39.) Plaintiff’s opposition failed to address this argument. Still,

the Court notes that Defendants do not cite any law for the

proposition that because this Court granted Plaintiff summary

April 13, 2022 judgment on one Louisiana law claim, the others are

now moot. Additionally, the Federal Rules of Civil Procedure

permit plaintiffs to plead in the alternative. See Fed. R. Civ. P.

8(d)(2).

App. 53

to these claims is denied without prejudice because

they have not made a sufficient legal showing to justify

dismissal.

IV.

Conclusion

Accordingly,

IT IS ORDERED that the Motion to Dismiss

Plaintiff’s Second Amended Complaint (Doc. 93) filed

by Defendants DPSC, LeBlanc, and Collins is

GRANTED IN PART and DENIED IN PART. The

motion is GRANTED in that the following claims are

DISMISSED: (1) Plaintiff’s demand for declaratory

relief; (2) Plaintiff’s Section 1983 claims for monetary

damages against LeBlanc in his official capacity; and

(3) Plaintiff’s state law claims for monetary damages

against LeBlanc in his official capacity. In all other

respects, the motion is DENIED.

Signed in Baton Rouge, Louisiana, on April 13,

2022.

/s/ John W. deGravelles

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

App. 54

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CIVIL ACTION NO. 18-736-JWD-EWD

[Filed February 18, 2020]

_____________________________________________

BRIAN MCNEAL

)

VERSUS

)

LOUISIANA DEPARTMENT OF

)

PUBLIC SAFETY & CORRECTIONS

)

JAMES LEBLANC, TIM HOOPER

)

ROBIN MILLIGAN, UNKNOWN DOES 1-10, )

ABC INSURANCE COMPANIES

)

____________________________________________ )

RULING AND ORDER

This matter is before the Court on a Motion for

Summary Judgment on False Imprisonment Claim

(Doc. 12) filed by Brian McNeal (“Plaintiff” or “Mr.

McNeal”) In response, Defendant Louisiana

Department of Public Safety & Corrections (the

“Department of Corrections” filed a Memorandum in

Opposition to Plaintiff’s Motion for Summary

Judgment (Doc. 21.) In reply, Plaintiff filed a Reply in

Support of Plaintiff’s Motion for Summary Judgment

App. 55

on False Imprisonment. (Doc. 25.)1 In addition, the

Department of Corrections, James LeBlanc, Timothy

Hooper, and Robin Milligan (together “Defendants”)

filed a Motion for Summary Judgment. (Doc. 17.) In

response, Plaintiff filed an Opposition to Defendants’

Motion for Summary Judgment. (Doc. 24.) In reply,

Defendants filed Reply to Plaintiff’s Memorandum in

Opposition to Summary Judgment. (Doc. 36.) Oral

argument is not necessary. Having considered the

facts, the parties’ arguments, the applicable law, and

for the reasons explained below, the Court will grant

Plaintiff’s Motion for Summary Judgment on False

Imprisonment Claim (Doc. 12) and deny Defendants’

Motion for Summary Judgment (Doc. 17).

RELEVANT FACTS

Mr. McNeal brought this action against the

Department of Corrections, Secretary James LeBlanc,

Timothy Hooper, and Robin Milligan on June 20, 2018

in state court. (Doc. 1-2.) Defendants removed the case

to this Court on August 8, 2018. (Doc. 1.)

On October 26, 2015, Mr. McNeal pled guilty to

possession of cocaine and drug paraphernalia in

Orleans Criminal District Court, and was sentenced to

a five-year sentence, suspended, and with five years of

active probation. (Doc. 1-2 at ¶ 19.) Pursuant to a July

2017 arrest, on August 3, 2017, Mr. McNeal’s probation

was revoked and he was sentenced to be incarcerated

for ninety days at the Steve Hoyle Program, in the

Plaintiff also filed two supplements providing legal authority

relating to the application of Heck v. Humphrey in the

overdetention context. (Docs. 45 and 48.)

