Case 3:16-cv-00515-SMH-JPM Document 24 Filed 05/16/16 Page 1 of 5 PageID #: 172

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JUDGE SHARON INGRAM
MARCHMAN
Plaintiff

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CIVIL ACTION NO. 3:16-cv-0515
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JUDGE S. MAURICE HICKS
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VERSUS
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MAGISTRATE PEREZ-MONTES
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BRIAN E. CRAWFORD;
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JURY TRIAL DEMANDED
LAWRENCE W. PETTIETTE, JR.;
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JAMES D. BUDDY CALDWELL;
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JON K. GUICE;
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JUDGE CARL V. SHARP;
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JUDGE FREDERIC C. AMMAN;
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JUDGE J. WILSON RAMBO;
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JUDGE BENJAMIN JONES; and
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ALLYSON CAMPBELL
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Defendants
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OPPOSITION TO MOTION TO DISMISS
MAY IT PLEASE THE COURT:
Plaintiff, Judge Sharon Ingram Marchman, hereby submits her opposition to the Motion to
Dismiss filed by Defendant Lawrence W. Pettiette, Jr., pursuant to F.R.C.P. 12(b)(1). Pettiette
argues that this Court has no subject matter jurisdiction over Judge Marchmans claims due to
Pettiettes alleged Eleventh Amendment immunity. However, as shown below, Pettiette is
incorrect, and his motion must be denied.
Before addressing the merits of Pettiettes motion, though, Judge Marchman must correct
statements made by Defendant Pettiette as to the background of this litigation. Pettiette states that
this matter arises out of the case of Palowsky v. Campbell, Fourth Judicial District Court, Docket

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No. 15-2179.1 Pettiette goes on to state that the main demand therein has been dismissed and is
now on appeal.2 Judge Marchmans claims do not arise out of Palowsky v. Campbell. Instead,
they 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 JDC.
While said payroll fraud, document destruction, and conspiracy might have been raised in
Palowsky v. Campbell, Judge Marchmans causes of action do not arise from that suit. They arise
from Defendants actions taken against her.
As for the present motion, the burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting lack of 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).
Defendant Pettiette claims that Judge Marchman cannot maintain any claims against him
because he was sued in his official capacity only, and the Eleventh Amendment provides him with
immunity from said claims. His argument is flawed in several respects. First, Pettiette ignores the
fact that Judge Marchman has sought declaratory relief as well as attorney fees under 42 U.S.C.
1988.3 Neither of those claims is barred by the Eleventh Amendment even when the official is
sued in his official capacity only. 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.

Doc. No. 10-1, Memorandum in Support of Motion to Dismiss, p. 1.

Id.
3
Doc. No. 1, Complaint 110 115; Doc. No. 22, Supplemental, Amended, and Restated Complaint, 119 124.
2

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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 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)).
Additionally, claims for prospective injunctive relief are not barred by the Eleventh
Amendment. The Eleventh Amendment does not protect state officials from claims for
prospective relief when it is alleged that the state officials acted in violation of federal law. Id.
(citing Ex parte Young, 209 U.S. 123, 15556 (1908); Edelman v. Jordan, 415 U.S. 651, 664,
(1974); Brennan v. Stewart, 834 F.2d 1248, 1252 (5th Cir. 1988)). This is so because officialcapacity actions for prospective relief are not treated as actions against the State. Kentucky v.
Graham, 473 U.S. 159, 167, n. 14 (1985)(citation omitted). Moreover, even an award of
prospective injunctive which results in the diminution of state funds may not be barred by the
Eleventh Amendment. Morehouse, 2008 WL 4664075, at *4 (citing In re Dairy Mart Convenience
Stores, Inc., 411 F.3d 367, 37475 (2nd Cir. 2005)).
Judge Marchman recently amended her Complaint to clarify certain allegations and
requests for relief, and she supplemented it to add a claim under 42 U.S.C. 1986. Even though
Judge Marchman did previously state that she was seeking injunctive relief to prevent
Defendants ongoing violations,4 in her Supplemental, Amended, and Restated Complaint, she
clarified that Defendants actions remain ongoing.5

Thus, Pettiettes argument that Judge

Marchman made no allegations of ongoing violations is inaccurate as well as moot.

Accordingly, claims against Defendant Pettiette for attorney fees, declaratory relief, and
prospective injunctive relief are not barred by the Eleventh Amendment. As such, Pettiettes

4
5

Doc. No. 1, 107 and 109.

Doc. No. 22, 84.
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request that all Judge Marchmans claims be dismissed for lack of jurisdiction lacks merit, and it
must be denied.
With regard to Judge Marchmans claims for monetary damages, in her recent amendment
she clarified that she is not seeking to recover monetary damages from the Louisiana treasury. 6 To
the contrary, she is seeking to impose individual liability and recover damages from the named
defendants personally for their actions under color of law which violated her constitutional rights.
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 Pettiettes actions, but is instead seeking to recover from him personally, there is absolutely no
Eleventh Amendment bar to her claims against Pettiette in his individual capacity for actions he
took under color of law. Pettiettes request that Judge Marchmans claims for damages against
him must, therefore, be denied.
For the reasons set forth above, Judge Marchman respectfully submits that her claims for
attorney fees, declaratory relief, and prospective injunctive relief against Pettiette in his official
capacity are not barred by the Eleventh Amendment. Moreover, in light of the clarified allegations
in her Supplemental, Amended, and Restated Complaint and following United States Supreme
Court jurisprudence, Judge Marchmans claims against Pettiette in his personal capacity for his

Doc. No. 22, 6.

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actions under color of law are not barred by the Eleventh Amendment. Accordingly, Defendant
Pettiettes Motion to Dismiss should now be denied.
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

CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of May, 2016, I presented the foregoing Supplemental,
Amended, and Restated Complaint to the Clerk of Court for filing and uploading to the CM/ECF
system, and I hereby certify that pursuant to FRCP 4, I have served a copy of this memorandum
to the following non-CM/ECF participants via United States mail:
Former Louisiana Attorney General James D. Buddy Caldwell
122 N. Cedar St.
Tallulah, LA 71282
/s/ Joseph R. Ward, Jr.
Joseph R. Ward, Jr.

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