Miranda v. Alexander, Civil Action 21-535-JWD-RLB

CourtU.S. District Court — Middle District of Louisiana
Writing for the CourtRICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
PartiesJENNIFER MIRANDA, on behalf of real party in interest M.M. and real party in interest S.M. v. DAVID ALEXANDER, ET AL.
Docket NumberCivil Action 21-535-JWD-RLB
Decision Date24 February 2022

JENNIFER MIRANDA, on behalf of real party in interest M.M. and real party in interest S.M.
v.
DAVID ALEXANDER, ET AL.

Civil Action No. 21-535-JWD-RLB

United States District Court, M.D. Louisiana

February 24, 2022


NOTICE

RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is Defendants' Motion to Dismiss, Motion to Strike, and Motion for Attorney's Fees. (R. Doc. 19). The motion is opposed. (R. Doc. 22). Defendants filed a Reply. (R. Doc. 24). Plaintiff filed a Surreply without seeking leave of court. (R. Doc. 26).

Also before the Court is Plaintiff's Motion to Change Status from Pro Se to Sui Juris and Affidavit (“Motion to Change Status”). (R. Doc. 21). The motion is opposed. (R. Doc. 23).

I.Background

This suit arises out of a challenge to the constitutionality of a mask mandate implemented by the Ascension Parish Board of Education. (R. Doc. 1 (“Complaint”); R. Doc. 7 (“Amended Complaint”)).[1] Plaintiff Jennifer Miranda initiated this action on behalf of her two minor children M.M. and S.M., who were both students at an Ascension Parish public school at the time the lawsuit was filed. (R. Doc. 7 at 17).[2] Plaintiff names as defendants: (1) the Ascension Parish Board of Education (“School Board”); (2) David Alexander, in his individual capacity and in his official capacity as Superintendent of the Ascension Parish School District; and (3) Taft Kleinpeter, Troy J. Gautreau Sr., Robyn Delaney, David Scott Duplechein, Julie Blouin, Marty Bourgeois, John D. Murphy, John DeFrances, Jared Bercegeay, Louis Lambert, and Patricia Russo, all individual

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elected officials sued in their individual capacity and in their capacity as members of the School Board (collectively, “Defendants”). (R. Doc. 7 at 18-20).

On August 2, 2021, Governor John Bel Edwards issued a state-wide mask mandate in Louisiana. See Proclamation Number 137 JBE 2021 (effective August 4, 2021). On August 4, 2021, the School Board enacted a mask mandate for all students, teachers, and faculty:

FACE COVERINGS ON SCHOOL PROPERTY (INDOORS OR OUTDOORS): Pursuant to Proclamation #137 JBE 2021 issued by Governor John Bel Edwards, all individuals shall wear a face covering when indoors on Ascension Public Schools property, as well as on school buses. Individuals are required to wear a mask over the nose and mouth upon entry to any building and remain properly masked while traveling about hallways, corridors, and common spaces inside of the building or in classrooms. Masks are not required when outdoors

(R. Doc. 2-1 at 12).

On August 6, 2021, Plaintiff submitted religious exemption forms to the Principal of her children's school to opt out of the mask mandate, but was told by the Principal that “they are not accepting religious exemptions[.]” (R. Doc. 7 at 21-22).

On August 17, 2021, the School Board held a meeting which allowed for “open discussion of the [mask] mandate.” (R. Doc. 7 at 22). M.M. spoke at this meeting and “brought to the attention of the school board that he had acquired sores on both of his ears as result of wearing a mask at school that was too tight.” (R. Doc. 7 at 22).

M.M. also stated that his sores didn't heal until around Christmas. Mrs. Miranda clarified that the sores healed during Christmas break since a mask was not being worn during Christmas break. M.M. also informed the APSB that he was receiving negative dojo marks when he would take his mask off because the sores on the back of his ears were causing unbearable pain. M.M. stated to APSB “The points mean that you're doing bad things, so I don't think I was really doing anything bad” in reference to removing his mask to relieve the pain. M.M. concluded his speech saying “and no more masks[.]”

(R. Doc. 7 at 22).

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Among other things, Plaintiff alleges that the School Board's mask policy causes immediate and irreparable health risks to students, staff, and the community at large. (R. Doc. 7 at 29). In support, Plaintiff relies on the Affidavit of Stephen E. Petty. (R. Doc. 7 at 29 (citing Ex. O of the Complaint, R. Doc. 1-1 at 17-22)). Mr. Petty is purportedly an expert in the field of Industrial Hygiene, who has testified as to the “futility and danger caused by an individual wearing a mask in order to avoid transmitting or becoming infected with Covid-19[.]” (R. Doc. 7 at 29).

