Howell v. Town of Ball
| Decision Date | 04 September 2012 |
| Docket Number | CIVIL ACTION NO. 12-951 |
| Parties | THOMAS R. HOWELL v. TOWN OF BALL, DANIEL CALDWELL, ROGER TONEY, CURTIS ROBERTSON, WILLIE BISHOP, JERRY GIDDINGS, CHRIS COVINGTON, GINNY POTEET and ROY E. HEBRON |
| Court | U.S. District Court — Western District of Louisiana |
Before the court are three (3) motions to dismiss and one (1) motion to strike filed by defendants in the above-captioned suit. For the reasons expressed herein, the court finds that such motions should be granted in part and denied in part.
Plaintiff Thomas R. Howell is a former police officer for the town of Ball, Louisiana. In 2008, while serving as a Police Sergeant, plaintiff became a confidential informant to the Federal Bureau of Investigations ("FBI"). Plaintiff provided information to the FBI regarding allegations that the Mayor, defendant Roy E. Hebron ("Hebron"), as well as other town officials and employees fraudulently applied for and obtained Federal Emergency Management Agency ("FEMA") disaster recovery funds for the town of Ball. The FBI commenced an investigation ofthese allegations, in which plaintiff participated by surreptitiously recording conversations between Hebron and others concerning FEMA funds.
On September 25, 2009, Hebron and four (4) other Ball employees were indicted by a federal grand jury.1 On February 5, 2011, Hebron pled guilty to Count I of the indictment, conspiracy to defraud the United States.2 Hebron was subsequently sentenced to 48 months in prison, 3 years supervised release, a fine in the amount of $25,000 and restitution to FEMA in the amount of $105,566.10.3
Plaintiff alleges that defendant Daniel Caldwell ("Caldwell") became the interim Chief of Police after Chief of Police Jay Barber, among those indicted with Hebron in 2009, resigned. Plaintiff further alleges that, during the course of the criminal trial of Hebron and Barber, Hebron became aware that plaintiff acted as an FBI informant and relayed such information to Caldwell, who completed his interim duty and was, thereafter, elected to a full term as Ball Chief of Police.
Plaintiff asserts that he was subjected to retaliatory harassment by Caldwell, who "frequently ask[ed] plaintiff if he was wearing a wire when they had work-related discussions and advis[ed] plaintiff that he...did not trust plaintiff."4 Plaintiff further asserts that, approximately eight (8) days after Hebron's sentencing in the above-referenced criminal matter, he learned that Caldwell was conducting an investigation of plaintiff, of which plaintiff had not been notified pursuant to LSA-R.S. 40:2531. On the same day, plaintiff also asserts that he visited Caldwell's home to ask about the covert investigation, which Caldwell confirmed was being conducted at that time. Plaintiff alleges that he and Caldwell engaged in a "heateddiscussion" that ended with Caldwell firing plaintiff for '"insubordination and disrespect of a superior officer.'"
Plaintiff alleges that he was informed in writing on or about June 1, 2011 that his employment status would be the subject of an executive session of the town council on June 3, 2011. Plaintiff attended the scheduled meeting, where he learned that his termination was recommended to the aldermen of the council by Caldwell and defendant Roger Toney ("Toney"), who replaced Hebron as Mayor. Plaintiff asserts that his employment was terminated during the meeting.
