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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JUDGE SHARON INGRAM
MARCHMAN
Plaintiff

*
CIVIL ACTION NO. 3:16-cv-0515
*
*
JUDGE S. MAURICE HICKS
*
VERSUS
*
MAGISTRATE PEREZ-MONTES
*
BRIAN E. CRAWFORD;
*
JURY TRIAL DEMANDED
LAWRENCE W. PETTIETTE, JR.;
*
JAMES D. BUDDY CALDWELL;
*
JON K. GUICE;
*
JUDGE CARL V. SHARP;
*
JUDGE FREDERIC C. AMMAN;
*
JUDGE J. WILSON RAMBO;
*
JUDGE BENJAMIN JONES; and
*
ALLYSON CAMPBELL
*
Defendants
*
**************************************************************************
MEMORANDUM IN OPPOSITION TO
JAMES D. BUDDY CALDWELLS MOTION TO DISMISS
TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii


I.

INTRODUCTION ...............................................................................................................1

II.

ARGUMENT AND ANALYSIS ........................................................................................2


A.

B.

Caldwells Claim of Eleventh Amendment Immunity ............................................2


1.

F.R.C.P. 12(b)(1) Standard ..........................................................................2

2.

Eleventh Amendment Immunity Does Not Bar All


Official Capacity Claims against Caldwell ..................................................2

Caldwells Rule 12(b)(6) Claims .............................................................................4


1.

F.R.C.P. 12(b)(6) Standard ..........................................................................4

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2.

Caldwell Does Not Enjoy Absolute Immunity for His Actions ..................4

3.

Caldwell Has No Qualified Immunity .........................................................6

4.

Judge Marchman Has Sufficiently Alleged


that Her Constitutional Rights Were Violated .............................................8

5.
C.
III.

a.

First Amendment Rights ..................................................................8

b.

Fourteenth Amendment Rights ......................................................10

Lawyers and Clients Can Conspire with Each Other.................................12

Leave to Amend .....................................................................................................15

CONCLUSION ..................................................................................................................16

TABLE OF AUTHORITIES
Cases

Page

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................4


Babb v. Dorman, 33 F.3d 472 (5th Cir. 1994) .................................................................................6
Baker v. DeKalb Cty., Ga., 2014 WL 793527 (N.D.Ga. 2014) ......................................................6
Barker v. Norman, 651 F.2d 1107 (5th Cir.1981) ...........................................................................7
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................4
Big River Indus., Inc. v. Headwaters Res., Inc., 971 F. Supp. 2d 609 (M.D. La. 2013)..........15, 16
BRFHH Shreveport, LLC v. Willis Knighton Med. Ctr.,
2016 WL 1271075, at *5 (W.D.La. 2016) .......................................................................................4
Carrigan v. Guz, 1993 WL 90398, at *3 (D.N.J. 1993) ..................................................................7
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ..........................................11
Crosby v. Monroe, 394 F.3d 1328 (11th Cir. 2004) ........................................................................7
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir. 1981)). .................................................13

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Economy Carpets Mfrs. & Distributors, Inc. v.


Better Business Bureau of Baton Rouge, Inc., 333 So. 2d 765
(La. App. 1st Cir. 1976), writ denied, 334 So. 2d 428 (La. 1976). ...........................................13, 14
Garcetti v. Ceballos, 547 U.S. 410 (2006). .................................................................................8, 9
Hafer v. Melo, 502 U.S. 21 (1991) ..................................................................................................3
Haley v. Leary, 2009-1626 (La. App. 4 Cir. 8/4/10), 69 So. 3d 430, writ denied,
2010-2265 (La. 12/17/10), 51 So. 3d 14, cert. denied, 132 S.Ct 104 (2011) ..................................5
Hilliard v. Ferguson, 30 F.3d 649 (5th Cir. 1994) ........................................................................13
Hutto v. Finney, 437 U.S. 678 (1978) ..............................................................................................3
Hynson v. City of Chester, 827 F.2d 932 (3d Cir.1987),
cert. denied, 484 U.S. 1007 (1988) ..................................................................................................7
In re Great Lakes Dredge & Dock Co., 624 F.3d 201 (5th Cir. 2010) ............................................4
Jones v. Bd. of Supervisors of the Univ. of Louisiana Sys.,
2015 WL 3409477 (E.D.La. 2015) ................................................................................................15
Loughlin v. Tweed, 310 F.R.D. 323 (E.D. La. 2015) ......................................................................7
Luttrell v. Douglas, 220 F. Supp. 278 (N.D. Ill. 1963) ....................................................................5
McManus v. Cont'l Airlines, Inc., 2012 WL 704728 (W.D. La. 2012) ...........................................2
Meese v. Keene, 481 U.S. 465 (1987) ........................................................................................9, 10
Morehouse v. Jackson, 2008 WL 4664075 (M.D.La. 2008) ...........................................................2
Morgan v. Laurent, 06-467 (La. App. 5 Cir. 12/27/06),
948 So. 2d 282, writ denied, 2007-0178 (La. 3/16/07), 952 So. 2d 701......................................5, 6
Parsons v. U.S. Dep't of Justice, 801 F.3d 701 (6th Cir. 2015) .................................................9, 10
Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................11
Powers v. CSX Transp., Inc., 105 F. Supp. 2d 1295 (S.D. Ala. 2000) ............................................7
Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ................................................................2
Rich v. Dollar, 841 F.2d 1558 (11th Cir. 1988)...............................................................................7

