Decossas v. St. Tammany Parish Sch. Bd., CIVIL ACTION CASE NO. 16-3786 SECTION: "G" (5)

• Decision Date: 08 September 2017
• Docket Number: CIVIL ACTION CASE NO. 16-3786 SECTION: "G" (5)
• Parties: DeCOSSAS, et al. v. ST. TAMMANY PARISH SCHOOL BOARD, et al.
• Court: U.S. District Court — Eastern District of Louisiana

DeCOSSAS, et al.
v.
ST. TAMMANY PARISH SCHOOL BOARD, et al.

CIVIL ACTION CASE NO. 16-3786 SECTION: "G" (5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

September 8, 2017

ORDER

This litigation arises out of the expulsion¹ of M.D.,² a minor child who attended a public high school in St. Tammany Parish.³ Pending before the Court is Defendants St. Tammany Parish School Board ("the School Board"), Keven R. Darouse ("Darouse"), W.L. Folse, III ("Folse"), Leonard Tridico ("Tridico"), Neal M. Hennegan ("Hennegan"), Peter J. Jabbia ("Jabbia"), and Michael Astugue's ("Astugue") (collectively, "Movants") "Motion for Summary Judgment."⁴ Having considered the motion, the memoranda in support and in opposition and reply, and the applicable law, the Court grants the motion in part to the extent that it requests summary judgment on Plaintiffs' claims against the Movants in both their individual and official capacities pursuant to 42 U.S.C. § 1983. The Court denies the motion in part regarding Movants' request that the court either dismiss any alleged state law claims or decline to exercise supplemental jurisdiction over any remaining state law claims against Movants. The Court hereby grants Plaintiffs leave to amend

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their complaint within 14 days of this order to provide a more definite statement as to their state law claims.

The Court also denies the motion in part to the extent that it requests summary judgment on Plaintiffs' claims against the School Board pursuant to 42 U.S.C. § 1983 because Plaintiffs have challenged the constitutionality of Louisiana Revised Statute § 17:416, which is the statute that the School Board allegedly relied upon in its decision to expel M.D. The Court will rule on the School Board's liability after it decides the constitutionality of Louisiana Revised Statute § 17:416.

I. Background

A. Factual Background

In this litigation, Plaintiffs allege a variety of claims stemming from the questioning, search, and eventual expulsion of their minor child M.D. for the child's alleged drug-related misconduct on school grounds.⁵ Specifically, Plaintiffs allege violations of the First, Fourth, Fifth, and Fourteenth Amendments.⁶ Plaintiffs name as Defendants the St. Tammany Parish School Board, as well as the following individuals: Deputy Bryan Gerchow, St. Tammany Parish Sheriff's Deputy; Darouse, supervisor of administration for the School Board; Folse, supervisor of the School Board; Tridico, chief disciplinarian at M.D.'s high school; Hennegan, elected member of the School Board; Jabbia, assistant supervisor for the School Board; and Astugue, assistant principal at M.D.'s high school.⁷

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Plaintiffs allege that on January 8, 2016, M.D. was ordered to Tridico's office.⁸ Plaintiffs allege that Tridico, in the presence of Deputy Gerchow, interrogated M.D. regarding drug allegations and searched M.D.⁹ Plaintiffs further allege that Tridico seized a cellphone that M.D. was carrying and demanded that M.D. unlock the cellphone, which M.D. eventually did.¹⁰ According to Plaintiffs, Deputy Gerchow, Tridico, and Astugue then searched the contents of the cellphone.¹¹ Plaintiffs allege that Astugue and Tridico recognized the number of another student, A.G., on the cellphone and then questioned and forced A.G. to sign an untrue statement.¹² Plaintiffs further assert that Tridico and Astugue then confronted M.D. with A.G.'s statement and also forced M.D. to sign untrue statements.¹³ Plaintiffs allege that Deputy Gerchow and Tridico "assaulted and battered" and threatened to arrest M.D., even though they had no reasonable belief that M.D. had committed an offense.¹⁴ Plaintiffs allege that the "intensive search" of M.D. "resulted in absolutely no evidence of wrongdoing, drugs, or other prohibited materials or violations of school's policy."¹⁵ Plaintiffs also allege that Astugue, Tridico, and Deputy Gerchow interrogated M.D. without issuing a Miranda warning first.¹⁶

Plaintiffs allege that Defendants did not notify M.D.'s parents during the interrogation and search and that they were only advised of the allegations after M.D. had been suspended with a

