Shane Gates V Sheriff Jack Strain Randy Smith ST Tammany 22nd Clerk of Court Louisiana 5th Circuit - Case No 17-30519

APPEAL,CLOSED,MASTER
U.S. District Court

Eastern District of Louisiana (New Orleans)
CIVIL DOCKET FOR CASE #: 2:07-cv-06983-CJB-JCW
Gates v. Strain et al Date Filed: 10/17/2007

Assigned to: Judge Carl Barbier Date Terminated: 03/11/2013
Referred to: Magistrate Judge Joseph C. Wilkinson, Jr Jury Demand: Plaintiff
Member case: (View Member Case) Nature of Suit: 440 Civil Rights: Other
Case in other court: USCA, 5th Circuit, 17-30519 Jurisdiction: Federal Question
Cause: 42:1983 Civil Rights Act
Plaintiff
Shane M. Gates represented by James McClendon Williams
Chehardy,Sherman,Williams,Murray,Recile,Stakelum&Hayes,
LLC
One Galleria Blvd.
Suite 1100
Metairie, LA 70001
504-833-5600
Fax: 504-456-8624
Email: jmw@chehardy.com
TERMINATED: 06/08/2015
LEAD ATTORNEY
John Alford Hollister

John A. Hollister, Attorney at Law
613 Bon Temps Roule'
Mandeville, LA 70471
985-792-5353
Email: jahollister@yahoo.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Martin E. Regan , Jr.

Regan Law PLC
2125 St. Charles Ave.
New Orleans, LA 70130
504-522-7260
Email: mregan@reganlaw.net
LEAD ATTORNEY
Alanah Odoms Hebert

Gauthier, Houghtaling & Williams
3500 N. Hullen St.
Metairie, LA 70002
504-456-8600
Email: alanah@ghwlegal.com
17-30519.1
Daniel G. Abel
Daniel G. Abel, Inc.
2421 Clearview Parkway
Suite 106
Metairie, LA 70001
504-284-8521
Email: danielpatrickegan@gmail.com
Pascal Frank Calogero , Jr.

Law Office of Pascal F. Calogero, Jr., APLC
Energy Centre
1100 Poydras St.
Suite 1500
504-582-2300
Email: pcalogero@alsfirm.com
V.
Consol Plaintiff
Shane M. Gates represented by Daniel G. Abel
(See above for address)
LEAD ATTORNEY
James McClendon Williams

LEAD ATTORNEY

LEAD ATTORNEY
Martin E. Regan , Jr.

V.
Defendant
Rodney Jack Strain represented by Chadwick William Collings
Sheriff, in his official and Milling Benson Woodward, LLP (Mandeville)
individual capacity 68031 Capital Trace Row
985-292-2000
Fax: 985-292-2001
Email: ccollings@millinglaw.com
17-30519.2
LEAD ATTORNEY
Andre Jude Lagarde

U. S. Attorney's Office (New Orleans)
650 Poydras St.
Suite 1600
(504) 680-3009
Email: andre.lagarde@usdoj.gov
Andrew Robert Capitelli

Milling Benson Woodward, LLP (Mandeville)
68031 Capital Trace Row
985-871-3924
Email: acapitelli@millinglaw.com
Mark Emerson Hanna

Mouledoux, Bland, Legrand & Brackett, LLC
One Shell Square
701 Poydras St.
Suite 4250
504-595-3000
Email: mhanna@mblb.com
Thomas S. Schneidau
Milling Benson Woodward, LLP (Mandeville)
985-871-3924
Fax: 985-871-6957
Email: tschneidau@millinglaw.com
Defendant
St. Tammany Parish represented by Chadwick William Collings
Sheriff's Office (See above for address)
LEAD ATTORNEY
Andre Jude Lagarde


17-30519.3
Mark Emerson Hanna
Thomas S. Schneidau
Defendant
Walter P Reed represented by Cary J. Menard
D.A., in his official capacity District Attorney's Office (22nd JDC)
701 N. Columbia St.
Covington, LA 70433
985-809-8383
Fax: 985-809-8365
Email: cmenard@22DA.com
LEAD ATTORNEY
Emily Gaunt Couvillon

22nd Judicial D.A.'s Office (Covington)
701 N Columbia Street
Covington, LA 70433
985-809-8374
Email: ecouvillon@22da.com
LEAD ATTORNEY
Kathryn W. Landry
Kathryn W. Landry, LLC
P. O. Box 82659
Baton Rouge, LA 70884
225-766-0023
Email: kathilandry@aol.com
LEAD ATTORNEY
Defendant
St. Tammany District represented by Emily Gaunt Couvillon
Attorney's Office (See above for address)
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY
Defendant
Charles M. Hughes, Jr. represented by Richard Terrell Simmons , Jr.
Attorney Hailey, McNamara, Hall, Larmann & Papale, LLP (Metairie)
One Galleria Blvd.
17-30519.4
Suite 1400
P. O. Box 8288
Metairie, LA 70001-8288
(504) 836-6500
Email: rsimmons@hmhlp.com
LEAD ATTORNEY
Joseph L. Spilman , III

Pugh, Accardo, LLC (New Orleans)
1100 Poydras St.
Suite 3300
(504) 799-4500
Fax: (504) 836-6565
Email: jspilman@pugh-law.com
William Glenn Burns

Gaudry, Ranson, Higgins & Gremillion, LLC (Gretna)
401 Whitney Ave.
Suite 500
P. O. Box 1910
Gretna, LA 70054-1910
(504) 362-2466
Fax: (504) 362-5938
Email: gburns@grhg.net
Defendant
Nathan Miller represented by Chadwick William Collings
Sheriff Deputy (See above for address)
LEAD ATTORNEY
Andre Jude Lagarde


Mark Emerson Hanna

Thomas S. Schneidau
Defendant
17-30519.5
Robert Gottardi represented by Chadwick William Collings
LEAD ATTORNEY
Andre Jude Lagarde


Mark Emerson Hanna

Thomas S. Schneidau
Defendant
Brian Williams represented by Chadwick William Collings
LEAD ATTORNEY
Andre Jude Lagarde


Mark Emerson Hanna

Thomas S. Schneidau
Defendant
Unidentified Parties
Defendant
Louisiana Medical Center represented by Lawrence Emerson Abbott
and Heart Hospital, LLC Cotten, Schmidt & Abbott, LLP
and previously as Louisiana 650 Poydras Street
Heart Hospital, LLC Suite 2810
TERMINATED: 04/17/2008 New Orleans, LA 70130
17-30519.6
504-568-9393
Email: labbott@csa-lawfirm.com
LEAD ATTORNEY
Becky Jo Hollen
Abbott, Simses & Kuchler (Covington)
5100 Village Walk
Suite 200
Covington, LA 70433
985-893-2991
Email: bhollen@abbott-simses.com
Byron D. Kitchens
Cotten, Schmidt & Abbott, LLP
650 Poydras Street
Suite 2810
504-568-9393
Email: byron.kitchens@formanwatkins.com
Monique M. Weiner
Kuchler Polk Schell Weiner & Richeson, LLC (New Orleans)
1615 Poydras St.
Suite 1300
504-592-0691
Email: mweiner@kuchlerpolk.com
Nancy Cundiff
650 Poydras Street
Suite 2810
504-568-9393
Email: ncundiff@csa-lawfirm.com
Defendant
Louisiana Heart Hospital
LLC
Defendant
Philip Duiett represented by Lawrence Emerson Abbott
Lacombe Nurse (See above for address)
LEAD ATTORNEY
17-30519.7
Becky Jo Hollen
Byron D. Kitchens
Monique M. Weiner
Nancy Cundiff
Defendant
St. Paul Insurance represented by William H. Howard , III
Company Baker Donelson Bearman Caldwell & Berkowitz (New
Orleans)
Suite 3600
504-566-5275
Email: bhoward@bakerdonelson.com
LEAD ATTORNEY
Alissa Jean Allison

Baker Donelson Bearman Caldwell & Berkowitz (New
Orleans)
Suite 3600
504-566-5233
Email: aallison@bakerdonelson.com
Andre Jude Lagarde

Mark Emerson Hanna

V.
Consol Defendant
Richard Swartz represented by David Glen Sanders
Judge Louisiana Department of Justice
Litigation Division
17-30519.8
P.O. Box 94005
1885 North 3rd St.
Baton Rouge, LA 70804-9005
225-326-6300
Fax: 225-326-6192
Email: sandersd@ag.louisiana.gov
LEAD ATTORNEY
Douglas Gist Swenson

Louisiana Department of Justice (1885 N 3rd St)
1885 North 3rd Street
225-326-6361
Fax: 225-326-6192
Email: swensond@ag.louisiana.gov
Consol Defendant
Nicholas F. Noriea, Jr. represented by Cary J. Menard
ADA (See above for address)
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY

Consol Defendant
Marie-Elise Prieto represented by Thomas H. Huval
Clerk of Court - St. Tammany Jones Fussell, LLP
Northlake Corporate Park
1001 Hwy 190 Service Road East
Suite 103
P. O. Box 1810
Covington, LA 70434-1810
985-892-4801
Fax: 985-259-8003
Email: thuval@jonesfussell.com
LEAD ATTORNEY
Stefini Weckwerth Salles

Adams & Reese, LLP (New Orleans)
One Shell Square
701 Poydras St.
17-30519.9
Suite 4500
504-581-3234
Email: stefini.salles@arlaw.com
Consol Defendant
James D. Caldwell represented by David Glen Sanders
Louisiana Attorney General (See above for address)
also known as LEAD ATTORNEY
Buddy Caldwell ATTORNEY TO BE NOTICED

Consol Defendant
Ronald Gracianette represented by Cary J. Menard
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY

Consol Defendant
Captain Sherwood represented by Chadwick William Collings
LEAD ATTORNEY
Mark Emerson Hanna

Trevor Matthew Cutaiar

One Shell Square
701 Poydras St.
Suite 4250
504-595-3000
Email: tcutaiar@mblb.com
17-30519.10
Consol Defendant
Kathryn Landry represented by Cary J. Menard
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY

Consol Defendant
Rodney Strain represented by Chadwick William Collings
STPSO Sheriff (See above for address)
Jack Strain ATTORNEY TO BE NOTICED

Mark Emerson Hanna

Thomas S. Schneidau

Consol Defendant
St. Paul Fire and Marine represented by Mark Emerson Hanna
Insurance Company (See above for address)
improperly named as TERMINATED: 12/13/2016
Travelers-St. Paul Insurance
Company Trevor Matthew Cutaiar
William H. Howard , III

17-30519.11
Consol Defendant
Consol Defendant
St. Tammany Parish represented by Emily Gaunt Couvillon
District Attorney's Office (See above for address)
Walter P. Reed LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY
Consol Defendant
Kathy Sherwood represented by Chadwick William Collings
Captain; identified in (See above for address)
complaint as Captain LEAD ATTORNEY
Sherwood ATTORNEY TO BE NOTICED

Mark Emerson Hanna

Thomas S. Schneidau

Consol Defendant
Walter P Reed represented by Ralph S. Whalen , Jr.
Ralph S. Whalen, Jr., Attorney at Law
Energy Centre
1100 Poydras St.
Suite 2950
504-525-1600
Email: ralphswhalen@ralphswhalen.com
LEAD ATTORNEY
Cary J. Menard
17-30519.12
Kathryn W. Landry
Consol Defendant
Office of the Louisiana represented by David Glen Sanders
Attorney General (See above for address)
LEAD ATTORNEY

Consol Defendant
Travelers-St. Paul represented by Mark Emerson Hanna
Insurance Companies (See above for address)

V.
Respondent
William Burris
Movant
William J. Crain represented by Bridget Benoit Denicola
Honorable Louisiana Department of Justice (94005)
P. O. Box 94005
225-326-6300
Email: denicolab@ag.louisiana.gov
LEAD ATTORNEY
David Glen Sanders

Movant
Reginald Badeaux represented by Bridget Benoit Denicola
Honorable (See above for address)
17-30519.13
LEAD ATTORNEY
David Glen Sanders

Movant
Raymond Childress represented by Bridget Benoit Denicola
LEAD ATTORNEY
David Glen Sanders

Robert Craig Stern

Killeen & Stern, PC (New Orleans)
400 Poydras St.
Suite 1710
504-525-8111
Fax: 504-680-6080
Email: rstern@killeen-law.com
Movant
William Knight represented by Bridget Benoit Denicola
Rusty Knight ATTORNEY TO BE NOTICED
David Glen Sanders

Date Filed # Docket Text
10/17/2007 1 (p.44) COMPLAINT with Jury Demand against Robert Gottardi, Brian Williams,
Unidentified Parties, Louisiana Medical Center and Heart Hospital, LLC, Louisiana
Heart Hospital LLC, Philip Duiett, St. Paul Insurance Company, Unidentified Party,
Rodney Jack Strain, St. Tammany Parish Sheriff's Office, Walter P Reed, St.
Tammany District Attorney's Office, Charles M. Hughes, Jr, Nathan Miller (Filing
fee $ 350.) filed by Shane M. Gates. (Attachments: # 1 (p.44) Civil Cover
Sheet)(blg) (Entered: 10/22/2007)
10/17/2007 2 Summons Issued as to Robert Gottardi, Brian Williams, Louisiana Medical Center
and Heart Hospital, LLC, Louisiana Heart Hospital LLC, Philip Duiett, St. Paul
Insurance Company, Rodney Jack Strain, St. Tammany Parish Sheriff's Office,
Walter P Reed, St. Tammany District Attorney's Office, Charles M. Hughes, Jr,
Nathan Miller. (blg) (Entered: 10/22/2007)
17-30519.14
01/22/2008 3 (p.75) First AMENDED COMPLAINT with Jury Demand against all defendants filed by
Shane M. Gates. (Attachments: # 1 (p.44) Exhibit Shane M. Gates
Photographs)(Abel, Daniel) (Entered: 01/22/2008)
01/22/2008 4 (p.110) Request of Summons Issued as to Robert Gottardi, Brian Williams, Philip Duiett,
Rodney Jack Strain, St. Tammany Parish Sheriff's Office, Walter P Reed, St.
Tammany District Attorney's Office, Charles M. Hughes, Jr, Nathan Miller filed by
Shane M. Gates re 3 (p.75) Amended Complaint, 1 (p.44) Complaint,. (ala, )
(Entered: 01/23/2008)
01/22/2008 5 Summons Issued as to Robert Gottardi, Brian Williams, Philip Duiett, Rodney Jack
Strain, St. Tammany Parish Sheriff's Office, Walter P Reed, St. Tammany District
Attorney's Office, Charles M. Hughes, Jr, Nathan Miller. (ala, ) (Entered:
01/23/2008)
02/06/2008 6 (p.111) *** DEFICIENT - SUMMONS Returned Executed; Louisiana Medical Center and
Heart Hospital, LLC served on 1/4/2007, answer due 1/24/2007; Louisiana Heart
Hospital LLC served on 1/4/2007, answer due 1/24/2007. (Abel, Daniel) Modified
on 2/7/2008 (blg, ). (Entered: 02/06/2008)
02/06/2008 7 (p.113) *** DEFICIENT - SUMMONS Returned Executed; Louisiana Medical Center and
Heart Hospital, LLC served on 2/4/2008, answer due 2/25/2008; Louisiana Heart
Hospital LLC served on 2/4/2008, answer due 2/25/2008. (Abel, Daniel) Modified
on 2/7/2008 (blg, ). (Entered: 02/06/2008)
02/07/2008 8 (p.115) SUMMONS Returned Executed; St. Tammany District Attorney's Office served on
2/6/2008, answer due 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 9 (p.117) SUMMONS Returned Executed; Rodney Jack Strain served on 2/6/2008, answer
due 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 10 SUMMONS Returned Executed; St. Tammany Parish Sheriff's Office served on
(p.119) 2/6/2008, answer due 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 11 SUMMONS Returned Executed; Nathan Miller served on 2/6/2008, answer due
(p.121) 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 12 SUMMONS Returned Executed; Brian Williams served on 2/6/2008, answer due
(p.123) 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 13 SUMMONS Returned Executed; Robert Gottardi served on 2/6/2008, answer due
(p.125) 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 14 SUMMONS Returned Executed; Charles M. Hughes, Jr served on 2/6/2008, answer

(p.127) due 2/26/2008. (blg) (Entered: 02/08/2008)
02/07/2008 15 Request of Summons Issued as to Louisiana Medical Center and Heart Hospital,
(p.129) LLC filed by Shane M. Gates re 3 (p.75) Amended Complaint, 1 (p.44) Complaint.
(blg) (Entered: 02/08/2008)
02/07/2008 16 Summons Issued as to Louisiana Medical Center and Heart Hospital, LLC. (blg)
(Entered: 02/08/2008)
02/08/2008 17 Request of Summons Re-Issued as to Walter P Reed filed by Shane M. Gates re 3

(p.130) (p.75) Amended Complaint, 1 (p.44) Complaint,. (blg) (Entered: 02/11/2008)
02/08/2008 18 Summons Re-Issued as to Walter P Reed. (blg) (Entered: 02/11/2008)
17-30519.15
02/13/2008 19 SUMMONS Returned Executed; Walter P Reed served on 2/13/2008, answer due
(p.131) 3/4/2008. (Abel, Daniel) (Entered: 02/13/2008)
02/13/2008 20 SUMMONS Returned Executed; Louisiana Medical Center and Heart Hospital, LLC
(p.133) served on 2/13/2008, answer due 3/4/2008. (Abel, Daniel) (Entered: 02/13/2008)
02/14/2008 21 SUMMONS Returned Executed; Philip Duiett served on 2/14/2008, answer due
02/19/2008 22 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Walter P

(p.137) Reed, St. Tammany District Attorney's Office. (Attachments: # 1 (p.44) Proposed
Order Order)(Landry, Kathryn) (Entered: 02/19/2008)
02/20/2008 23 ORDER granting 22 (p.137) Motion for Extension of Time to Answer as to Walter P
(p.141) Reed, answer due 3/27/2008. Signed by Judge Stanwood R. Duval Jr. on 2/20/08.
(blg) (Entered: 02/21/2008)
02/26/2008 24 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Robert

(p.142) Gottardi, Brian Williams, St. Paul Insurance Company, Rodney Jack Strain, St.
Tammany Parish Sheriff's Office, Nathan Miller. (Attachments: # 1 (p.44) Proposed
Order)(Hanna, Mark) (Entered: 02/26/2008)
02/28/2008 25 ORDER CALL DOCKET - ORDERED that plaintiff's in the above-captioned matter
(p.145) show cause on or before 3/28/08, by written memorandum or motion, as is
appropriate, why claims and demands against defendants' Charles Hughes, Jr.,
Louisiana Medical Center and Heart Hospital, LLC, and Philip Duiett should not be
dismissed for plaintiff's failure to prosecute. Signed by Judge Stanwood R. Duval Jr.
on 2/28/08.(blg) (Entered: 02/28/2008)
02/28/2008 26 *** DEFICIENT - EXPARTE/CONSENT MOTION for Hearing re 25 (p.145)

(p.146) Order,, Set/Reset Hearings, Motion to Confirm Preliminary Default Judgment by
Shane M. Gates. Motion Hearing set for 3/19/2008 09:30 AM before Judge
Stanwood R. Duval Jr.. (Attachments: # 1 (p.44) Affidavit Abel Affidavit as to
Nature and Competence of Defendant# 2 Notice of Hearing To Confirm Preliminary
Default Judgment)(Abel, Daniel) Modified on 2/29/2008 (blg, ). (Entered:
02/28/2008)
02/28/2008 27 ORDER granting 24 (p.142) Motion for Extension of Time to Answer as to Robert
(p.151) Gottardi answer due 3/26/2008; Brian Williams answer due 3/26/2008; St. Paul
Insurance Company answer due 3/26/2008; Rodney Jack Strain answer due
3/26/2008; St. Tammany Parish Sheriff's Office answer due 3/26/2008; Nathan
Miller answer due 3/26/2008. Signed by Judge Stanwood R. Duval Jr. on 2/28/08.
(blg) (Entered: 02/29/2008)
02/29/2008 28 EXPARTE/CONSENT Ex Parte MOTION for Entry of Default as to Defendant

(p.152) Charles M. Hughes, Jr. by Shane M. Gates. (Attachments: # 1 (p.44) Proposed Order
For Default Judgment# 2 Affidavit As to Competence and Military Service of
Defendant)(Abel, Daniel) (Entered: 02/29/2008)
02/29/2008 29 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 3 (p.75)

(p.157) Amended Complaint, 1 (p.44) Complaint, by Louisiana Medical Center and Heart
Hospital, LLC, Philip Duiett. (Attachments: # 1 (p.44) Exhibit # 2 Proposed
Order)(Brechtel, Nancy) Modified on 3/3/2008 (blg, ). (Entered: 02/29/2008)
02/29/2008 30 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Charles M.

(p.162) Hughes, Jr. (Attachments: # 1 (p.44) Proposed Order)(Spilman, Joseph) (Entered:
17-30519.16
02/29/2008)

(p.165) Amended Complaint, 1 (p.44) Complaint, by Charles M. Hughes, Jr. (Attachments:
# 1 (p.44) Proposed Order)(Spilman, Joseph) (Entered: 02/29/2008)
03/03/2008 32 ORDER granting 29 (p.157) Motion for Extension of Time to Answer re 3 (p.75)
(p.168) Amended Complaint, 1 (p.44) Complaint, as to Louisiana Medical Center and Heart
Hospital, LLC answer due 3/10/2008; Philip Duiett answer due 3/10/2008.. Signed
by Judge Stanwood R. Duval Jr. on 3/3/08. (blg) (Entered: 03/03/2008)
(p.169) Amended Complaint, 1 (p.44) Complaint, as to Charles M. Hughes, Jr answer due
3/24/2008.. Signed by Judge Stanwood R. Duval Jr. on 3/3/08. (blg) (Entered:
03/03/2008)
03/03/2008 34 ORDER granting 30 (p.162) Motion to Enroll as Counsel of Record for Attorney
(p.170) Richard Terrell Simmons, Jr for Charles M. Hughes, Jr. Signed by Judge Stanwood
R. Duval Jr. on 3/3/08. (blg) (Entered: 03/03/2008)
03/04/2008 35 ORDER denying 28 (p.152) Motion for Entry of Default; See docs #31 and #33.
(p.171) Signed by Clerk on 3/4/08. (blg) (Entered: 03/04/2008)
03/09/2008 36 Second AMENDED COMPLAINT with Jury Demand against all defendants filed
(p.172) by Shane M. Gates.(Abel, Daniel) (Entered: 03/09/2008)
03/10/2008 37 Correction of Docket Entry by Clerk re 36 (p.172) Second Amended Complaint;

Error by Clerk. Document is no longer deficient. No answers have been filed by
defendants, therefore leave is not needed. (blg) (Entered: 03/10/2008)

(p.185) Amended Complaint, 1 (p.44) Complaint, by Louisiana Medical Center and Heart
Hospital, LLC, Philip Duiett. (Attachments: # 1 (p.44) Exhibit Exhibit A to Motion
for Extension of Time# 2 Proposed Order)(Brechtel, Nancy) Modified on 3/11/2008
(lag, ). (Entered: 03/10/2008)
03/10/2008 39 CERTIFICATE of No Opposition by Nancy Brechtel re 38 (p.185) MOTION for

(p.190) Extension of Time to Answer re 3 (p.75) Amended Complaint, 1 (p.44) Complaint.
(Attachments: # 1 (p.44) Exhibit Exhibit A to Certificate of No
Opposition)(Brechtel, Nancy) Modified on 3/11/2008 (lag, ). (Entered: 03/10/2008)
03/11/2008 40 ORDER granting 38 (p.185) Motion for Extension of Time to Answer as to

(p.193) Louisiana Medical Center and Heart Hospital, LLC answer due 3/31/2008; Philip
Duiett answer due 3/31/2008.. Signed by Judge Stanwood R. Duval Jr.. (lag, )
(Entered: 03/11/2008)
03/11/2008 41 Correction of Docket Entry by Clerk re 38 (p.185) MOTION for Extension of Time
to Answer re 3 (p.75) Amended Complaint, 1 (p.44) Complaint; Motion should be
designated "Exparte/Consent" by selecting "yes" when prompted. Clerk took
corrective action. (lag, ) (Entered: 03/11/2008)
03/13/2008 42 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Robert

Tammany Parish Sheriff's Office, Nathan Miller. (Attachments: # 1 (p.44) Proposed
03/17/2008
17-30519.17
43 Third AMENDED COMPLAINT with Jury Demand against Robert Gottardi, Brian
(p.197) Williams, Unidentified Parties, Philip Duiett, Rodney Jack Strain, St. Tammany
Parish Sheriff's Office, Nathan Miller filed by Shane M. Gates.(Abel, Daniel)
(Entered: 03/17/2008)
03/17/2008 44 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Charles M.

(p.206) Hughes, Jr. (Attachments: # 1 (p.44) Proposed Order)(Spilman, Joseph) (Entered:
03/17/2008)
(p.209) Andre Jude Lagarde for Robert Gottardi, Brian Williams, St. Paul Insurance
Company, Rodney Jack Strain, St. Tammany Parish Sheriff's Office, Nathan Miller.
Signed by Judge Stanwood R. Duval Jr. on 3/17/08. (blg) (Entered: 03/18/2008)
(p.210) William Glenn Burns for Charles M. Hughes, Jr. Signed by Judge Stanwood R.
Duval Jr. on 3/18/08. (blg) (Entered: 03/18/2008)
03/20/2008 47 Joint MOTION to Stay Proceedings by Robert Gottardi, Brian Williams, St. Paul
(p.211) Insurance Company, Rodney Jack Strain, St. Tammany Parish Sheriff's Office,
Nathan Miller. Motion Hearing set for 4/16/2008 09:30 AM before Judge Stanwood
R. Duval Jr.. (Attachments: # 1 (p.44) Memorandum in Support # 2 Exhibit A# 3
(p.75) Exhibit B# 4 (p.110) Notice of Hearing)(Hanna, Mark) (Entered: 03/20/2008)
03/26/2008 48 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Brian

(p.228) Williams, St. Paul Insurance Company, Rodney Jack Strain, St. Tammany Parish
Sheriff's Office, Nathan Miller. (Attachments: # 1 (p.44) Proposed Order)(Hanna,
Mark) (Entered: 03/26/2008)
03/27/2008 49 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Charles M.

(p.232) Hughes, Jr. (Attachments: # 1 (p.44) Proposed Order)(Burns, William) Modified on
3/28/2008 (blg, ). (Entered: 03/27/2008)
03/27/2008 50 ORDER granting 48 (p.228) Motion for Extension of Time to Answer. Signed by
(p.236) Judge Stanwood R. Duval Jr. on 3/27/08. (blg) (Entered: 03/27/2008)
03/27/2008 51 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Walter P

(p.237) Reed. (Attachments: # 1 (p.44) Proposed Order Order)(Landry, Kathryn) (Entered:
03/27/2008)
to Answer; Filing attorney should have changed 'N' to 'Y' at the question 'Is this an
Exparte/Consent Motion Y/N?' before clicking the Next button. Clerk modified
docket text to reflect 'Exparte'. (blg) (Entered: 03/28/2008)
03/28/2008 53 ORDER granting 49 (p.232) Motion for Extension of Time to Answer as to Charles
(p.241) M. Hughes, Jr. Signed by Judge Stanwood R. Duval Jr. on 3/28/08. (blg) (Entered:
03/31/2008)
03/28/2008 54 ORDER granting 51 (p.237) Motion for Extension of Time to Answer as to Walter
(p.242) P. Reed. Signed by Judge Stanwood R. Duval Jr. on 3/28/08. (blg) (Entered:
03/31/2008)
03/31/2008 55 MOTION for More Definite Statement by Louisiana Medical Center and Heart
(p.243) Hospital, LLC, Philip Duiett. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion
17-30519.18
Hearing set for 4/16/2008 11:00 AM before Magistrate Judge Joseph C. Wilkinson
Jr. (Attachments: # 1 (p.44))(Brechtel, Nancy) Additional attachment(s) added on
4/1/2008 - Notice of Hearing (blg, ). Modified on 4/1/2008 (blg, ). (Entered:
03/31/2008)
03/31/2008 56 MOTION to Dismiss Party by Louisiana Medical Center and Heart Hospital, LLC,
(p.254) Philip Duiett. Motion Hearing set for 4/16/2008 09:30 AM before Judge Stanwood
R. Duval Jr. (Attachments: # 1 (p.44) Memorandum in Support # 2 Exhibit A# 3
(p.75) Exhibit B)(Brechtel, Nancy) Additional attachment(s) added on 4/1/2008 -
Notice of Hearing (blg, ). Modified on 4/1/2008 (blg, ). (Entered: 03/31/2008)
03/31/2008 57 Statement of Corporate Disclosure by Louisiana Medical Center and Heart Hospital,
(p.286) LLC identifying None as Corporate Parent. (Brechtel, Nancy) (Entered: 03/31/2008)
03/31/2008 58 Request/Statement of Oral Argument by Louisiana Medical Center and Heart

(p.288) Hospital, LLC, Philip Duiett regarding 56 (p.254) MOTION to Dismiss Party, 55
(p.243) MOTION for More Definite Statement. (Brechtel, Nancy) (Entered:
03/31/2008)
03/31/2008 59 *** ERROR: Document should be filed as an attachment to the motion. - NOTICE
(p.291) of Hearing on Motion filed by Louisiana Medical Center and Heart Hospital, LLC,
Philip Duiett re 55 (p.243) MOTION for More Definite Statement. Motion Hearing
set for 4/16/2008 09:30 AM before Magistrate Judge Joseph C. Wilkinson Jr..
(Brechtel, Nancy) Modified on 4/1/2008 (blg, ). (Entered: 03/31/2008)
03/31/2008 60 *** ERROR: Document should be filed as an attachment to the motion. - NOTICE
(p.293) of Hearing on Motion filed by Louisiana Medical Center and Heart Hospital, LLC,
Philip Duiett re 56 (p.254) MOTION to Dismiss Party. Motion Hearing set for
4/16/2008 09:30 AM before Judge Stanwood R. Duval Jr.. (Brechtel, Nancy)
Modified on 4/1/2008 (blg, ). (Entered: 03/31/2008)
03/31/2008 61 Correction of Docket Entry by Clerk re 55 (p.243) MOTION for More Definite
Statement; Attachment was not described. Filing attorney must select either a
category or enter a description when attaching documents to the main document.
Clerk took corrective action. Filing attorney selected incorrect judicial officer for
hearing. When setting a motion for hearing there is a reminder message 'Be sure to
select the correct Judge or Magistrate Judge:'. Motion is to be heard before
Magistrate Judge Joseph C. Wilkinson, Jr. Clerk took corrective action. Document
59 (p.291) Notice of Hearing on Motion was incorrectly filed as a separate document
instead of an attachment to document 55 (p.243) MOTION for More Definite
Statement. Clerk took corrective action. No further action is needed. - (blg) (Entered:
04/01/2008)
03/31/2008 62 Correction of Docket Entry by Clerk re Document 60 (p.293) Notice of Hearing on

Motion was incorrectly filed as a separate document instead of an attachment to
document 56 (p.254) MOTION to Dismiss Party. Clerk took corrective action. No
further action is needed. (blg) (Entered: 04/01/2008)
04/02/2008 63 ORDER Setting/Resetting oral argument on 55 (p.243) MOTION for More Definite
(p.295) Statement: Motion Hearing set for 4/16/2008 11:00 AM before Magistrate Judge
Joseph C. Wilkinson Jr. Signed by Judge Joseph C. Wilkinson Jr..(car, ) (Entered:
04/03/2008)
04/08/2008 64 RESPONSE/MEMORANDUM in Opposition filed by Shane M. Gates re 47 (p.211)

(p.296) Joint MOTION to Stay Proceedings. (Abel, Daniel) (Entered: 04/08/2008)
17-30519.19
(p.303) MOTION for More Definite Statement. (Abel, Daniel) (Entered: 04/08/2008)

(p.309) MOTION to Dismiss Party. (Abel, Daniel) (Entered: 04/08/2008)
04/12/2008 67 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record Martin E. Regan,

(p.321) Jr. by Shane M. Gates. (Attachments: # 1 (p.44) Proposed Order To Enroll
Additional Counsel of Record)(Abel, Daniel) (Entered: 04/12/2008)
04/13/2008 68 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum by Robert

Tammany Parish Sheriff's Office, Walter P Reed, St. Tammany District Attorney's
Office, Charles M. Hughes, Jr, Nathan Miller. (Attachments: # 1 (p.44) Proposed
Order Order# 2 Proposed Pleading Reply Memorandum)(Landry, Kathryn) (Entered:
04/13/2008)
(p.338) Martin E. Regan, Jr for Shane M. Gates. Signed by Judge Stanwood R. Duval Jr. on
4/14/08. (blg) (Entered: 04/14/2008)
04/14/2008 70 EXPARTE/CONSENT MOTION for Leave to File Reply to Plaintiff's Opposition to

(p.340) the Rule 12(b) Motion to Dismiss by Louisiana Medical Center and Heart Hospital,
LLC, Philip Duiett. (Attachments: # 1 (p.44) Proposed Order # 2 Proposed
Pleading)(Brechtel, Nancy) (Entered: 04/14/2008)
04/14/2008 71 EXPARTE/CONSENT MOTION for Leave to File Reply to Plaintiff's Opposition to

(p.350) the Rule 12(e) Motion for More Definite Statement by Louisiana Medical Center and
Heart Hospital, LLC, Philip Duiett. (Attachments: # 1 (p.44) Proposed Order # 2
Proposed Pleading)(Brechtel, Nancy) (Entered: 04/14/2008)
04/14/2008 72 ORDER granting 68 (p.325) Motion for Leave to File Reply Memorandum. Signed
(p.361) by Judge Stanwood R. Duval Jr. on 4/14/08. (blg) (Entered: 04/14/2008)
04/14/2008 73 REPLY to Response to Motion filed by Robert Gottardi, Brian Williams, St. Paul
(p.362) Insurance Company, Rodney Jack Strain, St. Tammany Parish Sheriff's Office,
Nathan Miller re 47 (p.211) Joint MOTION to Stay Proceedings. (blg) (Entered:
04/14/2008)
04/14/2008 74 ORDER granting 58 (p.288) Request/Statement of Oral Argument filed by Philip

(p.370) Duiett, Louisiana Medical Center and Heart Hospital, LLC. ORDER Setting Oral
Argument Hearing on 56 (p.254) MOTION to Dismiss Party, 47 (p.211) Joint
MOTION to Stay Proceedings : Oral Argument Hearing set for 4/16/2008 09:30
AM before Judge Stanwood R. Duval Jr. Signed by Judge Stanwood R. Duval Jr. on
4/14/08.(blg) Modified on 4/15/2008 (blg, ). (Entered: 04/14/2008)
04/15/2008 75 ORDER granting 70 (p.340) Motion for Leave to File Reply to Rule 12(b) Motion to
(p.371) Dismiss. Signed by Judge Stanwood R. Duval Jr. on 4/15/08. (blg) (Entered:
04/15/2008)
04/15/2008 76 REPLY to Response to Motion filed by Louisiana Medical Center and Heart
(p.373) Hospital, LLC, Philip Duiett re 56 (p.254) MOTION to Dismiss Party. (blg)
(Entered: 04/15/2008)
04/15/2008 77 ORDER granting 71 (p.350) Motion for Leave to File reply memo. Signed by Judge
17-30519.20
(p.378) Joseph C. Wilkinson Jr.. (car, ) (Entered: 04/16/2008)
04/15/2008 78 REPLY to Response to Motion filed by Louisiana Medical Center and Heart
(p.379) Hospital, LLC, Philip Duiett re 55 (p.243) MOTION for More Definite Statement.
(car, ) (Entered: 04/16/2008)
04/16/2008 79 M.E. 4/16/08 Motion hrg. ORDER finding as moot 55 (p.243) Motion for More
(p.385) Definite Statement. Signed by Judge Joseph C. Wilkinson Jr.. (car, ) Modified on
4/17/2008 (car, ). (Entered: 04/17/2008)
04/16/2008 80 Minute Entry for proceedings held before Judge Stanwood R. Duval Jr.: Motion
(p.386) Hearing held on 4/16/2008 re 56 (p.254) MOTION to Dismiss Party filed by Philip
Duiett, Louisiana Medical Center and Heart Hospital, LLC, 47 (p.211) Joint
MOTION to Stay Proceedings filed by Nathan Miller, Charles M. Hughes, Jr., St.
Paul Insurance Company, Robert Gottardi, Walter P Reed, Brian Williams, Rodney
Jack Strain, -, St. Tammany District Attorney's Office, St. Tammany Parish Sheriff's
Office. (Court Reporter Cindy Usner.) (blg) (Entered: 04/17/2008)
04/17/2008 81 ORDER granting 56 (p.254) Motion to Dismiss Party as to Louisiana Medical

(p.387) Center and Heart Hospital, LLC.; granting 47 (p.211) Motion to Stay, and case is
closed for statistical purposes. Signed by Judge Stanwood R. Duval Jr. (lag, )
(Entered: 04/18/2008)
04/23/2008 82 EXPARTE/CONSENT MOTION to Withdraw Becky Jo Hollen as Attorney by

(p.389) Louisiana Medical Center and Heart Hospital, LLC, Philip Duiett. (Attachments: # 1
(p.44) Proposed Order)(Brechtel, Nancy) (Entered: 04/23/2008)
04/24/2008 83 ORDER granting 82 (p.389) Motion to Withdraw as Attorney. Attorney Becky Jo

(p.392) Hollen terminated. Signed by Judge Stanwood R. Duval Jr. on 4/24/08. (blg)
(Entered: 04/24/2008)
03/17/2011 84 MOTION to Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the
(p.393) 22nd Judicial District Court for the Parish of St. Tammany by Shane M. Gates.
Motion set for 4/13/2011 09:30 AM before Judge Stanwood R. Duval Jr..
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Exhibit 10 May 2010
Hearing Transcript, # 3 (p.75) Notice of Submission, # 4 (p.110) Proposed Order To
Stay Prosecution, # 5 Proposed Pleading Request for Oral Argument)(Abel, Daniel)
Modified on 3/17/2011 (gec, ). (Entered: 03/17/2011)
03/17/2011 85 Request/Statement of Oral Argument by Shane M. Gates regarding 84 (p.393)

(p.523) MOTION to Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the
22nd Judicial District Court for the Parish of St. Tammany. (gec, ) (Entered:
03/17/2011)
03/17/2011 86 Correction of Docket Entry by Clerk re 84 (p.393) MOTION to Reopen 42:1983

Action and Stay Unconstitutional Prosecution in the 22nd Judicial District Court for
the Parish of St. Tammany. Filing attorney attached a Request/Statement for Oral
Argument to this motion instead of filing it as a separate entry. Clerk took corrective
action by separating the request and docketing it as a separate entry. All future
requests for oral argument must be filed separately. Also, the title of the attached
proposed order should not include the word Proposed but only reflect Order on the
actual document. The title of the attached Notice should reflect Notice of
Submission pursuant to the Local Rules. (gec, ) (Entered: 03/17/2011)
03/26/2011 87 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record The Hon. Pascal

(p.524) F. Calogero, Jr. by Shane M. Gates. (Attachments: # 1 (p.44) Proposed Order To
17-30519.21
Enroll the Hon. Pascal F. Calogero, Jr.)(Abel, Daniel) (Entered: 03/26/2011)
03/28/2011 88 Correction of Docket Entry by Clerk re 87 (p.524) MOTION to Enroll as Counsel of

Record. The title of the attached proposed order should not include the word
Proposed but only reflect Order on the actual document. (gec, ) (Entered:
03/28/2011)
(p.526) Pascal Frank Calogero, Jr for Shane M. Gates. Signed by Judge Stanwood R. Duval,
Jr on 3/29/2011. (blg) (Entered: 03/30/2011)
03/30/2011 90 ORDER granting 85 (p.523) Request/Statement of Oral Argument filed by Shane M.

(p.527) Gates, as to 84 (p.393) MOTION to Reopen 42:1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St.
Tammany. Motion Hearing with Oral Argument CONTINUED for 5/11/2011 09:30
AM before Judge Stanwood R. Duval Jr. FURTHER ORDERED that the opposition
to this motion shall be filed no later than 4/25/2011, with any reply brief to be filed
no later than 4/28/2011. Signed by Judge Stanwood R. Duval, Jr on 3/29/2011.(blg)
(Entered: 03/30/2011)
04/08/2011 91 EXPARTE/CONSENT MOTION to Reset Hearing on Motion to Reopen the Case

(p.528) by Robert Gottardi, St. Paul Insurance Company, St. Tammany Parish Sheriff's
Office, Rodney Jack Strain, Brian Williams, Nathan Miller . (Attachments: # 1
(p.44) Memorandum in Support, # 2 Proposed Pleading, # 3 (p.75) Proposed
Order)(Hanna, Mark) Modified on 4/11/2011 (gec, ). (Entered: 04/08/2011)
04/11/2011 92 Correction of Docket Entry by Clerk re 91 (p.528) MOTION for Hearing to Reset
Hearing on Motion to Reopen the Case. Filing attorney should have selected 'Yes' at
the question 'Is this an Exparte/Consent Motion Y/N?. Exparte/Consent motions are
not set for submission. Clerk has removed submission date and modified docket text.
Also, filing attorney did not select Nathan Miller as a filer. Clerk added filer. (gec, )
(Entered: 04/11/2011)
04/11/2011 93 ORDER granting 91 (p.528) MOTION to Reset Hearing on 84 (p.393) MOTION to

(p.535) Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany. Motion Hearing with Oral Argument
Requested, set for 5/11/2011 02:30 PM before Judge Stanwood R. Duval Jr.. Signed
by Judge Stanwood R. Duval, Jr.(gec, ) (Entered: 04/11/2011)
04/25/2011 94 RESPONSE/MEMORANDUM in Opposition filed by Robert Gottardi, Charles M.

(p.536) Hughes, Jr, Nathan Miller, Walter P Reed, St. Paul Insurance Company, St.
Tammany District Attorney's Office, St. Tammany Parish Sheriff's Office, Rodney
Jack Strain, Brian Williams re 84 (p.393) MOTION to Reopen 42:1983 Action and
Stay Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish
of St. Tammany. (Attachments: # 1 (p.44) Exhibit A)(Hanna, Mark) (Entered:
04/25/2011)
04/26/2011 95 MOTION to Quash Subpoena Duces Tecum, MOTION for Protective Order,
(p.556) MOTION for Sanctions pursuant to Rule 26 of the Federal Rules of Civil Procedure
by Walter P Reed and St. Tammany District Attorney's Office. Motion set for
5/11/2011 09:30 AM before Judge Stanwood R. Duval Jr. (Attachments: # 1 (p.44)
Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 (p.75) Memorandum in Support
Memorandum, # 4 (p.110) Exhibit Local Rule Certificate, # 5 Notice of Submission
Notice)(Landry, Kathryn) Modified on 4/27/2011 (caa, ). (Entered: 04/26/2011)
04/26/2011
17-30519.22
96 Request/Statement of Oral Argument by Walter P Reed, St. Tammany District
(p.577) Attorney's Office regarding 95 (p.556) MOTION to Quash Subpoena Duces Tecum
MOTION for Protective Order MOTION for Sanctions pursuant to Rule 26 of the
Federal Rules of Civil Procedure (Landry, Kathryn) Modified on 4/27/2011 (caa, ).
(Entered: 04/26/2011)
04/26/2011 97 MOTION to Quash Subpoena by St. Tammany Parish Sheriff's Office and Rodney
(p.579) Jack Strain. Motion set for 5/11/2011 09:30 AM before Judge Stanwood R. Duval Jr.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Exhibit A, # 3 (p.75) Exhibit
B, # 4 (p.110) Local Rule 37.1E Cert., # 5 Notice of Submission)(Hanna, Mark)
Modified on 4/27/2011 (caa, ). (Entered: 04/26/2011)
04/26/2011 98 EXPARTE/CONSENT MOTION to Withdraw Andre J. Lagarde as Attorney by

(p.600) Robert Gottardi, Nathan Miller, St. Paul Insurance Company, St. Tammany Parish
Sheriff's Office, Rodney Jack Strain, Brian Williams. (Attachments: # 1 (p.44)
Proposed Order)(Lagarde, Andre) (Entered: 04/26/2011)
04/26/2011 99 MOTION to Quash Subpoenas by Raymond Childress, William J. Crain, Reginald

(p.603) Badeaux and William Knight. Motion set for 5/11/2011 09:30 AM before Judge
Stanwood R. Duval Jr. (Attachments: # 1 (p.44) Memorandum in Support, # 2
Notice of Submission)(Sanders, David) Modified on 4/27/2011 (caa, ). (Entered:
04/26/2011)
04/26/2011 100 EXPARTE/CONSENT MOTION to Expedite Hearing on Motion to Quash by

(p.613) Reginald Badeaux, Raymond Childress, William J. Crain and William Knight.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed Order)(Sanders,
David) Modified on 4/27/2011 (caa, ). (Entered: 04/26/2011)
04/26/2011 101 Request/Statement of Oral Argument by All Plaintiffs regarding 99 (p.603)

(p.620) MOTION to Quash Subpoenas Issued to Judges Badeaux, Crain, Childress, and
Knight and Subpoenas Duces Tecum. (Abel, Daniel) (Entered: 04/26/2011)
04/27/2011 102 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 100 (p.613)

(p.622) MOTION to Expedite Hearing on Motion to Quash. (Abel, Daniel) (Entered:
04/27/2011)
04/27/2011 103 Correction of Docket Entry by Clerk re 95 (p.556) MOTION to Quash Subpoena
Duces Tecum MOTION for Protective Order MOTION for Sanctions pursunt to
Rule 26 of the Federal Rules of Civil Procedure. Filing attorney selected incorrect
submission time. Correct time is 09:30 am. Clerk took corrective action. No further
action necessary at this time. (caa, ) (Entered: 04/27/2011)
04/27/2011 104 Correction of Docket Entry by Clerk re 97 (p.579) MOTION to Quash Subpoena.
Filing attorney selected incorrect submission time and incorrectly selected Robert
Gottardi, Nathan Miller, St. Paul Insurance Company, and Brian Williams as filers.
Correct time is 09:30 am. Clerk took corrective action. No further action necessary
at this time. (caa, ) (Entered: 04/27/2011)
04/28/2011 105 Correction of Docket Entry by Clerk re 95 (p.556) MOTION to Quash Subpoena
Duces Tecum, MOTION for Protective Order, MOTION for Sanctions pursuant to
Rule 26 of the Federal Rules of Civil Procedure, 97 (p.579) MOTION to Quash
Subpoena, 99 (p.603) MOTION to Quash Subpoenas and 100 (p.613) MOTION to
Expedite Hearing on Motion to Quash. After further consideration with chambers
motions should have been referred to Magistrate Judge. These motions will be heard
before Magistrate Judge Wilkinson at 11:00 am. Clerk took corrective action.(caa, )
(Entered: 04/28/2011)
17-30519.23
04/29/2011 106 REPLY to Response to Motion filed by All Plaintiffs re 84 (p.393) MOTION to
(p.626) Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany. (Abel, Daniel) (Entered: 04/29/2011)
04/29/2011 107 ORDER granting 98 (p.600) Motion to Withdraw as Attorney. Attorney Andre Jude
(p.637) Lagarde terminated. Signed by Judge Stanwood R. Duval, Jr on 4/29/2011. (blg)
(Entered: 04/29/2011)
04/29/2011 108 MOTION to Withdraw Document re 100 (p.613) MOTION to Expedite Hearing on
(p.638) Motion to Quash by Reginald Badeaux, Raymond Childress, William J. Crain,
William Knight. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion set for
5/18/2011 11:00 AM before Magistrate Judge Joseph C. Wilkinson Jr..
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Notice of
Submission)(Denicola, Bridget) (Entered: 04/29/2011)
05/02/2011 109 ORDER finding as moot 100 (p.613) Motion to Expedite; granting 108 (p.638)
(p.647) Motion to Withdraw mtn for expedited hrg. Mtns to quash 95 (p.556) , 97 (p.579) ,
[99) are continued as set forth in document. Signed by Magistrate Judge Joseph C.
Wilkinson, Jr. (NEF - J. Duval)(car, ) (Entered: 05/02/2011)
05/10/2011 110 Notice of Compliance Providing Court with Chronology and Exhibit-Documents As
(p.649) Ordered by the Court on 9 May 2011 by Shane M. Gates re 84 (p.393) MOTION to
Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany. (Attachments: # 1 (p.44)
Exhibit-Documents With Chronology As Request by the Court)(Abel, Daniel)
(Attachment 1 replaced on 5/11/2011) (gec, ). Modified on 5/11/2011 (gec, ).
(Entered: 05/10/2011)

(p.704) MOTION to Quash Subpoenas Opposition and Notice of Conflict of Interest by
Attorney General Caldwell & Department. (Attachments: # 1 (p.44) Exhibit
Badeaux - Ex Parte to Be Heard by Louisiana Supreme Court on 11 May
2011)(Abel, Daniel) (Attachment 1 replaced on 5/11/2011) (gec, ). Modified on
5/11/2011 (gec, ). (Entered: 05/10/2011)

(p.731) MOTION to Quash Subpoena Duces Tecum, 97 (p.579) MOTION to Quash
Subpoena Issued to District Attorney Walter Reed and Sheriff Rodney Jack Strain.
(Abel, Daniel) Modified on 5/11/2011 (gec, ). (Entered: 05/10/2011)
05/10/2011 113 Notice of Compliance Providing Additional Document - for Chronology by Shane
(p.733) M. Gates re 84 (p.393) MOTION to Reopen 42:1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St.
Tammany. (Attachments: # 1 (p.44) Exhibit ADA Nick Noriea Unauthorized Setting
of Trial & Second Illegal Threat to Arrest Gates)(Abel, Daniel) Modified on
5/11/2011 (gec, ). (Entered: 05/10/2011)
05/10/2011 114 Notice of Compliance Third Supplemental Documents for Chronology by Shane M.
(p.736) Gates re 84 (p.393) MOTION to Reopen 42:1983 Action and Stay Unconstitutional
Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany.
(Attachments: # 1 (p.44) Exhibit ADA Noriea Attempts to Set Trial Without Leave
of Court or Consultation With Defense Counsel)(Abel, Daniel) Modified on
5/11/2011 (gec, ). (Entered: 05/10/2011)
05/11/2011 115 Correction of Docket Entry by Clerk re 110 (p.649) Notice of Compliance, 111
(p.704) Response/Memorandum in Opposition to Motion, 112 (p.731)
17-30519.24
Response/Memorandum in Opposition to Motion, 113 (p.733) Notice of
Compliance, 114 (p.736) Notice of Compliance. Filing attorney incorrectly selected
'All Plaintiffs' as filer. Correct filer is Shane M. Gates. Clerk took corrective action.
Also, Clerk reattached exhibits for 110 (p.649) Notice of Compliance and 111
(p.704) Response/Memorandum in Opposition to Motion to correct orientation of
sideways exhibits and reduce size to 8-1/2 x 11 inches pursuant to LR 10.1. (gec, )
(Entered: 05/11/2011)
05/11/2011 116 **DEFICIENT** EXPARTE/CONSENT MOTION to Enroll as Counsel of Record

(p.741) by Walter P Reed, St. Tammany District Attorney's Office. (Attachments: # 1 (p.44)
Proposed Order)(Whalen, Ralph) Modified on 5/11/2011 (gec, ). (Entered:
05/11/2011)
05/11/2011 117 Minute Order. Proceedings held before Judge Stanwood R. Duval, Jr: Motion
(p.744) Hearing held on 5/11/2011. Ordered that 84 (p.393) MOTION to Reopen 42:1983
Action and Stay Unconstitutional Prosecution in the 22nd Judicial District Court for
the Parish of St. Tammany filed by Shane M. Gates is TAKEN UNDER
ADVISEMENT. (Court Reporter Bonnie Hebert.) (sek, ) (Entered: 05/13/2011)
05/14/2011 118 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Walter P Reed,

(p.746) St. Tammany District Attorney's Office. (Attachments: # 1 (p.44) Proposed Order
order)(Landry, Kathryn) (Entered: 05/14/2011)
(p.749) Ralph S. Whalen, Jr for Walter P Reed, St. Tammany District Attorney's Office.
Signed by Judge Stanwood R. Duval, Jr. (gec, ) (Entered: 05/16/2011)
05/24/2011 120 ORDER cancelling oral argument on 95 (p.556) MOTION to Quash Subpoena
(p.750) Duces Tecum MOTION for Protective Order MOTION for Sanctions, 97 (p.579)
MOTION to Quash Subpoena, 99 (p.603) MOTION to Quash Subpoenas, to be reset,
if appropriate, as stated herein. Signed by Magistrate Judge Joseph C. Wilkinson,
Jr.(car, ) (Entered: 05/24/2011)
07/11/2011 121 ORDER AND REASONS denying 84 (p.393) MOTION to Reopen 42:1983 Action
(p.751) and Stay Unconstitutional Prosecution in the 22nd Judicial District Court for the
Parish of St. Tammany filed by Shane M. Gates. Signed by Judge Stanwood R.
Duval, Jr on 7/11/2011.(blg) (Entered: 07/11/2011)
07/11/2011 122 ORDER granting in part 95 (p.556) Motion to Quash, 95 (p.556) Motion for
(p.761) Protective Order, 95 (p.556) Motion for Sanctions, 97 (p.579) Motion to Quash, 99
(p.603) Motion to Quash; deadline stated herein. Signed by Magistrate Judge Joseph
C. Wilkinson, Jr. (car, ) (Entered: 07/12/2011)
07/12/2011 123 MOTION to Alter Judgment 121 (p.751) Order, to Add Language to Order by Shane
(p.762) M. Gates. Motion set for 8/24/2011 09:30 AM before Judge Stanwood R. Duval Jr.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed Order To Add
Language to Order, # 3 (p.75) Notice of Submission)(Abel, Daniel) Modified on
7/12/2011 (blg). (Entered: 07/12/2011)
07/13/2011 124 EXPARTE/CONSENT MOTION to Withdraw Monique M. Weiner as Attorney by

(p.771) Philip Duiett, Louisiana Medical Center and Heart Hospital, LLC. (Attachments: # 1
(p.44) Proposed Order)(Brechtel, Nancy) (Entered: 07/13/2011)
07/14/2011 125 ORDER granting 124 (p.771) Motion to Withdraw as Attorney. Attorney Monique
(p.774) M. Weiner terminated. Signed by Judge Stanwood R. Duval, Jr on 7/14/2011. (blg)
(Entered: 07/14/2011)
17-30519.25
07/20/2011 126 MOTION for Attorney Fees by Raymond Childress, William J. Crain, William
(p.775) Knight. Motion set for 8/10/2011 11:00 AM before Magistrate Judge Joseph C.
Wilkinson Jr. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1
(p.44) Memorandum in Support, # 2 Exhibit, # 3 (p.75) Notice of
Submission)(Sanders, David) Modified on 7/20/2011 (blg). (Entered: 07/20/2011)

(p.785) MOTION for Attorney Fees. (Abel, Daniel) (Entered: 08/02/2011)
08/08/2011 128 MOTION for Leave to File Document to Supplement the Record by Reginald
(p.791) Badeaux, Raymond Childress, William J. Crain, William Knight. Motion(s) referred
to Joseph C. Wilkinson, Jr. Motion set for 8/24/2011 11:00 AM before Magistrate
Judge Joseph C. Wilkinson Jr.. (Attachments: # 1 (p.44) Memorandum in Support, #
2 Proposed Pleading, # 3 (p.75) Proposed Order, # 4 (p.110) Notice of
Submission)(Sanders, David) (Entered: 08/08/2011)
08/09/2011 129 ORDER granting 128 (p.791) Motion for Leave to Supplement Record. Signed by
(p.804) Magistrate Judge Joseph C. Wilkinson, Jr. (cms, ) (Entered: 08/09/2011)
08/09/2011 130 ORDER deferring ruling on 126 (p.775) Motion for Attorney Fees pla is permitted
(p.805) to 8/16/11 to file a response as stated herein. Signed by Magistrate Judge Joseph C.
Wilkinson, Jr. 8/16/11 (car, ) (Entered: 08/09/2011)