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St. Martin v. Jones, 2008 WL 4412267 (E.D.La. 2008) ......................................................4, 13, 15


Tabb v. Norred, 277 So. 2d 223 (La. App. 3 Cir. 1973) ................................................................14
Turkish Coal. Of Am., Inc. v. Bruininks, 678 F.3d 617 (8th Cir. 2012)...........................................9
U.S. v. Uvalde Consol. Independent School Dist., 625 F.2d 547 (5th Cir. 1980).............................4
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................................................11
Warnock v. Pecos Cty., 88 F.3d 341 (5th Cir. 1996) ...................................................................2, 3
Waste Commanders, LLC v. BFI Waste Servs., LLC,
2015 WL 1089320 (W.D.La. 2015) ...............................................................................................15
Williams v. Wood, 612 F.2d 982 (5th Cir. 1980) ..............................................................................4
Yates v. Vill. of Hoffman Estates, Ill., 209 F. Supp. 757 (N.D. Ill. 1962) ........................................5

Statutes

Page

42 U.S.C. 1983 ........................................................................................................3, 8, 10, 12, 13


42 U.S.C. 1985 ................................................................................................8, 10, 12, 13, 14, 15
42 U.S.C. 1986 ............................................................................................................8, 10, 12, 15
42 U.S.C. 1988 ........................................................................................................2, 8, 10, 12, 15
F.R.C.P. 12(b)(1) .........................................................................................................................1, 2
F.R.C.P. 12(b)(6) .............................................................................................................1, 4, 10, 13
F.R.C.P. 15.. ...............................................................................................................................15
La. C.C. art. 2324 ...........................................................................................................................14
La. R.S. 13:5108.1 .................................................................................................................6, 7, 12
U.S. Constitution, Amendment I............................................................................................8, 9, 10
U.S. Constitution, Amendment XIV ............................................................................10, 11, 12, 13

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MAY IT PLEASE THE COURT:


Plaintiff, Judge Sharon Ingram Marchman, hereby submits her opposition to the Motion
to Dismiss filed by Defendant James D. Buddy Caldwell pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure.

Therein, Caldwell argues that Judge

Marchman has failed to state a claim against him; however, as discussed below, Judge
Marchman has met her burdens under F.R.C.P. 12(b)(1) of proving jurisdiction and under
F.R.C.P. 12(b)(6) of stating claims. Therefore, Defendants motion should be denied, and Judge
Marchman should be allowed to prosecute her claims against Caldwell. In the event that this
Court finds, however, that no claim has been stated, Judge Marchman would request that she be
granted 30 days in which to ask for leave to amend her complaint.
I.

INTRODUCTION
The claims asserted by Judge Marchman in her Supplemental, Amended, and Restated

Complaint1 (Amended Complaint) arise out of the retaliation and actions to which she has
been subjected due to her efforts to reveal payroll fraud, document destruction, and the
conspiracy to conceal same, at the Fourth Judicial District Court (Fourth JDC), where she has
served as a duly-elected judge since the year 2000. As set forth in the Amended Complaint,
Defendant Caldwell and Defendants Brian E. Crawford and Lawrence W. Pettiette, Jr., conspired
with and assisted their client, Defendant Allyson Campbell, a Fourth JDC law clerk, in her
retaliation against Judge Marchman and filed pleadings in the matter of Palowsky v. Campbell,
4th JDC Docket No. 15-2179, in which Judge Marchman was accused of improperly disclosing
information about Campbell, committing illegal acts, and having a vendetta against Campbell.2

1
2

Doc. No. 22.


