06102016 motion to dissmiss- crawford

7/26/2019 06102016 Motion to Dissmiss- Crawford

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

JUDGE SHARON INGRAM MARCHMAN

Plaintiff

* CIVIL ACTION NO. 16-CV-00515

* JUDGE HICKS

VERSUS *

* MAGISTRATE PEREZ-MONTES

BRIAN E. CRAWFORD; 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

*

JURY TRIAL DEMANDED

Defendants *

******************************************************************************

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS

Respectfully submitted:

ALLEN & GOOCH

A Law Corporation

/s/ JAMES H. GIBSON

____________________________________

JAMES H. GIBSON 142852000 Kaliste Saloom Rd Suite 400Lafayette, LA 70508

P. O. Box 81129Lafayette, LA 70598-1129Direct Dial 337-291-1300Direct Fax 337-291-1305

COUNSEL FOR DEFENDANT, BRIAN E.CRAWFORD

Case 3:16-cv-00515-SMH-JPM Document 40-1 Filed 06/10/16 Page 1 of 45 PageID #: 910


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TABLE OF CONTENTS

Table of Contents .............................................................................................................. ii

Table of Authorities .......................................................................................................... iv

Introduction ...................................................................................................................... 1

Background Facts and Procedural History ......................................................................... 1

Law and Argument............................................................................................................ 19

A. 12(b)(6) Motion to Dismiss Legal Standard ..................................................... 19

1. Plaintiffs Civil Rights Action Does Not Lie Against Crawford, aPrivate Attorney ................................................................................... 21

2. Plaintiffs Allegations Fail to Support Conspiracy Claims Under 1983 223. Plaintiffs Allegations Fail to Support Conspiracy Claims Under 1985 284. Plaintiffs Allegations Fail to Support a 1986 Claim ........................... 31

B. The Timeline Disproves that Plaintiff Judge Marchmans Hands Were Clean .. 31

Conclusion ........................................................................................................................ 36

Exhibit 1 - October 23, 2014 Memorandum in Support of Motion to RecuseDefendant Judge Rambo (Palowsky v. Cork) .............................................. 39

Exhibit 2 - June 12, 2015 Motion to Recuse En Banc and to Appoint Ad Hoc Judge,(Palowsky v. Cork) ..................................................................................... 47

Exhibit 3 - May 31, 2015 Reasons and Judgment (Judge Stephen Winters, in hiscapacity as Chief Judge of the 4thJudicial District Court v. Hanna Media,

Inc.) ........................................................................................................... 60

Exhibit 4 - Petition for Damages (Palowsky v. Campbell) ............................................ 64

Exhibit 5 - First Supplemental, Amended and Restated Petition for Damages,(Palowsky v. Campbell).............................................................................. 77

Exhibit 6 - Motion to Strike, Request for Sanctions, and Request for ContemptCitations (Palowsky v. Campbell) ............................................................... 98

Exhibit 7 - Memorandum in Opposition to Allyson Campbells Exceptions of NoCause of Action, No Right of Action, Prescription, and Vagueness,(Palowsky v. Campbell).............................................................................. 117



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Exhibit 8 - Supplemental Memorandum in Support of Campbells Motion to Strike,Request for Sanctions and Request for Contempt Citations (Palowsky v.Campbell) .................................................................................................. 143

Exhibit 9 - Supplemental Memorandum in Support of Exceptions of No Cause ofAction, No Right of Action, Prescription and Vagueness (Palowsky v.Campbell) .................................................................................................. 149

Exhibit 10 - Supplemental Motion to Strike and Memorandum in support (Palowsky v.Campbell) .................................................................................................. 162

Exhibit 11 - Transcript of November 5, 2015 (Palowsky v. Campbell) ........................... 170

Exhibit 12 - Transcript of August 20, 2015 (Palowsky v. Cork) ..................................... 197

Exhibit 13 - April 15, 2016 letter from Stephen Street, State Inspector General, to JerryJones, District Attorney .............................................................................. 251

Exhibit 14 - September 5, 2014 Opening of Court Transcript ........................................ 253



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Table of Authorities

Federal Statutes

FRCP 12 ........................................................................................................................... 19

42 U.S.C. 1983 ................................................................................................................ 21, 22, 23,.............................................................................................................................. 24, 25, 26

42 U.S.C. 1985 ................................................................................................................ 21, 28,.............................................................................................................................. 29, 30, 31

42 U.S.C. 1986 ................................................................................................................ 21, 31

Federal Cases

Adickes v. S.H. Kress & Co.398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ............................................. 23

Arseneaux v. Roberts,726 F. 2d 1022 (5thCir. 1982) ................................................................................ 23

Ashcroft v. Iqbal,556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ................................ 20

Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S. Ct. 1955 (2007) .................................................................... 19

Broussard v. Lafayette City-Parish Consolidated Government,45 F. Supp. 3d 553 (W.D. La. 2014) ...................................................................... 23

Cinel v. Connick,15 F. 3d 1338 (5thCir. 1994).................................................................................. 23

Cyrio v. Hunt,2007 WL 2772222 (E.D. La. 9/19/07).................................................................... 3

Daigle v. Gulf States Utilities Co.,794 F. 2d 974 (5thCir. 1986).................................................................................. 29

Dennis v. Sparks,449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) .......................................... 21

Dennison v. City of New Orleans,1997 WL361904 (E.D. La. 6/27/97) ...................................................................... 25, 26, 27



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Dolenz v. Akin,

1997 WL 21388 (N.D. Tex. 1/14/97) ..................................................................... 25

Dudley v. Angel,

209 F. 2d 460 (5

th

Cir. 2000).................................................................................. 24

Dyess v. Louisiana State University Bd. of Supervisors

2005 WL 2060915 (E.D. La. 8/19/05).................................................................... 25, 26

Filarsky v. Delia,566 U.S. ____, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012) ........................................ 22

Financial Acquisition Partners LP v. Blackwell,

440 F.3d 278 (5thCir. 2006)................................................................................... 3

Garcetti v. Caballos,547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) .......................................... 24

Glotfelty v. Karas,512 Fed. Appx. 409 (5thCir. 2013) ........................................................................ 21

Hale v. Harney,786 F. 2d 688 (5thCir. 1986).................................................................................. 23

Hamill v. Wright,870 F. 2d 1032 (5thCir. 1989) ................................................................................ 30

Haydell Industries, LLC v. Petrucci,702 F. Supp. 2d 688 (W.D. La. 2010) .................................................................... 20

Hill v. McClellan,490 F. 2d 859 (5thCir. 1974).................................................................................. 21

Horaist v. Doctors Hosp. of Opelousas,255 F. 3d 261 (W.D. La. 2001) .............................................................................. 30

Johnston v. Harris County Flood Control Dist.,869 F. 2d 1565 (5thCir. 1989) ................................................................................ 23

Kraft Food Ingredients, Corp. v. PCI International Consultants, Inc.,2008 WL 4001184 (W.D. La. 8/27/08) .................................................................. 20

Marceaux v. Lafayette City-Parish Consolidated Government,921 F. Supp. 2d 605 (W.D. La. 2013) .................................................................... 28



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McKinley v. Harvey Toyota of Bossier City, Inc.,534 F. Supp. 2d 668 (W.D. La. 2008) .................................................................... 19

Mississippi Womens Medical Clinic v. McMillan,866 F. 2d 788 (5thCir. 1989).................................................................................. 31

Montoya v. FedEx Ground Package System, Inc.,614 F. 3d 145 (5thCir. 2010).................................................................................. 28

Nelson v. Stratton,469 F. 2d 1155 (5thCir. 1972) ................................................................................ 22

Pete v. Metcalfe,8 F. 3d 214 (5thCir. 1993) ..................................................................................... 22

Polk County v. Dodson,

454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ............................................. 22

Rodriguez v. Neeley,169 F. 3d 220 (5thCir. 1999).................................................................................. 28

Sims v. Jefferson Downs Racing Assn,778 F. 2d 1068 (5thCir. 1985) ................................................................................ 21

Sparks v. Duval County Ranch Co.,604 F. 2d 976 (5thCir. 1979).................................................................................. 21

U.S. ex rel. Simmons v. Zibilich,542 F. 2d 259 (5thCir. 1976).................................................................................. 22

Village of Willowbrook v. Olech,528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) ........................................ 24

Villanueva v. McInnis,723 F. 2d 414 (5thCir. 1984).................................................................................. 23

West v. Atkins,487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ............................................. 22

Williams v. Bramer,180 F. 3d 699 (5thCir. 1999).................................................................................. 24



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State Statutes

Rule XXIII, Louisiana Supreme Court Rules ..................................................................... 24

State Cases

Gulf States Land and Development, Inc. v. Ouachita National Bank in Monroe,29,134 (La. Ct. App. 2 Cir. 4/4/97), 705 So. 2d 189 ............................................... 2

In Re Curry,2008-2557 (La. 7/1/09), 16 So. 3d 1139 ................................................................. 2



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INTRODUCTION

Defendant attorney Brian Crawford submits this memorandum in support of his Motion

to Dismiss pursuant to FRCP 12(b)(6). Plaintiff Judge Marchmans core complaint against

Crawford focuses on filings made by Crawford and his co-counsel in his representation of

Defendant Allyson Campbell, in which it was urged that Plaintiff Judge Marchman illegally

disclosed Campbells confidential personnel records. Plaintiff Judge Marchman further alleges,

without specificity, that Crawford conspired with the other defendants to deprive her of her civil

rights. However, Plaintiff Judge Marchman has failed to state a claim against Crawford because:

The indisputable facts establish that Plaintiff Judge Marchman did illegally discloseCampbells confidential personnel records,

Crawford is a private actor, thus no cause of action lies against him under 1983,

the Complaint fails to allege facts supporting a conspiracy with state actors pursuant to1985, and

without adequate allegations of a conspiracy under 1985, Plaintiff Judge Marchmans1986 claim fails as well.