App. 56

Bossier Parish Correctional Center. (Doc. 1-2 at ¶ 2021.) On August 22, 2017, the Department of

Corrections sent a release letter to the Steve Hoyle

program directing it to release Mr. McNeal on

November 1, 2017. (Doc. 12-3 at 3.) The letter states,

“This is your authority to release the offender on

11/01/2017, as having completed said sentence that was

imposed at the time of revocation.” (Doc. 12-7 at 1.) On

September 5, 2017, Mr. McNeal was determined to be

unfit for the Steve Hoyle Program and was

incarcerated at the Elayn Hunt Correctional Center

(Doc. 1-2 at ¶23.) The Department of Corrections did

not forward Mr. McNeal’s release letter to the Elayn

Hunt Correctional Center. (Doc. 12-3 at 7.)

November 1, 2017 was Mr. McNeal’s correct and

legal release date. (Docs. 12-7 at 1; and 12-3 at 3.) Mr.

McNeal was not released on November 1, 2017. (Doc.

12-7 at 1.) On November 15, 2017, Mr. McNeal wrote

the Warden asking why he was not allowed to go to

court, because he was “suppose[d] to be released into a

drug program.” (Doc. 12-5 at 1) Mr. McNeal asked the

Warden for his help to “find out what’s going on” and

“fix this matter.” (Doc. 12-5 at 1.) Mr. McNeal also

informed the Warden that his phone pin stopped

working so he could not call anyone for help. (Id.) A

handwritten response to the letter rejecting it reads,

“the transfer documents would have been sent for you

to be transported” and “you must contact the phone

department in regards to your telephone.” (Id.)

After November 1, 2017, Plaintiff’s girlfriend

Crystal made phone calls on his behalf. (Doc. 12-6 at 4.)

For example, on December 6, 2017, Crystal spoke with

App. 57

Mr. Peter Pobocik, Plaintiff’s probation officer and a

Department of Corrections employee, who informed her

that Mr. McNeal was supposed to have been released

on November 1, 2017. (Doc. 12-6 at 4.) Mr. Pobocik’s

Narrative Report details, “CC with subject’s GF

Crystal. She reports that he is still being held at Hunt.

Subject was doing a 402 and scheduled to be released

11/1/17. Cajun shows he was released on that date.

Forwarded to supervisor for clarification.” (Doc. 12-6 at

4.) On December 8, 2017, Department of Corrections

was made aware of Mr. McNeal’s overdetention. (Doc.

12-4 at 3-4.) On December 11, 2017, Jennifer Bush at

the Department of Corrections emailed Elayn Hunt

Correctional Center writing, “the offender was thought

to be at a different facility,” and the attached release

letter states, “[t]his is your authority to release the

offender as of 11/1/2017, as having completed said

sentence that was imposed at the time of revocation.”

(Doc. 12-7.)

The Louisiana Department of Corrections

imprisoned Mr. McNeal from November 1, 2017 to

December 12, 2017, excepting for trips to court. (Doc.

12-3 at 2.) Mr. McNeal was released from Elayn Hunt

Correctional Center on December 12, 2017. (Doc. 12-3

at 7.) Therefore, Mr. McNeal was held for 41 days past

his legal release date. (Doc. 12-3 at 8.)

Plaintiff does not allege that he previously

invalidated the nature and duration of his confinement.

(Doc. 1-2.) He has not been a part of any other civil

action, other than the present action. (Doc. 1-2.)

Outside of his letter to the Warden, Plaintiff did not

utilize the grievance procedure or file any

App. 58

Administrative Remedy Procedures pertaining to his

incarceration. (Doc. 17-3 at 9.)

PARTIES’ ARGUMENTS

a. Plaintiff’s arguments in support of summary

judgment on false imprisonment.

Plaintiff argues that there is no genuine dispute of

material fact as to either element of the tort of false

imprisonment under Louisiana law. (Doc. 12-1 at 3-4.)

