Opinion
Civil Action No. 99-1567, Section "T"(4).
October 4, 2000.
ORDER AND REASONS
Before the Court are motions by the Defendants, Attorney General Richard P. Ieyoub ("Ieyoub"), the State of Louisiana, and District Attorney, Harry F. Connick ("Connick"), to dismiss the Plaintiff's claim pursuant to FED. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. Additionally before the Court are motions by the Plaintiff, Charles Treece ("Treece"), to amend his original complaint and to obtain a prison transfer. The Court, having studied the memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised in the premises and ready to rule.
I. BACKGROUND
On July 6, 1994, Treece, was arrested in Gulfport, Mississippi, and charged with bank robbery. After trial, the Orleans Parish Criminal District Court convicted Treece on five counts of armed robbery and sentenced Treece to thirty-five years in prison. Treece is now serving time at the Dixon Correctional Institute in Jackson, Louisiana. Treece alleges that at the time of his arrest he had in his possession property, money, papers, and an automobile that the New Orleans Police Department improperly seized without due process of law. Moreover, Treece asserts that his wife owns the properties seized.
Due to the alleged wrongful seizure by the New Orleans Police Department, Treece filed a lawsuit naming the State of Louisiana, Attorney General Richard P. Ieyoub, District Attorney Harry Connick, and Warren Spears as defendants pursuant to 18 U.S.C. § 1961, et seq. Treece claims that all the Defendants are liable to him for treble damages for the alleged wrongful seizure of Treece's money and property without due process. The defendants argue that the complaint fails to state a claim upon which relief may be granted.
These statutes are referred to as the Racketeer Influenced and Corrupt Organizations Act ("RICO").
II. SUMMARY OF LAW
Law on Motions Under FED. R. Civ. P. 12(b)(6)
A motion to dismiss pursuant to FED. R. Civ. P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). A complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FED. R. Civ. P. 12(b)(6) "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." Conley v. Gibson, 355 U.S. 41, 45-46, (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard in the following manner: "The question . . . is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
III. ARGUMENT OF THE PARTIES
Argument of Charles Treece
Currently, there are no opposition motions from Treece for any of the motions contained herein. However, this Court, out of the abundance of care, will rely on arguments filed by Treece in previous motions. Treece claims that the Defendant, Ieyoub, is the "supreme legal power" in the state of Louisiana; therefore, Ieyoub can not personally seek immunity from violations of Constitutional rights pursuant to the Fourteenth Amendment to the United States Constitution. Furthermore, Treece contends that Ieyoub is liable for a RICO violation under 18 U.S.C. § 1964 for allegedly transporting Treece's property across state lines without court authority. Treece alleges that the State of Louisiana can not use the 11th Amendment to protect its fiscal integrity. Moreover, Treece argues that public policy should not allow the doctrine of sovereign immunity to apply to state employees.
Treece states that under 32 U.S.C. § 1996 an order for forfeiture may be entered before sentencing, but the order must provide the Defendant with notice and a reasonable opportunity to be heard. Treece alleges that he did not receive notice of an order of forfeiture nor was he given a reasonable opportunity to be heard on the issue of his seized property. In order for his case to be heard, Treece requests a trial by jury and denial of Ieyoub's motion to dismiss.
Argument of Richard Ieyoub
Ieyoub contends that even were the Court to accept Treece's allegations that the "State" and/or the Attorney General brought the Plaintiff's property across state lines without Court authority and that the enterprise is the State of Louisiana and/or the Attorney General of the State of Louisiana, the Plaintiff would still fail to satisfy the remaining elements to state a cause of action under the RICO statutes. According to Ieyoub, Treece fails to establish a pattern of racketeering activity. Therefore, any claims by the Plaintiff that the State of Louisiana and/or the Attorney General violated the RICO statutes are without merit.