Furthermore, because those ultimately responsible for outing Plaintiff Judge Marchmans

violation of Judge Ad Hoc Anne Simons order, as truthfully reported by the complained of

pleadings at issue, are her own attorneysnot Crawford--the Motion to Dismiss should be

granted.

BACKGROUND FACTS AND PROCEDURAL HISTORY

From the proliferation of litigation surrounding her unremarkable duties as law clerk for

the Fourth Judicial District Court,1it is evident that someone has it out for Allyson Campbell and

1This is the fourth suit in which Defendant Campbells work habits and off-duty activities along with attacks on hercharacter and integrity and that of the Fourth Judicial District Court bench take center stage. See Palowsky v. Cork,



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will move heaven, earth, state and federal courts to exact their pound of flesh from her or her

attorneys. What is unclear from a review of plaintiffs multiple complaints however, is the

identity(ies) of the villain(s) of this piece out of the recurring cast of characters. To aid in

placing this suit in the larger context, the following recitation traces the intertwined background

facts and litigation culminating in this suit.

Stanley Palowsky, Jr. was a client of Plaintiff Judge Marchmans before she was elected

to the bench in 2000.2 Similarly, attorneys Joe Ward and Sedric Banks also have represented

Mr. Palowsky, his family and his businesses for many years. Messrs. Ward and Banks represent

Plaintiff Judge Marchman in the matter at bar.

Defendant Allyson Campbell has been a law clerk with the Fourth Judicial District Court

for approximately 14 years. Her supervising judges have included now Justice Marcus Clark -

now Second Circuit Court of Appeal Judge D. Milton Moore, III and Defendant Judges Amman,

Sharp and Rambo. Plaintiff Judge Marchman has never directly or indirectly supervised

Campbell. Despite that fact, as far back as 2010, Plaintiff Judge Marchman began to complain to

the other judges about Defendant Campbells work habits and attendance.3 Over the next few

years, Defendant Campbells confidential employment file was populated with complaints about

Defendant Campbells work habits or attendance, and the investigation and resolution of those

complaints. However, Plaintiff Judge Marchmans efforts, as extensively detailed in her

Complaint, consistently failed to bear fruit in the form of Defendant Campbells termination.

Docket No. 13-2059, 4thJudicial District Court; Judge Stephen Winters, in his capacity as Chief Judge of the 4th

Judicial District Court, Docket No. 15-0770, 4thJudicial District Court; andPalowsky v. Campbell, Docket No. 15-2179, 4thJudicial District Court.2 See Gulf States Land and Development, Inc. v. Ouachita National Bank in Monroe , 29,134 (La. Ct. App. 2 Cir.4/4/97), 705 So. 2d 189, andIn Re Curry, 2008-2557 (La. 7/1/09), 16 So. 3d 1139.3Complaint at 18.



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In July 2013, Stanley Palowsky, III, Mr. Palowskys son, filed a lawsuit in the Fourth

Judicial District Court captioned Palowsky v. Cork.4 Mr. Palowsky, III, alleged various

misdeeds by the co-owner of an environmental clean-up entity in which Mr. Palowsky, III, and

his partner, Mr. Cork, were the sole corporate shareholders. Messrs. Ward and Banks represent

Mr. Palowsky, III and his company.5 Thomas Hayes III and his firm represent the defendants.

Initially, Mr. Palowsky, IIIs case was assigned to Defendant Judge Rambo. Over the

course of the litigation, Mr. Palowsky, III sought the recusal of Judge Rambo, then his successor,

Defendant Judge Sharp, and, ultimately, the entire Fourth Judicial District Court. This

necessitated the appointment of JudgeAd Hoc Dee Hawthorne to hear Mr. Palowsky, IIIs case.

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In October 2014 via recusal motion, Mr. Palowsky, III attacked Judge Rambos fairness and

impartiality, accusing him of causing undue delays, showing bias and prejudice against Messrs.

Ward and Banks while showing clear favoritism to opposing counsel, Mr. Hayes, as well as

improperly supervising his law clerk, Campbell.7 After seeking recusal of the entire Fourth

Judicial District Court, Mr. Palowsky, III also sought to add Mr. Hayes and his firm as

defendants in his suit, alleging fraud, conspiracy, racketeering and/or unprofessional conduct.8

4Docket No. 13-2059, 4thJudicial District Court.5The case remains pending.6 Exhibit 1, October 23, 2014 Memorandum in Support of Motion to Recuse Defendant Judge Rambo, and Exhibit2, June 12, 2015 Motion to RecuseEn Banc and to AppointAd Hoc Judge, filed on behalf of Mr. Palowsky, III, byMessrs. Ward and Banks in Palowsky v. Cork, Docket No. 13-2059, 4th Judicial District Court. A court mayconsider matters of public record when considering a Motion to Dismiss pursuant to FRCP 12(b). Financial

Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5 thCir. 2006). See also Cyrio v. Hunt, 2007 WL 2772222

(E.D. La. 9/19/07) at *4 (although generally limited to the allegations on the face of the complaint, the court mayalso take into account matters of public record, orders, items appearing in the record of the case and exhibitsattached to the complaint in resolving a FRCP 12(b) motion).7 Exhibit 1. Evidently, Mr. Palowsky, III was bothered that Campbell wrote fluff society pieces for theMonroe

NewsStarthat complimented Mr. Hayes on having the IT factor and being one of the best dressed gents in town.Id. at item 49. Plaintiff Judge Marchman also references Campbells newspaper articles in the Complaint at 35,41.8This spawned yet another suit,Palowsky v. Hayes, Docket No. 2014-2412, 4thJudicial District Court.



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While Mr. Palowsky, IIIs case was pending, Johnny Gunter, a reporter forThe Ouachita

Citizen, sent five public records requests to Chief Judge Stephen Winters of the Fourth Judicial

District Court in February and March 2015.9 Mr. Gunter sought specific information contained

in Campbells personnel records.10 Judge Winters responded to the requests by producing only

those documents believed to be subject to production in accordance with advice of his counsel--

Jon Guice, yet another defendant in this case.11 Judge Winters did not produce to the reporter

commendations, evaluations or other documents addressing Campbells job performance, citing

Campbells right to privacy.12 After Mr. Gunter lodged a criminal complaint, Judge Winters

filed a declaratory judgment action seeking judicial determination after in camerainspection as

to whether the withheld documents were subject to production. Campbell intervened in that

action.

By Judgment of May 31, 2015, Judge Ad Hoc Anne Simon, after her in camera

inspection, issued a ruling regarding the propriety of withholding certain of Campbells records

from production.13 Judge Simons Reasons and Judgment explained that Judge Winters must not

produce documents responsive to four detailed requests by Mr. Gunter:

1. Reports of any disciplinary action or reprimands taken against any employee(s) whoreceived pay or leave time for which they were not entitled,

2. Any document showing the reason(s) Campbell was not at work during the month ofMay 2014,

3. Campbells timesheets, any written correspondence, reprimands, accommodations,job descriptions, salary and attendance records.

9Complaint at 47.10 Exhibit 3, Reasons and Judgment dated May 31, 2015 issued by Judge Anne Simon inJudge Stephen Winters, inhis capacity as Chief Judge of the 4thJudicial District Court, Docket No. 15-0770, 4thJudicial District Court.11Judge Winters is not a defendant in this action.12 Exhibit 3.13Id.



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4. Any sworn/unsworn document filed by Monroe attorney Cody Rials at the request ofFourth Judicial District Court Judge Wendell Manning concerning missing files or thedestruction of court records by Campbell.14

Scrutiny of these categories reveal that Mr. Gunter demonstrated the uncanny and accurate

ability to intuit the contents of Campbells confidential personnel file now referenced by Plaintiff

Judge Marchman in her Complaint. Equally interestingly, some of the confidential information

from Campbells personnel file had already been cited by Messrs. Ward and Banks in the

October 2014 Motion to Recuse Judge Rambo filed on Mr. Palowsky, IIIs behalf. One must

inquire who was the source of these early personnel disclosures.

