Arce v. La. State

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Citation306 F.Supp.3d 897
Docket NumberCIVIL ACTION No. 16–14003
Parties Nelson ARCE et al. v. LOUISIANA State et al.
Decision Date16 November 2017

Andrew David Bizer, Garret S. Dereus, Marc P. Florman, Bizer Law Firm, LLC, New Orleans, LA, Brittany Shrader, Andrew Rozynski, Eric Baum, Eisenberg & Baum, LLP, New York, NY, for Nelson Arce et al.

Dennis J. Phayer, Elizabeth A. Doubleday, Burglass & Tankersley, L.L.C., Daniel Rault Martiny, Jeffrey David Martiny, Martiny & Associates, Metairie, LA, James Bryan Mullaly, Mullaly & Associates, New Orleans, LA, for Louisiana State et al.




When Nelson and Lazaro Arce decided to challenge the Louisiana criminal justice system's treatment of the deaf, the Court doubts that they anticipated having to navigate through two of the murkiest waters in American law: federalism and separation of powers. Yet this case raises weighty questions about the federal government's authority to provide private citizens with the power to haul a State into federal court without its consent, and about the powers of executive branch agencies to authoritatively interpret federal statutes—and thus requires nothing less than a deep plunge into both pools.

The State of Louisiana, through the Department of Public Safety and Corrections ("Louisiana"), moves for dismissal of Lazaro Arce's claims against it on the ground that neither Title II of the Americans with Disabilities Act ("Title II") nor § 504 of the Rehabilitation Act of 1973 ("§ 504") provides a cause of action based on associational discrimination.1 Louisiana also requests dismissal of plaintiffs' Title II claim on behalf of Nelson as barred by sovereign immunity—a request that the Court construes as a motion to dismiss for lack of subject matter jurisdiction.2 See Cantu Serv., Inc. v. Roberie , 535 Fed.Appx. 342, 346 n.3 (5th Cir. 2013). Plaintiffs oppose both moves.3

After considering the parties' submissions and the applicable law, the Court concludes that Lazaro's claims against Louisiana warrant dismissal and that plaintiffs' Title II claim on behalf of Nelson may proceed.


According to plaintiffs, Nelson Arce ("Nelson") was a deaf individual whose "express, preferred, and most effective means of communication" was American Sign Language ("ASL").4 Nelson's proficiency in written English was allegedly "limited."5 Lazaro Arce ("Lazaro") is Nelson's father.6

On February 9, 2015, Judge Michael Mentz of the Twenty Fourth Judicial District Court in Jefferson Parish7 sentenced Nelson to two years of active probation and two years of inactive probation for a drug-related offense.8 As a condition of his probation, Judge Mentz ordered Nelson to enter and complete a Louisiana-approved in-house substance abuse treatment program, and required Nelson to meet regularly with his probation officer.9

Plaintiffs allege that Nelson's probation officer was aware that Nelson required a sign language interpreter to effectively communicate, but never provided an ASL interpreter during her meetings with Nelson.10 Despite Nelson and Lazaro's alleged "repeated requests" for a qualified interpreter—one who could translate legal terminology and concepts11 —the probation officer relied on Lazaro to interpret for Nelson.12

Because his probation officer did not provide a qualified interpreter at their meetings, Nelson was allegedly unaware of the full terms and conditions of his probation. Thus, he did not know that "leaving [Louisiana] to attend drug treatment as ordered by [Judge Mentz] was a violation of his probation."13

When Nelson's probation officer learned that Nelson had enrolled in a California-based in-patient drug treatment program, she filed a motion to revoke Nelson's probation.14 Judge Mentz granted the motion and sentenced Nelson to 90 days in the Jefferson Parish Correction Center ("JPCC").15 Nelson was then incarcerated at JPCC from December 8, 2015, until March 7, 2016, during which time JPCC inmates were allegedly entitled to two thirty-minute telephone conversations per day.16 JPCC did not have video phones, but did have a teletypewriter ("TTY"),17 which is a device that enables deaf individuals to communicate by telephone.18

According to plaintiffs, JPCC officials either denied Nelson access to the TTY machine or provided him access only once per day on a number of occasions.19 All the while, other JPCC inmates regularly received two thirty-minute telephone conversations per day.20

Further, JPCC officials allegedly penalized Nelson twice during his incarceration for violating the rules contained in "The Inmate Handbook" ("Handbook"), which details the behavioral expectations for inmates incarcerated at JPCC.21 Despite an alleged request by Lazaro that a qualified interpreter communicate the Handbook's contents to Nelson in ASL, Nelson never received an ASL interpretation of the Handbook and thus did not understand the Handbook's rules and regulations.22 Plaintiffs allege that Nelson never learned which rule he violated on one of the occasions that he was punished.23

Nelson was released from JPCC on March 7, 2016, and resumed meeting with his probation officer.24 Nelson's probation officer continued to attempt to communicate with Nelson either through Lazaro's interpretations or written English.25 The probation officer allegedly suggested that it was Nelson's responsibility to secure a qualified interpreter for their meetings if he wanted one.26

In response to these events, Nelson and Lazaro brought this lawsuit against numerous defendants, including Louisiana, alleging violations of Title II and § 504, and seeking both injunctive relief and money damages. Since Nelson and Lazaro's initiation of the case, the Court has dismissed the claims against Jefferson Parish,27 as well as the claims for injunctive relief.28 Moreover, in light of Nelson's death on May 9, 2017,29 the Court permitted Ana Christine Shelton ("Shelton") to be substituted in Nelson's place in her capacity as the natural tutrix of Nelson's two surviving minor children and as the administratrix of Nelson's estate.30


Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an action where the court lacks subject matter jurisdiction over the action. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss. , 143 F.3d 1006, 1010 (5th Cir. 1998).

Any party may object to the court's subject matter jurisdiction "at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). So too may the court raise the issue on its own initiative. Id. Indeed, the court has an "independent obligation" to ensure in every case that subject matter jurisdiction exists. Hertz Corp. v. Friend , 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). If the court determines that subject matter jurisdiction over an action is lacking, then the court must dismiss the action. Arbaugh , 546 U.S. at 514, 126 S.Ct. 1235 ; see also Fed. R. Civ. P. 12(h)(3).

A court may dismiss an action for lack of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County , 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981) ). Once the defendant has questioned the court's subject matter jurisdiction, the plaintiff bears the burden of "proving by a preponderance of the evidence that the trial court does" possess the requisite jurisdiction to hear the case. Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981).

Where "a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). After all, "[f]or a court to pronounce upon [the merits] when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 101–02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).


Under Rule 12(c) of the Federal Rules of Civil Procedure, a party may move for judgment on the pleadings once the pleadings are closed, as long as the party moves "early enough not to delay trial." "A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6)." Doe v. MySpace, Inc. , 528 F.3d 413, 418 (5th Cir. 2008) ; see also Guidry v. Am. Pub. Life Ins. Co. , 512 F.3d 177, 180 (5th Cir. 2007) (applying Rule 12(b)(6) case law in the Rule 12(c) context).

Thus, Rule 12(c) —like Rule 12(b)(6) —permits a court to dismiss a complaint, or any part of it, where a plaintiff has not set forth well-pleaded factual allegations that would entitle him to relief. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's factual allegations must "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. In other words, a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

A facially plausible claim is one where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the well-pleaded...

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