Jack Strain, Brian Williams re 123 (p.762) MOTION to Alter Judgment 121 (p.751)
Order, to Add Language to Order. (Hanna, Mark) Modified on 8/16/2011 (blg).
(Entered: 08/16/2011)
08/24/2011 132 ORDER granting 126 (p.775) Motion for Attorney Fees. Signed by Magistrate Judge
(p.820) Joseph C. Wilkinson, Jr. (car, ) (Entered: 08/24/2011)
09/06/2011 133 MOTION for APPEAL/REVIEW OF MAGISTRATE JUDGE DECISION to

(p.821) District Court re 132 (p.820) Order on Motion for Attorney Fees by Shane M. Gates.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed Order, # 3 (p.75)
Notice of Submission)(Abel, Daniel) (Entered: 09/06/2011)
09/13/2011 134 ORDER denying 123 (p.762) Motion to Alter 121 (p.751) Order, to Add Language
(p.827) for Interlocutory Appeal. Signed by Judge Stanwood R. Duval, Jr on 9/13/2011.
(blg) (Entered: 09/13/2011)
12/29/2011 135 ORDER AND REASONS denying 133 (p.821) MOTION for APPEAL/REVIEW
(p.828) OF MAGISTRATE JUDGE DECISION to District Court re 132 (p.820) Order on
Motion for Attorney Fees. Signed by Judge Stanwood R. Duval, Jr on
12/29/2011.(blg) (Entered: 12/29/2011)
08/04/2012 136 MOTION to Reopen Case As Twelve-Person St. Tammany Jury Has Found Gates
(p.830) NOT GUILTY of Underlying Criminal Allegations and Charges by Shane M. Gates.
(Attachments: # 1 (p.44) Memorandum in Support # 2 Notice of Submission # 3
(p.75) Oral Argument Request # 4 (p.110) Proposed Order)(Abel, Daniel) Modified
on 8/6/2012 (my, ). Modified on 8/6/2012 (my, ). (Main Document 136 replaced on
8/6/2012) (my, ). (Attachment 1 replaced on 8/6/2012) (my, ). (Attachment 2
replaced on 8/6/2012) (my, ). (Attachment 3 replaced on 8/6/2012) (my, ).
17-30519.26
(Attachment 4 replaced on 8/6/2012) (my, ). (Entered: 08/04/2012)
08/04/2012 137 MOTION for Hearing On Rule 30(a)(2) Motion for Leave to Take Depositions by
(p.837) Oral Examination of Non-Party Ex Parte Meeting Participants by Shane M. Gates.
Motion(s) referred to Joseph C. Wilkinson, Jr. Motion set for 8/29/2012 11:00 AM
before Magistrate Judge Joseph C. Wilkinson Jr.. (Attachments: # 1 (p.44)
Memorandum in Support # 2 Notice of Submission # 3 (p.75) Request for Oral
Argument # 4 (p.110) Proposed Order (Abel, Daniel) (Main Document 137 replaced
on 8/6/2012) (my, ). (Attachment 1 replaced on 8/6/2012) (my, ). (Attachment 2
(Attachment 4 replaced on 8/6/2012) (my, ). (Entered: 08/04/2012)
(p.843) MOTION to Reopen Case As Twelve-Person St. Tammany Jury Has Found Gates
NOT GUILTY of Underlying Criminal Allegations and Charges. (Attachments: # 1
(p.44) Proposed Order)(my, ) (Entered: 08/06/2012)
(p.845) MOTION for Hearing On Rule 30(a)(2) Motion for Leave to Take Depositions by
Oral Examination of Non-Party Ex Parte Meeting Participants. (Attachments: # 1
(p.44) Proposed Order)(my, ) (Entered: 08/06/2012)
08/06/2012 139 Correction of Docket Entry by Clerk re 136 (p.830) MOTION to Reopen Case As
Twelve-Person St. Tammany Jury Has Found Gates NOT GUILTY of Underlying
Criminal Allegations and Charges. **Documents filed on incorrect sized paper.
Local Rule 10.1E states 'All papers drafted for filing in this court shall be on 8-1/2
by 11 inch paper. No further action needed. ALSO Attachments have duplicate
description. For attachment, select either a category OR enter a description, but not
both since this results in duplicate docket text. Clerk took corrective action. ALSO
Filing attorney attached a Request/Statement for Oral Argument to this motion
instead of filing it as a separate entry. Clerk took corrective action by separating the
request and docketing it as a separate entry. All future requests for oral argument
must be filed separately.** (my, ) (Entered: 08/06/2012)
08/06/2012 141 Correction of Docket Entry by Clerk re 137 (p.837) MOTION for Hearing On Rule
30(a)(2) Motion for Leave to Take Depositions by Oral Examination of Non-Party
Ex Parte Meeting Participants. **Documents filed on incorrect sized paper. Local
Rule 10.1E states 'All papers drafted for filing in this court shall be on 8-1/2 by 11
inch paper. No further action needed. ALSO Attachments have duplicate description.
For attachment, select either a category OR enter a description, but not both since
this results in duplicate docket text. Clerk took corrective action. ALSO Filing
attorney attached a Request/Statement for Oral Argument to this motion instead of
filing it as a separate entry. Clerk took corrective action by separating the request
and docketing it as a separate entry. All future requests for oral argument must be
filed separately.** (my, ) (Entered: 08/06/2012)
08/07/2012 142 ORDER granting 140 (p.845) Request/Statement of Oral Argument, filed by Shane
(p.847) M. Gates. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/7/2012.(caa, )
(Entered: 08/07/2012)
08/09/2012 143 **VACATED PER REC DOC 196**ORDER granting 136 (p.830) Motion to
(p.848) Reopen Case and Case Manager shall set this matter for trial. Signed by Judge
Stanwood R. Duval, Jr on 8/9/2012. (swd) Modified on 10/10/2012 (my, ). (Entered:
08/09/2012)
17-30519.27
08/10/2012 144 NOTICE of Change of Address by Mark Emerson Hanna on behalf of Robert
(p.849) Gottardi, Nathan Miller, St. Paul Insurance Company, St. Tammany Parish Sheriff's
Office, Rodney Jack Strain, Brian Williams. (Hanna, Mark) (Entered: 08/10/2012)
08/14/2012 145 Joint MOTION for Hearing re 143 (p.848) Order on Motion to Reopen Case by
(p.851) Robert Gottardi, Charles M. Hughes, Jr, Nathan Miller, Walter P Reed, St. Paul
Insurance Company, St. Tammany District Attorney's Office, St. Tammany Parish
Sheriff's Office, Rodney Jack Strain, Brian Williams. Motion set for 9/5/2012 09:30
AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1 (p.44) Memorandum in
Support, # 2 Exhibit, # 3 (p.75) Exhibit, # 4 (p.110) Notice of Submission)(Hanna,
Mark) (Entered: 08/14/2012)
08/20/2012 146 RESPONSE to Motion filed by Reginald Badeaux, Raymond Childress, William J.
(p.864) Crain, William Burris re 137 (p.837) MOTION for Hearing On Rule 30(a)(2)
Motion for Leave to Take Depositions by Oral Examination of Non-Party Ex Parte
Meeting Participants . (Denicola, Bridget) (Entered: 08/20/2012)

Jack Strain, Brian Williams re 137 (p.837) MOTION for Hearing On Rule 30(a)(2)
Motion for Leave to Take Depositions by Oral Examination of Non-Party Ex Parte
Meeting Participants. (Hanna, Mark) Modified on 8/22/2012 (my, ). (Entered:
08/21/2012)
08/22/2012 148 Correction of Docket Entry by Clerk re 147 (p.871) Response/Memorandum in

Opposition to Motion. **Filing attorney incorrectly linked document to document
145. Clerk properly linked document to document 137. No further action
necessary.** (my, ) (Entered: 08/22/2012)
08/22/2012 149 NOTICE Scheduling Conference set for 9/6/2012 09:30 AM before courtroom
(p.877) deputy by telephone, Signed by Clerk on 8/22/2012. (swd) (Entered: 08/22/2012)
08/23/2012 150 MOTION to Quash Deposition Subpoena and Requests for Admission and/or for
(p.879) Protective Order and Sanctions by Walter P Reed, St. Tammany District Attorney's
Office. Motion(s) referred to Joseph C. Wilkinson, Jr. Motion set for 9/12/2012
11:00 AM before Magistrate Judge Joseph C. Wilkinson Jr.. (Attachments: # 1
(p.44) Memorandum in Support, # 2 Notice of Submission, # 3 (p.75)
Exhibit)(Landry, Kathryn) (Entered: 08/23/2012)
08/23/2012 151 MOTION to Quash Plantiff's Deposition Subpoena by Charles M. Hughes, Jr.
(p.901) Motion(s) referred to Joseph C. Wilkinson, Jr. Motion set for 9/12/2012 11:00 AM
before Magistrate Judge Joseph C. Wilkinson Jr. (Attachments: # 1 (p.44)
Memorandum in Support, # 2 Notice of Submission, # 3 (p.75) Exhibit, # 4 (p.110)
Exhibit)(Simmons, Richard) Modified on 8/24/2012 (my, ). (Entered: 08/23/2012)
08/24/2012 152 Correction of Docket Entry by Clerk re 151 (p.901) MOTION to Quash Plantiff's
Deposition Subpoena. **Filing attorney selected incorrect time. Correct time is
11:00 am. Clerk took corrective action.** (my, ) (Entered: 08/24/2012)
08/25/2012 153 EXPARTE/CONSENT Ex Parte MOTION to Enroll as Counsel of Record James

(p.915) McClendon Williams by Shane M. Gates. (Attachments: # 1 (p.44) Proposed Order
)(Abel, Daniel) Modified on 8/27/2012 (my, ). (Entered: 08/25/2012)
08/26/2012 154 EXPARTE/CONSENT MOTION for Extension of Time to File Response/Reply by

(p.917) Shane M. Gates. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1
17-30519.28
(p.44) Proposed Order For Extension of Time to File Reply)(Abel, Daniel) (Main
Document 154 replaced on 8/27/2012) (my, ). (Attachment 1 replaced on 8/27/2012)
(my, ). (Entered: 08/26/2012)
08/26/2012 155 EXPARTE/CONSENT MOTION for Extension of Time to File Response/Reply

(p.919) Opposition to Defendants' Motion to Reinstate Stay Order by Shane M. Gates.
(Attachments: # 1 (p.44) Proposed Order)(Abel, Daniel) (Main Document 155
(Entered: 08/26/2012)
to File Response/Reply . **Main Document and Attahcment on incorrect sized
paper. Local Rule 10.1E states 'All papers drafted for filing in this court shall be on
8-1/2 by 11 inch paper. Clerk has reduced images. No further action needed.** (my,
) (Entered: 08/27/2012)
to File Response/Reply Opposition to Defendants' Motion to Reinstate Stay Order.
****Main Document and Attahcment on incorrect sized paper. Local Rule 10.1E
states 'All papers drafted for filing in this court shall be on 8-1/2 by 11 inch paper.
Clerk has reduced images. No further action needed.** (my, ) (Entered: 08/27/2012)
08/27/2012 158 ORDER Resetting ORAL ARGUMENT on 137 (p.837) MOTION for Hearing On
(p.921) Rule 30(a)(2) Motion for Leave to Take Depositions by Oral Examination of
Non-Party Ex Parte Meeting Participants for 9/5/2012 11:00 AM before Magistrate
Judge Joseph C. Wilkinson Jr. Signed by Magistrate Judge Joseph C. Wilkinson, Jr
on 8/27/12.(sek, ) (Entered: 08/27/2012)
08/27/2012 159 ORDER: ORDERED that Gates has until the 4th day of September, 2012 by which
(p.922) to file his reply brief to defendants opposition to his Rule 30 motion. Signed by
Magistrate Judge Joseph C. Wilkinson, Jr on 8/27/12. (tbl) (Entered: 08/27/2012)
(p.923) James McClendon Williams for Shane M. Gates. Signed by Judge Stanwood R.
Duval, Jr on 8/27/2012. (caa, ) (Entered: 08/31/2012)
08/27/2012 161 ORDER granting 154 (p.917) Motion for Extension of Time to File Response/Reply.
(p.924) Signed by Judge Stanwood R. Duval, Jr on 8/27/2012. (caa, ) (Entered: 08/31/2012)
08/31/2012 162 Request/Statement of Oral Argument by All Plaintiffs regarding 145 (p.851) Joint
(p.925) MOTION for Hearing re 143 (p.848) Order on Motion to Reopen Case
(Attachments: # 1 (p.44) Proposed Order Request for Oral Argument)(Abel, Daniel)
(Main Document 162 replaced on 9/4/2012) (my, ). (Attachment 1 replaced on
9/4/2012) (my, ). (Entered: 08/31/2012)

(p.927) Joint MOTION for Hearing re 143 (p.848) Order on Motion to Reopen Case . (Abel,
Daniel) (Entered: 08/31/2012)
09/04/2012 164 Correction of Docket Entry by Clerk re 162 (p.925) Request/Statement of Oral
Argument. **Main Document and Attahcment on incorrect sized paper. Local Rule
10.1E states 'All papers drafted for filing in this court shall be on 8-1/2 by 11 inch
paper. Clerk has reduced images. No further action needed.** (my, ) (Entered:
09/04/2012)
09/04/2012
17-30519.29
165 ORDER DENIED 162 (p.925) Request/Statement of Oral Argument, filed by Shane
(p.942) M. Gates. 145 (p.851) Motion shall be considered submitted. Signed by Judge
Stanwood R. Duval, Jr on 9/4/2012. (swd) (Entered: 09/04/2012)
09/04/2012 166 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum by Robert
(p.943) Gottardi, Charles M. Hughes, Jr, Nathan Miller, Walter P Reed, St. Paul Insurance
Company, St. Tammany District Attorney's Office, St. Tammany Parish Sheriff's
Office, Rodney Jack Strain, Brian Williams. (Attachments: # 1 (p.44) Proposed
Pleading)(Hanna, Mark) (Additional attachment(s) added on 9/5/2012: # 2 Proposed
Order) (my, ). (Entered: 09/04/2012)
09/04/2012 167 Joint MOTION to Continue Preliminary Conference by Robert Gottardi, Charles M.
Jack Strain, Brian Williams. Motion set for 9/19/2012 09:30 AM before Judge
Stanwood R. Duval Jr.. (Attachments: # 1 (p.44) Memorandum in Support, # 2
Notice of Submission)(Hanna, Mark) Modified filers on 9/5/2012 (my, ). (Entered:
09/04/2012)
09/04/2012 168 REPLY to Response to Motion filed by All Plaintiffs re 137 (p.837) MOTION for
(p.960) Hearing On Rule 30(a)(2) Motion for Leave to Take Depositions by Oral
Examination of Non-Party Ex Parte Meeting Participants, 154 (p.917) MOTION for
Extension of Time to File Response/Reply . (Abel, Daniel) (Main Document 168
replaced on 9/5/2012) (my, ). (Entered: 09/04/2012)

(p.964) MOTION to Quash Plantiff's Deposition Subpoena, 150 (p.879) MOTION to Quash
Deposition Subpoena and Requests for Admission and/or for Protective Order and
Sanctions . (Abel, Daniel) (Main Document 169 replaced on 9/5/2012) (my, ).
(Entered: 09/04/2012)
09/05/2012 170 Correction of Docket Entry by Clerk re 167 (p.952) Joint MOTION to Continue
Preliminary Conference. **Filing attorney did not select Brian Williams as a
filer(s). Clerk added filer(s).** (my, ) (Entered: 09/05/2012)
09/05/2012 171 Correction of Docket Entry by Clerk re 166 (p.943) MOTION for Leave to File
Reply Memorandum. **Proposed Order subsequently provided and attached to
Motion. No further action necessary.** (my, ) (Entered: 09/05/2012)

Opposition to Motion, 168 (p.960) Reply to Response to Motion. ***Main
Documents on incorrect sized paper. Local Rule 10.1E states 'All papers drafted for
filing in this court shall be on 8-1/2 by 11 inch paper. Clerk has reduced images. No
further action needed.** (my, ) (Entered: 09/05/2012)
09/05/2012 173 Minute Order. Proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr on
(p.977) Plaintiff's Motion to Set Rule 30(a)(2) Hearing for Leave to Conduct the Oral
Examination of Non-Party Witnesses, Record Doc. No. 137. The motion is DENIED
IN PART AND DISMISSED AS MOOT IN PART as set forth herein. (tbl)
(Entered: 09/05/2012)

(p.979) Joint MOTION to Continue Preliminary Conference As 6 September 2012
Scheduling Conference Was Held - Motion is Moot. (Abel, Daniel) (Entered:
09/06/2012)
17-30519.30
09/07/2012 175 ORDER granting 166 (p.943) Motion for Leave to File reply memo in support of
(p.981) joint motion for re-hearing pursuant to F.R.C.P. 60 on motion to re-open 42 USC
1983 action. Signed by Judge Stanwood R. Duval, Jr on 9/7/2012. (swd) (Entered:
09/07/2012)
09/07/2012 176 REPLY MEMORANDUM filed by Robert Gottardi, Charles M. Hughes, Jr, Nathan
(p.982) Miller, Walter P Reed, St. Paul Insurance Company, St. Tammany District
Attorney's Office, Rodney Jack Strain, Brian Williams re 145 (p.851) Joint
MOTION for Hearing re 143 (p.848) Order on Motion to Reopen Case . (swd)
(Entered: 09/07/2012)
09/07/2012 177 SCHEDULING ORDER: Final Pretrial Conference set for 6/27/2013 01:30 PM
(p.987) before Judge Stanwood R. Duval Jr. Telephone Status Conference set for 3/14/2013
10:30 AM before Judge Stanwood R. Duval Jr. Jury Trial set for 7/22/2013 08:30
AM before Judge Stanwood R. Duval Jr. Signed by Clerk for Judge Stanwood R.
Duval, Jr on 9/7/2012. (Attachments: # 1 (p.44) PreTrial Notice) (swd) (Entered:
09/10/2012)
09/11/2012 178 ORDER finding as moot 167 (p.952) Motion to Continue preliminary conference.
(p.1007) Signed by Judge Stanwood R. Duval, Jr on 9/11/12. (sek, ) (Entered: 09/11/2012)
09/12/2012 179 ORDER granting in part and denying in part (1) Motion of Defendants Walter P.
(p.1008) Reed and St. Tammany District Attorney's Office to Quash Deposition Subpoena
and Requests for Admissions and/or for Protective Order and for Sanctions Pursuant
to Fed. R. Civ. P. Rule 26, Record Doc. No. 150 and (2) Motion of Defendant
Charles M. Hughes to Quash Plaintiff's Deposition Subpoena and Requests for
Admissions and/or for Protective Order and for Sanctions Pursuant to Fed. R. Civ. P.
26, Record Doc. No. 151. IT IS ORDERED that Charles Hughes must provide
plaintiff with his written responses to the Requests for Admissions no later than
October 12, 2012. IT IS FURTHER ORDERED that all counsel must confer via
telephone immediately and schedule the depositions of Gracianette and Hughes on a
mutually convenient date so that these depositions may be completed no later than
October 31, 2012. The motion is granted insofar as it seeks an order quashing the
Requests for Admissions submitted to Ronald Gracianette, who is not a party to this
action. Rule 36 discovery may be conducted only as to parties, not non-parties. No
responses to these Requests for Admissions need be provided. The motion is granted
insofar as it seeks an order that service of discovery and other papers be served on
counsel. All counsel must comply with Fed. R. Civ. P. 5(b)(1). The motions are
denied insofar as they seek sanctions. The undersigned finds that a reasonable
apportionment of the expenses incurred in connection with these motions is that each
side should bear its own. Fed. R. Civ. P. 37(a)(5)(C). Signed by Magistrate Judge
Joseph C. Wilkinson, Jr on 9/12/12. (tbl) (Entered: 09/12/2012)
09/15/2012 180 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Shane M.

(p.1010) Gates. (Attachments: # 1 (p.44) Proposed Order)(Abel, Daniel) (Entered:
09/15/2012)
09/15/2012 181 EXPARTE/CONSENT Amended MOTION to Enroll as Counsel of Record James

(p.1012) McClendon Williams and Designate Williams as Lead Attorney by Shane M. Gates.
(Attachments: # 1 (p.44) Proposed Order To Designate James McClendon Williams
As Lead Attorney for Shane M. Gates)(Abel, Daniel) (Entered: 09/15/2012)
09/17/2012 182 ORDER granting 180 (p.1010) Motion to Enroll Alanah Odoms Hebert as
(p.1014) Co-Counsel of Record for Shane M. Gates. Signed by Judge Stanwood R. Duval, Jr
on 9/17/2012. (swd) (Entered: 09/17/2012)
17-30519.31
09/17/2012 183 ORDER granting 181 (p.1012) Motion to Designate James McClendon Williams as
(p.1015) Lead Counsel of Record for Shane M. Gates in lieu of Daniel G. Abel. Signed by
Judge Stanwood R. Duval, Jr on 9/17/2012. (swd) (Entered: 09/17/2012)
09/21/2012 184 MOTION to Dismiss by Robert Gottardi, Nathan Miller, St. Paul Insurance
(p.1016) Company, St. Tammany Parish Sheriff's Office, Rodney Jack Strain, Brian
Williams. Motion set for 10/17/2012 09:30 AM before Judge Stanwood R. Duval Jr..
(Attachments: # 1 (p.44) Notice of Submission, # 2 Memorandum in
Support)(Hanna, Mark) (Entered: 09/21/2012)
09/21/2012 185 MOTION to Stay re 143 (p.848) Order on Motion to Reopen Case Or, Alternatively
(p.1045) Motion for Protective Order and/or To Limit Discovery to the Issues of Qualified
Immunity by Robert Gottardi, Charles M. Hughes, Jr, Nathan Miller, Walter P Reed,
St. Paul Insurance Company, St. Tammany District Attorney's Office, St. Tammany
Parish Sheriff's Office, Rodney Jack Strain, Brian Williams. Motion set for
10/17/2012 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1 (p.44)
Notice of Submission, # 2 Request for Oral Argument, # 3 (p.75) Memorandum in
Support)(Hanna, Mark) (Entered: 09/21/2012)
09/21/2012 186 Request/Statement of Oral Argument regarding 185 (p.1045) MOTION to Stay re
(p.1061) 143 (p.848) Order on Motion to Reopen Case Or, Alternatively Motion for
Protective Order and/or To Limit Discovery to the Issues of Qualified Immunity
(my, ) (Entered: 09/24/2012)
09/24/2012 187 Correction of Docket Entry by Clerk re 185 (p.1045) MOTION to Stay re 143
(p.848) Order on Motion to Reopen Case Or, Alternatively Motion for Protective
Order and/or To Limit Discovery to the Issues of Qualified Immunity. **Filing
attorney attached a Request/Statement for Oral Argument to this motion instead of
filing it as a separate entry. Clerk took corrective action by separating the request
and docketing it as a separate entry. All future requests for oral argument must be
filed separately.** (my, ) (Entered: 09/24/2012)
09/25/2012 188 MOTION to Disqualify Counsel by Charles M. Hughes, Jr. Motion set for
(p.1064) 10/17/2012 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1 (p.44)
Memorandum in Support, # 2 Notice of Submission)(Simmons, Richard) (Entered:
09/25/2012)
10/01/2012 189 MOTION to Dismiss Case by Walter P Reed, St. Tammany District Attorney's
(p.1079) Office. Motion set for 10/17/2012 09:30 AM before Judge Stanwood R. Duval Jr..
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Notice of
Submission)(Landry, Kathryn) (Entered: 10/01/2012)
10/02/2012 190 MOTION to Dismiss for Failure to State a Claim by Charles M. Hughes, Jr. Motion
(p.1100) set for 10/17/2012 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: #
1 (p.44) Memorandum in Support, # 2 Notice of Submission)(Simmons, Richard)
(Entered: 10/02/2012)
10/05/2012 191 MOTION to Continue Defs' Motion to Dismiss & Disqualify by Shane M. Gates.
(p.1118) Motion set for 10/31/2012 09:30 AM before Judge Stanwood R. Duval Jr..
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Notice of Submission, # 3
(p.75) Proposed Order)(Williams, James) Modified text on 10/9/2012 (my, ).
(Entered: 10/05/2012)
10/05/2012 192 EXPARTE/CONSENT MOTION to Expedite Motion to Continue Defs' Motions to

(p.1125) Dismiss & Motion to Disqualify by Shane M. Gates. (Attachments: # 1 (p.44)
Memorandum in Support, # 2 Notice of Submission, # 3 (p.75) Proposed
17-30519.32
Order)(Williams, James) Modified text on 10/9/2012 (my, ). (Entered: 10/05/2012)
10/09/2012 193 Correction of Docket Entry by Clerk re 191 (p.1118) MOTION to Continue Defs'
Motion to Dismiss & Disqualify. **Filing attorney selected incorrect submission
date. Correct date is 10/31/2012. Clerk took corrective action.** (my, ) (Entered:
10/09/2012)
10/09/2012 194 Correction of Docket Entry by Clerk re 192 (p.1125) MOTION to Expedite Motion
to Continue Defs' Motions to Dismiss & Motion to Disqualify. **Filing attorney
should have selected 'Yes' at the question 'Is this an Exparte/Consent Motion Y/N?'.
Exparte/Consent motions are NOT set for submission. Clerk has removed
submission date.** (my, ) (Entered: 10/09/2012)
10/09/2012 195 MOTION for Extension of Deadlines for Amendments to Pleadings, Third Party
(p.1132) Actions, Cross Claims and Counter Claims by Robert Gottardi, Charles M. Hughes,
Jr, Nathan Miller, Walter P Reed, St. Paul Insurance Company, St. Tammany
District Attorney's Office, St. Tammany Parish Sheriff's Office, Rodney Jack Strain,
Brian Williams. Motion set for 10/31/2012 09:30 AM before Judge Stanwood R.
Duval Jr.. (Attachments: # 1 (p.44) Memorandum in Support, # 2 Notice of
Submission, # 3 (p.75) Proposed Order)(Hanna, Mark) (Entered: 10/09/2012)
10/10/2012 196 ORDER and OPINION: GRANTING defendants 145 (p.851) Joint Motion for
(p.1143) Rehearing Pursuant to F.R.C.P. 60 on Motion to Reopen 42: 1983 Action,
VACATING the 143 (p.848) Order entered 8/9/2012 reopening this litigation and
orders that the Courts 4/16/2008 80 (p.386) Order granting defendants Joint Motion
to Stay proceedings remain in effect until such time as the Court grants a motion to
reopen this matter.Signed by Judge Stanwood R. Duval, Jr on 10/10/2012.(my, )
(Entered: 10/10/2012)
10/10/2012 197 ORDER DENYING AS MOOT 184 (p.1016) Motion to Dismiss; 185 (p.1045)
(p.1147) Motion to Stay; 188 (p.1064) Motion to Disqualify Counsel; 189 (p.1079) Motion to
Dismiss Case; 190 (p.1100) Motion to Dismiss for Failure to State a Claim; 191
(p.1118) Motion to Continue; 192 (p.1125) Motion to Expedite; 195 (p.1132)
Motion for Extension of Deadlines as set forth in document. Signed by Judge
Stanwood R. Duval, Jr on 10/10/2012. (my, ) (Entered: 10/10/2012)
06/25/2014 198 EXPARTE/CONSENT MOTION to Withdraw Pascal Calogero as Attorney by

(p.1149) Shane M. Gates. (Attachments: # 1 (p.44) Proposed Order To Withdraw As
Counsel)(Abel, Daniel) (Entered: 06/25/2014)
06/30/2014 199 ORDER granting 198 (p.1149) Motion to Withdraw as Attorney. Attorney Pascal
(p.1151) Frank Calogero, Jr terminated. Signed by Judge Stanwood R. Duval, Jr on
6/30/2014. (my) (Entered: 06/30/2014)
08/20/2014 200 ORDER & REASONS that that this higher-numbered case, Gates v. Strain, C.A.
(p.1152) 13-6425 be CONSOLIDATED with the lower numbered case, Gates v. Strain, C.A.
No. 07-6983. This higher-numbered case is hereby CONSOLIDATED with the
lower numbered case and that lower numbered case is hereby designated as the "lead
case." IT IS FURTHER ORDERED that Motion to Stay 29 (p.157) in C.A. No.
13-6425 is GRANTED. IT IS FURTHER ORDERED that the following motions
filed in C.A. No. 13-6425: Motion for More Definite Statement 30 (p.162) ; Motion
for Entry of Default as to Defendant Walter P. Reed 51 (p.237) ; Motion for Entry of
Default as to All Defendants 52 ; Motion for Entry of Default as to Defendant
Richard A. Swartz 53 (p.241) ; Motion to Stay or in the Alternative Motion to
Dismiss 55 (p.243) are DISMISSED as MOOT without prejudice to such motions
17-30519.33
being re-filed upon the proper reopening of these matters. Signed by Judge
Stanwood R. Duval, Jr on 8/20/14. (dno) (Entered: 08/21/2014)
04/28/2015 201 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Ralph Whalen,

(p.1158) Jr., Kathryn Landry to be substituted in place of Kathryn Landry, Ralph Whalen, Jr.
by Walter P Reed, Walter P Reed, St. Tammany District Attorney's Office, St.
Tammany Parish District Attorney's Office. (Attachments: # 1 (p.44) Proposed
Order)(Reference: 07-6983, 13-6425)(Landry, Kathryn) (Entered: 04/28/2015)
04/29/2015 202 Correction of Docket Entry by Clerk re 201 (p.1158) MOTION to Substitute
Attorney. Attorney Ralph Whalen, Jr., Kathryn Landry to be substituted in place of
Kathryn Landry, Ralph Whalen, Jr. . **In Consolidated Matters, the caption must
list all case number(s) that are consolidated together and include a separate reference
to list the case(s) to which the pleading pertains and that same case number(s) must
be referenced in the docket entry. If the caption does not specifically state the case(s)
to which the pleading pertains, then all cases will be listed. Please follow this
requirement for all future filings.** (Reference: 07-6983, 13-6425)(my) (Entered:
04/29/2015)
05/01/2015 203 ORDER granting 201 (p.1158) MOTION to Substitute Attorney. Attorney Ralph
(p.1161) Whalen, Jr. withdrawn as attorney for Walter Reed, in his official capacity and St.
Tammany Parish District Attorney's Office. Kathryn Landry withdrawn as attorney
for Walter P Reed, in his individual capacity. Signed by Judge Stanwood R. Duval,
Jr on 4/30/2015.(Reference: All Cases)(cml) (Entered: 05/01/2015)
06/05/2015 204 EXPARTE/CONSENT MOTION to Withdraw James M. Williams as Attorney by

(p.1162) Shane M. Gates. (Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed
Order, # 3 (p.75) Exhibit)(Reference: All Cases)Attorney James McClendon
Williams added to party Shane M. Gates(pty:conpla).(Williams, James) Modified on
6/5/2015 (my). (Entered: 06/05/2015)
06/05/2015 205 Correction of Docket Entry by Clerk re 204 (p.1162) MOTION to Withdraw James
M. Williams as Attorney . **Filing attorney should have selected 'Yes' at the
question 'Is this an Exparte/Consent Motion Y/N?'. Exparte/Consent motions are not
set for submission. Clerk has removed submission date ALSO Motion no longer
referred.** (Reference: All Cases)(my) (Entered: 06/05/2015)
06/08/2015 206 ORDER granting 204 (p.1162) Motion to Withdraw as Attorney. Attorney James
(p.1168) McClendon Williams terminated. Signed by Judge Stanwood R. Duval, Jr on
6/8/2015. (Reference: ALL CASES)(blg) (Entered: 06/09/2015)
01/26/2016 207 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Emily Couvillon

(p.1169) to be substituted in place of Kathryn Landry by Ronald Gracianette, Kathryn
Landry, Nicholas F. Noriea, Jr, Walter P Reed, Walter P Reed, St. Tammany District
Attorney's Office, St. Tammany Parish District Attorney's Office. (Attachments: # 1
(p.44) Proposed Order)(Reference: 07-6983, 13-6425)Attorney Kathryn W. Landry
added to party Walter P Reed(pty:condft).(Landry, Kathryn) (Entered: 01/26/2016)
01/26/2016 208 ORDER granting 207 (p.1169) Motion to Substitute Attorney Emily Gaunt
(p.1172) Couvillon for Ronald Gracianette, for Kathryn Landry, for Nicholas F. Noriea, Jr,
for for Walter Reed, in his official capacity, the Office of Walter Reed District
Attorney. Attorney Kathryn W. Landry is withdrawn from this action. Signed by
Judge Stanwood R. Duval, Jr on 1/26/16. (Reference: All Cases)(dno) (Entered:
01/26/2016)
09/07/2016
17-30519.34
209 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Chadwick W.
(p.1173) Collings to be substituted in place of Mark E. Hanna by Robert Gottardi, Nathan
Miller, Captain Sherwood, Kathy Sherwood, Rodney Strain, Rodney Jack Strain,
Brian Williams. (Attachments: # 1 (p.44) Proposed Order)(Reference: 07-6983 and
13-6425)Attorney Chadwick William Collings added to party Robert
Gottardi(pty:dft), Attorney Chadwick William Collings added to party Nathan
Miller(pty:dft), Attorney Chadwick William Collings added to party Captain
Sherwood(pty:condft), Attorney Chadwick William Collings added to party Kathy
Sherwood(pty:condft), Attorney Chadwick William Collings added to party Rodney
Strain(pty:condft), Attorney Chadwick William Collings added to party Rodney Jack
Strain(pty:dft), Attorney Chadwick William Collings added to party Brian
Williams(pty:dft).(Collings, Chadwick) (Entered: 09/07/2016)
09/09/2016 210 ORDER granting 209 (p.1173) Motion to Substitute Attorney. Added attorney
(p.1176) Andrew Robert Capitelli,Thomas S. Schneidau. Attorney Mark Emerson Hanna
terminated. Signed by Judge Stanwood R. Duval, Jr on 9/9/16. (Reference:
13-6425)(clc) (clc). (Entered: 09/09/2016)
10/20/2016 211 MOTION to Reopen Case by James D. Caldwell, Philip Duiett, Robert Gottardi,
(p.1177) Ronald Gracianette, Charles M. Hughes, Jr, Kathryn Landry, Nathan Miller,
Nicholas F. Noriea, Jr, Office of the Louisiana Attorney General, Marie-Elise Prieto,
Walter P Reed, Walter P Reed, Captain Sherwood, Kathy Sherwood, St. Tammany
District Attorney's Office, St. Tammany Parish District Attorney's Office, St.
Tammany Parish Sheriff's Office, Rodney Strain, Rodney Jack Strain, Richard
Swartz. Motion(s) will be submitted on 11/16/2016. (Attachments: # 1 (p.44)
Memorandum in Support, # 2 Notice of Submission, # 3 (p.75) Exhibit A, # 4
(p.110) Exhibit B, # 5 Exhibit C)(Reference: 07-6983 and 13-6425)(Collings,
Chadwick) (Entered: 10/20/2016)
10/20/2016 212 Request/Statement of Oral Argument by James D. Caldwell, Philip Duiett, Robert
(p.1202) Gottardi, Ronald Gracianette, Charles M. Hughes, Jr, Kathryn Landry, Nathan
Miller, Nicholas F. Noriea, Jr, Office of the Louisiana Attorney General, Marie-Elise
Prieto, Walter P Reed, Walter P Reed, Captain Sherwood, Kathy Sherwood, St.
Tammany District Attorney's Office, St. Tammany Parish District Attorney's Office,
St. Tammany Parish Sheriff's Office, Rodney Strain, Rodney Jack Strain, Richard
Swartz, Brian Williams regarding 211 (p.1177) MOTION to Reopen Case .
(Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered: 10/20/2016)
11/08/2016 213 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Shane M.

(p.1206) Gates. (Attachments: # 1 (p.44) Proposed Order)(Reference: 07-6983,
13-6425)Attorney John Alford Hollister added to party Shane M.
Gates(pty:pla).(Hollister, John) (Entered: 11/08/2016)
11/08/2016 214 EXPARTE/CONSENT MOTION for Extension of Time to File Response/Reply as

(p.1209) to 211 (p.1177) MOTION to Reopen Case by Shane M. Gates. (Attachments: # 1
(p.44) Proposed Order)(Reference: 07-6983 and 13-6425)(Hollister, John) (Entered:
11/08/2016)
11/09/2016 215 ORDER GRANTING 213 (p.1206) Motion to Enroll as Counsel of Record for
(p.1215) Attorney John Alford Hollister for Shane M. Gates. Signed by Judge Stanwood R.
Duval, Jr on 11/9/2016. (Reference: All Cases)(mmv) (Entered: 11/09/2016)
11/09/2016 216 ORDER: IT IS ORDERED BY THE COURT that Shane Gates be, and he hereby is,
(p.1216) GRANTED 214 (p.1209) an extension of time until December 6, 2016 in which to
respond to said Motion. IT IS FURTHER ORDERED BY THE COURT that Shane
17-30519.35
Gates be, and he hereby is, GRANTED a continuance of the submission date of said
211 (p.1177) Motion until December 14, 2016 and a similar continuance of any oral
argument, if granted, that may be set thereon. Signed by Judge Stanwood R. Duval,
Jr on 11/9/2016.(Reference: All Cases)(mmv) (Entered: 11/09/2016)
11/16/2016 217 **DEFICIENT** Joint MOTION to Determine Counsel for the Plaintiff by James
(p.1217) D. Caldwell, Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes,
Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Office of the Louisiana
Attorney General, Marie-Elise Prieto, Walter P Reed, Walter P Reed, Kathy
Sherwood, St. Tammany District Attorney's Office, Rodney Jack Strain, Richard
Swartz. Motion(s) will be submitted on 12/14/2016. (Attachments: # 1 (p.44) Notice
of Submission, # 2 Proposed Order, # 3 (p.75) Exhibit A, # 4 (p.110) Exhibit
B)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) Modified on 11/17/2016
(clc). (Entered: 11/16/2016)
Prieto, Walter P Reed, Kathy Sherwood, St. Tammany District Attorney's Office,
Rodney Jack Strain, Richard Swartz, Brian Williams regarding 217 (p.1217) Joint
MOTION to Determine Counsel for the Plaintiff , 211 (p.1177) MOTION to Reopen
Case (Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered: 11/16/2016)
11/17/2016 219 Joint MOTION to Determine Counsel for the Plaintiff by Defendants. Motion(s) will
(p.1237) be submitted on 12/14/2016. (Attachments: # 1 (p.44) Memorandum in Support, # 2
Notice of Submission, # 3 (p.75) Proposed Order, # 4 (p.110) Exhibit A, # 5 Exhibit
B)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) Modified on 11/18/2016
to edit text. (clc). (Entered: 11/17/2016)
Prieto, Walter P Reed, Kathy Sherwood, St. Tammany District Attorney's Office,
Rodney Jack Strain, Richard Swartz, Brian Williams regarding 219 (p.1237) Joint
MOTION to Determine Counsel for the Plaintiff , 211 (p.1177) MOTION to Reopen
Case (Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered: 11/17/2016)
11/17/2016 221 EXPARTE/CONSENT MOTION to Withdraw as Attorney by Shane M. Gates.

(p.1261) (Attachments: # 1 (p.44) Proposed Order)(Reference: 13-06425)Attorney Martin E.
Regan, Jr added to party Shane M. Gates(pty:conpla).(Regan, Martin) (Entered:
11/17/2016)
11/18/2016 222 ORDER: ORDERED that Oral Argument on the 211 (p.1177) Motion to Reopen
(p.1264) Case shall behad on December 14, 2016 at 9:30 a.m. Signed by Judge Stanwood R.
Duval, Jr on 11/18/16. (Reference: 07-6983 and 13-6425)(clc) Modified on
12/2/2016 to edit text. (clc). (Entered: 11/18/2016)
11/18/2016 223 ORDER finding as moot 219 (p.1237) Motion Determine Counsel. Signed by Judge
(p.1265) Stanwood R. Duval, Jr on 11/18/16. (Reference: 07-6983 and 13-6425)(clc)
(Entered: 11/18/2016)
11/21/2016 224 ORDER granting 221 (p.1261) Motion to Withdraw as Attorney. Attorney Martin E.
(p.1266) Regan, Jr; Daniel G. Abel and Alanah Odoms Hebert terminated. Signed by Judge
Stanwood R. Duval, Jr on 11/18/16. (Reference: 07-6983 and 13-6425)(clc)
(Entered: 11/21/2016)
17-30519.36
12/06/2016 225 RESPONSE/MEMORANDUM in Opposition filed by Shane M. Gates re 211
(p.1267) (p.1177) MOTION to Reopen Case . (Attachments: # 1 (p.44) Exhibit A to
Opposition to Motion, # 2 Exhibit B to Opposition to Motion, # 3 (p.75) Exhibit C to
Opposition to Motion, # 4 (p.110) Exhibit D to Opposition to Motion, # 5 Exhibit E
to Opposition to Motion, # 6 (p.111) Exhibit F to Opposition to Motion)(Reference:
07-6983, 13-6425)(Hollister, John) Modified on 12/7/2016 (clc). (Entered:
12/06/2016)

Opposition to Motion. **Attachment had duplicate descriptions. For attachments,
select either a category OR enter a description, but not both since this results in
duplicate docket text. Clerk took corrective action.** (Reference: 07-6983,
13-6425)(clc) (Entered: 12/07/2016)
12/12/2016 227 EXPARTE/CONSENT Joint MOTION for Leave to File Reply Memorandum by
(p.1501) Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes, Jr, Kathryn
Landry, Nathan Miller, Nicholas F. Noriea, Jr, Marie-Elise Prieto, Walter P Reed,
Captain Sherwood, St. Tammany District Attorney's Office, Rodney Strain, Brian
Williams. (Attachments: # 1 (p.44) Proposed Order, # 2 Reply
Memorandum)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered:
12/12/2016)
12/12/2016 228 Joint MOTION to Strike 225 (p.1267) Response/Memorandum in Opposition to

(p.1511) Motion, by Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes,
Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Marie-Elise Prieto,
Walter P Reed, Kathy Sherwood, St. Tammany District Attorney's Office, Rodney
Strain, Brian Williams. Motion(s) will be submitted on 12/28/2016. (Attachments: #
1 (p.44) Notice of Submission, # 2 Memorandum in Support, # 3 (p.75) Proposed
Order)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered:
12/12/2016)
12/12/2016 229 Request/Statement of Oral Argument by Philip Duiett, Robert Gottardi, Ronald
(p.1525) Gracianette, Charles M. Hughes, Jr, Kathryn Landry, Nathan Miller, Nicholas F.
Noriea, Jr, Marie-Elise Prieto, Walter P Reed, Captain Sherwood, Rodney Strain,
Brian Williams regarding 228 (p.1511) Joint MOTION to Strike 225 (p.1267)
Response/Memorandum in Opposition to Motion, (Reference: 07-6983 and
13-6425)(Collings, Chadwick) (Entered: 12/12/2016)
12/12/2016 230 ORDER GRANTING 227 (p.1501) Joint Motion for Leave to File Reply
(p.1529) Memorandum. Signed by Judge Stanwood R. Duval, Jr on 12/12/2016. (Reference:
All Cases)(mmv) (Entered: 12/12/2016)
12/12/2016 231 Reply Memorandum filed by Philip Duiett, Robert Gottardi, Ronald Gracianette,
(p.1530) Charles M. Hughes, Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr,
Marie-Elise Prieto, Walter P Reed, Kathy Sherwood, St. Tammany District
Attorney's Office, Rodney Jack Strain, Brian Williams, in Support of 211 (p.1177)
MOTION to Reopen Case . (Reference: All Cases)(mmv) (Entered: 12/12/2016)
12/12/2016 232 ORDER: IT IS ORDERED that the Oral Argument on the 211 (p.1177) Motion to
(p.1536) Reopen Case currently scheduled for 9:30 a.m. on December 14, 2016 shall be
RESET for 10:30 a.m. that same day. Signed by Judge Stanwood R. Duval, Jr on
12/12/2016.(Reference: All Cases)(mmv) (Entered: 12/12/2016)
12/13/2016 233 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney William H.

(p.1537) Howard III and Alissa J. Allison to be substituted in place of Mark E. Hanna by St.
17-30519.37
Paul Fire and Marine Insurance Company. (Attachments: # 1 (p.44) Proposed
Order)(Reference: 13cv06425)Attorney William H. Howard, III added to party St.
Paul Fire and Marine Insurance Company(pty:condft).(Howard, William) (Entered:
12/13/2016)
12/13/2016 234 ORDER granting 233 (p.1537) Motion to Substitute Attorney. Added attorney's
(p.1541) William H. Howard, III and Alissa Jean Allison for St. Paul Insurance Company.
Attorney Mark Emerson Hanna terminated. Signed by Judge Stanwood R. Duval, Jr
on 12/13/2016. (Reference: 13-6425)(ajn) (Entered: 12/13/2016)
12/13/2016 235 ORDER: IT IS ORDERED that Oral Argument on the Joint Motion to Strike
(p.1542) Opposition Memorandum and Request for Expedited Consideration and Fees (Doc.
228) shall be held on 12/14/2016 at 10:30 a.m. before Judge Stanwood R. Duval Jr.
Signed by Judge Stanwood R. Duval, Jr on 12/13/2016.(Reference: 07-6983,
13-6425)(ajn) (Entered: 12/13/2016)
12/14/2016 236 Minute Entry for proceedings held before Judge Stanwood R. Duval, Jr: Motion
(p.1543) Hearing held on 12/14/2016 re 228 (p.1511) Joint MOTION to Strike 225 (p.1267)
Response/Memorandum in Opposition to Motion, 211 (p.1177) MOTION to Reopen
Case . After argument both Motions was DENIED for reasons orally stated. (Court
Reporter Mary Thompson.) (Reference: 07-6983, 13-6425)(clc) (Entered:
12/14/2016)
12/14/2016 237 ORDERED that the 211 (p.1177) Motion to Reopen Case and the 228 (p.1511)
(p.1544) Motion to Strike are DENIED. FURTHER ORDERED that plaintiff shall file no
later than January 23, 2017, the motion discussed in open court concerning plaintiff's
claim of double jeopardy and failure to have a speedy trial and why with the
Anti-Injunction Act, 28 U.S.C. § 2283 and Ex Parte Young, 28 S. Ct. 441 (1908) are
not applicable. Failure to file such motion shall result in the dismissalof this matter
with prejudice pursuant to Fed. R. Civ. P. 41(b) for the reasons stated in open court.
FURTHER ORDERED that in event such a motion is filed, the Clerk of Court is
ORDERED to re-allot this matter as the undersigned shall be retired as of January
31, 2017. Signed by Judge Stanwood R. Duval, Jr on 12/14/16. (Reference: 07-6983,
13-6425)(clc) (Entered: 12/14/2016)
12/20/2016 238 TRANSCRIPT of Motion Hearing held on December 14, 2016 before Judge
(p.2669) Stanwood R. Duval. Court Reporter/Recorder Mary Thompson, Telephone number
504-589-7783. Transcript may be viewed at the court public terminal or purchased
through the Court Reporter/Recorder before the deadline for Release of Transcript
Restriction. After that date it may be obtained through PACER. Parties have 21 days
from the filing of this transcript to file with the Court a Redaction Request. Release
of Transcript Restriction set for 3/20/2017. (Reference: All Cases)(rsg) (Entered:
12/20/2016)
01/23/2017 239 **FILED IN ERROR- See Rec. Doc. #240** EXPARTE/CONSENT MOTION for
(p.1545) Preliminary Injunction , MOTION to Reopen Case by Shane M. Gates.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Exhibit A, # 3 (p.75) Exhibit
C, # 4 (p.110) Proposed Order)(Reference: 07-6983, 13-6425)(Hollister, John)
Modified on 1/24/2017 (clc). (Entered: 01/23/2017)
01/24/2017 240 MOTION for Injunction and to Lift Stay by Shane M. Gates. Motion(s) will be
(p.1600) submitted on 2/8/2017. (Attachments: # 1 (p.44) Memorandum in Support, # 2
Exhibit A Gates Photos, # 3 (p.75) Exhibit C Abel Testimony, # 4 (p.110) Notice of
Submission)(Reference: 07-6983, 13-6425)(Hollister, John) Modified on 1/24/2017
to edit text. (clc). Modified on 2/1/2017 (gec). (Entered: 01/24/2017)
17-30519.38
01/25/2017 241 Notice by Clerk re 237 (p.1544) Order. Case re-allotted pursuant to the referenced
Order herein. (Reference: 07-6983, 13-6425)(NEF: BARBIER, DUVAL)(clc)
Modified on 1/25/2017 to edit text. (clc). (Entered: 01/25/2017)
01/31/2017 242 RESPONSE/MEMORANDUM in Opposition filed by James D. Caldwell, Robert

Prieto, Walter P Reed, Kathy Sherwood, St. Tammany Parish District Attorney's
Office, Rodney Jack Strain, Richard Swartz, Brian Williams re 240 (p.1600)
MOTION for Injunction and to Lift Stay . (Attachments: # 1 (p.44) Exhibit A, # 2
Exhibit B, # 3 (p.75) Exhibit C)(Reference: 07-6983 and 13-6425)(Collings,
Chadwick) Modified on 2/1/2017 (gec). (Entered: 01/31/2017)
01/31/2017 243 MOTION to Lift Stay and Dismiss for Lack of Prosecution by James D. Caldwell,
(p.1716) Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes, Jr, Kathryn
Landry, Nathan Miller, Nicholas F. Noriea, Jr, Office of the Louisiana Attorney
General, Marie-Elise Prieto, Walter P Reed, Kathy Sherwood, St. Tammany Parish
District Attorney's Office, Rodney Jack Strain, Richard Swartz, Brian Williams.
Motion(s) will be submitted on 2/15/2017. (Attachments: # 1 (p.44) Memorandum in
Support, # 2 Exhibit A, # 3 (p.75) Exhibit B, # 4 (p.110) Exhibit C, # 5 Notice of
Submission)(Reference: 07-6983 and 13-6425)Attorney Chadwick William Collings
added to party James D. Caldwell(pty:condft), Attorney Chadwick William Collings
added to party Philip Duiett(pty:dft), Attorney Chadwick William Collings added to
party Ronald Gracianette(pty:condft), Attorney Chadwick William Collings added to
party Charles M. Hughes, Jr(pty:dft), Attorney Chadwick William Collings added to
party Kathryn Landry(pty:condft), Attorney Chadwick William Collings added to
party Nicholas F. Noriea, Jr(pty:condft), Attorney Chadwick William Collings added
to party Office of the Louisiana Attorney General(pty:condft), Attorney Chadwick
William Collings added to party Marie-Elise Prieto(pty:condft), Attorney Chadwick
William Collings added to party Walter P Reed(pty:dft), Attorney Chadwick
William Collings added to party St. Tammany Parish District Attorney's
Office(pty:condft), Attorney Chadwick William Collings added to party Richard
Swartz(pty:condft).(Collings, Chadwick) Modified on 2/1/2017 (gec). (Entered:
01/31/2017)
01/31/2017 244 EXPARTE/CONSENT MOTION to Continue Submission Date by James D.

