Petition for Writ of Certiorari — O'Dwyer v. United States (No. 08-882)

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FICE OF THE CLERK

IN THE

Supreme Court of the United States

MAUREEN O’DWYER, PETITIONER

Vv,

UNITED STATES OF AMERICA, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MAUREEN O’DWYER

pro se

5939 Vicksburg Street,

New Orleans, LA 70124

(504) 484-1053

CURRY & TAYLOR @ (202) 393°4141

;

QUESTIONS PRESENTED

Whether [etitioner has been denied the

fundamental constitutional right to due process of

law by virtue of the fact that the District Judge

presiding over “Victims of KATRINA” litigation is

guilty of actual bias and prejudice, and should have

been recused for that reason, and for other

reasons, in order to avoid even the appearance of

impropriety.

Whether the filing of motion(s) to dismiss by the

United States of America to invoke sovereign

immunity pursuant to §702(c) of the Flood Control

Act of 1928, as well as the due care and

discretionary function exceptions to the waiver of

_ sovereign immunity contained in the Federal Tort

Claims Act, constituted denials of Petitioner’s

claims or otherwise rendered any “requirement”

(which is assumed for argumentative purposes

only) that Petitioner must exhaust administrative

remedies under the F‘T'CA as a prerequisite to

filing suit futile?

Whether the Corps of Engineers’ and/or FEMA’s

failure to establish competent procedures or to

make any meaningful effort to adjust

administrative claims submitted to them since

Hurricane KATRINA pursuant to the FTCA

and/or the Admiralty Extension Act rendered

administrative claim procedures as a prerequisite

to filing suit futile?

Whether the Learned District Judge abused his

discretion by not allowing Petitioner to amend her

pleadings in order to invoke admiralty and

maritime jurisdiction, such that the Suits in

Admiralty Act is applicable, which contains no

administrative claim requirement?

Whether the Federal Judiciary has the inherent

power to fashion some equitable remedy for

Petitioner under the unique circumstances

presented by “Victims of KATRINA” litigation,

which would allow Petitioner to avoid the unduly

burdensome administrative claims requirements of

the FTCA and the Admiralty Extension Act,

which the Federal Government hasn’t bothered to

implement in any meaningful way, anyway?

Whether Petitioner's civil rights claims against

State and Local government entities and

individuals were erroneously dismissed, “on the

papers”, without the opportunity for any discovery

or for one word to be uttered on = cross-

examination, under oath, by public officials?

Whether the State of Louisiana, its branches of

government, agencies and _ instrumentalities,

political subdivisions and individual department

heads have waived immunity from being required

to litigate claims brought against them in Federal

Court pursuant to the 11'" Amendment tothe U.S.

Constitution, including particularly, but without

limitation, waiver “by litigating conduct” in the

Federal forum by voluntarily invoking the

jurisdiction of the United States District Court for

the Eastern District of Louisiana on multiple

occasions since August 29, 2005. See Gil Seinfeld,

“Waiver-in-Litigation: Eleventh Amendment

10)

Lid

Immunity and the Voluntariness Question”, 63

Ohio State Law Journal 871 (2002).

Whether Petitioner’s tort-based claims against

State and Local government entities and

individuals were erroneously dismissed “on the

papers”, without the opportunity tor any discovery

or for one word to be uttered on _ cross-

examination, under oath, by public officials?

Whether the Federal Court has jurisdiction over

Petitioner’s claims by virtue of Federal pollution

statutes, and by virtue of the claims against the

Government in the nature of set-off against future

tax liability?

Whether the Learned District Judge abused his

discretion by failing to exercise supplemental

jurisdiction over Petitioner’s tort claims against

the non-federal defendants?

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1 (b), the following list

identifies all of the parties appearing here and before the

United States District Court for the Eastern District of

Louisiana and before the United States Court of Appeals

for the Fifth Circuit.

PETITIONER:

Maureen O’Dwyer

RESPONDENTS:

The United States of America, Louisiana State

Governor Kathleen Blanco, The State of Louisiana,

Mayor Ray Nagin, The City of New Orleans, Chief of

Police Eddie Compass, Jim Huey, President of the

Orleans Parish Levee Board, The Orleans Parish Levee

Board, Ray Nagin, President of The Orleans Parish

Sewerage and Water Board, The Orleans Parish

Sewerage and Water Board, Marlin Gusman, Orleans

Parish Criminal] Sheriff, ABC and DEF and XYZ

Insurance Company, who insured above defendants!

Alexis O’Dwyer Navarro, Shirley D. O’Dwyer, Lisa

Marie O’Dwyer, Harold Joseph Gagnet, Sally Egerton

Richards, Shane Porter and Stephanie Porter, Interior

Specialties LLC, Shelia Jones Jordan, Charles Edward

Jordon, Wayne M. Jones, Gloria Agnes Griffin,

1 The named defendants originally included Eddie Jordan, District

Attorney for the Parish of Orleans, and Kimberly Williamson Butler,

Clerk of Couri, Criminal District Court for the Parish of Orleans.

However, Petitioners’ claims against defendants Jordan and Butler

be and they are hereby abandoned.

individually and as Administration of the, Succession of

her brother Stephen Williams, and on behalf of any and

all heirs, survivors, relatives and beneficiaries of the

deceased Leticia Brown, Jo Anna McLean, Lee

Davidson McLean III, Kathryn Frank, Richard

Springer Favor, And Miriam McMichael Favor d/b/a

The Garden Smith, Philip B. Alford, Gerald Pipes

Guice, Beverly Anne Ferguson Guice, Madeleine Alise

Guice, Kenneth Hastings Guice, Anthony Phillip

Hende4rson, Louis Joseph O’Dwyer, Jr., Maurleen M.

O’Dwyer, Aaron Jacob O’ Dwyer, Henry Grady Hardy,

Jr., Letizia Hardy, Jane Veronica Hardy, Brian

Southerland Hardy, Martin Ramos, Richard Ehret,

Leslie Ehret, Anthony Phillip Henderson, Frances Y.

Bellerino, Louise J. Young, Edward R. Young And

Veronica FI’. Young d/b/a Floor Crafters Wood

Interiors, Joseph Rauchwerk, Cheryl Sweat

Rauchwerk, Marilyn Von Schmidt, Susan G. Jeanfreau,

M.D., Wallace E. Jeanfreau, M.D., Robert J. Jeanfreau,

M.D., Jerry Victor Jacob, Gloria Pohlman Hecker,

Joseph W.P. Hecker, in proper person, Nicholas 8S.

Lindner, Ruth B. Ragas, Paul J. Ragas, Jason P. Ragas,

Walter J. Morgan, Katie L. Ragas, Arthur Tracy Abel,

Kathleen C. Abel, Kitty B. Hoffman, Craig Anthony

Miller, Stephen Christopher Jeandron, Andre Trevigne

Fowler, John Wesley Stewart, Jr., George Schmidt db/a

The George Schmidt Gallery, Delia LaBarre, Tyrone

Anthony Alexander, Michael Cormick, Penny

Anderson, Calie Newell, Betty Francis, Lester McGee,

Sherman Griffin, Sandra Meyers. Gregory Cormick,

Jeffrey Baker Day, Ashley O’Dwyer Day, Harold

Alexander, Vonola Avist, Dana Bell, Gloria Mae Bell,

Hitchai Bryant, Nicole Bryant, John Collins, Jonell

Collins, Catherine Collins, Sherene Collins, Simeko

Collins, Jerry Cormick, Lauren Dabney, Kevin Daliet,

Norcille Daliet, Donald Ellis, Kim Ellis, Bobbie Evans,

Audrey Gray, Lucille Gray, Issac Hayes, Mary Johnson,

Mary Noela Johnson, Wayne Anthony Johnson, Ann

Lawless, Detective Carlton Lawless, Gene Lee, [vin

Lee, Lynn Lee, Jimmie Martin, Harry Nobles, Alma

Sanders, Barbara Sanders, Albertha Skinner, Gilda

Skinner, [rinika Skinner, Irvin Skinner, Brandon

Smith, Felix Augustin, Pauline Augustin, Cynthia Bell,

Rhona Causey, Winnette Lang, Ferdinand Leon, Lydia

Leon, Caroll Denesse, Lucien Denesse, Ashley

Navarre, Doreine Navarre, Melvin Navarre, Sylvia

Byrd, William Byrd, Blair Bundy, Dawn Bundy, Jill

Bundy, John Collins, Sherlene Collins, Janice Collins,

on her own behalf and on behalf of her son, John Henry

Collins, Jamie Collins, on her own behalf and on behalf

of her son, Jacobi Glover, Mitchell Armour, Vanessa

Carter, Kerry Carter, Joshua Billon and his spouse,

Monica Billon, on their own behalf and on behalf of their

minor Children, Isaiah Billon and Monica Billon, Betty

Christy, De-Fean Christy, La-Shawn D. Robinson,

Patricia Granger, on her own behalf and on behalf of

her daughter Tomika Edwards, Charmeine Jefferson,

on her own behalf and on behalf of her children, Lemor

James, Ariel James, Yolanda Jefferson, and Erika

Thornton Chris McCormick, Michele Armour, Monique

Armour, Mitchel] Armour III, Augustine Greenwood

Rosemary Greenwood, on her own behalf an don behalf

of her children, Yasemine and Jasemine Greenwood,

Byrne Sherwood, Linda Morgan, Lokea Morgan,

Denisha Morgan, Shelia Smith, Jacqueline Smith,

James Smit! Jr., Nina Baughn, on her own behalf an

don behalf ci her minor child, Karim Kemp, Karen

Kemp, Erica Kemp, Patricia Green Tanaka Johnson,

Bobby Johnson, Charles Williams, Laura Recasner, on

her own behalf and on be’1alf of her children, Dajohon

vi)

Recasner, Kurshell Recasner and Charleston Recasner,

Agnes Recasner, Charmaine Rhome, Judy Starks,

Insuk Caro d/b/a Wig Fashions and Apolostic Christian

Bookstore, Troylyn Washington, Mercedes

Washington, Shanika Taylor, Marsha Taylor, Erica

Kemp, Karen Kemp, Dawn Bundy, on her own behalf

and on behalf of her minor children, Emanuel Bundy,

Shekinah Bundy, Jane Bundy, and Blair Bundy, Jr.

Roxchell Panika Santee’, on her own behalf and on

behalf of her minor son, Tyree Santee’, Samuel Bourne,

Nicole Bryan, Alton J. Crowden, on his own behalf and

on behalf of his minor children, Cameron Crowden and

Kelli Crowden, Ashley Navarre, Shana Patterson,

Keana Quinn, Niketsa Ramsey, on her own behalf and

on behalf of her minor children, Desmonisha Ramsey,

Kenyel Rochon and Desmond Ramsey, Darylynn

Ramsey, Julie Ramsey, on her own behalf and on behalf

of her minor children, Dalisha Ramsey and Charli

Ramsey, Robert Rhone, Joshua Smith, Cynthia Tibbet,

on her own behalf and on behalf of her children,

Brittany Tibbet, Sidney Tibbet, Chelesa Tibbet, and

Janice Tollins, on her own behalf and on behalf of her

minor son, John Tollins, Glenda Medina, Michele

Elizabeth Omes, Jim Richard Pazos, Avery Scott,

Frank Duncan Macpherson Strachan III, Joshua Dillon

and his spouse, Monica Dillon, on their own behalfs and

on behalf of their minor children, Isaiah Dillon and

Monica Pollard, Donald G. Deaton, Pamela A. Morgan,

Frank Butler, Jr., on his own behalf And on behalf of

his minor children, Frank Butler III, Charles Butler

and Tachmonite Butler, Lorenzo Butler, Alonzo W.

Butler and his spouse, [.aquinta Butler, on their own

behalfs and on behalf of their minor children, Alonzo W.

Butler, Jr., Jasmyn Butler, and Rashaad Butler, Rita

Bailey, Tony Green, Lina Vaughn, William Byrd, Sylvia

vill

Byrd, Ruth Harris, Clifford Harris, Jonathan

Washington, Vicky Michel, Simon Kleindorf, Bertha

Kleindorf, David Kleindorf, Connie Kleindorf, Troylyn

Washington, on her own behalf and on behalf of her

minor child, Dasia Washington, Mercedes Ann

Washington, Roy Junior Washington, Tony Green, Eva

McGee, Levi Johnson, Patricia Johnson, Lequecia

Bunn, on her ewn behalf and on behalf of her minor

child, Jada Gibson, Imelda Johnson, Michae] Johnson

Mulkina Coates, on her own behalf and on behalf of her

minor children, Keshina Coates and Malik Coates,

Benjamin Morgan, Chandra Maxon, on her own behalf

and on behalf of her minor children, Byron Maxon,

Darianne Maxon, Janea Maxon, Willie Maxon, Devante

Maxon, and Chandray Maxon, Marylyn Maxon, on her

own behalf and on behalf of her minor children,

Shancanacia Maxon, Ravanell Maxon, and Robert

Maxon, Lois Torregano, Loisha Breaux, on her own

behalf and on behalf of her minor children, Loishe!l

Williams and Mikayla Breaux, Vanesa Davis, James

Cook, Daniel Davis, Joan A. Miller, Linda Boyd, on her

own behalf and on behalf of her minor children, Caress

Boyd, and Charles Boyd, Elijah Washington, Keineisha

Richard, on her own behalf and on behalf of her minor

children, Marlon Richard, Marcel Richard, and Emyjah

Washington, Anthony Rarnes, Janice Barnes, Shena

Barnes, Falish Barnes, Melanie Barnes, Darryle Lee

Johnson, Sr., Tameko Benjamin, on her own behalf and

on behalf of her minor children, Jovana Benjamin,

Darione Benjamin, Darryle Lee Johnson, Jr., and

Darielle Benjamin, Delilah Milton, Kimmie Ferdinand,

Awiey Ferdinand, Cornell Batiste, James Hollins and

his «.fe, Lakvina Coates, on their own behalf and on

betalf of their minor children, Semaj Hollins, and

Jamaya Hollins, ‘'amaya Coates, Maria Washington, on

her own behalf and on behalf of her minor children,

Janisha Washington, Andrew Washington, Charles

Washington, and Mekhi Washington, Andrew Hill,

Leslie Johnson, on her own behalf and on behalf of her

minor child, Jamay Johnson, Lakeisha Fernandez, on

her own behalf and on behalf of her minor child, Eddie

McGee, Jr., Lessie Johnson, Zelda McKendall,

Ellsworth P. McKendall, Kimberly McKendall, Michael

McKendall, Russell Gardner, Winnette Lang, on her

own behalf and on behalf of her minor children, Kavon

Lang, and Lashanice Jones, Lisa Byrd, on her own

behalf and on behalf of her minor child, Sadzisya Byrd,

Michael Anthony Snipes, Jr., JoAnn Snipes, Michael A.

Snipes, Sr., Garry Bougeois, Cheryl Bernard, Johndra

Patterson, Terrill Morris, Dianne Thompson, Michael

Thompson, Ruby Ann Washington, on her own behalf

an don behalf of her minor children, Shaune Bakewell,

and LaShay Johnson, Victor Moore and his wife,

Pamelyn Morgan Moore, on their own behalfs and on

behalf of their minor children, Victor Lyn Morgan,

Pamelor Morgan, Vicknesha Morgan, and Victoria

Moore, Ruby Ann Washington, on her own behalf and

on behalf of her minor children, Shaune Bakewell, and

LaShay Johnson, David Bealer, Roseann Bealer, Stacy

Bealer, Roland Rodrigue, Cheryl Rodrigue, John Elmer

Smith, Wanda Jean Smith, Robin Marie Smith, Linda

R. Breaux, Larry Robert Reinhardt, Rosa A. Reinhardt

Robert E. Stone, Linda Dufrene, Maria Thecla Eugenia

Albers, New Orleans Montessori School, Inc., Josephine

J. Dupree-Dean, Herbert C. Jackson, Gail Brown, on

her own behalf and on behalf of her minor children,

Aaron Pulliam and Brandon Pulliam, Myron Mack,

Sheila Lewis, Pernell Lewis, Ashanti Lewis, Natasha

Leevis, on her own behalf and on behalf of her minor

children, Natiasha Lewis and Shaila Lewis,

Christoopher Patterson, and his spouse, Linda Johnson,

on their own behalfs and on behalf of their minor

children, Christopher Edward Patterson, Jr. and

Chrisha Patterson, Shanipa Patterson, on her own

behalf and on behalf of her minor children, Sherman

Singleton, Shermont Singleton and Reggineka Rice,

Sharie Johnson, Rachel Johnson, Joan Bundy, Michelle

Renee’ Alexander, Rodney James, on her own behalf

and on behalf of his minor children, Rodney James, Jr.

and Alexis James, Robert Young, Cornelius Young,

Shactha (spelled phonetically) Williams, Rose Marie

Young, Tykesha Arington, on her own behalf and on

behalf of her minor children, Charles Arington, Tyriel

Arington and Braione Arington, Lloyd Joseph, Juanita

Arington, PTC Petroleum & Industrial Supplies, Inc.,

Ronald D. Pitiseci, Kathleen Pitisci, Gerald Anthony

Picquet, Lynn Picquet, Darnell Williams, on her own

behalf and on behalf of her minor child, Chad Williams,

Anthony Barnes, Janice Barnes, F alisha Barnes, Shena

Barnes, Melanie Barnes, Glennis Livas, on her own

behalf and on behalf of her minor child, William FE.