Plaintiff further alleges that her two children have been harmed by having to comply with the mask mandate, which is “not only unsupported by science, but which also results in the possible resulting measurable drop in oxygen saturation of the blood on one hand and the increase in carbon dioxide on the other, which contributes to an increased noradrenergic stress response, with heart rate increase and respiratory rate increase and, in some cases, a significant blood pressure increase.” (R. Doc. 7 at 37).

Based on the above, Plaintiff filed her Complaint on September 14, 2021. (R. Doc. 1). The Complaint seeks a ruling declaring that the mask mandate is void and enjoining Defendants “from implementing or enforcing the mask policy and from taking any other action to implement the masking policy that is not in compliance with applicable law[.]” (R. Doc. 1 at 18). On that same day, Plaintiff filed a Consolidated Application for a Temporary Restraining Order, requesting that the Court enjoin Defendants from continued enforcement of the mask mandate. (R. Doc. 2).

On September 24, 2021, the district judge denied the Motion for Temporary Restraining Order, finding that Plaintiff had not satisfied any of the four prongs required to obtain a TRO. Miranda on behalf of M.M. v. Alexander, No. 21-535, 2021 WL 4352328 (M.D. La. Sept. 24, 2021) (R. Doc. 5). First, the district judge held that “Plaintiff's claim fails on the merits because she has not proven a Fourteenth Amendment violation.” Id. at *4. Second, the district judge further held that Plaintiff had not established a substantial threat of irreparable injury because “(1) she has not shown

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that her children are suffering or are likely to suffer a real and actual harm; (2) her claim hinges on an affidavit which is not in proper form but, even if considered, (a) is based on data which is vague and non-specific and is not tied to potential harm to Plaintiff's children and (b) relates more to whether masks are effective, rather than the potential consequences of wearing one.” Id. at *6. Third, the district judge held that “enjoining the School Board's mask policy would potentially cause substantial harm to the Parish's students, teachers, and faculty through community spread of COVID-19, which could potentially cause serious illness and death to them as well as those with whom they come into contact.” Id. Fourth, the district judge held that “based on the grave risks associated with the ongoing COVID-19 pandemic and the increased risks to the school children of Ascension Parish and the public of granting the injunction, . . . the public interest would not be served by enjoining the mask mandate [, which] would pose an increased risk of quarantines, illness, and long-term learning disruptions.” Id.

On October 4, 2021, Plaintiff filed an Amended Complaint. (R. Doc. 7).[3] Plaintiff now seeks recovery under 10 overlapping claims brought under both federal and state law for the alleged deprivation of her minor children's rights to life, liberty, and property when the School Board implemented the mask manDated:

• Count I - Violation of Individual Right to Dignity (La. Const. Art. I, § 3)
• Count II - Violation of Individual Right to Humane Treatment (La. Const. Art. I, § 20)
• Count III - 42 U.S.C. § 1983 - Violation of Procedural Due Process (Fifth and Fourteenth Amendments)
• Count IV - 42 U.S.C. § 1983 - Violation of Substantive Due Process (Fourteenth Amendment)
• Count V - Violation of Substantive Due Process (La. Const. Art. I, § 22)
• Count VI - Americans with Disability Act of 2008 - Violation of Subchapter III Subpart B, 36.201(a)
• Count VII - Americans with Disability Act of 2008 - Violation of Subchapter III Subpart B, 36.202(a)
• Count VIII - Violation of Louisiana Constitution Art. 101
• Count IX - Violation of the Nuremberg Code (1947)
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• Count X - Violation of 28 U.S.C. § 1343 - Civil Rights and Elective Franchise

(R. Doc. 7 at 37-44). Among other things, Plaintiff alleges that (1) her children have a constitutionally protected interest in not being subjected to the School Board's mask mandate; (2) the School Board's policy unlawfully deprives Plaintiff's children of their constitutionally protected rights without due process of law; and (3) the School Board impeded on the fundamental right of her children to public education. As in the original Complaint, the relief prayed for by the Plaintiff includes injunctive and declaratory relief with respect to the implementation and enforcement of the mask policy, as well as an award of attorney's fees. (R. Doc. 7 at 45-46). Plaintiff does not expressly seek any monetary damages.

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