Plaintiff maintains that false imprisonment occurs

“when one ‘restrains another against his will without

a warrant or other statutory authority. Simply stated

it is restraint without color of legal authority.’” (Doc.

12-1 at 4 (quoting Kyle v. City of New Orleans, 353

So.2d 969, 971 (La., 1977)).) As such, the elements to

prove false imprisonment are “(1) proof of

imprisonment and (2) lack of legal authority.” (Doc. 121 at 4 (citing Prisk v. Palazzo, (La. App. 4 Cir.

1/19/96668) So.2d 415, 417).) Plaintiff argues that

under Louisiana law, there is no intent or other

knowledge requirement. Therefore,

The fact that the jailer is without personal

knowledge that the prisoner is held unlawfully

does not constitute a defense to an action for

false imprisonment . . . In such circumstance, as

in the one before us, ignorance of the law is no

excuse.

(Doc. 12-1 at 4 (quoting Whirl v. Kern, 407 F.2d 781,

791 (5th Cir. 1968)).)

Plaintiff argues that the first element, whether

there was an imprisonment, is undisputed. (Doc. 12-1

App. 59

at 5.) The parties agree that Mr. McNeal was

imprisoned at the Ealyn Hunt Correctional Center

from August 1, 2017 to December 12, 2017. (Doc. 12-1

at 5.) Likewise, Plaintiff argues that the second

element, whether there was a lack of legal authority, is

met because the sentence expired on November 1, 2017.

(Doc. 12-1 at 5.) The parties agree that Mr. McNeal was

held for 41 days past his legal release date. (Doc. 12-1

at 6.) As both elements for the tort of false

imprisonment have been met, Plaintiff argues his

Motion for Summary Judgment on False Imprisonment

Claim should be granted. (Id.)

b. Defendants’ response and arguments in support of

summary judgment.

1. Plaintiff’s claim is barred by Heck v. Humphrey

and its progeny.

Defendant argues that Heck v. Humphrey applies to

bar the Plaintiff’s claim because the false

imprisonment claim bears on the validity and duration

of his confinement. (Docs. 17-1 at 4- 5; 21 at 2-3.)

Defendants assert that Heck v. Humphrey “held that a

prisoner’s § 1983 claims [are] not cognizable where ‘a

judgment in favor of the Plaintiff would necessarily

imply the invalidity of his conviction or sentence.’”

(Doc. 17-1 at 4 (quoting Heck v. Humphrey, 512 U.S.

477, 487 (1994)).) Defendants maintain that the

progeny of Heck, hold:

[A] state prisoner’s § 1983 action is barred

(absent prior invalidation—no matter the relief

sought (damages or equitable relief), no matter

the target of the prisoner’s suit (state conduct

App. 60

leading to a conviction or internal prison

proceedings)—if success in that action would

necessarily demonstrate the invalidity of the

confinement or its duration.

(Doc. 17-1 at 5 (quoting, Wilkinson v. Dotson, 544 U.S.

74, 81-82 (2005)).) Defendants’ argue that if Plaintiff

proves his case, then he would “inherently demonstrate

that (1) the nature of his confinement was illegal (that

the defendants had no authority to hold him) and that

(2) the duration of his confinement was illegal (he was

held for 41 days past his release date).” (Doc. 17-1 at 5.)

Therefore, Defendants argue Heck applies. (Doc. 17-1.)

Defendants point to the fact that Plaintiff’s

confinement has not been previously invalidated. (Doc

17-1 at 6.) Defendants argue that “[u]nder Heck, a

§ 1983 case is barred unless the plaintiff can

demonstrate that the nature and duration of his

confinement has been reversed on direct appeal,

expunged by executive order, declared invalid by a

state tribunal or called into question by a federal

court’s issuance of a writ of habeas corpus.” (Doc. 17-1

at 6.). Because Plaintiff has not sought to invalidate his

confinement, Defendants maintain that Heck applies

and the claim is barred. (Doc. 17-1 at 6-7.)