For example, Plaintiff Judge Marchmans current Complaint relates an April 24, 2014

meeting of the Fourth Judicial District judges, a confidential proceeding, in which actions were

taken to remove Campbell as senior law clerk, terminate her stipend and suspend her for the

month of May without pay.15 Ostensibly, this confidential meeting and its equally confidential

outcome would have been documented in Campbells personnel file. Mr. Gunters request

sought any document showing the reason(s) Allyson Campbell was not at work during the

month of May 2014.

Plaintiff Judge Marchmans Complaint also describes a newspaper piece by Campbell

published on August 10, 2014 that allegedly caused attorney Cody Rials to make a confidential

complaint about Campbell the following day.16 The complaint was passed on to Plaintiff Judge

Marchmanchair of the personnel committee--who alleges that she turned it over to the chief

judge who ordered Mr. Rials to reduce his complaint to writing.17 The Motion to Recuse in

14 Exhibit 3 at p. 2. Judge Simon also concluded that her review in camera did not support the swirlingallegations/rumors of Campbells misconduct.15Complaint at 31.16Id. at 36.17Id.



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Palowsky v. Cork filed in October 2014 clearly references the confidential complaint as Mr.

Palowsky, IIIs counsel admits to questioning the Judicial Administrator about it within 48 hours

of the complaint being made:

20. On August 13, 2014, the Judicial Administrator confirmed in an in-personmeeting with AESIs counsel that complaints had been made against JudgeRambos law clerk in another case. The Judicial Administrator was thenadvised of missing court filings, as well as undue delays in rulings.18

Plaintiff Judge Marchmans Complaint clarifies that Mr. Banks asked the Judicial Administrator

on August 13, 2014 about the actions of Campbell in the 2012 Rials complaint, pinpointing

Mr. Banks knowledge of the incident and Mr. Rials name within days of it being reported to

Judge Marchman.19 Similarly in his requests, Mr. Gunter sought any document filed by Monroe

attorney Cody Rials at the request of Fourth Judicial District Court Judge Wendell Manning

concerning missing files or the destruction of court records by Campbell.20

Plaintiff Judge Marchman also alleges that an en bancmeeting of the judges took place

on September 12, 2014 (a month before Mr. Palowsky, III filed Exhibit 1), at which time a

reprimand letter directed to Campbell was discussed regarding numerous missing applications

for post-conviction relief found in Campbells office during the May suspension.21 There was

also dialogue about complaints by two local attorneys that Campbell had shredded or withheld

their documents from the judge who should have received them.22 However, Messrs. Ward and

Banks could not independently learned or known about the missing post-conviction relief

applications discussed in a confidential meeting of the judges the month before, and yet the

Motion to Recuse Defendant Judge Rambo states:

18 Exhibit 1.19Complaint at 38.20 Exhibit 3.21Complaint at 41.22Id.



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17. Meanwhile, information surfaced regarding Judge Rambos law clerkwithholding and shredding court documents and causing delay in domesticlitigation. Still, other information surfaced about Judge Rambos law clerkdelaying scores of writ applications and had, actually, used such court recordsas an end table in her office. After this information was brought to plaintiffs

attention, he became suspicious of the multiple delays in his case, particularlyafter the Clerk of Court advised that Judge Rambos office did pick up thesealed documents the same day the sealed documents were filed, March 14,2014.23

Messrs. Ward and Banks did not identify in the motion the source of the other information that

surfaced regarding Campbell. The foregoing filing demonstrates that Messrs. Ward and

Banks, and Mr. Gunter, all had knowledge about the confidential contents of Campbells

personnel file long before Judge Simon ever ruled.

Judge Simon heard oral arguments on May 19, 2015 and thereafter conducted an in

camera inspection of the documents responsive to Mr. Gunters requests, but withheld as

private.24 Plaintiff Judge Marchmans Complaint insinuates that the other judges withheld

documents from Judge Simons review by alleging that in meetings with the judges she

repeatedly requested that they produce all documents to Judge Simon.25 However, her

Complaint is silent as to what was or was not provided to Judge Simon. In contrast, Judge

Simons written ruling clearly recites that she reviewed the withheld documents responsive to the

four categories: disciplinary action or reprimand for payroll fraud, documentation indicating

why Campbell was suspended in May 2014, her timesheets, attendance records, salary, and

disciplinary history and the Rials complaint.26 It cannot be disputed that had a respected and

meticulous jurist like Judge Simon believed documents responsive to those requests were being

withheld from her, she certainly would have investigated and made a record of same.

23 Exhibit 1.24Id.at p. 3.25Complaint at 52-54.26 Exhibit 3.



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Ultimately, Judge Simon ruled that Campbells expectation of privacy in the withheld

documents precluded their production. None of the parties sought appellate review rendering

Judge Simons judgment of May 31, 2015 final. Thus, the private contents of Campbells

personnel file were to remain private. They did not.

On July 22, 2015, less than two months after Judge Simons ruling, Mr. Palowsky, III,

filed a Petition for Damages against Campbell, accusing her of criminal conduct in maliciously

spoliating, concealing, removing, destroying, shredding, withholding and improperly handling

court documents in the Palowsky v. Cork litigation.27 Once again, Messrs. Ward and Banks

represented Mr. Palowsky, III in his lawsuit. The factual allegations supporting these causes of

action consisted of scandalous, immaterial, impertinent, and insulting commentary on and

disparagement of Campbells character, along with reference to and quotations from the society

column Campbell wrote for the Monroe NewsStar. Much of the Petition also related detailed

information that Palowsky learned about investigations into complaints about Campbells

workconfidential complaints and confidential internal investigations which Judge Simon

had ordered to remain confidential.28

Not content with the vilification of Campbell, nine days later Mr. Palowsky, III, through

his counsel, Messrs. Ward and Banks, filed a First Supplemental, Amended and Restated Petition

for Damages.29 Mr. Palowsky, IIIs July 31, 2015 supplemental pleading added Judges Sharp,

Jones, Amman and Rambo, and Judge Winters as defendants. Mr. Palowsky, III, through

27 Exhibit 4, Petition for Damages,Palowsky v. Campbell, Docket No. 15-2179, 4thJudicial District Court.28 Exhibit 4 at 11(c), 16, 18, 32, 33, 36, 37. Interestingly, Plaintiff Judge Marchman goes into detail in theComplaint about what she reports transpired at meetings of the judges discussing personnel matters, results ofinvestigations, and other events. Although she takes pains to point out that she voluntarily recused herself in June2014 from personnel committee matters involving Campbell after learning that Campbell was actively seekingsomeone to oppose her in the upcoming fall election, curiously her further allegations show that she admittedlyimmersed herself in all matters concerning Campbell thereafter. Complaint at 33, 36, 41, 49, 50, 52, 53, and 54.29 Exhibit 5, First Supplemental, Amended and Restated Petition for Damages, Palowsky v. Campbell, Docket No.15-2179, 4thJudicial District Court.



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Messrs. Ward and Banks, accused the judges and Campbell of conspiring to inflict intentional

torts upon and violate Mr. Palowskys constitutional rights.30 Mr. Palowsky, III further alleged

the judges of being complicit in Defendant Campbells felonious document destruction and

payroll fraud, and scheming and conspiring with her to conceal the fraud from the tax-

paying public.31 However, once stripped of its defamatory window-dressing, Mr. Palowsky,

IIIs core complaint was that Campbell and the Fourth Judicial District Court judges had

allegedly, and for some unfathomable motives, actively assisted his opponent in Palowsky v.

Cork.32

Defendant Larry Pettiette, a Special Assistant Attorney General, was appointed by

Defendant Buddy Caldwell, Louisiana Attorney General, to represent Campbell in the suit by

Mr. Palowsky, III. Campbell retained Crawford, her private attorney, as co-counsel. On August

10, 2015, Crawford filed Exceptions of Vagueness, No Right of Action and Prescription, and

Motion to Strike, Request for Sanctions, and Request for Contempt Citations on behalf of

Campbell.33 Crawford sought to strike 52 of the 88 paragraphs of the supplemental petition as

irrelevant, insulting, and immaterial to Mr. Palowsky, IIIs claims. Crawford also filed an

Exception of No Cause of Action in September 2015. In response, on October 28, 2015, Messrs.

Ward and Banks filed on behalf of Mr. Palowsky, III, a memorandum in opposition to

Campbells exceptions and motion to strike.34

30 Exhibit 5.31Id.at 15, 16, 17, 26.32Id.at 45, 46, 49, 50, 51.33 Exhibit 6, Motion to Strike, Request for Sanctions, and Request for Contempt Citations, Palowsky v. Campbell,Docket No. 15-2179, 4thJudicial District Court. Defendant Jon Guice followed suit with exceptions and a similarmotion to strike and for contempt sanctions on behalf of the judges.34 Exhibit 7, Memorandum in Opposition to Allyson Campbells Exceptions of No Cause of Action, No Right ofAction, Prescription, and Vagueness,Palowsky v. Campbell, Docket No. 15-2179, 4thJudicial District Court.