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recommendation for expulsion on "disciplinary and drug allegations."¹⁷ Plaintiffs further allege that on January 14, 2016, the School Board and the other Defendants held a constitutionally inadequate hearing at which Tridico and Astugue stated "unfounded opinions and cited illegal evidence based on illegally obtained . . . information" from M.D.'s father's cellphone.¹⁸ Plaintiffs allege that Darouse ordered the expulsion of M.D.¹⁹ According to Plaintiffs, an appeal of M.D.'s expulsion was denied.²⁰ Plaintiffs also appear to allege that Defendants' hearings for expulsion and disciplinary actions violated their right to due process.²¹ Finally, Plaintiffs challenge the constitutionality of Louisiana Revised Statute § 17:416, which requires a student found guilty of possession or distribution of a controlled substance to be expelled for a minimum of four complete school semesters.²²

B. Procedural Background

On April 29, 2016, Plaintiffs filed the instant action pursuant to 42 U.S.C. § 1983, alleging federal constitutional violations and seeking expungement of all relevant records, reversal of the suspension, and general and punitive damages against all Defendants.²³ On July 15, 2016, Deputy Gerchow filed an answer to the complaint.²⁴ On July 18, 2016, Movants filed a "Rule 12(b)(6) Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement Pursuant to FRCP

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Rule 12(e)."²⁵ On March 27, 2017, the Court granted the motion in part to the extent that it requested a more definite statement and granted Plaintiffs 21 days to amend the complaint to provide a more definite statement of: "(1) their federal and state law claims against the School Board; (2) their claims against the individual Movants for relief under Section 1983, including a non-conclusory statement of the specific conduct in which individual Movants engaged to violate their rights and whether they are suing the individual Movants in their personal or official capacities; and (3) their claims for relief against the individual Movants under state law."²⁶ On April 17, 2017, Plaintiffs filed an amended complaint.²⁷ On August 10, 2017, the Court granted Deputy Gerchow's motion for summary judgment to the extent that it requested summary judgment on Plaintiffs' claims against him under 42 U.S.C. § 1983.²⁸

Movants filed the instant motion for summary judgment on July 17, 2017.²⁹ Plaintiffs filed an opposition on July 25, 2017.³⁰ With leave of Court, Movants filed a reply on August 2, 2017.³¹

II. Parties' Arguments

A. Movants' Arguments in Support of the Motion

The remaining Defendants move the Court for summary judgment on all of the claims that Plaintiffs have brought against them.³² In support of the motion, Movants state that Plaintiffs

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apparently attempt to raise the following claims for relief against Movants: (1) First Amendment claims against Tridico, Astugue, and Deputy Gerchow;³³ (2) Fourth Amendment claims against all named Defendants; (3) Fifth and Fourteenth Amendment substantive and procedural due process claims for relief against all named Defendants; (4) Fourteenth Amendment claims against all named Defendants; and (5) various state law tort claims.³⁴ Plaintiffs have not disputed Movants' characterization of these claims.³⁵

Movants first argue that Plaintiffs have not alleged any facts to support their First Amendment claims.³⁶ Moreover, Movants aver that there is no evidence of any violation of the First Amendment.³⁷ Because there are no allegations or evidence implicating the First Amendment "in any way other than the conclusory assertions made by Plaintiffs," Movants contend that Plaintiffs' claims for violations of the First Amendment should be dismissed.³⁸

Next, Movants argue that Plaintiffs' claims under the Fourth Amendment are not supported by competent evidence and should therefore be dismissed.³⁹ According to Movants, the search of a student by school officials does not require probable cause and is instead justified where there are reasonable grounds for suspecting that the search will result in the discovery of evidence that

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the student is violating the law or the rules of the school.⁴⁰ Movants argue that there is nothing alleged in the amended complaint and presumably no evidence now being offered that suggests there were not reasonable grounds for suspecting a violation of school rules.⁴¹ Movants aver that the undisputed evidence shows Tridico had reasonable grounds to search M.D.'s phone due to evidence of participation in the purchase, use, sale, and/or possession of illegal drugs.⁴² Movants further assert that it is undisputed that M.D. was not authorized to carry and use a phone at school and that M.D. consented to the search of the phone, as he gave school officials the code to enter the phone.⁴³ Moreover, Movants assert that it is undisputed that M.D. admitted that he violated school rules giving rise to "mandatory discipline" for possession or use of drugs under Louisiana Revised Statute § 17:416.⁴⁴ Movants additionally argue that the search of the phone was reasonable, as it "had a moderate chance of finding evidence of wrongdoing."⁴⁵ Further, Movants assert that Tridico had reasonable grounds to question M.D., and this questioning led to M.D.'s admission to violating the law and school policy.⁴⁶ Movants also assert that all of the events took place on school property and during school hours.⁴⁷ Finally, Movants contend that there is no evidence of arrest or seizure of M.D. in this case such that the Fourth Amendment is implicated.⁴⁸ Movants contend that there is no basis either in law or in fact to allow recovery by Plaintiffs against

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Movants for a violation of the Fourth Amendment.⁴⁹

Next, Movants contend that there is no evidence that there was a violation of Plaintiffs' substantive due process rights under the...