Plaintiff filed suit against the town of Ball, the above-named defendants and Curtis Robertson ("Robertson"), Willie Bishop ("Bishop"), Jerry Giddings ("Giddings"), Chris Covington ("Covington") and Genny Poteet ("Poteet"), each of whom served as an alderman for the town of Ball during the period of time at issue in this case. Plaintiff later amended his complaint so that it now asserts claims against defendants Caldwell, Toney, Robertson, Bishop, Giddings, Covington and Poteet in their official and individual capacities. Plaintiff alleges violations of his First and Fourteenth Amendment rights, as well as 31 U.S.C. § 3730, LSA-R.S. 40:2531 and La. Civ. C. Art. 2315.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) was filed by defendants Toney, Robertson, Bishop, Giddings, Covington and Poteet, alleging that they are not proper defendants to claims under 31 U.S.C. § 3730 because none of them was plaintiff's employer.5 Defendants town of Ball, Toney, Robertson, Bishop, Giddings, Covington and Poteet filed a motion to strike plaintiff's claims for punitive or exemplary damages against them in their official capacities on the basis that such claims against the town of Ball are not available under Section 1983 and, as tothe individual aldermen, such claims amount to duplicative claims against the municipality.6 Defendant Caldwell filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), alleging that claims against him in his official capacity are tantamount to claims against the town of Ball; that Caldwell is not a proper defendant to claims under 31 U.S.C. § 3730 because he was not plaintiff's employer; that plaintiff's First Amendment retaliation claim must be dismissed because plaintiff has not demonstrated that he participated in protected speech or that he was terminated for any such activity; and that plaintiff's punitive damage claims against Caldwell in his official capacity should be dismissed because plaintiff may not be held liable for such damages in his official capacity.7 Finally, defendant Hebron filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the basis that claims against him in his official capacity are duplicative of claims against the town of Ball; that claims against him under 31 U.S.C. § 3730 must be dismissed because he was not plaintiff's employer; and that Hebron may not be held liable in his official capacity for punitive damages.8
The court's review of the record in this matter indicates that these four (4) motions are now ripe for decision. The law and argument advanced by the parties is considered below.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) avers that a complaint fails to state a claim as to which relief may be granted by the court. Dismissal of a complaint under Rule 12(b)(6) is a disfavored remedy and is rarely granted.9 The court must deny such motion unless it appears beyond doubt that plaintiff can prove any set of facts which would entitle him torelief.10 The court must construe the complaint liberally, taking all well-pleaded facts as true for the purpose of the motion before it.11
A motion to strike, such as is now before this court, is authorized under Fed. R. Civ. P. 12(f). The court, taking all well-pled facts as true, may, on its own or on a motion from either party, strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."12 A motion to strike under Rule 12(f) has been interpreted as the proper procedural device for striking punitive damage claims in suits where such damages not an available remedy.13
As noted above, each defendant to this suit, except the town of Ball, filed a motion to dismiss all claims under this provision against them on the basis that liability under this provision may only be imposed upon the plaintiff's employer. Plaintiff argues that the statutory language quoted by the movants is inaccurate in light of 2009 amendments which removed the phrase "by his or her employer" from § 3730(h). Plaintiff alleges that the removal of this phrase indicates legislative intent to broaden the class of viable defendants to such claims, but cites no authority in support thereof.15
Defendants point out that, in the recent case Riddle v. Dyncorp International Incorporated,16 the U.S. Fifth Circuit Court of appeals affirmed the longstanding view the FCA's anti-retaliation provisions create a cause of action against an employer. Defendants also point out that Riddle concerned the September 1, 2009 termination of plaintiff, placing his claims under the amended version of §3730(h).17
The court has thoroughly reviewed the jurisprudence surrounding this issue and finds no support for plaintiff's conclusion that the omission of the phrase "by his or her employer" resulted in the expansion of FCA retaliation claims to non-employer defendants. We also concur with defendants' observation that an alteration in the terms or conditions of employment, whether by demotion, termination or otherwise, may only be carried out by plaintiff's employer, which further supports the view that FCA retaliation claims may only be brought against a plaintiff's employer.
Plaintiff's complaint alleges that he was employed by the town of Ball.18 Plaintiff's opposition to the motions at issue cites LSA-R.S. § 33:423(A), which states that in municipalitiessuch as the town of Ball, the chief of police will make recommendations to the mayor and board of aldermen for disciplinary actions against officers and dismissal of police personnel. The court finds that this provision, especially when read together with subsection (C),19 which specifically governs the...
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