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In an effort to lend credence his defective and immaterial pleadings, to avoid them being

stricken and potentially avert sanctions, Mr. Palowsky, III made an important and surprising

admission in his opposition memorandum: Palowsky reasonably believes that Judge Sharon

I. Marchman of this Court will testify as follows.35 What follows is a chronological history

of the contents of the confidential complaints, internal investigations and outcomes in

Campbells personnel file among other confidential discussions between the judges regarding

Campbells employment, and accusations of payroll fraud and document destruction by

Campbell allegedly covered up by the Fourth Judicial District judges. 36 Mr. Palowsky, III

through Messrs. Ward and Banks--represented:

[that Plaintiff Judge Marchman would testify under oath that]As far back as 2010,Defendant Campbell had a problem with being absent from work. When another lawclerk reported Campbells attendance issue to her, Judge Marchman discussed this withDefendant Judges Rambo and Amman, for whom Campbell worked at the time.Palowsky believes that Judge Marchman will testify that Judges Rambo and Amman saidthey had no complaints about Campbells work, and they said they could find her whenthey needed her, so Judge Marchman had to remind them that the Courts policy was thatemployees were only allowed to work from the courthouse, not from home or any otherlocation.37

[Regarding the Rials complaint] Palowsky believes that Judge Marchman will testifythat she certainly was not made aware of this issue at that time even though she was headof the personnel committee.38

Palowsky believes that Judge Marchman will testify that subsequently, there wereseveral meetings of the judges to address the subject of payroll fraud. It was understoodat that time that an employees not being at work when reported was payroll fraud.39

Palowsky reasonably believes that Judge Marchman and Ms. Hartt will testify that onApril 15, 2014, there was a review of Defendant Campbells hours from January 14 to

March 31. As Judge Marchman and Ms. Hartt will likely testify, said review showed that

35Essentially, Mr. Palowsky, III and his attorneys were telling the Court that the information could stay in and theywere not culpable for its inclusion since a judge would testify to it. Exhibit 7at p. 3.36Id.37Id. Compare with Complaint at 18.38Id.at p. 4. Compare with Complaint at 22.39Id. at p. 5. Compare with Complaint at 17.



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on seven different days, Defendant Campbell reported that she worked seven hours eventhough her key fob did not show that she entered the courthouse on any of those days.On most of those days, she had excuses for being late, such as her flight from New Yorkwas late or she had tennis matches that morning, but then she apparently would not cometo work (as evidenced by the lack of key fob activity) and would still report that she

worked seven hours.

40

Additionally, Palowsky reasonably believes that Judge Marchman will testify thatDefendant Judges Rambo and Amman had been approving her false timesheets forpayment.41

Palowsky reasonably believes that Judge Marchman and Ms. Hartt will testify that theCourt never reported any payroll fraud to the legislative auditor or the district attorney.42

Palowsky reasonably believes that Judge Marchman will testify that also on April 15,2014, the judges had an en bancmeeting and approved new measures to be implemented

to prevent payroll fraud. The judges agreed en banc to remove Campbell from theposition of senior law clerk, to terminate her stipend, and to suspend her for one monthwithout pay.43

Beginning on April 28, all law clerks were required to sign in and out each time theyentered or left the building. Notably, within one day of the new rules implementation,Campbell refused to comply and falsified her sign-in sheet, and Palowsky believes thatJudge Marchman will testify to same.44

Palowsky reasonably believes that Judge Marchman will testify that while Campbellwas serving her suspension during May, 47 files (later determined to be 52) which

required Defendant Campbells attention were found underneath her desk. Palowskyreasonably believes these files were PCRs, or post-conviction relief applications, whichhad been given to her by Defendant Judge Sharp to address. The oldest PCR was datedNovember 2, 2011. When questioned as to why they were sitting in her office, Campbellhad no explanation. Palowsky believes that Judge Marchman will testify that it wasdiscovered later that Defendant Campbell had given the employee who found the 52applications a $200 gift card.45

Palowsky believes that Judge Marchman will testify that on June 17, 2014, she notifiedJudge Wendell Manning that although she had planned to recommend that DefendantCampbell be terminated, instead she was going to recuse herself from the pending

40 Exhibit 7at p. 5. Compare with Complaint at 25.41Id.at p. 6. Compare with Complaint at 25.42Id. Compare with Complaint at 28.43Id. Compare with Complaint at 29, 31.44Id. Compare with Complaint at 30, although someone undoubtedly has their date wrong. Furthermore, the verynext paragraph discusses the warning and reprimand referenced at 32.45Id.at pp. 6-7. Compare with Complaint at 32.



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personnel matters involving Campbell since she had heard that Campbell was activelyseeking someone to oppose her in the next election.46

[Regarding the outcome of the personnel matter that she had just recused herself from]Palowsky believes that Judge Marchman will testify that thereafter, on July 8, 2014,

Judge Jones discussed the issues of the 52 PCR applications and the related gift card at apersonnel committee meeting, but no remedial action was taken against Campbell.47

Palowsky believes that Judge Marchman will testify that to her knowledge, until August11, 2014, the only judges who knew about Rials complaint were Judges Sharp andRambo.48

[Regarding Mr. Banks complaint about Campbell in the Palowsky v. Cork matter]Palowsky believes that Judge Marchman will testify that Defendant Judge Rambodiscussed this matter during a judges meeting, and he had no concerns with Campbellswork on Palowskys case.49

Palowsky believes that Judge Marchman and Ms. Hartt will further testify that Ms. Harttwas directed [by Judge Rambo] to write to Mr. Banks, which she did on September 11,and tell him that the reason some pleadings did not make their way to Judge Rambo wasbecause of a new filing system and that she understood a ruling had been made.50

Palowsky believes that Judge Marchman will testify that on September 12, 2014, therewas an en banc meeting which she did not attend but which was recorded. JudgeMarchman will testify that she listened to the recording, and during the meeting, JudgeJones discussed putting a letter in Campbells file about the missing records which werediscovered in her office during her suspension. There was also a discussion of

complaints by two local attorneys that Campbell had shredded or withheld theirdocuments from the judge who should have received them. It was discussed that in onecase, the Clerks filing procedure was to blame. It was also discussed that no furtheraction would be taken against Campbell besides placing a reprimand letter about the 52PCR applications in her file. It was noted that Judge Marchman would vote by proxy toterminate Campbell. Judge Jones also recommended that Campbell be counseled aboutthe content of articles in The News-Stareach week.51

46 Exhibit 7 at p. 7. Compare with Complaint at 33.47 Id. Compare with Complaint at 34. Again, it is stunning that a District Judge would be honorable enough to

recognize her inability to be unbiased and impartial in matters concerning Ms. Campbell and yet immediately launchinto activity designed to cause her termination and criminal prosecution.48Id. at p. 8. Compare with Complaint at 19-22.49Id. Compare with Complaint at 36, 38, 39 which highlight Mr. Banks asking about the Rials complaint withindays of Plaintiff Judge Marchman learning of it.50 Id. Compare with Complaint at 40. While Mr. Banks undoubtedly knew about the letter he received, he couldnot have known of the discussions held in the judges meeting after lodging his complaint.51Id. at pp. 8-9. Compare with Complaint at 41.



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Palowsky reasonably believes the evidence will show that on November 3, 2014,Defendant Campbell emailed Judge Sharp and asked him to state that the 2012allegations of Cody Rials against her were unfounded. Judge Sharp responded that hewas the only member of the Court who looked into the allegations, and he found that nomisconduct was indicated, which contradicts his November 28, 2012 letter to Mr. Rials

in which he stated that Rials concern was reasonable. Regardless, Judge Sharpsresponse was apparently not good enough because a few minutes later, he supplementedhis earlier email and said that she never shredded anything.52

Palowsky believes that Judge Marchman will testify that on December 30, 2014, therewas a specially-called judges meeting in which it was debated how to respond to thelegislative auditors findings that some employees had been paid for time that had notbeen worked.53

Palowsky believes that Judge Marchman will testify that on March 13, 2015, there was ameeting of the judges in which she moved to terminate Campbell, but no one seconded

the motion.54

Judge Marchman will also testify that Judge Jones advised that just prior to the meeting,Campbell had given him a folder containing a few documents, and it was decided thatCampbells March 12, 2015 letter to Defendant Judge Jones should not go in her

personnel file, but two other documents, which included the November 3, 2014emails between Campbell and Judge Sharp, should. (Emphasis added).55

Palowsky believes that Judge Marchman will testify that on March 23, 2015, she wroteto Defendant Judge Winters about the documents which Campbell handed to Judge Jonesprior to the March 13 meeting and which she wanted placed in her personnel file.56

Thus, in order to substantiate the baseless allegations in Mr. Palowsky, IIIs supplemental

petition, counsel represented to the Court that Plaintiff Judge Marchman would testify to, among

other confidential, yet immaterial, information discussed by the Fourth Judicial District Court

judges, the alleged payroll fraud and investigation outcome, Campbells May 2014 suspension,

52 Exhibit 7 at p. 9. Compare with at 44. This certainly begs the question of how Messrs. Ward and Banks couldhave known of the email exchange between Campbell and Judge Sharp if they were not copied with thecorrespondence.53Id.at p. 10. Compare with Complaint at 45.54Id. Compare with Complaint at 49.55 Id. at pp. 10-11. Compare with Complaint at 50. Amazingly, Messrs. Ward and Banks are representing whatJudge Marchman would have testified to specific to the contents of Campbells personnel file!56Id. at p. 11. Compare with Complaint at 50.