2. Plaintiff’s claim is barred because he failed to

exhaust his administrative remedies prior to

filing suit.

Defendants argue in the alternative that because

Plaintiff failed to pursue available administrative

remedies under the Louisiana Prison Litigation Reform

App. 61

Act (“LA PLRA”), his claims should be dismissed. (Doc.

17-1 at 7.) The LA PLRA states:

No prisoner suit shall assert a claim under state

law until such administrative remedies as are

available are exhausted. If a prisoner suit is

filed in contravention of this Paragraph, the

court shall dismiss the suit without prejudice.

(Doc. 17-1 at 7 (quoting La. R.S. 15:1184(A)(2)).)

Defendants assert that the LA PLRA defines “civil

action with respect to prison conditions” or “prisoner

suit” to mean

any civil proceeding with respect to the

conditions of confinement or the effects of

actions by government officials on the lives of

persons confined in prison, but does not include

post conviction relief or habeas corpus

proceedings challenging the fact or duration of

confinement in prison.

(Doc. 17-1 at 7 (citing La. R.S. 15:1181).) Defendants

reason that because this is a civil proceeding

challenging the effects of actions by government

officials on the lives of persons confined in prison it is

a “prisoner suit” under the LA PLRA. (Doc. 17-1 at 7.)

The LA PLRA further defines “prisoner” to mean:

any person subject to incarceration, detention, or

admission to any prison who is accused of,

convicted of, sentenced for, or adjudicated

delinquent for a violation of criminal law or the

terms or conditions of parole, probation, pretrial

release, or a diversionary program. Status as a

“prisoner” is determined as of the time the cause

App. 62

of action arises. Subsequent events, including

post trial judicial action or release from custody,

shall not affect such status.

(Doc. 17-1 at 8 (quoting La. R.S. 15:1181(6)).) Again,

Defendants reason that because the state law causes of

action arose during his confinement at the Elayn Hunt

Correctional Center, Plaintiff is a prisoner under the

LA PLRA. (Doc. 17-1 at 8.) Therefore, Defendants

maintain that Plaintiff was required to exhaust the

available administrative remedies before filing the civil

suit, which he did not. (Doc. 17-1 at 8-9.) Defendants

argue that it is appropriate to therefore dismiss

Plaintiff’s claims under the LA PLRA. (Id.)

c. Plaintiff’s response and reply to Defendants’

arguments.

1. Heck does not apply because Plaintiff does not

challenge his conviction or his sentence.

Plaintiff argues that the application of Heck v.

Humphrey is an affirmative defense that was not pled

in Defendants’ answer and is therefore waived

pursuant to Fed. R. Civ. P. 15(h). (Doc. 24 at 2.)

Plaintiff also argues that in challenging his

overdetention, he does not seek to invalidate either his

conviction or sentence, so therefore Heck v. Humphrey

does not apply. (Doc. 24 at 3.) Plaintiff also argues that

applying Heck to an overdetention case would lead to

absurd results because a 41-day overdetention is not

sufficient to obtain a ruling from a tribunal. (Doc. 24 at

3.) Further, Plaintiff details that there is no cause of

action allowing an overdetention to be expunged or

reversed. (Doc. 24 at 3.)

App. 63

2. LA PLRA’s exhaustion requirement does not

apply to the Plaintiff.

a. The federal PLRA not the Louisiana PLRA

applies in federal court.

Plaintiff argues that under Fifth Circuit precedent,

the federal and not the LA PLRA applies in federal

Court. (Doc. 24 at 4.) Plaintiff directs the Court to

Ferrington v. Louisiana Department of Corrections, 315

F.3d 529 (5th Cir. 2002), which states, “Ferrington is

proceeding in federal, not state court, and his claim is

procedurally governed by federal law.” 315 F.3d 529,

532 (5th Cir. 2002). Plaintiff argues that under the

federal PLRA, a former prisoner does not have to

exhaust administrative remedies. (Doc. 24 at 4-5 (citing

Bernal v. Bexar Cty., 757 F. App’x 316, 320 (5th Cir.