In addition to arguing that the Plaintiff has failed to state a claim for which relief can be granted under the RICO statutes, Ieyoub avers that Treece's claims against the State of Louisiana and the Attorney General in his official capacity are barred by the Eleventh Amendment to the United States Constitution. Ieyoub argues that in order to file a claim against a state or state agency, either Congress must have abrogated the state's immunity or the state must have expressly waived its immunity to suit in federal court. Ieyoub claims that Treece has not shown that such an abrogation or waiver exists. Thus, the claims against the State of Louisiana and the Attorney General in his official capacity must be dismissed.
Argument of District Attorney Harry Connick
Connick claims that Treece's complaint fails to mention any allegations against Connick. Moreover, Connick contends that Treece has never alleged that Connick or any of his assistants acted in accordance with an established custom or policy in illegally seizing his property, or that Connick has failed to prevent any employees of the District Attorney's Office from violating the Plaintiff's constitutional rights. Connick argues that since Treece failed to assert that there was a policy or custom used to infringe on the Plaintiff's constitutional rights, his claims should be dismissed.
The United States Supreme Court has held that no action will lie against a prosecuting attorney for his conduct in connection with initiating and pursuing a criminal prosecution and/or in presenting the state's case against one charged with a criminal violation. See Imbler v. Pachtman, 424 U.S. 493 (1976). Connick states that Imbler would defeat any claim that Treece has against Connick in his individual capacity.
IV. LEGAL ANALYSIS
There are no motions of opposition from Treece on any of the Defendants' motions. Therefore, this court will rely on arguments filed in previous motions by Treece because those arguments are related to the motions presently before this Court.
RICO Claim
In order to prove a violation of 18 U.S.C. § 1962(c) a plaintiff must show (1) that an enterprise existed that affected interstate commerce; (2) that the defendant was associated with the enterprise; (3) that the defendant participated in the conduct of the enterprise's affairs; and (4) that the participation was through a "pattern of racketeering activity."R.A.G.S. Couture. Inc. v. Hyatt, 774 F.2d 1350, 1352 (5th Cir. 1985). An enterprise includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. 18 U.S.C. § 1961(4). "A pattern of racketeering activity" requires at least two acts of racketeering activity. 18 U.S.C. § 1961(5).
"Racketeering activity" is defined as:
(A) any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code; (C) any act which is indictable under ( 29 U.S.C. § 186 or 501(c)); (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States; (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, or (F) any act which is under the Immigration and Nationality Act, (§§ 274, 277, or 278) if the act indictable under such section of such Act was committed for the purpose of financial gain. 18 U.S.C. § 1961(1)
§§ 201, 224, 471-473, 659, 664, 891-894, 1028-1029, 1084, 1341, 1343, 1344, 1425, 1426, 1427, 1461-1465, 1503, 1510, 1511, 1512, 1513, 1542, 1543, 1544, 1546, 1581-1588, 1951-1958, 2251, 2251A, 2252, 2260, 2312, 2313, 2314, 2315, 2318, 2319, 2319A, 2320, 2321, 2341-2346, 2421-24.
In order for Treece to satisfy the RICO requirements mentioned above, Treece must identify a pattern of racketeering activity that occurred between the State of Louisiana, Ieyoub, and Treece. Treece only mentions one incident in which his property was allegedly taken across state lines without his permission. Since a pattern of racketeering activity requires at least two acts of racketeering activity, Treece fails to satisfy the elements required for a violation of the RICO statutes. Therefore, Treece's claims against the State of Louisiana and Ieyoub for violating the RICO statutes are deficient.
Eleventh Amendment Claim
The Eleventh Amendment to the United States Constitution provides:
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.