Doc. No. 22, 16, 18, 73 74.
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Defendant Caldwell was acting under color of law when he committed these acts, which
constituted violations of Judge Marchmans constitutional rights.
II.

ARGUMENT AND ANALYSIS


A.

Caldwells Claim of Eleventh Amendment Immunity


1.

F.R.C.P. 12(b)(1) Standard

Caldwell argues first that pursuant to the Eleventh Amendment, this Court has no
jurisdiction over any of Judge Marchmans claims against him in his official capacity; therefore,
said claims should be dismissed under F.R.C.P. 12(b)(1) for lack of jurisdiction. Caldwell bears
the burden of proving that this Court has no jurisdiction. McManus v. Cont'l Airlines, Inc., 2012
WL 704728, at *1 (W.D. La. 2012)(citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001)). A motion to dismiss for lack of subject matter jurisdiction should only be granted if it
appears certain that the plaintiff cannot prove any set of facts in support of his claim that would
entitle plaintiff to relief. Id. Further, any claims barred by sovereign immunity can only be
dismissed without prejudice. Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th Cir. 1996).
2.

Eleventh Amendment Immunity Does Not Bar All Official Capacity


Claims against Caldwell.

While Caldwell argues that Eleventh Amendment sovereign immunity bars all Judge
Marchmans claims against him in his official capacity, he is incorrect.

The Eleventh

Amendment does not bar claims against Caldwell in his official capacity for declaratory relief or
attorney fees under 42 U.S.C. 1988.

Declaratory relief is not barred by the Eleventh

Amendment when the defendants are sued in their official capacity for violation of federal law.
Morehouse v. Jackson, 2008 WL 4664075, at *4 (M.D.La. 2008)(citing Warnock, 88 F.3d at
343). Additionally, claims for fees associated with prospective relief and fees that may be

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awarded as costs are not barred by the Eleventh Amendment. Warnock, 88 F.3d at 343 (citing
Hutto v. Finney, 437 U.S. 678 (1978)).
Further, in her Amended Complaint, Judge Marchman clarified that she is not seeking to
recover monetary damages from the Louisiana treasury for Caldwells actions.3 To the contrary,
she is seeking to impose individual liability and recover damages from Caldwell personally for
his actions under color of law which violated her constitutional rights.4

Significantly, the

Eleventh Amendment provides no shield for a state official confronted by a claim that he had
deprived another of a federal right under the color of state law. Hafer v. Melo, 502 U.S. 21, 30
(1991)(citations omitted). In other words, the Eleventh Amendment does not erect a barrier
against suits to impose individual and personal liability on state officials under 1983. Id. at
30 31 (emphasis added). Consequently, because Judge Marchman is not seeking to recover
damages from the state for Caldwells actions but is instead seeking to recover from him
personally, there is absolutely no Eleventh Amendment bar to her claims against Caldwell in his
individual capacity for actions he took under color of law.
Under clear jurisprudence, claims against Defendant Caldwell in his official capacity for
attorney fees and declaratory relief and in his individual capacity for monetary damages are not
barred by the Eleventh Amendment. As such, Caldwells request that all Judge Marchmans
claims against him in his official capacity be dismissed for lack of jurisdiction lacks merit, and it
must be denied.

3
4

Doc. No. 22, 6.


Id.
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B.

Caldwells Rule 12(b)(6) Claims


1.

F.R.C.P. 12(b)(6) Standard

To survive a challenge under Rule 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
However, as this Court is aware, in considering Caldwells motion it must accept Judge
Marchmans well-pleaded facts as true, and it must construe the complaint in a light favorable
to that plaintiff. BRFHH Shreveport, LLC v. Willis Knighton Med. Ctr., 2016 WL 1271075, at
*5 (W.D.La. 2016)(quoting In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir.
2010)).
A claim is facially plausible when a plaintiff pleads facts that permit the court to
reasonably infer a defendant is liable for the alleged misconduct. Id. (citations omitted). So
long as it raises a plausible right of recovery and puts the defendant on notice of the plaintiff's
claim and grounds upon which it rests, however, the complaint does not need to specify detailed
factual allegations. Id. at 15 (citing Twombly, 550 U.S. at 555). In fact, [i]nitial pleadings are
only required to give notice of a claim, and must be construed liberally so as to do substantial
justice. St. Martin v. Jones, 2008 WL 4412267, at *7 (E.D.La. 2008)(citing U.S. v. Uvalde
Consol. Independent School Dist., 625 F.2d 547, 549 (5th Cir. 1980)).
2.