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Campbells attendance and disciplinary history and the Rials complaintall of which Judge

Simon held to be confidential in her May 2015 ruling.

Accordingly, by November 2, 2015 Supplemental Memoranda in Support of Campbells

Motion to Strike, Request for Sanctions and Request for Contempt Citations, Exceptions of No

Cause of Action, No Right of Action, Prescription and Vagueness, and Supplemental Motion to

Strike, Crawford simply concluded what her own attorneys had confirmed: that Plaintiff Judge

Marchman illegally divulged Campbells private personnel information in contravention of

Judge Simons ruling, which Mr. Palowsky, III through his attorneys (now Plaintiff Judge

Marchmans attorneys) Messrs. Ward and Banks, inserted into his July 2015 Petitions in

Palowsky v. Campbell.57 Furthermore, in oral argument on Campbells Motion to Strike, Mr.

Ward confirmed in open court that with regard to the allegations sought to be stricken from the

pleadings:

Ive actually had a judge inside the court confirm things to me or I wouldnt haveput them down to start with.58

Incredibly, Plaintiff Judge Marchman now contradicts 1) the assertions of Mr. Palowsky, III and

his attorneys (her attorneys) that she would testify to the privileged information populating his

July 2015 Petition and Supplemental Petition, and 2) Mr. Wards admission that the privileged

information sought to be stricken from the July 2015 Petition and Supplemental Petition by

Crawford on Campbells behalf came from a judge inside the court.

57 Exhibit 8, Supplemental Memorandum in Support of Campbells Motion to Strike, Request for Sanctions and

Request for Contempt Citations; Exhibit 9, Supplemental Memorandum in Support of Exceptions of No Cause ofAction, No Right of Action, Prescription and Vagueness; and Exhibit 10, Supplemental Motion to Strike andMemorandum in support, Palowsky v. Campbell, Docket No. 15-2179, 4th Judicial District Court. As will bediscussed more fully herein, the fact that Messrs. Ward and Banks, not Crawford, outed Plaintiff Judge Marchmanas the source of the leaked confidential information disproves Plaintiff Judge Marchmans core claim againstCrawford.58 Exhibit 11, transcript of November 5, 2015 at p. 8, lines 10-12, Palowsky v. Campbell, Docket No. 15-2179, 4th

Judicial District Court.



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Instead, in an abrupt about-face, Plaintiff Judge Marchmans Complaint states that her

only disclosure was in response to a valid subpoena duces tecum of August 17, 2015 issued at

Mr. Palowsky, IIIs request inPalowsky v. Corkseeking documents regarding the investigation

of Campbell.59 However, her assertion is belied by the clear timeline established by the filings in

Palowsky v. Campbell. She had not been served with the August 2015 subpoena duces

tecum, which she now claims allowed her disclosure, when Messrs. Ward and Banks filed

the July 2015 Petition and Supplemental Petition airing the contents of Campbells

privilege personnel filewhich they contend came from her! Citing an August 20, 2015

hearing on Mr. Palowsky, IIIs Motion to Recuse the entirety of the Fourth Judicial District

Court bench inPalowsky v. Cork, Plaintiff Judge Marchman asserts that Defendant Judge Sharp

instructed her to comply with the subpoena duces tecum. She states:

. . . Judge Sharp stated as follows: Comply with the subpoena if you wish. Giveit to the litigants. Judge Marchman then questioned the directive to give herdocuments to the litigants, and Judge Sharp told her to give the documents tocounsel for Palowsky and told the attorney to do with it what you will.60

From that, she concludes that her disclosure was pursuant to a valid subpoena duces tecum.61

However, Plaintiff Judge Marchman intentionally fails to identify in the Complaint exactly what

documents were to be provided to counsel for Palowsky. The transcript of the hearing of

August 20, 2015 is quite clear on that topic.

Declining to rule on Mr. Palowsky, IIIs Motion to Recuse, Defendant Judge Sharp

stayed Palowsky v. Cork pending a resolution ofPalowsky v. Campbell.62 Once he ruled,

Plaintiff Judge Marchman made an appearance before the Court and asked to file documents into

59Complaint at 63, 67.60Id. at 67.61Id. at 84, Defendant Judge Sharp ordered her to produce the documents at issue.62 Exhibit 12, transcript of August 20, 2015 at p. 49, lines 7-10,Palowsky v. Cork, Docket No. 13-2059, 4thJudicialDistrict Court.



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the record discharging [her] responsibility to the subpoena and subpoena duces tecum.63 What

followed was an argument between Defendant Judge Sharp and Plaintiff Judge Marchman

regarding whether the Motion to Quash subpoenas and subpoenas duces tecum for investigation

of Campbell issued by Mr. Palowsky, III to the Fourth Judicial District Court judges for the

August 20, 2015 hearing previously filed by Jon Guice (another defendant herein) and granted

by Defendant Judge Sharp applied to Plaintiff Judge Marchman.64 Reaching its denouement,

this exchange occurred:

BY THE COURT:

You misinterpret or either misremember what I said. But, one moment, isthat, is that the subpoena return that you hold in your hand?

BY JUDGE MARCHMAN:

These two documents are what I just identified. My correspondence toJulie Cunningham and her reply to me that she was instructed not to produce anydocuments. So thats my return. I would simply file that in the record.

BY THE COURT:

One moment. Comply with the subpoena request if you wish. Give it tothe litigants.

BY JUDGE MARCHMAN:

Im sorry, give it to the litigants?

BY THE COURT:

Im not sure, Im not sure Im going to allow you to file anything into therecord. If you wish to, if you wish you can supply the subpoena returns if youwant to. Give it to Mr. Ward. Mr. Ward, do with it what you will. All right,were adjourned.65

63 Exhibit 12 at p. 49, lines 24-32.64Id. at pp. 50-51.65Id. at p. 51.



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This colloquy indicates that the entirety of Plaintiff Judge Marchmans subpoena return was two

pages: her letter to Cunningham asking her to produce Campbells investigation file and

Cunninghams response that she would not. Even ignoring the temporal disconnect, this cannot

be the basis of Plaintiff Judge Marchmans assertion that her divulgence of Campbells

confidential information was pursuant to a valid subpoena.66

Moving on to the proceedings in Palowsky v. Campbell, ultimately Judge Barbera

ordered stricken 49 paragraphs from Mr. Palowsky, IIIs pleadings and parts of an additional

paragraph as prejudicial and immaterial to Mr. Palowsky, IIIs claims.67 He deferred ruling on

contempt and sanctions urged by Campbell against Mr. Palowsky, III and his counsel, pending

Mr. Palowsky, IIIs appeal.68 He also sustained the exceptions of no cause of action based on

judicial immunity, dismissing the suits against Campbell and the judges.69 The case is currently

on appeal with the Second Circuit Court of Appeal.

The foregoing history provides the sordid backdrop for Plaintiff Judge Marchmans

Complaint against Judges Sharp, Amman, Rambo and Jones70, Guiceas the judges counsel,

66Nor can there be any confusion about whether Defendant Judge Sharp quashed the subpoenas and subpoenasduces tecum to Plaintiff Judge Marchman and the rest of the 4 th JDC bench. Plaintiff Judge Marchman related aconversation with Defendant Judge Sharp that she took to mean that Defendant Judge Sharps order quashing thesubpoenas and subpoenas duces tecum did not apply to her. Exhibit 12 at pp. 50-51. Defendant Judge Sharpcorrected her, indicating that her memory was faulty. Id.at p. 51. He also rebuffed Mr. Wards attempts to haveDefendant Judge Sharp interpret the order on the motion to quash for Mr. Ward, instructing him twice, Read theorder. Id.67 Exhibit 11 at p. 11.68Id.at p. 4.69Id. at pp. 16, 20.70 It should be noted that Plaintiff Judge Marchmans pointed allegations against Judge Jones, in particular, of

conspiracy to hide payroll fraud and document destruction stand in sharp contrast to her effusive praise of JudgeJones recorded at the formal court opening ceremony for the Fourth Judicial District Court in September 2014.Exhibit 14. Plaintiff Judge Marchmans Complaint identifies Judge Jones as the investigating authority in July2014 for the issues of the 52 PCR applications and the related gift card for which no remedial action was takenagainst Campbell. Complaint at 33, 34. Plaintiff Judge Marchman further points out that in the followingmonth, August 2014, Judge Jones purportedly ignored an eyewitness to Campbells alleged confession to documentdestruction and closed that investigation without taking any action against Campbell. Complaint at 37. Despite herknowledge of Judge Jones alleged participation in the cover up made subject of this suit, she described Judge



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Crawford, Pettiette and Caldwellas Campbells counsel, and Campbell, and Crawfords

resulting Motion to Dismiss. However, conspicuously absent from Plaintiff Judge Marchmans

Complaint is any direct proof of her defamatory accusations that Campbell committed payroll

fraud and destroyed documents and the Fourth Judicial District Court conspired to cover it up.