Patterson, Malika Batiste, on her own behalf and on

behalf of her minor niece and nephew, Caliyah Porter

and Aaron Batiste, Christopher Arrington, Noema

Arrington, on her own behalf and on behalf of her minor

children, Eric Arrington and Aaron Arrington, Phillip

Martin, Paulette Biggs, on her own behalf and on behalf

of her minor child, Arkasia McFarland, Aldo Gofredo

Hernandez, Sr., and his spouse, Areli Carlota,

Hernandez, on their own behalf and on behalf of their

minor child, Emmanuel Goffredo Hernandez, Aldo

Gofredo Hernandez, Jr., Lloyd Loup III, Alaina Loup,

Kenneth Arcement, Marlene Arcement, Shanika

Taylor, Marsha Taylor, Erica Kemp, Latonya Caldwell,

on her own behalf and on behalf of her minor children,

Onyell Caldwell.and Charles Dears, Larose Taylor,

Stephan Sawyer, Ms. Eprsy Livas, Brandon Livas,

Clifford Coates, Tammie Chattman, on her own behalf

and on behalf of her minor children, Rudarion

Chattman, Randel Chattman, and Joseph Chattman,

Linzie Brown, Emargie C. Brumfield, Leonard

Brumfield, Brandon Carr, Jessie Arbuthnot, Mary P.

Mingo, Rachel Goldsmith, Gayle LeBlanc, Michael

LeBlanc and his spouse, Larice Taylor LeBlanc, on

their own behalfs and on behalf of their minor child,

Mika Jane LeBlanc, Kim Gaines, on her own behalf and

on behalf of her minor children or grandchildren,

Jamechia Smith, and Diamond Beam, Michael Gaines,

William B. English, Jr., Rosaria English, Hazel

McGuire, Mary H. Johnson, Jerry Matthews, Dennis

Jones, Jr., Raquel Roth, on her own behalf and on

behalf of her minor children, Dennis Jones [II and

Kellie Ann Jones, Linda Roth, Toya Roth, on her own

behalf and on behalf of her minor children, Jerrell

White and Terrell Roth, Courtney Little, on her own

behalf and on behalf of her minor children, Tezanne

Allen, Rashad Little, and Fabian Earls, Jr., Reynell

Santee, and his spouse, Tawana Rayford, on their own

behalfs and on behalf of their minor children, Ranisha

Rayford, Wynell Rayford, and Reynell Rayford, Darron

Meyers, Troylyn Meyers, on her own behalf and on

behalf of her minor children, Keiera Minor and Ashley

Meyers, and on behalf of her grandchild, Daniah

Williams, Roxchell Santee, on her own behalf and on

behalf of her minor child, Tyree Santee, Phillip Lazard,

Marguerite Lazard, Joel Frank, Juliet Johnson, Ronald

Rome, Aunna Johnson, on her own behalf and on behalf

of her minor children, Darryl Johnson and Carlos

Johnson, John Washington, Bernadine Washington,

Wanda Washington, Alexis Washington, Hazel Taylor,

hid

Christina Taylor, Sophia Taylor, on her own behalf and

on behalf of her minor child, Alex Taylor, Yolanda

Washington, on her own behalf and on behalf of her

minor children, Alecia Washington, Alacia Washington

and Tyrell Washington, ‘'yronne Washington, Bruce

Washington, Larry Rowe, Dianne Santee, Toni Santee,

on her own behalf and on behalf of her minor children,

Paris Johnson, Traychell White and Kani Santee,

Reynell Santee and his spouse, Tawana Rayford, on

their own behalf and on behalf of their minor children,

Ranisha Rayford, Wynell Rayford and Reyne!ll

Rayford, Kelly Simon, Robert Santee, Diana Santee, on

her own behalf and on behalf of her minor children,

Timothy Santee, Marvin Santee, Ireal Santee, Tiffany

Santee, Teianna Santee, T'eriane Santee and Niecal

Santee, Wilson Ricks, Brent Smith, Jr., on his own

behalf and on behalf of his minor child, Brerit Smith II],

Michael Gaines, Kim Gaines, on her own behalf and on

behalf of her minor children, Jamechia Smith and

Diamond Beam, Victor Moore and his spouse, Pamelyn

Morgan, on their own behalf and on behalf of their

minor children, Victor Lyn Morgan, Pamelor Morgan,

Vicknesha Morgan and Victoria Moore, Louise Ragas,

Fayann Ragas, Terrill! Morris, Linda Morris, Vanesa

Davis, James Cook, Daniel Davis, Jeanette Williams,

Reverend Curtis Coleman, Sr., on his own behalf and on

behalf of his entire Congregation and the Ephesian

Missionary Baptist Church, Mary P. Mingo, Rachel

Goldsmith, Gayle LeBlanc, Michael LeBlanc, and his

spouse, Larice Taylor LeBlanc, on their own behalf and

on behalf of their minor child, Mika Jane LeBlanc,

Jessie Arbuthnot, Curtis Coleman, Sr., Curtis Coleman,

Jr., Jerome Coleman, Keith Coleman, Carnese

Williams, Raymond Hunter, William Hunter,

Andrew Williams, Eric Williams, Winston Williams,

Paul Mosley, Sr., Paul Mosley, Jr., Brandon Mosley,

Hope Mosely, Shaqual Mosley, Shannel Mosely, Ivan

Mosley, Betty Mosley, Margarite Rochon, Raymond

Hunter, Naomi Hunter, Wilson M. Simmons, Procula D.

Simmons, Tammy Amos, Michael Green, Ronald M.

Farve, on his own behalf and on behalf of his minor

_ daughter, Rhonda Farve, Renee’ Farve, on her own

behalf and on behalf of her minor children, Jalicia

Slick, Darvell Burgess and Dwight Clark, Silas Battie,

Wrenel Hill, Janice Hill, Shinedel Hill, Janet Ausbrook,

on her own behalf and on behalf of her mother, Anna

Ausbrook, and her brother, James Ausbrook, Trenese

Simon, on her own behalf and on behalf of her minor

daughter, Lashal Simon, Jocelyn Causey, Shelita

Simon, on her own behalf and on behalf of her minor

children, Roger Simon, Rogerrikka Simon, Terrell

Simon, Terrell Byrd and Tyrell Byrd Coleen Mooney,

Paul Mosely, Judith Chauppette, Tarita B. Smith, on

her own behalf and on behalf of her minor children,

Byron Smith and Royce Smith, Trey McCrory, Ether

Bullock, on her own behalf and on behalf of her minor

grandson, Tharnell Bullock, Charles Terrell, Evelyn

McDowell, on her own behalf and on behalf of her

deceased mother, Sylvia Haley, and as personal

representative of the deceased, and on behalf of her

minor son, Gino McDowell, her minor grandson, Bishop

Thomas, minor nephew, Lewis Johnson, and minor

niece, Jaleesa Robinson.

acl

TABLE OF CONTENTS

Page

Rats ee AIOE WRT yaa taserscnccvaressannsntnissanerpsenmnsccipemnmeuninn i

ERC E LE TO THE SA INNS hace sev nciees cossaveraceicosicdics niscnioes il

eC FF io cansiets Kecnsthivvesnnsissecalensauniinacapsatetinaaned XV

ee EN AION aii. ssa, dbdteis uvasnsientuediavsaecaibenscopeagmecianimmalaaei j

ar I cceanttrvie beens iaininansektendanssitineaainiiencesscitbaaaiaes 1

RELEVANT PROVISIONS INVOLVED ........0.c.cosssccevesscccssescscscesecs l

PU IIE 4. ocbiis nestninncdahaunaus bikisneenesdaceducd iaancapanttenseveccevcrebaanmen aes 6

REASONS FOR GRANTING THE PETITION. ..............0...cccsessessccees 9

SI oc tsiciicssssuncicccvhoenkasertiokaernebadedesianebieeeeceoiacaaen 31

APPENDIX

CE Ce SI ogc. consscascapeniavindcuaiarseomanaueriaee la

peeerer Cee ko hens a. eee 6a

TABLE OF AUTHORITIES

Page

CASES

ADAMS V. UNITED STATES, 615 F.2D 284 (5TH CIR.

RI ERPRSER AIT FORE SIRE TGP ete Ren ees PRO el ane ee 12

AVERY V. UNITED STATES, 680 F.2D 608 (9TH CIR.

RRP Sy ek, AaRPere se lererte gear eee Ie ac + nO a 13

CHITIMACHA, TRIBE OF LOUISIANA V. HARRY L.

LAWS Co., 690 F.2D 1157, 1163 (STH CIR. 1982)..............006 18

CLARK V. BARNARD, 108 U.S. 436, 2 S.CT. 878 (1883) ........... 27

COLLEGE SAVINGS BANK V. FLORIDA PREPAID POST

SECONDARY EDUCATION EXPENSE BOOK, 527

A serie aniakndilinioddsanvonewnness 27

DUSSOUY V. GULF COAST INVESTMENT CORP., 660

Fe tee Cs i CI cre saesccnenescesvcetinsncccnticdesncncnesvonates 13

ERXLEBEN V. UNITED STATES, 668 F.2D 268 (7TH

eer 11

EXECUTIVE JET AVIATION, INC. V. UNITED STATES,

DOE 0) OU, BEB CTH CIR. 1976) osnsccvcsescvessgssrececssssssssssoceese 12

FERNANDEZ V. PNL ASSET MANAGEMENT

COMPANY LLC, 123 F.3D 241 (6TH CIR. 1997) ................0 27

FOMAN V. DAVIS, 371 U.S. 178 (1962) .......0..cccccccssceseoee 17, 18,19

FORD MOTOR COMPANY V. DEPARTMENT OF

TREASURY OF INDIANA, 323 U.S. 459 (1945) oo. 27

Z0OMEZ V. TOLEDO, 446 U.S. G35 (1980) 2.0.0.0... .cccrncccosorccerrrescees 19

JAMIESON V. SHAW, 772 F.2D 1205, 1208 (FIFTH CIR.

i sal suciniigtinninmgek 19

LAPIDES V. BOARD OF REGENTS OF THE

JINIVERSITY SYSTEM OF GEORGIA, 535 U.S. 613,

ee csleninnontadiemeiovanes 27

LILJEBERG V. HEALTH SERVICES ACQUISITION

Cr A ee eh ciccntrccihntcnniesncetdicdsapsdninssonncanecaconae 11

MARTINEZ V. UNITED STATES, 728 F.2D 694 (5TH

ee ED eisnsscsesick hes coca nc cad anata inte iceanics dacs wince csdosbipsriansecdenis 14

YOUNGBLOOD V. FEDERAL DEPOSIT INSURANCE

CORPORATION, 29 F.3D 225 (5TH CR. 1994) .0........ccccceccsvvees 13

STATUTES

28 U.S.C. 2

28 U.S.C. §

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EE ae ao iloiicevessdorevereresssseverses 2

2B UW BA 1, GE ie citaiseniPanontisegasess ae “A 30

pe EB Se ED 3,8

DS UT Be Be wihaeniiesctsatksinianncsnadivenincecnnecs SE 3, 16, 19

Fea tlidecdivessesitericsseccosccscesessseces 4

Oe Ur attire tr dateresssvensccensenssccceseees 5,16

BG Rap. SB, Fa peed pidbnarionin nt esnanenssonnsssessesvesencsesennssees 5

Fa ie inccrcrtscssssoxeioveessecsonoseysee 5

BE Ur ee eerie ster iivanicresse0se0800.000 passim

Louisiana Civil Code@ Article 1696 .......-.cccccscccconscocssesssccscccseseses 30

RULES

Fick careless teccssesiveress.ccssccesees 18

OTHER AUTHORITIES

Federal Tort Claims Act: Notice of Claim

Requirement, 67 Minnesota Law Review 515 (1982)........ 11

Zillman, Presenting a Claim Under the Federal Tort

Claims

Act, 43 Louisiana Law Review 961 (1983) ............. Ll

]

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Fifth Circuit is reported at 2006 WL

2256995. The opinion of the United States District

Court for the Eastern District of Louisiana is reported

at 2008 WL 2001905.

JURISDICTION

The District Court Order and Reasons, and

Judgment appealed from, were simultaneously issued

on July 19, 2006. A timely Notice of Appeal followed.

The decision of the Court of Appeals was issued on May

9, 2008. This Petition is filed within 90 days thereafter.

This Court has jurisdiction pursuant to 28 U.S.C. 28

U.S.C. §1254(a).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Amendment XIV,

Section I

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or propery,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

United States Constitution, Amendment X]

The judicial power of the United States shall not

be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by citizens of another Stace, or

by citizens or subjects of any foreign State.

28 U.S.C. $144

Whenever a party to any preceeding in a district

court makes and files a sufficient affidavit that »

the judge before whom the matter is pending has

a personal bias or prejudice either against him or

in favor of any adverse party, such judge shall

proceed no further therein, but another judge

shall be assigned to hear such proceeding.

28 U.S.C. §455(a) and (5)

(a) Any justice, judge or magistrate judge of

the United States shall disqualify himself in any

proceeding in which his impartiality might

reasonably be questioned.

(b) He shall also disqualify himself in the

following circumstances:

(1) Where he has a personal bias or

prejudice concerning a party...

28 U.S.C. §$1846(b) (1), Federal Tort Claims Act

... the district courts ... shall have exclusive

jurisdiction of civil actions on claims against the

United States, for money damages, .. . for injury

or loss of property, or personal injury or death

caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or

employment, under circumstances where the

United States, if a private person, would be

hable to the claimant in accordance with the law

of the place where the act or omission occurred.

28 U.S.C. $1367, Supplemental Jurisdiction

Except as provided in subsections (b) and (c) or

as expressly provided otherwise by Federal

statute, in any civil action of which the district

courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over

all other claims that are so related to claims in

the action within such original jurisdiction that

they form part of the same case or controversy

under Article III of the United States

Constitution. Such supplemental jurisdiction

shall include claims that involve the joinder or

intervention of additional parties.

28 U.S.C. $1653, Amendment of Pleadings to

Show Jurisdiction

Defective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate

courts.

Rule 15(a) Federal Rules of Civil Procedure

A party may amend the party’s pleading once as

a matter of course at any time before a

responsive pleading is served or, if the pleading

is one to which no responsive pleading is

permitted and the action has not been placed on

the trial calendar, the party may so amend it at

any time within 20 days after it is served.

Otherwise a party may amend the _ party’s

pleading only by leave of court or by written

consent of the adverse party; and leave shall be

freely given when justice so requires.

28 U.S.C. §2675(a), Federal Tort Claims Act

An action shall not be instituted upon a claim

against the United States for money damages for

injury or loss of property or personal injury or

death caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or

employment, unless the claimant shall have first

presented the claim to the appropriate Federal

agency and his claim shall have been finally

denied by the agency in writing and sent by

certified or registered mail.

42 U.S.C. $1988, Civil Rights Act

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or territory or the District of Columbia,

subject, or causes to be subjected, any citizen of

the United States or any person within the

jurisdiction thereof to other deprivation of any

rights, privileges, or immunities secured by the

constitution and laws, shall be libel to the party

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

other proper proceeding for redress.

46 U.S.C. $740, Admiralty Extension Act

The admiralty and maritime jurisdiction of the

United States shall extend to and include all

cases of damage or injury to person or property,

caused by a _ vessel on navigable’ water,

notwithstanding that such damage or injury be

done or consummated on land.

In any such case suit may be brought in rem or

in personam according to the principles of law

and the rules of practice obtaining in cases

where the injury or damage has been done and

consummated on navigable water: Provided,

That as to any suit against the United States for

damage or injury done or consummated on land

by a vessel on navigable waters, the Public

Vessels Act [46 App. U.S.C. 781 et. seq.] or Suits

in Admiralty Act [46 App. U.S.C. 741 et seq.], as

appropriate, shall constitute the exclusive

remedy for all causes of action arising after June

19, 1948, and for all causes of action where suit

has not been hithered to filed under the Federal

Tort Claims Act: Provided further, That no suit

shall be filed against the United States until

there shall have expired a period of six months

after the claims has been presented in writing to

the Federal agency owning or operating the

vessel causing the injury or damage.