Caldwell Does Not Enjoy Absolute Immunity for His Actions.

Caldwell next argues that as attorney general, he is entitled to essentially the same
immunity extended to judges.5 However, judicial immunity is not completely absolute. For
example, there is no immunity when a judge is acting outside the scope of his jurisdiction.
Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980). In fact, judges only have immunity when
5

Doc. No. 26-1, p. 6.


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they are acting within the scope of their subject matter jurisdiction and are performing acts in
their judicial capacities. Haley v. Leary, 2009-1626 (La. App. 4 Cir. 8/4/10), 69 So. 3d 430,
432 33, writ denied, 2010-2265 (La. 12/17/10), 51 So. 3d 14, cert. denied, 132 S.Ct 104
(2011).
Clearly not every action by a judge is done in the exercise of his judicial function. Yates
v. Vill. of Hoffman Estates, Ill., 209 F. Supp. 757, 759 (N.D. Ill. 1962). For example, it is not a
judicial function for a judge to commit an intentional tort even though the tort occurs in the
courthouse. Id. Furthermore, [j]udicial officers may not escape liability for the commission of
illegal acts merely by committing them in the courthouse. Luttrell v. Douglas, 220 F. Supp.
278, 279 (N.D. Ill. 1963). Accordingly, just as not every act by a judge will be covered by
judicial immunity, neither will every act by Caldwell, as the former Attorney General, be
covered by absolute immunity.
Caldwell claims that he is entitled to absolute immunity for any statements he made about
Judge Marchman in pleadings that he filed on behalf of Defendant Campbell in the matter of
Palowsky v. Campbell because he was acting within the scope of his role as an advocate for the
state, and his actions [we]re intimately associated with the judicial phase of a judicial
proceeding.6 Caldwells argument is based on the premise that Campbell, a law clerk, was a
state employee whom he was entitled to defend.
Nevertheless, in the matter of Morgan v. Laurent, 06-467 (La. App. 5 Cir. 12/27/06), 948
So. 2d 282, writ denied, 2007-0178 (La. 3/16/07), 952 So. 2d 701, in order to avoid liability, the
state argued stridently that a law clerk in Jefferson Parish was not a state employee. The state
specifically contended that law clerks are not included in the definition of covered employee

Doc. No. 26-1, p. 14.


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found in La. R.S. 13:5108.1, which addresses defense and indemnification of state employees.
Id. at 285. That statute provides that the term covered individual includes those
[i]n the state supreme court or in the office of the clerk thereof or office of judicial
administrator thereof, in one of the circuit courts of appeal or in the office of clerk
thereof, or in any of the family, juvenile, or judicial district courts of the state or
in the offices of the judicial administrators thereof.
La. R.S. 13:5108.1(E)(1)(c). The Fifth Circuit agreed with the state that law clerks are not
included in the definition of covered employee, and it granted the states summary judgment
and held that the state could not be held liable for damages caused by a law clerk. Id.
Consequently, it is clear that Campbell was not actually entitled to a defense from the
Attorney General in Palowsky v. Campbell.

As such, Caldwell was acting outside his

jurisdiction, to use the term applicable in judicial immunity scenarios, when he accused Judge
Marchman of criminal acts. That being the case, then he cannot be entitled to absolute immunity
for statements he made during his defense of Campbell.
3.