On the contrary, in the early fall of 2015 the Attorney General commenced an, delegated to the

State Inspector General and Louisiana State Police, into whether Campbell had destroyed

and/or concealed records related to specific court cases and committed payroll fraud by receiving

pay for services not rendered while employed as a Fourth Judicial District Court law clerk.71

After a lengthy investigation, on April 15, 2016, the State Inspector General concluded that the

facts failed to provide sufficient cause to support the arrest of Campbell.72 This suit was filed

four days later on April 19, 2016.

Importantly, despite the fact that one of the central themes of Plaintiff Judge Marchmans

Complaint is that Campbell committed payroll fraud and destroyed documents and the judges

and attorney defendants conspired to hide this, she has never brought to this Courts attention

that Campbell has been officially cleared of wrongdoing. Certainly, if Campbell did not do the

nefarious acts alleged by Plaintiff Judge Marchman then the other defendants could not have

conspired to hide the non-existent nefarious acts. Plaintiff Judge Marchman filed an amended

complaint on May 13, 2016 in response to a motion to dismiss filed by Larry Pettiette to clarify

Jones as our brother, our mentor, our leader, trusted friend in September 2014. Exhibit 14at p. 2. Shefurther commented, Just this morning he leaned up to me and said I got your back. And that he always has. Andfor that we are so very grateful. Id. Plaintiff Judge Marchman also stressed that knowing Judge Jones concern for

the public fisc that no public money was spent on the portrait of Judge Jones commissioned by the Fourth JudicialDistrict Court judiciary that was donate to the Louisiana Supreme Court Historical Society. Id.at p. 3. This hardlysounds like the jurist with whom Plaintiff Judge Marchman was privileged to serve on the bench, for whom sheexpressed the utmost respect, true affection and admiration. Id.at p. 2.71 Exhibit 13, April 15, 2016 letter from Stephen Street, State Inspector General, to Jerry Jones, District Attorney.This can be contrasted with Plaintiff Judge Marchmans allegation that the Attorney General never properlyconducted an investigation into Campbell. Complaint at 17.72Id.



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her damages, the capacity in which the defendants were being sued, and to add a 1986 claim

but again, not a word about the investigation that cleared Campbell.

With the backdrop set, as will be discussed below, Plaintiff Judge Marchmans

Complaint is unsupported on both factual and legal grounds and Crawfords Motion to Dismiss

should be granted, dismissing with prejudice the entirety of Plaintiff Judge Marchmans claims

against Crawford.

LAW AND ARGUMENT

A. 12(b)(6) Motion to Dismiss Legal Standard

The standard for passing on motions to dismiss has been recently revised by the Supreme

Court.73 This Court has distilled the standard as follows:

In order to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must pleadenough facts to state a claim to relief that is plausible on its face.In re Katrina Canal Breaches Litigation,495 F. 3d 191, 205 (5thCir. 2007), citingBell Atl. Corp. v. Twombly,550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929(2007). Factual allegations must be enough to raise a right to relief above thespeculative level, on the assumption that all the allegations in the complaint aretrue (even if doubtful in fact). Id. Yet, if the allegations set forth in thecomplaint, even if true, could not raise a claim of entitlement to relief, the courtwill expose the basic deficiency at the point of minimum expenditure of time andmoney by the parties and the court. Cuvillier v. Taylor,503 F.3d 397, 401 (5th

Cir.2007).74

This Court has also instructed:

The plaintiff's complaint is to be construed in a light most favorable to theplaintiff, and the allegations contained therein are to be taken as true.Oppenheimer v. Prudential Securities, Inc.,94 F.3d 189, 194 (5th Cir.1996). Atthe same time, a plaintiff must plead specific facts, not mere conclusionalallegations, to avoid dismissal for failure to state a claim. Kane Enterprises v.MacGregor (USA), Inc., 322 F.3d 371, 374 (5th Cir.2003). We will thus not

73Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007).74McKinley v. Harvey Toyota of Bossier City, Inc., 534 F. Supp. 2d 668, 670 (W.D. La. 2008).



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accept as true conclusory allegations or unwarranted deductions of fact. Id.(internal quotations omitted).75

As this Court recently pointed out:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not needdetailed factual allegations, a plaintiff's obligation to provide the grounds of hisentitlement to relief requires more than labels and conclusions, and aformulaic recitation of the elements of a cause of action will not do [.] BellAtlantic, 127 S.Ct. at 1964-65 (citations, quotation marks, and bracketsomitted)(emphasis added). See also Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009).76

This case presents a surfeit of detailed factual allegations having nothing to do with the

plaintiffs causes of action. Drilling down to Plaintiff Judge Marchmans factual allegations

relative to her claims against Crawford reveals the lack of any valid claim for relief as pleaded.

Determining whether a complaint states a plausible claim for relief is a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.77

While legal conclusions can provide the framework of a complaint, they must be supported by

factual allegations.78 Where a complaint pleads facts that are merely consistent with a

defendants liability, it stops short of the line between possibility and plausibility of entitlement

to relief.79When there are well-pleaded factual allegations, a court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.80 As to Crawford,

Plaintiff Judge Marchmans Complaint does not establish an entitlement to relief under 1983,

1985, or 1986, because Crawford was not a state actor and the Complaint fails to sufficiently

plead facts supporting a conspiracy with state actors or otherwise. Moreover, the facts establish

75 Kraft Food Ingredients, Corp. v. PCI International Consultants, Inc., 2008 WL 4001184 (W.D. La. 8/27/08) at*2.76Haydell Industries, LLC v. Petrucci, 702 F. Supp. 2d 688, 695-696 (W.D. La. 2010).77Ashcroft v. Iqbal,556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).78Id.79Internal quotes and citation omitted. Id.80Haydell Industries, LLC v. Petrucci, 702 F. Supp. 2d 688, 695-696 (W.D. La. 2010).



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that Plaintiff Judge Marchman did improperly and illegally disclose Campbells confidential

personnel information, gutting her core complaint against Crawford.

1. Plaintiffs Civil Rights Action Does Not Lie Against Crawford, a Private

Attorney

Plaintiff Judge Marchman has not stated a claim for relief under 1983 against Crawford,

a private retained attorney whose complained-of actions occurred in his representation of

Campbell. A claim under 1983 requires conduct by a person under color of any statute,

ordinance, regulation, custom or usage of any State or Territory law depriving another of any

right, privilege or immunity guaranteed by the Constitution and laws of the U.S.81 The Fifth

Circuit explained:

Where a plaintiff brings a 1983 action against a state official, the requirement toshow that the defendant acted under color of state law is satisfied bydemonstrating state action under the Fourteenth Amendment. Lugar v.Edmondson Oil Co.,457 U.S. 922, 929, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).82

However, a private party does not act under color of law by using the civil or criminal court

systems for redress of grievances.83 Furthermore, the Fifth Circuit has held that private attorneys

do not transform themselves into state actors merely by relying on Louisianas legal system to

effect their clients representation.84 [T]o hold otherwise would lead to the absurd conclusion

that every person who seeks redress through the legal system acts under color of state law. 85

Thus, neither a private retained nor a court-appointed attorney performing their typical functions

8142 U.S.C. 1983.82 Glotfelty v. Karas, 512 Fed. Appx. 409, 413 (5thCir. 2013).83512 Fed. Appx. at 414, citingDennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), and Simsv. Jefferson Downs Racing Assn, 778 F. 2d 1068, 1078-1079 (5thCir. 1985).84 512 Fed. Appx. at 414. See also Hill v. McClellan, 490 F. 2d 859, 860 (5th Cir. 1974)(private attorneyrepresenting a client in a civil proceeding does not act under color of state law), overruled on other grounds, Sparksv. Duval County Ranch Co., 604 F. 2d 976, 983 (5thCir. 1979).85Id.



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act under color of law.86 On the contrary, they serve their client--not the state--by virtue of the

attorney-client relationship.87

The Complaint concludesthat Crawford was at all pertinent times acting under color

of law as a representative and attorney for Campbell.88 However, the Complaint is devoid of

material facts that support the notion that Crawfords defense of Campbell required him to

exercise power possessed by virtue of state law and made possible only because Crawford was

clothed with the authority of state law.89 Moreover, Crawford is not a state actor by association

merely by serving as co-counsel for Campbell with the Louisiana Attorney Generals office.

