Avila v. Long (In re Avila)

• Decision Date: 28 August 2020
• Docket Number: Adversary No. 19-4019-pwb,Case No. 18-42114-pwb
• Citation: 621 B.R. 53
• Parties: IN RE: Aldo F. AVILA, Debtor. Aldo F. Avila, Plaintiff, v. Amanda N. Townsend Long and John P. Batson, Defendants.
• Court: U.S. Bankruptcy Court — Northern District of Georgia

621 B.R. 53

IN RE: Aldo F. AVILA, Debtor.

Aldo F. Avila, Plaintiff,

v.Amanda N. Townsend Long and John P. Batson, Defendants.

Case No. 18-42114-pwb

Adversary No. 19-4019-pwb

United States Bankruptcy Court, N.D. Georgia, Rome Division.

Signed August 28, 2020

Jill S. Salter, W. Jeremy Salter, Salter & Salter, PC, Rome, GA, for Plaintiff.

Jennifer Kelley McKay, The Law Office of Jennifer K. McKay, LLC, Rome, GA, for Defendants.

John P. Batson, Augusta, GA, pro se.

ORDER ON MOTION FOR SUMMARY JUDGMENT [9]

Paul W. Bonapfel, U.S. Bankruptcy Court Judge

Aldo F. Avila, the chapter 13 debtor, had sex with Amanda N. Townsend Long while he was a parole officer and she was a parolee. Mr. Avila pled guilty on September 12, 2017, to violation of O.C.G.A. § 16-6-5.1(b)(2),¹ which makes it a felony for a parole officer to have sexual contact with a parolee.

On July 30, 2018, Ms. Long filed a lawsuit in the District Court against Mr. Avila and others.² Her complaint alleges that Mr. Avila abused his supervisory authority as a parole officer and coerced her into having sex, thereby giving rise to claims under 42 U.S.C. § 1983 for deprivation of her Fourteenth Amendment liberty interests under color of state law. She also asserts claims under Georgia tort law.

Mr. Avila filed his chapter 13 bankruptcy case on September 10, 2018, and the District Court stayed Ms. Long's action against Mr. Avila only.

In this adversary proceeding, Mr. Avila seeks a determination that any liability to Ms. Long is not excepted from discharge.³ Ms. Long asserts that her claim is not dischargeable because it is for damages as a result of willful or malicious injury.

Ms. Long in her motion for summary judgment [Doc. No. 9] seeks dismissal on jurisdictional grounds or entry of judgment that the debt is excepted from discharge because Mr. Avila's guilty plea establishes that he acted willfully and maliciously. Mr. Avila contends that the sex was consensual such that Ms. Long did not suffer damages from willful or malicious injury. If this dispute of fact is material, the Court cannot grant summary judgment to Ms. Long.

After addressing jurisdictional matters, the Court will address whether Mr. Avila's conviction establishes as a matter of law that he acted willfully or maliciously, even if Ms. Long consented.

I. Jurisdiction

Mr. Avila asserts that this Court has the authority to hear and determine this proceeding as a "core proceeding" under 28 U.S.C. § 157(b)(2)(I). Ms. Long seeks its dismissal on the ground that this Court lacks jurisdiction to determine dischargeability of the debt on Constitutional grounds. In general, she asserts that she is entitled to determination of the issues by an Article III judge.⁴

The District Court has jurisdiction over this proceeding under 28 U.S.C. § 1334(b). This bankruptcy judge has authority to hear it under 28 U.S.C. § 157(a) by reference from the District Court. LR 83.7, NDGa.

As a proceeding to determine the dischargeability of a debt, it is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Because it is a core proceeding, this Court has the statutory authority to hear and determine it under 28 U.S.C. § 157(b)(1).

The fact that this proceeding is a core proceeding, however, does not necessarily mean that this Court has the Constitutional authority to determine it. Stern v. Marshall , 564, U.S. 462 (2011). When a bankruptcy court lacks Constitutional authority to determine a proceeding, however, the remedy is not dismissal for lack of jurisdiction. Instead, the bankruptcy court may hear the matter and issue proposed findings of fact and conclusions of law for de novo review by the District Court under 28 U.S.C. § 157(c)(1). Executive Benefits Insurance Agency v. Arkison , 573 U.S. 25, 134 S.Ct. 2165, 189 L.Ed.2d 83 (2014).

It is immaterial to this Court's job in this proceeding whether it determines the issues or only hears them. With regard to the motion for summary judgment, the Court can only decide issues of law based on undisputed facts. The District Court will review any such result de novo regardless of the Court's authority, so it does not matter.