Caldwell Has No Qualified Immunity

Caldwells next argument is that he is entitled to qualified immunity with respect to all
Judge Marchmans claims. Qualified or good faith immunity shields government officials
performing discretionary functions from liability unless their conduct violates clearly
established statutory or constitutional rights of which a reasonable person would have known.
Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)(citations omitted).
Contrary to Caldwells argument, the threshold issue in the qualified immunity context is
not whether Judge Marchmans constitutional rights were violated but whether he was
performing a discretionary function at the time of the actions at issue. The qualified immunity
defense requires a threshold showing that the official was performing a discretionary function
at the time the alleged violation of federal law occurred. Baker v. DeKalb Cty., Ga., 2014 WL

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793527, at *3, n. 5 (N.D.Ga. 2014)(quoting Crosby v. Monroe, 394 F.3d 1328, 1332 (11th Cir.
2004)). Stated another way, an officials entitlement to qualified immunity turns on whether he
was acting in his official capacity at the time in question. Loughlin v. Tweed, 310 F.R.D. 323,
334 (E.D. La. 2015).
For purposes of federal qualified immunity analysis, a defendant acts within his
discretionary authority when his actions were undertaken pursuant to the performance of his
duties and within the scope of his authority. Powers v. CSX Transp., Inc., 105 F. Supp. 2d
1295, 1305 06 (S.D. Ala. 2000)(quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.
1988)(quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir.1981)). As shown above,
Caldwell should not have been defending Campbell as she is not enumerated as a covered
individual under La. R.S. 13:5108.1. Thus, Caldwell was not actually performing any official
duties, discretionary or otherwise, within the scope of his duties when he violated Judge
Marchmans rights. So, qualified immunity should not even be a consideration.
Moreover, officials are only entitled to qualified immunity if they act reasonably and in
good faith fulfillment of their responsibilities. Carrigan v. Guz, 1993 WL 90398, at *3 (D.N.J.
1993)(citing Hynson v. City of Chester, 827 F.2d 932, 934 (3d Cir.1987), cert. denied, 484 U.S.
1007 (1988)). Judge Marchman has certainly made allegations that would support a finding that
Caldwell was not acting in good faith when he chose to defend Campbell. The decision by
Caldwell to provide a defense to Caldwell was not merely a mistake, rather it was a part of the
conspiracy to provide a defense to her where one was not allowed in order to lend the credibility
of the Attorney Generals office to Campbells position and to give her a benefit without her
having to pay for it so that she could continue her actions.

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Given the allegations that Caldwell knowingly and falsely accused Judge Marchman of
criminal acts, that he conspired with his client and her other counsel, and that Campbell was
never entitled to a defense from the Attorney General, it should not be disputed that Caldwell
was not acting in good faith, nor was he acting reasonably. Accordingly, his claim to qualified
immunity is once again negated, and any consideration by this Court of the remainder of
Caldwells arguments as to qualified immunity should be pretermitted.
4.

Judge Marchman Has Sufficiently Alleged that Her Constitutional


Rights Were Violated.

Should this Court find, however, that Caldwell passed the threshold test of proving that
he was performing a discretionary function, and doing so reasonably and in good faith, Judge
Marchman submits that Caldwells qualified immunity claim still is not valid because he violated
her clearly established constitutional rights. Of course at this stage, Judge Marchman does not
have to prove the violations, she only has to prove that she has sufficiently alleged same.
a.

First Amendment Rights

The essence of Caldwells verbose argument with respect to Judge Marchmans 1983
claim (and the related claims under 1985, 1986, and 1988) stemming from the violation of her
First Amendment rights is that as a judge, she has no First Amendment rights. Caldwells
argument is based on the case of Garcetti v. Ceballos, 547 U.S. 410 (2006). Nevertheless, the
question presented in that case was whether the First Amendment protects a government
employee from discipline based on speech made pursuant to the employee's official duties. Id.
at 413 (emphasis added). And therein lies the problem with Caldwells position.
Judge Marchman has not claimed that she was subject to lawful or appropriate discipline
for attempting to expose Defendant Campbells payroll fraud and document destruction. Indeed,
she has alleged that she has been subjected to threats, intimidation, and false (and very public)

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accusations of wrongdoing and criminal activity. Those allegations differ greatly from the ones
made by the plaintiff in Garcetti, which included reassignment from his calendar deputy
position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Id.
at 415. Accordingly, Garcetti is distinguishable and cannot support Caldwells position that
Judge Marchmans speech related to Defendant Campbell was not protected by the First
Amendment.
Judge Marchman will also add that when she produced documents related to Defendant
Campbell in response to a valid subpoena duces tecum, she was not acting as an official, she was
acting as a private citizen. So once again, the argument that Judge Marchman has no First
Amendment rights that were violated is incorrect. It follows then, that Caldwells argument that
Judge Marchman did not allege that he violated a clearly established law has no merit.
Caldwell also argues that Judge Marchman did not allege any injury, though she did
detail the effects that the actions of Caldwell and his fellow defendants have had on her.7 She
also specifically alleged that her free speech was chilled.8