2018) (“At the time of his complaint, Bernal was not

incarcerated. Rather, he had served his time. And he

sued after his release. The district court was wrong

that Bernal had to exhaust his administrative

remedies. It thus erred in dismissing his complaint.”)).)

As such, Plaintiff maintains that Mr. McNeal did not

have to exhaust administrative remedies to bring his

claim. (Doc. 24 at 4-5.)

b. The Louisiana PLRA applies to suits by

current prisoners, not former prisoners

In the alternative, if the Court applies the LA

PLRA, Plaintiff argues that the LA PLRA applies only

to suits by current prisoners, not former prisoners.

(Doc. 24 at 5.) Plaintiff cites Hebert v. Maxwell, No. 031739, 2008 WL 1733233, at *1–2 (W.D. La. Apr. 14,

2008), which states:

App. 64

The plain language of these statutes suggests

that the limitations apply only to suits by

current prisoners, not former prisoners, and the

jurisprudence bears this out. Because the

Louisiana statute is so similar to the federal

statute, and because we can find no Louisiana

cases on point, we rely on federal jurisprudence.

(Doc. 24 at 5.) Because there is no case law applying

the LA PLRA to former prisoners, Plaintiff maintains

that it does not apply. (Doc. 24 at 5.)

c. Plaintiff was not a prisoner during his

overdetention

In the alternative, Plaintiff argues that under the

plain language of the LA PLRA, Mr. McNeal was not a

prisoner during his overdetention. (Doc. 24 at 6.) As

previously discussed, prisoner is defined by the LA

PLRA as:

any person subject to incarceration, detention, or

admission to any prison who is accused of,

convicted of, sentenced for, or adjudicated

delinquent for a violation of criminal law or the

terms or conditions of parole, probation, pretrial

release, or a diversionary program.

(Doc. 24 at 6 (citing La. R.S. 15:1181(6).) Plaintiff

argues that under this definition, to be a prisoner there

must be “(1) actual imprisonment, (2) resulting from

legal process. (The actual imprisonment must be linked

[to] the legal process, because otherwise a person

locked in a private person’s basement who was

separately accused of a crime would be subject to the

L[A] PLRA – an absurd result.).” (Doc. 24 at 6.)

App. 65

Plaintiff outlines that “once Mr. McNeal’s sentence

expired, he was no longer a person “accused of,

convicted of, sentenced for, or adjudicated delinquent”

of any crime. (Doc. 24 at 6.) Therefore, he no longer fit

within the definition of prisoner. (Id.) This

interpretation is consistent, Plaintiff maintains, with

the interpretation of the federal PLRA. (Doc. 24 at 6

(citing Williams v. Block, No. 97-3826 WJR, 1999 WL

33542996, at *6 (C.D. Cal. Aug. 11, 1999) (“Once

Plaintiffs were entitled to be released, any “jail term”

that may have existed expired. Therefore, they were

not prisoners at the time the alleged injury occurred.”);

Watson v. Sheahan, No. 94 C 6891, 1998 WL 708803, at

*3 (N.D. Ill. Sept. 30, 1998) (“This case, however,

involves claims by persons who were legally released

from the above correctional facilities but were detained

over 10 hours before being physically released from

custody. Thus, the PLRA is not applicable to this

case.”); Lee v. State, Dep’t of Corr. Servs., No. 97 CIV.

7112, 1999 WL 673339, at *4 (S.D.N.Y. Aug. 30, 1999)

(“Second, and more importantly, the PLRA does not

apply to the instant case. Section 1997e(h) defines the

term “prisoner” as “any person incarcerated, or

detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations

of cri

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