If the matter proceeds to trial, the Court's tasks are to decide disputes of fact and to apply the law. From the Court's standpoint, whether the result of the Court's work is the determination of those factual and legal issues or a proposed determination of them, the Court's work is the same. Determination of the Stern issue, therefore, is immaterial to how this matter proceeds in this Court.⁵

Because the District Court clearly has jurisdiction over this proceeding, because this Court clearly has authority to hear it, and because determination of the motion for summary judgment and the conduct of any trial will proceed in the same manner regardless of the Court's Constitutional authority, the Court will defer ruling on its Constitutional authority.⁶

The Court has authority, at a minimum, to hear this dischargeability proceeding that is within the jurisdiction of the District Court. To the extent that the motion for summary judgment seeks dismissal of the complaint on jurisdictional grounds, it is denied.

II. Discussion

A. The Applicable Statutes Governing Dischargeability

The statute governing an exception of Ms. Long's claim from discharge will depend on the type of discharge Mr. Long receives. Unless his bankruptcy case is dismissed, Mr. Avila will receive either: (1) a discharge under § 1328(a) if he completes all of his payments under a confirmed plan (a "completion discharge"); (2) a discharge under § 1328(b) if he does not complete payments but he nevertheless meets the requirements for a discharge (a "hardship discharge"); or (3) a discharge under § 727(a) if the case converts to chapter 7 (unless an objection to such discharge is sustained) (a "chapter 7 discharge").

In the case of a completion discharge, § 1328(a)(4) excepts a claim for damages resulting from "willful or malicious injury by the debtor that caused personal injury." (Emphasis added). When a debtor receives a hardship discharge, § 1328(c)(2) excepts all of the debts specified in § 523(a), which also applies to a chapter 7 discharge. Section 523(a)(6) excepts a debt for "willful and malicious injury by the debtor to another entity or to the property of another entity." (Emphasis added).

In the circumstances of this case,⁷ therefore, the difference is that Ms. Long's claim is excepted from a completion discharge if Mr. Avila's conduct is either willful or malicious, whereas his conduct must be both if he receives one of the other discharges.

The parties have not focused on this distinction, and the Court finds it unnecessary to deal with it at this stage of this proceeding. The analysis of what is "willful" and "malicious" is the same under all of the discharges. Further, as the Court explains below, the critical issues in this proceeding are whether the sex was consensual and whether, if so, it makes any difference. If the sex was not consensual, or if that is immaterial, Mr. Avila's conduct was both willful and malicious. Conversely, if Ms. Long consented and her consent is material, Mr. Avila did not act willfully or maliciously.

B. Consent As An Issue In Determination of "Willful" and "Malicious" Conduct

Although Mr. Avila contends that the sex was consensual, Ms. Long alleges facts to establish that Mr. Avila mentally coerced her by abusing his authority as a parole officer.

Ms. Long states that Mr. Avila "abused his power as a parole officer to coerce [her] into having sex with him by manipulating information about [her] performance as a parolee, including information about drug tests, and threatening to have [her] found in violation of the terms of her parole, which could return her to prison."⁸ She states that she made several complaints to Mr. Avila's supervisor but that Mr. Avila continued to contact her and abuse his authority by forcing her to have sex without her actual or legal consent, even after she left a halfway house due to her fear of further abuse by Mr. Avila.⁹ She also notes that another female parolee had filed an earlier complaint about Mr. Avila.¹⁰

Under these facts, Ms. Long has a claim for a violation of her substantive due process rights under color of state law for violation of her right to bodily integrity. See Rogers v. City of Little Rock , 152 F.3d 790 (8th Cir. 1998). The question is whether such a claim is dischargeable.

In Kawaauhau v. Geiger , 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), the Supreme Court ruled that nondischargeability under § 523(a)(6) requires "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." (Emphasis in original).

With regard to "willfulness," the Eleventh Circuit has explained, "A debtor is responsible for a ‘willful’ injury when he or she commits an intentional act the purpose of which is to cause injury or which is substantially certain to cause injury." E.g. Kane v. Stewart Tilghman Fox & Bianchi PA (In re Kane) , 755 F.3d 1285, 1293 (11th Cir. 2014) ; Maxfield v. Jennings (In re Jennings) , 670 F.3d 1329, 1334 (11th Cir. 2012).¹¹

Under these cases, "malicious" means "wrongful and without just cause or excessive, even in the absence of personal hatred, spite, or ill will. To establish malice, a showing of specific intent to harm another is not necessary." Kane, supra , 755 F.3d at 1294 ; Jennings, supra , 670 F.3d at 1334.

Laying aside the criminal aspects of the conduct for the moment (which the Court considers later), nondischargeability under these standards cannot arise from a voluntary, consensual sexual encounter, free of mental (or other) coercion. Willfulness is lacking because the debtor does not intend any injury, and it is not malicious because it is neither wrongful nor without just cause.

On the other hand, if a sexual encounter results from mental coercion as Ms. Long describes, the conduct is both willful and malicious. It is willful because the coerced sex is the...