Courts have held that when

determining whether someone has standing to assert a First Amendment claim, [r]eputational
injury . . . is sufficient to establish an injury in fact. Parsons v. U.S. Dep't of Justice, 801 F.3d
701, 711 (6th Cir. 2015)(citing Meese v. Keene, 481 U.S. 465, 47376 (1987)(exhibitor of
foreign films had standing to challenge the DOJ's label of certain films as political
propaganda); Turkish Coal. Of Am., Inc. v. Bruininks, 678 F.3d 617, 62223 (8th Cir.
2012)(cognizable injury to reputation pled resulting from defendant labeling plaintiff's website
unreliable)).

7
8

Doc. No. 22, 85 96.


Id. at 99, 102, 105.
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More specifically, where claims of a chilling effect are accompanied by concrete


allegations of reputational harm, the plaintiff has shown injury in fact. Id. (citing Meese, 481
U.S. at 47375). Thus, to be clear, such reputational injuries are cognizable claims under First
Amendment and due process causes of action. Id. at 712 (citing Meese, 481 U.S. at 47374).
Because Judge Marchman alleged that her reputation has been harmed, that her standing in the
community has been harmed, that she has become a pariah at the courthouse, and that all the
defendants, including Caldwell, are attempting to interfere with her ability to do her job as a
duly-elected judge by accusing her of wrongful acts, threatening her, and trying to intimidate her,
then she has certainly alleged an injury sufficient to pass F.R.C.P. 12(b)(6) muster.
Caldwell also argues Judge Marchman did not show or allege that her exercise of free
speech was a substantial or motivating factor in Caldwells actions.

Judge Marchman

respectfully disagrees, though, because the entirety of her Amended Complaint makes it clear
that Caldwell only acted as he did after Judge Marchman tried to expose his clients payroll fraud
and document destruction. Had Judge Marchman remained silent, Caldwell would have never
conspired with Campbell to retaliate against Judge Marchman, and he would have never filed
pleadings accusing her of wrongdoing and committing criminal acts.
In short, Judge Marchman has sufficiently alleged a violation of her First Amendment
rights so as to have asserted a 1983 cause of action and survive Caldwells 12(b)(6) motion.
Moreover, and as discussed below, Judge Marchmans claims under 1985, 1986, and 1988
which derive from her 1983 First Amendment claim also should survive Caldwells motion.
b.

Fourteenth Amendment Rights

The crux of Caldwells argument with respect to Judge Marchmans Fourteenth


Amendment claim is that she did not assert that she was a member of a protected class or that she

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was treated differently from others similarly-situated to her; therefore, she did not sufficiently
allege a violation of her constitutional rights. Caldwell admits that per the Supreme Court in
Village of Willowbrook v. Olech, 528 U.S. 562 (2000), someone who has not alleged that he or
she is a member of a protected class can have a Fourteenth Amendment claim if that person
alleges that he or she has been treated differently from others who are similarly-situated.
According to Caldwells literal interpretation, though, the only individuals who could have been
similarly-situated to Judge Marchman would have been other judges who tried to expose
Campbells payroll fraud and document destruction. This position, though, is without merit.
The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall deny to any person within its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated should be treated alike.

City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)(citing Plyler v. Doe, 457 U.S.
202, 216 (1982)). In other words, its purpose is to secure every person within the States
jurisdiction against intentional and arbitrary discrimination . . . . Vill. of Willowbrook,, 528
U.S. at 564 (citations omitted).
Under Caldwells theory, in order to assert a Fourteenth Amendment equal protection
claim, Judge Marchman would have to allege that she was treated differently from other judges
who tried to expose Campbells activities. However, the equal protection clause applies to those
similarly situated, not identically situated. Here, it is plain to see that no other judges tried
to expose Campbells activities, so that in and of itself would kill Judge Marchmans claim if
Caldwell were correct. Such a result would be illogical. A more appropriate analysis would be
to determine whether Judge Marchman was treated differently from other judges at the Fourth
Judicial District Court. When the treatment of Judge Marchman is compared to the treatment

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of the other judges, it is obvious that she has been singled out and treated differently, and
moreover, she has been subjected to a hostile work environment.
Caldwell also argues that Judge Marchman did not allege that Caldwells actions had no
rational basis.

He claims that because he was defending Campbell pursuant to La. R.S.

