Howard v. Jarrell

• Decision Date: 13 January 2023
• Docket Number: CIVIL 1:22-CV-05422
• Parties: ANDRENIQUE HOWARD, Plaintiff v. MICHAEL JARRELL, ET AL., Defendants
• Court: U.S. District Court — Western District of Louisiana

ANDRENIQUE HOWARD, Plaintiff
v.
MICHAEL JARRELL, ET AL., Defendants

CIVIL No. 1:22-CV-05422

United States District Court, W.D. Louisiana, Alexandria Division

January 13, 2023

DISTRICT JUDGE DRELL

REPORT AND RECOMMENDATION

JOSEPH H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE

Plaintiff Andrenique Howard (“Howard”) filed this action pursuant to 28 U.S.C. § 1983, pro se and in forma pauperis. Because many of Howard's are not state actors or are immune from suit in federal court, and because Howard fails to assert constitutional claims cognizable under § 1983, Howard's action should be DISMISSED WITH PREJUDICE.

I. Background

Howard previously filed another § 1983 lawsuit against most of the same Defendants named herein, alleging the same claims of invasion of privacy, identity theft, slander, defamation, “murder, theft and larceny,” “human trafficking,” “slavery,” “rape,” and “torture.” See Howard v. Davis, i:21-cv-04163 (W.D. La.). Howard filed a motion to voluntarily dismiss that action that was granted, and the defendants were dismissed without prejudice. Howard filed this action that is mostly repetitive of the prior action.

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II. Law and Analysis

A. The Court lacks subject matter jurisdiction over the Defendants who are not state actors.

Section 1983 prescribes redress for conduct by any person who, under color of state law, acts to deprive another person of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. To constitute state action, "the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 (1941); see also Monroe v. Pape, 365 U.S. 167, 187 (1961) (adopting the Classic standard for purposes of § 1983). “[T]he party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar, 457 U.S. at 937.

"[S]tate employment is generally sufficient to render the defendant a state actor." Lugar, 457 U.S. at 936. Generally, a public employee acts under color of state

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law while acting in his official capacity or while exercising his responsibilities pursuant to state law. See West v. Atkins, 487 U.S. 42, 49-50 (1988).

Purely private conduct, no matter how wrongful, is not within the protective orbit of § 1983. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

Howard names as Defendants: AT&T; Cricket; Affordable Furnisher; Altice; CVS; Direct TV; Exactax; H&R Block; Jack in the Box; Joel Automotive Co.; Red River Bank; Ryan, L.L.C.; Santa Barbara, L.L.C.; Sonic; State Farm; Suddenlink; Taco Bell; Westside Habilitation Center^[1]; Best Western Hotel; and Flavored Operations, L.L.C. (d/b/a Sonic) are private business entities. These businesses are not state actors, and Howard has not made any allegations that show they acted together with or on behalf of a state. Therefore, Howard's § 1983 claims against these Defendants should be dismissed sua sponte, without prejudice, for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), 12(h)(3); Arbaugh v. Y&Y Corp., 546 U.S. 500,514 (2006); see also Tiner v. Cockrell, 756 Fed.Appx. 482, 482 (5th Cir. 2019), cert. den., 140 S.Ct. 90 (U.S. 2019) (“Because Tiner failed to plead any facts demonstrating that the defendants acted under color of state law . . . he failed to plead and establish subject matter jurisdiction ....”).

Howard also names the St. Mary's Training “Center” (Facility) as a Defendants. St. Mary's Training Facility is a residential facility for developmentally

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disabled children and adults that was opened by and is run by the Roman Catholic Church in Rapides Parish, Louisiana. Howard has not alleged or shown that St. Mary's is a state actor, or acted together with or on behalf of a state actor. Therefore, Howard's action against St. Mary's Training Facility should also be dismissed sua sponte, without prejudice, for lack of subject matter jurisdiction.

B. The Court lacks subject matter jurisdiction over the State Defendants under the Eleventh Amendment.

Howard names as Defendants the Louisiana Department of Revenue; the Louisiana “Food Stamp Office” (correctly known as the Louisiana Department of Child and Family Services); “Medicaid” (correctly known as the Louisiana Department of Health); Louisiana “Department of Motor Vehicles”^[2] (correctly known as the “Office of Motor Vehicles”); Louisiana Department of Treasury; “Louisiana Labor & Wages” (correctly known as the Louisiana Department of Labor); and the State of Louisiana. ECF Nos. 1, 12.

Additionally, Howard sues the New York Department of Treasury; Florida Department of Motor Vehicles; Virginia Department of Motor Vehicles; Georgia Department of Motor Vehicles (correctly known as the Georgia Department of Revenue, Motor Vehicle Division and Georgia Department of Driver Services); Texas Department of Motor Vehicles; and the California Department of Motor Vehicles.

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All of these Defendants are departments or agencies of states. The Eleventh Amendment to the U.S. Constitution bars all suits in law or equity against an unconsenting state. See Neuwirth v. Louisiana State Board of Dentistry, 845 F.2d 553, 556 (5th Cir. 1988); see also Walker v. Livingston, 381 Fed.Appx. 477, 479 (5th Cir. 2010) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996)).^[3]

The Fifth Circuit has established six factors for determining whether a particular entity is entitled to Eleventh Amendment immunity: (1) whether state statutes and case law characterize the agency as an arm of the state; (2) the source of funds for the entity; (3) the degree of local autonomy the entity exercises; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has authority to sue and be sued in its own name; and (6) whether the entity has the right to hold and use property. See Neuwirth, 845 F.2d at 556.

Under La. R.S. 13:5106, “[n]o suit against the state or a state agency or political subdivision shall be instituted in in any court other than a Louisiana state court. Thus, the state of Louisiana has not waived her immunity under the Eleventh Amendment from suit in federal court. Because the State of Louisiana has Eleventh

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Amendment immunity, Howard's action against it should be dismissed for lack of subject matter jurisdiction.

The Louisiana Department of Revenue; the Louisiana Department of Children & Family Services; the Louisiana Department of Health; the Louisiana Workforce Commission, the Louisiana Department of the Treasury, and the Louisiana Department of Public Safety and Corrections are all departments and agencies of the executive branch of the State of Louisiana. La. R.S. 36:4(A).

The Louisiana Department of Revenue is a department of the executive branch of the State of Louisiana (La. R.S. 36:4), an arm of the State of Louisiana, and has Eleventh Amendment immunity. See Keorner v. Garden District Association, 2002 WL 31886728, at *9 (E.D. La. 2002). Therefore, the...