Crawford served Campbell, not the state, under the attorney-client relationship. Thus, Plaintiff

Judge Marchmans conclusion that Crawford acted under color of law in his representation of

Campbell does not make it so, nor does that conclusion devoid of reference to material facts

suffice to transform Crawford into a state actor. Because Crawford did not act under color of

law as a private retained attorney, he cannot be liable under 1983. Accordingly, Plaintiff Judge

Marchman has failed to set forth a plausible claim for relief and Crawfords motion should be

granted.

2. Plaintiffs Allegations Fail to Support Conspiracy Claims Under 1983

Plaintiff Judge Marchman fails to allege facts supporting her conspiracy claims under the

First and Fourteenth Amendments. A private actor can be found liable under 1983 if the private

86 Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Pete v. Metcalfe, 8 F. 3d 214, 217(5thCir. 1993);Nelson v. Stratton, 469 F. 2d 1155 (5thCir. 1972).87Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); U.S. ex rel. Simmons v. Zibilich, 542F. 2d 259, 261 (5thCir. 1976).88 Complaint at 5(B). Alternatively, as raised by Defendants Caldwell and Pettiette, assuming Crawford wasindeed acting under color of law in his representation of Campbell as alleged by the plaintiff, then he would beimmunized from liability in his official capacity. Filarsky v. Delia, 566 U.S. ____, 132 S.Ct. 1657, 182 L.Ed.2d 662(2012) (a private attorney temporarily retained by the city to carry out its work is entitled to seek qualified immunityfrom suit under 1983).89512 Fed. Appx. at 413, citing West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).



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actor was a willful participant in joint activity with the state or its agents.90 Thus, a private

person like Crawford can be considered a state actor under 1983 if the private person was

engaged in a conspiracy with one or more parties acting under color of state law. 91 To support

conspiracy claims, the Fifth Circuit requires that the complainant set forth facts supporting 1) an

agreement between the private and public defendants to commit an illegal act, and 2) an actual

deprivation of constitutional rights.92 Mere conclusory allegations of conspiracy cannot, absent

reference to material facts, survive a motion to dismiss.93 The Fifth Circuit consistently

requires specific facts rather than generic conclusions in 1983 cases. 94 Plaintiff Judge

Marchmans conspiracy allegations fail in this regard, nor do they support curtailment of her

constitutional rights.

Taking the second criterion first, Plaintiff Judge Marchmans factual allegations do not

support an actual deprivation of constitutional rights. [A]n underlying constitutional or

statutory violation is a predicate to any theory of liability under 1983.95 Plaintiff Judge

Marchman has not set forth a First Amendment retaliation claim or Fourteenth Amendment

equal protection claim. Her speech concerning Campbell and resulting in the alleged

retaliation96was made pursuant to her official duties as an elected Fourth Judicial District Court

judge and chair of the personnel committee. [W]hen public employees make statements

90 Cinel v. Connick, 15 F. 3d 1338, 1343 (5thCir. 1994).91Adickes v. S.H. Kress & Co.398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).9215 F.3d at 1343, citingArsenaux v. Roberts, 726 F. 2d 1022, 1024 (5thCir. 1982), and Villanueva v. McInnis, 723F. 2d 414, 418 (5thCir. 1984).93Arsenaux v. Roberts, 726 F. 2d 1022, 1024 (5thCir. 1982).94Hale v. Harney, 786 F. 2d 688, 690 (5thCir. 1986).95Broussard v. Lafayette City-Parish Consolidated Government, 45 F. Supp. 3d 553, 565-66 (W.D. La. 2014), citing

Johnston v. Harris County Flood Control Dist., 869 F. 2d 1565, 1573 (5thCir. 1989).96 What the retaliation allegedly spearheaded by Campbell and the judges consisted of is unstated from her

pleadings. Plaintiff Judge Marchman remains an elected judge with the Fourth Judicial District Court. Simplycontending that certain persons in the Judges office and the courthouse are no longer friendly to her does not rise tothe level of retaliation.



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pursuant to their official duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer

discipline.97 Moreover, Crawford is not her employer and she has not alleged that she was

subject to discipline as a result of her speaking out about Campbell with the other defendant

judges. Thus, Plaintiff Judge Marchman fails to set forth a First Amendment claim under 1983.

Similarly, Plaintiff Judge Marchmans allegations also fail to make out an equal

protection claim. The Equal Protection Clause of the Fourteenth Amendment requires that

persons similarly situated be treated to the same way.98Generally, an equal protection claim

involves establishing selective treatment of the plaintiff among other similarly situated, and that

selective treatment was based on impermissible considerations of race, religion, intent to restrict

or punish exercise of constitutional rights, or malicious intent to injure.99 Plaintiff Judge

Marchman alleges that she was singled out for unfavorable treatment without adequate

justification, but fails to allege membership in a suspect class.100 Thus, she appears to allege an

equal protection violation under the class of one theory.101 However, no facts in her

Complaint articulate intentional treatment disparate from others similarly situated without a

rational basis for the difference in treatment.102 Nowhere does her Complaint state that other

judges or duly-elected officials in the Fourth Judicial District Court also tried to expose

Campbells purported history of document destruction and payroll fraud with resulting different

97 Garcetti v. Caballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).9845 F. Supp. 3d at 568, citingDudley v. Angel, 209 F. 2d 460, 463 (5thCir. 2000).99 Williams v. Bramer, 180 F. 3d 699, 705 (5thCir. 1999).100Complaint at 101. Furthermore, the unfavorable treatment of which she complains consists of disagreementsand perceived slights by her colleagues which, while personally distasteful, if true, does not rise to the level of civilrights violations. Moreover, the personal and personnel disputes aired in this proceeding and others should have

been resolved in an internal employment setting, or even in a confidential proceeding with the Louisiana JudiciaryCommission and Louisiana Supreme Court rather than this federal forum. See Rule XXIII, Louisiana SupremeCourt Rules.101 Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).102528 U.S. at 564.



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treatment. Thus, Plaintiff Judge Marchman fails to set forth an equal protection claim under

1983.

Furthermore, regarding the alleged conspiracy, nothing in the Complaint articulates the

foundation for the alleged conspiracy between Crawford and the purported co-conspirators. A

civil conspiracy pursuant to 1983 is an agreement between private and public actors to violate a

plaintiffs constitutional rights.103 Concerted action between state and private actors, without

allegations which suggest an agreement regarding the challenged state action, is not enough to

overcome a 12(b)(6) motion.104 Thus, inDolenz v. Akin, the Northern District of Texas found

that plaintiffs conclusory allegations that the defendant judge, opposing party and her attorney

reached an agreement, had a meeting of the minds, or participated in an action in

conspiracy to have the plaintiff incarcerated for contempt were inadequate to state a claim for

relief for a conspiracy under 1983.105 The sum total of plaintiffs factual allegations supporting

the purported conspiracy were that the defendants had ex parte communications and the

defendant judges actions favored the opposing party and her attorney.106 Without more,

plaintiff failed to state a plausible claim for relief under 1983, and defendants motion to

dismiss was granted. Nowhere in Plaintiff Judge Marchmans Complaint does she even remotely

articulate how, when, why, where or even who conspired to act (or even had a motive to act).

Similarly in Dyess v. Louisiana State University Bd. of Supervisors, the Eastern District

granted the defendant attorneys motion to dismiss the plaintiffs 1983 claims under FRCP

12(b)(6).107 The defendant attorneys subpoenaed and received plaintiff Dyess medical school

103 Cinel, 15 F. 3d at 1343.104Dennison v. City of New Orleans, 1997 WL361904 (E.D. La. 6/27/97) at *3.1051997 WL 21388 (N.D. Tex. 1/14/97) at *5.106Id.at *5.1072005 WL 2060915 (E.D. La. 8/19/05).



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records from LSU without notifying the plaintiff or obtaining his consent. Thereafter, Dyess

records were used to impeach him while serving as an expert witness in litigation defended by

the defendant attorneys. Dyess sued the attorneys and LSU under 1983 alleging violations of

his constitutional rights of due process and freedom from unlawful seizure. The Eastern District

held that a private attorney issuing a subpoena does not become a state actor under 1983.108

Furthermore, in the absence of factual allegations that the defendant attorneys and LSU reached

an agreement to commit an illegal act or facts from which their collusion could be inferred,

Dyess failed to state a claim against the attorneys under 1983.109

The Eastern District reached the same conclusion in Dennison v. City of New Orleans.