(p.1779) Caldwell, Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes, Jr,
Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Office of the Louisiana
Attorney General, Marie-Elise Prieto, Walter P Reed, Kathy Sherwood, St.
Tammany Parish District Attorney's Office, Rodney Jack Strain, Brian Williams.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed Order)(Reference:
07-6983 and 13-6425)Attorney Chadwick William Collings added to party Walter P
Reed(pty:condft).(Collings, Chadwick) (Entered: 01/31/2017)
02/01/2017 245 Correction of Docket Entry by Clerk re 243 (p.1716) MOTION to Lift Stay and
Dismiss for Lack of Prosecution, 244 (p.1779) MOTION to Continue Submission
Date. Filing attorney incorrectly associated themselves with parties they do not
represent. When filing a joint motion, check or uncheck the appropriate box when
prompted 'The following attorney/party associations do not exist for the above
case(s). Please check the box on the left of the screen for associations which should
be created. If the association should not be created, be sure the box is unchecked.'
Clerk has deleted attorney from parties they do not represent. No further action is
necessary (Reference: 07-6983, 13-6425)(gec) (Entered: 02/01/2017)
17-30519.39
02/03/2017 246 ORDER: Considering the parties' Ex Parte Consent Motion to Continue Submission
(p.1787) Date (R. Doc. 244), IT IS HEREBY ORDERED that the motion is GRANTED.
Shane Gates' Motion for Injunction and to Lift Stay (R. Doc. 240) is RESET for
submission on Thursday, March 16, 2017 at 9:30 a.m. with oral argument. Signed by
Judge Carl Barbier on 2/3/17.(Reference: 07-6983, 13-6425)(sek) (Entered:
02/03/2017)
02/07/2017 247 ORDERED that 240 (p.1600) MOTION for Injunction and to Lift Stay and 243
(p.1788) (p.1716) MOTION to Lift Stay and Dismiss for Lack of Prosecution shall be set for
submission on Thursday, March 16, 2017 at 9:30 a.m. with oral argument. Signed by
Judge Carl Barbier.(Reference: 07-6983, 13-6425)(gec) (Entered: 02/07/2017)
03/08/2017 248 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Cary J. Menard

(p.1789) to be substituted in place of Emily Couvillon by Ronald Gracianette, Kathryn
Landry, Nicholas F. Noriea, Jr, Walter P Reed. (Attachments: # 1 (p.44) Proposed
Order)(Reference: 07-6983, 13-6425)(Couvillon, Emily) (Entered: 03/08/2017)

(p.1792) (p.1716) MOTION to Lift Stay and Dismiss for Lack of Prosecution . (Reference:
07-6983, 13-6425)(Hollister, John) (Entered: 03/08/2017)
03/13/2017 250 ORDER granting 248 (p.1789) Motion to Substitute Attorney. ORDERED that
(p.1801) Emily Couvillon is hereby withdrawn as counsel of record for defendants Walter P.
Reed, in his official capacity as former District Attorney for the 22nd Judicial
District, State of Louisiana, Assistant District Attorney Ronald Gracianette, former
Assistant District Attorney Nicholas F. Noriea, Jr., and former District Attorney
Kathryn Landry. IT IS FURTHER ORDERED that Cary J. Menard, Assistant
District Attorney (Bar #09426) is hereby substituted as counsel of record on behalf
of the above-named defendants. Signed by Judge Carl Barbier on 3/10/17.
(Reference: 07-6983 & 13-6425)(sek) (Entered: 03/13/2017)
03/14/2017 251 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum by James
(p.1802) D. Caldwell, Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M. Hughes,
Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Office of the Louisiana
Attorney General, Marie-Elise Prieto, Walter P Reed, Captain Sherwood, St.
Tammany District Attorney's Office, Rodney Strain, Richard Swartz, Brian
Williams. (Attachments: # 1 (p.44) Proposed Order, # 2 Reply
Memorandum)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered:
03/14/2017)
03/16/2017 252 ORDER granting 251 (p.1802) Motion for Leave to File Reply. Signed by Judge
(p.1812) Carl Barbier on 3/15/17. (Reference: 07-6983, 13-6425)(sek) (Entered: 03/16/2017)
03/16/2017 253 RESPONSE/MEMORANDUM in Support filed by Rodney Jack Strain, et al re 243

(p.1813) (p.1716) MOTION to Lift Stay and Dismiss for Lack of Prosecution . (Reference:
07-6983, 13-6425)(sek) (Entered: 03/16/2017)
03/16/2017 254 Minute Entry for proceedings held before Judge Carl Barbier: Motion Hearing held
(p.1819) on 3/16/2017. ORDERED that 240 (p.1600) MOTION for Injunction and to Lift
Stay by Shane M. Gates is DENIED for reasons orally stated on the record.
ORDERED that 243 (p.1716) MOTION to Lift Stay and Dismiss for Lack of
Prosecution by defendants is GRANTED solely for the purpose of addressing
defendants' motion to dismiss plaintiff's 1983 complaint with prejudice pursuant to
41(b). FURTHER ORDERED that defendants' motion to dismiss is GRANTED and
plaintiff's 1983 complaint is DISMISSED with prejudice pursuant to 41(b) for
17-30519.40
reasons orally stated on the record. (Court Reporter Cathy Pepper.) (Attachments: #
1 (p.44) Conference Attendance Record) (Reference: 07-6983, 13-6425)(gec)
(Entered: 03/23/2017)
03/24/2017 255 ORDER & REASONS. It is ORDERED that Plaintiff's Motion for Injunction and to
(p.1821) Lift Stay (Rec. Doc. 240 (p.1600) ) is DENIED. Further, the Court finds that
Defendants' Motion to Lift Stay and Dismiss (Rec. Doc. 243 (p.1716) ) is
GRANTED, and Plaintiff's lawsuit is DISMISSED WITH PREJUDICE. Signed by
Judge Carl Barbier.(Reference: 07-6983, 13-6425)(gec) (Entered: 03/24/2017)
03/27/2017 256 JUDGMENT entered in favor of Louisiana Medical Center and Heart Hospital,
(p.1839) LLC, Office of the Louisiana Attorney General, St. Paul Fire and Marine Insurance
Company, St. Paul Insurance Company, Brian Williams, Charles M. Hughes, Jr,
James D. Caldwell, Kathryn Landry, Kathy Sherwood, Marie-Elise Prieto, Nathan
Miller, Nicholas F. Noriea, Jr, Philip Duiett, Richard Swartz, Robert Gottardi,
Rodney Strain, Rodney Jack Strain, Ronald Gracianette, Walter P Reed against
Shane M. Gates. Signed by Judge Carl Barbier.(Reference: 07-6983, 13-6425)(gec)
(Entered: 03/27/2017)
04/05/2017 257 TRANSCRIPT of Motion Hearing held on March 16, 2017 before Judge Carl J.
(p.2709) Barbier. Court Reporter/Recorder Cathy Pepper, Telephone number 504-589-7779.
Transcript may be viewed at the court public terminal or purchased through the
Court Reporter/Recorder before the deadline for Release of Transcript Restriction.
After that date it may be obtained through PACER. Parties have 21 days from the
filing of this transcript to file with the Court a Redaction Request. Release of
Transcript Restriction set for 7/5/2017. (Reference: All Cases)(rsg) (Entered:
04/05/2017)
04/24/2017 258 MOTION for Reconsideration Rule 60 Fed. R. Civ. Proc. re 255 (p.1821) Order, 256
(p.1841) (p.1839) Judgment by Shane M. Gates. Motion(s) will be submitted on 8/2/2017.
(Attachments: # 1 (p.44) Memorandum in Support, # 2 Exhibit, # 3 (p.75) Notice of
Submission)(Reference: 07-6983, 13-6425)(Hollister, John) (Additional
attachment(s) added on 5/5/2017: # 4 (p.110) Exhibit 1, # 5 Exhibit 2, # 6 (p.111)
Exhibit 3, # 7 (p.113) Exhibit 4, # 8 (p.115) Exhibit 5 Part 1 of 2, # 9 (p.117) Exhibit
5 Part 2 of 2, # 10 (p.119) Exhibit 6, # 11 (p.121) Exhibit 7, # 12 (p.123) Exhibit 8, #
13 (p.125) Exhibit 9, # 14 (p.127) Exhibit 10, # 15 (p.129) Exhibit 11, # 16 Exhibit
12, # 17 (p.130) Exhibit 13, # 18 Exhibit 14, # 19 (p.131) Exhibit 15, # 20 (p.133)
Exhibit 16, # 21 (p.135) Exhibit 17 Part 1 of 2, # 22 (p.137) Exhibit 17 Part 2 of 2, #
23 (p.141) Exhibit 18, # 24 (p.142) Exhibit 19, # 25 (p.145) Exhibit 20, # 26 (p.146)
Exhibit 21, # 27 (p.151) Exhibit 22) (gec). Modified on 5/5/2017 (gec). (Entered:
04/24/2017)
04/25/2017 259 Correction of Docket Entry by Clerk re 258 (p.1841) MOTION for Reconsideration
re 255 (p.1821) Order, 256 (p.1839) Judgment, Rule 60 Fed. R. Civ. Proc.
***Document contains incorrect Section. All future pleadings must reflect Section
J.*** (Reference: 07-6983, 13-6425)(ss) (Entered: 04/25/2017)
04/25/2017 260 DEFICIENT EXPARTE/CONSENT MOTION to Withdraw Byron D. Kitchens as

(p.2484) Attorney by Philip Duiett, Louisiana Heart Hospital LLC, Louisiana Medical Center
and Heart Hospital, LLC. (Attachments: # 1 (p.44) Proposed Order)(Reference:
No.13-cv-06425)Attorney Nancy Cundiff added to party Louisiana Heart Hospital
LLC(pty:dft).(Cundiff, Nancy) Modified text on 4/26/2017 (ss). (Entered:
04/25/2017)
04/26/2017
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261 EXPARTE/CONSENT MOTION to Expedite by James D. Caldwell, Robert
Prieto, Walter P Reed, Rodney Strain, Brian Williams. (Attachments: # 1 (p.44)
Memorandum in Support, # 2 Proposed Order)(Reference: 07-6983 and
13-6425)(Collings, Chadwick) Modified text on 4/27/2017 (ss). (Entered:
04/26/2017)
04/27/2017 262 Correction of Docket Entry by Clerk re 261 (p.2487) MOTION to Expedite. Please
disregard previous deficiency. Document has been accepted. (Reference: 07-6983,
13-6425)(ss) (Entered: 04/27/2017)
04/28/2017 263 EXPARTE/CONSENT MOTION to Substitute Attorney. Attorney Nancy A.

(p.2495) Cundiff to be substituted in place of Byron D. Kitchens, MOTION to Withdraw
Byron D. Kitchens as Attorney by Philip Duiett, Louisiana Heart Hospital LLC,
Louisiana Medical Center and Heart Hospital, LLC. (Attachments: # 1 (p.44)
Proposed Order)(Reference: 07-6983)Attorney Nancy Cundiff added to party
Louisiana Heart Hospital LLC(pty:dft), Attorney Nancy Cundiff added to party
Louisiana Medical Center and Heart Hospital, LLC(pty:dft).(Cundiff, Nancy)
Modified on 5/1/2017 (gec). (Entered: 04/28/2017)
05/02/2017 264 ORDER granting 263 (p.2495) Motion to Substitute Attorney. Added attorney
(p.2499) Nancy A. Cundiff for Louisiana Medical Center and Heart Hospital, LLC, Philip
Duiett. Attorney Byron D. Kitchens terminated. Signed by Judge Carl Barbier on
5/1/2017. (Reference: 07-6983)(gec) (Entered: 05/02/2017)
05/05/2017 265 ORDERgranting 261 (p.2487) MOTION to Expedite as to 258 (p.1841) MOTION
(p.2501) for Reconsideration Rule 60 Fed. R. Civ. Proc. re 255 (p.1821) Order, 256 (p.1839)
Judgment. Motion(s) will be submitted on 5/24/2017. Signed by Judge Carl Barbier
on 5/5/2017.(Reference: All Cases)(mmm) (Entered: 05/05/2017)
05/11/2017 266 TRANSCRIPT of Motion Hearing held on April 16, 2008 before Judge Stanwood R.
(p.2616) Duval. Court Reporter/Recorder Cynthia L. Usner, Telephone number
504-589-7724. Transcript may be viewed at the court public terminal or purchased
through the Court Reporter/Recorder before the deadline for Release of Transcript
Restriction. After that date it may be obtained through PACER. Parties have 21 days
from the filing of this transcript to file with the Court a Redaction Request. Release
of Transcript Restriction set for 8/9/2017. (Reference: 07-6983)(rsg) (Entered:
05/11/2017)
05/16/2017 267 RESPONSE/MEMORANDUM in Opposition filed by All Defendants re 258

(p.2503) (p.1841) MOTION for Reconsideration Rule 60 Fed. R. Civ. Proc. re 255 (p.1821)
Order, 256 (p.1839) Judgment . (Attachments: # 1 (p.44) Exhibit A, # 2 Exhibit B, #
3 (p.75) Exhibit C)(Reference: 07-6983 and 13-6425)(Collings, Chadwick) (Entered:
05/16/2017)
05/23/2017 268 DEFICIENT REPLY to Response to Motion filed by Shane M. Gates re 258
(p.2529) MOTION for Reconsideration Rule 60 Fed. R. Civ. Proc. re 255 (p.1821) Order, 256
(p.1839) Judgment 267 (p.2503) Defendants' Opposition.. (Attachments: # 1 (p.44)
Exhibit "A", # 2 Exhibit "B", # 3 (p.75) Exhibit "C", # 4 (p.110) Exhibit
"D")(Reference: 07-cv-6983, 13-cv-6425)(Hollister, John) Modified text on
5/24/2017 (ss). (Entered: 05/23/2017)
05/30/2017 269 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum by Shane
(p.2566) M. Gates. (Attachments: # 1 (p.44) Memorandum in Support, # 2 Proposed Order, #
17-30519.42
3 (p.75) Proposed Reply Memorandum, # 4 (p.110) Exhibit A to Reply
Memorandum, # 5 Exhibit B to Reply Memorandum, # 6 (p.111) Exhibit C to Reply
Memorandum, # 7 (p.113) Exhibit D to Reply Memorandum)(Reference:
07-cv-6983, 13-cv-6425)(Hollister, John) Modified text on 5/31/2017 (ss). (Entered:
05/30/2017)
06/01/2017 270 ORDERED that Plaintiff's 258 (p.1841) Motion for Reconsideration pursuant to
(p.2608) Federal Rule of Civil Procedure 60(b) is DENIED. It is FURTHER ORDERED that
Plaintiff's 269 (p.2566) Motion for Leave to File Reply is DENIED AS MOOT.
Signed by Judge Carl Barbier. (Reference: 07-6983, 13-6425)(gec) (Entered:
06/02/2017)
06/19/2017 271 NOTICE OF APPEAL by Shane M. Gates as to 256 (p.1839) Judgment. (Filing fee
(p.2612) $ 505, receipt number 053L-6214936.) (Reference: 07-cv-6983,
13-cv-6425)(Hollister, John) Modified on 6/20/2017 (gec). (Entered: 06/19/2017)
06/30/2017 272 USCA Case Number 17-30519 appealed to USCA, 5th Circuit for 271 (p.2612)
Notice of Appeal filed by Shane M. Gates. (Reference: 07-6983, 13-6425)(gec)
(Entered: 06/30/2017)
07/19/2017 273 APPEAL TRANSCRIPT REQUEST by Shane M. Gates re 271 (p.2612) Notice of
(p.2615) Appeal. (Transcript is already on file) (Reference: 07-cv-6983,
13-cv-6425)(Hollister, John) (Entered: 07/19/2017)
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
Sheriff Rodney Jack Strain, in his official *
and individual capacity; * Civil Action: § 1983
St Tammany Parish Sheriff’s Office; *
D. A. Walter P. Reed, in his official capacity * Section: K
St. Tammany District Attorney’s Office; *
Attorney Charles M. Hughes, Jr; * Magistrate: 2
Sheriff Deputy Nathan Miller; *
Sheriff Deputy Roger Gottardi; *
Sheriff Deputy Brian Williams; *
John Doe Nos.1-5; *
Louisiana Medical Center and Heart *
Hospital, LLC / and previously as *
Louisiana Heart Hospital, LLC; *
Lacombe Nurse Philip Duiett; *
St. Paul Insurance Company; *
ABCs Insurance Companies *
Defendants *
**************************
COMPLAINT FOR DAMAGES UNDER 42 U.S.C. § 1983, ET SEQ.,

UNDER 45 C.F.R. 164.513 [HIPAA], PENDENT STATE LAW CLAIMS,
AND FOR INJUNCTIVE RELIEF TO PREVENT BAD-FAITH PROSECUTION
PRELIMINARY STATEMENT OF CIVIL RIGHTS VIOLATIONS
On 16 November 2006 St. Tammany Sheriff Deputies pepper sprayed, handcuffed, then beat-
up complainant Gates—by repeatedly pounding his face into the asphalt on the Interstate-12 roadway,
outside of Lacombe, Louisiana. His treating physicians prognose four corrective surgeries and
diagnose permanent nerve damage.
Having beaten up Gates, while his hands were cuffed behind his back, the deputies transported
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Gates to the Louisiana Heart Hospital, where they continued to assault him and with several co-
conspirator employees of the Hospital did join to assault and batter him and otherwise violate his
federal and state constitutional rights, including his rights under 45 C.F.R. 164.513 [HIPAA].
Having discovered the seriousness of the injuries they had inflicted upon him, the St.
Tammany Sheriff’s deputies subsequently and repeatedly fabricated and manufactured facts,
affidavits, charges, and reports in order to cover up their violations of Gates’s constitutional and civil
rights.
To shield the deputies from civil rights claims, the St. Tammany Sheriff’s Office in concert
with the St. Tammany District Attorney’s Office did repeatedly, over a period of ten months up until
the actual date of trial—revise facts and recharge Gates with criminal offenses, in an attempt to cover
up the actions of the deputies, to obstruct Gates’s civil rights claims, and to otherwise prevent his
redress from the Sheriff’s violations of his constitutional rights.
Approximately six months after filing the initial charges, assistant District Attorney
Gracianette initiated a demand, stating that the District Attorney would not advance the charges
against Gates provided that Gates release the Sheriff and his deputies from liability for their beating
and assaulting him. Civil rights counsel for Gates arranged for and met with counsel for the Sheriff,
attorney Charles M. Hughes, to discuss the District Attorney’s proposal.
On 24 July 2007 counsel met with Sheriff’s attorney defendant Charles M. Hughes, Jr., at
1:30 PM, in his office in Covington, Louisiana. During the discussion of the civil rights issues and
the extent of Gates’s injuries, Sheriff’s attorney Hughes threatened to have the District Attorney file
additional charges of Resisting Arrest against Gates, in order to obstruct any civil rights claims that
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Gates might file, citing Heck v. Humphrey1 and related cases.
Hughes specifically said that he would call or would have the Sheriff call the District Attorney
and have those charges filed. At the very least, he called the Assistant District Attorney himself.
Assistant District Attorney Bruce Dearing spoke with Hughes on 17 September 2007, the
Friday before the trial date. On the trial date of 20 September 2007, the District Attorney Dearing
recharged Gates—ten months after the original charges were filed—with resisting arrest charges, the
exact charges that had been threatened by defendant attorney Hughes for the express purpose of
defeating any civil rights claims Gates might advance.
These actions of the Sheriff and his deputies, the District Attorney and his assistants, the
Sheriff’s private counsel, and the employees of Louisiana Heart Hospital, have not only violated the
constitutional and civil rights of complainant, the actions of the Sheriff and District Attorney also
violate their constitutional mandates and restraints as set forth in the Louisiana Constitution and
further articulated in State v. Tate and its progeny.2
Complainant Gates seeks relief and redress from those violations of his constitutional and civil
rights, and prays that this Court enjoin and otherwise prevent this bad-faith prosecution.
JURISDICTION
Federal Law Claims
Jurisdiction of this Court arises under 28 U.S.C. secs 1331, 1337, 1343(a), and 1367(a); 42
U.S.C. §§. 1983, 1985, 1986, and 1988; and 18 U.S.C. 1961-1968; 45 C.F.R.164.513 [HIPAA].
1
Heck v. Humphreys, 512 U.S. 477
2
State v. Tate. 171 So. 108.
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Injunctive Relief to Prevent Bad-Faith Prosecution
Jurisdiction for injunctive relief by this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343,
2201; 42 U.S.C. §§ 1983, and 1988; and the First, Fourth, Fifth, Eight, and Fourteenth Amendments
of the United States Constitution.
This is a civil action to enjoin and redress Gates’s deprivation, under color of state law, by
local authorities—as such authorities have been defined by the United States 5th Circuit Court of
Appeal in Holly Ray Burns v. Sheriff Jack Strain, et al. [5th Cir. No. 05-30837], and Burge v. Parish
of St. Tammany, 187 F.3d 452, citing Mairena, 816 F.2d at 1064 and Hudson, 174 F.3d 677—the
St. Tammany Parish Sheriff’s Office and the St. Tammany Parish District Attorney’s Office, of his
rights, privileges, and immunities under the United States Constitution.
Complainant seeks a temporary restraining order, a preliminary injunction, a permanent
injunction, attorney fees, and any other necessary and proper relief. The amount in controversy
exceeds that required by law, exclusive of interest and costs.
Pendent State Law Claims
Jurisdiction of this Court for pendent claims is authorized by 28 U.S.C. § 1367 with respect
to the state law claims, inasmuch as the amount in controversy exceeds $75,000.00, exclusive of
interest and costs, and under F.R.Civ.P.18(a) and arises under the doctrine of pendent jurisdiction as
set forth in United Mine Workers v. Gibbs, 383 U.S. 715.
Pendent claims arise from violation of claimant’s right, as set forth in those claims and as the
rights violated are expressly guaranteed and protected under the 1974 Louisiana Constitution,
particularly Art. 1 § 2 (due process of law), § 3 (right to individual dignity), § 5 (right to privacy),
§ 19 (right to judicial review), § 20 (right to human treatment), and § 22 (access to courts); and under
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the laws of the State of Louisiana, including but not limited to LSA-R.S. 14:33, et seq. (battery),
LSA-R.S. 14:36, et seq. (assault), LSA-R.S. 14:40, et seq. (intimidating by officers), LSA-R.S.
14:44, et seq. (kidnapping), LSA-R.S. 14:46 (false imprisonment), LSA-R.S. 14:66 (extortion), LSA-
C.C. art. 2315 (liability for acts causing damages), LSA-C.C. art. 2316 (negligence, imprudence or
want of skill), LSA-C.C. art. 2317 (acts of others), LSA-C.C. art. 2320 (acts of servants), LSA-C.C.
art. 2324 (solidary liability for conspiracy), (abuse of process and negligent misinformation);
Malicious prosecution and prosecutorial misconduct are reserved. See: State v. Tate 171 So. 108,
Monell v. New York City Dept of Social Services, 436 U.S. 658, City of Canton v. Harris, 489 U.S.
387, McMillian v. Monroe County, 520 U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397,
and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.)1999, Holly Ray Burns v. St. Tammany, No.
05-30837, U.S. Fifth Circuit Court of Appeals (14 January 2008).
VENUE
Venue in the United States Courts for the Eastern District of Louisiana is proper under 28
U.S.C. § 1391(b).
PARTIES
3. Complainant Shane M. Gates, is a person of the age of majority, who was a resident of the
City of Covington, Parish of St. Tammany, at all times relevant hereto.
4. Defendant Rodney Jack Strain, is a natural person and the Sheriff for the Parish of St.
Tammany, within the State of Louisiana; and who as Sheriff is responsible for the policies,
procedures, and practices implemented by the Office of the Sheriff, through its various
agencies, agents, departments, and employees, and for injury and violation of United States
Constitutional and Louisiana Constitutional rights occasioned thereby. He is the ultimate
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supervisor of the deputies of the Sheriff’s Department including, but not only the co-
defendant deputies Gottardi, Miller, and Williams. Defendant Strain is jointly and in solido
liable for the activities of his privately retained agents—persons who are not deputized or
otherwise public officials, including but not limited to his attorney, co-defendant Charles M.
Hughes, Jr. He is sued in his individual as well as his official capacity.
5. Defendant St. Tammany Parish Sheriff’s Office, is a local authority within the Parish of
St. Tammany, State of Louisiana, and as such does not have Eleventh Amendment immunity
under the United States Constitution or the Eleventh Amendment to that Constitution.3 The
Sheriff’s Office is responsible for the policies, procedures, and practices implemented by the
Sheriff, though its various agencies, agents, departments, and employees, and for injury and
violation of United States Constitutional and Louisiana Constitutional rights occasioned
thereby. It is responsible for the actions and omissions of the deputies of the Sheriff’s
Department including, but not only the co-defendant deputies Gottardi, Miller, and Williams.
The Sheriff’s Office is jointly and in solido liable for the activities of his privately retained
agents—persons who are not deputized or otherwise public officials, including but not limited
to his attorney, co-defendant Charles M. Hughes, Jr.
6. Defendant Walter P. Reed, is a natural person and the District Attorney for the Parish of
St. Tammany, within the State of Louisiana; and who as District Attorney is responsible for
the policies, procedures, and practices implemented by the Office of the District Attorney,
through its various agencies, agents, departments, and employees, and for injury and violation
3
United States 5th Circuit Court of Appeal in Burge v. Parish of St. Tammany, 187 F.3d 452, citing
Mairena, 816 F.2d at 1064 and Hudson, 174 F.3d 677
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of United States Constitutional and Louisiana Constitutional rights occasioned thereby. He
is the ultimate supervisor of the attorneys of the District Attorney’s Office including, but not
only the co-defendants assistant district attorneys named herein. He is sued in his official
capacity.
7. Defendant St. Tammany Parish District Attorney’s Office, is a local authority within the
Parish of St. Tammany, State of Louisiana, and as such does not have Eleventh Amendment
immunity under the United States Constitution or the Eleventh Amendment to that
Constitution.4
The District Attorney’s Office is mandated by the Louisiana Constitution as articulated in
Perez, 454 So.2d 806 and Bush I, 538 So.2d 606, Bush II, 541 So.2d 903, and State v. Tate
171 So. 108 and is responsible for the policies, procedures, and practices implemented by the
District Attorney, through its various agencies, agents, departments, and employees, and for
injury and violation of United States Constitutional and Louisiana Constitutional rights
occasioned thereby.
8. Defendant Charles M. Hughes, Jr., is a natural person who at all times pertinent hereto
was/is not a public official, but is the privately retained attorney representing co-defendant
Sheriff Rodney Jack Strain and the St. Tammany Sheriff’s Office, as such Hughes enjoys
neither personal nor official immunity under the United States Constitution nor under the
Eleventh Amendment to that Constitution, nor qualified immunity against any pendent State
Law Claims—and as such is subject to the Code of Professional Conduct, and not to the
4
United States 5th Circuit Court of Appeal in Burge v. Parish of St. Tammany, 187 F.3d 452, citing
Mairena, 816 F.2d at 1064 and Hudson, 174 F.3d 677
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Code of Judicial Conduct, such as are elected officials including the Sheriff and the District
Attorney, as set forth in the 1974 Louisiana Constitution and the attendant jurisprudence.
9. Defendant Roger Gottardi, a natural person, who at all times pertinent hereto, was a
Sheriff’s Deputy in the Office of Rodney Jack Strain, under the employment of the St.
Tammany Parish Sheriff’s Office. He is sued in his individual and official capacity.
10. Defendant Nathan Miller, a natural person, who at all times pertinent hereto, was a Sheriff’s
Deputy in the Office of Rodney Jack Strain, under the employment of the St. Tammany Parish
Sheriff’s Office. He is sued in his individual and official capacity.
11. Defendant Bryan Williams, a natural person, who at all times pertinent hereto, was a
Sheriff’s Deputy in the Office of Rodney Jack Strain, under the employment of the St.
Tammany Parish Sheriff’s Office. He is sued in his individual and official capacity.
12. Defendant Louisiana Medical Center and Heart Hospital, LLC / and Louisiana Heart
Hospital, LLC, a non-Louisiana LLC, with Louisiana Secretary of State Charter /
Organization No. 35038417Q, whose principle place of business in Louisiana is at the offices
of C.T. Corporation, 8550 United Plaza Blvd., Baton Rouge, Louisiana 70809 and whose
Official Domicile and Principle Office Address is: 10720 Sikes Place, Ste. 300, Charlotte,
North Carolina 28277, which defendant operates the Louisiana Heart Hospital in Lacombe,
Louisiana, whose employees did conspire with other co-defendants to assault and batter the
complainant, and whose employees did violate the provisions of HIPAA and other federal
regulations such as to injury complainant by the actions and omissions set forth below.
13. Defendant Philip Duiett, a natural person, who at all times pertinent hereto, was a nurse
employed by and working at the co-defendant Louisiana Medical Center and Heart
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Hospital, LLC / and Louisiana Heart Hospital, who individually and in conspiracy with
co-defendants Gottardi, Miller and others, did assault and batter defendant, and in conspiracy
also did violate federal law including but not limited to the provision of HIPAA, and other
federal regulations as set forth herein. He is sued in his individual capacity and as an
employee of the Louisiana Heart Hospital.
14. Defendant /John Jane Does Nos. 1 - 5, natural persons who have not been identified by
name, but who did conspire with co-defendants variously, such as to violate his rights under
the United States Constitution and the amendments thereto, and his rights under federal laws,
including but not limited to violations of 42 U.S.C. § 1983, et seq, and 18 U.S.C. 1961-1968;
45 C.F.R.164.513 [HIPAA].
Does Nos. 1-5 also did violate his rights under the Louisiana Constitution, particularly Art.
1 §§2 (due process of law), 3 (right to individual dignity), 5 (right to privacy), 19 (right to
judicial review), 20 (right to human treatment), and 22 (access to courts); and under the laws
of the State of Louisiana, including but not limited to LSA-R.S. 14:33, et seq. (battery), LSA-
R.S. 14:36, et seq. (assault), LSA-R.S. 14:40, et seq. (intimidating by officers), LSA-R.S.
14:44, et seq. (kidnapping), LSA-R.S. 14:46 (false imprisonment), LSA-R.S. 14:66
(extortion), LSA-C.C. art. 2315 (liability for acts causing damages), LSA-C.C. art. 2316
(negligence, imprudence or want of skill), LSA-C.C. art. 2317 (acts of others), LSA-C.C. art.
2320 (acts of servants), and LSA-C.C. art. 2324 (solidary liability for conspiracy).
15. St. Paul Insurance, is a foreign corporation, licensed to do and doing business in the Parish
of St. Tammany, State of Louisiana, which at all times pertinent hereto did provide to
defendant the St. Tammany Parish Sheriff’s Office, policies of insurance covering its activities
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and those of its employees and agents.
16. ABC Insurance Companies, are foreign corporations, licensed to do and doing business in
the Parish of St. Tammany, State of Louisiana, which at all times pertinent hereto did provide
to various co-defendants including but not limited to natural-person co-defendants, but
defendant Louisiana Medical Center and Heart Hospital, LLC / and Louisiana Heart
Hospital, policies of insurance covering its activities and those of its employees and agents.
When identified, the true names shall be substituted for the place names of ABC Insurance,
et al. and the complaint shall be amended pursuant to the Louisiana Direct Action Statute.
FACTS
17. On 16 November 2007, complainant Shane Michael Gates bought a car at a dealership in
Slidell, Louisiana.
18. He left the dealership and took Interstate Highway 12 to return home to Covington,
Louisiana.
19. On the way home he noticed a police car coming up behind him.
20. He pulled over to the shoulder of the road and stopped his car.
21. There was no accident involving the Gates vehicle, the Sheriff’s vehicle, or any other vehicle,
at any point prior to, during, or after the stop; however Gates suffered severe and permanent
injuries, all of which were inflicted by the defendant deputies and defendant Nurse
Duiett—who was subsequently fired by the hospital.
22. Gates got out of his car and was immediately thrown on the hood of the still-running police
car by a person, he later learned, was St. Tammany Sheriff’s deputy defendant Nathan Miller.
23. Defendant Miller held Gates’s head, face, and torso on the hot hood of the still-running police
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car, causing him to react and pull back from the hood of the car.
24. Defendant Miller then pepper sprayed Gates.
25. Defendant Miller subsequently cuffed Gates hands behind his back—having him in custody.
26. Defendants Roger Gottardi and Brian Williams arrived on the scene.
27. Defendant Miller—who was not on duty at the time—transferred the custody of Gates
to defendant Gottardi.
28. Defendant Gottardi, after taking custody of Gates—who was already handcuffed—again
forced Gates’s head, face and torso unto the hood of his running police car. Gates pulled
back to get his face and body off the hood of the car.
29. Defendant Gottardi then threw Gates onto the asphalt on the roadway of Interstate-12.
30. Defendant Gottardi then beat the handcuffed Gates, by repeatedly pounding his face into the
roadway on Interstate-12.
31. Defendant Gottardi beat Gates until he was unconscious.
32. Defendant Gates did not regain consciousness until he was in the Emergency Room at the
Louisiana Heart Hospital—to which he had been taken by the defendant Sheriff deputies.
33. Defendant Gottardi inflicted multiple injuries on Gates, including—injuries described by ER
Dr. Bruce Kerry as: “extensive lacerations to his eye and hematomas”—“caused by a direct
blow”—which eye injury alone required 27 stitches, after almost 300 CT Scans were taken.
Dr. Kerry also recorded that Gates had face and neck injuries, mouth and swelling generally
[Photographs attached to complaint].
34. Defendant Gottardi inflicted such injuries to Gates that the Emergency Room physicians at
Louisiana Heart Hospital would not and did not treat him at that facility.
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35. Defendant Gottardi inflicted other physical injuries on Gates as well.
36. Despite the fact that Gates was initially taken to defendant Louisiana Heart Hospital, the
physician there refused to treat him.
37. Once at the Emergency Room of the Louisiana Heart Hospital, the deputies Gottardi,
Williams, and officers John Does Nos. 1-5 continued to assault him and threaten him while
he was in the custody and care of the hospital itself.
38. Defendant Nurse Philip Duiett joined the sheriff deputies in threatening and assaulting Gates
while he was in the custody and care of the hospital.
39. Defendant Nurse Duiett in the presence of the deputies and others, accused Gates of multiple
crimes and offenses, offenses which could only have been suggested to him by the sheriff’s
deputies—including driving the wrong way on Interstate-12 and thereby obstructing a
highway, and other crimes such as street drug use—none of which were nor are true.
40. Defendant deputies asked Gates for permission to draw blood and take urine samples from
him.
41. Gates refused—the notice of that refusal is in the medical and traffic charge records.
42. Defendant Hospital, Nurse Duiett, and deputies asked Gates for permission to treat him and
draw blood and take urine for treatment.
43. Gates refused permission.
44. For purposes other than treatment, defendant hospital—and upon information and belief
Nurse Duiett himself—took blood samples from Gates.
45. Duiett’s taking of blood samples from Gates constitutes a battery, as the hospital and its
physicians refused to treat Gates but instead transferred him out of Louisiana for treatment.
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46. As defendant Nurse Duiett and other employees of the hospital took Gates’s blood without
his express permission—in fact they took his blood against his express refusal—
their actions constitute a battery.
47. Defendant Duiett’s actions, in conspiracy with the defendant deputies’s, constitute assault for
the threats and intimidations inflicted upon Gates during his six [6] hours at the Louisiana
Heart Hospital.
48. As the treating physicians at Louisiana Heart Hospital refused to treat Gates, but to transfer
him to a hospital in Mississippi, neither it nor its employee Nurse Duiett had any legitimate
interest in taking fluid samples.
49. Although an ambulance was waiting to take Gates to another hospital in Mississippi for
treatment—as the Louisiana Heart Hospital refused to treat him—Nurse Duiett and the
defendant deputies would not release him to the drivers of the ambulance until he gave them
a urine sample—so that they could check his urine for street drugs.
50. Against his will, but in order to be transported to another hospital which would treat him,
Gates was forced to give a urine sample.
51. While he gave the urine sample, Nurse Duiett and the deputies continued to harass him and
otherwise threaten him with harm.
52. Despite the fact that he was in medical custody, Nurse Duiett as well as other employees of
the Louisiana Heart Hospital allowed deputies to remain in their presence while they
discussed Gates and his condition with non-medical personal in certain violation of HIPAA,
at 45 C.F.R.164.513 [HIPAA].
53. When Duiett and the other hospital employees gave Gates information as to X-rays and
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almost 300 CT Scans it had taken of his head and face, the deputies were given the
information at the same time.
54. When Duiett and the other hospital employees gave Gates the information that he did not
have a skull fracture, the deputies appeared relived, and in Gates present, the deputies went
around giving each other high-five hand slaps.
55. At no time did Duiett or the other employees of the Louisiana Heart Hospital attempt to or
otherwise secure privacy for Gates while he was in the custody and care of the hospital. In
fact, one of the police detectives in the hospital room advised Gates of his options of going
home or to go to Mississippi to seek treatment from a plastic surgeon.
56. After his initial examination of Gates, Dr. Kerry never returned to the hospital room and never
advised Gates’s of his medical conditions or options for treatment.
57. The deputies had complete access to Gates at all times while he was in the hospital, including
but not only when the physicians were talking to or meeting with him.
58. As he was being prepared for transport from the Louisiana Heart Hospital, deputy Gottardi
gave Gates two citations: reckless operation and DUI.
59. There citations were given to him the evening of 16 November 2007, on early in the morning
of the next day.
60. Defendants Gottardi, Williams and others, knowing the extent and extensiveness of the
injuries Gottardi had inflicted upon Gates, began and over the course of several months,
fabricating facts, affidavits, reports, and charges in order to cover up the injuries they had
inflicted on Gates, and to cover up their violation of his constitutional and civil rights.
61. Subsequently, defendants the Sheriff, his deputies, and his private counsel defendant attorney
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Hughes, threatened and were able to have the District Attorney file new charges of resisting
arrest—the new charges were filed on the date of trial over ten months after the original
charges were filed, only three [3] days after Sheriff’s attorney Hughes had spoke with District
Attorney Bruce Dearing, who was handling the Gates case.
62. Defendants the Sheriff, his deputies, and his private counsel defendant attorney Hughes, not
only threatened this criminal action in order to obstruct Gates’s right to be heard on his
constitutional and civil rights claims, Hughes was able in concert and conspiracy with the
District Attorney to have the District Attorney file new charges of resisting arrest which was
the express and admitted purpose of preventing Gates from redress of his constitutional and
civil rights actions in these United States District Court for the Eastern District of Louisiana.
63. When attorney Abel had met with attorney Hughes to discuss the deputies’s constitutional
violations and Gates’s civil rights claims, Hughes expressly stated that he would call, or
would have the Sheriff call the District Attorney and have him file resisting arrest charges
against Gates, and those charges would prevent Gates’s attempt to advance any such
constitutional and civil rights action. Hughes specifically noted that the same charges of
resisting arrest were used to stop the 42 U.S.C. § 1983 claims of a young woman who
counsel later discovered was Holly Ray Burns and the resisting arrest charges would have the
same effect for any civil rights claims brought by Gates.
64. This was not the first time that the Sheriff and his deputies fabricated facts, affidavits, and
reports, or conspired with the District Attorney to add charges in order to coverup the injuries
they inflicted on Gates, or the deputies’s violation of his civil and constitutional rights.
65. Upon information and belief, Louisiana Heart Hospital gave the deputies and other members
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of the Sheriff’s Office, information about the severity of Gates’s injuries, without a warrant
and in clear violation of 45 C.F.R.164.513 [HIPAA].
66. In order to cover up their actions, the Sheriff and his deputies constructed facts and fabricated
charges designed to give them leverage against any civil rights or constitutional violations
actions Gates might advance.
67. By this time the deputies had learned from the hospital that Gates worked in the legal
profession, managed a law firm, and taught Continuing Legal Education.
68. Deputies filed affidavits charging Gates with Obstruction of a Highway of Commerce, and
again with DUI. The purpose for charging Gates with the false offenses of obstructing a
highway of commerce and driving the wrong way will become evident between now and the
time of trial.
69. Gates appeared for booking on the fabricated charges, was booked, and subsequently
arraigned.
70. Obstruction of a Highway of Commerce is a felony under Louisiana law.
71. By charging him with a felony, defendants knew they might and intended to gain leverage to
obstruct any actions Gates might advance as to his constitutional and civil rights violations.
72. Subsequently, the District Attorney charged Gates with DUI and another felony instead of
Obstruction of a Highway of Commerce.
73. The District Attorney charged Gates with Aggravated Flight, La. R.S. 108.1.
74. These charges were accepted and Gates was subsequently arraigned several months after the
incident.
75. Approximately six months after the incident, Assistant District Attorney Gracianette initiated
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a demand, stating that the District Attorney would not advance the charges against Gates
provided that Gates release the Sheriff and his deputies from liability for their beating and
assaulting him.
76. Civil rights counsel for Gates arranged for and met with counsel for the Sheriff, attorney
Charles M. Hughes, to discuss the District Attorney’s proposal.
77. On 24 July 2007 counsel Daniel Abel met with Sheriff’s attorney defendant Charles M.
Hughes, Jr., at 1:30 PM, at his office in Covington, Louisiana.
78. During the discussion of the civil rights issues and the extent of Gates’s injuries, Sheriff’s
attorney Hughes threatened to have the District Attorney file additional charges of Resisting
Arrest against Gates, in order to obstruct any civil rights claims that Gates might file, citing
Heck v. Humphrey and related cases.
79. Hughes specifically said that he would call or would have the Sheriff call the District Attorney
and have those charges filed.
80. At the very least, Hughes called the Assistant District Attorney himself.
81. Hughes spoke with Assistant District Attorney Bruce Dearing on 17 September 2007, the
Friday before the trial date.
82. Only three days later, on the trial date of 20 September 2007, the District Attorney recharged
Gates—ten months after the original charges were filed—with resisting arrest, the exact
charges that had been threatened by defendant Hughes for the express purpose of defeating
any civil rights claims that Gates might advance.
83. These actions of the Sheriff and his deputies in concert and conspiracy with the District
Attorney and his assistants, and the Sheriff’s private counsel, have not only violated the
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constitutional and civil rights of complainant, the actions of the Sheriff and District Attorney
also violated their constitutional mandates and restraints as set forth in the Louisiana
Constitution and expressly articulated in State v. Tate and its progeny.
84. On 20 September 2007, the date of the trial—over ten months after the incident, as the
express and acknowledged behest of Sheriff’s attorney defendant Hughes—the District
Attorney filed new charges against Gates for resisting arrest, the exact charges Hughes had
threatened.
85. The matters were reset for trial on 19 October 2007.
86. Because the District Attorney and his assistants have acted in violation of their mandate under
the Louisiana constitution, and State v. Tate 171 So. 108, Perez, 454 So.2d 806 and Bush I,
538 So.2d 606, Bush II, 541 So.2d 903, Monell v. New York City Dept of Social Services,
436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520
U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F
3d. 452, C.A. 5 (La.)1999—Gates has filed the appropriate motions to have the defendant
District Attorney recused.
On 11 December 2007, the District Court ordered Sheriff’s Attorney Hughes and
Assistant District Attorney Dearing to testify in the recusal hearing. They opposed the
Court’s order and have filed a supervisory writ with the Louisiana First Circuit Court of
Appeal.
87. As well, Gates shall ask this United States District Court to enjoin the State Court and the
District Attorney from going forward with its bad-faith prosecution.
COUNT I – § 1983 CAUSES OF ACTION
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88. The Sheriff and his deputy defendants Miller, Gottardi, and Williams, falsely assaulted,
battered, detained, and charged plaintiff in violation of the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution. Under color of law, and having
made a custodial arrest, defendant deputies did use by definition excessive force against Gates
such as to inflict serious, permanent injuries upon him and to otherwise violate his federal
constitutional and federal civil rights.
89. These defendants acted in combination and in concert to commit unlawful and
unconstitutional acts against plaintiff. Furthermore, the law under the Fourth, Fifth, Eighth,
and Fourteenth Amendments in this regard is clearly established so as to defeat any purported
police defendants’ qualified immunity for state law claims.
90. Complainant Gates repeats and re-alleges and incorporates by reference the allegations in
paragraphs nos. 17 through 83 above with the same force and effect as if set forth herein.
91. At all times relevant herein, the conduct of all defendants were subject to 42 U.S.C. § 1983,
1985, 1986, and 1988.
92. Acting under the color of law, defendants worked a denial of Gates’s rights, privileges, and
immunities secured by the United States Constitution and by Federal law.
COUNT II - ENUMERATED § 1983 VIOLATIONS
93. Complainant Gates repeats and realleges and incorporates by reference the allegations in
paragraphs nos. 17 through 83 above with the same force and effect as if set forth herein.
94. At all times relevant herein, the conduct of all defendants were subject to 42 U.S.C. § 1983,
1985, 1986, and 1988.
95. Acting under the color of law, defendants worked a denial of Gates’s rights, privileges, and
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immunities secured by the United States Constitution and by Federal law, including but not
limited to the violations enumerated immediately below.
96. VIOLATION OF 42 U.S.C. 1983 - Excessive Use of Force, Assault and Battery, by
defendant sheriff officers under the Sheriff’s control, who violated the rights, privileges, and
immunities of Gates—as set forth in the facts at paragraphs Nos. 17-83, which deprived Gates
of both his liberty without due process of law and his right to equal protection of the laws,
due course of justice was impeded, in violation of the United States Constitution and its
Amendments
97. VIOLATION OF 42 U.S.C. 1983 - Concerted Unlawful and Malicious Subsequent
Arrests and Charges which deprived Gates of both his liberty without due process of law
and his right to equal protection of the laws, due course of justice was impeded, in violation
of the United States Constitution and its Amendments. (Gates reserves his right to pursue this
cause of action, if the Court finds that it cannot be heard at this time, in light of the United
States Fifth Circuit Court of Appeals opinion in Holly Ray Burns v. Sheriff Rodney Jack
Strain, et al. [No. 07-30837, 14 January 2008] ).
98. VIOLATION OF 42 U.S.C. 1983 - Concerted Unlawful and Malicious Sequential
Detention and Confinement which deprived Gates of both his liberty without due process
of law and his right to equal protection of the laws, due course of justice was impeded, in
violation of the United States Constitution and its Amendments.
99. VIOLATION OF 42 U.S.C. 1983 - Sheriff’s Refusing or Neglecting to Prevent defendant
sheriff officers under this control, from violating the rights, privileges, and immunities of
Gates—as set forth in the facts at paragraphs Nos. 17-83, refusal or neglect in preventing
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deprived Gates of both his liberty without due process of law and his right to equal protection
of the laws, due course of justice was impeded, in violation of the United States Constitution
and its Amendments.
100. VIOLATION OF 42 U.S.C. 1983 - Sheriff and District Attorney’s Malicious
Prosecution, designed to shield and otherwise coverup the defendant sheriff officers under
the Sheriff’s control, who violated the rights, privileges, and immunities of Gates—as set
forth in the facts at paragraphs Nos. 17-83, which deprived Gates of both his liberty without
due process of law and his right to equal protection of the laws, due course of justice was
impeded, in violation of the United States Constitution and its Amendments. (Gates reserves
his right to pursue this cause of action, if the Court finds that it cannot be heard at this time,
in light of the United States Fifth Circuit Court of Appeals opinion in Holly Ray Burns v.
Sheriff Rodney Jack Strain, et al. [No. 07-30837, 14 January 2008] ).
101. VIOLATION OF 42 U.S.C. 1983 - Sheriff and District Attorney’s Malicious Abuse of
Process, designed to shield and otherwise coverup the defendant sheriff officers under the
Sheriff’s control, who violated the rights, privileges, and immunities of Gates—as set forth
in the facts at paragraphs Nos. 17-83, which deprived Gates of both his liberty without due
process of law and his right to equal protection of the laws, due course of justice was
impeded, in violation of the United States Constitution and its Amendments. (Gates reserves
his right to pursue this cause of action, if the Court finds that it cannot be heard at this time,
in light of the United States Fifth Circuit Court of Appeals opinion in Holly Ray Burns v.
Sheriff Rodney Jack Strain, et al. [No. 07-30837, 14 January 2008] ).
COUNT III – § 1983 CONSPIRACY CAUSE OF ACTION
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102. All defendants acted in combination and in concert, including Sheriff Jack Strain whose
“deliberate indifference in not preventing these acts,” combined with the willful acts of his
deputies acting in concert and conspiracy with the District Attorney, thereby allowing the
commission of these unlawful acts of illegally detaining, arresting, extorting, and violating
Gates’s various constitutional rights.
103. As a result of defendants’ conspiracy to commit illegal acts against Gates, they are liable to
plaintiff per 42 U.S.C. §1983 as well as 42 U.S.C. §1988 for attorneys’ fees.
COUNT IV – § 1983 LIABILITY OF SHERIFF, DEPUTIES, AND HIS OFFICE
104. St. Tammany Sheriff Strain and his office violated complainant rights as those rights are
expressly guaranteed and protected under Holly Ray Burns v. Sheriff Rodney Jack Strain, et
al. [No. 07-30837, 14 January 2008], Monell v. New York City Dept of Social Services, 436
U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520 U.S.
781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d.
452, C.A. 5 (La.) 1999, State v. Tate 171 So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d
606, and Bush II, 541 So.2d 903.
105. The St. Tammany Sheriff and his office are responsible for the acts and omissions of the
employees and are liable for the activities of its agents, who are not employees.
106. At all times pertinent hereto, the defendants were acting under color of law, statutes, customs,
policies, ordinances and usages of the State of Louisiana, the Parish of St. Tammany, and the
St. Tammany Sheriff’s Office.
107. At all times pertinent hereto, the St. Tammany Sheriff’s Office and/or the Sheriff failed to
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adopt sufficient policies to deter or prevent the violating of Gates’s civil rights.
108. At all times pertinent hereto, the St. Tammany Sheriff’s Office and/or the Sheriff failed to
develop and/or maintain a custom or policy to identify, discipline, rehabilitate and/or retrain
its police officers who violated Gates’s civil rights.
109. At all times pertinent hereto, the St. Tammany Sheriff’s Office and/or the Sheriff negligently
hired and retained police officers who violated criminal suspects’ civil rights.
110. The illegal and unconstitutional policies and procedures of the St. Tammany Sheriff’s Office
were the driving force of the deprivation of Gates’s rights herein.
111. Furthermore, through improper training, improper hiring, negligent retention, ineffective
internal policies, ignoring patterns and practices of abuse, Sheriff Rodney Jack Strain and the
St. Tammany Sheriff’s Office were deliberately indifferent to said policies and procedures
leading to Gates’s rights being violated.
112. Also, the St. Tammany Sheriff’s Office had a policy and procedure of engaging in illegal
activities to illegally secure charges—including but not limited to resisting an officer or
resisting arrest—against innocent persons, here in violation of Gates’s federal and state
rights.
113. As a result of their various violations, these defendants are liable to plaintiff pursuant to 42
U.S.C. §§1983, 1985, 1986, and 1988.
114. At all times pertinent hereto, defendant Rodney Jack Strain was the Sheriff of the St.
Tammany Sheriff’s Office. Sheriff Jack Strain is responsible for the actions and inactions of
his subordinates as they relate to the violations of Gates’s civil rights, in the following non-
exhaustive particulars:
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a. Failure to properly hire, train, discipline and/or supervise the police officers under his
command;
b. Failure to adopt and enforce reasonably appropriate policies, practices, and procedures for
the operation and administration of the internal affairs of the St. Tammany Sheriff’s Office;
c. Condoning a pattern, practice and/or custom of police officer intimidation and abuse, and by
failing to take appropriate and reasonable measures to ensure that the members of the general
public are protected from unlawful searches, seizures, and extortion by members of the St.
Tammany Sheriff’s Office;
d. Failure to adequately investigate and take appropriate disciplinary action for misconduct by
members of the St. Tammany Sheriff’s Office;
e. Failing to maintain close supervision, monitoring, and accountability of members of the St.
Tammany Sheriff’s Office who have violated Louisiana citizens’ civil rights;
115. All of the acts and omissions alleged herein are established customs, policies and practices,
which, among others, have the effect of depriving Gates of his right to due process of law,
including freedom from unreasonable searches and seizures, as well as other rights, privileges
and immunities secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States and the Constitution of the State of Louisiana, which
directly and proximately caused the damages complained of herein.
116. At all times pertinent hereto, defendants were acting within the course and scope of their
employment with the St. Tammany Sheriff’s Office, thereby rendering the St. Tammany
Sheriff’s Office liable for the acts of said defendants and/or vicarious liability for all causes
and claims stated herein.
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117. As a result of their various violations, these defendants are liable to Gates pursuant to 42
U.S.C. §§1983, 1985, 1986, and 1988.
COUNT V – LIABILITY OF DISTRICT ATTORNEY AND HIS OFFICE
118. St. Tammany District Attorney, his assistants, and his office violated complainant rights as
those rights are expressly guaranteed and protected under Monell v. New York City Dept of
Social Services, 436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe
County, 520 U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St
Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, and Holly Ray Burns v. Sheriff Rodney Jack
Strain, et al. [No. 07-30837, 14 January 2008].
119. St. Tammany District Attorney, his assistants, and his office have violated their mandate as
set forth in the 1974 Louisiana Constitution, as articulated expressly in State v. Tate 171 So.
108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
And have violated that mandate as further defined under Monell v. New York City Dept of
Social Services, 436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe
County, 520 U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St
Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, State v. Tate 171 So. 108, Perez, 454 So.2d
806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
120. By conspiring with the Sheriff’s office to obstruct Mr. Gates’s redress of the violations of his
constitutional and civil rights, the St. Tammany District Attorney, his assistants, and his office
have violated their mandate as set forth in the 1974 Louisiana Constitution, and as
articulated—specifically prohibiting a district attorney from being involved or interested in
any extrinsic matters, which might consciously or unconsciously impair his power to conduct
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an accused’s trial impartially. State v. Tate, Sup.1936, 185 La. 1006, 171 So. 108.
121. In violating their constitutional mandate, the St. Tammany District Attorney, his assistants,
and his office have also deprived and violated his constitutional and civil rights as set forth
in Monell v. New York City Dept of Social Services, 436 U.S. 658, City of Canton v. Harris,
489 U.S. 387, McMillian v. Monroe County, 520 U.S. 781, Bryan County Comm’r v. Brown,
520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, State v. Tate 171
So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
COUNT VI – DUE PROCESS AND EQUAL PROTECTION VIOLATIONS
122. By illegally and sequentially arresting, falsely charging, and recharging plaintiff, and denying
plaintiff a good faith prosecution, a right to a fair trial, all sheriff-deputies-and-district-
attorneys defendants violated Gates’s rights to due process and equal protection as set forth
by the United States Constitution.
COUNT VII: VIOLATION OF 45 C.F.R. HIPPA
123. At all times relevant herein, the conduct of all defendants were subject to 45 C.F.R. 164.513
[HIPAA]. Complainant does not aver an independent cause of action arising from violation
of these federal regulations. But violation of these regulations do prove defendants’ violation
of complainant’s constitutional and civil rights.
124. Defendants Louisiana Heart Hospital, Nurse Duiett, and sheriff deputies violated these federal
laws, in the following non-exclusive particulars.
125. Despite the fact that Gates was initially taken to defendant Louisiana Heart Hospital, the
physicians there refused to treat him.
126. Once at the Emergency Room of the Louisiana Heart Hospital, deputies Gottardi, Williams,
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and officers John Does Nos. 1-5 continued to assault him and threaten him while he was in
the custody and care of the hospital itself.
127. Defendant Nurse Philip Duiett joined the sheriff deputies in threatening and assaulting Gates
while he was in the custody and care of the hospital.
128. Defendant Nurse Duiett in the presence of the deputies and others, accused Gates of multiple
crimes and offenses and fabricated matters which could only have been suggested to him by
the sheriff’s deputies.
129. Defendant deputies asked Gates for permission to draw blood and take urine samples from
him.
130. Gates refused—the notice of that refusal is in the record of the traffic charges.
131. Defendant Hospital, Nurse Duiett, and deputies asked Gates for permission to treat him and
draw blood and take urine for treatment.
132. Gates refused permission.
133. For purposes other than treatment, defendant hospital—and upon information and belief
Nurse Duiett himself—took blood samples from Gates.
134. As the hospital and its physicians decided not to treat Gates but to transfer him out of
Louisiana for treatment, its taking of blood samples from Gates constitutes a battery;
135. As defendant Nurse Duiett and other employees of the hospital took Gates’s blood without
his express permission—in fact they took his blood against his express refusal—
their actions constitute a battery.
136. Defendant Duiett’s actions, in conspiracy with the defendant deputies, constitute assault for
the threats and intimidations inflicted upon Gates during his time at the Louisiana Heart
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Hospital.
137. As the treating physicians at Louisiana Heart Hospital decided not to treat Gates, but to
transfer him to a hospital in Mississippi, neither it nor its employee Nurse Duiett, had any
legitimate interest in taking fluid samples.
138. Although an ambulance was waiting to take Gates to another hospital in Mississippi for
treatment—as the Louisiana Heart Hospital refused to treat him—Nurse Duiett and the
defendant deputies would not release him to the drivers of the ambulance until he gave them
a urine sample.
139. Against his will, but in order to be transported to another hospital which would treat him,
Gates was forced to give a urine sample.
140. While he gave the urine sample, Nurse Duiett and the deputies continued to harass him and
otherwise threaten him with harm.
141. Despite the fact that he was in medical custody, Nurse Duiett as well as other employees of
the Louisiana Heart Hospital allowed deputies to remain in the room while they discussed
Gates and his condition with non-medical personal in certain violation of HIPAA, at 45
C.F.R.164.513 [HIPAA].
142. When Duiett and the other hospital employees gave Gates information as to X-rays and
almost 300 CT Scans it had taken of his head and face, the deputies were given the
information at the same time.
143. When Duiett and the other hospital employees gave Gates the information that he did not
have a skull fracture, the deputies appeared relived, and in Gates’s present, the deputies went
around giving each other high-five hand slaps.
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144. At not time did Duiett or other employees of the Heart Hospital attempt to or otherwise
secure privacy for Gates, while he was in their custody and care.
145. The deputies had complete access to Gates at all times while he was in the hospital, including
but not only when the physicians and medical personnel were talking or meeting with him.
COUNT VIII – STATE LAW CLAIMS
146. Based on the facts stated above, plaintiff hereby asserts various claims under the Constitution,
specifically Article I, Sections 2, 3, 4, 5, and 25, and laws of the State of Louisiana, La. C.C.
arts. 2315, et seq. in pari materia with Title 14 of the Louisiana Revised Statutes, including
the acts of false arrest, false imprisonment, assault, battery and extortion.
147. Based on the facts stated above, Co-defendants did knowingly and intentionally, or in the
alternative negligently, violate Gates’s rights under the Louisiana Constitution, particularly
Art. 1 §§2 (due process of law), 3 (right to individual dignity), 5 (right to privacy), 19 (right
to judicial review), 20 (right to human treatment), and 22 (access to courts); and under the
laws of the State of Louisiana, including but not limited to LSA-R.S. 14:33, et seq. (battery),
LSA-R.S. 14:36, et seq. (assault), LSA-R.S. 14:40, et seq. (intimidating by officers), LSA-
R.S. 14:44, et seq. (kidnapping), LSA-R.S. 14:46 (false imprisonment), LSA-R.S. 14:66
(extortion), LSA-C.C. art. 2315 (liability for acts causing damages), LSA-C.C. art. 2316
(negligence, imprudence or want of skill), LSA-C.C. art. 2317 (acts of others), LSA-C.C. art.
2320 (acts of servants), and LSA-C.C. art. 2324 (solidary liability for conspiracy), (abuse of
process and negligent misinformation); Malicious prosecution and prosecutorial misconduct
are reserved.
148. These non-exclusive Louisiana state law deprivations render defendants liable to plaintiff
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jointly and severally, or in solido, for full compensatory damages, including general damages,
special damages, cost of this action, and legal interest.
149. The facts underlying defendants’ violations of Gates’s rights are distinct and separate from
any facts underlying the various charges created, made, altered—and almost one year after
the incident, newly charged against Gates—such that they can coexist with any fact-based
aspect of any element of any charge which has been created, made, and now advanced by the
defendants Sheriff and District Attorney.
DAMAGES
150. Complainant seeks damages against the defendants pursuant to 42 U.S.C. § 1983, 1985,
1986, for unlawful arrest, excessive force, extortion and other violations of his civil right as
more fully set forth above.
151. Pursuant to this court’s supplemental jurisdiction, he seeks damages against the defendants
under Louisiana state law for false arrest, battery, extortion, and other illegal acts as more
fully set forth above. He also seeks punitive damages under 42 U.S.C. § 1983, 1985, 1986,
and attorneys’ fees under 42 U.S.C. §1888.
DEMAND FOR TRIAL BY JURY
Complainant prays for a trial by jury.
PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, plaintiff requests the following relief:
a. Compensatory damages for all physical and emotional injuries, and the treatment of
those injuries caused by defendants, in favor of plaintiff in amounts appropriate under
the facts and law;
-30-
17-30519.104
b. Punitive damages from the individual defendants, jointly and severally, for malicious,
willful and wanton actions done in reckless disregard for plaintiff’s rights as set forth
above in amounts appropriate under the facts and law;
c. Pre-judgment and post-judgment interest;
d. All costs of these proceedings;
e. Reasonable attorneys’ fees as allowed 42 U.S.C. §1988;
f. Injunctive relief for bad-faith prosecution; and
g. All other just and equitable relief to which the plaintiff is entitled.
Respectfully submitted,
/s/ Daniel G. Abel
DANIEL G. ABEL (LSBA No. 8348)
Trial Attorney
Telephone: 504.782.0613
Facsimile: 504.273.0247
danielpatrickegan@gmail.com
Certification of Summons and Service
I have prepared the appropriate request for summons, and

retained private service who has begun to locate and serve the
named defendants. This pleading and all attachments have been e-
filed with the Clerk of the United States District Court for the
Eastern District of Louisiana this 22 January 2008.
/s/ Daniel G. Abel
-31-
17-30519.105
EXHIBIT A - SHANE M. GATES

