Opinion
No. 99-3496; Section "A" (2)
August 14, 2002
MINUTE ENTRY
Local Rule 7.5E of the Eastern District of Louisiana requires that memoranda in opposition to a motion be filed and a copy be delivered to chambers eight days prior to the date set for hearing of the motion. No memorandum in opposition to defendant Colonel William R. "Rut" Whittington's Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 73), set for hearing on August 14, 2002, has been submitted. Accordingly, this motion is deemed to be unopposed. However, the Court having considered the arguments presented by Colonel Whittington concludes that the motion should be DENIED IN PART AND GRANTED IN PART.
The long and winding factual/procedural background of this case is recited in the Court's August 12, 2002, Minute Entry, in which The Court ruled upon the federal defendants' motion to dismiss, and therefore need not be repeated here.
By way of the instant motion, Colonel Whittington moves to dismiss The claims asserted against him in his individual or personal capacity based upon qualified immunity (claims pursuant to 42 U.S.C. § 1983) and the state's Eleventh Amendment immunity (state law claims). Colonel Whittington is the retired Superintendent of the Louisiana State Police.
The official capacity claims against Colonel Whittington have already been dismissed based upon Eleventh Amendment immunity. Rec. Doc. 26.
On February 28, 2000, Colonel Whittington filed a motion to dismiss (Rec. Doc. 9) nearly identical to the instant motion, in which he challenged the sufficiency of Plaintiffs' allegations in light of the qualified immunity defense. The prior judge concluded that Colonel Whittington was not entitled to a Rule 12(b)(6) dismissal due to any shortcomings in Plaintiffs' allegations. Rec. Doc. 21. Colonel Whittington moved for reconsideration of that ruling but the prior district judge again specifically found that the allegations against Colonel Whittington were sufficient to withstand a Rule 12(b)(6) dismissal. Rec. Doc. 26. Thus, the basis upon which Colonel Whittington currently seeks dismissal has twice been considered by the Court and twice been rejected.
It was in ruling upon Colonel Whittington's motion for reconsideration that Judge Porteous dismissed all of the official capacity claims against Colonel Whittington on Eleventh Amendment grounds. Rec. Doc. 26.
Given that Colonel Whittington has asserted no basis upon which this Court should disturb the rulings of the prior district judge, the law of the case doctrine militates against a Rule 12(b)(6) dismissal of the personal capacity section 1983 claims asserted against Colonel Whittington. Accordingly, the motion is denied as to that relief.
However, the Court's ruling should not be construed as ruling out a properly supported motion for summary judgment on the qualified immunity issue. The Court simply declines to make a third pass on the sufficiency of the allegations contained in the complaint.
Colonel Whittington asserts that Hughes v. Savell, 902 F.2d 376 (5th Cir. 1990) (applying Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)), requires dismissal of all state law claims asserted against him in his personal capacity on Eleventh Amendment grounds. He also asserts that the Louisiana indemnity statutes are irrelevant to the Eleventh Amendment inquiry).
In Hughes, the Fifth Circuit held that the Eleventh Amendment barred an inmate's state law negligence claim against a state orison guard after concluding that the state was the real party in interest given that the appellate court could find no case in which a prison guard had been held individually liable for an inmate attack. 902 F.2d at 378-79. Hughes has been described as "clearly in error as to Louisiana law," Copsey v. Swearingen, 762 F. Supp. 1250, 1255 n. 2 (M.D. La. 1991), rev'd in part on other grounds, 36 F.3d 1336 (5th Cir. 1994), and has not been easy to apply in light of the Reyes decision discussed infra, see Youngblood v. Bender, 2000 WL 943209 (E.D. La. July 7, 2000) (Berrigan, J.).
La. R.S. § 5108.1 requires the state to indemnify its officials, officers, and employees in the executive branch of state government against any claim for damages when the officer is engaged in the duties of his office and is "free of criminal conduct." La. R.S. § 13:5108.1(A)(1), (B)(3) (West Supp. 2002).
In Reyes v. Sazan, 168 F.3d 158, 162 (5th Cir. 1999), the Fifth Circuit clarified that Hughes does not require dismissal of personal capacity state law claims against state officials absent the conclusion that the state would be required to indemnify the official. Given that the Eleventh Amendment is triggered only where the state is the real party in interest, absent indemnification by the state, the Eleventh Amendment does not per se preclude suit against a state official under state law in his personal capacity. Id. Thus, in Reyes, the Fifth Circuit refused to dismiss personal capacity state law claims where a genuine issue of fact existed as to whether the official was entitled to immunity under state law. Id. at 163.
At the time Reyes was decided, Louisiana's indemnification statute limited indemnity to situations where the damages did not result from an "intentional wrongful act or gross negligence" — and whether those requirements were met was factually disputed in Reyes. The message in Reyes seemed to be however, that where state indemnity applied, the Eleventh Amendment would be triggered.
The Reyes court did not overrule Hughes but noted its observation that other circuits do not allow state indemnification to transform a personal capacity claim into an official capacity claim so as to trigger the Eleventh Amendment. Reyes, 168 F.3d at 163.
Since Reyes, the Louisiana Legislature has amended La.R.S. § 5108.1 to require merely that the state official be "free of criminal conduct" while engaged in his employment duties. The sole basis for imposing liability against Colonel Whittington in this lawsuit is that he allegedly failed to properly train and supervise Troopers John Fitzpatrick and Leland Dwight. Original Complaint at ¶ 14; First Amended and Supplemental Complaint at ¶ 63. Because the allegations in this lawsuit do not even approach the realm of criminal conduct, the Court concludes that the state's indemnification of Colonel Whittington under section 5108.1 makes the State of Louisiana the real party in interest on the personal capacity state law claims. Thus, pursuant to Hughes and Reyes, the state law claims asserted against Colonel Whittington are barred by the Eleventh Amendment.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 73) filed by defendant Colonel William R. "Rut" Whittington should be and is hereby DENIED IN PART AND GRANTED IN PART. The motion is DENIED as to the personal capacity section 1983 claims. The motion is GRANTED as to the personal capacity state law claims, and those claims are DISMISSED as barred by the Eleventh Amendment.