46 U.S.C. $742, Suits in Admiralty Act

In cases where if such vessel were privately

owed or operated, or if such cargo were privately

owned or possessed, or if a private person or

property were involved, a _ proceeding in

admiralty could be maintained, any appropriate

non-jury proceeding in personam may be

brought against the United States or against

such corporation. Such suits shall be brought in

the district court of the United States for the

district in which the parties so suing, or any of

them, reside or have their principal place of

business in the United States, or in which the

vessel or cargo charged with liability is found.

STATEMENT

This is essentially a tort case (although also

involving constitutional torts under 42 U.S.C. §1983)

brought by totally innocent “Victims of KATRINA” as

a result of what has been called “the greatest civil

engineering disaster in history”. Petitioner has alleged

to be a representative of the following classes of people:

A. Survivors of human beings who died as a result

of government’s intentional and negligent

malfeasance, misfeasance and non-feasance prior

to and after Hurricane KATRINA.

B. Citizens and/or residents of the Parish of

Orleans,’ State of Louisiana, who suffered bodily

injury, mental suffering and emotional distress

as a result of government’s intentional and

negligent malfeasance, misfeasance and non-

feasance prior to and _ after Hurricane

KATRINA.

' Petitioner’s original Complaint was later amended to include

residents of the Greater New Orleans Metropolitan Area,

including the Parishes of Jefferson and St. Bernard.

C. Citizens and/or residents of the Parish of

Orleans, State of Louisiana, who suffered loss of

or damage to property as a _ result of

government’s intentional and _ negligent

malfeasance, misfeasance and _ non-feasance,

whether by flood, fire or governmental

sanctioning of urban terrorism. See infra.

D. Citizens and/or residents of the Parish of

Orleans, State of Louisiana, who suffered

environmental damages akin to contamination of

natural resources under the federal and state

legislation which make provision for Natural

Resource Damage Assessments and damages

recoverable under the Oil Pollution Act of 1990,

the Louisiana Oi] Spill Prevention and Recovery

Act, and CERCLA, among others.

Petitioner’s claims for damages included claims

for the following:

Wrongful death;

Bodily injury;

Property loss and/or damage;

Emotional distress and mental anguish;

Economic losses; and

Pollution

all incurred by virtue of the retaining wall and levee

failures, and government’s incompetence, malfeasance

and negligence in preparing for and responding to the

manmade disaster called Hurricane KATRINA.

Predictably, and consistent with the defense

posture of all bodies, entities and individuals joined as

defendants in “Victims of KATRINA” litigation,

namely that “no one is legally responsible to anyone for

anything”, all defendants responded to Petitioner’s

claims by filing Rule 12(b) motions to dismiss on the

pleadings, with the United States of America

challenging the Court’s jurisdiction for failure to

exhaust administrative remedies arguably required

under the Federal Tort Claims Act, and with the State

defendants invoking immunity from being required to

litigate in Federal Court by virtue of the 11"

Amendment to the U.S. Constitution, and claiming

“qualified immunity” as a defense to the claims asserted

under 42 U.S.C. §1983. All non-Federal defendants also

challenged the jurisdiction of the Federal Court to

exercise supplemental jurisdiction over the claims

against them pursuant to 28 U.S.C. $1367.

On July 19, 2006, with briefing on Rule 12

Motions to Dismiss complete, but without entertaining

oral argument, the District Court entered its Order and

Reasons (Record Document No. 788), essentially

dismissing all of plaintiffs’ claims against virtually

every named defendant, simultaneously entering

Judgment pursuant to the provisions of Rule 54(b).

Petitioner filed a timely Notice of Appeal on July

19, 2006.

On May 9, 2008, without entertaining oral

argument, the United States Court of Appeals for the

Fifth Circuit rendered its decision affirming the

District Court, saying:

a) Petitioner's appeal of the dismissal of her

claims against the United States was

interlocutory,’ and would be dismissed.

* Clearly in error, since the District Court Judgment was entered

pursuant to Rule 54(b).

b) Petitioner’s constitutional claims against

State and Lecal governmental entities

were dismissed “for lack of subject matter

jurisdiction and for failure to state an

adequate claim for civil rights violations”.

¢) “The district court properly dismissed

these claims and refused to exercise

supplementa) jurisdiction over the state

law claims”.

The issues for which petitioner seeks review in this

Court fall into the following categories:

1. Petitioner’s claims against the United

States of America;

2. Petitioner’s constitutional-based claims

against non-Federal defendants; and

3. Petitioner’s tort-based claims against non-

Federal defendants.

REASONS FOR GRANTING THE PETITION

There are a number of reasons for granting the

Petition, each (addressed infra), involving departures

from the accepted and usual course of judicial

proceedings in District Courts and in Courts of Appeal,

as to call for an exercise of this Court’s supervisory

power:

a) The integrity of the underlying

litigation is at issue.

The first question presented for review was

framed in the District Court as follows:

“The integrity of this litigation which has been

called into question by virtue of an extra-judicial

source of bias and prejudice, arising out of the

Court’s long-time friendship with Mr. Fayard,

whose professional ethics and _ professional

integrity have been placed at issue in this

litigation as a result of his Membership on

Committees while simultaneously representing

the interests of the State of Louisiana, and

failing to disclose his relationship with the State

to the Court or to other counsel prior to August

29, 2007.” Record Document No. 11317 and

relatea Record Documents.

Amplification on this most serious issue can be

found in Record Document No. 10910 and in the

pleadings filed in Civil Action No. 08-1127 in the United

States District Court for the Eastern District of

Louisiana, and in the Record Documents specifically

idlentified in that civil action.

With “the protection of the integrity and dignity

of the judicial process from any hint or appearance of

bias” being “the palladium of our judicial system”,

Petitioner respectfully submit that that protection

requires the exercise of this Court’s supervisory power

in this case. “The guiding consideration is that the

administration of justice should reasonably appear to ve

disinterested as well as be so in fact.” Liljeberg. v.

Health Services Acquisition Corp., 486 U.S. 847 (1988)

and cases cited therein.

b) The Doctrine of Futility has rendered

“moot” any administrative claim

requirement as a prerequisite to filing

suit against the Federal Government.

Petitioner respectfully submit that the Court

should be guided in addressing the second, third and

fifth “questions presented” by the contents of two (2)

Law Review Articles:

1) Federal Tort Claims Act: Notice of Claim

Requirement, 67 Minnesota Law Review

513 (1982); and

2) Zillman, Presenting a Claim Under the

Federal Tort Claims Act, 43 Louisiana

Law Review 961 (1983).

The axioms developed in the cited Law Review

Articles are summarized as:

1) The FTCA was intended to provide for

“more fair and equitable treatment of

private individuals and claimants when

they deal with the Government.”

2) The statute was “intended to provide a

framework conducive to the

administrative settlement of claims, not to

provide a basis for a regulatory checklist

which, when not fully observed, permits

the termination of claims regardless of

their merits.”

3) “The purpose of the [mandatory

administrative claims procedure] was not

rxleben v. United States, 668 F.2d 268 (7'" Cir. 1981).

moe

to make recovery from the Government

technically more difficult.”

“An individual with a claim against the

United States, therefore, satisfies section

2675’s requirement that “the claimant

shall have first presented the claim to the

appropriate Federal agency’ if the

claimant (1) gives the agency written

notice of his or her claim sufficient to

enable the agency to investigate and (2)

places a value on his or her claims.’

An agency’s demand for anything more

than a written and signed statement

setting out the manner in which the injury

was received, enough details to enable the

agency to begin its own investigation and

a claim for money damages is

unwarranted and unauthorized.’

Section 2675(a) was not intendea to allow

an agency to insist on proof of a claim to

its satisfaction before the claimant

becomes entitled to a day in court. To so

hold would permit federal defendants to

be judge in their own cause by the initial

determination of a claim’s insufficiency.

The result would not be consistent with

the congressional purpose of “providing

for more fair and equitable treatment of

* Adams v. United States, 615 F.2d 284 (5" Cir. 1980), quoting from

Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6"

cir. 1974).

private individuals and claimants when

they deal with the Government.’

7) Agencies were not intended to bar cases

involving difficult issues from federal

court by turning their difficulty against

the claimants.”

8) Federal court power does not depend on

whether a claimant has _ successfully

navigated his or way through the gauntlet

of the administrative settlement process,

which, according to the vagaries of the

claims agent, may touch picayune details,

imponderable matters, or both.”

9) The Fifth Circuit has not required

plaintiffs to specifically enumerate legal

theories of recovery in their

administrative claims.!!

10) The exaltation into a jurisdictional basis

of the non-statutory administrative

requirement of a sum certain in the

administrative claim has been criticized as

beyond the statutory intent and

unnecessarily harsh and unnecessary in

instances, especially where no

administrative purpose is served by

requiring an obviously inflated “sum

certain” where there’ is __ honest

’ Avery _v. United States, 680 F.2d 608 (9 Cir. 1982) and

authorities cited therein.

* bid.

iw Ibid.

'' Youngblood v. Federal Deposit Insurance Corporation, 29 F.3d

225 (5 Cr. 1994).

uncertainty as to the amount of the

claim."

With these axioms in mind, Petitioner

respectfully direct the attention of the Court to the

following facts:

1) The “official” jitigation position of the

United States of America in “Victims of

KATRINA” litigation is that the Federal

Government is absolutely immune from

any and all liability and damages by virtue

of Section 702(c) of the Flood Control Act

of 1928. Alternatively, the “official”

position of the Federal Government is

that the “due care” and “discretionary

function” exceptions to the waiver of

sovereign immunity contained in the

Federal Tort Claims Act immunizes the

Government from liability and damages.

2) Notwithstanding the fact that almost 3

years have elapsed since Hurricane

KATRINA, and _ notwithstanding the

submission of over 350,000 administrative

claims for sums certain, in writing, to the

U.S. Army Corps of Engineers and to the

I’ederal Emergency Management

Agency, not one case has been settled or

compromised by the Federal Government,

and not one penny has been paid to

claimants.

2 Martinez v. United States, 728% F.2d 694 (5™ Cir. 1984) and

authorities cited therein.

3) One of the reasons for the fact that not

one case has been settled or compromised

is the fact that no agency. or

instrumentality of the Federal

Government is equipped to deal with the

sheer volume of claims which have been

asserted.

Petitioner respectfully submit that when a

federal agency has done absolutely nothing in a 3-year

period to competently process, adjust and settle not

even one claim in over 350,000 calls for the exercise of

supervisory power by this Court to except Petitioner

from any administrative claim procedures by virtue of

the Doctrine of Futility.

c) The failure to grant leave for

Petitioner to amend her pleadings

violated the clear provision of Rule

15(a) and constituted an abuse of

discretion.

The fourth question presented involves the

failure to grant leave for Petitioner to amend her

Complaint in order to invoke admiralty and maritime

jurisdiction, and the application of substantive maritime

law, so that the Suits in Admiralty Act would be

applicable to this case. The Suits in Admiralty Act

contains no administrative claim requirement.

Petitioner avers that the failure to permit amendment

of the Complaint violated the clear provisions of Rule

15(a) and jurisprudence from this Court interpreting

Rule 15{a).

The Petitioner was trying to accomplish by way

of her 12‘* Amended Complaint was to expand her

jurisdictional allegations to include the allegation that

admiralty and maritime jurisdiction existed in the hope

that, eventually, they would be given the opportunity

to attempt to persuade the Learned District Judge that

the Suits in Admiralty Act was applicable to

Petitioner’s claims against the United States of

America, so that the administrative claims procedures

of the Federal Tort Claims Act (28 U.S.C. $2671, et

seq.), and the Admiralty Extension Act (46 U.S.C.

$740), were not required as a prerequisite to Petitioner

suing the Goverment.

Rule 15. Amended and Supplemental

Pleadings.

a. Amendments. A party may amend the

party’s pleading once as a matter of

course at any time before responsive

pleading is served . . . Otherwise a party

may amend the party’s pleading only by

leave of Court or by written consent of

the adverse party; and leave shall be

freely given when justice so requires.

(emphasis added).

The District Court and the Court of Appeals also

failed to apply the provisions of 28 U.S.C. §1653 to

Petitioner’s benefit. That statute provides as follows:

§1653. Amendment of pleadings to show

jurisdiction.

Defective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate

courts.

In Foman v. Davis, 371 U.S. 178 (1962), this

Court enunciated the following general standard, which

is to be employed under Rule 15 (a) by District Courts:

If the underlying facts or circumstances relied

upon by a plaintiffs may be a proper subject of

relief, he ought to be afforded an opportunity to

test his claim on the merits. In the absence of

any apparent or declared reason — such as undue

delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue

prejudice to the opposing party by virtue of

allowance of the amendment, futility of

amendment, etc. -— the leave sought should, as

the rules require, be “freely given”. 371 U.S. @

182.

Both the case law and_ the _ Learned

Commentators make clear that “prejudice” to the

opposing party, not the mover’s lack of diligence, is the

crucial factor in determining whether or not to grant

leave to amend a complaint. Wright, Miller & Kane,

Federal Practice and Procedure: Civil Second §1487, p.

613, et seq., and cases cited therein. In the case at bar,

no one ever claimed, much less proved, how Petitioner’s

Motion for Leave to Supplement and Amend would

cause any defendant prejudice.

The Learned Commentators report many

circumstances much more egregious than in the case at

bar where amendments have been allowed:

Quite appropriately, the Courts have not

imposed any arbitrary timing restrictions on a

party’s request for leave to amend and

permission has been granted under Rule 15(a) at

various stages of the litigation: following

discovery; after a pre-trial conference; at a

hearing on a motion to dismiss or for summary

judgment; after a motion to dismiss has been

granted but before the order of dismissal has

been entered; when the cases on the trial

calendar and has been set for a hearing by the

district court; at the beginning, during, and at

the close of trial: after a judgment has been

entered; and even on remand following appeal.”

Wright, Miller & Kane, $1488, p. 652, et seq., and

cases cited therein.

It is respectfully submitted that the facts and

circumstances of this case do not even come “close” to

duplicating the foregoing “egregious” circumstances in

which amendments were allowed.

The law as enunciated in the Fifth Circuit is as

follows: Fed.R.Civ.P. 15(a) permits amendment of a

pleading after a responsive pleading has been served

with leave of court. However, the court should freely

give leave to amend “when justice so requires.” It is

often said that this determination rests in the sound

discretion of the district court. See, e.g., Chitimacha,

Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157,

1168 (5 Cir. 1982), cert. denied, (1983). However, the

Rule “evinces a bias in favor of granting leave.” /d.

(quoting Dussowy v. Gulf Coast Investment Corp., 660

F.2d 594, 597 (5 Cir. 1981)). The policy of the federal

rules is to permit liberal pleading and amendment, thus

facilitating adjudication on the merits while avoiding an

excessive formalism. Dussouy, 660 F.2d at 598, (citing

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 9

L.Ed. 2d 48, 78 S.Ct. 99, 108, 2 T..Ed. 2d 80 (1957)).

Thus, if the district court lacks a “substantial reason” to

deny leave, its discretion “is not broad enough to

permit denial.” /d. Jamieson by and through Jamieson

v. Shaw, 772 F.2d 1205, 1208 (Fifth Cir. 1985).

It is respectfully submitted that, at the very

early stage of the litigation when Petitioner sought

leave to amend, there was no “substantial reason” why

either the District Court or the Court of Appeals should

have denied leave to amend. Petitioner further submits

that this error can be remedied in this Court pursuant

to 28 U.S.C. §1653, which allows Petitioner to cure

“defective allegations of jurisdiction” even in an

appellate court. No party will suffer “prejudice” by

virtue of the proposed amendment. Rather, it was

Petitioner’s case which was prejudiced by denial of

leave to amend.

d) Petitioner adequately stated a cause

of action under 42 U.S.C. §1983.

In the celebrated case of Gomez v. Toledo, 446

U.S. 635 (1980), Justice Marshall, writing for a

unanimous Supreme Court, announced:

“By the plain terms of $1983, two — and only two

-allegations are required to state a cause of

action under the statute. First, the plaintiff

must allege that some person has deprived him

of a “federal right”. Second, he must allege that

the person who has deprived him of that right

acted under color of State or territorial law.”