PAGE NO. 1
17-30519.106

PAGE NO. 2
17-30519.107

PAGE NO. 3
17-30519.108

PAGE NO. 4
17-30519.109
17-30519.110
AO 440(Rev.l0/93)Summons
in a Civil Action
IJnitedStatesDistrictCourt
EASTERNDISTRICTOF LOTJISIANA
RH"trURN
S h a n eM . G a t e s SUMMONS lN A CIVILCASE
V. CASENUMBER:07-cv-06983
SheriffRodney"Jack" Strain,et al. Section.'3K"
Magistrate:Division "2"
TO:
LacombeHeart Hospital
C.T. SystemCorporation
8550United PlazaBlvd.
BatonRouge,Louisiana70809
YOU ARE HEREBY SUMMONED andrequired

to serveuponPLAINTIFF'S (nameandaddress)
ATTORNEY
DanielG. Abel
P.O.Box1460
Metairie,LA 70004-1460
Physical Address
403VennardAvenue
Lafayette,LA 70501
danielpatickeg an@gmaiI.com
an answerto thecomplaint
whichis herewith serveduponyou,withinTwenty[20] daysafterserviceof thissummonsuponyou,
exclusive
of thedayof service.lf youfailto do so,judgement
bydefaultwillbetakenagajnstyouforthereliefdemanded in the
complaint.YoumustalsofileyouranswerwiththeClerkof thisCourtwithina reasonable periodof timeafterservice.
CLERK DATE
r,ongffrA
G.vltHYlB
(BY) DEPU-TY
CLERK
lAN 2 ? 2008
17-30519.111
A O 4 4 0 , R e v l 0 / 9 3 ) S u m m o n si n a C i v i l A c t i o n
RETURN
OF SERVICE
DATE
Serviceof the Summonsand Complaintwas madeby me 1 +/-tfos

N a m eo f S E R V E R( P R I N T ) TITLE
'/
fl'ir.i>tinW- g.lyvla&t t/
Check one box below to indicate appropriatemethod of seruice
{ ServedPersonally Placewhereserved: i,{nctie

uponthe Defendant. SnS,Uf
'iilta.,
av-*{y }i(. , qtc
n Leftcopiesthereofat thedefendant's houseor usualplaceof abodewitha personof suitable

dwelling ageand
discretion
then residingtherein.
Nameof personwithwhom the summonsand complaintwere left:
tr Returned
unexecuted:
n Other (specify):
STATEMENTOF SERVICEFEES
TRAVEL SERVICES TOTAL
DECLARATION
OF SERVER
I declareunderpenaltyof perjuryunderthe lawsof the UnitedStatesof Americathat the foregoing

informationcontainedin the Returnof Serviceand Statementof ServiceFees is true and correct.
on d t{or
Executed
Date Signatureof Server
t or10tU,t
*p345 f"t{}Iav'vs Y,A.,s'jid',l,
Address of Server
(1) As to who may servea summonssee Rule4 of the FederalRulesof CivilProcedure.
17-30519.112
AO 440(Rev.l0/93)Summons
in a Civil Action
IJnitedStatesDistrictCourt
EASTERNDISTRICTOF LOTJISIANA
RH"trURN
S h a n eM . G a t e s SUMMONS lN A CIVILCASE
V. CASENUMBER:07-cv-06983
SheriffRodney"Jack" Strain,et al. Section.'3K"
Magistrate:Division "2"
TO:
LacombeHeart Hospital
C.T. SystemCorporation
8550United PlazaBlvd.
BatonRouge,Louisiana70809
YOU ARE HEREBY SUMMONED andrequired

to serveuponPLAINTIFF'S (nameandaddress)
ATTORNEY
DanielG. Abel
P.O.Box1460
Metairie,LA 70004-1460
Physical Address
403VennardAvenue
Lafayette,LA 70501
danielpatickeg an@gmaiI.com
an answerto thecomplaint
whichis herewith serveduponyou,withinTwenty[20] daysafterserviceof thissummonsuponyou,
exclusive
of thedayof service.lf youfailto do so,judgement
bydefaultwillbetakenagajnstyouforthereliefdemanded in the
complaint.YoumustalsofileyouranswerwiththeClerkof thisCourtwithina reasonable periodof timeafterservice.
CLERK DATE
r,ongffrA
G.vltHYlB
(BY) DEPU-TY
CLERK
lAN 2 ? 2008
17-30519.113
A O 4 4 0 , R e v l 0 / 9 3 ) S u m m o n si n a C i v i l A c t i o n
RETURN
OF SERVICE
DATE
Serviceof the Summonsand Complaintwas madeby me 1 +/-tfos

N a m eo f S E R V E R( P R I N T ) TITLE
'/
fl'ir.i>tinW- g.lyvla&t t/
Check one box below to indicate appropriatemethod of seruice
{ ServedPersonally Placewhereserved: i,{nctie

uponthe Defendant. SnS,Uf
'iilta.,
av-*{y }i(. , qtc
n Leftcopiesthereofat thedefendant's houseor usualplaceof abodewitha personof suitable

dwelling ageand
discretion
then residingtherein.
Nameof personwithwhom the summonsand complaintwere left:
tr Returned
unexecuted:
n Other (specify):
STATEMENTOF SERVICEFEES
TRAVEL SERVICES TOTAL
DECLARATION
OF SERVER
I declareunderpenaltyof perjuryunderthe lawsof the UnitedStatesof Americathat the foregoing

informationcontainedin the Returnof Serviceand Statementof ServiceFees is true and correct.
on d t{or
Executed
Date Signatureof Server
t or10tU,t
*p345 f"t{}Iav'vs Y,A.,s'jid',l,
Address of Server
(1) As to who may servea summonssee Rule4 of the FederalRulesof CivilProcedure.
17-30519.114
17-30519.115
17-30519.116
17-30519.117
17-30519.118
17-30519.119
17-30519.120
17-30519.121
17-30519.122
17-30519.123
17-30519.124
17-30519.125
17-30519.126
17-30519.127
17-30519.128
17-30519.129
17-30519.130
17-30519.131
17-30519.132
17-30519.133
17-30519.134
17-30519.135
17-30519.136
SHANE M. GATES CIVIL ACTION NO.

07-cv-06983
VERSUS SECTION “K”
SHERIFF RODNEY “JACK” STRAIN, in his

official and individual capacity; ST. TAMMANY MAGISTRATE (2)
PARISH SHERIFF’S OFFICE; D.A. WALTER
P. REED, in his official capacity, ATTORNEY
CHARLES M. HUGHES, JR;, SHERIFF
DEPUTY NATHAN MILLER; SHERIFF
DEPUTY ROBERT GOTTARDI; SHERIFF
DEPUTY BRIAN WILLIAMS; JOHN DOE
NOS. 1-5; LOUISIANA MEDICAL CENTER
AND HEART HOSPITAL, LLC/ and previously
as LOUISIANA HEART HOSPITAL, L.L.C.
LACOMBE NURSE PHILIP DUIETT;
ST. PAUL INSURANCE COMPANY;
ABCs INSURANCE COMPANIES
MOTION FOR EXTENSION OF TIME
NOW INTO COURT, through undersigned counsel, comes Walter P. Reed, District
Attorney for St. Tammany Parish, State of Louisiana, who respectfully represents:
1.
District Attorney Walter P. Reed, in his official capacity, was served with a
Complaint for Damages Under 42 U.S.C. §1983, et seq , on February 6, 2008 .
Page 1
17-30519.137
2.
Undersigned counsel is in the process of moving her office and requests an extension
of time to file responsive pleadings herein.
3.
District Attorney, Walter P. Reed, respectfully requests an extension of time of thirty
(30) days or until March 27, 2008 in which to file responsive pleadings herein.
WHEREFORE, District Attorney, Walter P. Reed, respectfully requests that this
motion be granted allowing an additional period of thirty (30) days or until March 27, 2008
in which to file the responsive pleadings.
Respectfully submitted:
IEYOUB & LANDRY, L.L.C.
Post Office Box 82659
Telephone: (225) 766-0023
Facsimile: (225) 766-7341
By: s/Kathryn Landry

KATHRYN LANDRY, Bar No. 19229
Page 2
17-30519.138
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing Motion for Extension of Time
has been mailed to the opposing party herein:
Daniel G. Abel
Metairie, LA 70004
Baton Rouge, Louisiana this 19th day of February, 2008.
s/Kathryn Landry
KATHRYN LANDRY
Page 3
17-30519.139

07-cv-06983

ORDER
Considering the foregoing Motion for Extension of Time:
IT IS HEREBY ORDERED that District Attorney, Walter P. Reed, is granted an
additional period of thirty (30) days or until March 27, 2008 in which to file responsive
pleadings.
New Orleans, Louisiana, this _______ day of February, 2008.
_______________________________________
JUDGE
17-30519.140

07-cv-06983

ORDER
additional period of thirty (30) days or until March 27, 2008 in which to file responsive
pleadings.
20th day of February, 2008.

New Orleans, Louisiana, this _______
_______________________________________
JUDGE
17-30519.141
17-30519.142
17-30519.143
17-30519.144

SHANE M. GATES CIVIL ACTION

VERSUS NO: 07-6983
RODNEY JACK STRAIN, ET AL SECTION: "K"(2)
ORDER CALL DOCKET

Service was made on the defendants' listed below on the date indicated:
CHARLES M. HUGHES, JR. - FEBRUARY 6, 2008

LOUISIANA MEDICAL CENTER AND HEART HOSPITAL, LLC - FEBRUARY 13, 2008
PHILIP DUIETT - FEBRUARY 14, 2008
There is no record of either an answer or an appearance having been made by these defendants or
plaintiff's having moved for the entry and/or confirmation of default. Accordingly,
IT IS ORDERED that plaintiff's in the above-captioned matter show cause on or before
March 28, 2008, by written memorandum or motion, as is appropriate, why claims and demands
against said defendants' should not be dismissed for plaintiff's failure to prosecute under Fed. R. Civ.
P. 41(b).
FAILURE TO COMPLY WITH THIS ORDER SHALL RESULT
IN DISMISSAL WITHOUT FURTHER NOTICE.
28th day of February, 2008.

New Orleans, Louisiana this _______
_______________________________
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT JUDGE
17-30519.145

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Motion to Enter Preliminary Default Judgment,
Set Hearing for Default Judgment,
Incorporated Memorandum and Order
Plaintiff Shane Michael Gates moves this Court for a judgment by default and prays that
It set a hearing for the confirmation of Its default.
The Order [Document #25] confirms and the record reflects that summons and citation for
the original and first amended complaint were duly served on defendant Charles M. Hughes, Jr.
on 6 February 2008. No answer, responsive pleading, or request for extensions of time within
which to respond have been filed.
Defendant Hughes is a natural, competent person of the age of majority not serving in
military service and cannot not an infant or incompetent.
17-30519.146
Plaintiff moves the Court to enter Its Preliminary Default Judgment and thereafter set a
hearing so that he may present his testimony and evidence in order for this Court to make and
enter full and final judgement against defendant Charles M. Hughes, Jr. for:
a. Compensatory damages in favor of plaintiff in amounts appropriate under the facts and 42
U.S.C. § 1983-1988 and pendant state law claims;
b. Punitive damages for malicious, willful and wanton actions done in reckless disregard for
plaintiff’s rights in amounts appropriate under the facts and 42 U.S.C. § 1983-1988 and
pendant state law claims;
e. Reasonable attorneys’ fees as allowed 42 U.S.C. §1988; and
f. All other just and equitable relief to which the plaintiff is entitled.
/s/ Daniel G. Abel

Trial Attorney
403 Vennard Avenue
Lafayette, LA 70501
Telephone: 504.208.9610
Facsimile: 504.273.0247
Certificate of Service
I have served all counsel who have made an appearance in this matter by e-filing this
pleading with the Clerk of these Courts on 28 February 2008. I also served Attorney
Nancy Brechtel, counsel for defendant hospital by electronic mail on this date as well.
/s/ Daniel G. Abel
17-30519.147
17-30519.148

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Affidavit of Daniel G. Abel
Before me, appeared Daniel G. Abel, who after being sworn did testify that:
1. I have personal knowledge as to defendant Charles M. Hughes, Jr.;

2. He was and is Counsel for the St. Tammany Sheriff’s Office all times hereto;
3. Mr. Hughes was not in the military service, was not incompetent, and was
not an infant, at any time hereto;
4. Service was made on Hughes on 6 February 2008, returned, and entered in the
docket.
Sworn To and Signed 28 February 2008

/s/ Daniel G. Abel
Affiant
/s/ Carl N. Finley
CARL N. FINLEY (LSBA No. 23074)
Notary Public *
*Hard copy of original signed affidavit on file
17-30519.149

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
PROPOSED ORDER
IT IS ORDERED that:
The Court shall hear all testimony and receive all evidence in confirmation of the default
judgment on the _______day of __________________, 2008, at _____________ AM / PM.
_________________________________
Judge
17-30519.150
Hello This is a Test

28th February
17-30519.151

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Motion to Enter Preliminary Default Judgment,
Set Hearing for Default Judgment,
Incorporated Memorandum and Order
Plaintiff Shane Michael Gates moves this Court for a judgment by default and prays that
It set a hearing for the confirmation of Its default.
The Order [Document #25] confirms and the record reflects that summons and citation for
the original and first amended complaint were duly served on defendant Charles M. Hughes, Jr.
on 6 February 2008. No answer, responsive pleading, or request for extensions of time within
which to respond have been filed.
Defendant Hughes is a natural, competent person of the age of majority not serving in
military service and cannot not an infant or incompetent.
17-30519.152
Plaintiff moves the Court to enter Its Preliminary Default Judgment and thereafter set a
hearing so that he may present his testimony and evidence in order for this Court to make and
enter full and final judgement against defendant Charles M. Hughes, Jr. for:
a. Compensatory damages in favor of plaintiff in amounts appropriate under the facts and 42
U.S.C. § 1983-1988 and pendant state law claims;
b. Punitive damages for malicious, willful and wanton actions done in reckless disregard for
plaintiff’s rights in amounts appropriate under the facts and 42 U.S.C. § 1983-1988 and
pendant state law claims;
e. Reasonable attorneys’ fees as allowed 42 U.S.C. §1988; and
f. All other just and equitable relief to which the plaintiff is entitled.
/s/ Daniel G. Abel

Trial Attorney
403 Vennard Avenue
Lafayette, LA 70501
Telephone: 504.208.9610
Facsimile: 504.273.0247
I have served all counsel who have made an appearance in this matter by e-filing this
pleading with the Clerk of these Courts on 28 February 2008. I also served Attorney
Nancy Brechtel, counsel for defendant hospital by electronic mail on this date as well.
/s/ Daniel G. Abel
17-30519.153
17-30519.154
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
PROPOSED ORDER
IT IS ORDERED that:
Default Judgment is entered against defendant Charles M. Hughes, Jr., who was served
on 6 February 2008, which service was returned on that date, and who has not answered or filed
other responsive pleadings into the record of this Court.
New Orleans, LA. Signed this _______day of __________________, 2008
_________________________________
Judge
17-30519.155

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Affidavit of Daniel G. Abel
Before me, appeared Daniel G. Abel, who after being sworn did testify that:
1. I have personal knowledge as to defendant Charles M. Hughes, Jr.;

2. He was and is Counsel for the St. Tammany Sheriff’s Office all times hereto;
3. Mr. Hughes was not in the military service, was not incompetent, and was
not an infant, at any time hereto;
4. Service was made on Hughes on 6 February 2008, returned, and entered in the
docket.
Sworn To and Signed 28 February 2008

/s/ Daniel G. Abel
Affiant
/s/ Carl N. Finley
CARL N. FINLEY (LSBA No. 23074)
Notary Public *
*Hard copy of original signed affidavit on file
17-30519.156
SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983
SHERIFF RODNEY JACK STRAIN, in his official * CIVIL ACTION: § 1983

and individual capacity; ST. TAMMANY PARISH
SHERIFF’S OFFICE; D.A. WALTER P. REED, in * SECTION “K”
his official capacity; ST. TAMMANY DISTRICT
ATTORNEY’S OFFICE; ATTORNEY CHARLES * MAGISTRATE: 2
M. HUGHES, JR.; SHERIFF DEPUTY NATHAN
MILLER; SHERIFF DEPUTY ROGER *
GOTTARDI; SHERIFF DEPUTY BRIAN
WILLIAMS; JOHN DOE NOS. 1-5; LOUISIANA *
MEDICAL CENTER AND HEART HOSPITAL,
LLC/and previously as LOUISIANA HEART *
HOSPITAL, LLC; LACOMBE NURSE PHILIP
DUIETT; ST. PAUL INSURANCE COMPANY; *
ABCs INSURANCE COMPANIES,
*
Defendants.
NOW INTO COURT, through undersigned counsel, come Defendants, Louisiana
Medical Center and Heart Hospital, L.L.C. (“LHH”)(formerly known as Louisiana Heart
Hospital, L.L.C.) and Mr. Phillip Duiett, who respectfully represent:
1.
LHH did not receive service of the Plaintiff’s Complaint and Amended Complaint
through its registered agent, CT Corporation, until February 13, 2008.
1
17-30519.157
2.
Upon information and belief,1 Plaintiff served Mr. Duiett via federal express sent to his
residence in Petal, Mississippi, on February 14, 2008. Mr. Duiett is currently employed as a
truck driver, is not at his residence on a regular basis, and did not become aware of this
attempted service until a later date.
3.
The Defendants have not had an opportunity to investigate the allegations of Plaintiff’s
Complaint and Amended Complaint and request a brief extension of time, until March 10, 2008,
to file responsive pleadings herein.
4.
The Defendants have consulted with Plaintiff’s counsel regarding this request for an
extension of time and he has no objection to same.2
WHEREFORE, Defendants, Louisiana Medical Center and Heart Hospital, L.L.C.
(“LHH”)(formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Phillip Duiett,
respectfully request that this motion be granted allowing a brief extension of time, until March
10, 2008, in which to file responsive pleadings.
1
See Return of Service filed by Plaintiff on February 14, 2008.
2
Exhibit “A,” correspondence from Ms. Nancy Brechtel to Mr. Daniel Abel confirming his agreement to an
extension of time, until March 10, 2008, for responsive pleadings.
2
17-30519.158
Respectfully Submitted:
ABBOTT, SIMSES & KUCHLER, APLC
/s/ Nancy Brechtel

LAWRENCE E. ABBOTT (#2276)
MONIQUE WEINER (#23233)
BYRON D. KITCHENS (#25129)
NANCY BRECHTEL (#27974)
BECKY HOLLEN (#31191)
5100 Village Walk, Suite 200
Covington, Louisiana 70433
Telephone: (985) 893-2991
Facsimile: (985) 898-0383
Attorneys for Louisiana Medical Center and Heart

Hospital, L.L.C. (formerly known as Louisiana Heart
Hospital) and Mr. Phillip Dueitt
I hereby certify that I have filed electronically a true copy of the foregoing. All
parties received notice of this filing by operation of the Court’s electronic filing system. Parties
may access this filing through the Court’s CM/ECF system.
Dated: February 29, 2008.
/s/ Nancy Brechtel

NANCY A. BRECHTEL
3
17-30519.159
ABBOTT, SIMSES & KUCHLER
A Professional Law Corporation www.abbott‐simses.com
400 LAFAYETTE STREET 5100 VILLAGE WALK 1360 POST OAK BOULEVARD 210 E. CAPITOL STREET
SUITE 200 SUITE 200 SUITE 1700 SUITE 1090
NEW ORLEANS, LOUISIANA 70130 COVINGTON, LOUISIANA 70433 HOUSTON, TEXAS 77056 JACKSON, MISSISSIPPI 39201
TELEPHONE: (504) 568‐9393 TELEPHONE: (985) 893‐2991 TELEPHONE: (713) 627‐9393 TELEPHONE: (601) 352‐9393
FAX: (504) 524‐1933 FAX: (985) 898‐0383 FAX: (713) 627‐9395 FAX: (601) 352‐9066

REPLY TO COVINGTON OFFICE
NANCY BRECHTEL
Admitted in Louisiana

NBrechtel@abbott‐simses.com
February 6, 2008
Via e-mail and facsimile

Daniel G. Abel
P.O. Box 1460
Re: Shane Michael Gates v. Louisiana Medical Center and Heart Hospital, L.L.C., et al.
USDC Eastern District Case No. 07-6983; Our file no. 0202-80115
Dear Mr. Abel:
This correspondence confirms your agreement today to an informal extension of time,

until March 10, 2008, for the Louisiana Medical Center and Heart Hospital, L.L.C. to file
pleadings responsive to Plaintiff’s Complaint as well as to Plaintiff’s Amended Complaint.
Although, as we discussed, we have not formally assumed representation of Mr. Phillip

Dueitt, you agreed to the same extension of time, until March 10, 2008, for Mr. Dueitt to file
responsive pleadings.
If my understanding of your agreement is incorrect, I ask that you notify me immediately.

Thank you for your professional courtesies in this respect.
Yours truly,
Nancy Brechtel
NAB/rpg
CC: Mr. Lawrence E. Abbott

Ms. Monique M. Weiner
Mr. Byron D. Kitchens
EXHIBIT "A"
17-30519.160
SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983

his official capacity, ST. TAMMANY DISTRICT
*
Defendants.
ORDER
Considering the foregoing Motion for Extension of Time;
IT IS ORDERED that Defendants, Louisiana Medical Center and Heart Hospital, L.L.C.
(formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Phillip Duiett, are hereby granted
an extension of time to file responsive pleadings, until March 10, 2008.
New Orleans, Louisiana, this ___ day of ______________, 2008.
JUDGE
17-30519.161
17-30519.162
17-30519.163
17-30519.164
17-30519.165
17-30519.166
17-30519.167
SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983

*
Defendants.
ORDER

New Orleans, Louisiana, this ___ March
3rd day of ______________, 2008.
JUDGE
17-30519.168

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL SECTION “K”(2)
ORDER
Considering the foregoing Motion for Extension of Time,
IT IS ORDERED that defendant Charles M. Hughes, Jr. be and he hereby is granted until
not later than March 24, 2008, to file responsive pleadings in the above entitled and numbered
cause.
New Orleans, Louisiana this 3rd day of March, 2008.

17-30519.169

3rd March
17-30519.170
17-30519.171

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
2nd AMENDED COMPLAINT FOR DAMAGES UNDER 42 U.S.C. § 1983, ET SEQ.,

UNDER 45 C.F.R. 164.513 [HIPAA], PENDENT STATE LAW CLAIMS,
AND FOR INJUNCTIVE RELIEF TO PREVENT BAD-FAITH PROSECUTION
IN VIOLATION OF & IN CONSPIRACY TO VIOLATE 18 U.S.C 1951 [HOBBS ACT]
AMENDED STATEMENT OF CIVIL RIGHTS & HOBBS ACT VIOLATIONS
Complainant Shane M. Gates re-urges all facts alleged in his original and first amended
complaints and adds to those facts and application of laws the following:
The Counsel for the St. Tammany Sheriff’s Office and the Sheriff in concert with the St.
Tammany District Attorney’s Office acting under color of law and using the authority which would
otherwise lawfully arise from the constitutional mandates and authority of their public offices did
-1-
17-30519.172
conspire with named defendant St. Paul Insurance to extort and otherwise deprive complainant of his
rights under law and did file the express charges of Resisting Arrest for the specific purpose of
extorting him, and thereby depriving him of his property and rights to the benefit of St. Paul
Insurance, its attorney Charles M. Hughes, Jr., the Sheriff and his office.
On 24 July 2007 Sheriff’s attorney Hughes threatened to have the District Attorney file
additional charges of Resisting Arrest against Gates, in order to obstruct any civil rights claims that
Gates might file, citing Heck v. Humphrey1 and related cases.
Hughes called Assistant District Attorney Bruce Dearing three days before the trial date and
on the trial date itself Dearing newly charged Gates—ten months after the original charges were
filed—with two counts of resisting arrest, the exact charges that had been threatened by defendant
attorney Hughes for the express purpose of defeating any civil rights claims Gates might advance.
Hughes instigated and Dearing billed out the new charges to cover up the actions of the
deputies and the Sheriff’s office and by doing so knowingly and intentionally attempted to and
conspire to deprive and to otherwise threaten and induce Gates to give up his rights, including his
constitutional and his property rights, the benefit of which accrues to defendants St. Paul, the
Sheriff’s Office and counsel.
JURISDICTION
Federal Law Claims
U.S.C. §§. 1983, 1985, 1986, and 1988; and 18 U.S.C. 1961-1968; 45 C.F.R.164.513 [HIPAA].
1
Heck v. Humphreys, 512 U.S. 477
-2-
17-30519.173
Injunctive Relief to Prevent Bad-Faith Prosecution
Jurisdiction for injunctive relief by this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343,
2201; 42 U.S.C. §§ 1983, and 1988; and the First, Fourth, Fifth, Eight, and Fourteenth Amendments
of the United States Constitution and 18 U.S.C. 1951 [Hobbs Act].
Complainant does not allege a private right of action arising from the Hobbs Act itself, but
does allege that violations of and conspiracy to violate the Hobbs Act under the facts pleaded in this
2nd amended complaint, constitute bad faith prosecution, such as should be enjoined by the federal
courts.
Complainant does aver that to the extent that defendants Hughes, St. Paul Insurance, the
Sheriff and the District Attorney’s office have committed acts that violate the Hobbs Acts, the
commission of and conspiracy to commit those same acts [Hobbs act elements] give rise under
pendent Louisiana Law to actions in tort.
Complainant seeks a temporary restraining order, a preliminary injunction, a permanent
injunction, attorney fees, and any other necessary and proper relief. The amount in controversy
exceeds that required by law, exclusive of interest and costs.
Pendent State Law Claims
Complainant avers that defendants Hughes, St. Paul Insurance, the St Tammany Sheriff and
the District Attorney’s offices’ actions violate the Hobbs Act and constitute actions and conspiracy
to actions that violate Hobbs act elements and thereby give rise under pendent Louisiana Law to
actions in tort including but not only those guaranteed and protected under the 1974 Louisiana
Constitution, particularly Art. 1 § 2 (due process of law), § 3 (right to individual dignity), § 5 (right
to privacy), § 19 (right to judicial review), § 20 (right to human treatment), and § 22 (access to
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17-30519.174
courts); and under the laws of the State of Louisiana, including but not limited to LSA-R.S. 14:66
(extortion), LSA-C.C. art. 2315 (liability for acts causing damages), LSA-C.C. art. 2316 (negligence,
imprudence or want of skill), LSA-C.C. art. 2317 (acts of others), LSA-C.C. art. 2320 (acts of
servants), LSA-C.C. art. 2324 (solidary liability for conspiracy), (abuse of process and negligent
misinformation)
FACTS RE-URGED AND NEWLY STATED
Complainant re-urges all facts in paragraph nos.17-58 of the original and first amended
complaints.
Complainant restates the facts in paragraph nos. 58- 87 of the original and first amended
complaints as those facts set forth defendants violations and conspiracy to violate 18 U.S.C. 1951
[Hobbs Act].
58. As he was being prepared for transport from the Louisiana Heart Hospital, deputy Gottardi
gave Gates two citations: reckless operation and DUI.
59. There citations were given to him the evening of 16 November 2007 or early in the morning
of the next day.
60. Defendants Gottardi, Williams and others, knowing the extent and extensiveness of the
injuries Gottardi had inflicted upon Gates, began and over the course of several months,
fabricating facts, affidavits, reports, and charges in order to cover up the injuries they had
inflicted on Gates, and to cover up their violation of his constitutional and civil rights.
61. Subsequently, defendants the Sheriff, his deputies, and his private counsel defendant attorney
Hughes, threatened and were able to have the District Attorney file new charges of resisting
arrest—the new charges were filed on the date of trial over ten months after the original
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17-30519.175
charges were filed, only three [3] days after Sheriff’s attorney Hughes had spoke with District
Attorney Bruce Dearing, who was handling the Gates case.
62. Defendants the Sheriff, his deputies, and his private counsel defendant attorney Hughes, not
only threatened this criminal action in order to obstruct Gates’s right to be heard on his
constitutional and civil rights claims, Hughes was able in concert and conspiracy with the
District Attorney to have the District Attorney file new charges of resisting arrest which was
the express and admitted purpose of preventing Gates from redress of his constitutional and
civil rights actions in these United States District Court for the Eastern District of Louisiana.
63. When attorney Abel had met with attorney Hughes to discuss the deputies’s constitutional
violations and Gates’s civil rights claims, Hughes expressly stated that he would call, or
would have the Sheriff call the District Attorney and have him file resisting arrest charges
against Gates, and those charges would prevent Gates’s attempt to advance any such
constitutional and civil rights action. Hughes specifically noted that the same charges of
resisting arrest were used to stop the 42 U.S.C. § 1983 claims of a young woman who
counsel later discovered was Holly Ray Bush and the resisting arrest charges would have the
same effect for any civil rights claims brought by Gates.
64. This was not the first time that the Sheriff and his deputies fabricated facts, affidavits, and
reports, or conspired with the District Attorney to add charges in order to coverup the injuries
they inflicted on Gates, or the deputies’s violation of his civil and constitutional rights.
65. Upon information and belief, Louisiana Heart Hospital gave the deputies and other members
of the Sheriff’s Office, information about the severity of Gates’s injuries, without a warrant
and in clear violation of 45 C.F.R.164.513 [HIPAA].
-5-
17-30519.176
66. In order to cover up their actions, the Sheriff and his deputies constructed facts and fabricated
charges designed to give them leverage against any civil rights or constitutional violations
actions Gates might advance.
67. By this time the deputies had learned from the hospital that Gates worked in the legal
profession, managed a law firm, and taught Continuing Legal Education.
68. Deputies filed affidavits charging Gates with Obstruction of a Highway of Commerce, and
again with DUI. The purpose for charging Gates with the false offenses of obstructing a
highway of commerce and driving the wrong way will become evident between now and the
time of trial.
69. Gates appeared for booking on the fabricated charges, was booked, and subsequently
arraigned.
70. Obstruction of a Highway of Commerce is a felony under Louisiana law.
71. By charging him with a felony, defendants knew they might and intended to gain leverage to
obstruct any actions Gates might advance as to his constitutional and civil rights violations.
72. Subsequently, the District Attorney charged Gates with DUI and another felony instead of
Obstruction of a Highway of Commerce.
73. The District Attorney charged Gates with Aggravated Flight, La. R.S. 108.1.
74. These charges were accepted and Gates was subsequently arraigned several months after the
incident.
75. Approximately six months after the incident, Assistant District Attorney Gracianette initiated
a demand, stating that the District Attorney would not advance the charges against Gates
provided that Gates release the Sheriff and his deputies from liability for their beating and
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17-30519.177
assaulting him.
76. Civil rights counsel for Gates arranged for and met with counsel for the Sheriff, attorney
Charles M. Hughes, to discuss the District Attorney’s proposal.
77. On 24 July 2007 counsel Daniel Abel met with Sheriff’s attorney defendant Charles M.
Hughes, Jr., at 1:30 PM, at his office in Covington, Louisiana.
78. During the discussion of the civil rights issues and the extent of Gates’s injuries, Sheriff’s
attorney Hughes threatened to have the District Attorney file additional charges of Resisting
Arrest against Gates, in order to obstruct any civil rights claims that Gates might file, citing
Heck v. Humphrey and related cases.
79. Hughes specifically said that he would call or would have the Sheriff call the District Attorney
and have those charges filed.
80. At the very least, Hughes called the Assistant District Attorney himself.
81. Hughes spoke with Assistant District Attorney Bruce Dearing on 17 September 2007, the
Friday before the trial date.
82. Only three days later, on the trial date of 20 September 2007, the District Attorney recharged
Gates—ten months after the original charges were filed—with resisting arrest, the exact
charges that had been threatened by defendant Hughes for the express purpose of defeating
any civil rights claims that Gates might advance.
83. These actions of the Sheriff and his deputies in concert and conspiracy with the District
Attorney and his assistants, and the Sheriff’s private counsel, have not only violated the
constitutional and civil rights of complainant, the actions of the Sheriff and District Attorney
also violated their constitutional mandates and restraints as set forth in the Louisiana
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17-30519.178
Constitution and expressly articulated in State v. Tate and its progeny.
84. On 20 September 2007, the date of the trial—over ten months after the incident, at the
express and acknowledged behest of Sheriff’s attorney defendant Hughes—the District
Attorney filed new charges against Gates for resisting arrest, the exact charges Hughes had
threatened.
85. The matters were reset for trial on 19 October 2007.
86. Because the District Attorney and his assistants have acted in violation of their mandate under
the Louisiana constitution, and State v. Tate 171 So. 108, Perez, 454 So.2d 806 and Bush I,
538 So.2d 606, Bush II, 541 So.2d 903, Monell v. New York City Dept of Social Services,
436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520
U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F
3d. 452, C.A. 5 (La.)1999—Gates has filed the appropriate motions to have the defendant
District Attorney recused.
On 11 December 2007, the District Court ordered Sheriff’s Attorney Hughes and
Assistant District Attorney Dearing to testify in the recusal hearing. They opposed the
Court’s order and have filed a supervisory writ with the Louisiana First Circuit Court of
Appeal.
87. As well, Gates shall ask this United States District Court to enjoin the State Court and the
District Attorney from going forward with its bad-faith prosecution.
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17-30519.179
COUNT IX - VIOLATIONS OF 18 U.S.C. 1951 [HOBBS ACT]

INJUNCTIVE RELIEF FOR BAD-FAITH PROSECUTION
Defendants Hughes, St. Paul’s Insurance, the Sheriff’s Office, the District Attorney’s Office
and others to be identified between now and the time of trial, did conspire to and did extort by force,
by violence, and by fear to induce and attempt to induce Gates to give up his constitutional and civil
rights, as well as his property and property rights, in violation of 18 U.S.C. 1951.
Defendants used and attempted to use Gates’s reasonable fear of personal and economic harm
in order to induce him to consent to give up his property rights.
Defendants’ conduct as it relates benefits St. Paul Insurance and thereby obstructs and
otherwise affects legitimate interstate commerce, such as to cause not only Gates but all persons
similarly situated to Gates to give up their rights including but not only their constitutional, civil, and
property rights, in particular as St. Paul Insurance insures not only the St. Tammany Sheriff’s office,
but a number and variety of other law enforcement agencies thought Louisiana and the United States
of America.
Defendants St. Paul, its agents, attorneys, and clients have used the otherwise legitimate
authority and public offices in this instance the Sheriff’s Office and that of the District Attorney to
extort Gates—and persons other than Gates—to give up their constitutional, civil, and property rights
in violation 18 U.S.C. 1951, et seq. [Hobbs Act].
While certain of the defendants may not be recipients of the benefits of the extortion visited
upon Gates, the corpus of the corrupt benefits certainly accrued to some of the parties including the
defendant public agencies and St. Paul’s insurance—who would have otherwise been obligated to
compensate Gates and other persons similarly situated for the injuries and damages done. Evans v.
-9-
17-30519.180
United States, 504. U.S. 255 [1992] and United States v. Margiotta, 688 F.2d 108, 130.
Defendants’s violations of the Hobbs Act are in themselves grounds for and proof of the bad-
faith prosecution of complainant Gates and reason why this Court should enjoin the state court
prosecution of its charges.
[RE-URGED § 1983 CONSPIRACY CAUSE OF ACTION]
All defendants acted in combination and in concert, including Sheriff Jack Strain whose
“deliberate indifference in not preventing these acts,” combined with the willful acts of his deputies
acting in concert and conspiracy with the District Attorney, thereby allowing the commission of these
unlawful acts of illegally detaining, arresting, extorting, and violating Gates’s various constitutional
rights.
As a result of defendants’ conspiracy to commit illegal acts against Gates, they are liable to
[RE-URGED STATE LAW CLAIMS]
Based on the facts stated above, plaintiff hereby asserts various claims under the Constitution,
specifically Article I, Sections 2, 3, 4, 5, and 25, and laws of the State of Louisiana, La. C.C. arts.
2315, et seq. in pari materia with Title 14 of the Louisiana Revised Statutes, including the acts of
false arrest, false imprisonment, assault, battery and extortion.
Based on the facts stated above, Codefendants did knowingly and intentionally, or in the
alternative negligently, violate Gates’s rights under the Louisiana Constitution, particularly Art. 1 §§2
(due process of law), 3 (right to individual dignity), 5 (right to privacy), 19 (right to judicial review),
20 (right to human treatment), and 22 (access to courts); and under the laws of the State of
Louisiana, including but not limited to LSA-R.S. 14:33, et seq. (battery), LSA-R.S. 14:36, et seq.
-10-
17-30519.181
(assault), LSA-R.S. 14:40, et seq. (intimidating by officers), LSA-R.S. 14:44, et seq. (kidnapping),
LSA-R.S. 14:46 (false imprisonment), LSA-R.S. 14:66 (extortion), LSA-C.C. art. 2315 (liability for
acts causing damages), LSA-C.C. art. 2316 (negligence, imprudence or want of skill), LSA-C.C. art.
2317 (acts of others), LSA-C.C. art. 2320 (acts of servants), and LSA-C.C. art. 2324 (solidary
liability for conspiracy), (abuse of process and negligent misinformation); Malicious prosecution and
prosecutorial misconduct are reserved.
These non-exclusive Louisiana state law deprivations render defendants liable to plaintiff
jointly and severally, or in solido, for full compensatory damages, including general damages, special
damages, cost of this action, and legal interest.
The facts underlying defendants’ violations of Gates’s rights are distinct and separate from
any facts underlying the various charges created, made, altered—and almost one year after the
incident, newly charged against Gates—such that they can coexist with any fact-based aspect of any
element of any charge which has been created, made, and now advanced by the defendants Sheriff
and District Attorney.
RE-URGED DAMAGES
Complainant seeks damages against the defendants pursuant to 42 U.S.C. § 1983, 1985, 1986,
for unlawful arrest, excessive force, extortion and other violations of his civil right as more fully set
forth above.
Pursuant to this court’s supplemental jurisdiction, he seeks damages against the defendants
under Louisiana state law for false arrest, battery, extortion, and other illegal acts as more fully set
forth above. He also seeks punitive damages under 42 U.S.C. § 1983, 1985, 1986, and attorneys’
fees under 42 U.S.C. §1888.
-11-
17-30519.182
PRAYER FOR RELIEF
the facts and law;
/s/ Daniel G. Abel
Trial Attorney
Telephone: 504.782.0613
Facsimile: 504.273.0247
-12-
17-30519.183

This 9 March 2008, I have served counsel for all parties with
this 2nd Amended Complaint in the manner required by federal and
local rule and have e-filed this pleading with the Clerk of
these courts.
/s/ Daniel G. Abel

Bar No. 8348
-13-
17-30519.184

SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983

his official capacity; ST. TAMMANY DISTRICT
*
Defendants.
Medical Center and Heart Hospital, L.L.C. (“LHH”)(formerly known as Louisiana Heart
Hospital, L.L.C.) and Mr. Phillip Duiett, who respectfully represent:
1.
LHH did not receive service of the Plaintiff’s Complaint and Amended Complaint
through its registered agent, CT Corporation, until February 13, 2008.
1
17-30519.185
2.
Upon information and belief,1 Plaintiff served Mr. Duiett via federal express sent to his
residence in Petal, Mississippi, on February 14, 2008. Mr. Duiett is currently employed as a
truck driver, is not at his residence on a regular basis, and did not become aware of this
attempted service until a later date.
3.
On March 9, 2008 Plaintiff transmitted for filing a Second Amended Complaint.
4.
The additional time was requested from Plaintiff’s counsel for filing responsive pleadings
as to the Original Complaint, Amended Complaint and Second Amended Complaint, anticipating
prompt service of the Second Amended Complaint, so that responsive pleadings could be filed at
one time as to the Complaint and Amended Complaints. The telephone call and email
correspondence making such requests have not been responded to at present. The email
correspondence relative to the request is attached as Exhibit “A”.
5.
Additionally, the responsive pleading deadlines for the co-defendants have not accrued.
6.
Given that the Second Amended Complaint was only filed on March 9, 2008 and given
the deadlines for filing of responsive pleadings by the co-defendants, there will be no delay or
prejudice to the progression of this case; therefore, an extension until March 31, 2008 is
requested.
1
See Return of Service filed by Plaintiff on February 14, 2008.
2
17-30519.186
(“LHH”)(formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Phillip Duiett,
respectfully request that this motion be granted allowing a brief extension of time, until March
31, 2008, in which to file responsive pleadings.
/s/ Nancy Brechtel

BECKY HOLLEN (#31191)
Telephone: (985) 893-2991
Facsimile: (985) 898-0383

Hospital) and Mr. Phillip Dueitt
I hereby certify that I have filed electronically a true copy of the foregoing. All parties
received notice of this filing by operation of the Court’s electronic filing system. Parties may
access this filing through the Court’s CM/ECF system.
Dated: March 10, 2008.
/s/ Nancy Brechtel

NANCY A. BRECHTEL
3
17-30519.187
Page 1 of 1
Rachel Gonzales
From: Rachel Gonzales on behalf of Nancy Brechtel

Sent: Monday, March 10, 2008 2:45 PM
To: 'danielpatrickegan@gmail.com'
Cc: Byron D. Kitchens
Subject: Gates - responsive pleadings deadline
Dan,

Our responsive pleadings are due today, however, I just learned that Plaintiff filed another amended petition yesterday. I left you a
voicemail a few moments ago. Is there any objection to an additional extension of time for our responsive pleading so that we may
file all at once? Right now I am looking at Monday, March 31st. If I don't hear from you within the next hour we will walk through a
Motion for Extension of Time.

Please call me should you have any questions. I can be reached on my cell phone at 504-296-6005.

Many thanks,

Nancy
EXHIBIT "A"
17-30519.188
3/10/2008
SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983

*
Defendants.
ORDER
New Orleans, Louisiana, this ___ day of ______________, 2008.
JUDGE
17-30519.189
17-30519.190
17-30519.191
17-30519.192

SHANE M. GATES, *
Complainant, *
vs. * NO. 07-cv-06983

*
Defendants.
ORDER

New Orleans, Louisiana, this 11th March
___ day of ______________, 2008.
JUDGE
17-30519.193
17-30519.194
17-30519.195
17-30519.196

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
3nd AMENDED COMPLAINT FOR DAMAGES UNDER 42 U.S.C. § 1983, ET SEQ.,

FAILURE TO INTERCEDE AND PREVENT VIOLATION OF CONSTITUTIONAL
RIGHTS, ATTEMPT TO COERCE STATEMENTS, DENIAL OF RIGHT TO COUNSEL
AMENDED STATEMENT OF FACTS AS TO DEFENDANTS’

FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT
VIOLATIONS: FAILURE TO INTERCEDE, DENIAL OF RIGHT TO COUNSEL,
IMPROPER INTERROGATION AND COERCION OF STATEMENTS
Complainant Shane M. Gates re-urges all facts alleged in his original, first, and second
amended complaints and adds to those facts and application of laws the following:
St. Tammany Sheriff’s deputies Gottardi, Miller, and William in concert with other officers
of the St. Tammany Parish Sheriff’s Office—whose names shall be discovered between now and the
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17-30519.197
time of trial—acting under color of law and using the authority which would otherwise lawfully arise
from the constitutional mandates and authority of their public offices did conspire and did deny
complainant Gates his Sixth Amendment Right to Counsel after he was in custody including but not
only for an extended period of time when he was a patient at the Louisiana Heart Hospital.
The named and yet-to-be-named defendants did attempt to obtain admissions from Gates, to
coerce Gates into making statements which could be used against him and did do so while he was in
a injured physical and emotional condition resulting from the excessive force visited upon him by the
officer-defendants themselves. At no time did the defendants or other officers honor his Fifth
Amendment Rights nor did they afford Gates an opportunity to secure and consult with counsel.
Gates also amends his complaint as to give notice to defendants that their failure and the
failure of other yet-to-be-named-defendant officers to intercede on his behalf so as to stop and
otherwise prevent the violation of his constitutional rights makes them liable for damages under §
1983 and claims under Louisiana law.
COUNT X - FAILURE TO INTERCEDE AND PREVENT VIOLATION

OF CONSTITUTIONAL RIGHTS BY OTHER OFFICERS
Complainant incorporates all facts in paragraph nos.17-87 of the original and amended
complaints as they pertain to defendants’ violation of Gates’s Fourth, Eighth, and Fourteenth
Amendment rights.
After the defendant officers handcuffed Gates, the arresting officer beat up Gates by
repeatedly slamming his face into the roadway on I-12 and also hit, kicked, and otherwise used
excessive force against Gates before and while he was in custody. To the extent that Miller and
Williams acted with excessive force against Gates they are also liable for those actions.
-2-
17-30519.198
To the extent that Miller and Williams failed to intercede and prevent Gottardi from violating
Gates’s constitutional rights they are also liable under § 1983. Their failure to carry out their
affirmative duty to prevent such violations pursuant to § 1983 makes them liable for such failure as
established in O’Neill v., Krezeminski, 839 F.2d 9 (2d Cir. 1988).
All officers including not only named defendants were “tacit collaborators” in the acts of
excessive force to the extent that they did not intercede and prevent the violation of Gates’s federal
and state constitutional rights, specifically those rights protecting Gates from the use of excessive
force by any persons acting under the color law.
As a direct and proximate cause of defendant officers including but not only Williams, Miller,
and yet-to-be-named defendants deliberate and intentional failure to intercede on behalf of Gates and
prevent the violation of his constitutional rights as aforedescribed, committed under the color of law
and under their authority as deputies of the St. Tammany Parish Sheriff’s Office, Gates suffered
additional grievous bodily harm and mental anguish and was deprived of his right to be secure in his
person, against, unreasonable seizure of his person and excessive use of force, in violation of the
Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C.
§ 1983, as well as his rights under the Louisiana Constitution and state law.
COUNT XI - IMPROPER INTERROGATION AND

COERCION OF STATEMENTS
complaints as they pertain to defendants’ violation of Gates’s Fifth and Fourteenth Amendment rights.
The Fifth and Fourteenth Amendments prohibit the acts committed by the defendant deputies
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17-30519.199
in that they attempted to and may have obtained statements from Gates by the use of threats,
violence, and compulsion both at the scene of the incident and in concert with defendant Dueitt at and
during Gates’s stay at the Louisiana Heart Hospital.
Although Gates did not knowingly offer any statement—any statement which has been
produced by the Sheriff or District Attorney’s Offices in response to subpoenas—he was subject to
overbearing interrogations, especially in light of his condition and of the fact that a significant portion
of the interrogation was conducted after Gates was seriously injured and was in the
hospital—defendants did violate his constitutional rights as those rights have been protected and
defined in Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992)(en banc).
Defendant nurse Phillip Dueitt did conspire with defendant officers in an attempt to obtain
statements or coerce a confession from Gates while Gates was at Louisiana Heart Hospital, so as to
be liable to Gates for such violations as a non-public official co-conspirator-violator of Gates rights
under 42 U.S.C. § 1893 and ancillary state laws.
As a direct and proximate cause of defendants Gottardi, Williams, Miller, and yet-to-be-
named defendants deliberate and intentional attempts to coerce him into making a statement or giving
a confession tailored to cover-up their other violations of his federal and state constitutional rights—
as these defendants were acting under the color of law and under their authority as deputies of the
St. Tammany Parish Sheriff’s Office—Gates suffered additional mental anguish and was deprived of
his right to be secure in his person, against, unreasonable seizure of his person and excessive use of
force, in violation of the Fifth and Fourteenth Amendment of the Constitution of the United States
and 42 U.S.C. § 1983, as well as his rights under the Louisiana Constitution.
-4-
17-30519.200
COUNT XII - VIOLATION OF SIXTH AMENDMENT

AND DENIAL OF RIGHT TO COUNSEL
complaints as they pertain to defendants violation of Gates’s Sixth and Fourteenth Amendment rights.
The Sixth and Fourteenth Amendments prohibit the continuation of interrogation of a person
in custody, once that person has requested the presence of an attorney. Defendant officers and yet-
to-be-named defendant officers denied Gates that right under the Sixth Amendment and continued
to not only attempt to interrogate him but continued to otherwise threaten him so as to coerce him
to make statements.
As a result of defendants violations of his right to counsel Gates has been prejudiced as to any
statements defendants may attribute to him and Gates shall offer prima facie proof as why
defendants’ denial of Gates’s right of counsel also violates his Sixth Amendment rights as those rights
are enforced under 42 U.S.C. § 1983.
Although Gates did not knowingly offer any statement—any statement which has been
produced in response to subpoenas—he was denied his right to counsel, which is significant especially
in light of his condition and that larger portion of the interrogation was conducted after Gates was
seriously injured and was in hospital—defendants did violate his Sixth Amendment rights as those
rights have been protected and defined in Cinelli v. City of Revere, 820 F.2d 474 (1st Cir. 1987).
As a direct and proximate cause of defendants Gottardi, Williams, Miller, and yet-to-be-
named defendants deliberately and intentionally denied violated Gates’s Sixth and Fourteenth
Amendment rights and 42 U.S.C. § 1983 as well as his rights under the Louisiana Constitution.
-5-
17-30519.201
Co-defendant the St. Tammany Parish Sheriff’s Office is equally liable for these violations of
Gates’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights, because of its failures to properly
train, supervise, and otherwise institute and maintain policies which would prevent the constitutional
violations suffered by Gates in this matter pursuant to Monell and it progeny.
[RE-URGED § 1983 CONSPIRACY CAUSE OF ACTION]
All defendants acted in combination and in concert, including Sheriff Jack Strain whose
“deliberate indifference in not preventing these acts,” combined with the willful acts of his deputies
acting in concert and conspiracy with the District Attorney, thereby allowing the commission of these
unlawful acts of illegally detaining, arresting, extorting, and violating Gates’s various constitutional
rights.
[RE-URGED STATE LAW CLAIMS]
Based on the facts stated above, plaintiff hereby asserts various claims under the Constitution,
specifically Article I, Sections 2, 3, 4, 5, and 25, and laws of the State of Louisiana, La. C.C. arts.
2315, et seq. in pari materia with Title 14 of the Louisiana Revised Statutes, including the acts of
false arrest, false imprisonment, assault, battery and extortion.
Based on the facts stated above, co-defendants did knowingly and intentionally, or in the
alternative negligently, violate Gates’s rights under the Louisiana Constitution, particularly Art. 1 §§2
(due process of law), 3 (right to individual dignity), 5 (right to privacy), 19 (right to judicial review),
20 (right to human treatment), and 22 (access to courts); and under the laws of the State of
Louisiana, including but not limited to LSA-R.S. 14:33, et seq. (battery), LSA-R.S. 14:36, et seq.
-6-
17-30519.202
(assault), LSA-R.S. 14:40, et seq. (intimidating by officers), LSA-R.S. 14:44, et seq. (kidnapping),
LSA-R.S. 14:46 (false imprisonment), LSA-R.S. 14:66 (extortion), LSA-C.C. art. 2315 (liability for
acts causing damages), LSA-C.C. art. 2316 (negligence, imprudence or want of skill), LSA-C.C. art.
2317 (acts of others), LSA-C.C. art. 2320 (acts of servants), and LSA-C.C. art. 2324 (solidary
liability for conspiracy), (abuse of process and negligent misinformation); Malicious prosecution and
prosecutorial misconduct are reserved.
These non-exclusive Louisiana state law deprivations render defendants liable to plaintiff
jointly and severally, or in solido, for full compensatory damages, including general damages, special
damages, cost of this action, and legal interest.
incident, newly charged against Gates—such that they can coexist with any fact-based aspect of any
element of any charge which has been created, made, and now advanced by the defendants Sheriff
and District Attorney.
RE-URGED DAMAGES
Complainant seeks damages against the defendants pursuant to 42 U.S.C. § 1983, 1985, 1986,
for unlawful arrest, excessive force, extortion and other violations of his civil right as more fully set
forth above.
Pursuant to this court’s supplemental jurisdiction, he seeks damages against the defendants
under Louisiana state law for false arrest, battery, extortion, and other illegal acts as more fully set
forth above. He also seeks punitive damages under 42 U.S.C. § 1983, 1985, 1986, and attorneys’
fees under 42 U.S.C. §1888.
-7-
17-30519.203
PRAYER FOR RELIEF
the facts and law;
/s/ Daniel G. Abel
Trial Attorney
403 Vennard Avenue
Lafayette, LA 70501
Telephone: 504.782.0613
Facsimile: 504.273.0247

This 16 March 2008, I have served counsel for all parties with
-8-
17-30519.204
this 3nd Amended Complaint in the manner required by federal and

local rule and have e-filed this pleading with the Clerk of
these courts.
/s/ Daniel G. Abel

Bar No. 8348
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17th March
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27th March
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07-cv-06983

NOW INTO COURT, through undersigned counsel, comes Walter P. Reed, District
Attorney for St. Tammany Parish, State of Louisiana, who respectfully represents:
1.
Since the filing of the first motion for extension of time by these defendants, plaintiff
has filed two additional amended complaints herein.
Page 1
17-30519.237
2.
These defendants, along with other defendants herein, have filed a Joint Motion to
Stay Proceedings, which is currently set for hearing on April 16, 2008.
3.
District Attorney, Walter P. Reed, respectfully requests an extension of time until ten
(10) days after this Honorable Court has ruled on the Joint Motion to Stay Proceedings in
which to file responsive pleadings herein, if necessary following the ruling of this Court.
WHEREFORE, District Attorney, Walter P. Reed, respectfully requests that this
motion be granted allowing an additional period of ten (10 ) days after the Court has ruled
on the Joint Motion To Stay Proceedings in which to file the responsive pleadings, if such
responsive pleadings are necessary following the Court’s ruling on that motion.
Telephone: (225) 766-0023
Facsimile: (225) 766-7341

Page 2
17-30519.238
has been filed electronically. Notice of this filing will be sent to all parties by operation of
the Court’s electronic filing system. Parties may access this filing through the Court’s
system.
Baton Rouge, Louisiana this 27th day of March, 2008.
s/Kathryn Landry
KATHRYN LANDRY
Page 3
17-30519.239

07-cv-06983

ORDER
additional period until ten (10) days after this Court has ruled on the Joint Motion to Stay
Proceedings, set for hearing on April 16, 2008, in which to file responsive pleadings, if
necessary due to the Court’s rulings.
New Orleans, Louisiana, this _______ day of March, 2008.
_______________________________________
JUDGE
17-30519.240

28th March
17-30519.241

07-cv-06983

ORDER
additional period until ten (10) days after this Court has ruled on the Joint Motion to Stay
Proceedings, set for hearing on April 16, 2008, in which to file responsive pleadings, if
necessary due to the Court’s rulings.
28th day of March, 2008.