The Eleventh Amendment bars any claims brought against a state or state agency unless Congress has abrogated the state's immunity or the state has expressly waived its immunity to suit in federal court. Pennhurst St. Sch. Hosp. v. Halderman, 465 U.S. 89, 100(1984). Congress must make its intention to abrogate the states' sovereign immunity unmistakably clear in the language of the statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). Congress has not unequivocally expressed its intention to abrogate the states' sovereign immunity from claims brought pursuant to RICO. Gaines v. Texas Tech University, 965 F. Supp. 886 (N.D. Tx 1997) citing (Bair v. Krug, 853 F.2d 672, 674-675 (9th Cir. 1988)); Molina v. New York, 956 F. Supp. 257, 260 (E.D.N.Y. 1995) (dicta); McMaster v. Minnesota, 819 F. Supp. 1429, 1434 (D. Minn. 1993) aff'd. 30 F.3d 976 (8th Cit. 1994).
Treece provides no case law or evidence that a waiver exists allowing for a suit against the State of Louisiana. Thus, the claims against the State of Louisiana are barred by the Eleventh Amendment. Furthermore, Treece provides no evidence that Ieyoub violated his constitutional rights or that Ieyoub was involved in the removal of his property across state lines. Thus, Treece's claim against Ieyoub is denied.
District Attorney Harry Connick Claim
In Hudson v. City of New Orleans, 174 F.3d 677, 691 (5th Cir. 1999), the Court of Appeals for the Fifth Circuit determined that the Orleans Parish District Attorney's Office is not an arm of the State entitled to Eleventh Amendment immunity; therefore, the district attorney is still considered a "person" who can be sued in his official capacity under 42 U.S.C. § 1983 ("Section 1983") for actions in furtherance of alleged violations against of a plaintiff's civil rights. However, in order to hold a municipality or a local government unit liable under Section 1983 for the misconduct of one of its employees, plaintiff must allege that an official policy or custom was a cause in fact of the deprivation of rights. Spiller v. City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997). In order to satisfy the cause in fact requirement, the plaintiff must allege that the custom or policy served as the moving force behind the constitutional violation at issue or that his injuries resulted from the execution of the official custom or policy. Id.
Treece fails to show this Court that Connick or any of his agents acted in accordance with a certain custom or policy of the District Attorney's Office in violating his constitutional rights. Treece simply names Connick as a defendant in this lawsuit. Thus, Treece's claim fails to state a cause of action against Connick. Furthermore, following the rationale set inImbler, Connick cannot be liable personally for conduct in connection with initiating and pursuing a criminal prosecution. Thus, Treece's claim against Connick in an individual capacity is moot.
Treece's Motion for Transfer to a Federal Prison
Treece has filed a motion for an immediate transfer to a federal prison and to amend his complaint to add the Department of Corrections as a defendant. Treece argues that he was subjected to adverse action and confinement in isolation after prison officials received notice of Treece's suit. Therefore, Treece feels his life is in danger due to the retaliatory behavior of the prison officials.
Traditionally, courts have been extremely hesitant to place restraints on prison authorities in matters of internal prison administration, including administrative transfer of prison inmates. United States et. al. v. Henderson, 526 F.2d 889, 894 (5th Cir. 1976) citing Krist v. Smith, 439 F.2d 146, (5th Cir. 1971); O'Brien v. Blackwell, 421 F.2d 844, (5th Cir. 1970) (censorship of prisoner mail). Even though a serious disadvantage may accompany even an administrative transfer, the practical necessities of prison administration require that the administrative decision to transfer an inmate remain within the sound discretion of prison authorities. See Henderson, 526 F.2d at 896. Therefore, this Court will defer to the prison authorities with respect to the transfer status of Treece.
Accordingly,
IT IS ORDERED that the Motions to Dismiss claims against the State of Louisiana and Attorney General Richard Ieyoub (Docs. 57,58) are hereby GRANTED.
IT IS FURTHER ORDERED that the Motion to dismiss claims against the District Attorney Harry Connick (Doc. 52) is hereby GRANTED.
IT IS FURTHER ORDERED that the Motion to amend the complaint adding the Department of Corrections (Doc. 62) is hereby DENIED.
IT IS FURTHER ORDERED that the Motion requesting a prison transfer (Doc. 62) is hereby DENIED.