Petitioner respectfully submit that her

constitutional based allegations against the Governor,

individually, and against the municipal defendants, both

officially and individually, satisfied the requirements

set forth by Justice Marshall in Goniez v. Toledo,

The original handwritten Complaint filed on

behalf of Petitioner on September 19, 2005, specifically

alleged the following facts:

EVIDENCE OF GOVERNOR BLANCO’S AND

MAYOR NAGIN’S INCOMPETENCE AND

VIOLATION, BY MALFEASANCE AND

MISFEASANCE, NEGLIGENCE, GROSS

NEGLIGENCE AND INTENTIONAL

INFLICTION OF EMOTIONAL DISTRESS.

1) The real story is not that the City of New

Orleans was ransacked and its citizens

raped and murdered by illegally armed

urban terrorists, commencing even before

Hurricane KATRINA had moved North

of the City, but the fact that the urban

terrorists had been allowed to live

amongst hard-working, law-abiding,

taxpayers and citizens at all before the

storm. If Mayor Nagin and his appointed

Chief of Police had been doing their jobs

these urban terrorists would have been

disarmed, arrested, tried, convicted and

incarcerated long before the approach or

Hurricane KATRINA to the City of New

Orleans.

D) A competent Governor of a State within

the United States, with full knowledge of

the total breakdown of law and order in

the City of New Orleans, even before

Hurricane KATRINA had moved out of

the City, should have immediately

invoked martial law or invited the United

States Military Forces to do so. Upon

information and belief, Governor Blanco

did not do so, because to have done so

would have required that both she and

Mayor Nagin would have had to (sic)

relinquish all power to the United States

Army Provost Marshall — in other words

the Governor made a political decision

rather than one motivated’ by

government’s primary obligation to its

citizenry, ie, the protection of the

citizenry’s lives, property and quality of

life.

Mayor Nagin, in a now-celebrated radio

interview with local news celebrity

Garland Robinette, demonstrated his

utter ignorance of the term “martial law”,

which he was powerless to invoke.

Further, Mayor Nagin utterly failed in his

duties to his citizenry by failing to order

Chief of Police Compass to invoke posse

comitatus, and to deputize law-abiding

citizens to do whatever was necessary to

keep the peace, pursue and arrest and/or

kill felons, and to restore order to the

City, which was, in effect, turned over to

illegally armed gangs of urban terrorists

for more than one (1) week after the

storm. By the failure of Governor Blanco

to declare martial law, and by the failure

of Mayor Nagin to order his Chief of

Police to invoke posse comitatus,

Governor Blanco and Mayor Nagin in

effect “organized” State and __ jocal

on the City and its law-abiding citizens.

For this they should pay a heavy price.

(emphasis in original).

x oo Ok

Plaintiffs reaver and reiterate that

the above and foregoing examples of the

total incompetence, ete. of certain

defendants is a non-exclusive list, and

plaintiffs specifically reserve the right to

enumerate other examples of

incompetence, etc. once the facts become

better known.

Petitioner expanded her allegations’ of

constitutional deprivations commencing on page 387 of

the original Complaint with the following:

XI.

COUNT 5

Plaintiffs reaver and reiterate their

allegations as aforesaid, and in addition aver that

certain defendants intentionally, negligently and

with malfeasance, misfeasance and non-feasance

failed to protect the public from marauding

bands of convicted felons, and persons who were

“already in the criminal justice system”, illegally

armed and terrorizing law-abiding citizens,

including killing them and destroying property.

XII.

COUNT 6

Plaintiffs reaver and reiterate their

allegations as aforesaid, and in addition aver that

certain defendants intentionally, negligently, and

with malfeasance, misfeasance and non-feasance

failed to safeguard the identification records and

criminal records of convicted sex offenders,

including rapists and pedophiles, and “injected”

these individuals into the refugees at the

Louisiana Superdome and Convention Center,

which refugees included large numbers of young

women and children, with entirely predictable

results.”

Commentators have noted that “In evaluating

the sufficiency of a complaint in a civil rights action, the

crucial questions are whether sufficient facts are

pleaded to deter.nine that the complaint is not frivolous

and to provide the defendants with adequate notice to

frame an answer.” Federal Procedure, Lawyers

Edition §11:256 (1989). Petitioner respectfully submits

that the above-quoted allegations from the original

Complaint satisfy any jurisprudential “requirement”

that a §1983 plaintiff must allege with “a certain level of

specificity” the particular facts of a defendant’s conduct

in the complaint, and that the facts they have pleaded

go far beyond mere “conclusory’ allegations. Petitioner

also respectfully submit that her allegations were more

than sufficient to state causes of action pursuant to 42

U.S.C. §1983, for as the Commentators have also noted:

“",.a court cannot expect a complaint to provide

proof of the plaintiffs’ claims, nor a proffer of all

available evidence. In civil rights cases,

especially class actions, much of the evidence can

be developed only through discovery, and while

plaintiffs may be expected to know the injuries

they allegedly have suffered, it is not reasonable

to expect them to be familiar at the complaint

stage with the full range of the defendants’

practices under challenge. So although a civil

rights complaint which relies on vague

conclusory allegations does not provide fair

notice and will not survive a motion to dismiss,

where sufficient facts are alleged in the

complaint, so that the court is satisfied that the

complaint is not frivolous and that the

defendants have been provided with adequate

notice so that they can answer the complaint,

then the complaint will be deemed sufficient and

will be sustained.” Federal Practice, Lawyers

Edition $11:256 (1989).

Petitioner respectfully submit that her

Complaint is such a complaint.

in terms of the so-called defense of “qualified

immunity”, Federal Procedure, Lawyers Edition (1989)

provides guidance. Section 11:281 of that ‘l'reatise

reflects:

Once the plaintiff has made out a prima

facie case, the burden of going forward with the

evidence shifts to the defendant. For example,

the burden is on the defendant to establish a

qualified immunity defense by showing that its

conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known, that is,

that the defendant was acting within the scope of

its discretionary authority when the aliegedly

wrongful acts occurred. Once the defendant

establishes the existence of such “objective”

good faith, the burden shifts to the plaintiff to

show a lack of good faith. Federal Procedure,

Lawyers Edition (1989) §11:281 and authorities

cited therein.

Petitioner respectfully submit that it was wrong

for the Court of Appeals to say that “Plaintiffs have not

made a sufficiently clear allegations that the defendant

governmental entities and officials violated the

Plaintiffs’ constitutional rights”, and that this Court

should exercise its supervisory power to set the

District Court and the Court of Appeals “right”.

e) The State has waived 11" Amendment

immunity by virtue of its litigating

conduct.

The seventh question presented is:

7) Whether the State of Louisiana, its

branches of government, agencies and

instrumentalities, political subdivisions

and individual department heads have

waived immunity from being required to

litigate claims brought against them in

Federal Court pursuant to the 11"

Amendment to the U.S. Constitution,

including particularly, but without

limitation, waiver “by litigating conduct”

in the Federal forum by voluntarily

invoking the jurisdiction of the United

States District Court for the Eastern

District of Louisiana on multiple occasions

since August 29, 2005.

This Court is respectfully directed to the

following completely voluntary invocations of Federal

jurisdiction by the State of Louisiana since Hurricane

KATRINA:

Civil Action No. 05-4182

Record Document No. 1061

Civil Action No. 06-867€

Record Document Nos. 10, 11, 12,

13, 14, 15, 16, 17, 18, 19, 41,

100, 101. 102, 112, 124, 135,

142, 151, 177 and 180

Civil Action No. 07-5023

Record Document No. 1

Civil Action No. 07-5036

Record Document No. 1

Civil Action No. 07-5040

Record Document No. 1

Civil Action No. 07-5226

Record Document No. 1

Petitioner particularly refer this Court to the

claims asserted by the State of Louisiana against the

United States of America in Civil Action No. 07-5040,

which was filed in the United States District Court for

the Eastern District of Louisiana on August 29, 2007, in

order to assert an affirmative claim on behalf of the

State against the Federal Government in the amount of

$200 billion dollars in property damages allegedly

sustained by the State in connection with the levee and

retaining wall failures during Hurricane KATRINA.

Petitioner respectfully submit that if waiver by

litigating conduct and voluntary invocation of the

jurisdiction of the Federal Court system has not

occurred with respect to the State of Louisiana in this

case, then the Doctrine of Waiver no longer means

anything in American jurisprudence.

Petitioner further respectfully refer this Court

to the following legal authorities:

Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878 (1883)

Ford Motor Company v. Department _ of

Treasury of Indiana, 328 U.S. 459 (1945)

College Savings Bank v. Florida Prepaid Post

Secondary Education Expense Book, 527 U.S.

666 (1999)

Lapides v. Board of Regents of the University

System of Georgia, 535 U.S. 613, 122 S.Ct. 1640

(2002)

Fernandez v. PNL Asset Management Company

LLC, 123 F.3d 241 (5" Cir. 1997)

Gil Seinfeld, “Waiver-in-Litigation: lleventh

Amendment Immunity and the Voluntariness

Question”, 64 Ohio State Law Journal 871 (2002).

Nowak and Rotunda, “Treatise on Constitutional

Law — Substance & Procedure”, $2.12 (4"" Ed.)

Petitioner respectfully submit that even the

possibility of waiver of 11° Amendment immunity by a

State by virtue of its litigating conduct is an issue

which warrants the exercise of this Court’s supervisory

jurisdiction.

Alternatively, Petitioner respectfully submit

that she should have been permitted to conduct

discovery into whether the State of Louisiana may have

waived 11" Amendment immunity from being required

to litigate claims brought against it in Federal Court by

virtue of its having accepted untold billions from the

Federal Government both before and since Hurricanes

KATRINA and RITA. Similarly, Petitioner

respectfully submit that she should have been allowed

to conduct discovery into whether agencies of the

Federal Government, with Congressional authority,

may have abrogated the State’s 11° Amendment

immunity by bestowing untold billions on the State.

f) Even if 11" Amendment immunity was

not waived by the State, failure to

exercise supplemental jurisdiction

over tort claims against the State

constituted an abuse of discretion.

With respect to the 8 and 10" questions

presented, Petitioner respectfully submit that, if the

State has waived 11'° Amendment immunity by virtue

of its litigating conduct, then Petitioner’s tort claims

against the State, et al., were properly brought in

Federal Court. In the alternative, however, Petitioner

avers that the District Court’s the failure to exercise

supplemental jurisdiction over Petitioner’s tort claims

against the State constituted an abuse of discretion.

g) Petitioner’s causes of action for

pollution damages and damages in the

nature of off-set or set-off should not

have been dismissed.

What happened to the City of New Orleans and

Greater Metropolitan Area, in terms of damage to the

environment, rivals the M/T EXXON VALDEZ

casualty. However, in many ways, the environmental

disaster visited on Louisiana is much more serious,

because a much greater land area was affected than in

Prince William Sound. Also, the M/T EXXON VALEZ

case did not result in death or personal injury to human

beings. Nor did it result in the destruction and damage

to homes and businesses of thousands, perhaps

hundreds of thousands, of people. The water which

inundated the City, in some places for months, served

as a medium for the transport of oil and other

petroleum products, human and animal waste, decaying

bodies, toxic chemicals and other hazardous materials ~

to migrate from their points of origin. Whatever was in

several Superfund sites within the City limits also

became “waterborne”, allowing the contents of those

sites to contaminate other parts of the City remote

from the original sites.

Count 9 of Petitioner’s Complaint alleged that

defendant the Governor, individually, the defendant

City and defendant Nagin “negligently, intentionally,

and with malfeasance, misfeasance and non-feasance

caused pollution of the environment of the territory and

atmosphere of the Parish of Orleans, State of Louisiana,

which not only caused damage to plaintiffs and other

persons, firms and corporations similarly situated to

plaintiffs, but which pollution must be contained,

cleaned up, remediated and disposed of - a Herculean

and expensive task.” Complaint, Article XV(9), pp. 43-

44. It is respectfully submitted that Petitioner’s claim

for damages for pollution should not have been

dismissed on a summary basis.

Additionally, in their Eleventh Supplemental

and Amending Complaint filed with leave of Court,

Petitioner specifically pleaded “set-off’ against the

United States of America, claiming recoupment of

amounts which Petitioner have paid, owe, or might in

the future owe, the United States in taxes. More

particularly, Petitioner alleged, by way of the Eleventh

Amendment to their Complaint, the following against

the United States, which claims were perfected with

leave of Court:

XIX XII.

In the alternative, Plaintiffs plead

“compensation” (as that term is used in

Louisiana Civil Code Article 1893, et seq.) and

the “right of recoupment”, as well as “offset” and

“set-off’, against the United States of America,

through its agencies and instrumentalities, the

Department of the Treasury, the I[nternal

Revenue Service and the Social Security

Administration.

28 U.S.C. §1346(¢c) specifically provides that

“t]he jurisdiction conferred by this section includes

jurisdiction of any set-off... or other claim or demand

whatever on the part of the United States against any

plaintiff commencing an action under this section”.

Petitioner read that provision as conferring jurisdiction

over her claims for “compensation”, the “right of

recoupment”, “offset” and “set-off” against the United

States for sums already paid, or to be paid, in Federal

taxes, and respectfully submit that proper judicial

interpretation of the cited federal statute warrants the

exercise of this Court’s supervisory power.

CONCLUSION

For the above and foregoing reasons, Petitioners

respectfully request the issuance of a Writ of Certiorari

to the United States Court of Appeals for the Fifth

Circuit.

Respectfully submitted,

Maureen O’Dwyer

Pro se

5939 Vicksburg Street,

New Orleans, LA 70124;

(504) 484-1053

(any footnotes trail end of each document)

No. 06-30840

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

{

MAUREEN O'DWYER; HAROLD JOSEPH

GAGNET; SALLY EGERTON RICHARDS;

STEPHANIE PORTER, doing business as Interior

Specialties LLC; SHEILA JORDAN JORDAN; ET

AL, Plaintiffs - Appellants

Vv.

UNITED STATES OF AMERICA, through its

agencies & instrumentalities the United States Army

Corps of Engineers and the Federal Emergency

Management Agency (a/k/a FEMA); KATHLEEN

BLANCO, Louisiana State Governor, both individually

& in her elected capacity; LOUISIANA STATE; RAY

NAGIN, Mayor, both individually & in his elected

capacity; NEW ORLEANS CITY; EDDIE COMPASS,

Chief of police, both individually & in his appointed

capacity; EDDIE JORDAN, District Attorney, both

individualiy & in his appointed capacity; JIM HUEY,

President of Orleans Parish Levee Board, both

individually & in his official capacity; ORLEANS

PARISH LEVEE BOARD; RAY NAGIN, Orleans

Parish Sewerage & Water Board, both individually & in

his capacity; CRIM:NAL SHERIFF FOR THE

PARISH OF ORLEANS; CLERK OF COURT,

PARISH OF ORL™ANS, CRIMINAL DISTRICT;

UNIDENTIFIED PARTIES; ORLEANS PARISH

SEWERAG® AND WATER BOARD; AARON

BROUSSARD, individually & in his capacity as

President for the Par.. . of Jefferson; JEFFERSON

PARISH; KIMBERLY W LLIAMSON BUTLER,

Clerk of Court, Orleans Parish Criminal District Court;

EUSTIS ENGINEERING COMPANY INC;

MODJESKI & MASTERS INC; C RAY NAGIN,

Honorable Mayor, sued as Ray Nagin; EDWIN

COMPASS, III, former Superintendent of Police, sued

as Eddie Compass; ORLEANS LEVEE DISTRICT,

Board ef Commissioners, sued as Orleans Parish Levee

Board; ST PAUL FIRE & MARINE INSURANCE

CO; LOUISIANA DEPARTMENT OF

TRANSPORTATION AND DEVELOPMENT;

SEWERAGE AND WATER BOARD OF NEW

ORLEANS; B & K CONSTRUCTION COMPANY

INC; BURK KLEINPETER, INC; CSX

TRANSPORTATION INC; GEOTECH, INC;

PITTMAN CONSTRUCTION CO, INC;

WASHINGTON GROUP INTERNATIONAL INC,

Defendants — Appellees

May 9, 2008, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 322.1

GUVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

Appeals from the United States District Court for the

Eastern District of Louisiana. 2:05-C V-4182.

JUDGES: Before DAVIS and SOUTHWICK, Circuit

Judges, and CLARK, District Judge. *

OPINION

PER CURIAM: **

Hurricane Katrina slammed against parts of the

Louisiana and Mississippi Gulf coasts on August 29,

2005. New Orleans suffered serious flooding. Plaintiffs

filed suit against numerous defendants, including the

United States, the State of Louisiana, and local

governmental and private entities. Plaintiffs sought

payment for personal injury and property damage

caused by the flooding in New Orleans. The essence of

the claims is that the decisions made by governing

officials in all levels of federal, state, and _ local

government caused the Plaintiffs to be exposed to

tragic conditions such as deprivation of food and water

following the storm.