_______________________________________
JUDGE
17-30519.242

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

SHERIFF’S OFFICE; D.A. WALTER P. REED, in * JUDGE
his official capacity; ST. TAMMANY DISTRICT STANWOOD R. DUVAL, JR.
ATTORNEY’S OFFICE; ATTORNEY CHARLES * SECTION “K”
MILLER; SHERIFF DEPUTY ROGER * MAGISTRATE JUDGE
GOTTARDI; SHERIFF DEPUTY BRIAN JOSEPH C. WILKINSON, JR.
WILLIAMS; JOHN DOE NOS. 1-5; LOUISIANA * DIVISION: 2
DUEITT; ST. PAUL INSURANCE COMPANY; *
*
Defendants.
LOUISIANA MEDICAL CENTER AND HEART HOSPITAL L.L.C. AND PHILIP

DUEITT’S RULE 12(e) MOTION FOR MORE DEFINITE STATEMENT
Defendants, Louisiana Medical Center and Heart Hospital, L.L.C. (formerly known as
Louisiana Heart Hospital, L.L.C. and hereinafter referred to as “LHH”) and Mr. Philip Dueitt,
submit this Motion for More Definite Statement in response to Plaintiff’s original Complaint,
Amended Complaint, Second Amended Complaint and Third Amended Complaint.
17-30519.243
As described further in the Defendants’ Memorandum in Support of this Motion,
Plaintiff’s Complaints are so vague that LHH and Mr. Dueitt cannot determine which claims and
causes of action relate to them and be afforded fair notice, much less an opportunity to
adequately respond. Therefore, Plaintiff should be ordered to amend his petition to clarify which
of his numerous counts, claims and causes of action relate specifically to LHH and Mr. Dueitt.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

Hospital) and Mr. Philip Dueitt
I HEREBY CERTIFY that I have on this 31st day of March, 2008, filed electronically a
true copy of the foregoing. All parties received notice of this filing by operation of the Court’s
electronic filing system. Parties may access this filing through the Court’s CM/ECF system.
/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.244

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
MEMORANDUM IN SUPPORT OF MOTION FOR MORE

DEFINITE STATEMENT PURSUANT TO RULE 12(e)
Defendants, Louisiana Medical Center and Heart Hospital, L.L.C. (“LHH”) (formerly
known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt, submit this Memorandum in
Support of their Motion for a More Definite Statement pursuant to Rule 12(e). Plaintiff’s
Complaints are so vague that LHH and Mr. Dueitt cannot determine which claims and causes of
action relate to them and be afforded fair notice and an adequate opportunity to respond.
17-30519.245
Therefore, Plaintiff should be ordered to amend his petition to clarify which of his numerous
counts, claims and causes of action relate to LHH and Mr. Dueitt.
I. STATEMENT OF THE CASE
On November 16, 2006, St. Tammany Parish Sheriff’s Deputies brought the Plaintiff to
the emergency room of the Louisiana Medical Center and Heart Hospital, L.L.C.1 He was
admitted for treatment of injuries allegedly sustained during the course of his arrest, but prior to
his admission to LHH. Philip Dueitt, a nurse employed by LHH, assisted in the medical
treatment of Plaintiff.
Plaintiff filed his original Complaint on October 17, 2007, an Amended Complaint on
January 22, 2008, a Second Amended Complaint on March 9, 2007, and a Third Amended
Complaint on March 16, 2008 (all jointly referred to as the “Complaints”).
Plaintiff raises a myriad of allegations against no less than eleven (11) defendants,
including: civil rights violations, violations of the federal and Louisiana state constitutions,
excessive force, assault, battery, kidnapping and false imprisonment.
Plaintiff’s Complaints are so inartfully drafted that it is virtually impossible for LHH and
Mr. Dueitt to determine which of the plethora of claims relate to these individual defendants. By
intermittently referring to “Defendants” or “all Defendants,” without specifically designating an
individual defendant, Plaintiff fails to provide each Defendant with fair notice of the facts and
allegations applicable to it.
LHH and Mr. Dueitt therefore request that this Court order the Plaintiff to amend his
Complaints to clarify as to each individual defendant: (1) which allegations pertain to that
defendant; and (2) the causes of action asserted against that defendant.
1
Plaintiff’s Complaint at p. 2; Plaintiff’s Amended Complaint, at ¶ 32.
2
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II. APPLICABLE LAW AND ARGUMENT
Plaintiffs’ Complaints are vague, improperly co-mingled, and wholly fail to provide LHH
and Mr. Dueitt with fair notice of the facts of this case and the causes of action being asserted
against them as individual Defendants.
Federal Rule of Civil Procedure 12(e) allows a party, before filing a responsive pleading,
to move for a more definite statement when the Complaint is so vague or ambiguous that a party
cannot reasonably form a responsive pleading. Further, Rule 8 of the Federal Rules of Civil
Procedure requires that a complaint contain "a short and plain statement of the claim showing
that the pleader is entitled to relief," in order to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests."2
Throughout Plaintiff’s Complaints in the instant matter, however, he intermingles causes
of action, allegations as to certain defendants, and claims as to “all defendants” in such a way
that LHH and Mr. Dueitt cannot fairly determine which claims relate to them; nor can these
Defendants determine which allegations relate to the individual claims..
Specifically, Plaintiff’s Complaints are confusing and misleading in the following
respects:
1. Plaintiff’s Complaint filed on October 17, 2007:
a. Paragraph 12 and Paragraph 13 (pages 8-9) allege assault, battery,

violation of HIPAA, and violation of “other federal regulations.” Plaintiff
fails to specify what federal regulations he is referring to.
b. In the section entitled “Count I - §1983 Causes of Action,” Plaintiff

discusses acts by the deputy defendants in this matter (Paragraph 89, page
18), but then alleges that “these defendants” acted in concert to commit
unlawful and unconstitutional acts against the Plaintiff. It is not clear
whether Plaintiff may be referring to LHH and Mr. Dueitt.
c. Paragraphs 91 and 93 (page 19), allege that the conduct of “all

2
Bell Alantic v. Twombly, 127 S.Ct. 1955, 1974 (2007).
3
17-30519.247
defendants” was subject to 42 U.S.C. §1983, 1985, 1986, and 1988.
d. Likewise, Paragraphs 92 and 95 (page 19), allege that “defendants”

worked a denial of Gates federal Constitutional rights and privileges.
e. Under the heading “Count III - §1983 Conspiracy Cause of Action,” in

Paragraphs 102-103, Plaintiff claims that “all defendants” acted in
combination and in concert to illegally detain, arrest and extort, making
them liable under 42 U.S.C. §§ 1983 and 1988.
f. The Section entitled “Count IV - §1983 Liability of Sheriff, Deputies and

His Office,” apparently relates to law enforcement defendants. But in the
same section (paragraph 106) Plaintiff states that “the defendants” were
acting under color of law. Further, Paragraphs 113 and 117 state that
“these defendants” are liable to the Plaintiff pursuant to 42 U.S.C. §§1983,
1985, 1986 and 1988.
g. The Section entitled “Count VIII – State Law Claims” states that “co-
defendants” (Paragraph 147) violated Gates’ rights under the Louisiana
Constitution and state law. Further, complainant states “defendants” are
liable for damages (Paragraph 148). Throughout Count VIII, the Plaintiff
fails to specify which defendant allegedly violated which right, as there
are a myriad of state constitutional and statutory references, including
“plaintiff hereby asserts various claims,” and fails to specify which
allegations throughout the Complaint apply to the referenced state
constitutional and statutory provisions, as the purported statutory basis
ranges from extortion to due process.
2. Plaintiff’s First Amended Complaint filed on January 22, 2008:
a. In the section entitled “Count I - §1983 Causes of Action,” Plaintiff

discusses acts by the deputy defendants in this matter (see Paragraph 89,
page 19), but then alleges that “these defendants” acted in concert to
commit unlawful and unconstitutional acts against the plaintiff. It is not
clear whether the Plaintiff intends to include LHH and Mr. Dueitt in this
allegation.
b. Paragraphs 91 and 94 (page 19), allege that the conduct of “all

defendants” was subject to 42 U.S.C. §1983, 1985, 1986, and 1988.
c. Paragraphs 92 and 95, Page 19, allege that “defendants” worked a denial
of Plaintiff’s federal constitutional rights and privileges.
d. Under the heading “Count III - §1983 Conspiracy Cause of Action,” in

Paragraphs 102-103 (page 22), Plaintiff claims that “all defendants” acted
in combination and in concert to illegally detain, arrest and extort, making
4
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them liable under 42 U.S.C. §§ 1983 and 1988. However, the remainder
of the section focuses on allegations as to Sheriff Jack Strain and the
District Attorney. Again, it is unclear whether Mr. Dueitt and LHH are
intended to be included in this section.
e. The Section entitled “Count IV - §1983 Liability of Sheriff, Deputies and

His Office,” relates to law enforcement defendants. But in the same
section (paragraph 106, page 22), Plaintiff states that “the defendants”
were acting under color of law. Further, Paragraphs 113 (page 23) and
117 (page 25) state that “these defendants” are liable to plaintiff pursuant
to 42 U.S.C. §§1983, 1985, 1986 and 1988.
f. The Section entitled “Count VIII – State Law Claims” states that “co-
defendants” (Paragraph 147) violated Gates’ rights under the Louisiana
Constitution and state law. Further, complainant states “defendants” are
liable for damages (Paragraph 148). Throughout Count VIII, the Plaintiff
fails to specify which defendant allegedly violated which right, as there
are a myriad of state constitutional and statutory references, including
“plaintiff hereby asserts various claims,” and fails to specify which
allegations throughout the Complaint apply to the referenced state
constitutional and statutory provisions, as the purported statutory basis
ranges from extortion to due process.
g. The Section entitled “Count VII: Violation of 45 C.F.R. HIPAA” is

amended to affirmatively aver that such count does not aver an
independent cause of action. Then, Plaintiff proceeds to set forth twenty-
three paragraphs, including referencing an alleged violation of HIPAA
within paragraph 141. Given the affirmative averment that “Count VII:
Violation of 45 C.F.R. HIPAA” does not aver an independent cause of
action, the remaining presence of the count, its averments and purpose are
ambiguous, confusing, and misleading. The “Count” should be removed
by proper amendment or dismissed.
3. Plaintiff’s Second Amended Complaint filed on March 9, 2008:
a. Under a Section entitled “Count IX – Violations of 18 U.S.C. 1951

(Hobbs Act) Injunctive Relief for Bad-Faith Prosecution,” (see page 9)
Plaintiff makes allegations that do not relate to LHH and Mr. Dueitt, but
then loosely refers to “Defendants” multiple times. Plaintiff should amend
his Complaint to specify the defendants to which these allegations relate.
b. Under a Section entitled “Re-Urged § 1983 Conspiracy Cause of Action”

(page 10), Plaintiff alleges that “all defendants” acted in combination and
in concert to illegally detain, arrest and extort, making them liable under
42 U.S.C. §§ 1983 and 1988.
5
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c. Under a Section entitled “Re-Urged State Law Claims” (pages 10-11),

Plaintiff alleges that that “co-defendants” violated Gates rights under the
Louisiana Constitution and state law. Further he alleges “defendants” are
liable for damages. Again, Plaintiff fails to specify which defendants.
Throughout this section, the Plaintiff fails to specify which defendant
allegedly violated which right, as there are a myriad of state constitutional
and statutory references, including “plaintiff hereby asserts various
claims,” and fails to specify which allegations throughout the Complaint
apply to the referenced state constitutional and statutory provisions, as the
purported statutory basis ranges from extortion to due process.
4. Plaintiff’s Third Amended Complaint, filed on March 17, 2008:
a. Plaintiff’s first section is entitled in part “Failure to Intercede, Denial of

Right to Counsel, Improper Interrogation and Coercion of Statements”
(pages 1-2). It appears that Plaintiff intends for this section to relate to the
St. Tammany Parish Sheriff’s Office and its deputies. The same section,
however, contains several references to “defendants” in general,3 making
it unclear whether LHH and Mr. Dueitt are included in these allegations.
b. Likewise, under a section entitled “Count XII – Violations of Sixth

Amendment and Denial of Right to Counsel” (pages 5-6), Plaintiff first
contends that defendant officers denied his right to counsel, but then goes
on to make general allegations as to “defendants.”4 Again, it is unclear
whether any of these claims are levied at LHH and Mr. Dueitt.
c. Under a Section entitled “Re-Urged § 1983 Conspiracy Cause of Action”

(page 6), Plaintiff alleges that “all defendants” acted in combination and in
concert to illegally detain, arrest and extort, making them liable under 42
U.S.C. §§ 1983 and 1988.
d. Under a Section entitled “Re-Urged State Law Claims” (page 6), Plaintiff
alleges that that “co-defendants” violated his rights under the Louisiana
Constitution and state law. Further he alleges “defendants” are liable for
damages. Again, Plaintiff fails to specify which defendants. Throughout
this section, the Plaintiff fails to specify which defendant allegedly
violated which right, as there are a myriad of state constitutional and
statutory references, including “plaintiff hereby asserts various claims,”
and fails to specify which allegations throughout the Complaint apply to
the referenced state constitutional and statutory provisions, as the
3
Plaintiff states, “the named and yet-to-be-named defendants did attempt to obtain admissions from Gates…”; “At
no time did the defendants or other officers honor his Fifth Amendment rights…”; “Gates also amends his complaint
to give notice to defendants that their failure … to intercede … to prevent the violation of his constitutional rights
makes them liable…”.
4
Plaintiff states, “As a result of defendants violations of his right to counsel… Gates shall offer prima facie proof as
why defendants’ denial of Gates’ right of counsel also violates his Sixth Amendments rights…”; “…defendants did
violate his Sixth Amendment rights…”.
6
17-30519.250
purported statutory basis ranges from extortion to due process.
As shown above, the Plaintiff’s multiple complaints are misleading, confusing, and
wholly fail to provide LHH and Mr. Dueitt with fair notice of the facts and allegations applicable
to them. Considering the foregoing, LHH and Mr. Dueitt respectfully request that this Court
order the Plaintiff to amend his Complaints to specify which allegations, counts and causes of
action relate to LHH and Mr. Dueitt specifically.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

Hospital, L.L.C.) and Mr. Philip Dueitt
/s/ Nancy Brechtel

NANCY BRECHTEL
7
17-30519.251

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
NOTICE OF HEARING
PLEASE TAKE NOTICE that the Louisiana Medical Center and Heart Hospital, L.L.C.
(f/k/a Louisiana Heart Hospital L.L.C.) and Mr. Philip Dueitt, have filed a Motion for More
Definite Statement under Rule 12(e).
17-30519.252
PLEASE TAKE FURTHER NOTICE that the undersigned will bring the above
referenced Motion for hearing on April 16, 2008 at 9:30 AM. A copy of the Motion and
Memorandum in Support thereof are included with this Notice in accordance with Local Rule
7.2.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.253

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
LOUISIANA MEDICAL CENTER AND HEART HOSPITAL L.L.C. AND PHILIP

DUEITT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINTS UNDER RULE 12(b)
Defendants, Louisiana Medical Center and Heart Hospital, L.L.C. (formerly known as
Louisiana Heart Hospital, L.L.C., and hereinafter referred to as “LHH”) and Mr. Philip Dueitt
(jointly referred to hereinafter as “Defendants”), move this Court to dismiss all claims asserted
against them in Plaintiff’s original Complaint, Amended Complaint, Second Amended
1
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Complaint and Third Amended Complaint on the following grounds:
1. Plaintiff’s claims as to Mr. Dueitt should be dismissed pursuant to Rule 12(b)(5)
due to insufficient service of process arising out of failure to comply with the
procedural requirements of the Louisiana Long Arm Statute.
2. Pursuant to Rule 12(b)(1), LHH and Mr. Dueitt request that this Court refrain
from exercising pendent jurisdiction over the Plaintiff’s claims against these
Defendants because such claims arise out of a separate set of facts and
occurrence.
3. Pursuant to Rule 12(b)(1) and/or Rule 12(b)(6), Plaintiff’s claims against LHH
and Mr. Dueitt must be dismissed as premature because they arise out of the
medical treatment of Mr. Dueitt. Under the Louisiana Medical Malpractice Act,
Plaintiff is required to submit such claims to a Medical Review Panel
determination before suit may be filed. Such Complaint is actually currently
pending before the Louisiana Patients Compensation Fund.
4. Plaintiff’s claims should be dismissed under Rule 12(b)(6) for failure to state a
claim because LHH is not a “person” against which § 1983 and constitutional
claims may be made.
5. Plaintiff’s claims should be dismissed under Rule 12(b)(6) for failure to state a
claim insofar as there is no vicarious liability of LHH as to claims brought
pursuant to § 1983 and for constitutional violations.
6. Plaintiff’s claims should be dismissed under Rule 12(b)(6) because LHH and Mr.
Dueitt are not governmental entities, governmental employee or state actors. The
2
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pleading requirements have not been met for such allegations to state a valid
claim against LHH and Mr. Dueitt in regards to any § 1983 claims and for
constitutional violations.
7. Plaintiff’s state law claims should be dismissed under Rule 12(b)(6) for failure to
state a claim. Plaintiff has failed to make sufficient allegations to support the
state law causes of action he vaguely asserts.
Considering the foregoing, the Louisiana Medical Center and Heart Hospital, L.L.C. and
Mr. Philip Dueitt request that this Court dismiss Plaintiff’s claims with prejudice, and provide all
other relief to which these Defendants may be entitled.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

3
17-30519.256
/s/ Nancy Brechtel

NANCY BRECHTEL
4
17-30519.257

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
MEMORANDUM IN SUPPORT OF LOUISIANA MEDICAL CENTER AND

HEART HOSPITAL L.L.C. AND PHILIP DUEITT’S MOTION TO DISMISS
PLAINTIFF’S COMPLAINTS UNDER RULE 12(b)
Louisiana Medical Center and Heart Hospital, L.L.C. (formerly known as Louisiana
Heart Hospital, L.L.C. and hereinafter referred to as “LHH”) and Mr. Philip Dueitt (hereinafter
jointly referred to as “Defendants”), submit this memorandum in support of their motion to
dismiss all claims asserted against them in this matter pursuant to Rule 12(b).
17-30519.258
At the outset, service of Plaintiff’s Complaints has not been properly made on Mr. Dueitt.
Further, this court lacks jurisdiction over the Plaintiff’s claims as to LHH and Mr. Dueitt, and
such claims are premature, as they arise out of the Plaintiff’s medical treatment and are thus
subject to the panel review requirements of the Louisiana Medical Malpractice Act.
Even if there were proper service and jurisdiction in this matter, Plaintiff’s Complaints
should be dismissed because the Complaints are premature and Plaintiff has failed to state a
section 1983 claim and for violation of his constitutional rights. Moreover, Plaintiff has failed to
provide any support whatsoever for numerous state law claims. These claims as well should be
dismissed.
STATEMENT OF THE CASE
On November 16, 2006, the Plaintiff was brought into the emergency room of the
Louisiana Medical Center and Heart Hospital, L.L.C., in the custody of St. Tammany Parish
Sheriff’s Deputies.1 He was admitted for treatment of injuries allegedly sustained during the
course of his arrest, but prior to his admission to LHH. Philip Dueitt, a nurse employed by LHH,
assisted in the medical treatment of Plaintiff.
Ultimately, the attending physician determined that, due to the nature of his injury, Mr.
Gates should be evaluated by a plastic surgeon to ensure the best possible outcome. Mr. Gates
was transferred to another hospital the morning of November 17, 2006.
Plaintiff filed his original Complaint on October 17, 2007, an Amended Complaint on
January 22, 2008, a Second Amended Complaint on March 9, 2008, and a Third Amended
Complaint on March 17, 2008 (jointly referred to as the “Complaints”). He raises a myriad of
allegations against numerous defendants, including: civil rights violations, excessive force,
assault, battery, kidnapping and false imprisonment.

1
Plaintiff’s Complaint at p. 2; Plaintiff’s Amended Complaint, at ¶ 32.
2
17-30519.259
As described further in these Defendants’ Rule 12(e) Motion for More Definite
Statement, Plaintiff’s Complaints are inadequately drafted; it is virtually impossible to determine
which of the numerous allegations relate to a particular defendant. As it pertains to LHH and
Mr. Dueitt, however, Plaintiff’s Complaints boil down solely to alleged acts or omissions that
occurred during the course of his medical treatment while at Louisiana Heart Hospital on the
evening of November 16, 2006.
Plaintiff alleges the following as to LHH and Mr. Dueitt:
1. Plaintiff claims he did not consent to blood and urine tests that were taken.2
2. Plaintiff claims his privacy rights were violated during his treatment at LHH,
including violations of state and federal privacy laws, when results of x-rays and
“almost 300 CT scans” taken of his head and face were disclosed in the presence
of deputies.3
3. At the same time, Plaintiff claims that LHH refused to provide treatment to him.4
4. Plaintiff makes vague allegations of assault and battery that allegedly occurred
during the course of his medical treatment.5
5. Although difficult to decipher from the Plaintiff’s Complaint, it appears that
Plaintiff is also attempting to bring claims against LHH and Mr. Dueitt for
violations of a variety of other federal and state laws including 42 U.S.C. §§1983,
1985, 1987 and 1988,6 Louisiana Constitution Article I, §§2, 3, 5, 19, 20, 22,7 as
well as claims of kidnapping, false imprisonment, extortion, and intimidation by
2
Plaintiff’s Amended Complaint at ¶131-139.
3
Plaintiff’s Amended Complaint at ¶141-142.
4
Plaintiff’s Amended Complaint at ¶ 125.
5
Plaintiff’s Amended Complaint at ¶127.
6
7
3
17-30519.260
officers.
At the outset, Plaintiff’s Complaints as to LHH and Mr. Dueitt are premature and should
be dismissed because they arise out of Plaintiff’s admission to and medical treatment in the
Louisiana Heart Hospital emergency room. The claims are subject to the requirements of
Louisiana’s Medical Malpractice Act.
Further, the Plaintiff’s claims against LHH and Mr. Dueitt relate to facts and an
occurrence entirely separate from the Plaintiff’s criminal arrest and prosecution. Accordingly,
this Court should decline to exercise pendent jurisdiction.
Even if this Court were to exercise jurisdiction over this matter, however, Plaintiff’s
claims should be dismissed in their entirety pursuant to Rule 12(b)(6) for failure to state a claim.
LAW AND ARGUMENT
I. Plaintiff’s claims as to Mr. Dueitt should be dismissed due to insufficient

service of process
Under Federal Rule of Civil Procedure 4(e), service of summons may be made upon an
individual pursuant to the law of the state in which the service is affected. According to the
return of service filed by Plaintiff on February 14, 2008, Mr. Dueitt was served with summons
by Federal Express pursuant to Louisiana’s Long Arm Statute.
Louisiana Revised Statute 13:3204, provides that service may occur via a commercial
courier if that courier obtains a signed receipt from the addressee upon completion of delivery.
Plaintiff’s return of service does not indicate whether such a signed receipt was obtained. If
Plaintiff is unable to document the delivery accordingly, service of the Plaintiff’s summons has
not been made pursuant to Louisiana law. Mr. Dueitt thus requests that, pursuant to Rule
12(b)(5) this Court dismiss Plaintiff’s claims against him due to insufficient service of process.
4
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II. This Court lacks jurisdiction over the Plaintiff’s claims against LHH and Mr.
Dueitt because such claims are premature
In accordance with Federal Rule of Civil Procedure 12(b)(1), LHH and Mr. Dueitt also
request that this Court dismiss the Plaintiff’s claims against them because it lacks jurisdiction at
this time. Rule 12(b)(1) motions come in two forms: (1) facial attacks and (2) factual attacks.8
A facial attack consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence, and it
challenges jurisdiction based solely on the pleadings.9 When ruling on a facial attack, the court
must presume that the factual allegations in the complaint are true and determine whether they
establish subject matter jurisdiction.10
A facial review of the Plaintiff’s Complaints in this matter evidences that this Court lacks
jurisdiction over the allegations against LHH and Mr. Dueitt. First, the Plaintiff failed to comply
with the Medical Review Panel requirements of the Louisiana Medical Malpractice Act before
filing suit. Second, from the Complaints, it is apparent that all allegations as to LHH and Mr.
Dueitt arise out of his medical treatment while admitted to the emergency room. This Court
should therefore refrain from exercising pendent jurisdiction over the claims as to LHH and Mr.
Dueitt as they arise out of facts wholly separate from the Plaintiff’s criminal woes.
A. Plaintiff’s claims are premature as they are subject to the panel

review requirements of the Louisiana Medical Malpractice Act.
The Plaintiff’s claims related to LHH and Mr. Dueitt arise solely out of his medical
treatment at the Hospital. Accordingly, Plaintiff’s claims are premature and must be dismissed
pursuant to Rule 12(b)(1) and Rule 12(b)(6).
Under the Louisiana Medical Malpractice Act, no medical malpractice action may be
filed in any court until the procedure for review of that complaint by a medical malpractice panel
8
See U.S. v. Ortega, 644 F.2d 512, 513 (5th Cir.1981).
9
Id.
10
Id.
5
17-30519.262
has been completed.11 When a medical malpractice plaintiff files suit prior to review by a
medical review panel, the suit is premature.12 Courts have routinely dismissed medical
malpractice claims without prejudice when they were filed in federal court before a resolution of
the claims by a Louisiana Medical Review Panel.13
Thus, in Keating v. North Oaks Medical Center14 this court found no clear error of law in
the decision to dismiss Plaintiff’s claim following determination that the cause of action arose
out of the procurement of the plaintiff’s blood “which is within the ambit of the medical
malpractice statute and therefore requires the review of a medical malpractice panel before the
Court has jurisdiction.” The Plaintiff claimed that an HIV test was performed on a sample of his
blood without his consent, and brought claims for breach of privacy, breach of contract, and
medical malpractice. On a Motion to Reconsider, this Court upheld its prior decision to dismiss
the Plaintiff’s claims.
Likewise, Plaintiff’s claims as to LHH and Mr. Dueitt clearly fall within the purview of
medical malpractice as defined in Louisiana Revised Statute 40:1299.41 (A)(8), which provides:
“Malpractice” means any unintentional tort or any breach of contract based on

health care or professional services rendered, or which should have been
rendered, by a health care provider, to a patient, including failure to render
services timely and the handling of a patient, including loading and unloading of a
patient, and also includes all legal responsibility of a health care provider arising
from acts or omissions during the procurement of blood or blood components, in
the training or supervision of health care providers, or from defects in blood,
tissue, transplants, drugs and medicines, or from defects in or failures of
prosthetic devices implanted in or used on or in the person of a patient.
Additionally, Louisiana Revised Statute 40:1299.41(A)(9), provides that “health care”
11
LA. R.S. 40:1299.47
12
See Brister v. Southwest Hospital Association, 624 So.2d 970, 971 (La.App. 3 Cir., 1993).
13
See Vaughn v. Hospital Service District, 2002 WL 126649 (E.D. La.); Alsay v. East Jefferson General Hospital,
1998 WL 661479 (E.D. La.); Graham v. Freeport Sulphur Co. 962 F.Supp.82 (E.D. La. 1997); Richardson v.
Advanced Cardiovascular Systems, Inc., 865 F.Supp.1220 (E.D. La. 1994).
14
2007 WL 2155783 (E.D. La. 2007).
6
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refers to any act, or treatment performed or furnished, or which should have been performed or
furnished, by any health care provider for, to, or on behalf of a patient during the patient's
medical care, treatment or confinement.15
Medical malpractice includes “…all legal responsibility of a health care provider arising
from acts or omissions during the procurement of blood or blood components.”16 Any conduct
by a health care provider complained of by a patient is properly within the scope of the MMA if
such conduct reasonably comes within the definitions therein, even though there are alternative
theories of liability.17
While Plaintiff’s allegations include various causes of action, each is related to his
admission to LHH for medical treatment, including the alleged testing of his blood and urine
during treatment without consent thereto. The provisions of La. R.S. 40:1299.47 et seq. are
therefore applicable to Plaintiff’s complaints as to LHH and Mr. Dueitt.
Notably, Mr. Gates currently has pending a medical malpractice complaint against LHH
and Mr. Dueitt, which makes virtually identical allegations to those asserted herein.18 Plaintiff is
now seeking to circumvent the medical review process by filing the instant complaint.
Accordingly, because the District Court has no jurisdiction over this matter until the
medical malpractice panel proceeding has been completed, Plaintiff’s complaints as to LHH and
Mr. Dueitt should be dismissed by this Court as premature.
15
In determining whether certain conduct by a qualified health care provider constitutes malpractice under the
MMA, the factors considered include whether the particular wrong is ‘treatment related’ or caused by a dereliction
of professional skill, whether the pertinent act or omission involved assessment of the patient’s condition; whether
an incident occurred in the context of a physician-patient relationship or was within the scope of activities which a
hospital is licensed to perform; and whether the injury would have occurred if the patient had not sought treatment.
Coleman v. Deno, 813 So. 2d 303, 315-16 (La. 1/25/02).
16
La. R.S. 40:1299.41(A)(9).
17
Bolden v. Dunaway, 97-1425 (La. App. 1 Cir. 12/28/98), 727 So.2d 597, 600, writ denied, 1999-0275 (La.
3/26/99), 739 So.2d 801.
18
Medical malpractice complaint attached as Exhibit “A;” February 27, 2008 correspondence from Plaintiff’s
counsel, Mr. Daniel Abel, to counsel for Defendants, Ms. Nancy Brechtel, confirming legal representation in the
instant matter and in the state medical malpractice complaint, attached as Exhibit “B.”
7
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B. This Court should decline to exercise pendent jurisdiction over

Plaintiff’s complaints against LHH and Mr. Dueitt
Under the doctrine of “pendent jurisdiction,” a federal court has the constitutional power
to hear a state-law claim if it is closely related to another federal claim.19 However, it is clear
that a district court has wide discretion to refuse to hear a pendent state law claim.20
At the outset, Plaintiff has already filed and has pending a medical malpractice complaint
with the Louisiana Division of Administration, Patient’s Compensation Fund. Thus, there is no
need for this Court to exercise jurisdiction over the Plaintiff’s Complaints as to LHH and Mr.
Dueitt. Moreover, the allegations of Plaintiff’s Complaints as to LHH and Mr. Dueitt are
separate and apart from the claims made as to the remaining defendants. The majority of
allegations in Plaintiff’s Complaints focus on his arrest and subsequent criminal prosecution. In
contrast, Plaintiff’s allegations as to LHH and Mr. Dueitt arise solely out of his medical
treatment while admitted to LHH’s emergency room.
In fact, there is a virtual smorgasbord of claims and causes of action asserted by the
Plaintiff in this matter – the vast majority of which have nothing to do with LHH and Mr. Dueitt.
To require these Defendants to unnecessarily defend themselves in the instant litigation not only
allows the Plaintiff to double dip by raising the same allegations in two separate venues, but also
places LHH and Mr. Dueitt at an extreme disadvantage in defending against a vast array of
allegations that are unrelated to them.
Considering this, the Court should decline to exercise pendent jurisdiction over Plaintiff’s
claims as to LHH and Mr. Dueitt and dismiss these defendants.
19
Robertson, M.D. v. The Neuromedical Center, 161 F.3d 292, 296 (5th Cir. 1998) citing United Mine Workers of
America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
20
See 28 U.S.C. § 1367(c)(3); United States v. Capeletti Bros., Inc., 621 F.2d 1309, 1317-18 (5th Cir.1980).
8
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III. Further, Plaintiff Fails to State a Claim, Meriting Dismissal Under Rule
12(b)(6)
Even if there were proper service and jurisdiction in this matter, Plaintiff’s Complaints
should be dismissed because he has failed to state a claim.
A motion under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of
claims stated in the complaint and must be evaluated solely on the basis of the pleadings.21 On a
Rule 12(b)(6) motion, the court must accept as true the plaintiff’s allegations, must resolve any
doubt regarding the sufficiency of the plaintiff’s claims in his favor, and may not dismiss the
complaint for failure to state a claim unless it appears beyond doubt the plaintiff cannot prove
any set of facts in support of his claims which would entitle him to relief,22 or if an affirmative
defense or other bar to relief appears on the face of the complaint.23 The court will not accept
conclusory allegations in the complaint as true.24
A. Plaintiff’s allegations are insufficient to support his state and federal

constitutional and civil rights causes of action.
To state a cause of action under section 1983, a party must allege that the person who
deprived him of a federal right was acting under color of law.25 For a private citizen to be held
liable under section 1983, the plaintiff must allege that the citizen conspired with or acted in
concert with state actors.26
The Fifth Circuit has held that a non-state actor may be liable for constitutional violations
21
Jackson v. Procunier, 789 F.2d 307 (5th Cir. 1986).
22
Jefferson v. Lead Indus. Ass’n. Inc., 106 F.3d 1245, 1250 (5th Cir. 1997); Boudeloche v. Grow Chemical Coatings
Corp., 728 F.2d 759 (5th Cir. 1984); Fernandez-Montes v. Allied Pilots Ass’n., 987 F.2d 278, 284 (5th Cir. 1984).
23
Garrett v. Commonwealth Mortg. Corp. of America, 938 F.2d 591, 594 (5th Cir. 1991).
24
Kaiser v. Aluminum and Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982),
cert denied, 459 U.S. 1105 (1983).
25
Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004).
26
Priester, 354 F.3d at 420, citing Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989).
9
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under 1983 if the actor was a willful participant in joint activity with the state or its agents.27
“The plaintiff must allege: (1) an agreement between the private and public defendants to
commit an illegal act, and (2) a deprivation of constitutional rights.”28 Allegations that are
merely conclusory, without reference to specific facts, will not suffice.29
For example, in Priester v. Lowndes County, the court found failure to state a claim under
Rule 12(b)(6) where the complaint alleged that state actors either ignored or “encouraged and/or
allowed” the offending behavior by a private actor. The court noted that the complaint did not
allege an agreement between the private and state actors to commit an illegal act, nor did it allege
specific facts to show such an agreement.
Likewise, in the instant matter, Plaintiff alleges conspiracy in general, but (1) fails to
allege an agreement between the private and state actors to commit an illegal act; and, (2) fails to
allege specific facts to show such an agreement.
Plaintiff thus fails to adequately state his state and federal constitutional and civil rights
claims as to LHH and Philip Dueitt, meriting dismissal of all such allegations against LHH and
Mr. Dueitt.
B. Alternatively, Plaintiff’s constitutional and civil rights claims against

LHH fail as the institution is not a “person” for purposes of such a
claim
Section 1983 provides a private civil cause of action for federal constitutional violations
by persons acting under color of state law.30 The purpose of the statute is to deter state actors
from using their badge of authority to deprive individuals of their federally guaranteed rights,
27
Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994).
28
Priester, 354 F.3d at 420.
29
Id. (emphasis added).
30
See Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973).
10
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and to provide relief to victims.31 Hence, in order to state a cause of action under section 1983, a
plaintiff must allege both that: (1) the defendant deprived him or her of a federal right, and (2)
did so under color of state law.32
As stated on numerous occasions, no cause of action for section 1983 claims may be
maintained as to inanimate objects such as buildings, facilities and grounds; the applicable case
law clearly holds that inanimate objects, such as buildings, facilities, and grounds, are not
“persons” and do not act under color of state law. For example, in Allison v. California Adult
Auth.,33 the Ninth Circuit found that the California Adult Authority and San Quentin Prison were
not “person[s]” subject to suit under 42 U.S.C. § 1983. Likewise, in Preval v. Reno,34 the court
held that the Piedmont Regional Jail was not a ‘person,’ and therefore not amenable to suit under
42 U.S.C. § 1983.35
Likewise, LHH – a hospital - simply is not a person amenable to suit as required for the
state and federal constitutional and civil rights claims asserted by the Plaintiff. Thus Plaintiff’s
claims against LHH should be dismissed.
C. Nor can LHH be held liable for Plaintiff’s constitutional and civil
rights claims under a theory of vicarious liability.
Plaintiff’s state and federal constitutional and civil rights claims against LHH must fail as
the hospital, a private employer, cannot be liable under a theory of respondeat superior. Private
employers are not liable under § 1983 for the constitutional torts of their employees36 unless the
31
See McKnight v. Rees, 88 F.3d 417 (6th Cir. 1996).
32
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
33
419 F.2d 822, 823
34
57 F.Supp.2d 307, 310, (E.D. Ca. 1999).
35
See also Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D.N.C. 1989)(Claims under 1983 are directed
at ‘persons and the jail is not a person amenable to suit.); Jackson v. Palmetto Baptist Hospital, 2005 WL 5405815
(D.S.C. 2005)(The defendant here is a building, and Since the Palmetto Baptist Hospital is not a “person” subject to
suit under 42 U.S.C. § 1983, it is therefore entitled to dismissal as a party Defendant.)
36
Rojas v. Alexander’s Dept. Store, 924 F.2d 406, 408 (2d Cir. 1990), cert denied, 502 U.S. 809, 112 S.Ct. 52
(1991) citing Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982); Powell v. Shopco Laurel Co.,
11
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plaintiff proves that “action pursuant to official ... policy of some nature caused a constitutional
tort.”37
Thus, even if Plaintiff could show a section 1983 violation by an LHH employee, LHH
cannot be held vicariously liable for such act. The same reasoning as to the purpose and
mechanism as to state constitutional rights claims should prevail.
D. Plaintiff state law claims should be dismissed due to failure to make

any specific allegations in support of these claims
In sections entitled “Count VIII – State Law Claims,” contained in Plaintiff’s original
Complaint,38 as well as in Plaintiff’s Amended Complaint,39 and in sections entitled “Re-Urged
State Law Claims,” contained in Plaintiff’s Second Amended Complaint,40 as well as in
Plaintiff’s Third Amended Complaint,41 Plaintiff purports to generally assert various state law
claims including: violations of rights under Louisiana Constitution Article 1 §§ 2, 3, 5, 19, 20,
and 22; and violation of La. R.S. 14:33 (battery), La. R.S. 14:36 (assault), La. R.S. 14:40
(intimidating by officers), La. R.S. 14:44 (kidnapping), La. R.S. 14:46 (false imprisonment), La.
R.S. 14:66 (extortion), La. Civil Code Article 2315, La. Civil Code Article 2316, La. Civil Code
article 2317, La. Civil Code Article 2320 and La. Civil Code Article 2324.
Plaintiff offers absolutely no facts or allegations in support of the numerous above
claims. Rather, he simply refers vaguely to “the facts as stated above.” Apparently, Plaintiff
expects the Defendants not only to determine which claims may apply to them, but also decipher
678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974); See also
Abate v. Southern Pacific Transp. Co., 1991 WL 242205, at *4 (E.D. La. 11/08/91)(citing Rojas with approval for
the proposition that private employers are not liable under respondeat superior for constitutional tort of employees
unless the tort is pursuant to an official policy, and that policy was the cause of the tort.).
37
Monell v. Dep't of Social Serv. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611
(1978) (emphasis added).
38
Pp. 28-29 of Plaintiff’s original Complaint filed on October 17, 2007.
39
Pp. 29-30 of Plaintiff’s Amended Complaint filed on January 22, 2008.
40
Pp. 10-11 of Plaintiff’s Second Amended Complaint filed on March 9, 2008.
41
Pp. 6-7 of Plaintiff’s Third Amended Complaint filed on March 17, 2008.
12
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which allegations may or may not support those claims.
In the absence of any specific allegations in support of each of Plaintiff’s separate state
law causes of action, Plaintiff has failed to state a claim upon which relief can be granted.
Accordingly, the Plaintiff’s state law claims should be dismissed in their entirety, with prejudice.
CONCLUSION
At the outset, the Plaintiff failed to demonstrate proper service on Mr. Dueitt. Further,
this Court lacks jurisdiction over the complaints pending against Mr. Dueitt and LHH as they
arise out of medical treatment and are subject to the panel review requirements of the Louisiana
Medical Malpractice Act. Even if jurisdiction were proper in this matter, the assertion of such
claims center upon allegations of medical practices falling within the purview of the Louisiana
Medical Malpractice Act, and are therefore premature. Furthermore, the allegations of Plaintiff’s
Complaints are insufficient to state a cause of action as to Mr. Dueitt and LHH as to state and
federal constitutional and civil rights claims and state law claims.
Considering the foregoing, the Louisiana Medical Center and Heart Hospital, L.L.C. and
Mr. Philip Dueitt request that this Court dismiss Plaintiff’s claims against them with prejudice.
Alternatively, these Defendants request that this Court order the Plaintiff to amend his
Complaints to properly allege his causes of action.
13
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/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
14
17-30519.271
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17-30519.276
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17-30519.280
17-30519.281
17-30519.282
17-30519.283

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
NOTICE OF HEARING
(f/k/a Louisiana Heart Hospital L.L.C.) and Mr. Philip Dueitt, have filed a Motion to Dismiss
Plaintiff’s Complaints under Rule 12(b).
17-30519.284
7.2.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.285

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
CORPORATE DISCLOSURE STATEMENT
NOW INTO COURT, through undersigned counsel, comes Defendant, Louisiana
Medical Center and Heart Hospital, L.L.C. (“LHH”) (formerly known as Louisiana Heart
Hospital, L.L.C.) and respectfully represents that:
1. It is not a publicly held entity.
2. It does not have a parent corporation.
17-30519.286
3. No publicly held corporation owns 10% or more of its stock.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.287

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
REQUEST FOR ORAL ARGUMENT
Medical Center and Heart Hospital, L.L.C. (f/k/a Louisiana Heart Hospital L.L.C.) and Mr.
Philip Dueitt, who, pursuant to Rule 78.1 of the Uniform Local Rules for Eastern District of
Louisiana, request oral argument on the following:
17-30519.288
1) Louisiana Medical Center and Heart Hospital, L.L.C. and Philip Dueitt’s
Motion to Dismiss Plaintiff’s Complaints under Rule 12(b) and Memorandum
in Support; and
2) Louisiana Medical Center and Heart Hospital, L.L.C. and Philip Dueitt’s
Motion for More Definite Statement and Memorandum in Support.
WHEREFORE, Defendants, Louisiana Medical Center and Heart Hospital, L.L.C. (f/k/a
Louisiana Heart Hospital L.L.C.) and Mr. Philip Dueitt, respectfully request that the Court grant
their Request for Oral Argument in the above-entitled matter.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

2
17-30519.289
/s/ Nancy Brechtel

NANCY BRECHTEL
3
17-30519.290

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
NOTICE OF HEARING
(f/k/a Louisiana Heart Hospital L.L.C.) and Mr. Philip Dueitt, have filed a Motion for More
Definite Statement under Rule 12(e).
17-30519.291
7.2.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.292

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
NOTICE OF HEARING
(f/k/a Louisiana Heart Hospital L.L.C.) and Mr. Philip Dueitt, have filed a Motion to Dismiss
Plaintiff’s Complaints under Rule 12(b).
17-30519.293
7.2.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.294

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN ET AL. SECTION "K" (2)
ORDER
At the request of counsel for defendants, Record Doc. No. 58, and pursuant to
Local Rule 78.1E, oral argument on defendants’ Rule 12(e) Motion for a More Definite
Statement, Record Doc. No. 55, is hereby set on APRIL 16, 2008 at 11:00 a.m. before
Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building,
Room B-421, New Orleans, Louisiana.
New Orleans, Louisiana, this 2nd day of April, 2008.
JOSEPH C. WILKINSON, JR.

UNITED STATES MAGISTRATE JUDGE
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17-30519.320

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
St Tammany Parish Sheriff.s Office; *
St. Tammany District Attorney.s Office; *
John Doe Nos.1-5; *
Defendants *
************************** ***
MOTION TO ENROLL AS
ADDITIONAL COUNSEL OF RECORD
NOW COMES plaintiff, Shane M. Gates, who hereby requests that Martin E. Regan of the
law firm of the law firm of Martin E. Regan & Associates be enrolled as additional counsel of record
along with Daniel G. Abel.
-1-
17-30519.321
/s/ Martin E. Regan, Jr.

Martin E. Regan, Jr., Bar No.
Martin E. Regan & Associates, PLC
2125 St. Charles Avenue
New Orleans, Louisiana 70130
Telephone: (504) 522-7260
Facsimile: (504) 522-7507
Email: mregan@reganlaw.net
/s/ Daniel G. Abel

Daniel G. Abel, Bar No. 8348
P.O. Box 1460
Metairie, Louisiana 70001
Telephone: (504) 782-0613
Facsimile: (504) 273-0247
Attorneys for Plaintiff, Shane M. Gates
I hereby certify that on this 10th day of April, 2008, I presented the foregoing to the Clerk of
Court for filing and uploading to the CM/ECF system which will send notification of such filing to
all CM/ECF participants.
/s/ Daniel G. Abel
-2-
17-30519.322
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
************************** ***
ORDER
Considering the foregoing Motion to Enroll Additional Counsel,
IT IS ORDERED that Martin E. Regan, Jr. of the law firm of Martin E. Regan & Associates
-1-
17-30519.323
be designated as additional counsel of record along with Daniel G. Abel.
New Orleans, Louisiana, this ____ day of _____________________, 2008.
_____________________________________________
UNITED STATED DISTRICT JUDGE
-2-
17-30519.324

07-CV-06983

MOTION FOR LEAVE OF COURT TO FILE REPLY MEMORANDUM IN

SUPPORT OFJOINT MOTION TO STAY PROCEEDINGS
NOW INTO COURT, through undersigned counsel, come defendants, Walter P.
Reed, District Attorney for St. Tammany Parish, in his official capacity, St. Tammany
District Attorney’s Office, Sheriff Rodney Jack Strain, in his official and individual capacity,
St. Tammany Parish Sheriff’s Office, Attorney Charles M. Hughes, Jr., Sheriff Deputy
Nathan Miller, Sheriff Deputy Robert Gottardi, Sheriff Deputy Brian Williams and St. Paul
Page 1
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Insurance Company (collectively referred to as “defendants”) who move this Honorable
Court for leave to file a Reply Memorandum in order to address the opposition filed by
plaintiff to the defendants’ Motion to Stay Proceedings.
WHEREFORE, defendants pray that this motion be granted allowing defendants
leave of court to file a Reply Memorandum in further support of their Joint Motion to Stay
Proceedings.
Telephone: (225) 766-0023
Facsimile: (225) 766-7341

Attorney for Walter P. Reed, District
Attorney for St. Tammany Parish, in his
official capacity and St. Tammany District
Attorney’s Office
MCCRANIE, SISTRUNK, ANZELMO,

HARDY, MAXWELL & MCDANIEL
3445 N. Causeway Blvd., Suite 800
Metairie, LA 70002
Telephone: (504) 831-0946
Facsimile: (504) 831-2492
By: s/Mark E. Hanna

MARK E. HANNA, Bar No. 19336
ANDRE’ J. LAGARDE, Bar No. 28649
Attorney for Sheriff Rodney Jack Strain,
in his official and individual capacity, St.
Tammany Parish Sheriff’s Office, Sheriff
Deputy Nathan Miller, Sheriff Deputy
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Robert Gottardi, Sheriff Deputy Brian

Williams and St. Paul Insurance Company
HAILEY, MCNAMARA, HALL,

LARMANN & PAPALE, L.L.P.
One Galleria Blvd., Suite 1400
Metairie, LA 70001
Telephone: (504) 836-6500
Facsimile: (504) 836-6565
By: s/Richard T. Simmons, Jr.
RICHARD T. SIMMONS, Bar No. 13116

JOSEPH L. SPILMAN, III, Bar No. 17813
W. GLENN BURNS, Bar No. 3698
Attorney for Charles M. Hughes, Jr.
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system.
Baton Rouge, Louisiana this 13th day of April, 2008.
s/Kathryn Landry
KATHRYN LANDRY
Page 4
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07-CV-06983
VERSUS
SECTION “K”
ORDER
Considering the foregoing Motion for Leave of Court to File Reply Memorandum in
Support of Joint Motion to Stay Proceedings:
IT IS ORDERED that defendants are granted leave of court to file a Reply
Memorandum in Support of Joint Motion to Stay Proceedings.
New Orleans, Louisiana, this _______ day of April, 2008.
____________________________
JUDGE
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07-CV-06983

REPLY MEMORANDUM IN SUPPORT OF

JOINT MOTION TO STAY PROCEEDINGS
MAY IT PLEASE THE COURT:
Defendants, Walter P. Reed, District Attorney for St. Tammany Parish, in his official
capacity, St. Tammany District Attorney’s Office, Sheriff Rodney Jack Strain, in his official
and individual capacity, St. Tammany Parish Sheriff’s Office, Attorney Charles M. Hughes,
Page 1
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Jr., Sheriff Deputy Nathan Miller, Sheriff Deputy Robert Gottardi, Sheriff Deputy Brian
Williams and St. Paul Insurance Company (collectively referred to as “defendants”) file this
Reply Memorandum in further support of their Joint Motion to Stay Proceedings filed herein
and to address plaintiff’s opposition.
Misstatements of Fact by Plaintiff
Defendants have set forth the facts in the original memorandum filed herein, but must
address certain misstatements of fact made by the plaintiff in his opposition to the motion
to stay.
Plaintiff incorrectly alleges that “it is undisputed” that his injuries took place after he
was handcuffed and in custody. In fact, defendants submit that plaintiff was injured before
being touched by any officers due to his own actions in falling out of his vehicle as a result
of his drunken condition, and if any additional injuries were sustained thereafter, those
injuries occurred during his wrestling with the officers.
After leading police on a high speed chase on Interstate 12, plaintiff finally stopped
his vehicle. The officers gave a command for plaintiff to remain in his vehicle, yet plaintiff
disobeyed that command, opened his vehicle door and fell out of the vehicle onto the
roadway. As backup arrived, the officers assisted plaintiff off the pavement. However, the
plaintiff began physically wrestling and assaulting the deputies. Plaintiff’s blood alcohol
level was later found to be .273, more than 3 times the legal limit. Accordingly, there is
clearly a dispute as to when and how any of the alleged injuries were sustained by plaintiff.
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The sheriff’s office initially charged plaintiff with 1st offense DWI, reckless operation,
open container violation, resisting an officer and aggravated obstruction of a highway.
Subsequently, the District Attorney’s Office, on behalf of the State of Louisiana, filed a bill
of information charging plaintiff with 1st offense DWI in violation of La.R.S. 14:98 and
aggravated flight from an officer in violation of La.R.S. 14:108.1. This process includes a
“screening” decision by an Assistant District Attorney based upon a written report submitted
by law enforcement.
During the pendency of the cases submitted by law enforcement, the defense counsel
approached the District Attorney’s Office regarding the possibility of a dismissal or
diversion of the felony charge of R.S. 14:108.1 and a guilty plea to the misdemeanor
violation to assist the plaintiff’s possible entry into law school. The policy of the District
Attorney’s Office is to consider the feelings and position of victims in such cases. As a
result, the District Attorney’s Office told the defense counsel to speak with the Sheriff’s
Office since the deputies in this case were physically attacked by the plaintiff and considered
victims of plaintiff’s crime, and in the event the Sheriff’s Office did not object, they could
move forward with their discussions. The District Attorney’s Office was not a party to the
discussions between defense counsel and the Sheriff’s Office. Subsequently, the District
Attorney’s Office was informed that the officers at issue, who were the recipients of
plaintiff’s physical attacks, wanted to pursue the charges against plaintiff, including the
charge of resisting an officer, a violation of La.R.S. 14:108. As a result, the District
Page 3
17-30519.332
Attorney’s Office reviewed the report and position of the officer and included the charge of
Resisting an Officer along with the felony charge of Aggravated Flight and DWI 1st offense
violations. While plaintiff seeks to assert that this was some “conspiracy” between the
District Attorney’s Office and the Sheriff’s Office, the District Attorney’s Office has, in
other cases, received input from victims subsequent to the filing of the original bill of
information requesting that other charges be pursued or reviewed in more detail. In those
cases, as in this case, the District Attorney’s Office reviews the case and makes a
determination of whether to file the additional charges or to modify any of the pending
charges.
After filing this proceeding, plaintiff then filed, in the state court criminal proceeding,
a Motion to Recuse the District Attorney, which has not yet been decided by the trial court,
alleging that this civil rights action should result in the recusal of the District Attorney’s
Office in the state court prosecution. Plaintiff also filed a Request to Issue Witness
Subpoenas requesting that subpoenas be issued to August Hand, a co-counsel representing
plaintiff in the criminal action, Bruce Dearing and Ronald Gracianette, both Assistant
District Attorneys, and Charles M. Hughes, Jr., an attorney representing the Sheriff’s Office.
The District Attorney’s Office filed a Motion to Quash the subpoenas sought to be issued
to the Assistant District Attorneys. On December 3, 2007, a hearing was held in the district
court, and the court granted plaintiff the authority for the subpoenas to be issued, holding
that the subpoenas were valid pursuant to La. Code of Evidence article 508, although the
Page 4
17-30519.333
court further stated that I “haven’t really ruled on your motion to quash”. While plaintiff
alleges in his memorandum that the Assistant District Attorneys refused to testify, such is
not the case. Immediately following the court’s ruling, the District Attorney asked
permission to seek review of the ruling by the appellate court, which was granted by the trial
court. A writ application was filed with the First Circuit Court of Appeal, which remains
pending at this time.
The Bush Ruling Does Not Affect the Need for a Stay
While plaintiff argues that the ruling in Bush v. Strain, 513 F.3d 492 (5th Cir. 2008)
rejects a stay, defendants submit that this ruling did not affect the need for a stay. In fact,
the ruling confirmed the need for a stay in a proceeding such as this one. One issue in terms
of defenses in this proceeding will be based upon any conviction of defendant in the state
court criminal proceeding. In Bush, supra, the Fifth Circuit reaffirmed the fact that under
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) a conviction in
the criminal proceeding may bar an action for alleged constitutional violations. The Bush
court simply ruled that such a determination is fact intensive, requiring courts to analyze
whether success on the constitutional claim requires negation of an element of the criminal
offense or proof of a fact that is inherently inconsistent with one underlying the criminal
conviction. Accordingly, the criminal conviction remains significant, as the court stated:
It is well settled under Heck that a plaintiff who has been

convicted of a crime cannot recover damages for an alleged
violation of his constitutional rights if that ‘violation arose from
Page 5
17-30519.334
the same facts attendant to the charge for which he was

convicted. . . (Emphasis added.)
Defendants submit that plaintiff’s conviction in the criminal action bears significantly
upon his claims in this case. Plaintiff’s entire argument against a stay in these proceedings
is predicated upon his assertion that there is no dispute that he was injured after he was
handcuffed and in custody. That representation is wholly without merit or basis. Defendants
contend, as stated above, that plaintiff was injured before he was ever touched by any officer
and subsequently, if at all, during his efforts to fight with the officers. Prior to the amended
bill of information, plaintiff had already been charged with aggravated flight from an officer,
and the facts underlying that criminal conduct, and a conviction thereof, may bar this action,
as well as the charge of resisting an officer. For those reasons, this action should be stayed
pending the outcome of the criminal proceeding, after which this proceeding can move
forward.
As stated in the original memorandum filed herein in support of this motion, this
Honorable Court has previously upheld the need for a stay in similar cases. See Bush v.
Strain, 2004 WL 1158038 (E.D. La. 2004), Faulkner v. McCormick, 2002 WL 31465892
(E.D. La. 2002). The Fifth Circuit, in Bush, supra, did not dispense with the necessity of a
stay in proceeding such as this, and the fact of a criminal conviction remains paramount.
Page 6
17-30519.335
Conclusion
For the foregoing reasons and the reasons stated in the original memorandum filed
herein, defendants respectfully request that their Joint Motion for Stay Of Proceedings be
granted, staying this action until the criminal prosecution has proceeded to a final resolution.
Telephone: (225) 766-0023
Facsimile: (225) 766-7341

Attorney’s Office

Metairie, LA 70002
Telephone: (504) 831-0946
Facsimile: (504) 831-2492
By: s/Mark E. Hanna

Page 7
17-30519.336

Metairie, LA 70001
Telephone: (504) 836-6500
Facsimile: (504) 836-6565

system.
s/Kathryn Landry
KATHRYN LANDRY
Page 8
17-30519.337

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
************************** ***
ORDER
Considering the foregoing Motion to Enroll Additional Counsel,
IT IS ORDERED that Martin E. Regan, Jr. of the law firm of Martin E. Regan & Associates
-1-
17-30519.338
be designated as additional counsel of record along with Daniel G. Abel.