13:5108.1, then his actions had a rational basis. As discussed above, though, Caldwell should
not have provided Campbell with a defense as she is not enumerated as a covered person in
said statute. Thus, there was no rational basis for him to even be filing pleadings on Campbells
behalf. There certainly was no rational basis for him to accuse Judge Marchman of criminal
activity.
Caldwell further argues that Judge Marchman did not allege that his acts were motivated
by any improper consideration, such as . . . the desire to prevent the exercise of a constitutional
right.9 To the contrary, the whole of Judge Marchmans Amended Complaint alleges that the
actions of Caldwell and the other defendants were specifically designed to keep her from
exercising her right to free speech, i.e., her right to let the public know that Campbell had
committed payroll fraud and destroyed public documents and that multiple judges had conspired
to, and did, cover-up same. Caldwells argument in this regard simply must be ignored.
Given the above, Judge Marchman has sufficiently alleged a 1983 claim for the
violation of her right to equal protection under the Fourteenth Amendment. As such, her related
claims under 1985, 1986, and 1988 must also survive Caldwells motion.

Out of an

abundance of caution, though, Judge Marchman will briefly address same.


5.

Lawyers and Clients Can Conspire with Each Other.

In addition to arguing that Judge Marchmans 42 U.S.C. 1985 conspiracy claims,


1986 refusal-to-stop-conspiracy claims, and related 1988 claim for attorney fees must fail
9

Doc. No. 26-1, p. 20.


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because she has not shown any First or Fourteenth Amendment violations, Caldwell also argues
that those claims must be dismissed now because Caldwell was legally incapable of conspiring
with his client or with her attorneys. As shown above, Judge Marchman has sufficiently alleged
constitutional violations to withstand a 12(b)(6) motion on her 1983 claims. As for the
conspiracy itself, Caldwell argues that legally, he, his client, and her other counsel all constitute
one entity; therefore, there can be no conspiracy as there are not two persons involved.
Caldwell bases this untenable position on the case of Hilliard v. Ferguson, 30 F.3d 649 (5th Cir.
1994), which held as follows:
We follow the reasoning of the other courts on this question and hold that a
school board and its employees constitute a single legal entity which is
incapable of conspiring with itself for the purposes of 1985(3).
Id. at 653 (emphasis added).
The court in Hilliard made no mention of conspiracies between attorneys and clients.
Instead, it focused on the intracorporate conspiracy doctrine, the original purpose of which was
to enable corporations to act, permitting the pooling of resources to achieve social benefits and,
in the case of tortious acts, to require a corporation to bear the costs of its business enterprise.
St. Martin, 2008 WL 4412267, at *10 (quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594,
603 (5th Cir. 1981)). Nonetheless, the Fifth Circuit has even noted that officers and directors of
a single corporation could be liable for conspiracy under 42 U.S.C. 1985(3). Id. (quoting
Dussouy, 660 F.2d at 603).
Still, the intracorporate conspiracy doctrine has no applicability to the conspiracy
between an attorney and his client.

Significantly, the issue of an attorneys liability for

conspiring with his client was addressed in the Louisiana case Economy Carpets Mfrs. &
Distributors, Inc. v. Better Business Bureau of Baton Rouge, Inc., 333 So. 2d 765 (La. App. 1st

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Cir. 1976), writ denied, 334 So. 2d 428 (La. 1976). Therein, suit was brought against the Better
Business Bureau and its attorney for conspiracy to restrain trade or commerce and to defame the
plaintiff. More specifically, it was alleged that
Bob Breazeale, a partner in the defendant law firm, met with the president of the
Better Business Bureau, and aided, assisted and cooperated in the preparation
and publication of a bulletin containing false and misleading information, which
resulted in damages to the plaintiff.
Id. at 768 (emphasis added). The court began its analysis by noting the general law on liability
for conspiracy:
In Louisiana, if a conspiracy to do an unlawful act is entered into by two or more
persons, and one of them does an act in furtherance thereof, all of the conspirators
may be held civilly liable for damages to a third party resulting therefrom.
Id. at 768 (citing La. C.C. art. 2324 and Tabb v. Norred, 277 So. 2d 223 (La. App. 3 Cir. 1973)).
The court went on to easily conclude that if the plaintiffs allegations were true, then the
defendant attorney could be held liable for conspiracy. Its findings were explained as follows:
Defendant argues that Mr. Beazeale was acting in his capacity as attorney for
the Better Business Bureau; that the substance of his conversation with the
president of the Bureau was privileged, and could never be divulged; and that the
allegations as to what occurred therein could never be proven.
This argument is without merit. We are not concerned with whether the plaintiff
can prove the allegations of his petition, or whether he can win his case. We need
only determine whether, if as alleged, Mr. Breazeale assisted and advised in the
publication of libelous or defamatory material, defendants would be liable for any
damages suffered by plaintiff as a result.
We think it clear that liability would arise under the above circumstances,
under the provisions of Article 2324, supra, and find that plaintiff has alleged a
cause of action.
Id. (emphasis added). Thus, it cannot be disputed that an attorney can conspire with his client.
Moving on then, in the context of considering whether a plaintiff has sufficiently alleged
a claim under 1985, it has been held that allegations can be substantiated by circumstantial