As this litigation developed, a magistrate judge allowed

the Plaintiffs to file numerous amended complaints but

after the eleventh amended complaint, warned that

would be the last unless good cause was shown.

Subsequently, Plaintiffs were not allowed to file a

twelfth amended complaint to assert claims in

admiralty. After the latest amendment was rejected,

those same allegations became the basis of a separate

lawsuit filed by the Plaintiffs. Claims against

governmental entities were then dismissed. Some of

the governmental party defendants were severed and

are not involved in this appeal. See Arcement v.

Broussard, 225 F. App'x 303 (5th Cir. 2007) (affirming

the dismissal of claims against Aaron Broussard and

Jefferson Parish for lack of jurisdiction).

The tort claims against the United States were

dismissed for lack of jurisdiction because Plaintiffs

failed to exhaust administrative remedies. Exhaustion

is required before bringing a Federal Tort Claims Act

suit. Gregory v. Mitchell, 634 F.2d 199, 203-204 (5th Cir.

1981). Proceedings against various private entities

continue in district court. The appeal from the dismissal

of the United States is therefore interlocutory. The

Plaintiffs argue that a statute applies that allows

appeals from interlocutory decrees that resolve the

rights and habilities of parties in admiralty cases. 28

U.S.C. § 1292 (a)(3). The appeal here is from the

dismissal of the right to file a twelfth amended

complaint to add an admiralty claim. The denial of a

motion seeking leave to file this amended complaint

does not resolve rights and liabilities. Indeed, the

claims are now part of a separate lawsuit. The

interlocutory appeal from the denial of the twelfth

amended complaint and the dismissal of the United

States is dismissed.

The constitutional claims against the state and local

governmental entities and their officials were dismissed

for lack of subject matter jurisdiction and for failure to

state an adequate claim for civil rights violations. The

district court declined to exercise supplemental

jurisdiction over the remaining state law claims and

entered a Rule 54(b) judgment. Plaintiffs have not

made a sufficiently clear allegation that the defendant

governmental entities and officials violated the

Plaintiffs’ constitutional rights. See F'reeman v. Gore,

483 F.3d 404, 410 (5th Cir. 2007). The district court

properly dismissed these claims and refused to exercise

supplemental jurisdiction over the state law claims.

We DISMISS the interlocutory appeal and AFFIRM

the dismissal of the claims against the state and local

governments and their officials.

Footnotes

“District Judge of the Eastern District of Texas, sitting

by designation.

**Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published

and is not precedent except under the _ limited

circumstances set forth in 5TH CIR. R. 47.5.4.

CIVIL ACTION NO. 05-4182

SECTION "K"(2) CONS. KATRINA CANAL

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

COLLEEN BERTHELOT, ET AL,

VERSUS

BOH BROTHERS CONSTRUCTION CO., L.L.C.,

ET AL.

PERTAINS TO: O'Dwyer 05-4181

ORDER AND REASONS

Before the Court are the following motions that were

filed in O'Dwyer, et al. v. The United States of

America, et al., C.A. OS-4181:

Doce. 104 Motion to Dismiss for Want of Standing

or, Alternatively Pursuant to FRCP 12(b)(1), FRCP

12(b)(6) and FRCP 11(b)(2) with Incorporated

Memorandum in Support Thereof filed by the City of

New Orleans, the Honorable C. Ray Nagin, Mayor, and

Former Superintendent of Police Edwin Compass, 111!

Doc. 105 Motion to Dismiss Pursuant to F.R.C.P.

12(b)(6) filed by Kimberly Williamson Butler, in her

individual capacity.

Doe. 110 Amended Motion to Dismiss Pursuant to

F.R.C.P, 12(b)(6) filed by Kimberly Williamson Butler,

in her individual and official capacity

Doc. 106 Motion to Dismiss Defendant Governor

Kathleen Blanco

Doc. 107 Motion to Dismiss Defendant State of

Louisiana

Doc. 108 United States' Motion to Dismiss

Doc. 109 Motion to Dismiss on Behalf of Eddie

Jordan, Individually and in his Elected Capacity as the

District Attorney for the Parish of Orleans, State of

Louisiana.

The Court has reviewed the pleadings, memoranda and

the relevant law, and is prepared to address each

motion herein seriatim.

BACKGROUND

The instant suit was filed on September 19, 2006, in the

immediate aftermath of Hurricane Katrina. While it

was initially filed "in proper person" by counsel’, since

its filing, counsel has amended the complaint eleven

times, adding a multitude of individuals and alleging

causes of action that include, inter alia, allegations of

defaleations with respect to the adequacy and

construction of the canals and flood walls that failed in

the wake of Hurricane Katrina, the adequacy of the

evacuation measures taken prior to Hurricane Katrina,

and the adequacy and propriety of the response to the

aftermath of Turricane Katrina. In this one _ suit,

plaintiffs have named as defendants the United States

of America (including the Army Corps of Engineers

("the Corps") and the Federal Emergency Management

Agency ("FEMA"), Kathleen Blanco, both individually

and in her official capacity as Governor of the State of

Louisiana, the State of Louisiana, the City of New

Orleans, Ray Nagin both individually and in his official

capacity, Eddie Compass, both individually and in his

official capacity as Chief of Police, Eddie Jordan, both

individually and in his official capacity as District

Attorney for the City of New Orleans, Jim Huey,

individually and in his official capacity as President of

the Orleans Parish, Orleans Parish Sewerage and

Water Board, Kimberly Williamson Butler, individually

and in her official capacity as Clerk of Court for the

Orleans Parish Criminal District Court, Eustis

Engineering Company, [nc., Modjeski and Master, Inc.,

the Board of Commissioners of the Orleans Levee

District. * Pretermitting the propriety of the joinder of

this number of plaintiffs, defendants and causes of

actions, the Court will address the above-listed motions

to dismiss.

THE COMPLAINT AND AMENDING

COMPLAINTS

The Class Action Complaint begins with a listing of

individual plaintiffs who are not specifically identified

by address or any specific information, and provides for

a number of "groupings" of which this amorphous listing

of individuals claims to be representative. As for the

jurisdictional basis, in Paragraph IV, plaintiffs initially

allege, "This Court is the exclusive court of jurisdiction

over the United States of America. This court has

ancillary or pendant jurisdiction over the remaining

defendants. "! (Doc. 1, Complaint, p. 17). The Complaint

then proceeds with a general diatribe concerning the

alleged defalcations of the defendants in this matter.

(Doc. 1, Complaint, pp. 18-82). Plaintiffs continue by

alleging a number of "legal theories" against public

officials including incompetence, violation of duty and

statute, negligence, gross negligence, malfeasance,

misfeasance, non-feasance, and intentional infliction of

emotional distress. Plaintiffs in later amendments also

contend that the "torts errors and omissions committed

by [these] defendants satisfy the requirements for

excepting from immunity from liability because of

malicious, intentional, willful, outrageous, reckless or

flagrant misconduct. La. Rev. Stat. 9:2798.1(C)(2)." In

addition, plaintiffs contend that the defendants violated

a criminal statute, La. Rev. Stat. 14:134 concerning

malfeasance in office.”

The initial complaint contains "counts" which plaintiffs

maintain contain the gravamen of the specific actions

which are the basis for their complaint. In relevant

part, these "counts" are as follows:°

Count 1 Plaintiffs reaver (sic) and reiterate all of

their allegations as aforesaid, and in addition aver that

certain of the defendants negligently, intentionally, and

with malfeasance, misfeasance and non-feasance, failed

to order the timely evacuation of critical care patients

in hospitals, nursing homes, ete....

Count 2 that certain defendant intentionally,

negligently [both gross and simple in nature], and with

malfeasance, misfeasance and non-feasance failed in

their duty to ensure competent design, construction,

maintenance and inspection of the levee systems for the

Industrial Canal, the London Avenue Canal and the

Seventeenth Street Canal

Count 3 that certain defendants intentionally,

10a

negligently and with malfeasance, misfeasance, and

non-feasance failed to timely stop the flooding

Count 4 that certain defendants intentionally,

negligently and with malfeasance, misfeasance, and

non-feasance failed to secure the water supply to

Orleans Parish causing increased fires.

Count 5 that certain defendants intentionally,

negligently and with malfeasance, misfeasance, and

non-feasance failed to protect the public from

marauding bands of convicted felons and persons who

were ‘already in the criminal justice system", illegally

armed and terrorizing law-abiding citizens, including

killing them and destroying property

Count 6 that certain defendants intentionally,

negligently and with malfeasance, misfeasance, and

non-feasance failed to safeguard the identification

records and criminal records of convicted sex offenders,

including rapists and pedophiles, and "injected" these

individual into the refugees at the Louisiana

Superdome and convention Center

Count 7 that certain defendants intentionally,

negligently and with malfeasance, misfeasance, and

non-feasance failed to safeguard the contents of the

evidence room at Criminal District Court for to Parish

of Orleans ...with the result that evidence was lost

and/or compromised and_ successful prosecution

thwarted.

Count 8 that certain defendants failed to

safeguard the names of identifying prisoners who were

in Orleans Parish prison.

lla

Count 9 that certain defendants intentionally,

negligently and with malfeasance, misfeasance, and

non-feasance caused the pollution of the environment of

the territory and atmosphere of the parish of Orleans.’

(Doc. |, Complaint, pp. 33-45.

In the Fourth Supplemental and Amending Complaint

(Doce. 12), plaintiffs amended the allegations against the

non-United States defendants from simply

supplemental jurisdiction to state original federal

subject matter jurisdiction "since plaintiffs were

deprived of rights to life, property and the pursuit of

happiness, guaranteed by the U.S. Constitution, and

the law, statutes and treaties amendatory thereto, by

state and/or governmental action, giving rise to purely

federal causes of action."

In the Eleventh Supplemental and Amending

Complaint in a Class Action Lawsuit (Doc. 78) plaintiffs

amended Article IV (the jurisdictional allegations) of

the Complaint as follows:

More particularly, this Court has jurisdiction of the

claims herein asserted by virtue of the following, inter

alia:

Original jurisdiction pursuant to the Second’®, Fifth’ and

Fourteen’ (sic) Amendments to the United States

Constitution

Original jurisdiction pursuant to 28 USC § 1331"!

Original jurisdiction pursuant to 28 USC § 1346"

12a

Original jurisdiction pursuant to 28 USC § 2571, et seq’

Original jurisdiction pursuant to Title XI of the Civil

Rights Act!'

Original jurisdiction pursuant to 42 USC § 1983”

Original jurisdiction pursuant to 42 USC § 1985"

Original jurisdiction pursuant to 42 USC § 1986!”

Original jurisdiction pursuant to 42 USC § 1988!"

Original jurisdiction pursuant to the Class Action

Fairness Act, 28 USC § 1332, by virtue of the fact that

the matter in controversy in this civil action exceeds

the sum of $5 million, exclusive of interest and costs.

This Court also has jurisdiction of the claims herein

asserted by virtue of the following environmental

statutes, inter alia, which defendants violated, thus

entitled Plaintiffs to damages from defendants:

The Oil Pollution Ac: of 1990 and precursor legislation

The Comprehetn.. 2 Environmental Response

Compensation and _ Liability Act and_ precursor

legislation

The Federal Water Pollution Control Act The Clean

Water Act

The Clean Air Act

The National Environmental Policy Act The Toxic

Substances Control Act

13a

The Resource Conservation and Recovery Act

The Louisiana Environmental Quality Act

The Louisiana Air Control Law

The Louisiana Water Control Law

The Louisiana Oil Spill Prevention and Response Act

Eleventh Supplemental and Amending Complaint (Doc.

128 at 4-5).

With this litany of alleged bases for jurisdiction, the

Court will first address the propriety of this wholesale

approach to jurisdiction and the actual basis upon which

this Court recognizes that it entertains jurisdiction at

this point in time under Fed. R. Civ. P 12(b)(1). The

Court will then address each individual motion in the

context of Fed. R. Civ. P. 12(b)(6) to the extent there is

a jurisdictional basis for any claims against a specific

defendant. The Court will now outline the legal

parameters of that investigation.

STANDARD OF REVIEW

Rule 12(b)(1) of the Federal Rules of Civil Procedure

allows a party to challenge the subject matter

jurisdiction of the district court to hear a case. The

burden of proof for a Rule 12(b)(1) motion is on the

party asserting jurisdiction. Ramming v. United States,

281 *'.3d 158 (STH Cir. 2001). As the Fifth Circuit has

stated:

When a Rule 12(b)(1) motion is filed in conjunction with

l4a

other Rule 12 motions, the court should consider the

Rule 12(b)(1) jurisdictional attack before addressing

any attack on the merits. Hitt v. City of Pasadena, 561

F.2d 606, 608 (5th Cir. 1977) (per curium). This

requirement prevents a court without jurisdiction from

prematurely dismissing a case with prejudice. Id. The

court's dismissal of a plaintiff's case because the

plaintiff lacks subject matter jurisdiction is not a

determination of the merits and does not prevent the

plaintiff from pursing a claim in a court that does have

jurisdiction. Id.

When a defendant attacks the complaint because it fails

to state a legally cognizable claim, Rule 12(b)(6)

provides the appropriate challenge. The test for

determining the sufficiency of a complaint under Rule

12(b)(6) is that "a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief." Id. citing

Conley v. Gibson, 355 U.S. 41,45-46 (1957). The Fifth

Circuit explained:

Subsumed within the rigorous standard of the Conley

test is the requirement that the plaintiff's complaint be

stated with enough clarity to enable a court or an

opposing party to determine whether a claim is

sufticiently alleged. Elhott v. Foufas, 867 F.2d 877, 880

(5th Cir. 1989). Further, “the plaintiff's complaint is to

be construed in a light most favorable to plaintiff, and

the allegations contained therein are to be taken as

true." Oppenheimer v. Prudential Securities, Inc. 94

F.3d 189,194 (5th Cir.1996). This is consistent with the

well-established policy that the plaintiff be given every

opportunity to state a claim. Hitt, 561 F.2d at 608. In

lda

other words, a motion to dismiss an action for failure to

state a claim"admits the facts alleged in the complaint,

but challenges plaintiff's rights to relief based upon

those facts." TelPhonic Servs., Inc. v. TBS Int'l, Inc.,

975 F.2d 1134, 1137 (5th Cir. 1992). Finally, when

considering a Rule 12(b)(6) motion to dismiss for failure

to state a claim, the district court must examine the

complaint to determine whether the allegations provide

relief on any possible theory. Cinel v. Connick,15 F.3d

1338, 13841 (5th Cir. 1994).

Id. at 161-62."

With these standards in mind, the Court will first

address the complaint and its 11 amendments pursuant

to Fed. R. Civ. P 12(b)(1) to determine whether the

Court has subject matter jurisdiction based on the

allegations of the complaints.

JURISDICTION

Employing the Rule 12(b)(1) standards, the Court finds

the following jurisdictional allegations have no merit.

CAFA Jurisdiction

Plaintiffs' invocation of the Class Action Fairness Act,

(“CAFA") 28 U.S.C. § 1832(d)(2), based on the fact that

the matter in controversy in O'Dwyer exceeds the sum

of $5 million, exclusive of interest and costs, ignores

salient exceptions thereto-where a defendant is sued in

its home state by a class comprised primarily of

plaintiffs from that state, where the case involves a

purely local controversy, and where the primary

defendants are state actors. 28 U.S.C. § 1882(d) (3), (4)

16a

and (5). Subsection 4 mandates a district court decline

jurisdiction:

(A) (1) over a class action in which

(I) greater than two-thirds of the members of all

proposed plaintiff classes in the aggregate are citizens

of the State in which the action was originally filed;

(II) atleast 1 defendant is a defendant

(aa) from whom significant relief is sought by

members of the plaintiff class;

(bb) whose alleged conduct forms a significant basis

for the claims asserted by the proposed plaintiff class;

and

(cc) who is a citizen of the State in which the action

was originally filed; and

(III) principal injuries resulting from the alleged

conduct or any related conduct of each defendant were

incurred in the State in which the action was originally

filed; and

(11) during the 3-year period preceding the filing of

that class action, no other class action has been filed

asserting the same or similar factual allegations against

any of the defendants on behalf of the same or other

persons; or

(B) two-thirds or more of the members of. all

proposed plaintiff classes in the aggregate and the

primary defendants, are citizens of the State in which

17a

the action was originally filed.

Clearly here, more than two-thirds of the proposed

plaintiff classes in the aggregate and _ primary

defendants are citizens of Louisiana, the state in which

this action was filed.