New Orleans, Louisiana, this ____ day of _____________________,
April 2008.
_____________________________________________
UNITED STATED DISTRICT JUDGE
-2-
17-30519.339

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
MOTION FOR LEAVE TO FILE A REPLY TO PLAINTIFF’S OPPOSITION TO THE

RULE 12( b) MOTION TO DISMISS FILED BY LOUISIANA MEDICAL CENTER AND
HEART HOSPITAL, L.L.C. and PHILIP DUEITT
Louisiana Medical Center and Heart Hospital, L.L.C. (“LHH”) (formerly known as
Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt (jointly referred to herein as
“Defendants”), request that this Honorable Court grant them leave to file the attached Reply to
Plaintiff’s Opposition to the Rule 12(b) Motion to Dismiss Filed by Louisiana Medical Center
1
17-30519.340
and Heart Hospital, L.L.C. and Philip Dueitt. The response is necessary to address two limited
issues raised by Plaintiff’s Opposition: (1) The Louisiana Supreme Court’s holding that cases
involving allegations of no consent to medical treatment are properly categorized as medical
malpractice; and (2) as Plaintiff clarified that he is attempting to assert a kidnapping cause of
action against these Defendants, the Reply discusses Plaintiff’s failure to make sufficient
allegations to support such a claim.
(“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt,
respectfully pray that their Motion for Leave to File a Reply to Plaintiff’s Opposition to the Rule
12(b) Motion to Dismiss Filed by Louisiana Medical Center and Heart Hospital, L.L.C. and
Philip Dueitt be Granted.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383
2
17-30519.341
I HEREBY CERTIFY that I have on this 14th day of April, 2008, filed electronically a
/s/ Nancy Brechtel

NANCY BRECHTEL
3
17-30519.342
SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
ORDER ON MOTION FOR LEAVE
Considering the foregoing Motion for Leave to File a Reply to Plaintiff’s Opposition to
the Rule 12(b) Motion to Dismiss Filed by Louisiana Medical Center and Heart Hospital, L.L.C.
and Philip Dueitt;
IT IS HEREBY ORDERED, that Defendants’, Louisiana Medical Center and Heart
Hospital, L.L.C. (“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip
1
17-30519.343
Dueitt, Motion for Leave to File a Reply to Plaintiff’s Opposition to the Rule 12(b) Motion to
Dismiss Filed by Louisiana Medical Center and Heart Hospital, L.L.C. and Philip Dueitt is
GRANTED.
New Orleans, Louisiana this ________day of April, 2008.
___________________________________
JUDGE
2
17-30519.344

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
REPLY TO PLAINTIFF’S OPPOSITION TO THE RULE 12( b) MOTION

TO DISMISS FILED BY LOUISIANA MEDICAL CENTER AND HEART
HOSPITAL, L.L.C. and PHILIP DUEITT
May it please the Court, the Louisiana Medical Center and Heart Hospital, L.L.C.
(“LHH”) and Philip Dueitt (jointly referred to hereinafter as “Defendants”), submit the instant
Reply for the limited purpose of addressing certain glaring inaccuracies asserted in Plaintiff’s
17-30519.345
Opposition.1
I. Plaintiff’s Claims as to LHH and Mr. Dueitt Are Governed by the Louisiana
Medical Malpractice Act and are Therefore Premature in this Court:
In arguing that his claims as to these Defendants are not medical malpractice related,
Plaintiff attempts to distinguish the failure to obtain consent to test blood for certain conditions
from lack of consent to taking a blood sample.2 Plaintiff then concludes that failure to obtain
consent to a blood sample is not covered under the malpractice act.3 Further Plaintiff contends
that taking his blood without consent constitutes the intentional tort of battery.4 Notably,
Plaintiff cites no cases and/or law in support of his position.
The Plaintiff’s position is simply incorrect. The Louisiana Supreme Court has ruled that
claims regarding the failure to obtain consent are governed by the Louisiana Medical
Malpractice Act.5 “We therefore reject battery-based liability in lack of informed consent cases
(which also include non-consent cases) in favor of liability based on breach of the doctor's duty
to provide the patient with material information concerning the medical procedure."6 Lack of
informed consent cases and no-consent cases all sound in medical malpractice.7 There is no
separate cause of action for medical battery.8
Further, regardless of the Plaintiff’s attempts to characterize his claims in a different
manner and thereby avoid the procedural requirements of Louisiana’s Medical Malpractice Act,
1
Although the Defendants dispute a number of representations made in Plaintiff’s Opposition, for the purposes of
efficiency and to remain brief, this Reply Memorandum is limited to the most significant issues. Defendants adopt
and incorporate herein all arguments raised in their Rule 12(b) Motion to Dismiss and Memorandum in Support.
2
Plaintiff’s “Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion to Dismiss Under Rule 12(b)”
at p. 5 ¶2 - p. 6 ¶3.
3
Id.
4
Id.
5
Lugenbuhl v. Dowling, 96-175, (La. 10/10/97), 701 So.2d 447.
6
Id. at 453.
7
Baham v. Medical Center of Louisiana at New Orleans, No. 00-2022 (La. App. 4 Cir. 7/11/01), 792 So. 2d 85, 87.
8
Wilson ex rel. Wilson v. Landry, No. 98-2365 (La. App. 1 Cir. 12/28/99), 748 So. 2d 655, 660 (finding the
plaintiff’s claims were governed by the medical malpractice act where plaintiff did not consent to circumcision that
was performed).
2
17-30519.346
the facts remain the same:
a) The Plaintiff would not have been at LHH’s emergency room but for his
intoxicated, injured state and his need for emergency medical treatment.
b) The Plaintiff’s contact with Mr. Dueitt was related to and arose out of that
emergency medical treatment.
Accordingly, Plaintiff’s claims against these Defendants are governed by the Medical
Malpractice Act, are premature in this Court, and should be dismissed.
II. Plaintiff Fails to State a Cause of Action for Kidnapping
As noted in the Defendant’s Rule 12(e) Motion for More Definite Statement (currently
pending before this Court), the Plaintiff’s Complaints were so confusing as to make it impossible
to determine which causes of action pertained to LHH and Mr. Dueitt. In his Opposition to the
Defendants’ Rule 12(e) Motion, and in his Opposition to the 12(b) Motion (addressed in the
instant Reply),9 Plaintiff apparently significantly narrows his claims asserted against LHH and
Mr. Dueitt. This is discussed in more detail in the Defendant’s Reply Memorandum Filed in
Response to Plaintiff’s Opposition to Defendants’ Rule 12(e) Motion for More Definite
Statement.
With this narrowing of claims, however, it has become apparent that the Plaintiff does
indeed intend to assert causes of action under Louisiana law for kidnapping against LHH and Mr.
Dueitt. Because the Plaintiff fails to make sufficient allegations which would support such
claims, his causes of action as to kidnapping should be dismissed.
Louisiana’s Kidnapping Statute, La. R.S. 14:44, cited by the Plaintiff, provides that
aggravated kidnapping is (1) the forcible seizing and carrying of any person from one place to
9
at p. 11 ¶4.
3
17-30519.347
another; or (2) the enticing or persuading of any person to go from one place to another; or (3)
the imprisoning or forcible secreting of any person.
The Plaintiff’s Complaints allege only that Mr. Dueitt would not allow his transfer to
another hospital until he provided a urine sample. Plaintiff never contends that he was prevented
by Mr. Dueitt from leaving the hospital at all, or that Mr. Dueitt otherwise confined his
movement. Thus Plaintiff fails to state a cause of action for kidnapping, and his claim for
kidnapping should be dismissed.
III. Conclusion
Considering the foregoing, and considering all arguments contained in Defendants’ Rule
12(b) Motion to Dismiss and Memorandum in Support, LHH and Mr. Dueitt respectfully request
that this Court grant their Rule 12(b) Motion, dismiss Plaintiff’s claims against them with
prejudice, and provide all other relief to which these Defendants may be entitled.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

4
17-30519.348
/s/ Nancy Brechtel

NANCY BRECHTEL
5
17-30519.349

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
MOTION FOR LEAVE TO FILE A REPLY TO PLAINTIFF’S OPPOSITION TO THE

RULE 12(e) MOTION FOR MORE DEFINITE STATEMENT FILED BY LOUISIANA
MEDICAL CENTER AND HEART HOSPITAL, L.L.C. and PHILIP DUEITT
Louisiana Medical Center and Heart Hospital, L.L.C. (“LHH”) (formerly known as
Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt (jointly referred to herein as
“Defendants”), request that this Honorable Court grant them leave to file the attached Reply
Memorandum responding to Plaintiff’s Opposition to the Rule 12(e) Motion for More Definite
1
17-30519.350
Statement Filed by Louisiana Medical Center and Heart Hospital, L.L.C. and Philip Dueitt. The
response is necessary as it takes notice of Plaintiff’s efforts to clarify his claims as set forth in his
Opposition memorandum, and thereby could save the court valuable time in evaluating the issues
remaining in ruling on the Motion for More Definite Statement.
(“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt,
respectfully pray that their Motion for Leave to File a Reply to Plaintiff’s Opposition to the Rule
12(e) Motion for More Definite Statement Filed by Louisiana Medical Center and Heart
Hospital, L.L.C. and Philip Dueitt be Granted.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383
2
17-30519.351
/s/ Nancy Brechtel

NANCY BRECHTEL
3
17-30519.352
SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
the Rule 12(e) Motion for More Definite Statement Filed by Louisiana Medical Center and Heart
Hospital, L.L.C. and Philip Dueitt;
1
17-30519.353
Dueitt, Motion for Leave to File a Reply to Plaintiff’s Opposition to the Rule 12(e) Motion for
More Definite Statement Filed by Louisiana Medical Center and Heart Hospital, L.L.C. and
Philip Dueitt is GRANTED.
___________________________________
JUDGE
2
17-30519.354

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
REPLY TO PLAINTIFF’S OPPOSITION TO THE RULE 12(e) MOTION

FOR MORE DEFINITE STATEMENT FILED BY LOUISIANA MEDICAL CENTER
AND HEART HOSPITAL, L.L.C. and PHILIP DUEITT
May it Please the Court, the Louisiana Medical Center and Heart Hospital, L.L.C.
(“LHH”) and Philip Dueitt (jointly referred to hereinafter as “Defendants”), note that the Plaintiff
has made certain representations in his Opposition to Defendants’ Rule 12(e) Motion for More
Definite Statement that may clarify some of the many ambiguities in his Original Complaint,
17-30519.355
Amended Complaint, Second Amended Complaint and Third Amended Complaint (the
“Complaints”). Defendants therefore submit the instant Reply for the limited purpose of
clarifying the issues to be resolved by this Court in ruling on the Rule 12(e) Motion.
In his Opposition, Plaintiff contends that the Defendants Rule 12(e) Motion for More
Definite Statement should be denied. At the same time, however, Plaintiff clarifies (1) which
factual allegations pertain to LHH and Mr. Dueitt; (2) which causes of action are asserted as to
LHH; and (3) which causes of action are asserted as to Mr. Dueitt. The Plaintiff should be
ordered to amend his Complaints to memorialize these statements, as set forth below.1
I. Clarification of Factual Allegations Relating to LHH and Mr. Dueitt
In the allegations contained in his Complaints, Plaintiff ambiguously refers to
“Defendants” throughout the pleadings. It is thus impossible to determine which allegations
relate to LHH and Mr. Dueitt. Plaintiff’s Opposition, however, states that the following factual
allegations in his Original Complaint and Amended Complaint pertain specifically to LHH and
Mr. Dueitt:
a. Paragraphs numbered 32-57;
b. Paragraph number 65; and,
c. Paragraphs numbered 123-145.2
Considering these statements, and to ensure that the Defendants are on notice of all
allegations being made against them individually, Plaintiff should be ordered to amend his
Complaints to confirm that solely the factual allegations in the above paragraphs apply to LHH
and Mr. Dueitt.
1
The Defendants vehemently dispute liability in this matter, and seek a more definite statement of Plaintiff’s claims
so that they may have a fair opportunity to respond to Plaintiff’s Complaints.
2
Plaintiff’s Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite Statement, at
p. 2, ¶3, and at p. 3 ¶1 (entitled “Claim Summary”).
2
17-30519.356
II. Causes of Action Asserted Against LHH
Plaintiff’s Opposition also appears to further define the causes of action made as to LHH
as follows:
a. Plaintiff is not making claims pursuant to §1983 against LHH; nor is he
making any federal constitutional claims against LHH.3
b. Plaintiff concedes that he cannot bring claims pursuant to §1983 and
federal constitutional claims against LHH under a theory of respondeat
superior for the actions of Mr. Dueitt.4
c. Plaintiff claims LHH is liable under a theory of respondeat superior for
Mr. Dueitt’s violation of the following:
i. Louisiana Civil Code Articles 2315, 2316, 2317, 2320 and 2324;
ii. Louisiana Constitution Article 1 §§3, 5 and 20;
iii. La. R.S. 14:36 (assault);
iv. La. R.S. 14:33 (battery); and,
v. La. R.S. 14:44 (kidnapping).5
d. Plaintiff confirms that he is not claiming that LHH violated the Hobbs
Act.6
3
Plaintiff’s “Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite Statement,”
at p. 3, ¶2 – p.4, ¶3 (entitled “Count I- §1983 Causes of Action,” “Count II – Enumerated §1983 Violations,” “Count
III - §1983 Conspiracy Cause of Action,” “Count IV - §1983 Liability of Sheriff, Deputies, and His Office,” “Count
V – Liability of District Attorney and His Office,” and, “Count VI Due Process and Equal Protection Violations.”);
P. 5 ¶6 – P. 6 ¶1 (entitled “IV. Third Amended Complaint”).
4
at p. 2, ¶¶2-3; P. 5 ¶6 – P. 6 ¶1 (entitled “IV. Third Amended Complaint”).
5
at p.5 ¶¶1-4 (entitled “Count VIII – State Law Claims,” “First Amended Complaint”).
6
at p.5 ¶5 (entitled “III. Second Amended Complaint”).
3
17-30519.357
e. All other claims and causes of action asserted by Plaintiff relate to other
defendants.
III. Causes of Action Asserted Against Philip Dueitt
Plaintiff’s Opposition also appears to further define the causes of action made as to Mr.
Dueitt as follows:
a. Plaintiff is making the following claims pursuant to §1983 against Mr.
Dueitt:
i. Excessive use of force, assault, and battery;
ii. Unlawful and malicious sequential detention and confinement;
and,
iii. Sheriff and District Attorney’s malicious abuse of process.7
b. Plaintiff asserts that Mr. Dueitt is liable under §1983 for conspiracy “with
defendant deputies.”8
c. Plaintiff clarifies that Counts IV and V of his original Complaint and
Amended Complaint do not apply to Mr. Dueitt.9
d. Count VI of Plaintiff’s Complaint and Amended Complaint alleges
violation of due process and equal protection arising out of arrest, false
charges and recharges. Despite the fact that this Count refers only to all
“sheriff-deputies-and-district-attorneys defendants,”10 Plaintiff now
7
at p. 3, ¶2 – 3 (entitled “Count I- §1983 Causes of Action,” “Count II – Enumerated §1983 Violations”).
8
at p. 3, ¶4 – p. 4 ¶1 (entitled “Count III - §1983 Conspiracy Cause of Action”).
9
at p. 4, ¶1-2 (entitled “Count IV – Liability of Sheriff, Deputies and His Office,” “Count V – Liability of District
Attorney and His Office).
10
Plaintiff’s Complaint at P. 25, ¶122; Plaintiff’s Amended Compliant at P. 26, ¶122.
4
17-30519.358
contends that Count VI applies to Mr. Dueitt as well.11
e. Plaintiff claims Mr. Dueitt is liable for violation of the following:
i. Louisiana Civil Code Articles 2315 and 2316;
f. Plaintiff confirms that he is not claiming that Mr. Dueitt violated the
Hobbs Act.13
g. Plaintiff claims that Mr. Dueitt is liable for “attempts to improperly
interrogate and coerce Gates in order to obtain statements to use against
him.”14
h. All other claims and causes of action asserted by Plaintiff relate to other
defendants.
IV. Plaintiff Stated In His Amended Complaint that He Does Not Aver a Cause
of Action for Violation of HIPAA; Yet the Instant Opposition Purports to
Assert Such Claims Against Mr. Dueitt
To add more confusion to this litigation, Plaintiff’s Opposition again purports to assert
claims for violation of HIPAA, 45 C.F.R. 164.513, et seq.15
In Plaintiff’s Amended Complaint, however, he stated that “Complainant does not aver
11
Plaintiff’s “Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite
Statement,” at p. 4, ¶3 (entitled “Count VI – Due Process and Equal Protection Violations”).
12
Statement,” at p.5 ¶¶1-4 (entitled “Count VIII – State Law Claims,” “First Amended Complaint”).
13
Statement,” at p.5 ¶5 (entitled “III. Second Amended Complaint”).
14
Statement,” at p. 5, ¶6 – p. 6 ¶1 (entitled “Count IV – Third Amended Complaint”).
15
Plaintiff’s Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite Statement,
at p. 4, ¶4 (entitled “Count VII- Violation of 45 C.F.R. HIPAA).
5
17-30519.359
an independent cause of action arising from violation of these federal regulations.”16
Given Plaintiff’s judicial admission that he is not asserting a private cause of action under
HIPAA, Defendants request that this Court order the Plaintiff to amend his Complaints to
remove Count VII, or dismiss all claims asserted for violation of HIPAA.
V. Conclusion
Considering the foregoing, LHH and Mr. Dueitt respectfully request that this Court order
the Plaintiff to amend his Complaints to conform with the representations made in his Opposition
limiting the factual allegations and causes of action asserted against LHH and Mr. Dueitt as set
forth above.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383
/s/ Nancy Brechtel

NANCY BRECHTEL
16
Plaintiff’s Amended Complaint filed on January 22, 2008, p. 26, ¶123 (emphasis by Plaintiff).
6
17-30519.360

07-CV-06983
VERSUS
SECTION “K”
ORDER
Considering the foregoing Motion for Leave of Court to File Reply Memorandum in
Support of Joint Motion to Stay Proceedings:
IT IS ORDERED that defendants are granted leave of court to file a Reply
Memorandum in Support of Joint Motion to Stay Proceedings.
14th day of April, 2008.

____________________________
JUDGE
Page 1
17-30519.361

07-CV-06983


JOINT MOTION TO STAY PROCEEDINGS
capacity, St. Tammany District Attorney’s Office, Sheriff Rodney Jack Strain, in his official
and individual capacity, St. Tammany Parish Sheriff’s Office, Attorney Charles M. Hughes,
Page 1
17-30519.362
Jr., Sheriff Deputy Nathan Miller, Sheriff Deputy Robert Gottardi, Sheriff Deputy Brian
Williams and St. Paul Insurance Company (collectively referred to as “defendants”) file this
Reply Memorandum in further support of their Joint Motion to Stay Proceedings filed herein
and to address plaintiff’s opposition.
Misstatements of Fact by Plaintiff
Defendants have set forth the facts in the original memorandum filed herein, but must
address certain misstatements of fact made by the plaintiff in his opposition to the motion
to stay.
Plaintiff incorrectly alleges that “it is undisputed” that his injuries took place after he
was handcuffed and in custody. In fact, defendants submit that plaintiff was injured before
being touched by any officers due to his own actions in falling out of his vehicle as a result
of his drunken condition, and if any additional injuries were sustained thereafter, those
injuries occurred during his wrestling with the officers.
After leading police on a high speed chase on Interstate 12, plaintiff finally stopped
his vehicle. The officers gave a command for plaintiff to remain in his vehicle, yet plaintiff
disobeyed that command, opened his vehicle door and fell out of the vehicle onto the
roadway. As backup arrived, the officers assisted plaintiff off the pavement. However, the
plaintiff began physically wrestling and assaulting the deputies. Plaintiff’s blood alcohol
level was later found to be .273, more than 3 times the legal limit. Accordingly, there is
clearly a dispute as to when and how any of the alleged injuries were sustained by plaintiff.
Page 2
17-30519.363
The sheriff’s office initially charged plaintiff with 1st offense DWI, reckless operation,
open container violation, resisting an officer and aggravated obstruction of a highway.
Subsequently, the District Attorney’s Office, on behalf of the State of Louisiana, filed a bill
of information charging plaintiff with 1st offense DWI in violation of La.R.S. 14:98 and
aggravated flight from an officer in violation of La.R.S. 14:108.1. This process includes a
“screening” decision by an Assistant District Attorney based upon a written report submitted
by law enforcement.
During the pendency of the cases submitted by law enforcement, the defense counsel
approached the District Attorney’s Office regarding the possibility of a dismissal or
diversion of the felony charge of R.S. 14:108.1 and a guilty plea to the misdemeanor
violation to assist the plaintiff’s possible entry into law school. The policy of the District
Attorney’s Office is to consider the feelings and position of victims in such cases. As a
result, the District Attorney’s Office told the defense counsel to speak with the Sheriff’s
Office since the deputies in this case were physically attacked by the plaintiff and considered
victims of plaintiff’s crime, and in the event the Sheriff’s Office did not object, they could
move forward with their discussions. The District Attorney’s Office was not a party to the
discussions between defense counsel and the Sheriff’s Office. Subsequently, the District
Attorney’s Office was informed that the officers at issue, who were the recipients of
plaintiff’s physical attacks, wanted to pursue the charges against plaintiff, including the
charge of resisting an officer, a violation of La.R.S. 14:108. As a result, the District
Page 3
17-30519.364
Attorney’s Office reviewed the report and position of the officer and included the charge of
Resisting an Officer along with the felony charge of Aggravated Flight and DWI 1st offense
violations. While plaintiff seeks to assert that this was some “conspiracy” between the
District Attorney’s Office and the Sheriff’s Office, the District Attorney’s Office has, in
other cases, received input from victims subsequent to the filing of the original bill of
information requesting that other charges be pursued or reviewed in more detail. In those
cases, as in this case, the District Attorney’s Office reviews the case and makes a
determination of whether to file the additional charges or to modify any of the pending
charges.
After filing this proceeding, plaintiff then filed, in the state court criminal proceeding,
a Motion to Recuse the District Attorney, which has not yet been decided by the trial court,
alleging that this civil rights action should result in the recusal of the District Attorney’s
Office in the state court prosecution. Plaintiff also filed a Request to Issue Witness
Subpoenas requesting that subpoenas be issued to August Hand, a co-counsel representing
plaintiff in the criminal action, Bruce Dearing and Ronald Gracianette, both Assistant
District Attorneys, and Charles M. Hughes, Jr., an attorney representing the Sheriff’s Office.
The District Attorney’s Office filed a Motion to Quash the subpoenas sought to be issued
to the Assistant District Attorneys. On December 3, 2007, a hearing was held in the district
court, and the court granted plaintiff the authority for the subpoenas to be issued, holding
that the subpoenas were valid pursuant to La. Code of Evidence article 508, although the
Page 4
17-30519.365
court further stated that I “haven’t really ruled on your motion to quash”. While plaintiff
alleges in his memorandum that the Assistant District Attorneys refused to testify, such is
not the case. Immediately following the court’s ruling, the District Attorney asked
permission to seek review of the ruling by the appellate court, which was granted by the trial
court. A writ application was filed with the First Circuit Court of Appeal, which remains
pending at this time.
The Bush Ruling Does Not Affect the Need for a Stay
While plaintiff argues that the ruling in Bush v. Strain, 513 F.3d 492 (5th Cir. 2008)
rejects a stay, defendants submit that this ruling did not affect the need for a stay. In fact,
the ruling confirmed the need for a stay in a proceeding such as this one. One issue in terms
of defenses in this proceeding will be based upon any conviction of defendant in the state
court criminal proceeding. In Bush, supra, the Fifth Circuit reaffirmed the fact that under
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) a conviction in
the criminal proceeding may bar an action for alleged constitutional violations. The Bush
court simply ruled that such a determination is fact intensive, requiring courts to analyze
whether success on the constitutional claim requires negation of an element of the criminal
offense or proof of a fact that is inherently inconsistent with one underlying the criminal
conviction. Accordingly, the criminal conviction remains significant, as the court stated:
It is well settled under Heck that a plaintiff who has been

convicted of a crime cannot recover damages for an alleged
violation of his constitutional rights if that ‘violation arose from
Page 5
17-30519.366
the same facts attendant to the charge for which he was

convicted. . . (Emphasis added.)
Defendants submit that plaintiff’s conviction in the criminal action bears significantly
upon his claims in this case. Plaintiff’s entire argument against a stay in these proceedings
is predicated upon his assertion that there is no dispute that he was injured after he was
handcuffed and in custody. That representation is wholly without merit or basis. Defendants
contend, as stated above, that plaintiff was injured before he was ever touched by any officer
and subsequently, if at all, during his efforts to fight with the officers. Prior to the amended
bill of information, plaintiff had already been charged with aggravated flight from an officer,
and the facts underlying that criminal conduct, and a conviction thereof, may bar this action,
as well as the charge of resisting an officer. For those reasons, this action should be stayed
pending the outcome of the criminal proceeding, after which this proceeding can move
forward.
As stated in the original memorandum filed herein in support of this motion, this
Honorable Court has previously upheld the need for a stay in similar cases. See Bush v.
Strain, 2004 WL 1158038 (E.D. La. 2004), Faulkner v. McCormick, 2002 WL 31465892
(E.D. La. 2002). The Fifth Circuit, in Bush, supra, did not dispense with the necessity of a
stay in proceeding such as this, and the fact of a criminal conviction remains paramount.
Page 6
17-30519.367
Conclusion
For the foregoing reasons and the reasons stated in the original memorandum filed
herein, defendants respectfully request that their Joint Motion for Stay Of Proceedings be
granted, staying this action until the criminal prosecution has proceeded to a final resolution.
Telephone: (225) 766-0023
Facsimile: (225) 766-7341

Attorney’s Office

Metairie, LA 70002
Telephone: (504) 831-0946
Facsimile: (504) 831-2492
By: s/Mark E. Hanna

Page 7
17-30519.368

Metairie, LA 70001
Telephone: (504) 836-6500
Facsimile: (504) 836-6565

system.
s/Kathryn Landry
KATHRYN LANDRY
Page 8
17-30519.369

VERSUS NO. 07-6983
ORDER
The request by defense counsel for oral argument on defendants’ “Motion to Dismiss
Plaintiff’s Complaints under Rule 12(b)” (Doc. 58) is GRANTED. Additionally, the Court
orders that there shall be oral argument on defendants’ “Joint Motion to Stay Proceedings” (Doc.
47). Both motions shall be heard before the Court on April 16, 2008 at 9:30 a.m.
New Orleans, Louisiana, this 14th day of April, 2007.

17-30519.370

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
the Rule 12(b) Motion to Dismiss Filed by Louisiana Medical Center and Heart Hospital, L.L.C.
and Philip Dueitt;
1
17-30519.371
Dueitt, Motion for Leave to File a Reply to Plaintiff’s Opposition to the Rule 12(b) Motion to
Dismiss Filed by Louisiana Medical Center and Heart Hospital, L.L.C. and Philip Dueitt is
GRANTED.
15th
___________________________________
JUDGE
2
17-30519.372

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
REPLY TO PLAINTIFF’S OPPOSITION TO THE RULE 12( b) MOTION

TO DISMISS FILED BY LOUISIANA MEDICAL CENTER AND HEART
HOSPITAL, L.L.C. and PHILIP DUEITT
May it please the Court, the Louisiana Medical Center and Heart Hospital, L.L.C.
(“LHH”) and Philip Dueitt (jointly referred to hereinafter as “Defendants”), submit the instant
Reply for the limited purpose of addressing certain glaring inaccuracies asserted in Plaintiff’s
17-30519.373
Opposition.1
I. Plaintiff’s Claims as to LHH and Mr. Dueitt Are Governed by the Louisiana
Medical Malpractice Act and are Therefore Premature in this Court:
In arguing that his claims as to these Defendants are not medical malpractice related,
Plaintiff attempts to distinguish the failure to obtain consent to test blood for certain conditions
from lack of consent to taking a blood sample.2 Plaintiff then concludes that failure to obtain
consent to a blood sample is not covered under the malpractice act.3 Further Plaintiff contends
that taking his blood without consent constitutes the intentional tort of battery.4 Notably,
Plaintiff cites no cases and/or law in support of his position.
The Plaintiff’s position is simply incorrect. The Louisiana Supreme Court has ruled that
claims regarding the failure to obtain consent are governed by the Louisiana Medical
Malpractice Act.5 “We therefore reject battery-based liability in lack of informed consent cases
(which also include non-consent cases) in favor of liability based on breach of the doctor's duty
to provide the patient with material information concerning the medical procedure."6 Lack of
informed consent cases and no-consent cases all sound in medical malpractice.7 There is no
separate cause of action for medical battery.8
Further, regardless of the Plaintiff’s attempts to characterize his claims in a different
manner and thereby avoid the procedural requirements of Louisiana’s Medical Malpractice Act,
1
Although the Defendants dispute a number of representations made in Plaintiff’s Opposition, for the purposes of
efficiency and to remain brief, this Reply Memorandum is limited to the most significant issues. Defendants adopt
and incorporate herein all arguments raised in their Rule 12(b) Motion to Dismiss and Memorandum in Support.
2
at p. 5 ¶2 - p. 6 ¶3.
3
Id.
4
Id.
5
Lugenbuhl v. Dowling, 96-175, (La. 10/10/97), 701 So.2d 447.
6
Id. at 453.
7
Baham v. Medical Center of Louisiana at New Orleans, No. 00-2022 (La. App. 4 Cir. 7/11/01), 792 So. 2d 85, 87.
8
Wilson ex rel. Wilson v. Landry, No. 98-2365 (La. App. 1 Cir. 12/28/99), 748 So. 2d 655, 660 (finding the
plaintiff’s claims were governed by the medical malpractice act where plaintiff did not consent to circumcision that
was performed).
2
17-30519.374
the facts remain the same:
a) The Plaintiff would not have been at LHH’s emergency room but for his
intoxicated, injured state and his need for emergency medical treatment.
b) The Plaintiff’s contact with Mr. Dueitt was related to and arose out of that
emergency medical treatment.
Accordingly, Plaintiff’s claims against these Defendants are governed by the Medical
Malpractice Act, are premature in this Court, and should be dismissed.
II. Plaintiff Fails to State a Cause of Action for Kidnapping
As noted in the Defendant’s Rule 12(e) Motion for More Definite Statement (currently
pending before this Court), the Plaintiff’s Complaints were so confusing as to make it impossible
to determine which causes of action pertained to LHH and Mr. Dueitt. In his Opposition to the
Defendants’ Rule 12(e) Motion, and in his Opposition to the 12(b) Motion (addressed in the
instant Reply),9 Plaintiff apparently significantly narrows his claims asserted against LHH and
Mr. Dueitt. This is discussed in more detail in the Defendant’s Reply Memorandum Filed in
Response to Plaintiff’s Opposition to Defendants’ Rule 12(e) Motion for More Definite
Statement.
With this narrowing of claims, however, it has become apparent that the Plaintiff does
indeed intend to assert causes of action under Louisiana law for kidnapping against LHH and Mr.
Dueitt. Because the Plaintiff fails to make sufficient allegations which would support such
claims, his causes of action as to kidnapping should be dismissed.
Louisiana’s Kidnapping Statute, La. R.S. 14:44, cited by the Plaintiff, provides that
aggravated kidnapping is (1) the forcible seizing and carrying of any person from one place to
9
at p. 11 ¶4.
3
17-30519.375
another; or (2) the enticing or persuading of any person to go from one place to another; or (3)
the imprisoning or forcible secreting of any person.
The Plaintiff’s Complaints allege only that Mr. Dueitt would not allow his transfer to
another hospital until he provided a urine sample. Plaintiff never contends that he was prevented
by Mr. Dueitt from leaving the hospital at all, or that Mr. Dueitt otherwise confined his
movement. Thus Plaintiff fails to state a cause of action for kidnapping, and his claim for
kidnapping should be dismissed.
III. Conclusion
Considering the foregoing, and considering all arguments contained in Defendants’ Rule
12(b) Motion to Dismiss and Memorandum in Support, LHH and Mr. Dueitt respectfully request
that this Court grant their Rule 12(b) Motion, dismiss Plaintiff’s claims against them with
prejudice, and provide all other relief to which these Defendants may be entitled.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383

4
17-30519.376
/s/ Nancy Brechtel

NANCY BRECHTEL
5
17-30519.377

VERSUS NO. 07-6983
ORDER
Considering defendants' Motion for Leave to File a Reply to Plaintiff’s Opposition
to Defendants’ Rule 12(e) Motion for More Definite Statement, Record Doc. No. 71,
IT IS ORDERED that defendants are hereby GRANTED leave to file a reply
memorandum in support of their Motion for a More Definite Statement, Record Doc.
No. 55.


17-30519.378

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
REPLY TO PLAINTIFF’S OPPOSITION TO THE RULE 12(e) MOTION

FOR MORE DEFINITE STATEMENT FILED BY LOUISIANA MEDICAL CENTER
AND HEART HOSPITAL, L.L.C. and PHILIP DUEITT
May it Please the Court, the Louisiana Medical Center and Heart Hospital, L.L.C.
(“LHH”) and Philip Dueitt (jointly referred to hereinafter as “Defendants”), note that the Plaintiff
has made certain representations in his Opposition to Defendants’ Rule 12(e) Motion for More
Definite Statement that may clarify some of the many ambiguities in his Original Complaint,
17-30519.379
Amended Complaint, Second Amended Complaint and Third Amended Complaint (the
“Complaints”). Defendants therefore submit the instant Reply for the limited purpose of
clarifying the issues to be resolved by this Court in ruling on the Rule 12(e) Motion.
In his Opposition, Plaintiff contends that the Defendants Rule 12(e) Motion for More
Definite Statement should be denied. At the same time, however, Plaintiff clarifies (1) which
factual allegations pertain to LHH and Mr. Dueitt; (2) which causes of action are asserted as to
LHH; and (3) which causes of action are asserted as to Mr. Dueitt. The Plaintiff should be
ordered to amend his Complaints to memorialize these statements, as set forth below.1
I. Clarification of Factual Allegations Relating to LHH and Mr. Dueitt
In the allegations contained in his Complaints, Plaintiff ambiguously refers to
“Defendants” throughout the pleadings. It is thus impossible to determine which allegations
relate to LHH and Mr. Dueitt. Plaintiff’s Opposition, however, states that the following factual
allegations in his Original Complaint and Amended Complaint pertain specifically to LHH and
Mr. Dueitt:
a. Paragraphs numbered 32-57;
b. Paragraph number 65; and,
c. Paragraphs numbered 123-145.2
Considering these statements, and to ensure that the Defendants are on notice of all
allegations being made against them individually, Plaintiff should be ordered to amend his
Complaints to confirm that solely the factual allegations in the above paragraphs apply to LHH
and Mr. Dueitt.
1
The Defendants vehemently dispute liability in this matter, and seek a more definite statement of Plaintiff’s claims
so that they may have a fair opportunity to respond to Plaintiff’s Complaints.
2
Plaintiff’s Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite Statement, at
p. 2, ¶3, and at p. 3 ¶1 (entitled “Claim Summary”).
2
17-30519.380
II. Causes of Action Asserted Against LHH
Plaintiff’s Opposition also appears to further define the causes of action made as to LHH
as follows:
a. Plaintiff is not making claims pursuant to §1983 against LHH; nor is he
making any federal constitutional claims against LHH.3
b. Plaintiff concedes that he cannot bring claims pursuant to §1983 and
federal constitutional claims against LHH under a theory of respondeat
superior for the actions of Mr. Dueitt.4
c. Plaintiff claims LHH is liable under a theory of respondeat superior for
Mr. Dueitt’s violation of the following:
i. Louisiana Civil Code Articles 2315, 2316, 2317, 2320 and 2324;
d. Plaintiff confirms that he is not claiming that LHH violated the Hobbs
Act.6
3
at p. 3, ¶2 – p.4, ¶3 (entitled “Count I- §1983 Causes of Action,” “Count II – Enumerated §1983 Violations,” “Count
III - §1983 Conspiracy Cause of Action,” “Count IV - §1983 Liability of Sheriff, Deputies, and His Office,” “Count
V – Liability of District Attorney and His Office,” and, “Count VI Due Process and Equal Protection Violations.”);
P. 5 ¶6 – P. 6 ¶1 (entitled “IV. Third Amended Complaint”).
4
at p. 2, ¶¶2-3; P. 5 ¶6 – P. 6 ¶1 (entitled “IV. Third Amended Complaint”).
5
at p.5 ¶¶1-4 (entitled “Count VIII – State Law Claims,” “First Amended Complaint”).
6
at p.5 ¶5 (entitled “III. Second Amended Complaint”).
3
17-30519.381
e. All other claims and causes of action asserted by Plaintiff relate to other
defendants.
III. Causes of Action Asserted Against Philip Dueitt
Plaintiff’s Opposition also appears to further define the causes of action made as to Mr.
Dueitt as follows:
a. Plaintiff is making the following claims pursuant to §1983 against Mr.
Dueitt:
i. Excessive use of force, assault, and battery;
ii. Unlawful and malicious sequential detention and confinement;
and,
iii. Sheriff and District Attorney’s malicious abuse of process.7
b. Plaintiff asserts that Mr. Dueitt is liable under §1983 for conspiracy “with
defendant deputies.”8
c. Plaintiff clarifies that Counts IV and V of his original Complaint and
Amended Complaint do not apply to Mr. Dueitt.9
d. Count VI of Plaintiff’s Complaint and Amended Complaint alleges
violation of due process and equal protection arising out of arrest, false
charges and recharges. Despite the fact that this Count refers only to all
“sheriff-deputies-and-district-attorneys defendants,”10 Plaintiff now
7
at p. 3, ¶2 – 3 (entitled “Count I- §1983 Causes of Action,” “Count II – Enumerated §1983 Violations”).
8
at p. 3, ¶4 – p. 4 ¶1 (entitled “Count III - §1983 Conspiracy Cause of Action”).
9
at p. 4, ¶1-2 (entitled “Count IV – Liability of Sheriff, Deputies and His Office,” “Count V – Liability of District
Attorney and His Office).
10
Plaintiff’s Complaint at P. 25, ¶122; Plaintiff’s Amended Compliant at P. 26, ¶122.
4
17-30519.382
contends that Count VI applies to Mr. Dueitt as well.11
e. Plaintiff claims Mr. Dueitt is liable for violation of the following:
i. Louisiana Civil Code Articles 2315 and 2316;
f. Plaintiff confirms that he is not claiming that Mr. Dueitt violated the
Hobbs Act.13
g. Plaintiff claims that Mr. Dueitt is liable for “attempts to improperly
interrogate and coerce Gates in order to obtain statements to use against
him.”14
h. All other claims and causes of action asserted by Plaintiff relate to other
defendants.
IV. Plaintiff Stated In His Amended Complaint that He Does Not Aver a Cause
of Action for Violation of HIPAA; Yet the Instant Opposition Purports to
Assert Such Claims Against Mr. Dueitt
To add more confusion to this litigation, Plaintiff’s Opposition again purports to assert
claims for violation of HIPAA, 45 C.F.R. 164.513, et seq.15
In Plaintiff’s Amended Complaint, however, he stated that “Complainant does not aver
11
Statement,” at p. 4, ¶3 (entitled “Count VI – Due Process and Equal Protection Violations”).
12
Statement,” at p.5 ¶¶1-4 (entitled “Count VIII – State Law Claims,” “First Amended Complaint”).
13
Statement,” at p.5 ¶5 (entitled “III. Second Amended Complaint”).
14
Statement,” at p. 5, ¶6 – p. 6 ¶1 (entitled “Count IV – Third Amended Complaint”).
15
Plaintiff’s Opposition to Defendants Louisiana Heart Hospital and Dueitt’s Motion for More Definite Statement,
at p. 4, ¶4 (entitled “Count VII- Violation of 45 C.F.R. HIPAA).
5
17-30519.383
an independent cause of action arising from violation of these federal regulations.”16
Given Plaintiff’s judicial admission that he is not asserting a private cause of action under
HIPAA, Defendants request that this Court order the Plaintiff to amend his Complaints to
remove Count VII, or dismiss all claims asserted for violation of HIPAA.
V. Conclusion
Considering the foregoing, LHH and Mr. Dueitt respectfully request that this Court order
the Plaintiff to amend his Complaints to conform with the representations made in his Opposition
limiting the factual allegations and causes of action asserted against LHH and Mr. Dueitt as set
forth above.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383
/s/ Nancy Brechtel

NANCY BRECHTEL
16
Plaintiff’s Amended Complaint filed on January 22, 2008, p. 26, ¶123 (emphasis by Plaintiff).
6
17-30519.384
MINUTE ENTRY
WILKINSON, M.J.
APRIL 16, 2008
VERSUS NO. 07-6983
HEARING AND ORDER ON MOTION
APPEARANCES: Daniel Abel, representing plaintiffs; Nancy Brechtel, representing

defendants
MOTION: Louisiana Medical Center and Heart Hospital L.L.C. and Philip
Dueitt’s Rule 12(e) Motion for a More Definite Statement, Record
Doc. No. 55
O R D E R E D:
XXX : DISMISSED AS MOOT. Counsel jointly advised me during the hearing that
they have agreed to resolve this dispute over pleadings in the manner recited on the
record. Counsel further advised that the presiding district judge this morning has stayed
all further proceedings in this matter, so that no further pleadings are required at this
time. Accordingly, this motion is moot.

MJSTAR: 0:05
17-30519.385
MINUTE ENTRY
DUVAL, J.
APRIL 16, 2008

VERSUS NO. 07-6983
RODNEY JACK STRAIN, ET AL SECTION: K (2)
ORAL ARGUMENT
JOINT MOTION to Stay Proceedings by Robert Gottardi, Brian Williams, St. Paul Insurance
Company, Rodney Jack Strain, St. Tammany Parish Sheriff's Office, Walter P. Reed, St.
Tammany District Attorney's Office, Charles M. Hughes, Jr., Nathan Miller, filed 3/20/08, doc.
47.
MOTION to Dismiss Party by Louisiana Medical Center and Heart Hospital, LLC, Philip Duiett,
filed 3/31/08, doc. 56.
CASE MANAGER: SHEENA DEMAS

COURT RECORDER: CINDY USNER
APPEARANCES: Daniel Abel, Mark Hanna, Kathryn Landry,

Richard Simmons, Jr., & Nancy Brechtel
Court begins at 9:40 a.m.
Case called; all present and ready.
Oral argument by parties.
JOINT MOTION to Stay Proceedings is GRANTED (doc. 47) and MOTION to Dismiss Party
is GRANTED AND DENIED IN PART, (doc. 56) for the oral reasons stated on the record.
Court shall issue an order.
Court adjourns at 10:36 a.m.
JS-10 (1:16)
17-30519.386

VERSUS NO. 07-6983
ORDER
For the reasons stated on the record at the hearing held April 16, 2008, the Court granted
the “Motion to Dismiss Plaintiff’s Complaints Under Rule 12(b)” (Doc. 56) to the extent that it
sought to dismiss plaintiff’s claims against defendant Louisiana Medical Center and Heart
Hospital, L.L.C. The Court denied the motion in all other respects.
The Court notes that plaintiff’s counsel acknowledged on the record that he is not
alleging any claims for violations of the Hobbs Act, 18 U.S.C. §1951 or for violations of 45
C.F.R. §164.513 (HIPAA).
Additionally, for the reasons stated on the record, the Court granted the “Joint Motion For
Stay of Proceedings” (Doc. 47). Accordingly,
IT IS ORDERED that plaintiff Shane M. Gates’s claims against Louisiana Medical
Center and Heart Hospital, L.L.C. are dismissed with prejudice.
IT IS FURTHER ORDERED that this matter is STAYED, pending resolution of the
criminal charges in the Twenty-Second Judicial District Court against plaintiff Shane M. Gates,
or until such time as the Court, on motion of a party, lifts the stay.
IT IS FURTHER ORDERED that the Clerk of Court shall mark this action CLOSED
for statistical purposes.
17-30519.387
New Orleans, Louisiana, this 17th day of April, 2008.

17-30519.388

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
EX PARTE MOTION TO WITHDRAW COUNSEL OF RECORD
NOW INTO COURT, through undersigned counsel, comes Louisiana Medical Center
and Heart Hospital, L.L.C. (“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and
Mr. Philip Dueitt, who move to withdraw as counsel of record Becky Jo Hollen of Abbott,
Simses & Kuchler, APLC.
1
17-30519.389
WHEREFORE, Louisiana Medical Center and Heart Hospital, L.L.C. (“LHH”)
(formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt pray that Becky Jo
Hollen of Abbott, Simses & Kuchler, APLC, be withdrawn as counsel of record.
/s/ Nancy Brechtel

Telephone: (985) 893-2991
Facsimile: (985) 898-0383
I HEREBY CERTIFY that I have on this 23rd day of April, 2008, filed electronically a
/s/ Nancy Brechtel

NANCY BRECHTEL
2
17-30519.390
SHANE M. GATES, *
Complainant, *
vs.
* NO. 2:07-cv-06983
SHERIFF RODNEY JACK STRAIN, in his official
and individual capacity; ST. TAMMANY PARISH * CIVIL ACTION: § 1983
SHERIFF’S OFFICE; D.A. WALTER P. REED, in
his official capacity; ST. TAMMANY DISTRICT * JUDGE
ATTORNEY’S OFFICE; ATTORNEY CHARLES STANWOOD R. DUVAL, JR.
M. HUGHES, JR.; SHERIFF DEPUTY NATHAN * SECTION “K”
MILLER; SHERIFF DEPUTY ROGER
GOTTARDI; SHERIFF DEPUTY BRIAN * MAGISTRATE JUDGE
WILLIAMS; JOHN DOE NOS. 1-5; LOUISIANA JOSEPH C. WILKINSON, JR.
MEDICAL CENTER AND HEART HOSPITAL, * DIVISION: 2
LLC/and previously as LOUISIANA HEART
HOSPITAL, LLC; LACOMBE NURSE PHILIP *
DUEITT; ST. PAUL INSURANCE COMPANY;
ABCs INSURANCE COMPANIES, *
Defendants. *
ORDER
Considering the foregoing,
IT IS HEREBY ORDERED that the Louisiana Medical Center and Heart Hospital,
L.L.C. (“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt’s,
Motion to Withdraw Counsel of Record be granted in the above-entitled and numbered cause.
Pursuant to the foregoing Motion, only Ms. Becky Jo Hollen will be removed as counsel of
record.
New Orleans, Louisiana this ____ day of ________________, 2008.
JUDGE
17-30519.391

SHANE M. GATES, *
Complainant, *
vs.
* NO. 2:07-cv-06983
SHERIFF RODNEY JACK STRAIN, in his official
and individual capacity; ST. TAMMANY PARISH * CIVIL ACTION: § 1983
SHERIFF’S OFFICE; D.A. WALTER P. REED, in
his official capacity; ST. TAMMANY DISTRICT * JUDGE
ATTORNEY’S OFFICE; ATTORNEY CHARLES STANWOOD R. DUVAL, JR.
M. HUGHES, JR.; SHERIFF DEPUTY NATHAN * SECTION “K”
MILLER; SHERIFF DEPUTY ROGER
GOTTARDI; SHERIFF DEPUTY BRIAN * MAGISTRATE JUDGE
WILLIAMS; JOHN DOE NOS. 1-5; LOUISIANA JOSEPH C. WILKINSON, JR.
MEDICAL CENTER AND HEART HOSPITAL, * DIVISION: 2
LLC/and previously as LOUISIANA HEART
HOSPITAL, LLC; LACOMBE NURSE PHILIP *
DUEITT; ST. PAUL INSURANCE COMPANY;
ABCs INSURANCE COMPANIES, *
Defendants. *
ORDER
IT IS HEREBY ORDERED that the Louisiana Medical Center and Heart Hospital,
L.L.C. (“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt’s,
Motion to Withdraw Counsel of Record be granted in the above-entitled and numbered cause.
Pursuant to the foregoing Motion, only Ms. Becky Jo Hollen will be removed as counsel of
record.
24th day of ________________,
New Orleans, Louisiana this ____ April 2008.
JUDGE
17-30519.392

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MOTION TO RE-OPEN 42 U.S.C. §1983 ACTION

AND STAY UNCONSTITUTIONAL PROSECUTION
IN THE 22ND JUDICIAL DISTRICT COURT
FOR THE PARISH OF ST. TAMMANY
Now Into Court Comes Shane M. Gates, through undersigned counsel to move the Court to
reopen this matter and stay the unconstitutional prosecution pending in the 22nd Judicial District
Corur for the Parish of St. Tammany. On 16 April 2008, the Court stayed these proceedings but
advised that Gates could ask that the stay to be lifted in six months if the underlying matters had not
been resolved. [R.doc.#81]. It has been three years. The underlying matters are not resolved, their
prosecution is ongoing, but the defendants have admitted to facts which constituted the Hobbs Act
violations. While this matter has been stayed for almost three years, Gates’s exercise of his due
process and other federal and state constitutional rights have been stayed as well.
However, during those same three years, investigators and former law enforcement officers
have gathered evidence of Hobbs Act violations and discriminatory prosecution practices by the
District Attorney and the Sheriff and his attorneys, which undersigned counsel is now prepared to
present to this Court.
Gates filed this § 1983 action alleging excessive force violations by Sheriff’s Deputies and
Hobbs Act offenses by Chuck Hughes, counsel for Sheriff Jack Strain and District Attorney Walter
P. Reed, and attorneys working in his office. They were ordered to testify in a hearing for a motion
17-30519.393
to recuse the District Attorney. On 10 May 2010, they testified under oath.
Gates set forth the defendants’ Hobbs Act violations as well as their §1983 violations in his
original and amended complaints. Surprisingly at the 10 May 2010 hearing, the defendants admitted
those violations under oath. The facts which defendants have sworn to are now in evidence proving
allegations made over three years ago. Those admissions call for the Court to re-open this matter and
allow Gates to exercise his due process rights under the United States Constitution and federal law:
42 U.S.C. §1983.
The testimony of Hughes, Gracianette, Judge A. J. Hand, and Abel not only proved the
original Hobbs Act allegations, their testimony also proved that counsel for the Sheriff Jack Strain
and Strain’s uncle Chief Deputy Al Strain acted in concert with the District Attorney to recharge
Gates for the specific purposes of:
(1) Saving their client insurance companies money and costs of defense,
(2) Fabricating a letter for the deputies in which they would characterize themselves as
victims and being victimized by Gates whom they battered,
(3) Shielding the defendants deputies from §1983 liability for their use of excessive force
and other Fourth Amendment abuses;
(4) Intentionally obstructing Gates’ exercise of his due process right to file and have his
claims heard by fair and impartial courts, outside the influence of these sphere of
influence of these defendants, and
(5) Intentionally obstructing Gates’ exercise of request to have the federal courts protect
his constitutional and civil rights under 42 U.S.C. §1983 by fabricating evidence,
facts, and manipulating their local justice system to obstruct his rights.
The District Attorney Gracianette, Deputy Chief Al Stain, and Sheriff’s counsel Chuck
Hughes’s fabrication of the “Deputies-as-Victims” letter is an act of fraud, in and of itself, a violation
of Gates’s civil and due process rights. But under oath, both Gracianette and Hughes admitted that
this was done. The testimony of each is set forth in the Memorandum attached and cited to the
hearing transcript with is attached hereto.1
Using the authority of their offices and acting under the color of state law, each of the
1
Exhibit A - Testimony of 10 May 2011 Hearing to Recuse
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17-30519.394
defendants and those acting in concert with them, have violated the Hobbs Act [18 U.S.C. §1951]2
and Gates’ Fourth Amendment and Civil Rights [42 U.S.C. §1983].
The Court should REOPEN this matter and STAY the prosecution pending in the 22nd
Judicial District Court.
By: Daniel G. Abel Certificate of Service
s/ Daniel G. Abel s/ Daniel G. Abel
Daniel G. Abel [La Bar No. 8348] I have filed this pleading
2421 Clearview Parkway electronically and thereby
Legal Department - Suite 106 served all counsel: 16 March 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
2
As noted before, while private causes of action do not arise from the Hobbs Act, the Act enumerates the
conduct prohibited for persons acting under public authority, such as defendants in this case.
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17-30519.395

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MEMORANDUM IN SUPPORT OF MOTION

