Opinion
Civil Action No: 04-2314 Section: "J" (4).
December 6, 2004
ORDER AND REASONS
Before the Court are the following motions: defendant Richard Stalder's Motion to Dismiss based upon qualified immunity (Rec. Doc. 2); defendant Joseph Spino's Motion to Dismiss Conspiracy Claims (Rec. Doc. 3); and the State of Louisiana's Motion to Dismiss based upon 11th Amendment immunity (Rec. Doc. 7). Plaintiffs oppose the motions. The motions, set for hearing on November 24, 2004, are before the Court on briefs without oral argument. Following a recitation of background facts, the motions are discussed below in turn.
Factual Background
The following facts are taken from plaintiffs' complaint, and for the purposes of the motions to dismiss now before the Court are accepted as true.
Plaintiff Jason J. Washington, Jr. was arrested on February 14, 2003 in Orleans Parish for possession of marijuana. He was held in Orleans Parish Prison ("OPP") from the date of his arrest until a bench trial on April 15, 2003. At the trial, he was found guilty and sentenced to 60 days with credit for time served. Nonetheless, he remained imprisoned in OPP until August 19, 2003.
Following the trial, Jason Washington's mother, plaintiff Julia Washington, made multiple inquiries concerning his delayed release. She was informed that his continued confinement was due to a parole hold imposed by defendant Narissa Cole, a parole officer in the Sate of Louisiana Department of Corrections ("DOC"), related to a prior conviction of Jason Washington. However, Jason Washington was not on parole or probation at the time of his February, 2003 arrest, and thus the arrest could not have been a parole violation.
Further inquiries resulted in Julia Washington being told by Narissa Cole that Jason Washington could remain in jail for the rest of his life for all she cared, and that he would not be released until Cole approved and ordered it. Allegedly, Officer Cole also made certain misrepresentations that resulted in Jason Washington's continued detention. Plaintiffs also allege that Parole Superintendent Joseph Spino knew of Julia Washington's inquiries, and the responses of Officer Narissa Cole, and took no action. In addition, plaintiffs allege that defendant Richard Stalder's failure to act amounts to an official policy or custom of the State of Louisiana DOC, and that Stalder's failure to act and failure to properly train and supervise Cole and Spino caused the constitutional deprivations complained of by plaintiffs.
I. Richard Stalder's Motion to Dismiss
Stalder is the Secretary of the Louisiana Department of Public Safety and Corrections. He has moved for dismissal under Federal Rules 12(b)(2) and 12(b)(6), arguing that he is entitled to qualified immunity from suit. Alternatively, he asks the Court to order plaintiffs to file a Schultea Reply.
Having reviewed the plaintiffs' complaint, the Court finds that plaintiffs have not alleged facts with sufficient particularity for the Court to determine whether Stalder is entitled to qualified immunity or not. The Court also notes that the record reveals that Stalder has not filed an answer raising the defense of qualified immunity, so a Schultea reply is not appropriate. Rather, given these circumstances, the Court will deny Stalder's motion as premature, and grant plaintiffs twenty days from entry of this order to file a supplemental and amending complaint containing allegations which, if true, would establish 1983 liability on the part of Stalder. Following the filing of any amended complaint, defendant Stalder may re-urge his motion to dismiss if appropriate. Failure to file an amending complaint within the twenty day time frame will result in dismissal of the claims against Stalder.
A reply presupposes an answer has been filed. For this reason, some courts have suggested that "while the affirmative defense of qualified immunity was previously permitted to be brought to the Court's attention via a Rule 12(b)(6) motion to dismiss, Schultea v. Wood . . . now requires a defendant to assert such immunity via the filing of an answer." Johnson v. Anderson, 2004 WL 1908212, *1 (N.D. Tex. Aug. 25, 2004). TheJohnson Court also noted the Supreme Court's Gomez andSiegert decisions which held that qualified immunity is a defense which the defendant must plead. Id. at n. 1 citingSchultea, 47 F.3d at 1431-33; Gomez v. Toledo, 446 U.S. 635 (1980); Siegert v. Gilley, 500 U.S. 226, 231 (1991).
II. Joseph Spino's Motion to Dismiss Conspiracy Claims
"Plaintiffs who assert conspiracy claims under civil rights statutes must plead the operative facts upon which their claim is based. Bald allegations that a conspiracy existed are insufficient." Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). In this case, plaintiffs have alleged in a conclusory fashion that Cole and Spino had an agreement with one another to illegally confine Jason Washington. Complaint, ¶ 46. However, no operative facts implicating Spino have been alleged, and the conspiracy allegations against Spino are therefore insufficient. Thus, the Court will also deny Spino's motion as premature, and plaintiffs are granted twenty days from entry of this order to file a supplemental and amending complaint containing allegations in support of the conspiracy claim against Spino, after which Spino's motion to dismiss may be re-urged. Failure to file an amending complaint within the twenty day time frame will result in dismissal of the claims against Stalder.
III. State of Louisiana's Motion to Dismiss
With respect to the State's motion to dismiss, the Court finds the motion well-founded.
The Eleventh Amendment bars actions brought against a state in federal court by its own citizens or citizens of another state, absent consent, waiver, or abrogation of the state's sovereign immunity. U.S. CONST. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The State of Louisiana has not consented to be sued in the instant suit; Louisiana has not waived its immunity to this suit, La.Rev.Stat. 13:5106(A), and Section 1983 (upon which plaintiffs' claims are based) does not abrogate Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332 (1979). Therefore, plaintiffs' suit against the State of Louisiana is barred, and the State is entitled to dismissal.
Accordingly,
IT IS ORDERED that plaintiffs shall file any supplemental and amending complaint to cure the defects discussed herein within twenty days of entry of this order, failing which the claims against Stalder and the conspiracy claims against Spino shall be dismissed;
IT IS FURTHER ORDERED that defendant Richard Stalder's Motion to Dismiss based upon qualified immunity (Rec. Doc. 2) is DENIED as premature, to be re-urged if appropriate following the filing of any amended complaint;
IT IS FURTHER ORDERED that defendant Joseph Spino's Motion to Dismiss Conspiracy Claims (Rec. Doc. 3) is DENIED as premature, to be re-urged if appropriate following the filing of any amended complaint;
IT IS FURTHER ORDERED that the State of Louisiana's Motion to Dismiss based upon 11th Amendment immunity is GRANTED, and plaintiffs' claims against the State are hereby DISMISSED.