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evidence because conspirators rarely formulate their plans in ways susceptible of proof by direct
evidence. Jones v. Bd. of Supervisors of the Univ. of Louisiana Sys., 2015 WL 3409477, at *8
(E.D.La. 2015)(quoting St. Martin, 2008 WL 4412267, at *78). In fact, in St. Martin, the court
found that the plaintiffs alleged sufficient facts to make out a 1985(3) claim by merely stating
that there was a litany of complaints against one defendant and that the other defendants knew
about the complaints but chose not to act upon them. 2008 WL 4412267, at *8.
Judge Marchman has alleged that Caldwell conspired with Defendant Campbell, her
other attorneys, and the attorneys for the defendant judges in Palowsky v. Campbell to further
Campbells plan to retaliate against, threaten, intimidate, and harm Judge Marchman. Judge
Marchman alleged that Caldwell furthered Campbells plan by filing pleadings which falsely
accused Judge Marchman of wrongdoing and criminal acts.

Judge Marchman additionally

alleged that Caldwell had the power to stop Campbell and the defendant judges from carrying on
their threats, intimidation, and harm, but he refused to do so. Accordingly, Judge Marchman
respectfully submits that she has sufficiently alleged claims under 1985, 1986, and 1988.
C.

Leave to Amend

Rule 15 of the Federal Rules of Civil Procedure states that a court should freely give a
party leave to amend its complaint when justice so requires. Waste Commanders, LLC v. BFI
Waste Servs., LLC, 2015 WL 1089320, at *4 6 (W.D.La. 2015). In Big River Indus., Inc. v.
Headwaters Res., Inc., 971 F. Supp. 2d 609 (M.D. La. 2013), the defendant argued that the
plaintiff therein should not be allowed to amend its complaint as it would have been futile. The
court disagreed and explained as follows:
Despite Defendant's argument to the contrary, the Court does not believe that
allowing BRI to amend its claim would be futile. Though the Complaint is
deficient in many ways, there are enough factual allegations, taken as true, that
give reason for some suspicion.

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Id. at 625. Likewise, should this Court find that Judge Marchmans complaint is deficient in any
manner, it should allow her an opportunity to amend and cure the deficiencies.
III.

CONCLUSION
As shown above, Judge Marchman has made sufficient allegations to state a claim for

relief that is plausible on its face; therefore, Defendant Caldwells motion to dismiss should be
denied. Should this Court disagree, though, Judge Marchman respectfully submits that she
should be allowed 30 days within which to seek leave to amend to cure the defects in her
Amended Complaint.
Respectfully submitted:

/s/ Joseph R. Ward, Jr.


JOSEPH R. WARD, JR. (T.A.)(Bar #08166)
WARD & CONDREY, LLC
409 E. Boston Street, Suite 200
Covington, Louisiana 70433
Telephone: (985) 871-5223
Facsimile: (985) 871-5234
E-Mail: jward@wardandcondrey.com
-andSEDRIC E. BANKS #02730
Attorney at Law
1038 North Ninth Street
Monroe, La. 71201
Telephone: (318) 388-1655
Facsimile: (318) 388-0227
E-Mail: sedbanks@aol.com
Attorneys for Plaintiff, Judge Sharon Ingram
Marchman

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CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of June, 2016, I presented the foregoing
Supplemental, Amended, and Restated Complaint to the Clerk of Court for filing and uploading
to the CM/ECF system.
/s/ Joseph R. Ward, Jr.
Joseph R. Ward, Jr.

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