TO REOPEN 42 U.S.C. §1983 ACTION
AND STAY UNCONSTITUTIONAL PROSECUTION
IN THE 22ND JUDICIAL DISTRICT COURT
FOR THE PARISH OF ST. TAMMANY
Shane Gates moves the court to REOPEN this matter and STAY the unconstitutional
prosecution in the 22nd Judicial District Court in St. Tammany Parish.
I. Evidence of Hobbs Act and Due Process Violations Now in the Record
To decide this matter, the Court should consider questions concerning facts in evidence
in the record of the state court prosecution. The questions raised here, are answered in
the sworn testimony transcribed at the 10 May 2010 hearing, attached as Exhibit A. The
testimony given under oath proves the allegations made in the original complaint.
1. Does the sworn admission of the fabrication of the “Deputies-as-Victims” letter

constitute a Hobbs Act or constitutional rights violation, such as to require a STAY
of the state court proceeding and reopen this case?;
2. Does the sworn admission by ADA Gracianette that he worked with Sheriff’s
Counsel Chuck Hughes and Deputy Sheriff Al Stain, in writing the “Deputies-as-
Victims” letter, constitute a Hobbs Act violation and require a STAY of the state
court proceedings and reopen this case?;
3. Does the sworn admission and evidence that “Deputies-as-Victims” letter was written
on Chuck Hughes’s law office letterhead and came from his law office address,
further confirm the Hobbs Act violations and require a STAY of the state court
proceedings and reopen this case?;
4. Does the evidence that the “Deputies-as-Victims” letter was on letterhead with
Chuck’s Hughes’s new office address, although at the time when the witnesses
17-30519.396
alleged that the deputies sought this action, Hughes was not at that new
address—which further demonstrates that all aspects of the “Deputies-as-Victims”
letter and attempt to recharge Gates, was fabricated—further confirm the Hobbs Act
violations and require a STAY of the fraudulent state court proceedings and reopen
this case?;
5. Does the sworn admission by ADA Gracianette that the “Resisting Arrest” charges
were not necessary for the prosecution but that they were added at the request of the
Sheriff and his attorney Chuck Hughes, a violation of the Hobbs Act and require a
STAY of the state court proceedings and reopen this case?;
6. Does the sworn admission that Sheriff and Counsel asked the DA to file the
“Resisting Arrest” charges against Gates to bar Gates’s 42 U.S.C. § 1983
action—because at the time prior to the Fifth Circuit’s decision in Holly Bush [also
decided against Sheriff Jack Strain], a conviction for resisting arrest was an absolute
bar to excessive force claims—constitute a Hobb Act violation or other violation of
Gates’s constitutional rights, such as to require a STAY of the state court proceedings
and reopen this case?;
7. Does sworn testimony of the fact that Sheriff’s Attorney Chuck Hughes told Gates’s
counsel that he would call the DA and have the “Resisting Arrest” charges added, if
Gates filed a § 1983 action in federal court and that he, acting in concert with the
Chief Deputy Al Strain and ADA Gracianette, did have those charges added,
constitute a Hobbs Act and due process violation, such as to require a STAY of the
22nd Judicial District Court’s proceedings and reopen this case?;
8. Does the fact that during the 10 May 2010 hearing, a sequestered witness was
provided with the testimony of other witnesses, prior to testifying himself, constitute
a violation of Gates’s constitutional rights, such as to require a STAY of the 22nd
Judicial District Court proceedings and reopen this case?; and
9. Does the sworn testimony and evidence now in the record of the 22nd Judicial District
Court’s proceedings, prove that Hobbs Act purposes as well as the lack of integrity
and failure of the DA and Sheriff to be constrained by the Louisiana and United
States Constitutions, with which the entire prosecution was handled, confirm that this
matter should be reopened and a STAY issued as to the state court proceedings and
reopen this case?
Three years ago, this Court stayed these proceedings but advised that Gates could ask that
the stay to be lifted in six months if the underlying matters had not been resolved [16 April
2008][R.doc.81]. Shane Gates moves the Court to reopen this matter and stay the unconstitutional
prosecution pending in the 22nd Judicial District Court for the Parish of St. Tammany.
Although the underlying matters are not resolved, the defendants—under oath—have
admitted to facts which constituted the Hobbs Act violations alleged in Gates’s original complaint.
While this matter has been stayed for almost three years, Gates’s exercise of his due process and
other federal and state constitutional rights have been stayed as well.
II. Evidence & Testimony Proving Hobbs Act and § 1983 Violations
During those same three years, investigators, former law enforcement officersand counsel
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have gathered evidence of Hobbs Act violations and discriminatory prosecution practices by the
District Attorney and the Sheriff and his attorneys, which undersigned counsel is now prepared to
present to this Court.
Hobbs Act offenses by Chuck Hughes, counsel for Sheriff Jack Strain and District Attorney Walter
P. Reed, and attorneys working in his office. They were ordered to testify in a hearing for a motion
to recuse the District Attorney. On 10 May 2010, they testified under oath.
Surprisingly, at the 10 May 2010 hearing, the defendants admitted those violations under
oath. The facts which defendants have sworn to are now in evidence proving allegations made over
three years ago. Those admissions call for the Court to reopen this matter and allow Gates to exercise
his due process rights under the United States Constitution and federal law: 42 U.S.C. §1983.
III. 10 May 2010 - Testimony Given Under Oath
original Hobbs Act allegations, their testimony also proved that counsel for the Sheriff Jack Strain
and Strain’s uncle Chief Deputy Al Strain acted in concert with the District Attorney Gracianette,
to recharge Gates for the specific purposes of:
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this was done. The testimony of each is set forth in the paragraphs below and cited to the hearing
transcript which is attached hereto.1
The Court should reopen this matter and stay the prosecution pending in the 22nd Judicial
District Court.
IV. Facts Now In Evidence As Sworn to by Defendants and Their Agents
These facts were testified to under oath on 10 May 2010 3:
(1) Sheriff’s Attorney Charles Hughes admitted that he asked the District Attorney to add
charges against Gates in order to save money for his insurance company [$500,000]
and to protect certain deputies from the civil rights actions pending against them in
federal court [Exhibit B - Recusal Hearing Transcript, 10 May 2010, pp. l31-139];
(2) ADA Ronald Gracianette testified that there was no need to add “Resisting Arrest”
charges for the purpose of prosecution, as those charges were not enhancable and
served no purpose for the prosecution whatsoever [Exhibit B - Recusal Hearing
Transcript, 10 May 2010, p.85-89];
(3) ADA Ronald Gracianette then testified that he personally told Hughes what Hughes
and the Sheriff could do to have the District Attorney add the charges of “Resisting
Arrest”- They would have to characterize the deputies as Victims of Gates [Exhibit
B - Recusal Hearing Transcript, 10 May 2010, p.85-93];
(4) Hughes testified that he told the Sheriff’s uncle Chief Deputy Al Strain what the
1
Exhibit A - Transcript of 10 May 2011 hearing
2
3
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District Attorney wanted the deputies [“As Victims”] to write, in order for the
District Attorney to add “Resisting Arrest” charges [Exhibit B - Recusal Hearing
Transcript, 10 May 2010, p.120-125];
(5) Hughes testified that the deputies’ letter came from his law office and was delivered
to the District Attorney, just before the District Attorney recharged Gates with
resisting arrest. [Exhibit B - Recusal Hearing Transcript, 10 May 2010, p. 100, ff.];
(6) Hughes told Abel when they first met that he would have resisting arrest charges
added, as he did, if Gates went forward with any civil rights claims [Exhibit B -
Recusal Hearing Transcript 10 May 2010, pp. 36-38];
(7) ADA Gracianette testified that the District Attorney, he, and ADA Dearing have
been named in the civil rights action pending in federal court-[but this would not
influence his decision in adding charges or prosecuting the underlying case] [Exhibit
B - Recusal Hearing Transcript, 10 May 2010, pp.93-94].
The public or any “reasonable person” would conclude that Hughes used his public position
with the Sheriff in concert with Chief Deputy Al Strain and the District Attorney’s office to institute
the specific prosecution for purposes and in a manner prohibited by the federal and state
constitutions and Louisiana law. These matters arose from a traffic stop during which certain sheriff
deputies violated Gates most elemental civil rights.
V. The Underlying Fabrication of Facts by Deputies and District Attorney
Subsequent to a traffic stop, St. Tammany Sheriff’s deputies beat-up Shane M. Gates after
he was handcuffed, causing his doctors to take 287 CT facial images and 34 CT brain images and
diagnose him with permanent nerve damage and prognose four [4] corrective surgeries; [Exhibit A -
Photographs] Private investigators have located a former officer on the scene that night and will
testify that the supervisor had to intervene to stop the officers from continuing to beat him.
At the hospital the deputies began fabricating facts including a BAC result of 0.273 which
medical experts have stated that a BAC in that range is not possible considering Gates’ GCS scores
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17-30519.400
and E/V/M results taken and recorded at the same time.
Realizing the extent of Gates’ injuries at the hospital, the deputies created “cover charges”
in anticipation of Gates’s seeking to redress their brutality and use of excessive force. In concert with
hospital personnel, the deputies had Gates shipped out of Louisiana to Hattiesburg, Mississippi,
claiming that there were no doctors on duty that could treat him in Jefferson, Orleans, or St.
Tammany parishes. Investigators have confirmed that there were such doctors on duty in Jefferson,
Orleans, and also St. Tammany parishes.
The deputies decided later to charge Gates’s with Obstruction of a Highway of Commerce,
a felony. They charged him with a felony in order to cover up for the serious damages which they
have inflicted upon him. When the charges got to the District Attorney the Obstruction change was
converted to a Aggravated Flight, still a felony. The District Attorney changed the charge to
“Aggravated Flight” so that they would have a felony with which to bargain against the serious
injures the deputies had inflicted upon him. A cursory look at the police notes from that night, prove
that Gates did not obstruct anything, much less I-12 Highway.
The police never alleged “Aggravated Flight, nor was Gates ever arrested for “Aggravated
Flight”; he was ONLY arrested for DUI and a warrant for that offense was signed by the presiding
judge. The judge signed a warrant for “Obstruction of a Highway”, but that warrant was never served
and Gates was never arrested on any charge other than DUI.
Gates was never arrested for “Aggrevated Flight” and no warrant for that charge was ever
issued. Without any conversation or further interaction with the ONE officer who made the
stop—not the officers who arrived later, at the scene, who were the only ones who signed affidavits
initiating the arrest—the District Attorney simply charged Gates with felony flight that might fit once
the officer was told what to say. Obstruction of a highway could not fit any facts.
Nor does aggravated flight fit once the inconsistencies between the dispatch, the report and
the transcripts are examined carefully. The charges were fabricated by the District Attorney without
any affidavit or sworn statement from or conversation with the ONE officer who could have been
the only witness to the stop. Hughes and Gracianette both testified that there was no contact with this
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17-30519.401
officer prior to fabrication of the “Deputies-as-Victims” letter, to which they were all parties.
The District Attorney charged Gates with Aggravated Flight and DWI, based on the
fabricated BAC results. The District Attorney told Gates’ attorney Mr. August J. Hand, that he would
consider dropping the charges if Gates would give the Sheriff and his deputies a hold harmless
against any federal civil rights action.
Attorney Abel met with Attorney Hughes at Hughes Office in Mandeville at 1:30 P.M. on
24 July 2007. Abel and Hughes discussed the extent of Gates’ injuries, the required surgeries, and
the likelihood that Gates would file a civil rights suit.
Sheriff Attorney Charles M. Hughes, Jr. told Abel that if Gates filed a civil rights suit, he
would call the District Attorney and have Gates charged with Resisting Arrest, expressly for the
purpose of obstructing or preventing any redress of the violation of Gates’s civil rights, which on the
Friday before the Monday morning trial—true to his word, Hughes did just that. The fact of this
meeting and Hughes’ threat are also evidenced under oath. [See : Testimony from 2010 Hearing cited
in paragraph 6 on page 3 above].
Three [3] days later, on the Monday of trial the District Attorney recharged Gates with the
exact charges threatened by Hughes, expressly for the purpose of obstructing or preventing Gates
from seeking redress for his injuries and from the violations of his constitutional and civil rights.
As these matters were undisputed by testimony at the 10 May 2010 Recusal Hearing, had the
Trial Court applied the King-Tate objective, reasonable person test, It would have recused the
District Attorney.
At the first recusal hearing, the District Attorney argued that every time a defendant wants
to challenge a prosecution, he will file a motion to recuse the District Attorney, then Judge DiMiceli
replied that “no one would see facts like these again in years.” [See: Transcript of First Recusal
Hearing, page 40]. She told the District Attorney that they should recuse themselves.
VI. Hughes Admits Protecting Insurance Company: Goal of Recharging Gates
Hughes represents St. Pauls and the Sheriff; under oath he admitted that he was motivated
to have Gates re-charged, in part to save money for the insurance company. His sworn testimony is
an admission of the facts alleged against him, the Sheriff, and the DA in the federal Hobbs Act
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portions of the complaint.
The reasonable person must ask: Who Benefits From Gates Being Charged? The sheriff
deputies defendants are protected by the sheriff’s insurance coverage, so if they are found to be a
fault in causing Gates’s damages, they would not pay any part of any compensation, St. Paul-
Travelers Insurance would.
That counsel for an insurance carrier could and did call a district attorney and have charges
brought against a citizen who would assert his constitutional and civil rights in the federal courts
calls into question the integrity of Louisiana’s system of justice.
That counsel can do so and did so, is particularly egregious when he is able to employ the
otherwise legitimate authority of the state, to the sole benefit the insurance-carrier client—and his
insureds.
It begs the question: who benefits when a citizen like Gates is charged with a crime for the
sole and acknowledged purpose of obstructing his civil rights and using constitutionally mandated
offices to protect the financial interests of the insurance company and the others who violated his
rights?
Sheriff’s/Insurance counsel Hughes believed correctly—until January of the year 2009—that
if Gates was convicted of Resisting Arrest that conviction would bar any excessive force claim Gates
might assert under 42 U.S.C. §§ 1983, et seq. Hughes and his co-counsel had a similar excessive-
force claim dismissed in the Holly Bush v. Strain case—where St. Tammany Sheriff deputies had
slammed Miss Bush into the windshield of a car after they handcuffed her. The case was dismissed
under an application of Heck v. Humphery which was law in the United States Fifth Circuit until
January of 2009.
The U. S. Fifth Circuit ultimately overturned the trial court’s dismissal, reinstated the claim
and the Sheriff’s Office paid Holly Bush for her injuries. Hughes in concert with the District
Attorney, attempted to do to Gates what they thought had worked against Holly Bush. It had not.
The Court should determine whose interests are at stake. To do so, it should know whois
paying the District Attorney’s and the Sheriff’s attorney fees—the taxpayers or insurance
company—and who could be liable for the civil judgement. If insurance companies pay the legal
fees for either or both the District Attorney or the Sheriff and counsel for one can ask the other to
press resisting arrest charges which would benefit the carriers financially—the Courts should know
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and should consider this information in not only this case, but in all such matters.
VII. A Defendant in a Federal Lawsuit Cannot Be a Disinterest Party
These charges have been made and shall be proved in the United States District Court Eastern
District of Louisiana against the District Attorney, the Sheriff, and his counsel. Mr. Hughes has now
admitted under oath that he got the District Attorney to add the charges for several specific purposes:
to save money for the insurance company [10 May 2010 - Hearing Transcript at page 109, lines 1-5;
and to save the deputies from the 42 U.S.C. 1983 which Gates had filed.]. Not only did Hughes
threaten Gates and Counsel with this criminal prosecution, Hughes and the District Attorney did
have Gates re-charged. They carried through with their threats and used the authority of their offices
for personal gain and for the personal gain of others—in clear violation of the Hobbs Act.
Gracianette said that he was a defendant, that Dearing was a defendant and that Walter Reed
was a defendant, but the Trial Court found that none of them has a personal interest in prosecuting
Gates or in adding the charges which under Heck would have barred his claims.
VIII. The Complaint’s Alleged Hobbs Act / Due Process Violations Now Admitted
Defendants Hughes, St. Paul’s Insurance, the Sheriff’s Office, the District Attorney’s Office
and others have all been publically accused of and sued for conspiring to and extorting by force, by
violence, and by fear to induce and attempt to induce Gates to give up his constitutional and civil
rights, as well as his property and property rights, in violation of 18 U.S.C. 1951.
Defendants used and attempted to use Gates’s reasonable fear of personal and economic harm
in order to induce him to consent to give up his property rights.
Defendants’ conduct benefits St. Paul Insurance and thereby obstructs and otherwise affects
legitimate interstate commerce, such as to cause not only Gates but all persons similarly situated to
Gates to give up their rights including but not only their constitutional, civil, and property rights, in
particular as St. Paul Insurance insures not only the St. Tammany Sheriff’s office, but a number and
variety of other law enforcement agencies thought Louisiana and the United States of America.
Defendants St. Paul, its agents, attorneys, and clients have used the otherwise legitimate
authority and public offices in this instance the Sheriff’s Office and that of the District Attorney to
extort Gates—and persons other than Gates—to give up their constitutional, civil, and property rights
in violation 18 U.S.C. 1951, et seq. [Hobbs Act].
While certain of the defendants may not be recipients of the benefits of the extortion visited
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upon Gates, the corpus of the corrupt benefits certainly accrued to some of the parties including the
defendant public agencies and St. Paul’s insurance—who would have otherwise been obligated to
compensate Gates and other persons similarly situated for the injuries and damages done. Evans v.
United States, 504. U.S. 255 [1992] and United States v. Margiotta, 688 F.2d 108, 130.
Defendants’s violations of the Hobbs Act are in themselves grounds for and proof of the bad-
faith prosecution of complainant Gates and reason why Gates has asked the United States District
Court to enjoin the state court prosecution of its charges.
IX. The Admitted Hobbs Act Violations Require The Prosecution Be Enjoined.
While suit has been filed against the District Attorney—in his official capacity only, as in
Burge4—the civil suit of itself is not the only violation of Gates’s civil rights. The ongoing
prosecution in St. Tammany is a continuing violations of his federal and state constitutional rights
as well.
Not surprisingly, counsel for the D. A. would have the Court believe that the actions of the
Office of the District Attorney—and the actions of the assistants themselves—are never subject to
review. Nothing could be farther from the truth.
As the law is clear and supports Gates’s § 1983 claims, so are the facts clear. Their violations
of the code of judicial conduct evident from those facts call for recusal of the District Attorney. The
District Attorney conspired with Hughes to re-charge Gates when he [ADA Gracianette] testified,
that the charge itself was not necessary. Not necessary except to bar the 42 U.S.C. 1983 claims.
District Attorneys and their assistants as quasi-judicial officials must be held to the same
standards as other members of the judiciary. The Code of Judicial Conduct applies to them and a
breach of that Code calls for removal. The District Attorney’s complicity in these matters and their
assistance in helping the sheriff and his deputies fabricate the “Deputies as Victims” letter, is of itself
violation of the Code of Judicial Conduct and the Hobbs Act as it was done for the purpose of
personal gain for the Sheriff, his deputies and their insurance carrier.
The District Attorney’s acts violate each of the following canons and as long as this
prosecution is allowed to go forward, continues to violate Gates’s due process and other federal and
state constitutional rights.
4
Burge v. St. Tammany, 187 F. 3d 452
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17-30519.405
Canon 1: [They] must . . . personally observe, high standards of conduct so that the integrity
and independence of the judiciary may be preserved.
Canon 2 (A): [They] . . . shall act at all times in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.
As used in this Code, “impartiality” or “impartial” denotes absence of bias or prejudice in
favor of, or against, particular parties or classes of parties . . . .
Canon 2 (B): [They] shall not convey or permit others to convey the impression that they are
in a special position to influence . . . .
Canon 3 (A)(1): [They] shall be unswayed by partisan interests . . . .
The clearly-documented actions of the District Attorney assistants and the Sheriff discourage
public confidence in the integrity and impartiality of the judiciary. Their actions confirm what the
public already suspects—prosecutors file charges to cover up the abuses that police visit on citizens
and to protect those officers from the ramifications of the own actions and now to protect the
insurance companies who provide coverage for their actions. But the actions of each of these
defendants constitute Hobbs Act violations as well as violations of his civil rights.
X. Prayer
Defendants have now testified and admitted facts which constitute Hobbs Act violations as
well as § 1983 violations of Gates’s civil rights.
That counsel for an insurance company can call the district attorney and have him file
criminal charges against an individual for the stated purpose of obstructing that person’s civil rights
claims compromises the integrity of the justice system and the courts. The conflict is particularly
egregious when counsel for the insurance company is also counsel for a public official—in this
instance the sheriff. That the District Attorney acted in concert to help counsel for the Sheriff
accomplish this objective, further undermines the public’s belief in Louisiana’s system of justice.
That insurance companies and their representatives can control or ever influence the acts and
actions of judicial officers undermines the democratic foundations upon which the United States and
Louisiana constitutions were ordained and established. This conflict violates the constitutional
mandates upon which those public offices are established and by which they are governed.
To preserve the constitutional rights and overriding interests of the public and its citizens and
to confirm the integrity of our justice system, this Court should reopen this matter and stay the
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unconstitutional prosecution now pending in the 22nd Judicial District Court for the Parish of St.
Tammany.
Respectfully submitted, Certificate of Service
/s/ Daniel G. Abel /s/ Daniel G. Abel