110

The plaintiff, Dennison, a bar patron, sued the bartender (Hand) and owner of the bar

(Monaghan) for conspiring with NOPD to commit false arrest, battery and imprisonment under

1983. Dennison alleged that Hand acted in concert with NOPD. However, nothing in the

complaint set forth that Hand/Monaghan were capable of and exercised influence and control

over the police officers official functions, or compelled, directed, or entered into an agreement

or understanding with the officers to deprive Dennison of his constitutional rights.111 In granting

Hand/Monaghans motion to dismiss, the Court reasoned:

To summarize, Dennison has failed in this instance to allege factswhich suggestthat defendants Hand and/or Monaghan, both private actors, conspired with thedefendant officers of the NOPD to deprive plaintiff of his constitutional rights.Dennison has not alleged that Hand and Monaghan played any role in suggestingto the investigating officers the unlawful manner in which they allegedlyperformed their function as law enforcement officers. Dennison has failed toallege that the private defendants had a common understanding or meeting of theminds with any state actors regarding the deprivation of his constitutional rights.Instead, Dennisons complaint merely asserts that Hand acted in concert with

1082005 WL 2060915 at *3.109Id.at *4.1101997 WL361904 (E.D. La. 6/27/97).111Id. at *3.



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the investigating NOPD officers. More conclusory allegations of this nature willnot suffice. Accordingly, Dennison has failed to state a claim for relief under 42U.S.C. 1983 against Hand and Monaghan.112

The same result should obtain in this case.

The facts set forth in Plaintiff Judge Marchmans Complaint concerning Crawfords

involvement in the alleged conspiracy are sparse, wholly speculative, and inadequate. Instead,

unfounded conclusions populate the limited references to Crawford, which appear in only 11 of

the 117 paragraphs of the Complaint. Plaintiff Judge Marchman contends:

Crawford conspired with Campbell, Pettiette, and Caldwell and assisted in Campbells

retaliation against Plaintiff Judge Marchman.

113

Crawford submitted the pleadings in which she [Plaintiff Judge Marchman] was accused

of committing wrongful and illegal acts which accusation lacked merit. 114

Crawford acted in concert with Defendant Judges Sharp, Amman, Rambo and Jones, the

Defendant Judges attorney, Guice, the State Attorney General Caldwell and Special

Assistant Pettiette, appointed to represent Campbell, to turn Plaintiff Judge Marchman

into a virtual pariah at the courthouse, and singled her out for disparate treatment.115

Plaintiff Judge Marchman does not allege facts supporting Crawfords motive, intent, knowledge

or involvement in assisting in a retaliation of unspecified nature. [A] plaintiff must show

that the defendants agreed to commit an act by identifying the illegal objective of the agreement

112 1997 WL361904 at *3.113Complaint at 16. This allegation raises yet another obstacle to Plaintiff Judge Marchmans cause of action:how attorneys defending the same party can conspire under the statute when they all serve the interests of the same

person, Campbell.114Complaint at 16, 71-77, 82.115Id. at 82.



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supported with facts rather than conclusory allegations.116 However, apart from conclusions,

Plaintiff Judge Marchman fails to set forth any facts showing any understanding or agreement

among the alleged conspiratorsincluding Crawford--for the purpose of violating her First and

Fourteenth Amendment rights. Instead, Plaintiff Judge Marchman simply points to Crawfords

representation of Campbell and his actions in making filings in Campbells defense. These facts

are insufficient to state a conspiracy claim under 1983. Therefore, Crawfords Motion to

Dismiss should be granted.

3. Plaintiffs Allegations Fail to Support Conspiracy Claims Under 1985

Plaintiff Judge Marchmans claims under 1985 also lack adequate substance to

withstand FRCP 12(b)(6) scrutiny. This Court has succinctly summarized the various

conspiracies recognized under 1985:

Part of the Civil Rights Act of 1871, 42 U.S.C. 1985 creates a private civilremedy for three prohibited forms of conspiracy to interfere with civil rights.Subsection (1) prohibits conspiracies to prevent federal officers from performingthe duties of their offices by force, intimidation, or threat; Subsection (3)prohibits conspiracies to depriv[e] ... any person or class of persons the equalprotection of the laws and those aimed at preventing a person from lawfullyvoting; and Subsection (2) concerns conspiracies directed at the right ofparticipation in federal judicial proceedings. (Footnote omitted).117

Plaintiff Judge Marchman does not identify the subsection applicable to her claims. However,

1985(1) protects federal officers and neither Plaintiff Judge Marchman nor any of the other

defendants are alleged to be federal officers. Thus, Plaintiff Judge Marchman has not stated a

valid claim against Crawford under 1985(1).

116 Marceaux v. Lafayette City-Parish Consolidated Government, 921 F. Supp. 2d 605, fn. 99 (W.D. La. 2013),citingRodriguez v. Neeley, 169 F. 3d 220, 222 (5thCir. 1999).117921 F. Supp. 2d at 642, citing Montoya v. FedEx Ground Package System, Inc., 614 F. 3d 145, 149 (5 thCir.2010).



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Plaintiff Judge Marchman also fails to state a claim under 1985(2). That subsection first

addresses conspiracies focused on obstructing justice, or intimidating a party or witness to a

federal court proceeding:

(2) If two or more persons in any State or Territory conspire to deter, by force,intimidation, or threat, any party or witness in any court of the United States fromattending such court, or from testifying to any matter pending therein, freely fully,and truthfully, or to injure such party or witness in his person or property onaccount of his having so attended or testified, or to influence the verdict,presentment, or indictment of any grand or petit juror in any such court, or toinjure such juror in his person or property on account of any verdict, presentment,or indictment lawfully assented to by him or of his being or having been suchjuror; . . . 118

Because no federal proceedings are implicated in Plaintiff Judge Marchmans pleadings, this

portion of 1985(2) does not apply. The remainder of that subsection is likewise inapplicable:

or if two or more persons conspire for the purpose of impeding, hindering,obstructing, or defeating, in any manner, the due course of justice in any State orTerritory, with intent to deny to any citizen the equal protection of the laws, or toinjure him or his property for lawfully enforcing, or attempting to enforce, theright of any person, or class of persons, to the equal protection of the laws; . . . 119

The state court proceeding portion of the statute requires a showing of racial or other class-based

animus.120 Plaintiff Judge Marchman has not alleged that the defendants were motivated by

racial or other discriminatory animus. Thus, Plaintiff Judge Marchman has failed to allege facts

sufficient to state a claim against Crawford under the entirety of 1985(2).

Plaintiff Judge Marchman likewise fails to state a claim under 1985(3) in light of the

lack of any allegations of any racial or class-based animus behind the alleged conspiracy. That

subsection provides:

(3) If two or more persons in any State or Territory conspire or go in disguise on

11842 U.S.C. 1985(2).119Id.120Daigle v. Gulf States Utilities Co., 794 F. 2d 974, 979 (5thCir. 1986).



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the highway or on the premises of another, for the purpose of depriving, eitherdirectly or indirectly, a person or class of persons of the equal protection of thelaws, or of equal privileges and immunities under the laws; or for the purpose ofpreventing or hindering the constituted authorities of any State or Territory fromgiving or securing to all persons within such State or Territory the equal

protection of the laws; or if two or more persons conspire to prevent by force,intimidation, or threat, any citizen who is lawfully entitled to vote, from giving hissupport or advocacy in a legal manner, toward or in favor of the election of anylawfully qualified person as an elector for President or Vice President, or as aMember of Congress of the United States; or to injure any citizen in person orproperty on account of such support or advocacy; . . .121

The law in this Circuit is well settled that to state a cognizable claim under 1985(3), Plaintiff

Judge Marchman must allege that 1) a racial or class-based discriminatory animus lay behind the

conspiracy and 2) the conspiracy aimed to violate rights protected against private

infringement.122 Being the sole proponent of the belief that Campbell committed payroll fraud

and destroyed documents does not equate to a class for purposes of discriminatory animus.

Furthermore, the factual allegations in the pleadings do not articulate a conspiracy motivated by

race, inherited or other immutable characteristics, political belief or association.123 Thus,

Plaintiff Judge Marchman has failed to allege facts sufficient to state a claim against Crawford

under 1985(3).

Moreover, for the reasons set forth in Section C, the pleadings do not set forth a

conspiracy in that Plaintiff Judge Marchman concludes the existence of a conspiracy but does not

allege facts supporting an agreement among the defendants to act to in a manner supporting an

illegal objective. For these reasons, she has failed to state a claim for relief against Crawford

under 1985 and the Motion to Dismiss should be granted.

4. Plaintiffs Allegations Fail to Support a 1986 Claim

12142 U.S.C. 1985(3).122Horaist v. Doctors Hosp. of Opelousas, 255 F. 3d 261, 270 (W.D. La. 2001).123Hamill v. Wright, 870 F. 2d 1032, 1037-38 (5thCir. 1989).



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On May 13, 2016, Plaintiff Judge Marchman filed a Supplemental, Amended and

Restated Complaint which added, among other allegations, 1986 claims that all defendants had

knowledge of the conspiracies against Judge Marchman and had the power to sto

06102016 motion to dissmiss- crawford

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