Subsection (3) also provides for discretionary

abstention the contours of which support this Court's

belief that in the interests of justice and looking at the

totality of the circumstances it would decline

jurisdiction (if it were not so mandated under

subsection (4)) since the claims implicate Louisiana

intrastate interests, Louisiana law would apply,

Louisiana has a distinct nexus with class members, the

damages caused and/or sustained were’ within

Louisiana and the primary defendants are all Louisiana

citizens save for the United States. Subsection (5)

further provides that CAFA jurisdiction shall not apply

to any class action in which the primary defendants are

States, State officials or other governmental entities

against whom the district court may be foreclosed from

ordering relief. Thus, there is no CAFA jurisdictional

basis for this suit.

Various Federal Statutes

Plaintiffs’ wholesale list of Jederal jurisdictional

grounds borders on the absurd, and the Court will

address these at this time. Federal courts are duty-

bound to examine the basis of subject matter

jurisdiction. Union Planters Bank National Assoc. v.

Salih, 369 F.3d 457 (5th Cir. 2004) citing Steel Co. v.

Citizens for a Better Env't., 523 U.S. 83, 94-95 (1998).

18a

As this Court has previously noted, as stated in Wright

& Miller, Federal Practice and Procedure, § 1210:

As is true in the case of pleading a federal question

under Section 1331, the entirety of the complaint must

support the jurisdictional allegation in a case based on a

claim arising under a special federal question statute.

Enough should be alleged in the statement of the claim

to show that the action does arise under the statute on

which it purports to be based. Indeed, it is these

statements in the body of the pleading that give the

district court subject matter jurisdiction and not the

mere conclusory reference to or recitation of a federal

statute in the jurisdictional allegations.

Id. at 146.

With this context in mind, the Court will now address

the above-noted jurisdictional listing contained in this

matter and dispose of the blatantly unsupported

allegations. This litany of statutes for which no factual

underpinning is provided will not be allowed to stand;

as such, the Court finds counsel's action herein verging

on sanctionable under Fed. R. Civ. P. 11.

a. The Oil Pollution Act of 1990('OPA"), 33 U.S.C. §

2701

This statute pertains only to the discharge, or

threatened discharge of oil upon navigable waters of

the United States or adjoining shorelines. OPA imposes

liability for the recovery cost and damages that result

from an oil spill on:

... each responsible party for a vessel or a facility from

19a

which oil is discharged, or which poses the substantial

threat of a discharge of oil, into or upon the navigable

water or adjoining shore line or the exclusive economic

zone.

33 U.S.C. § 2701. The statute further requires the all

claims for removal costs or damages shall be presented

first to the responsible party or guarantor of the source.

33 U.S.C. § 2713(a). A claim under OPA is a "request,

made in writing for a sum certain, for compensation for

damages or removal causes or resulting from an

incident." 38 U.S.C. § 2701(3). The presentation of a

claim is a mandatory condition precedent to filing a

private lawsuit under OPA. Boca Cigea Hotel, Inc. v.

Bouchard Trans. Co. Inc. , 51 F.3d 235 (1 1th Cir.1995).

As such, this jurisdictional claim has no merit as this

prerequisite has not been fulfilled. Furthermore, the

statute does not contemplate the harm alleged herein-

damages resulting from a natural disaster and

catastrophic occurrence.

b. The Comprehensive Environmental Response

Compensation and Liability Act ("CERCLA"), 42

U.S.C. § 9601, et seq.

CERCLA's primary purpose is to facilitate the prompt

clean up of hazardous waste sites by placing the

ultimate financial burden on those responsible for

creating the harmful condition at a waste site. Cooper

v. Armstrong Rubber Company, 1989 WL 60338 (S. D.

Miss. 1989). This statute clearly has no bearing on the

factual underpinnings of this suit with respect to any of

the named defendants and shall be dismissed.

C. The Federal Water Pollution Control Act

20a

365 and the Clean Water Act

("FWPCA") 33 U.S.C. § 1

("CWA"), 33 U.S.C. § 1251

There statutes prohibit the discharge of pollutants. To

that end, the CWA esiablishes a permit system and

prohibits any discharge without authorization by

permit. 33 U.S.C. §$ 1311(a); 1342. Cooper, at * 11, n. 2.

A private right of action for citizens is provided for

under the CWA at 83 U.S.C. § 1365(a) to sue for the

violation of an effluent standard or limitation under the

statute.

The (WA requires a 60 day notice of the alleged

violation under the CWA to the Administrator of the

EPA, the state in which the alleged violation occurred,

and to any alleged violator. 383 U.S.C. § 1865(b)(1)(A).

To begin, it appears to this Court that this law is not

designed to address the facts of the case at hand. This

statute addresses on-going pollution concerns, not the

alleged results of catastrophic flooding. Furthermore,

there are no allegations that the required notice has

been provided as has been found to be a condition

precedent to jurisdiction. Cooper, at 4. As such, this

jurisdictional allegation shall be dismissed.

d. The Clean Air Act

Like the WPA, this statue addresses violations of

federal emission standards. It may not be utilized to

address wholly past violations of the Act, and it

contains a sixty-day notice provision like that found in

the WPA. As such, for the same reasons noted above,

this jurisdictional invocation shall be dismissed.

Zla

e, National Environmental Policy Act of 1969, 42

U.S.C. § 4821, et seq.

"lhe fundamental purpose of NEPA is to compel

federal decision makers to consider the environmental

consequences of their actions."’ Atlanta Coalition on the

Transportation Crisis, Ine. v. Atlanta’ Regional

Commission, 599 F.2d 1333 (5th Cir. 1979) citing

McGarity, The Courts, the Agencies, and NEPA

Threshold Issues, 55 Tex. L.Rev. 801, 804 (1977).

Congress did not intend NEPA to apply to state, local,

or private actions hence, the statute speaks only to

"federal agencies" and requires impact statements only

as to "major federal actions. Id. In other words, this

provision concerns the requirement of a federal agency

to issue an environmental impact statement. The Court

is at a loss as to how this statute would provide

jurisdiction over any defendant save a United States

agency and furthermore, has not been enlightened by

plaintiffs' pleadings how this statute was violated.

There are no allegations that an Environmental Impact

Statement was not rendered. Accordingly, this

allegation shall be dismissed.

f. The Toxic Substances Control Act ("TOSCA"), 15

U.S.C. § 2601, et seq.

This statute is designed to regulate the manufacture,

distribution, sale, use and disposal of chemical

substances which present an unreasonable risk of

injury to health or environment. Cooper, at *6 citing 15

U.S.C. § 2605. Again, the 60-day notice is applicable to

this statute. As stated in Cooper:

Additionally, the citizen-suit provision of TOSCA only

22a

permits suits against any person "who is alleged to be in

violation" of the Act. Consistent with the Supreme

Court's interpretation of that phrase in Gwaltney, 108

S. Ct. 376, this action-one for "wholly past" violations-

may not be maintained. See Brewer v. Raven, 680 F'.

Supp. 1176, 1184 (M.D.Tenn. 1988) (relief available only

for "ongoing violations of TOSCA).

Id. Accordingly, the allegations based on TOSCA shall

be dismissed.

g. The Resource Conservation and Recovery Act

("RCRA"), 42 U.S.C. § 6901, et seq.

This statute governs "the disposal of solid waste" and

does allow actions for past violations. The statute

authorizes suit against "any past or present generator,

past or present transporter, past or present owner or

operator of a treatment, storage or disposal facility who

has contributed or is contributing to the past or present

handling, storage, treatment, transportation or disposal

or any solid or hazardous waste which may present an

imminent and substantial endangerment to health or

environment.” 42 U.S.C. § 6972(a)(1)(B). The case at bar

concerns the damages caused by the preparation for

and the aftermath of Hurricane Katrine This statute

simply does not address the kinds of harm alleged in

this suit and shall be dismissed.

h. Louisiana Environmental Laws

Plaintiffs invoke as a basis for jurisdiction "The

Louisiana Environmental Quality Act, the Louisiana

Air Control Act, The Louisiana Water Control Law and

the Louisiana Oil Spill Prevention and Response Act"

23a

without further explication or citation. The Court has

been provided no _ specific factual allegations or

arguments as to how these laws were violated.

Louisiana statutes would not’ provide federal

jurisdiction unless the Court would exercise its

supplemental jurisdiction under 28 U.S.C. § 1367. The

Court will address supplemental jurisdiction at the

conclusion of this opinion.

The Court must remind counsel that as a practicing

attorney, this kind of buckshot pleading will not be

permitted. Counsel is hereby put on notice that any

further barrage of meaningless and _ vituperative

rantings and attachment of newspaper clippings to

pleadings as "proof" is a waste of this Court's resources.

This Court takes its duty to adjudicate the claims of

plaintiffs against defendants arising out of Hurricane

Katrina as a solemn and weighty duty; pleadings filed

in the nature of those by counsel in O'Dwyer belie the

seriousness of this matter and frankly make a mockery

of the Court's duties to justice and application of the

law.

Thus, what remains as a viable basis for federal

question jurisdiction with respect to the parties under

consideration in this opinion are the allegations of

constitutional violations brought against the state

actors pursuant to the Fourteenth Amendment and 42

U.S.C. § 1983, 1985, 1986 and 1988. Thus, the Court will

now discuss in the context of Fed. R. Civ. P. 12(b)(6),

the various motions brought by the City of New

Orleans, Ray Nagin both individually and in his official

capacity, Eddie Compass, both individually and in his

official capacity as Chief of Police, Kimberly Williamson

Butler, individually and in her official capacity as Clerk

24a

of Court for the Orleans Parish Criminal District Court,

Kathleen Blanco, both individually and in her official

capacity as Governor of the State of Louisiana, Eddie

Jordan, both individually and in his official capacity as

District Attorney for the City of New Orleans based on

plaintiffs’ allegations concerning constitutional

violations under the constitutional amendments noted

above and the civil rights statutes noted. The

sufficiency of those allegations are suspect and will be

addressed in the context of the specific motions filed.

Issues concerning jurisdiction and the sufficiency of the

allegations against United States of America, (including

the Army Corps of Engineers ("the Corps") and the

Federal Emergency Management Agency ("FEMA"),

requires a separate analysis and will be addressed

hereafter.

The Court will now address the City defendants’

Motion to Dismiss.

MOTION TO DISMISS FOR WANT OF STANDING

OR, ALTERNATIVELY PURSUANT TO FRCP

12(B)(1), FRCP 12(B)(6) AND FRCP 11(B)(2) WITH

INCORPORATED MEMORANDUM IN SUPPORT

THEREOF FILED BY THE CITY OF NEW

ORLEANS, THE HONORABLE C. RAY NAGIN,

MAYOR, AND FORMER SUPERINTENDENT OF

POLICE EDWIN COMPASS, III

City Defendants, the City of New Orleans ("the City"),

the Honorable C. Ray Nagin ("Mayor Nagin"), and

former Superintendent of Police Edwin Compass, III

contend that plaintiffs have failed to properly establish

standing before the Court. Second, movers maintain

25a

that the complaints fail to aver the basis for the Court's

jurisdiction or allege a_ non-frivolous case or

controversy that arises out of federal law, and therefore

ought to be dismissed pursuant to Fed. R. Civ. P.

12(b)(1). In the alternative, the movers maintain that

plaintiffs have failed to state a cause of action as they

have failed to allege that they were deprived of a right,

privilege, or immunity secured by the Constitution or

laws of the United States making dismissal pursuant to

Fed. R. Civ. P. 12(b)(6) proper. Finally, and in the

alternative, they maintain that the plaintiffs’ claims are

legally frivolous and therefore may be dismissed for

failure to comply with Fed. R. Civ. P. 11 (b)(2) in that

plaintiffs do not supply the Court with a basis for

subject matter jurisdiction and the allegations are

otherwise without legal merit.

Plaintiffs contend that these defendants are liable to

them based on "a number of legal theories against

public officials" including incompetence, violation of

duty and_ statute, negligence, gross negligence,

malfeasance, misfeasance, non-feasance, and intentional

infliction of emotional distress. Plaintiffs further

contend that the "torts errors and omissions committed

by [these] defendants satisfy the requirements for

excepting from immunity from liability because of

malicious, intentional, willful, outrageous, reckless or

flagrant misconduct. La. Rev. Stat. 9:2798.1(C)(2). In

addition, plaintiffs contend that the defendants violated

a criminal statute, La. Rev. Stat. 14:134 concerning

malfeasance in office.”

Section 1983

As the Court has dispensed with the Rule 12(b)(1)

26a

analysis, it will now squarely address the issue of

whether plaintiffs have failed to state a claim under

federal civil rights law against the City of New Orleans,

Ray Nagin both individually and in his official capacity,

Eddie Compass, both individually and in his official

capacity as Chief of Police, arise under 42 U.S.C. § 1988

which provides in pertinent part:

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 any 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.

42 U.S.C. § 1983. This statute is considered the primary

vehicle for brining constitutional claims against local

governments and officials.

As this Court stated in Vanderbrook v. Peck, 2004 WL

944518 (E.D.La. April 28, 2004):

There are two essential elements to a § 1983 claim: (1)

that the conduct complained of was committed by a

person acting under color of state law; and (2) that the

conduct deprived a person of rights, privileges or

immunities secured by the Constitution or laws of the

United States. Parratt v. Taylor, 451 U.S. 527, 535, 1010

S. Ct. 1908, 68 L.Ed. 2d 420 (1981). Furthermore, there

must be " direct causal link between the alleged

constitutional deprivations and the official conduct by

defendants causing the deprivations." Bieros v. Nicola

27a

et al, 839 F. Supp. 332 (E.D.Pa.1993). A § 1988 plainti‘f

must allege the particular facts of the defendant's

conduct in its complaint. Jacquez, 801 F.2d at 793;

Rodriguez v. Avita, 871 F.2d 552, 554 (5th Cir.1989);

Mills v. Criminal District Court, 837 F.2d 677, 678 (5th

Cir. 1988). Conclusory allegations are insufficient for

civil rights cases. Shultea v. Wood, 47 F.3d 1427, 1433

(5th Cir.1995).

Id. at *3. Indeed, a pilaintiffs complaint is

insufficient if it merely contains a litany of conclusory

allegations; the causes of action must be pleaded with a

certain level of specificity. Causey v. Parish of

Tangipahoa, 167 F.Supp.2d 898, 903-04 (E.D.La. 2001).

In Evans v. Department of Housing and Urban

Development, 2004 WL 179193 (E.D.La. Jan. 28, 2004),

this Court explained that in order to establish a prima

facie case under § 1983, plaintiffs must allege either a

constitutional violation or a violation of a federal

statutory right. See 1 Sheldon H. Nahmod, Civili Rights

and Civil Liberties Litigation: The Law of Section 1988,

at 56 (3d ed.1991).

If the plaintiff alleges a violation of a constitutional

right, the plaintiff must prove that the defendant's

conduct was the cause of the constitutional deprivation.

The plaintiff may allege violation of the Fourteenth

Amendment, procedural due process or _ equal

protection, as well as other violations of provisions in

the Bill of Rights that apply to the states. Id. at 56-57.

If the plaintiff alleges a violation of a federal statutory

right, he or she must also prove that the defendant's

conduct was the cause of this statutory deprivation. Id

at 57. Regardless of whether a plaintiff aileges a

28a

constitutional or statutory deprivation, or both, he or

she must demonstrate that the challenged conduct was

undertaken “under color of state law;" meaning that the

individuals acted in an official capacity and in a manner

authorized by state law. Price v. Housing Authority of

New Orleans, 2002 WI 31308421 at *4 (E.D.La. Oct. 11,

2002).

As to the suit against Mayor Nagin in his official

capacity and Police Chief Compass in his official

capacity, a suit against a government official in his

official capacity is treated as a suit against the entity-

here the City of New Orleans. See Lee v. Morial, 2000

WL 726882 at *2 (E.D.La. June 2, 2000). Thus, the

analysis is the same for the City, the Mayor and Police

Chief Compass. Furthermore, no liability exists for

governmental entities based on a vicarious liability or a

respondeat superior theory. Price v. Housing Authority

of New Orleans, 2002 WL 179193 (E.D.La. Oct. 11,

2002) Instead the municipality will be liable only when

an official policy or eusiom inflicts the injury of which

the plaintiff complains. Evans at *6.

Using plaintiffs” counts" as set out above, the following

allegations have been made as the basis for plaintiffs

claims:

(1) failure to order timely evacuation of critical care

patients in hospitals;

(2) failure to ensure competent design, construction,

maintenance and inspection of the levee systems for the

Industrial Canal, the London Avenue Canal and the

Seventeenth Street Canal;

(3) failure to timely stop the flooding in New

29a

Orleans;

(4) failure to secure the water supply to Orleans

Parish causing increased fires;

(5) failure to protect the public from = “urban

terrorists";

(6) failure to safeguard the identification records

and criminal records of convicted sex offenders,

including rapists and pedophiles, and "injected" these

individuals into the refugee population at the Louisiana

Superdome and conven‘ion Center;

(7) failure to safeguard the contents of the evidence

room at Criminal District Court;

(8) failure to safeguard the names of identifying

prisoners who were in Orleans Parish prison; and

(9) failure to prevent the _ pollution of the

environment of the territory.

Simply put, none of these allegations of "wrong-doing”

constitute a violation of the United States Constitution,

its Amendments or any federal statute.”! Plaintiffs have

not identified or articulated with specificity the

particular plaintiffs allegedly harmed or the

constitutional rights impeded by the actions outlined in

the various "counts" of the suit. Furthermore, they have

not alleged with any specificity that the defendants had

an official policy or custom which inflicted injury on any

specific plaintiff. Thus, plaintiffs have failed to state a

cause Of action against the City of New Orleans, Mayor

Nagin in his official capacity and Police Chief Compass

30a

in his official capacity, and the Motion to Dismiss will be

granted in this regard.

Mayor Nagin and Police Chief Compass in their

Individual Capacities

Plaintiffs also alleged those same defalcalions against

Mayor Nagin and Police Chief Compass in their

individual capacity. "Personal capacity suits which seek

to impose ind:vidual liability upon a government officer

for actions taken under color of state law are recognized

under § 1988." Toga Society, Inc. v. Lee, 2004 WL

2357733 (E.D.La. Oct. 20,2004); Hafer v. Meloi, 502 U.S.

21, 25 (1991).

As noted by this Court in Toga:

A state official can be sued in his individual capacity

and be held personally liable under § 1983 if it can be

shown that the official, acting under color of state law,

caused the deprivation of a federal right. Hafer, 502 at

25-31. However, such persons are entitled to assert

personal immunity defenses such as_ objectively

reasonable reliance on existing law or qualified

immunity.

Id. at * 1.

To determine liability, a court must "determine

whether plaintiff has alleged the violation of a

constitutional right. Second, if the plaintiff has alleged a

constitutional violation, the court must decide if the

conduct was objectively reasonable in light of clearly

established law at the time the challenged conduct

occurred." Glen v. City of Tyler, 242 F.3d 307, 313 (Sth

dla

Cir. 2001). While the issue of whether a constitutional

violation has been alleged is considered to be

preliminary, a court may pretermit that issue and

determine whether the alleged violations were ones

clearly established at the time of the occurrence.

Ebanks v. Stalder, 1995 WL 769726 (E.D.La. Dec. 27,

1995) citing Siegert v. Gilley, 500 U.S. 226 (1991). "A

right is 'clearly established' where "the contours of a

right asserted are sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.... If reasonable public officials could differ on

the lawfulness of the defendant's actions, the defendant

is entitled to qualified immunity." Ebanks, at *6 citing

White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992)

(citations omitted).

In the case as bar, the Court has already noted its belief

that no constitutional violation has been alleged.

Furthermore, taking the Seigert approach, plaintiffs

fail to demonstrate how any of the conduct alleged was

not objectively reasonable in light of clearly established

law at the time the challenged conduct occurred. The

City Defendants were faced with a natural disaster of

catastrophic proportions. The nine enumerated

"defalcations" do not constitute conduct that reasonable

public officials would reasonable conceive violated a

clearly establish constitutional right. Only if these

action cross this threshold would this suit survive

qualified immunity against the Mayor and the Police

Chief.

One other dimension of the original complaint bears

discussion. At page 9, Article II(E), plaintiffs contend

that they sustained mental suffering and emotional

distress as a result of the "government's ultra vices acts

32a

such as claimed mandatory evacuation due to exigent

circumstances’ ... and deprivation of food and water to

hungry and thirsty so-called "hold-outs" who remained

in the City because the U.S. Constitution give them the

right to bear arms and protect their property at their

own risk...." Also as plaintiffs have cited to the Fifth

Amendment, the Court must consider whether these

allegations would state a claim for a violation for a

person's right to life, liberty or property.

To begin, the allegations as to which of the plaintiffs

herein were forced to evacuate and who were not are

absent in the actual complaints and amending

complaints.” As to the issue of whether plaintiffs’ rights

"to bear arms and protect their property" were violated,

La. Rev. Stat. 29:277(D) provides that a local disaster

or emergency may be declared by the parish president

or in this instance, the Mayor. Once that power is

utilized, he is empowered under this Louisiana statute

to "direct and compel the evacuation of all or part of the

population from any stricken or threatened area

withing the boundaries of the parish if he deems this

action necessary for mitigation, response or recovery

measure." La. Rev, Stat. 29:277(F)(5). This act does not

require a predeprivation hearing and the law in general

does not require one when the state or here, the

municipality, acts to avert an imminent catastrophe.

Obviously, the Mayor could have believed he had police

powers to protect the public safety by ordering the

evacuation. Thus, a reasonable official in his position

would not understand that what he was doing violated a

right. Assuming he did violate a constitutional right,

which the Court is unprepared to find, the City

defendants would be entitled to qualified immunity.

Miller v. Campbell County Wyoming, 722 F.Supp. 687,

30a

696 (D. Wyoming 1989); Ebanks, at *6 citing White v.

Taylor, 959 F.2d 539, 544 (5th Cir. 1992) (citations

omitted).

As to this second issue-the Fifth Amendment-the court

in Massachusetts Coalition of Citizens with Disabilities

v. Civil Defense Agency and Office of Emergency

Preparedness of the Commonwealth of Mass., 649 F.2d

71 (ist Cir. 1981) found that the Due Process Clause

does not provide the right that an evacuation plan

should guarantee the safety of all residents. "That

clause provides that the states may not deprive their

citizens of life, liberty, or property without due process

of law." In enacting an evacuation plan and_ in

implementing that plan, Mayor Nagin and Police Chief

Compass did not deprive any person of life liberty or

property, ratlier they attempted to do the opposite-

provide some degree of protection against a threat to

life the source of which threat was not the state. Id. at

78. As such, the claims under the Fifth Amendment fail

as well.

Accordingly, pursuant to the City Defendants’ motion,

all constitutional claims brought pursuant to § 1988 and

ils progeny will be dismissed. Thus, the only claims

remaining against these defendants are the

multitudinous state law claims over which the Court

might have jurisdiction under its supplemental

jurisdiction which will be addressed after the other

substantive motions are considered.

MOTION TO DISMISS PURSUANT 'TO F.R.C.P.

12(B)(6) FILED BY KIMBERLY WILLIAMSON

BUTLER, IN HER INDIVIDUAL CAPACITY AND

AMENDED MOTION TO DISMISS PURSUANT TO

34a

F.R.C.P. 12(B)(6) FILED BY KIMBERLY

WILLIAMSON BUTLER, IN HER INDIVIDUAL

AND OFFICIAL CAPACITY

Kimberly Williamson Butler ("Butler") moves the Court

for dismissal of those claims pertaining to her

individually and in her official capacity as Clerk of

Criminal District Court, Parish of Orleans, State of

Louisiana. Plaintiffs have noted that Counts VI, VII

and VIII contain the allegations made against her.

Thus, the Court must examine if a claim has been

stated under federal law for:

(6) failure to safeguard the identification records

and criminal records of convicted sex offenders,

including rapists and pedophiles, and injecting these

individual into the refugees at the Louisiana

Superdome and Convention Center;

(7) failure to safeyuard the contents of the evidence

room at Criminal District Court; and

(8) failure to safeguard the names of (sic) identifying

prisoners who were in Orleans Parish.

Plaintiffs” contend that these actions constitute

criminal malfeasance, over which this Court neither has

jurisdiction, nor about which plaintiffs have any right to

prosecute. In addition plaintiffs seek civil damages for

Butler's "willful failure to fulfill the duties of her office

by failing to safeguard the contents of the evidence

room at Criminal Dir rict Court, and criminal records,

as Hurricane KATRINA approached the New Orleans

metropolitan area." Plaintiffs’ Memorandum in

Opposition to Motion to Dismiss Filed on Behalf of the

35a

Clerk of Criminal Court at 5.

Using the same analysis the Court employed with

respect to the City Defendants, the Court finds that

plaintiffs’ have failed to state a cause of action against

Butler. As to a cause of action against her in her official

capacity, these allegations «do not constitute

constitutional wrongs. As to a cause of action against

her in her individual capacity, even if there were a

constitutional violation, her conduct was objectively

reasonable in light of clearly estaviished law at the time

the challenged conduct occurred. No one had ever

experienced the flooding that occurred as a result of

Katrina and Butler's conduct, while unfortunate, cannot

be found to be actionable. As with any politician, in the

event that the populace believes that an official did not

execute his or her duties properly, the populace votes

that individual out of office. That outcome is that which

occurred here and no liability will lie in this regard.

Thus, the Motion to Dismiss will be granted ir this

regard and the issue of supplemental jurisdiction over

these claims will be addressed at the end of this opinion.

MOTION TO DISMISS DEFENDANT GOVERNOR

KATHLEEN BLANCO AND THE STATE OF

LOUISIANA ”

Governor Kathleen Blanco, individually and in her

official capacity as the Governor of the State of

Louisiana and the State of Louisiana have moved for

the dismissal of this matter with respect to the alleged

violations of 42 U.S. C. § 1983. In plaintiffs’ opposition

to these motions, they cite to Counts 1, 2, 3, 5, and 9 as

being applicable to the Governor and the State. The

Court finds that the motions to dismiss have merit.

Sovereign Immunity

The Court cannot entertain jurisdiction over the

Governor of the State of Louisiana in her official

capacity and the State of Louisiana as they are

protected from suit by the doctrine of sovereign

immunity as found in the Eleventh Amendment of the

Constitution.” By statute, the State of Louisiana has

not waived its sovereign immunity for suits brought in

federal court based on violations of "constitutional, civil

and human rights." Richardson v. Southern University,

118 F.3d 450, 453 (5th Cir. 1997); La. Rev. Stat.

13:5106(A).*’ Thus, the Eleventh Amendment bars suit

against a state entity such as the Governor in her

official capacity and the State of Louisiana itself. As

such, the claims against them shall be dismissed

pursuant to Fed. R. Civ. P. 12(b)(1).

Qualified Immunity

Likewise, for the same reasons noted with respect to

the City defendants, the Court finds that Governor

Blanco in her individual capacity is entitled to qualified

immunity as concerns any cause of action brought

pursuant to 28 U.S.C. § 19838. Clearly, Governor

Blanco's actions were objectively reasonable in light of

clearly established law at the time these alleged

violations occurred. She had to confront a catastrophic

occurrence unlike anything experienced by any state

official before, except perhaps the Great Flood of 1927.

Thus, the Motion to Dismiss all causes of action brought

pursuant to § 1983 shall be granted. Again, as to the

remaining state law claims, these allegations will be

addressed infra.

ova

MOTION TO DISMISS ON BEHALF OF EDDIE

JORDAN, INDIVIDUALLY AND IN HIS

ELECTED CAPACITY AS THE DISTRICT

ATTORNEY FOR THE PARISH OF ORLEANS,

STATE OF LOUISIANA

Eddie Jordan, individually and in his elected capacity as

the District Attorney for the Parish of Orleans, State of

Louisiana seeks dismissal for lack of jurisdiction, lack of

standing and failure to state a cause of action for which

relief can be granted. For the same reasons as set forth

with respect to the City Defendants, the Motion to

Dismiss shall be granted in so far as the Court lacks

subject matter jurisdiction as set forth above and as to

the § 1983 claims, plaintiffs have failed to state a claim

as required under Fed. R. Civ. P. 12(b)(6). It appears

that no memorandum in opposition was filed in this

matter, and that no supplemental briefing dealing with

the Eleventh Amended Complaint was filed.

Nonetheless, the Court will dispose of the federal

eauses of action in this manner and will discuss

supplemental jurisdiction over the state law claims

infra.

UNITED STATES' MOTION TO DISMISS

The United States has moved pursuant to Fed. R. Civ.

P. 12(b)(1) and 12(h)(8) to dismiss plaintiffs’ action for

lack of subject matter jurisdiction. The Court has

reviewed the pleadings and exhibits and finds the

motion to have merit.

In these proceedings, as previously noted, plaintiffs

have amended their complaint eleven times. Leave to

file the twelfth amendment was denied. Plaintiffs have

38a

conclusorily alleged a panoply of federal statutes most

of which have been dismissed v3 this Court in this

opinion. In their initial memorandum, plaintiffs’

primary basis for jurisdiction was the Suits in

Admiralty Act, ("SAA"), 46 U.S.. C. § 742 based on the

anticipated filing of a Twelfth Supplemental and

Amending Complaint. Since the Twelfth Supplemental

and Amending Complaint was not allowed to be filed,

this jurisdictional allegation is not before the Court.

The SAA, if it were applicable here, does not require

the exhaustion of administrative remedies before filing

suit; however, since it is not before the Court, the Court

will not address it. The Court will address this alleged

basis for jurisdiction in the Motion to Dismiss filed tn

Maureen O'Dwyer v. The United States of America,

C.A. No. 06-1885 (Doc. 662 in these consolidated

proceedings).**> Thus, the remaining claims are

fundamentally tort claims which’ require a

determination whether plaintiffs have exhausted their

administrative remedies u.ider the Federal Tort Claim,

28 U.S.C. § 1346(b), 2671 et seq. ("FTCA").

It must be noted that although the allegations of the

primary complaint are not discrete as to the United

States, clearly plaintiffs are alleging that various

offenses and quasi-offenses have been committed by the

United States Government through the acts or

defalcations of the Corps and/or FEMA. It should be

further noted that this action is not a Bivens” claim, as

no individual federal agents or employees have been

named. Lawrence v. St. Bernard Police Dept., 2000 WL

1182615 (E..D.La. Aug. 18, 2000).

Under the FTCA, 28 U.S.C. § 2675(a), an action may

not be instituted against the United States unless the

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claimant first presents the claim to the appropriate

federal agency and the agency has denied the claim in

writing. If the claim is not finally disposed of within six

months, the clairmant may treat the claim as denied and

file suit in federal court. The United States claims that

plaintiffs have not complied with these jurisdictional

prerequisites.

Plaintiffs have made the following submissions to the

United States:

:. On October 12, 2005, plaintiffs submitted a

handwritten letter to the United States Army Corps of

Engineers with copies of plaintiffs' complaints in C. A.

Nos. 05-4181 and 05-4237.

2. On January 10, 2006, plaintiffs sent a Form SF-

95 to the United States Army Corps of Engineers, New

Orleans District, Office of Counsel. This was apparently

received by the agency on January 24, 2006. (Motion to

Dismiss, Doc. 108, Aff. of Angela Gene Drinkwitz, Par.

3) (hereinafter "Aff. of Drinkwitz"). The Court has

examined this form, and it appears to be Mr. O'Dwyer's

personal claim and an attempt to make a claim on behalf

of the other putative class members.

3. January 24, 2006, the Corps also received a

supplemental claim submitted on a Form SF-95, with a

cover letter signed by Mr. O'Dwyer dated January 16,

2006. (Aff. of Drinkwitz, Par. 4).

4. January 31, 2006, the Corps received another

SF-95 purporting to be an administrative claim for Mrs.

—Maureen O'Dwyer. The claim was signed by Mr.

O'Dwyer as her legal representative. No power of

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attorney, contract or other document was forwarded to

signify Mr. O'Dwyer's legal representation of Mrs.

O'Dwyer (Aff. of Drinkwitz, Par. 5).

This suit was filed on September 19, 2005, the United

States Army Corps of Engineers being made defendant

therein. On October 7, 2005, in the Second

Supplemental and Amending Complaint, FEMA was

added. It does not appear that any administrative claim

has been lodged against FEMA to date.

Only two of the named plaintiffs' claims as outlined

above could be regarded as possibly sufficient to place

the Corps on notice as detailed in the statute and the

Code of Federal Regulations. Specifically that would be

the claims by Mr. O'Dwyer, individually, and that of his

sister (without any contract, power of attorney, etc.).

Any purported attempt to make a claim by any other

plaintiff named in this action under the FTCA is

woefully deficient. Thus, the Court pretermits any

discussion as to whether the administrative

prerequisites of suit can be satisfied by the proper

claims of the named class representative, as oppose to

each individual that mizht comprise the putative class.”

In McNeil v. United States, 508 U.S. 106, 133 S. Ct.

1980 (1993), the Supreme Court held that a suit filed

before the six-month interval must be dismissed even

after the six-month period had run. The Court stated:

Every premature filing of an action under the FTCA

imposes some burden on the judicial system and on the

Department of Justice which must assume the defense

of such actions. Although the burden may be slight in

an individual] case, the statute governs the processing of

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a vast multitude of claims. The interest in orderly

administration of a body of litigation is best served by

adherence to the straight - forward statutory command.

Id. at 112, 1984.

This case has involved a plethora of pleadings and

incidental motions, but it has not made substantial

progress. Therefore the Court must grant the United

States' motion and dismiss plaintiffs' suit without

prejudice as against the United States as premature

both as regards the Corps and FEMA. This procedural

dictate is perhaps not the most practical and efficient

method of administering this behemoth before the

Court, but it is what the law requires. Plaintiff(s) must

refile this suit as against the United State, assuming

that each has given appropriate notice to the United

States under the FTCA as set for in the statute and the

regulations. Plaintiffs must bear in mind, that at most,

only two notices as noted above, might meet those

prerequisites.”!

SUPPLEMENTAL JURISDICTION

At this juncture, there remains before the Court in this

matter all of the state law claims alleged against all the

moving parties herein. As noted above, the Court finds

that there is no subject matter jurisdiction for the

majority of the claims alleged, and furthermore, as to

the only extent federal jurisdictional claims-that is the

civil rights claims alleged, plaintiffs have failed to state

a claim against any of the moving defendants. Thus, as

to the remaining state law claims, the court has

jurisdiction under 28 U.S.C. § 13867(a), which allows a

federal court Lo exercise supplemental jurisdiction over

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all other claims that are so related to claims in the

action having criginal jurisdiction that they form the

same case or controversy." 28 U.S.C. 1367(a). Because

the Court has dismissed plaintiffs' federal based claims,

the remaining state law claims have no independent

jurisdictional basis. Thus, as provided by 28 U.S.C. §

1367(c), a court, in its discretion, may decline to

exercise supplemental jurisdiction over a claim when it

has "dismissed all claims over which it has original

jurisdiction. This Court hereby exercises its discretion

and declines to exercise supplemental jurisdiction over

any of the state law claims brought against the moving

defendants. Accordingly,

IT IS ORDERED that the Motion to Dismiss for Want

of Standing or, Alternatively Pursuant to FRCP

12(b)(1), FRCP 12(b)(6) and FRCP 11(b)(2) with

Incorporated Memorandum in Support Thereof filed by

the City of New Orleans, the Honorable C. Ray Nagin,

Mayor, and former Superintendent of Police Edwin

Compass, III (Doc. 104) is GRANTED dismissing for

lack of jurisdiction pursuant to Fed. R. Civ. P. i2(b)(1)

ali federal claims alleged except with respect to the

constitutional or civil rights claims, dismissing with

prejudice for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6) all claims brought pursuant to 42 U.S.C.

§ 1983, et seq., and dismissing without prejudice all

state law claims as this Court has declined to exercise

its supplemental jurisdiction thereto.

IT IS FURTHER ORDERED that the Motion to

Dismiss [Tursuant to F.R.C.P. 12(b)(6) filed by

Kimberly Williamson Butler, in her individual capacity

(Doc. 105) and the Amended Motion to Dismiss

Pursuant to F.R.C.P. 12(b)(6) filed by Kimberly

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Williamson Butler, in her individual and _ official

capacity (Doc. 110) is GRANTED dismissing for lack of

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) all

federal claims alleged except with respect to the

constitutional or civil rights claims, dismissing with

prejudice for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6) all claims brought pursuant to 42 U.S.C.

§ 1983, et seq., and dismissing without prejudice all

state law claims as this Court has declined to exercise

its supplemental jurisdiction thereto.

IT IS FURTHER ORDERED that the Motion to

Dismiss Defendant Governor Kathleen Blanco (Doc.

106) and the Motion to Dismiss Defendant State of

Louisiana (Doc. 107) is GRANTED dismiscing for lack

of iurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) all

federal claims alleged except with respect to the

constitutional or civil rights claims, dismissing with

prejudice for failure to state a claim pursuant to Fed. R.

Civ. P. 12(b)(6) all claims brought pursuant to 42 U.S.C.

§ 1983, et seq., and dismissing without prejudice all

state law claims as this Court has declined to exercise

its supplemental jurisdiction thereto.

IT IS FURTHER ORDERED that the Motion to

Dismiss on Behalf of Eddie Jordan, Individually and in

his Elected Capacity as the District Attorney for the

Parish of Orleans, State of Louisiana (Doc.109) is

GRANTED dismissing for lack of jurisdiction pursuant

to Fed. R. Civ. P. 12(b)(1) all federal claims alleged

except with respect to the constitutional or civil rights

claims, dismissing with prejudice for failure to state a

claim pursuant to Fed. R. Civ. P. 12(b)(6) all claims

brought pursuant to 42 U.S.C. § 1983, et seq., and

dismissing without prejudice all state law claims as this

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Court has declined to exercise its supplemental

jurisdiction thereto.

IT IS FURTHER ORDERED that the United States'

Motion to Dismiss (Doc. 108) is GRANTED dismissing

these claims without prejudice as prematurely brought.

IT IS FURTHER ORDERED that the Motion to

Dismiss filed by Aaron Broussard, individually and in

his official capacity as President for the Parish of

Jefferson and Jefferson Parish is MOOT as these

defendants are no jonger defendants in this suit.

IT IS FURTHER ORDERED finding no just cause for

delay, pursuant to Fed. R. Civ. P. 54(b), judgment shall

be entered in favor of the City of New Orleans, Ray

Nagin both individually and in his official capacity,

Eddie Compass, both individually and in his official

capacity as Chief of Police, Kimberly Williamson

Butler, individually and in her official capacity as Clerk

of Court for the Orleans Parish Criminal District Court,

Kathleen Blanco, both individually and in her official

capacity as Governor of the State of Louisiana, Eddie

Jordan, both individually and in his official capacity as

District Attorney for the City of New Orleans and the

United States and against plaintiffs dismissing their

claims as set forth herein.

New Orleans, Louisiana, this 19th day of Julv, 2006.

Footnotes

‘The City of New Orleans also filed a subsequent

Motion to Dismiss for Failure to State a Claim (Doc.

200) with respect to the following cases: C.A. No. 05-

6327, 05-6073, 05-5237, and 05-6314. The Court will

45a

address this other motion in a subsequent order; this

ruling is intended as an adjudication as to the issues

contained in the O'Dwyer matter.

“Indeed, the initial complaint consists of a 56 page hand-

written document which is practically illegible by virtue

of its meanderings and notations which literally fill the

pages without margins with writings that are

perpendicular to the lines of the paper on which the

pleading is written.

*By order of this Court, the claims against Aaron

Broussard, individually and in his official capacity as

President for the Parish of Jefferson and Jefferson

Parish were severed from this suit and assigned a

separate case number, that is Abel v. Broussard, C.A.

No. 06-1640. A Motion to Dismiss these parties (Doc.

13) had been filed prior to the severance; however,

another Motion to Dismiss (Doc. 15)was filed in Abel

and granted (Doc. 20). Thus, the Motion to Dismiss in

O'Dwyer (Doc. 13) is MOOT.

+ Supplemental jurisdiction pursuant to 28 U.S.C. § 1367

is proper term to use; the Court will discuss this basis

for jurisdiction at the conclusion of this opinion.

These allegations were added in the Eleventh

Supplemental Amending Complaint. (Doc. 78). Neither

ean plaintiffs bring a criminal action, nor can a private

right of action be derived therefrom. Evans v. Dept. of

Housing and Urban Dev. 2004 WL 179193, *5 (E.D.La.

Jan. 28, 2004). Thus, this jurisdictional allegation is

devoid of merit and wili not be addressed again.

‘The First Supplemental and Amending Complaint

contains additional plaintiffs and added the Sewerage

and Water Board. (Doc. 3). The Second Supplemental

and Amending Complaint added FEMA as defendant

and another group of plaintiffs. (Doc. 5). The Third

Supplemental and Amending Complaint added the

46a

Jefferson Parish allegations which as previously noted

were severed and dismissed. (Doc. 7) The Fourth

Supplemental and Amending Complaint added

plaintiffs, a Jefferson Parish classification, an additional

jurisdictional basis discussed infra, and more

vituperative allegations of misfeasance on the part of

Mayor Nagin. (Doc. 12). The fifth Supplemental and

Amending Complaint added additional plaintiffs and

the classification of those injured by the Mississippi

Gulf River Outlet ("MRGO"). (Doe. 16). The Sixth

Supplemental and Amending Complaint broadens the

allegations to include plaintiffs in New Orleans East

and classification for those harmed by the Industrial

Canal in conjunction with MRGO. Williamson and the

Louisiana Department of Transportation and

Development were added by this document. (Doc. 20).

The Seventh Supplemental and Amending Complaint

added more plaintiffs and Eustis Engineering

Company, Inc. and Modjeski and Masters, Inc. as

defendants. (Doc. 23). The Eight Supplemental and

Amending Complaint (Doc. 50), the Ninth

Supplemental and Amending Complaint (Doc.123) and

the Tenth Supplemental and Amending Complaint

(Doc. 124) all simply add new individually named

plaintiffs. The Eleventh Supplemental and Amending

Complaint added plaintiffs, an insurance company in

lieu of "ABC Insurance Company" for the New Orleans

Levee Board, anc more bases for jurisdiction which will

be discussed infra, as well as various other bases for

"compensation" from state defendants. (Doce. 128).

‘ It will be noted that the initial complaint contains an

inordinate amount of irrelevant rhetoric which has no

place in any legal pleading. Counsel for plaintiffs is on

notice that any further diatribes such as:

47a

Plaintiffs long for the days in the City of New Orleans

and in the State of Louisiana when certain behavior

was simply UNACCEPTABLE TO POLITE,

RESPECTFUL, LAW-ABIDING’ CITIZENRY.

Plaintiffs long for the days when the citizenry, black

and white, would not tolerate idleness, drug use or

crime-a land in which children knew their father's last

name, because he lived in a house which he had

acquired through his own industry...

will not be tolerated and may subject him to sanctions.

(Doc.1,Complaint at p. 47.)

‘This amendment provides, "A well regulated Militia,

being necessary to the security of a free State, the right

of the people to keep and bear Arms, shall not be

infringed." U.S. Const. amend. IT.

"This amendment provides:

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or

indiclment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty or property, without due

process of law; nor shall private property be taken for

public use without just compensation. U.S. Const.

amend. V.

This amendment states in relevant part that: "No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

48a

liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws." U.S. Const. amend XIV.

'! This statute provides," The district courts shall have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the Untied States." 28

U.S.C. § 1831.

" This statute provides for the instances where the

district courts of the United States have jurisdiction

over the United States. 28 U.S.C. § 1346 including the

Federal Tort Claims Act and Tucker Act provisions

which will be discussed infra.

“These statutes also provide the procedures to proceed

against the United States under the Federal Tort

Claims Act. 28 USC § 2571.

"This "citation" is overly broad and incomprehensible.

While the Court assumes that this refers to the Civil

Rights Act contained in Title 42 of the United States

Code, such an amorphous citation without more

specificity renders this jurisdictional basis a nullity in

the Court's eyes.

This statute provides a civil action for deprivation of

rights and will be discussed infra.

‘This statute provides a cause of action for a conspiracy

to interfere with civil rights.

‘This statute provides a cause of action for neglecting

to prevent the interference with civil rights.

“This statute provides for federal jurisdiction

attorneys’ fees and expert fees for civil right violations.

"The Court recognizes that the City Defendants have

also moved for dismissal pursuant to Rule 11 of the

Federal Rules of Civil Procedure. However, as will be

discerned from the Court's analysis, this basis need not

be addressed as Rule 12(b)(1) and (6) provide sufficient

grounds for dismissal.

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” Counsel for plaintiffs filed a pleading on March 15,

2006 in response to a Supplemental Memorandum filed

by the City Defendants. In this memorandum, counsel

describes the details of Michael Cormick's forced

evacuation and the alleged arrest of counsel himself. He

then contends that because "boilerplate" arguments

were used in that Supplemental Memorandum that

came from another civil action, that he can do no better

than to incorporate by reference the constitutional

arguments made by counsel in that other action and

"respectfully directs" the Court to those pleadings. Such

arguments and incorporation by reference to pleadings

filed in another case is meaningless, unacceptable and

contrary to the rules and workings of this Court.

“In one of the innumerable supplemental memoranda

filed by counsel, he opines that one Michael Cormick:

.. was forcibly removed from his home in Uptown New

Orleans, at gunpoint, by members of the Louisiana

National Guard, on Tuesday or Wednesday, August 30

or 31, 2005. Mr. Cormick had survived the storm with

his person and his home intact, had plenty of food and

water, and had no need for anyone's assistance, nor did

he request any assistance. Nevertheless, he was

forcibly removed from his home and transported out of

the City, entirely against his will.

At 0005 hours on Tuesday September 20, 2005, within

12-hours of having filed this lawsuit, the undersigned

was a victim of criminal trespass on his property by

members of the Louisiana State Police, who handcuffed

the undersigned with his hands behind his back, and

threw him on the ground, causing injuries. During this

“encounter”, repeated requests for information, such as

"Am I under arrest"; "What are the nature of the

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charges against me, if any?" and "What is going on

here", were met by silence or instructions te "Shut

the ___up". Thereafter the Louisiana State Police

kidnaped the undersigned and turned custody over to

employees of the Louisiana Department of Corrections,

Doc. 157 in O'Dwyer v. United States, C.A. No. 05-4181.

These allegations obviously do not implicate any of the

City defendants considered in this section of this

opinion; rather, it would appear to be against the

Louisiana National Guard and the Louisiana State

Police, neither of which have been named as

defendants.

“ Furthermore, the Court notes that in order to survive

a qualified immunity defense, a plaintiff must articulate

specific conduct and action giving rise to a

constitutional violation. Mahrous v. O'Brien, 1998 WL

166189, *1-2 (E.D.La. April 8, 1998), citing Shultea v.

Wood, 47 F.3d 1427, 1434 (5th Cir.1995). While Shultea

normally requires a court to allow plaintiffs to respond

to the allegations of qualified immunity pursuant to

Fed.R.Civ.P. 7(a), the Court finds that considering the

eleven supplemen‘al and amending complaints and the

numerous oppositions and supplemental oppositions

filed in response to this and the other motions, the

Court will net order nor allow a Shultea response to be

filed with respect to any of the motions filed herein.

“3 Mr. Cormick's and Mr. O'Dwyer's allegations are not

contained in the pleadings and again do not implicate

the defendants under consideration herein as both were

"harmed" by state police and/or the National Guard.

“4 Again, plaintiffs' memorandum in opposition to this

motion contains statements like "It is truly remarkable

that elected and appointed public officials and the

5la

government bodies which they have responsibility for

operating competently seem to think that they bear

absolutely no legal responsibility to anyone for their

criminal malfeasance and_ willful misconduct in

discharging the duties of their offices." Such

editorializing is pointless and — unprofessional,

considering that in a 12 page brief, the Court is graced

with precious little law citation other than a page of

citation from Black's law dictionary, citation to a

criminal statute, and the self same litany of

jurisdictional bases including the Clean Water Act and

the Clean Air Act with respect to the Clerk of Criminal

Court. At page 11 of this filing, counsel cites Judge

Porteous’ denial of a Motion to Dismiss in Berthelot v.

Boh Brothers, C.A. No. 054182 rendered with respect

to James Construction Group, L.L.C. Counsel fails to

comprehend that with respect to federal claims brought

pursuant to civil rights laws, constitutional violations

must be stated in non-conclusory form.

*® While the Department of Transportation for the State

of Louisiana ("DOTD") was added in the Sixth

Amending and Supplemental Complaint, the State of

Louisiana did not include them in this particular

motion, except in a reply memorandum. There is a

separately filed and noticed motion concerning the

DOTD (Doe. 321). As a result, the Court will forego an

analysis with respect to that entity until it addresses

that particular motion.

“The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by citizens of another State, or by citizens or

Subjects of any Foreign State." U.S. Const. amend. XI.

“7 No suit against the state or a state agency or political

subdivision shal] be instituted in any court other than a

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Louisiana state court." La. Rev. Stat. 15:5106(A).

*“ The Court would note nonetheless that it appears

that the SAA is not applicable to these proceedings for

the well-stated reasons set forth by Judge Berrigan in

In re Matter of the Complaint of Ingram Barge Co.,

2006 WL 1539787 (E.D.La. May 25, 2006).

“Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 408 U.S. 388, 91 S. Ct. 1999 (1971).

In re Agent Orange Prod. Liab. Litig., 8181 F.2d 194,

198 (2nd Cir. 1984).

1 Clearly the provisions of the Tucker Act, 28 U.S.C. $

1346(a)(2) do not apply because Mr. O'Dwyer seeks $2

million and his sister seeks $2, 950,000.00.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.