Daniel G. Abel [La. Bar No. 8384] I filed this pleading electronically
2421 Clearview Parkway with the Clerk of Court on this17th
Legal Department / Suite 106 day of March, 2011 and thereby
Metairie, LA 70001 have served all counsel.
Office: 504.208.9610
Facsimile: 504.888.577.8815
Counsel for Shane Michael Gates
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17-30519.407
1 TWENTY-SECOND JUDICIAL DISTRICT COURT
2 PARISH OF ST. TAMMANY
3 STATE OF LOUISIANA
4
5
6
7
9 VERSUS NO. 423508 / 423509
10 SHANE MICHAEL GATES
11
* * * * * * * * * * * * * * * * * * * * * * * * * *
12
13 TRANSCRIPT OF PROCEEDINGS taken before
the Honorable William J. Crain, Judge
14 Presiding, Division G, Twenty-Second Judicial
District Court, Parish of St. Tammany, State
15 of Louisiana, on May 10, 2010, in Covington,
Louisiana.
16
17
18
APPEARANCES:
19
NICK F. NORIEA, JR., ESQ.
20 (ASSISTANT DISTRICT ATTORNEY)
21 MARTIN E. REGAN, JR., ESQ.
DANIEL G. ABEL, ESQ.
22 (FOR SHANE MICHAEL GATES)
23 RICHARD T. SIMMONS, ESQ.
(FOR CHARLES M. HUGHES, JR.)
24
25
26
27
28 REPORTED BY:
29 Theresa Trapani, CCR
Official Court Reporter
30 Certificate No. 93047
31
32
17-30519.408
1
1 I N D E X
2
EXAMINATIONS
3
4 PAGE
5
DANIEL G. ABEL
6
Direct Examination by Mr. Regan 5
7 Cross-Examination by Mr. Noriea 27
Redirect Examination by Mr. Regan 44
8
9
JUDGE AUGUST J. HAND
10
Direct Examination by Mr. Regan 49
11 Cross-Examination by Mr. Noriea 55
Redirect Examination by Mr. Regan 56
12
13
RONALD T. GRACIANETTE
14
Direct Examination by Mr. Noriea 59
15 Cross-Examination by Mr. Regan 62
Redirect Examination by Mr. Noriea 70
16
17
CHARLES M. HUGHES, JR.
18
Direct Examination by Mr. Noriea 71
19 Cross-Examination by Mr. Regan 83
Redirect Examination by Mr. Noriea 101
20
21
22
23
24
25
26
27
28
29
30
31
32
17-30519.409
2
1 (WITH THE DEFENDANT PERSONALLY
2 PRESENT AND ATTENDED BY COUNSEL, THE
3 FOLLOWING PROCEEDINGS WERE HELD IN OPEN
4 COURT.)
5 THE COURT:
6 All right. What about Gates? Is
7 everyone here on the Gates matter? I want
8 to call Shane Michael Gates.
9 All right, State v. Shane Michael
10 Gates. Counsel, if you would, make your
11 appearances, please.
12 MR. REGAN:
13 Your Honor, Martin Regan appearing
14 at this time on behalf of the defendant,
15 Shane Michael Gates, in a motion to recuse
16 the district attorney's office. At this
17 time, I'm accompanied by Mr. Danny Abel
18 who is counsel as well.
19 THE COURT:
20 All right, you may proceed.
21 MR. SIMMONS:
22 Your Honor, if I might, Rick Simmons
23 with Hailey McNamara on behalf of Mr.
24 Hughes. I'm filing today a motion to
25 enroll. I'm counsel for Mr. Hughes in the
26 civil litigation in Federal court.
27 And although there's been a subpoena
28 for Mr. Hughes that says they're not going
29 to get into any attorney client issues --
30 THE COURT:
31 You're here to make sure that
32 doesn't happen. I understand.
17-30519.410
3
1 MR. SIMMONS:
2 Right.
3 THE COURT:
4 You may proceed.
5 MR. REGAN:
6 Your Honor, if I could, I want to
7 call Mr. Danny Abel to the witness stand
8 first, and I'd move for sequestration of
9 all other witnesses.
10 THE COURT:
11 All right. Okay. All witnesses
12 need to go outside and do not discuss the
13 case.
14 Mr. Hughes, I guess you are the only
15 one that would be subject to the
16 sequestration.
17 (AT THIS TIME, THE PROSPECTIVE
18 WITNESSES FOR THE PARTIES LEFT THE
19 COURTROOM.)
20 MR. REGAN:
21 At this point, we've also, I
22 believe, got subpoenas for Mr. Gracianette
23 of the District Attorney's Office and Mr.
24 Dearing of the District Attorney's Office;
25 and we also have, Judge, His Honor A.J.
26 Hand.
27 THE COURT:
28 Have you-all made arrangements for
29 all of them to be here?
30 MR. NORIEA:
31 I have Ronnie and Bruce here.
32 THE COURT:
17-30519.411
4
DANIEL G. ABEL
1 I understand.
2 MR. REGAN:
3 And Judge Hand has been contacted
4 and is in the building.
5 THE COURT:
6 They are subject to sequestration,
7 as well.
8 MR. REGAN:
9 May it please the Court, I call Mr.
10 Danny Abel to the witness stand and ask
11 him to be sworn in.
12 (DANIEL G. ABEL, AFTER HAVING BEEN
13 FIRST DULY SWORN UNDER OATH, DID TESTIFY
14 AS FOLLOWS:)
15 THE WITNESS:
16 Afternoon, Your Honor.
17 DIRECT EXAMINATION BY MR. REGAN:
18 Q. Would you state your full name for the record.
19 A. Daniel G. Abel.
20 Q. And, sir, do you practice law in the state of
21 Louisiana?
22 A. Yes, sir.
23 Q. And your professional address for the record?
24 A. 100 Lilac, L-i-l-a-c, Street, Metairie,
25 Louisiana 70005.
26 Q. And how long have you been practicing law as a
27 licensed attorney in the state?
28 A. Twenty-eight, thirty years.
29 Q. Thank you, sir.
30 Did you at one time -- were you -- let me ask
31 you: Did you, in fact, file in this court, in the
32 22nd Judicial District Court, a motion to recuse the
17-30519.412
5
DANIEL G. ABEL
1 District Attorney's Office?
2 A. Yes, sir.
3 Q. And, sir, I would -- are you currently
4 representing Mr. Shane Gates in any capacity?
5 A. In this, in this court?
6 Q. Yes, sir.
7 A. I was asked by Mr. Hand, Judge Hand now, to
8 enroll in this matter to do the Constitutional
9 issues. Of course, I presume after I take the stand
10 today that won't go forward. So, I mean, I'll no
11 longer be able to represent him.
12 Q. I understand. And thereafter Martin Regan
13 enrolled as counsel of record?
14 A. Yes, sir, you enrolled on his behalf.
15 Q. Thank you. And just for the record, Mr. --
16 now Judge Hand was, in fact, counsel of record prior
17 to my enrolling?
18 A. Judge Hand was Mr. Gates' attorney, and it was
19 assigned to Judge DiMiceli's court.
20 Q. Sir, if could I ask you, at this point, in
21 addition to filing the motion to recuse the District
22 Attorney's Office, did you include an affidavit in
23 support of that?
24 A. Yes, sir, I did.
25 Q. And, would you briefly state, at the beginning
26 now, the fundamental basis for the motion to recuse
27 as you saw at the time you filed the motion and
28 affidavit.
29 A. Yes, sir. Basically, Mr. Gates had left the
30 Brian Harris Dealership where he had purchased a car.
31 Within about 20, 15 or 20 minutes after that, he was
32 stopped by the St. Tammany Parish's Sheriff's Office.
17-30519.413
6
DANIEL G. ABEL
1 MR. REGAN:
2 I'm sorry, I apologize. I just --
3 THE COURT:
4 Peter, hey, Peter, you can't do
5 that. Why don't you-all do this, move to
6 the back row, at least. I think you had
7 three that you were talking to.
8 MR. IERARDI:
9 I'm finished discussing.
10 BY MR. REGAN:
11 Q. You were saying. I apologize. You were
12 talking about how the incident began.
13 A. Shortly after purchasing the new car at Brian
14 Harris, he was stopped on I-12 by a deputy with the
15 St. Tammany Parish's Sheriff's Office. He was
16 subsequently brutally beaten.
17 MR. NORIEA:
18 Your Honor, let me object to this
19 testimony. This is all hearsay testimony.
20 THE COURT:
21 Overruled.
22 THE WITNESS:
23 He was handcuffed and brutally
24 beaten by the sheriff's deputies and then
25 taken to the Lacombe, to the Lacombe
26 hospital. And what I believe is cover
27 charges, he was charged with a number of
28 things to cover up the fact that the
29 sheriff's officers had beaten him so
30 brutally.
31 He's had one surgery already. The
32 doctors say that he is going to have to
17-30519.414
7
DANIEL G. ABEL
1 have three more surgeries. So to cover
2 for what they did, they charged him with a
3 number of things.
4 BY MR. REGAN:
5 Q. In your allegations, you alleged that the
6 sheriff's attorney's at this point, Mr. Charles
7 Hughes, who is named as a defendant in your case in
8 Federal court, conspired with the District Attorney's
9 Office to bring additional charges against Mr. Gates
10 in order to obstruct his due process rights, at this
11 point?
12 A. That's correct.
13 Q. Okay. And that, in fact, by doing that, he is
14 denied a redress in Federal court?
15 A. They attempted to deny the redress in Federal
16 court. In addition to that, they obviously violated
17 -- they threatened to charge him with additional
18 charges, which they did. He threatened to do that
19 and they did it.
20 Q. And who is he?
21 A. Mr. Hughes.
22 Q. Now, let me ask you the fundamental overall
23 principal here, and I'll go to as to why you could
24 come to that conclusion. At any time were you
25 offered a settlement, to accept a settlement in
26 return for dismissing charges against Mr. Gates?
27 A. Mr. Hand, Judge Hand, was offered that on
28 behalf of Mr. Gates.
29 Q. And the condition was that if he accepted a
30 certain amount of money, specifically 10,000, that
31 the case would go away?
32 A. That was the offer told to Mr. Hand and
17-30519.415
8
DANIEL G. ABEL
1 subsequently told to me.
2 Q. To you. And that was told to you by whom?
3 A. By Mr. Chuck Hughes, Charles Hughes.
4 Q. When that offer to drop criminal charges in
5 return for a civil settlement was turned down, what,
6 if anything, happened with respect to the District
7 Attorney's Office?
8 A. Let me back up a little bit.
9 Q. Please.
10 A. What happened on July 24th, is I went to Mr.
11 Hughes because Judge Hand had gone to the District
12 Attorney and met on number of occasions with the
13 District Attorney because of the severity of the
14 damages that they had done to Mr. Gates.
15 Mr. Hand had said that I needed to meet with
16 Mr. Hughes to see if there was something that we
17 could do to resolve the case, the civil rights case,
18 that Mr. Gates had against -- or would have against
19 the Sheriff's Office.
20 I went to Mr. Hughes' office on the 24th of
21 July, about 1:30. Their office was in the IberiaBank
22 building at the time. I met with him and I showed
23 him the photographs which I believe you have.
24 Q. Yes. Let me ask you, at this point, you
25 previously marked Exhibit A photographs to your
26 petition in your affidavit?
27 A. Yes, sir.
28 MR. REGAN:
29 May I approach the witness?
30 THE COURT:
31 You may.
32 BY MR. REGAN:
17-30519.416
9
DANIEL G. ABEL
1 Q. I'll mark these for purposes of a defense
2 exhibit. I ask you, sir, if you can identify those
3 photographs. Were those the photographs that you
4 brought to Mr. Hughes' office?
5 A. Yes, these are the photographs that I brought
6 to Mr. Hughes' office.
7 Q. And, in fact, there are how many pages to that
8 exhibit?
9 A. There are two photographs --
10 Q. Yes, sir.
11 A. -- on three of the pages, that's six. And
12 there is one photograph on the final page, so seven
13 photographs total.
14 MR. REGAN:
15 I would now offer into evidence
16 what's marked Defendant's Exhibit 1.
17 MR. NORIEA:
18 I'll object to it. I think it's
19 irrelevant, the photographs, Your Honor.
20 This is a recusal hearing. This isn't a
21 personal injury case.
22 THE COURT:
23 What's the relevance?
24 MR. REGAN:
25 The relevance is what we see next is
26 violation of threatening additional
27 criminal prosecution in return for
28 settling a civil case, which is quite
29 serious. We can never under our Code even
30 threaten additional prosecution of
31 additional charges if you don't take an
32 offer in a civil case, and that's where
17-30519.417
10
DANIEL G. ABEL
1 we're headed.
2 And the testimony will continue with
3 Judge Hand to support this. And then when
4 they turned down a settlement, at this
5 point, then there were additional charges
6 brought by the District Attorney's Office
7 to protect them.
8 THE COURT:
9 I understand. I read all the First
10 Circuit and opinion in the case as well --
11 MR. NORIEA:
12 I'll object to the relevance. It's
13 totally irrelevant in a recusal hearing.
14 The main issue of a recusal doesn't deal
15 with the amount of injury that a defendant
16 has when he is arrested for DWI.
17 MR. REGAN:
18 I just suggest it wasn't a frivolous
19 matter. It wasn't an attorney trying to
20 do anything improper, at this point.
21 That's all.
22 THE COURT:
23 Let them be admitted.
24 THE WITNESS:
25 Mr. Regan, to complete the answer,
26 it was based on these photographs that Mr.
27 -- because I've shown Mr. Hughes these
28 photographs.
29 THE COURT:
30 I've already allowed them to be
31 admitted.
32 BY MR. REGAN:
17-30519.418
11
DANIEL G. ABEL
1 Q. Okay, they are in. Let's go to the meeting
2 with Mr. Hughes at this point, okay. Now, just hold
3 them right there a minute with you. Set them down.
4 Now, when you met with Mr. Hughes, at this
5 point, approximately how many times did you meet with
6 Mr. Hughes?
7 A. I guess, three or four times. We had some
8 other matters, too. So, in addition to this one, we
9 met three or four times, but certainly three times.
10 But the most important time was we met on July 24th
11 at his office specifically to discuss this -- for
12 him, to see these photographs which I showed him,
13 review the medical records, which I showed him. And
14 at that time Mr. Hughes had the docket sheet with him
15 as well.
16 Q. Can you help us with the year? That was
17 July 24th of what year?
18 A. 2008, I believe. It's in the docket.
19 Q. It's part of the --
20 A. It's part of the docket, part of the record.
21 Q. We're good with that. Now, after you met with
22 him, at this point, what was the discussion regarding
23 -- were there criminal charges pending against Shane
24 Gates at this time?
25 A. Yes, sir, there were.
26 Q. Did they, in fact -- were these charges, in
27 fact, enhanced or increased after your last meeting
28 with Mr. Hughes?
29 A. Mr. Hughes told me --
30 Q. What did he tell you sir?
31 A. -- that if we filed a civil rights suit on
32 behalf of Mr. Gates, he would call the District
17-30519.419
12
DANIEL G. ABEL
1 Attorney and have him charge Mr. Gates with resisting
2 arrest. Because under the federal, under the United
3 States Supreme Court case Heck v. Humphrey, that if
4 he charged Mr. Gates with resisting arrest his civil
5 rights suit was over.
6 Q. Now, I'm going to take you one step forward
7 and then we'll go back to Heck in a minute, okay?
8 First of all, then after you left that meeting
9 with Mr. Hughes -- did at sometime thereafter, were
10 his threats actually carried out?
11 A. Yes.
12 Q. What happened?
13 A. I went to Mr. Hand, who was Mr. Gates'
14 attorney, Judge Hand, and I told Judge Hand what had
15 happened and Judge Hand said they're not going to do
16 that, that's too ludicrous. And ludicrous or not,
17 Mr. Gates was set to go to trial on the 20th of
18 September.
19 Q. Yes, sir.
20 A. On the 17th of September, Mr. Hand had called
21 me. And, of course, we had talked about with Mr.
22 Hand and actually had seen Mr. Hughes on several
23 occasions after that and we actually discussed it
24 more, discussed the Heck v. Humphrey. And I had gone
25 and done my research on Heck v. Humphrey and I
26 thought that in fact --
27 Q. Let me stay on track and we'll come back to
28 that. In essence, after discussions with Mr. Hughes,
29 you said that he threatened to charge him with
30 resisting arrest?
31 A. Yes, sir.
32 Q. And that was the defense that was used in the
17-30519.420
13
DANIEL G. ABEL
1 Heck case. Right?
2 A. In the United States -- yes, sir.
3 Q. Then, did they, in fact, charge Shane Gates
4 exactly like the Heck case in order to defeat the
5 civil suit?
6 A. On Friday afternoon, September 17th, they had
7 the discussion on the phone, and on Monday morning
8 September 20, they recharged Mr. Gates with resisting
9 arrest, exactly as Mr. Hughes had threatened to do on
10 the 24th of July in his office at 1:30.
11 Q. And is that, in fact -- now, this goes back to
12 the Heck case and the threat, okay? Would you
13 explain to Judge Crain the meaning of the Heck case
14 and the decision in the Heck case and how it was
15 important to protect the Sheriff's Office by
16 increasing the charges to resisting arrest. Explain
17 how that worked.
18 A. Yes, sir. And with all deference to the
19 Court, my appreciation --
20 Q. It's a U.S. Fifth Circuit decision?
21 A. No, it's a United States Supreme Court case.
22 It's Heck v. Humphrey. My appreciation, and now the
23 United States Fifth Circuit Court of Appeals'
24 appreciation, was that if someone was convicted of
25 resisting arrest, any configuration of facts, then
26 under the United States Supreme Court case Heck v.
27 Humphrey, then you could never prevail on an
28 excessive force and it had to be dismissed.
29 I'm not a criminal attorney, but I do
30 constitutional law. That made sense with the other,
31 you know, with the other rulings that the United
32 States Supreme Court had made in line with the Heck
17-30519.421
14
DANIEL G. ABEL
1 case.
2 Q. So as the status of the constitutional law at
3 the time that you were being threatened with the
4 increasing of the charges to resisting arrest, the
5 law was in favor of the police or the State, at this
6 point. Correct?
7 A. It was completely in favor. It was a bar to a
8 resisting, to an excessive force claim. And I didn't
9 know it, but Mr. Hughes kept pointing me to it. And
10 when I ran the record in Federal court, the reason
11 Mr. Hughes knew it and the reason Mr. Hughes
12 obviously made that threat was because he was
13 involved in a case in the same timeframe where Judge
14 Knowles had dismissed the Holly Bush case, once again
15 against the St. Tammany Sheriff's Office based on
16 Heck v. Humphrey. And Mr. Hughes was attorney of
17 record for that case.
18 So from his knowledge of that --
19 Q. Of resisting arrest?
20 A. -- of resisting arrest, that when you add the
21 cover charge of resisting arrest, that it absolutely
22 banned any resisting -- any excessive force claims.
23 Q. In civil court?
24 A. I believe -- I think you have a copy of the,
25 of the, of the motion of Judge Knowles' ruling saying
26 that Ms. Bush, having been charged with resisting
27 arrest, absolutely barred it under Heck v. Humphrey.
28 Mr. Hughes was the attorney in that case and that's
29 why he knew it.
30 MR. REGAN:
31 We will ask the Court to take
32 judicial notice of the decision at this
17-30519.422
15
DANIEL G. ABEL
1 point.
2 BY MR. REGAN:
3 Q. Now, in light of what you just said now, okay,
4 Shane Gates was not charged with resisting arrest?
5 A. No.
6 Q. Then you had this conversation with Mr.
7 Hughes --
8 A. Yes.
9 Q. -- at this point. You turned down a $10,000
10 offer or something of that sort. Right?
11 A. He made that offer to drop all the charges and
12 they'd give him $10,000.
13 Q. Yes, sir. Then go through the next sequence
14 of events with respect to charges here in 22nd
15 Judicial District Court.
16 A. Well, Mr. Gates was set for trial on the 20th
17 of September. And on the 17th of September, Mr. Hand
18 told me, called me and asked me if we had worked
19 things out and I said not to my knowledge. My only
20 thing that I knew, was, you know, my last couple of
21 conversations with Mr. Hughes.
22 And I asked Mr. Hand, Judge Hand, you know,
23 what's going to happen and he goes, Well, we're
24 supposed to have a phone conference this afternoon.
25 That was on Friday, September 17th, and he
26 subsequently told me at about 5:30, because I was
27 asking him if we had to be there on Monday, what the
28 status was --
29 Q. For the trial?
30 A. For the trial.
31 -- because it was set for trial. He told me
32 that he had talked to Mr. Dearing, Mr. Bruce Dearing,
17-30519.423
16
DANIEL G. ABEL
1 who was the D.A. for that section, they had talked
2 back and forth with Mr. Hughes, that there was no
3 agreement to not go forward with the civil rights
4 suit against the sheriff's deputies and, therefore,
5 they would, you know, they'd just have to go forward
6 with all of this at the trial.
7 Q. What did they do with respect to the bill of
8 information at this point?
9 A. On the 20th of September, which was Monday,
10 which was the day of the trial, Mr. Gates and I were
11 outside talking and Judge Hand came out and said
12 they're talking about doing what Mr. Hughes had told
13 you, they're talking about rebilling him with
14 resisting arrest.
15 And he was kind of jovial about it, but he said
16 nobody would do that, it's too obvious, it's too, you
17 know ludicrous, you know. That might not be the word
18 that he used.
19 Then he came out of the courtroom 15 or 20
20 minutes later and said you are not going to believe
21 this, but they're going to recharge him with
23 And just as Mr. Hughes had threatened July 24th
24 and subsequently, they recharged Mr. Gates with
26 Q. Now, in light of that, as his counsel, did you
27 believe that he would be tried by a fair and
28 impartial District Attorney's Office?
29 A. No, of course not.
30 Q. Now, with respect to Mr. Charles Hughes, have
31 you learned anything as to who he represents?
32 A. He is counsel for the Sheriff's Office.
17-30519.424
17
DANIEL G. ABEL
1 Q. Yes, sir.
2 A. Counsel for the insurance company for the
3 Sheriff's Office, too.
4 Q. He represents both the insurance company's
5 office and the Sheriff's Office. Right?
6 A. Yes, that's what, that's the representations
7 they made to me and that's what they've done in the
8 past.
9 Q. Would you tell the Court how many months after
10 Shane Gates was originally billed with the bill of
11 information that the District Attorney's Office here
12 in St. Tammany added the additional charges of
14 A. Ten, it was ten months.
15 Q. Ten months later?
16 A. Right. And only upon -- what happened in Mr.
17 Hughes' office that day is Mr. Hughes did not realize
18 that he had not been charged with resisting arrest.
19 And when he looked over the docket sheet, he said,
20 you know, to me, he hasn't been charged with
22 And I said, I know, I mean, there's the sheet,
23 you know, he hasn't been charged with resisting
24 arrest. And that's what precipitated him saying, you
25 know, well, I'm going to call the D.A. and have the
26 D.A. -- actually, he said I'm going to call or the
27 Sheriff's going to call the D.A. and have the D.A.
28 charge him with resisting arrest and that's the end
29 of your civil rights action.
30 Q. And it happened thereafter?
31 A. And it absolutely happened thereafter. Well,
32 he said a couple of other things, too, actually, you
17-30519.425
18
DANIEL G. ABEL
1 know. He actually asked me if this is the case if
2 Mr. Gates had any connection with the District
3 Attorney himself. And I said none that I know of,
4 none that I know of whatsoever.
5 Q. Okay. Were you at any time ever looking for
6 anything other than a fair trial?
7 A. No.
8 Q. And did you expect them to take this action to
9 attempt to block his civil rights in Federal court?
10 Did you anticipate that in any way?
11 A. Only, the only reason I anticipated -- I
12 didn't believe it would happen because I didn't
13 believe they would have the gall to do it, you know,
14 but Mr. Hughes told me, you know, that they were
15 going to do it.
16 Q. Okay. Now, just to conclude the story on Heck
17 at this point.
18 A. Okay.
19 Q. Subsequently, and thereafter, at this point,
20 after they charged him with resisting, as Mr. Hughes
21 said he would, at this point, did the Federal court
22 in fact find in favor of the person who had brought
23 the damage suit?
24 A. The Holly Bush?
25 Q. Yes.
26 A. As a matter of fact, in the case that Mr.
27 Hughes and his partners had tried, Daniel Knowles
28 dismissed that based on Heck.
29 Q. Yes.
30 A. And the language in the case is specific:
31 Heck bars the plaintiff's claim for excessive
32 recovery -- I mean, excessive force.
17-30519.426
19
DANIEL G. ABEL
1 Whoever, and I don't recall who the attorney
2 was that appealed to the Fifth Circuit, the Fifth
3 Circuit looked at the Holly Bush case. They
4 overturned Judge Knowles' ruling that Heck was an
5 absolute bar, you know, if you plead guilty to
6 resisting arrest, because Mr. Bush had pled guilty to
7 resisting arrest.
8 So they said, based under the old Heck, they
9 said, well, she pled guilty to resisting arrest so
10 she can have no excessive force claim.
11 And that being the case, the Fifth Circuit
12 looked at it and said, no, that's not correct, that's
13 not a correct interpretation of the law. Because if
14 someone -- what the Fifth Circuit said is that
15 excessive force claims and resisting arrest are
16 distinct in two ways: They are conceptually distinct
17 and they are temporally distinct.
18 And so if you are resisting arrest and you get
19 hurt during the course of resisting arrest, then
20 excessive force claim may be barred there. If
21 they've got you handcuffed, as they did with Mr.
22 Gates, and then they beat you up, then that is a, you
23 know, then that is obviously not barred, barred by
24 Heck.
25 Q. Okay. So today we can say the law favors Mr.
26 Gates, at this point, with the claim even the
27 resisting charges. But the resisting charge was
28 originally brought when the law favored the State.
29 Is that correct?
30 A. It was brought when the law favored the State.
31 And Mr. Hughes knew the law favored the State. Hell,
32 he was -- excuse me. Well, heck -- heck, yes, he was
17-30519.427
20
DANIEL G. ABEL
1 the attorney that tried that case.
2 Q. So let me just summarize this. You brought
3 this action, at this point, asking basically for the
4 attorney general's office to be appointed for the
5 prosecution, correct, that this matter not be handled
6 by the St. Tammany Parish District Attorney's Office?
7 A. Any kind of appearance of propriety, or
8 impropriety, you know, in my opinion, you know, would
9 require that the attorney general's office, you know,
10 have this case.
11 Q. Okay.
12 A. Because, for the obvious reason, you know, as
13 you know, because of what they did, I named the
14 District Attorney's Office in the civil rights case
15 because they are complicitous in the cover-up; so I
16 named them in the civil rights case, you know, as
17 having made possible the cover charges, you know.
18 And since he is a defendant in the civil rights
19 case --
20 Q. That is the District Attorney himself?
21 A. The District Attorney himself is a defendant
22 in the civil rights case. And since he is a
23 defendant in the civil rights case, anything that he
24 did in an attempt to make those charges stick on Mr.
25 Gates has to be inappropriate, certainly the
26 appearance of impropriety.
27 Q. And that's -- the second point I think you are
28 suggesting as to why there needs to be an attorney
29 general appointed to handle this matter, are you
30 aware of the ethical rules regarding threatening
31 criminal prosecution to resolve civil matters?
32 A. That's Professional Rule of Conduct 8.4(g). I
17-30519.428
21
DANIEL G. ABEL
1 teach ethics and professionalism, and I have for the
2 last fifteen or so years. But that's a very common
3 one and it's very straightforward. You cannot
4 threaten either criminal action and you cannot
5 threaten disciplinary action, you know, against the
6 attorney, under 8.4(g).
7 Q. To settle a civil case?
8 A. Which, in my opinion, is what they did.
9 Q. Now, we've talked about the sheriff's
10 department and Mr. Hughes. Are you aware of the
11 District Attorney that works for Mr. Walter Reed, the
12 District Attorney that is involved in the case?
13 A. Mr. Dearing.
14 Q. Mr. Dearing. And do you know Mr. Gracianette?
15 A. Not personally. I knew his dad, but I met Mr.
16 Gracianette here, I think on one occasion.
17 Q. Okay. With respect to Mr. Dearing, what role
18 did he play in the general prosecution of the case?
19 A. Mr. Dearing was the assistant district
20 attorney in Judge DiMiceli's section at that time.
21 Q. Yes, sir.
22 A. He was the prosecuting attorney for Mr. Gates.
23 He was the person who received phone calls from Chuck
24 Hughes, and he was the person who recharged Mr. Gates
25 with the resisting arrest, two counts of resisting
26 arrest.
27 Q. You argued this matter before Judge DiMiceli.
28 Is that correct?
29 A. We started arguing the matter before Judge
30 DiMiceli. When we had subpoenaed the -- we
31 subpoenaed Mr. Dearing. We subpoenaed Mr. Hughes.
32 We subpoenaed -- well, then it was like an interim
17-30519.429
22
DANIEL G. ABEL
1 Judge Hand, and Mr. Gracianette.
2 Those were the people that we knew were
3 immediately involved in the matter. We subpoenaed
4 all of those people.
5 Q. Yes, sir.
6 A. And we appeared on a date for a hearing.
7 Q. Yes, sir. And did Judge DiMiceli recommend
8 anything to the District Attorney's Office?
9 A. Yes, she said whenever there is any
10 question --
11 MR. NORIEA:
12 Let me object to that. We are going
13 so far off of hearsay now.
14 THE COURT:
15 Sustained.
16 BY MR. REGAN:
17 Q. Thereafter -- okay, thereafter the matter went
18 up to the First Circuit. Is that correct?
20 Q. And --
21 A. Well, let me say what the matter was that went
22 up.
23 Q. Please.
24 A. Because we asked --
25 THE COURT:
26 Mr. Regan, I read the opinion of the
27 First Circuit. So whatever the intentions
28 are of it going up, I know what they found
29 to be important.
30 MR. REGAN:
31 Yes, sir. Thank you.
32 THE COURT:
17-30519.430
23
DANIEL G. ABEL
1 So if we could keep it on track.
2 MR. REGAN:
3 I apologize.
4 BY MR. REGAN:
5 Q. Sir, were you aware, in addition to Mr.
6 Dearing, or any other assistant district attorney
7 getting involved with the settlement of this case?
8 A. Other than Mr. Gracianette.
9 Q. Mr. Gracianette. And do you know who met with
10 Mr. Gracianette?
11 A. Judge Hand.
12 Q. You didn't personally meet with him?
13 A. I only met him one time in the hall, just to
14 say hello.
15 Q. Mr. Abel, have you been in good faith with
16 respect to your discussion with Mr. Hughes?
17 A. Yes, sir, I think so.
18 Q. You didn't bring a frivolous claim and try to
19 work something out that was frivolous or
20 unmeaningful?
21 A. No.
22 Q. That's what the exhibits are about?
23 A. That's what the exhibits are about. That's
24 what happened in the hospital. Not only did they not
25 treat him in the hospital, but the police were
26 complicitous in what will be proven to be problems
27 with the, the blood alcohol content, which the
28 experts have already told us they are no good and
29 they are fabricated; and so they are going to ask to
30 deal with that as well as this. And no, this is a
31 serious matter, you know --
32 Q. Just --
17-30519.431
24
DANIEL G. ABEL
1 A. Sorry, I'm doing the closing.
2 Q. That's okay. I understand that. Just in
3 medicals at this point, how much?
4 MR. NORIEA:
5 Your Honor, I'm going to object --
6 THE COURT:
7 Sustained.
8 MR. NORIEA:
9 -- to relevance.
10 THE COURT:
11 What's the relevance to the motion
12 to recuse the D.A.'s office, Mr. Regan?
13 MR. REGAN:
14 If I could just connect it together.
15 If you take 10,000, we will drop the
16 charges. If you don't take 10,000, we're
17 going to increase the charges. The case
18 is probably worth a million bucks. And in
19 order to protect their liability insurer,
20 Mr. Hughes represents the liability
21 insurer at this point and the police
22 department, they threatened to raise the
23 charges.
24 And under the existing law, under
25 Heck at the time, they were totally
26 successful if Heck were to stay the way it
27 was.
28 They charge him with resisting
29 arrest, he would have had no civil remedy
30 to his damages which are, as I understand,
31 100,000 in medicals alone and injuries
32 totaling close to a million bucks.
17-30519.432
25
DANIEL G. ABEL
1 THE COURT:
2 I'm going to sustain the objection,
3 because I don't think the amount -- I
4 think whether or not there was a resisting
5 arrest, whether that was offered, I can
6 understand the relevance. But the extent
7 to injury and harm, I don't find it to be
8 relevant; so I'm going to sustain the
9 objection.
10 MR. REGAN:
11 Yes, sir. Thank you.
12 BY MR. REGAN:
13 Q. Mr. Abel, were you trying to get the charges
14 thrown out by threatening a civil lawsuit?
15 A. Well, of course not. And at that point Judge
16 Hand was the attorney for that. We were going -- it
17 didn't matter whether they threw the charges out.
18 Considering what they did to him, we were going to
19 file the civil lawsuit because they violated the
20 civil rights.
21 Seriously, that would have been filed, had the
22 D.A. not become involved in it, the D.A. would not
23 have been named as a defendant. But after the D.A.
24 was complicitous in what they were trying to do, then
25 I named the D.A. as well.
26 Q. Yes, sir. And with respect to the charges at
27 this point, you are requesting in your petition and
28 your motion simply to have a fair trial with removing
29 the District Attorney from this parish. Correct?
30 A. I don't think we can have a fair trial unless
31 you remove the District Attorney who is the defendant
32 in the federal lawsuit. So anything that he would do
17-30519.433
26
DANIEL G. ABEL
1 to Mr. Gates would work to his advantage.
2 Q. And is there any reason for you to believe
3 that it doesn't have an appearance of impropriety, or
4 just on that basis as a professor who teaches ethics?
5 A. Appearance as opposed to actually be improper?
6 It's both.
7 MR. REGAN:
8 Thank you. I have no further
9 questions.
10 THE COURT:
11 Cross-examination.
12 CROSS-EXAMINATION BY MR. NORIEA:
13 Q. I show you what's marked Exhibit 1 in globo.
14 Page 1 of this, are you familiar with the document on
15 page 1?
16 A. Yes, I've seen this before. Is this, this is
17 Roger Gottardi.
18 Q. Correct?
19 A. I thought he was fired.
20 THE COURT:
21 Just answer the questions, if you
22 would, Mr. Abel.
23 THE WITNESS:
24 Yes, Your Honor.
25 BY MR. NORIEA:
26 Q. This is a summons for defendant, Shawn Gates.
27 Correct?
29 Q. That's Shane actually. Charge is resisting
30 arrest? Resisting an officer?
31 A. That's the ticket. He was never arraigned on
32 that, he was never charged on that by your office.
17-30519.434
27
DANIEL G. ABEL
1 Q. The date, the date it was issued was
2 November 16, 2006, at 2111 hours p.m., correct?
3 A. That's what it says.
4 Q. You have any reason to believe that this is a
5 fake?
6 A. I wasn't there, no.
7 Q. You were there the night --
8 A. No, I was not.
9 Q. -- the defendant fell out the car and hit his
10 head on the ground?
11 A. I was there when they said these injuries were
12 caused by him falling out of the car, contrary to
13 what his surgeon said that there was crossway cuts.
14 MR. NORIEA:
15 Your Honor, I ask the Court to
16 instruct the witness to --
17 THE COURT:
18 Limit your answer to the question,
19 Mr. Abel.
20 BY MR. NORIEA:
21 Q. We're on page 2 of Exhibit 1 in globo. Shane
22 Gates is the recipient of this traffic ticket?
23 A. I assume, I assume he is. I mean, I don't
24 have personal knowledge that he received this traffic
25 ticket. It was in the file that A.J. Hand had.
26 Q. The day of the offense was November 16, 2006,
27 at 2111 hours. Correct?
28 A. That's what it says.
29 Q. Reckless operation of a motor vehicle, open
30 container in motor vehicle, is that also charged
31 there?
32 A. He was never charged with it. I mean, if you
17-30519.435
28
DANIEL G. ABEL
1 are suggesting that this is what it says, that's what
2 it says; but your office never charged him with that,
3 or the other thing.
4 Q. Are you aware of Code of Criminal Procedure
5 article 61?
6 A. Not by, not by memory.
7 Q. Article 61 gives the District Attorney the
8 sole discretion to determine who to prosecute, when
9 to prosecute and what to prosecute them for.
10 A. Not when it's a fix.
11 Q. So you are familiar with the article, or are
12 you just learning of it?
13 A. No. I know what your argument has been.
14 You-all make that argument all the time and you made
15 it in the pleadings with them.
16 Q. Resisting arrest is a misdemeanor or do you
17 know that?
18 A. Resisting arrest is a misdemeanor?
19 Q. Yes, sir.
20 A. I know that from reading that.
21 Q. The D.A. has two years within which to
22 institute a prosecution on a misdemeanor, are you
23 aware of that?
24 A. I would have to defer to you on that. I'm not
25 a criminal defense attorney.
26 Q. Article 572 places limitations on the
27 institution of prosecution. One subparagraph in
28 there pertains to misdemeanors, and this case is
29 under that misdemeanor wording and this gives the
30 D.A. five years within which to accept a charge from
31 the date of the offense.
32 A. If it's done for an honest and legitimate
17-30519.436
29
DANIEL G. ABEL
1 purpose, and it wasn't. It was a fix to cover up
2 what they did to him and your office was complicitous
3 in it.
4 Q. There are two resisting arrest charges that
5 were taken within 10 months against your son, added
6 to the misdemeanor marijuana count. Correct?
7 A. Absolutely not. He's never smoked marijuana
8 and there is no marijuana, but it doesn't surprise me
9 that you would say that. Where is the marijuana?
10 He's never smoked marijuana.
11 Q. The misdemeanor DWI count?
12 A. That's a hell of a lot different than
13 marijuana.
14 Q. They both are misdemeanors.
15 A. I don't even know what to say to that, Your
16 Honor.
17 (ALL COUNSEL AND WITNESS SPEAKING AT ONCE.)
18 THE COURT:
19 Wait a minute, wait a minute. Do
20 you have an objection?
21 MR. REGAN:
22 I do object. Unless counsel can
23 produce marijuana arrest or charge or
24 anything at this point, I think it is
25 improper cross-examination.
26 MR. NORIEA:
27 I'll strike that question, Judge.
28 BY MR. NORIEA:
29 Q. Driving while intoxicated first offense is a
30 misdemeanor.
31 A. I presume, if you say so.
32 Q. Resisting --
17-30519.437
30
DANIEL G. ABEL
1 A. Never done one.
2 Q. Resisting an officer is a misdemeanor?
3 A. The law is whatever it says it is.
4 Q. Those three counts, two resisting an officer
5 and driving while intoxicated, were added in -- and
6 placed in one bill of information within 10 months of
7 this arrest?
8 A. After Chuck Hughes said he would call your
9 office and have that done for the specific purpose of
10 killing the civil rights case. Yes, they were done
11 within 10 months for that purpose as expressly stated
12 by Mr. Hughes.
13 Mr. Hughes was very honest. He told us what
14 was going to happen and it's what your office did.
15 Q. The felony count, aggravated flight from an
16 officer, was charged within two months of the date of
17 the offense.
18 A. And it's what you had on the tickets. What
19 you had on the ticket was obstruction of a highway of
20 commerce, which means you are parked going in the
21 wrong direction. That's what the police officers
22 reported. Your office charged him with aggravated
23 flight from an officer.
24 Q. That's what he is charged with in one, in the
25 felony bill of information. Correct?
26 A. Aggravated flight from an officer. It's not
27 what the officers reported themselves and it's not
28 what they had in the police report and it's not what
29 they had in their affidavit.
30 Q. Going back to Code of Criminal Procedure
31 article 61, we're not bound by what the police
32 officers charge somebody with. We decide, the D.A.
17-30519.438
31
DANIEL G. ABEL
1 decides, who to charge, what to prosecute them for
2 and when.
3 A. I'm sure that's correct, provided that the
4 charges are legitimate and not done for an improper
5 purpose as they were in this case.
6 Q. Are you quoting exact wording of Code of
7 Criminal Procedure article 61?
8 MR. REGAN:
9 Objection, this is argumentative.
10 MR. NORIEA:
11 I'm just asking.
12 THE COURT:
13 Overruled. Mr. Abel seems to like
14 to argue.
15 BY MR. NORIEA:
16 Q. Are you quoting --
17 A. Yes, sir.
18 Q. Are you quoting article 61 of the Code of
19 Criminal Procedure when you say that?
20 A. When I say which part? I'm sorry.
21 Q. The parts putting the providing. Are you
22 saying that article 61 does not give the District
23 Attorney complete discretion to prosecute somebody
24 for the offense charged, when they want and what they
25 want to prosecute them for?
26 A. Absolutely not. Because of the Constitution
27 of the State of Louisiana and all of the charges
28 which mandate what you must do as a prosecutor,
29 preclude it. That is not, that is not the ultimate
30 standard. The ultimate standard is what's
31 Constitutional and what violates someone's civil
32 rights. That's the ultimate standard.
17-30519.439
32
DANIEL G. ABEL
1 I know that it's your position, you know, that
2 you-all can do anything you want; but that's not what
3 the Constitution has said and that's not what the
4 Louisiana Supreme Court has said and that's not what
5 the Unites States Supreme Court has said.
6 Q. All of the charges brought in this case were
7 brought within the time limitations that are
8 described by Code of Criminal Procedure. Correct?
9 A. For an improper purpose.
10 Q. Now, besides these photographs and these other
11 records, do you have any other evidence tending to
12 show that the D.A.'s office had some sort of bias in
13 this case?
14 A. Obviously, unless it was purely coincidental,
15 what Mr. Hughes had threatened to do is exactly what
16 the District Attorney did. And that, those
17 conversations, took place on Friday afternoon,
18 September 17th, apparently.
19 Q. And are you aware that Mr. Hughes never did
20 work for the District Attorney's Office?
21 A. No.
22 Q. Never did decide who to prosecute?
23 A. No, I know that he doesn't work for the
24 District Attorney's Office.
25 Q. He doesn't decide who to prosecute?
26 A. I presume that -- I don't know whether he's
27 worked for the District Attorney's Office. I know
28 that at the time that this all took place he was
29 counsel for the Sheriff.
30 Q. And he had no relationship with the District
32 A. Not that I know of.
17-30519.440
33
DANIEL G. ABEL
1 Q. Do you have any evidence indicating that
2 anybody in the District Attorney's Office at that
3 time had a personal interest in the case?
4 A. Do I have personal knowledge of that?
5 Q. Yes.
6 A. No, I don't have personal knowledge of that.
7 Q. Do you have any knowledge, that, that, anyone
8 in the District Attorney's Office had any personal
9 animosity between our office and the defendant Gates?
10 A. I don't have personal knowledge of that. I
11 had no contact with the District Attorney's Office.
12 Mr. Hand was Mr. Gates' attorney.
13 Q. And of course, Mr. Gates was never employed or
14 consulted in the case by the District Attorney's
15 Office?
16 A. I'm sorry, I didn't hear you.
17 Q. The defendant Gates has never been an attorney
18 for the District Attorney's Office?
19 A. No, no.
20 Q. I want to show you Exhibit 2 and ask you if
21 you can identify Exhibit 2.
22 A. Yes.
23 Q. That's a communication from you to Chuck
24 Hughes?
25 A. That's correct. After the meeting on the
26 24th, he asked me to at least put, you know,
27 memorialize this in writing, and that's when I sent
28 it. It says August 8th, so that's when I sent it to
29 him.
30 Q. This was not sent to anyone in the District
31 Attorney's Office, sent only to the Sheriff's Office,
32 or Mr. Hughes?
17-30519.441
34
DANIEL G. ABEL
1 A. I didn't send it to anybody but Mr. Hughes. I
2 may have given a copy to A.J. Hand, Judge Hand.
3 Q. He wasn't in the District Attorney's Office at
4 that time?
5 A. Right, that's correct.
6 Q. And the purpose of this letter was what?
7 A. He asked me to reiterate everything that I had
8 done in writing and telling me what we thought -- to
9 give a quantum on what we -- the four operations and
10 damages and the nerve damage that had been suffered
11 by Mr. Gates when the police beat him up.
12 Q. And this quantum is based on the injuries
13 sustained?
14 A. Part of it is probably what the doctor told
15 me, over $100,000 in medicals, you know, and, you
16 know, what her assessment was of the various
17 surgeries and the nature of surgeries. He's already
18 had one and he's got to have three more.
19 Q. And are you aware that the defendant was
20 driving over 100 miles an hour when he is running
21 from the police?
22 A. I am aware that that says in the police
23 report. I don't believe it, but I'm aware that that
24 says that in the police report.
25 Q. Are you aware that his blood alcohol was .273
26 percent?
27 A. I'm aware that the experts said that was a
28 fabricated blood alcohol count.
29 Q. Where did they get that information --
30 MR. REGAN:
31 Excuse me, let the witness finish
32 answering the question. He was asked
17-30519.442
35
DANIEL G. ABEL
1 about that and he was explaining why
2 that's a fabrication.
3 THE COURT:
4 Overruled.
5 THE WITNESS:
6 Sorry, Your Honor.
7 THE COURT:
8 No. Sustained. Go ahead.
9 THE WITNESS:
10 Oh, okay.
11 MR. REGAN:
12 Why it was fabricated.
13 THE COURT:
14 You objected to him interrupting him
15 and I sustained your objection so that he
16 could finish. Keep going.
17 THE WITNESS:
18 I'm sorry, Your Honor.
19 I'm sorry, what was the question?
20 BY MR. NORIEA:
21 Q. The .273 percent you claim is fraudulent?
22 A. Right.
23 Q. Where do you get that information from?
24 A. Talking to other individuals who are
25 knowledgeable of that and who have examined the
26 medical reports. But the real question is: How do
27 you -- how do you validate that 2.73 (sic) question?
28 I mean, you are saying that to the Court as though
29 that is, in fact, a fact. It is not a fact.
30 As a matter of fact, Mr. Bruce Dearing told me
31 in my presence this stuff from the hospital is not
32 worth the paper it's written on. We're not going
17-30519.443
36
DANIEL G. ABEL
1 forward with the DUI claim, because this is baloney,
2 we can't do the blood alcohol. That's what Mr.
3 Dearing told me.
4 Q. When was that?
5 A. I would say about two or three meetings after
6 I -- after Mr. -- Judge Hand had asked me to get
7 involved.
8 Q. What date was that?
9 A. Oh, I don't know. It's on the docket sheet.
10 Q. When did he ask you to get involved? When did
11 A.J. Hand ask you to get involved?
12 A. Whenever I enrolled. He asked me to get
13 involved and I enrolled shortly thereafter.
14 MR. REGAN:
15 We will stipulate to the record --
16 BY MR. NORIEA:
17 Q. What is the day, do you know the day?
18 MR. REGAN:
19 No, but we can get the court record
20 and look.
21 THE COURT:
22 Let's move on.
23 THE WITNESS:
24 Whenever I enrolled.
25 BY MR. NORIEA:
26 Q. Was that before or after the meeting you had
27 with Chuck Hughes?
28 A. Oh, no. It was -- I had the meeting after I
29 enrolled, I think.
30 Q. Were you enrolled as the attorney of record in
31 the criminal case when you met with Chuck Hughes?
32 A. I think I was.
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37
DANIEL G. ABEL
1 Q. That's what I'm trying to find out.
2 A. I think I was.
3 Q. When -- Bruce Dearing had the case, accepted
4 charges in his court, correct?
5 Was this before or after two additional
6 charges, two additional misdemeanor charges were
7 added to the misdemeanor DWI?
8 A. Oh, no. I was attorney of record long before
9 that.
10 Q. So you had this conversation with Bruce
11 Dearing after the defendant was charged, when he told
12 you that he was --
13 A. No, no, after he was charged initially. This
14 was not when they added the charges. This is long
15 before.
16 Q. That's what I'm trying to find out.
17 A. I'm sorry. I didn't understand the question.
18 This was long before they added the charges.
19 Q. How much time elapsed from the original charge
20 to the time they added the charges?
21 A. Ten months.
22 Q. The original charges were accepted in January
23 of '07. The amended charges for the two additional
24 misdemeanor charges were added --
25 A. September 20th.
26 Q. -- September 10, 2007, and you enrolled
27 September 28, 2007.
28 You did not enroll until after the two
29 additional misdemeanor charges were added on
30 September 10, 2007.
31 A. I guess I had been had consulting with Mr.
32 Hand, because Mr. Hand sent me to talk to Chuck
17-30519.445
38
DANIEL G. ABEL
1 Hughes, obviously about the civil rights case,
2 because we were obviously in the process of
3 formulating that.
4 And I was consulting with him, you know, all
5 along. But, you know, when I actually enrolled, I
6 think when Mr. Hand said that when he had to withdraw
7 from the case because of the upcoming election, then
8 I enrolled and then shortly thereafter, Mr. Regan
9 enrolled.
10 Q. Are you aware that the District Attorney's
11 Office has always been a victim friendly office or do
12 you know what that means?
13 A. I mean --
14 Q. Are you aware this office gives a lot of
15 consideration in criminal prosecution to the will and
16 desires of the victim?
17 A. As you probably know I work with the D.O.J.
18 and F.B.I. a lot. And I know that they are very
19 victim friendly, so I know what victim friendly is.
20 You know, Mr. Letton's office is very victim
21 friendly.
22 Q. I'll show you what I mark as Exhibit S-1.
23 MR. NORIEA:
24 The first one is Exhibit 1 and 2,
25 but this is S-1.
26 MR. REGAN:
27 If I might just have a minute.
28 THE COURT:
29 What was on the first sheet of
30 Exhibit 1?
31 MR. NORIEA:
32 The affidavit for resisting arrest
17-30519.446
39
DANIEL G. ABEL
1 issued on November 16, 2006, by Deputy
2 Sheriff Roger Gottardi.
3 MR. REGAN:
4 Your Honor, this is Mr. Charles
5 Hughes' law firm writing.
6 THE WITNESS:
7 This the mystery letter?
8 BY MR. NORIEA:
9 Q. S-1.
10 A. I've never seen this letter.
11 Q. Uh-huh (affirmative response).
12 A. We've asked the District Attorney for this
13 letter. We've asked your office for this letter.
14 Because after Mr. Hughes threaten ed to do what he
15 ultimately did, then for the first time we started
16 hearing about this mysterious letter. You know,
17 which this was a letter from the police officers
18 asking them to prosecute Mr. Gates for resisting
19 arrest. So --
20 Q. And that's what he was arrested for on
21 November 16th. Correct?
22 A. Your office never charged him with it.
23 Q. It did later.
24 A. It certainly did after Mr. Hughes threatened
25 to do what he did.
26 Q. It was legal, the date he was charged with
27 these additional two misdemeanors counts that that
28 letter refers to as the victims in those two
29 misdemeanor counts.
30 A. There's the victim. Mr. Gates is the victim
31 of these guys. This is the victim. They're not the
32 victim.
17-30519.447
40
DANIEL G. ABEL
1 THE COURT:
2 Hey, guys, I don't think either one
3 of you-all is going to decide who the
4 victim is going to be in this case.
5 Let's move on to something that is
6 more germane to the motion.
7 THE WITNESS:
8 Yes, Your Honor.
9 MR. REGAN:
10 We would ask that the envelope from
11 Mr. Hughes' office be marked as well.
12 MR. NORIEA:
13 S-1 in globo.
14 MR. REGAN:
15 The letter and envelope from Mr.
16 Hughes.
17 BY MR. NORIEA:
18 Q. And you have no other evidence other than you
19 feel that Chuck Hughes is running the D.A.'s office
20 in 2007 instead of the District Attorney. You have
21 no other evidence other than what he told you to
22 suggest that he was -- anybody but the D.A. was
23 running the office?
24 A. No, I never suggested that Mr. Hughes was
25 running the D.A.'s office. No, I never suggested
26 that he was running the D.A.'s office.
27 Considering the things that he said about the
28 D.A. when I was there, I wouldn't suggest that he was
29 running the D.A.'s office.
30 Q. Then you -- were you mad at Chuck Hughes at
31 that time?
32 A. No, actually Chuck and I had a good
17-30519.448
41
DANIEL G. ABEL
1 relationship working on the other cases. And we
2 never, either one of us, ever raised our voices as
3 much as we raised our voices today. And when he told
4 me that he said he I'm going to call the D.A. and I'm
5 going to have Mr. Gates charged with resisting arrest
6 and then your civil right claim will be over. That's
7 what I'm going to do.
8 Q. And you liked that?
9 A. And I said, Well, Chuck -- we were on a
10 first-name basis -- and I said, Well, Chuck, if you
11 do that, then I'm going to do things that I'm going
12 to have to do, under the law and to protect my
13 interest of what they, you know, did to Mr. Gates and
14 I did those.
15 Q. And did you have any discussions with anybody
16 in the District Attorney's Office before
17 September 28th of '07?
18 A. Well, I had discussions. I was in Judge
19 DiMiceli's chambers on several, two or three,
20 occasions when Mr. Dearing was there.
21 Q. If you don't do criminal law, how is it that
22 you got involved in this case and talked to people at
23 the D.A.'s office before September 28th of '07 when
24 you enrolled?
25 A. Because they asked me to come in.
26 Q. Who is they?
27 A. Well, the Judge and Mr. Hand and Mr. Dearing.
28 Q. Okay. What Judge was that?
29 A. Judge DiMiceli.
30 Q. Okay. And how much before September 28th was
31 that?
32 A. I'm not sure how much before. I was certainly
17-30519.449
42
DANIEL G. ABEL
1 there a couple of, you know, for, I would say, two or
2 three meetings in Judge DiMiceli's chambers. You
3 know, I do constitutional and civil rights stuff, and
4 Mr. Hand and I had done some -- Judge Hand and I had
5 done some of those things together, so we would
6 confer about constitutional issues.
7 Q. So the basis for your recusal is because we
8 listened to Chuck Hughes?
9 A. The basis of the recusal is that -- is that
10 Chuck Hughes said he was going to do this and said
11 and implied --
12 Q. Do what?
13 A. That he was going to have Mr. Gates charged
14 with resisting arrest for the specific purpose of
15 killing his civil rights case, and that's what
16 happened.
17 Q. Okay. The victims, the two police that were
18 victims of this high speed chase on the interstate,
19 are you saying that the District Attorney's Office
20 doesn't have any right under the Code of Criminal
21 Procedure to institute proceedings of those two
22 victims within the time established by the
23 Constitution and the Code?
24 A. I don't believe they are victims, to begin
25 with. So the underlying suggestion that those two
26 police -- they didn't get any treatment at the
27 hospital; they didn't ask for anything. They never
28 described themselves as a victim as at all, once, to
29 anybody until this thing came up with Mr. Hughes.
30 After Mr. Hughes told -- then they became victims.
31 Prior to that --
32 MR. NORIEA:
17-30519.450
43
DANIEL G. ABEL
1 I have no further questions.
2 THE WITNESS:
3 -- they were never victims. Here is
4 the victim, Mr. Noriea.
5 MR. REGAN:
6 If I might.
7 THE COURT:
8 What's that? I think he said that
9 was all.
10 You got redirect?
11 MR. REGAN:
12 If I could.
13 THE COURT:
14 All right.
15 MR. REGAN:
16 Thank you, Your Honor.
17 REDIRECT EXAMINATION BY MR. REGAN:
18 Q. First of all, this letter that you have seen
19 for the first time today?
20 MR. REGAN:
21 Could I have that, please?
22 THE WITNESS:
23 The mystery letter.
24 MR. REGAN:
25 S-1.
26 BY MR. REGAN:
27 Q. Are you familiar with Mr. Hughes' law firm?
28 A. Yeah, uh-huh (affirmative response).
29 Q. And is that the address of his law firm, the
30 return address for Mr. Hughes? Did you, in fact,
31 write a letter to Mr. Hughes that's already been
32 pointed out?
17-30519.451
44
DANIEL G. ABEL
1 A. Well, this letter, apparently, was
2 hand-delivered September 17th, so this is long after
3 I talked to Mr. Hughes. And If LaSalle Street is the
4 street that they are on now -- they were in the
5 IberiaBank building getting ready to move a couple
6 miles down the road by the little garden center on
7 the service road.
8 So if LaSalle Street is that address, that's
9 not where I met Mr. Hughes when our initial
10 conversation took place.
11 Q. But you did write a letter to him, didn't you?
12 A. Absolutely.
13 Q. I think you were asked about a letter to Mr.
14 Hughes. What address did you write to Mr. Hughes at?
15 A. Oh, okay. That's the bank. It's now the
16 IberiaBank, but it was the Planter's Bank.
17 Q. But is the street address the same?
18 A. Yes.
19 Q. Fair enough. This letter from this concerned
20 citizen was one of the defendants in the lawsuit, a
21 potential defendant?
22 A. Yeah, he's a defendant in the lawsuit.
23 Q. And that is from Mr. Hughes' law firm, right,
24 the envelope?
25 A. Yes, Mr. Gottardi, Deputy Gottardi is a
26 defendant. I understand he is no longer a deputy.
27 And Brian Williams is a defendant and Nathan Miller,
28 I believe, is the other gentleman's name.
29 Q. And who is the attorney that represents the
30 insurance company that is being sued?
31 A. Mr. Hughes.
32 Q. Mr. Charles Hughes?
17-30519.452
45
DANIEL G. ABEL
1 A. Right.
2 Q. And as the assistant D.A., Mr. Noriea, is
3 suggesting that they are a friendly office, they've
4 got a victim friendly office. Correct?
5 A. That was his suggestion.
6 Q. And at the time, they keep referring to these
7 things as just two misdemeanors that are being added
8 to these resisting arrest charges. They are much
9 more than misdemeanors in terms of civil rights,
10 aren't they? Or how did that play in?
11 A. Absolutely. Because Mr. Hughes is right. At
12 the time that Mr. Hughes made those comments to me,
13 Heck was an absolute bar. If you were convicted of
14 resisting arrest, Heck v. Humphrey was an absolute
15 bar to any excessive force claims. And obviously,
16 from the photographs, this is about excessive force
17 claims.
18 Q. Now, referring back to this letter you have
19 now, at this point, from Mr. Hughes' office or the
20 victim friendly District Attorney's Office, did any
21 one of those officers, they went to hospitals, did
22 they not, you checked into their going hospital
23 bringing Shane Gates to hospital?
24 A. We know that Gottardi and Williams were there.
25 Q. Were they treated for any injuries of any
26 kind?
27 A. None whatsoever, no complaints on the record,
28 nothing.
29 Q. Any complaint in any police report saying that
30 they had been injured or hurt in resisting arrest?
31 A. None whatsoever.
32 Q. And when the District Attorney originally came
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DANIEL G. ABEL
1 back with the bill of information, that is, they
2 reviewed the case and they charged Shane Gates, did
3 it include any resisting arrest charge?
4 A. No, none.
5 Q. Right. And it was a full 10 months after the
6 original bill of information that the second bill of
7 information came forward charging him with resisting.
8 Correct?
9 A. That's --
10 Q. Ten months later?
11 A. That's correct, ten months later.
12 Q. Okay. And none of the facts changed in terms
13 of the reports or anything else. Right?
14 A. No, there was nothing added, no new
15 affidavits. There were no new police reports,
16 nothing.
17 Q. Perhaps that letter from Mr. Hughes' office,
18 though, the attorney that defends the insurance
19 company?
20 A. Yes. Yes, and --
21 Q. Okay.
22 A. -- the date, Mr. Regan, I think this is
23 important because you had asked me this. The date of
24 the hand delivery of the letter was the date that the
25 phone calls took place between Mr. Hughes and Mr.
26 Dearing and Judge Hand.
27 Q. And as a consequence of those phone calls, the
28 additional charges were added?
29 A. We never heard about this letter until almost,
30 you know, until almost, you know, eight months after
31 -- well, after ten months after the incident.
32 This letter didn't seem to exist; nobody had
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DANIEL G. ABEL
1 ever mentioned it.
2 Q. Now, let me just ask you: You were never
3 asked, you don't personally know the influence that
4 Mr. Hughes has over the District Attorney's Office,
5 do you?
6 A. No.
7 Q. But you are aware that the District Attorney's
8 Office, Mr. Walter Reed, and the sheriff's department
9 here are in the same defensive position in Federal
10 Court. Right?
11 A. They're both defendants in Mr. Gates' civil
12 suit.
13 Q. And I don't think you are in a position, other
14 than the coincidence of timing, to say what the
15 discussions were between Mr. Hughes and the District
17 A. No, I don't know.
18 Q. You wouldn't know that?
19 A. No. I wasn't part of that phone call.
20 Q. But as you point out, the date and the changes
21 are consistent with what you were told and what you
22 were threatened with. Correct?
23 A. Mr. Hand told me that they had all spoken.
24 Q. All being?
25 A. All being Mr. Dearing and Mr. Hughes and
26 himself, that they had spoken. That was Friday
27 afternoon because the issue was were we going to go
28 to trial --
29 Q. On Monday?
30 A. -- on Monday. And based on what the
31 conversation had been up until that point over the
32 last three months, they did, on Monday, when he went
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DANIEL G. ABEL
1 to trial, what Mr. Hughes had said that he was going
2 to call and have them do.
3 MR. REGAN:
4 No more questions.
5 THE COURT:
6 Are you calling Judge Hand?
7 MR. REGAN:
8 Yes, sir.
9 THE COURT:
10 I want you to call him now. I'm
11 going to take a 10-minute recess.
12 (RECESS TAKEN.)
13 THE COURT:
14 Call your next witness.
15 MR. REGAN:
16 At this time we would call his
17 Honorable Judge A.J. Hand.
18 (JUDGE A.J. HAND, AFTER HAVING BEEN
19 FIRST DULY SWORN UNDER OATH, DID TESTIFY
20 AS FOLLOWS:)
21 DIRECT EXAMINATION BY MR. REGAN:
22 Q. Your Honor, would you state your full name for
23 the record.
24 A. August J. Hand.
25 Q. And how are you serving in the state of
26 Louisiana at this time?
27 A. I'm a Judge here in the 22nd Judicial District
28 Court.
29 Q. Yes, sir. And how long have you been a
30 licensed Louisiana attorney?
31 A. Twenty-four years.
32 Q. Yes, sir. And could I ask one last question:
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JUDGE A.J. HAND
1 When did you take the bench here in the 22nd Judicial
2 District Court?
3 A. January 5th, of 2009.
4 Q. 2009. Sir, prior to taking the bench, did you
5 have occasion to represent Mr. Michael Shane --
6 excuse me, Shane Michael Gates in a criminal matter
7 pending in the 22nd Judicial District Court?
8 A. Yes, sir.
9 Q. Okay. And, sir, if I, if I might ask you
10 with respect to that charge, did it involve a DWI?
11 A. My recollection is it involved a DWI and also
12 aggravated flight from an officer.
13 Q. Yes, sir. And to the best of your knowledge,
14 were you the first attorney retained to represent him
15 in this matter?
16 A. Yes, sir.
17 Q. If I might be seated. There are several
18 questions I have a checklist for.
19 Sir, which judge was this matter heard by, do
20 you remember which district judge?
21 A. I think it was set before Judge William
22 Burris. I think it was his division if my
23 recollection serves me.
24 Q. And was it ever transferred over to Judge
25 DiMiceli?
26 A. It may have been. I don't recall.
27 Q. Do you recall if Mr. Bruce Dearing --
28 A. It had to have been, now that you asked that
29 question. Because ultimately, I had to recuse myself
30 because that's the only way I had to recuse myself as
31 Judge.
32 Q. Because it was Judge DiMiceli?
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JUDGE A.J. HAND
1 A. And I'm sure that came about because of
2 re-allotment of Division A case, which you may not be
3 familiar with. We had a re-allotment, and so that's
4 how it came to Judge DiMiceli's court and then to me.
5 Q. Thank you, sir. Were you also enrolled in
6 civil suit in Federal district court or involved in
7 that in any way?
8 A. I don't think I ever enrolled as counsel of
9 record. I was aware of that litigation when it was
10 instituted, but I was never counsel of record.
11 Q. Okay. Fair enough. Now, with respect to the
12 criminal matter at this point, were you assisted with
13 constitutional issues by attorney Danny Abel at any
14 time?
15 A. Yes, sir.
16 Q. And at some point, thereafter, Mr. Danny Abel
17 enrolled as counsel when you withdrew?
18 A. Yes, sir, that's correct.
19 Q. And to the best of your knowledge, who was
20 handling the civil litigation, if any, in Federal
21 court?
22 A. That would be Mr. Abel.
23 Q. Mr. Abel as well. Now, did you ever have an
24 occasion to meet with Mr. Charles Hughes the
25 sheriff's attorney?
26 A. No, I don't think I ever met with Mr. Hughes
27 relative to this matter.
28 Q. Yes, sir. Were you aware what Mr. Danny Abel,
29 in fact, was meeting with Mr. Charles Hughes, or
30 Chuck Hughes, regarding this matter?
31 A. Yes, sir.
32 Q. Now, at the time that Mr. Bruce Dearing was
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JUDGE A.J. HAND
1 handling this matter, did he have a supervisor named
2 Ronnie Gracianette?
3 A. Yes, sir.
4 Q. Did you ever have an occasion to meet with
5 Ronnie Gracianette?
6 A. Yes, I did.
7 Q. Now, with respect to this case, to the best of
8 your knowledge, while you were on the watch of this
9 case as defense attorney, were the charges ever
10 changed or were there additional charges added
11 regarding resisting arrest?
12 A. Yes, there was an amendment to the bill of
13 information to include a charge of resisting an
14 officer.
15 Q. Yes, sir. In fact, there were two counts of
16 resisting?
17 A. I only recall one. There may have been two,
18 but to my recollection, I know at least one charge.
19 Q. Yes, sir. And this came about approximately
20 10 months after the original bill of information was
21 filed?
22 A. I don't know about the timeframe, but that
23 sounds about correct.
24 Q. And just in general terms, with respect to
25 when this came about, the additional charges were
26 added, was this in fact right before the case was
27 scheduled to go to trial on Monday?
28 A. Yes, sir.
29 Q. They changed the charges on Friday immediately
30 before the trial?
31 A. Yeah. I want to say we went in on, I believe
32 it was a Monday, for purposes of a trial. And I was
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JUDGE A.J. HAND
1 advised by the District Attorney, the assistant
2 district attorney, that the charges were being
3 amended to include that additional charge of
4 resisting an officer.
5 Q. Which was a misdemeanor?
6 A. Correct.
7 Q. He was already charged with a felony charge,
8 is that right, aggravated flight?
9 A. As well as a misdemeanor driving --
10 Q. DWI?
11 A. Yes.
12 Q. So they added at least one additional
13 misdemeanor involving resisting arrest. Is that
14 correct?
15 A. Correct.
16 Q. Now, did you have a discussion at any time
17 with Mr. -- first off, what position did Mr. Ronnie
18 Gracianette hold at the time that you were on this
19 case as defense counsel?
20 A. Well, he was an employee of the District
21 Attorney's Office. And he was in there, I would say,
22 in a supervisory capacity in their office.
23 Q. Is there a position of chief of trials?
24 A. I don't know what his title is. Basically he
25 was the one who agreed or would allow an amendment of
26 the charges to be made if there was one to be had.
27 Q. Okay. And to the best of your knowledge, was
28 he Bruce Dearing's supervisor at this time?
29 A. Yes, sir.
30 Q. And with general procedure and the practice
31 here in the building, if a District Attorney wanted
32 to amend or change, generally you would have to see
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JUDGE A.J. HAND
1 Mr. Gracianette about that?
2 A. If you wanted a downward amendment to those
3 charges. And typically he would have to approve
4 those. And typically, if you represented a client,
5 you wanted to talk to the D.A.'s office in general
6 about a reduction of charges, you would make an
7 appointment to go see Mr. Gracianette to see if he
8 would, in fact, approve of an amendment or reduction
9 of charges.
10 Q. Judge Hand, prior to taking the bench, you had
11 -- you had a mixed practice of both general and
12 criminal, civil and criminal?
13 A. Yes, I did a pretty mixed bag. My practice of
14 law included both civil and criminal, probably
15 50 percent or better was criminal.
16 Q. And the balance be plaintiff-type litigation?
17 A. No, a lot of real estate, banking, just a
18 variety of civil law activities.
19 Q. I see. Was there ever an occasion where you
20 personally met with Ronnie Gracianette regarding Mr.
21 Shane Michael Gates' case?
22 A. At least once, if not several times.
23 Q. Yes, sir. And during the meeting with Mr.
24 Gracianette, was it ever suggested by Mr. Gracianette
25 that if Michael Gates signed a hold harmless that you
26 could get the charges reduced?
27 A. Ronnie never committed -- Mr. Gracianette
28 never committed to that, but it was something that he
29 told me that would have to be done when I went to him
30 and talked to him about disposing of the felony
31 charge in lieu of a plea agreement. He said that the
32 only way that would happen is if, in fact, Shane
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54
JUDGE A.J. HAND
1 would agree to release the sheriff's department from
2 any liability in conjunction with the incident.
3 MR. REGAN:
4 Thank you. I have no further
5 questions.
6 THE COURT:
8 CROSS-EXAMINATION BY MR. NORIEA:
9 Q. Do you recall -- was the first idea brought
10 about by Mr. Abel that he was going to file a civil
11 rights suit if the charges were not dismissed?
12 A. I don't know. If you're saying what came
13 first Ronnie's suggestion that the release would have
14 to be executed or did Mr. Abel bring up that topic?
15 Q. That's right. Was the 1983 action in Federal
16 court brought up as a reason to not have the D.A.'s
17 office bring any criminal charges against this
18 current defendant Gates?
19 A. No. I made no representations to the District
20 Attorney's Office that I was threatening any type
21 of --
22 Q. Not you --
23 MR. REGAN:
24 Let him finish. Objection. Let him
25 finish.
26 BY MR. NORIEA:
27 Q. -- Abel, Danny Abel.
28 A. There again, I was the one representing Mr.
29 Gates and discussed the matter with the D.A.'s
30 office. And I made no part of my conversation with
31 Mr. Gracianette that there was a threat of litigation
32 that was going to come out of this. He was -- Mr.
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JUDGE A.J. HAND
1 Gracianette, to my recollection, was the one that
2 said we need this released from liability of the
3 sheriff's department if we are going to consider this
4 reduction of charges.
5 Q. Now, you don't know if, if Danny Abel had
6 spoken to Chuck Hughes about the civil rights suit in
7 return for them, the Sheriff's Office, not pursuing
8 the criminal charges against the defendant?
9 A. Well, to my recollection, my conversation with
10 Mr. Gracianette predated the discussion that Mr. Abel
11 had with Mr. Hughes to my knowledge. There was a
12 conversation that took place at some point in time
13 with Mr. Abel and Mr. Hughes --
14 Q. Okay.
15 A. -- about the possibility. Because
16 essentially, when Mr. Gracianette said this is the
17 only way that it can work, I said, okay, I'll advise
18 Mr. Abel of that. Because Mr. Abel was an old
19 colleague friend of mine. I was representing his son
20 in the litigation, and I told him, I said, this is
21 what needed to be done. And I was well aware that
22 Mr. Hughes represents the sheriff's department, and I
23 said you are going to have to clear that issue with
24 Mr. Hughes.
25 MR. NORIEA:
27 THE COURT:
28 Redirect.
29 REDIRECT EXAMINATION BY MR. REGAN:
30 Q. And it was Mr. Gracianette that brought it up
31 first about dismissing?
32 A. To my recollection he was the one who had said
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JUDGE A.J. HAND
1 in order for me to do this, Mr. Gates is going to
2 have to agree to waive any right of any damage claim
3 against the sheriff's department.
4 MR. REGAN:
5 Thank you. No further questions.
6 THE COURT:
7 You may step down.
8 THE WITNESS:
9 Thank you, sir.
10 MR. NORIEA:
11 Your Honor, I'd ask that the first
12 witness --
13 THE COURT:
14 Judge Hand is released from his
15 subpoena?
16 MR. REGAN:
17 He is.
18 THE WITNESS:
19 If you-all need me, I'll be in the
20 building.
21 MR. NORIEA:
22 They asked for sequestration, and
23 one of the witnesses has been in here,
24 Danny Abel has been in here for this
25 witness's testimony. And that's a
26 violation of the sequestration order that
27 they asked for.
28 MR. REGAN:
29 Well, he's not testifying again.
30 THE COURT:
31 He's already testified.
32 MR. NORIEA:
17-30519.464
57
1 Well, I don't know what I'm going to
2 do. You can't tell what I'm going to do.
3 MR. REGAN:
4 We'd ask that he step out, if he
5 thinks he's going to call him back.
6 MR. NORIEA:
7 We'd ask that he step out.
8 THE COURT:
9 All right.
10 MR. ABEL:
11 Yes, Your Honor.
12 Just one second.
13 (A DISCUSSION WAS HELD OFF THE
14 RECORD.)
15 (BREAK IN PROCEEDINGS.)
16 THE COURT:
18 MR. REGAN:
19 At this time Mr. Gates rests on his
20 motion.
21 THE COURT:
22 Mr. Noriea.
23 MR. NORIEA:
24 Give me a chance to see if my
25 witnesses are out there, Judge.
26 THE COURT:
27 All right.
29 MR. NORIEA:
30 Ronnie Gracianette.
31 (RONALD T. GRACIANETTE, AFTER HAVING
32 BEEN FIRST DULY SWORN UNDER OATH, DID
17-30519.465
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RONNIE GRACIANETTE
1 TESTIFY AS FOLLOWS:)
2 DIRECT EXAMINATION BY MR. NORIEA:
3 Q. State your name.
4 A. Ronnie Gracianette.
5 Q. How are you employed?
6 A. I work for the District Attorney's Office in
7 St. Tammany Parish.
8 Q. In what capacity?
9 A. I'm the chief of the criminal division. I
10 oversee the operations of the criminal side of the
11 office.
12 Q. For how long?
13 A. Since May of 2005.
14 Q. All right. In connection with your job in
15 that capacity, did you have the occasion to deal with
16 a case in 2006 and 2007 involving the defendant Shane
17 Gates?
18 A. Yes, I first came in contact with the case in
19 May of 2007.
20 Q. Tell the Judge how you came into contact with
21 that case and what you instructed the assistant D.A.
22 handling the case to do.
23 A. If memory serves me correct, A.J. Hand, who
24 was an attorney at the time, came to see me sometime
25 in May of 2007. There was not an appointment, he
26 just happened to come in one day to talk about the
27 case.
28 He met with me for purposes of seeking a
29 dismissal of the case so that his client Mr. Shane
30 Gates could go into some sort of schooling. And I
31 don't know exactly what the schooling was at that
32 time, so I went ahead and talked with Mr. Hand and
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RONNIE GRACIANETTE
1 reviewed the file for the first time.
2 Basically the charge was aggravated flight from
3 a police officer and a DWI case. There was another
4 charge that came in for resisting arrest, but that
5 was screened out because it was a misdemeanor. So in
6 meeting with him and looking at the file, it was a
7 pretty serious case. There was a flight from a
8 police officer, some speeds of over 100 miles an
9 hour, possible collision with a tractor trailer.
10 When the defendant finally pulled over on the side of
11 the road he was pretty intoxicated and fell out of
12 the car. He resisted the police officers and they
13 had to pepper spray him.
14 So in meeting with Mr. Hand, I indicated to him
15 this was not the kind of case we can dismiss.
16 Obviously, the man has a DWI and aggravated flight.
17 And he asked for diversion at that time, and I said I
18 normally don't put people with those kinds of charges
19 on diversion. And the reason for that is because the
20 aggravated flight is a crime of violence, and we
21 don't usually do that and we never put DWIs on.
22 So, as a result, I indicated there was not much
23 I could do to help him with the case unless I had
24 some input from the St. Tammany Parish Sheriff's
25 Office and that he should contact them for purposes
26 of determining whether or not they would be okay with
27 a reduction of the charge so we could take a
28 misdemeanor plea and so he could go into law school.
29 I think he was going to law school.
30 And he said that would be fine, he was going to
31 talk to them, and that was the end of the
32 conversation.
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RONNIE GRACIANETTE
1 Q. You ever have any conversation with Danny
2 Abel?
3 A. I don't recall, may have, but I don't recall.
4 Q. And you passed this on to Bruce Dearing?
5 A. What happened was -- that was in May of 2007.
6 Several months later, I saw Chuck Hughes on an
7 unrelated incident or matter that we were talking
8 about and he asked me about the case and I said that
9 yes I had referred A.J. Hand to the Sheriff's Office
10 because I saw that there were injuries involving the
11 defendant and I saw it was a pretty serious incident.
12 And he asked me why the misdemeanor case was screened
13 out, the resisting arrest.
14 And I said normally we screen those charges out
15 because it's not enhanceable. The DWI is
16 enhanceable, so we would take that case. Since we
17 had a felony on the aggravated flight, there was
18 really no reason to take the misdemeanor.
19 He indicated would we consider taking the
20 misdemeanor resisting charge if it was viable. And I
21 said yes we would, but we would like some input from
22 the police officer that was involved in the case and
23 that we would, in fact, consider including that as a
24 charge at that time.
25 I don't know if that was that day or several
26 days later, he called me and said he had the letter
27 and would we consider filing a resisting charge, and
28 I said yes we would go ahead and do that. So I
29 directed Mr. Dearing to file the resisting charge, to
30 have him look at the file, see what resisting charges
31 apply and have him file the misdemeanor charges as
32 well.
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RONNIE GRACIANETTE
1 Q. And at that time, was the D.A.'s office
2 considered a victim friendly office?
3 A. Sure. We consider the input from victims in
4 all of our cases.
5 Q. And you subsequently got a request from the
6 victims of those two misdemeanor offenses wishing to
7 prosecute their claims?
8 A. We had a letter from at least one of the
9 officers requesting a conclusion of the resisting
10 charges in the case and we agreed.
11 Q. And that's consistent with office policy --
12 MR. REGAN:
13 Objection, leading.
14 THE COURT:
15 Overruled.
16 BY MR. NORIEA:
17 Q. That's consistent with a victim friendly
18 office policy?
19 A. Correct.
20 Q. And that charge was done well within the
21 prescriptive period that applied to misdemeanors
22 which was two years?
24 MR. NORIEA:
26 THE COURT:
28 CROSS-EXAMINATION BY MR. REGAN:
29 Q. Mr. Gracianette, you are aware that the
30 original charges that were filed by bill of
31 information against Mr. Gates were filed
32 approximately 10 months before the resisting officer
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RONNIE GRACIANETTE
1 bill was filed?
2 A. I don't know the time frame, but that would
3 sound about right.
4 Q. About right. And you received a letter which
5 has been marked now as State's Exhibit 1. I'm not
6 sure where it is, maybe this is it up here. And that
7 letter was, what was the return address on that
8 letter?
9 A. From Talley, Anthony, Hughes & Knight. That's
10 the law firm that represents the Sheriff's Office.
11 Q. Right. And that's Mr. Charles Hughes' law
12 firm; is that correct?
13 A. Yes, sir.
14 Q. But it says 9/17, September 17th, hand
15 delivered to you?
16 A. Yeah, that's when the letter was delivered to
17 me, but the phone call came to me before that point,
18 asking me to include the charge that he had secured
19 the letter or that he had talked to the officers and
20 they were willing to request the inclusion of the
21 resisting charge.
22 Q. Right. And then on Monday, that was a Friday,
23 the 17th, and on Monday, the defendant was charged or
24 billed at that point with the resisting arrest.
25 Right?
26 A. I don't know the time frame, but that sounds
27 about right.
28 Q. And you didn't talk to that officer there in
29 that letter?
30 A. No, no.
31 Q. And there was only one letter. Right?
32 A. All I can remember is one letter.
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RONNIE GRACIANETTE
1 Q. Let's talk about Mr. Charles Hughes. You are
2 aware that he represents the Sheriff's Office?
3 A. Yes, he defends the sheriff's department, yes.
4 Q. And he, in fact, represents the insurance
5 company that insures the sheriff's department?
6 A. I would not know that.
7 Q. You wouldn't know that?
8 A. I would not know that.
9 Q. You didn't talk to him about any conflicts of
10 interest he might have had?
11 A. No.
12 Q. Does he ever represent the District Attorney's
13 Office?
14 A. No, no, not at all.
15 Q. So basically the resisting arrest, which is a
16 misdemeanor?
18 Q. You already got the defendant charged with a
19 felony, aggravated flight. Right?
21 Q. You already got him charged with a DWI
22 misdemeanor at this point. And whoever reviewed this
23 thing 10 months earlier didn't charge him. They only
24 charged him with one misdemeanor and one felony and
25 they didn't charge him with the additional
26 misdemeanors. Correct?
28 Q. And it was only after this call from Mr.
29 Charles Hughes in this letter which has his return
30 address on it, that you made the decision to increase
31 or add the charge of resisting arrest?
32 A. It was after we received information that the
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RONNIE GRACIANETTE
1 victim wanted us to add those charges to the bill of
2 information.
3 Q. And the information, again, came from that one
4 letter that Mr. Hughes' office sent to you?
5 A. Yes.
6 Q. Nothing else, no further interviews, nothing
7 else?
8 A. No. In reviewing the police report, there was
9 sufficient evidence to include that charge. It was
10 just screened out which is what sometimes happens
11 when you do the screening of these cases.
12 Q. Mr. Gracianette, I want to ask you something,
13 and please think about this very carefully. Do you
14 remember telling Judge Hand that if you were to going
15 to reduce these charges, Shane Gates would have to
16 basically sign a hold harmless against the sheriff's
17 department?
18 A. I don't deny that. I don't remember that
19 specifically. If Mr. Hand said that was occurring
20 during the course of the conversation, I believe it.
21 This was a conversation I had almost two years ago.
22 But I do remember thinking this is going to be hard
23 to put this person in diversion, so I need something
24 from the sheriff's office to make sure they were
25 satisfied with the way the case was being handled.
26 Q. I mean, and, and, what did you tell, to the
27 best of your memory, to Judge Hand with respect to
28 the holds harmless against the sheriff's department?
29 A. Again, I remember talking to him saying you
30 need to get something from the Sheriff's Office
31 saying they are satisfied. I may have said hold
32 harmless, but I do not remember that.
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RONNIE GRACIANETTE
1 But I do not remember thinking that I can't put
2 this guy in diversion because it's not the kind of
3 case. He is asking me to dismiss it so he get some
4 accommodation for law school. I can't do that. So
5 if I do anything to help him, I need something from
6 the Sheriff's Office saying to me it's okay to reduce
7 this or put him in the diversion program. It's not
8 something I would normally have done.
9 Q. I mean, it's not a question of helping him.
10 The charges that were in place were still in place
11 and then you added two additional resisting charges.
12 A. That was about two or three months later.
13 Q. No, sir. It was actually -- the letter came
14 through on the 17th and you charged him the following
15 Monday before the trial with the two additional
16 resistings.
17 A. I'm sorry. My conversation with Mr. Hand
18 occurred sometime in May of 2006, and this event
19 didn't occur in terms of increasing the charge until
20 sometime, I think, in September, maybe, of 2007. So
21 there was some timeframe when Mr. Hand and I had the
22 conversation and when I had a conversation with Mr.
23 Hughes.
24 Q. Let me ask you this. Because, as you said,
25 you don't remember, but you'll trust that Judge
26 Hand's memory is better.
27 A. I would trust that, I would.
28 Q. And you remembered that basically right before
29 this discussion occurred very close to the adding of
30 the two charges, would you disagree?
31 A. I would disagree with that portion of it.
32 Because I do remember meeting with A.J. in May of
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1 2007. I write notes in some of the files that
2 indicate some of my conversations, and that occurred
3 in May of 2007.
4 Q. And then you would have written down request
5 that the hold harmless be given on your file?
6 A. No, I looked at the note, and it didn't say
7 anything like that. Just that I met with Mr. Hand
8 and that he was going to talk to the Sheriff's
9 Office.
10 Q. Would you leave that note off?
11 A. I don't remember, truthfully.
12 Q. You don't remember?
13 A. And I'm not saying I didn't say it. I'm just
14 saying I don't remember making that comment.
15 Q. And it's clear to you, I mean, that if Mr.
16 Charles Hughes is representing the insurance company
17 and is representing the Sheriff's Office that that
18 would be an important thing to him. Right?
19 A. I would think it would.
20 Q. And also, you're are aware that your office
21 and the sheriff's department all got sued in Federal
22 court?
23 A. Yes, that occurred sometime, September or
24 October of 2007. But I don't remember the exact
25 date.
26 Q. And that was after the September 17th letter.
27 Right?
28 A. I don't remember. It would probably be after
29 that date.
30 Q. You would agree it kind of looks bad when the
31 man that's representing the insurance company and the
32 sheriff's office is working with you to raise the
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RONNIE GRACIANETTE
1 charge to increase the charges against the defendant?
2 It's got a bad appearance, doesn't it?
3 A. It's a misdemeanor offense, so it's not like
4 it's a felony. And really, it's not a big deal in
5 terms of the prosecution of the case.
6 Q. But it was a big deal in terms of at that time
7 of civil liability?
8 A. That doesn't concern me, nor do I understand
9 that at all. I don't think that it does, but I don't
10 know enough about it to comment.
11 Q. And if it doesn't concern you, you obviously
12 were asking for it. Right?
13 A. I received a letter from the victim asking
14 that the charges be instituted.
15 Q. No, sir. You were asking that a hold harmless
16 be obtained.
17 A. If that occurred, it occurred in May of 2007.
18 That was months before any sort of lawsuit or upgrade
19 of the charge. So to be clear, Mr. Regan, what I
20 remember is the conversation occurred in May of 2007.
21 The charges weren't upgraded until sometime in
22 September, so there was some discussion in some
23 period in between. I don't know what happened. I
24 wasn't a part of any conversation between Mr. Hand
25 and the Sheriff's Office.
26 The next thing I knew, sometime in September or
27 August, I was approached by Mr. Hughes about
28 increasing the charges or filing additional charges.
29 Q. Right. And Mr. Dearing was the prosecutor.
30 Correct?
31 A. That's correct. Bruce operated on my
32 instructions. So when I saw him that day, I said go
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RONNIE GRACIANETTE
1 ahead and review the file and file the two additional
2 misdemeanors. I should be getting a letter.
3 Q. So you take full responsibility for
4 instructing Bruce Dearing to increase the -- to add
5 the charges of resisting arrest?
6 A. Yes, that was my decision.
7 Q. After receiving the letter from Chuck Hughes?
8 A. After receiving the letter from Deputy Nathan
9 Miller.
10 Q. That came in the Charles Hughes' envelope?
11 A. Yes.
12 Q. Which was sent to you after you had that
13 discussion with Charles Hughes asking you for
14 something.
16 Q. And have you been personally named in the
17 lawsuit?
18 A. I think so.
19 Q. You have?
20 A. I think so.
21 Q. And Mr. Walter Reed has been personally named
22 in the lawsuit?
23 A. Yes.
24 Q. And Bruce Dearing has been personally named in
25 the lawsuit?
26 A. I would think so, yes.
27 Q. As you've told us, because you take full
28 responsibility, it wasn't Mr. Dearing who came to you
29 and said we need to add these resisting arrest
30 charges?
31 A. No. It was my decision, and I instructed Mr.
32 Dearing to file the charges.
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RONNIE GRACIANETTE
1 Q. Did you have a discussion with Mr. Reed about
2 adding those additional resisting charges?
3 A. No.
4 Q. How long have you known Charles Hughes?
5 A. Good question. Probably as long as I've been
6 over here in St. Tammany, which has been about
7 fifteen years, probably after Jack Strain's election.
8 Q. Let me ask you, Mr. Gracianette, would you
9 agree with the ethical principle that you can't
10 settle lawsuits by threatening criminal charges?
11 A. Yes.
12 Q. That's correct?
13 A. Yes, yes.
14 Q. If somebody, at this point, suggested that if
15 they don't settle the lawsuit, say, for $10,000, you
16 are going to add some criminal charges to the man's
17 record or charge?
18 A. That's not something we would ever do. That's
19 not what our office does. That's not how we operate.
20 Our position is if the victim calls us and says,
21 Look, you missed these charges or you didn't file
22 these charges and they are viable charges, we're
23 going to file them.
24 MR. REGAN:
25 No further questions.
26 THE COURT:
27 Redirect.
28 REDIRECT EXAMINATION BY MR. NORIEA:
29 Q. This incident occurred on November 16th, 2006?
30 A. I believe so.
31 Q. And you are aware that you have to file a
32 lawsuit within one year of that time?
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1 A. Yes.
2 Q. For a civil rights violation?
3 A. Yes.
4 Q. So the fact that it was filed in October of
5 2007, would be what a prudent civil lawyer would do?
6 A. I would think so.
7 MR. NORIEA:
9 THE COURT:
10 You may step down. Is Mr.
11 Gracianette under subpoena? If so, is he
12 released?
13 MR. NORIEA:
14 He is released.
15 We would call Chuck Hughes.
16 (CHARLES M. HUGHES, AFTER HAVING
17 BEEN FIRST DULY SWORN UNDER OATH, DID
18 TESTIFY AS FOLLOWS:)
20 Q. State your name, please.
21 A. My name is Charles Marion Hughes, Jr.
22 Q. And what is your profession?
23 A. I'm an attorney.
24 Q. And how are you employed?
25 A. I'm a private attorney with the firm of
26 Talley, Anthony, Hughes & Knight, and I act as
27 general counsel to Sheriff Jack Strain.
28 Q. In connection with your employment with the
29 law firm and Sheriff Strain, did you have occasion to
30 defend a 1983 civil rights suit in that regard?
31 A. Yes.
32 Q. I want to direct your attention to the Shane
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CHARLES M. HUGHES
1 Michael Gates case. Were you ever spoken to by Danny
2 Abel in connection with that case about a situation
3 involving his son?
4 A. Yes, I was, on numerous occasions.
5 Q. Is that how you became acquainted with this
6 case?
7 A. Yes.
8 Q. So your first knowledge of this case anywhere?
9 A. The first time I became aware of this matter
10 was at the steps of the courthouse in probably June
11 of the year following the incident. I believe the
12 incident was in November of 2007.
13 Q. 6, 2006?
14 A. 6th. So it would have been sometime around
15 June of 2007. I was coming up the steps of the
16 courthouse, Mr. Abel was in a conversation with
17 Judge A.J. Hand, future Judge. He was not yet
18 elected. Mr. Abel and I had a civil case where I
19 represented the Louisiana State Bar Association and
20 he represented a public adjuster against whom the Bar
21 had filed a motion for declaratory judgment and an
22 injunction to prohibit him from the unauthorized
23 practice of law.
24 I approached him and we started talking about
25 that case. Judge Hand walked away and Mr. Abel said,
26 "You represent the Sheriff's Office, don't you?" And
27 I said yes I do.
28 "Let me tell you about this great civil rights
29 case that I have for my stepson who was beaten up by
30 a bunch of deputies," and he starts describing this
31 alleged incident which occurred in November of the
32 year before.
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CHARLES M. HUGHES
1 Starts talking about we need to work something
2 out. We need to have a settlement. I want to talk
3 to the Sheriff. I need to get with you to talk
4 further about this case, and we need to work
5 something out in terms of a settlement.
6 Q. At this time, were you aware of any pending
7 charges against this individual that was in the
8 D.A.'s office?
9 A. None whatsoever. I had never heard of Mr.
10 Gates or this matter or anything else.
11 Q. Okay. Proceed.
12 A. I told him that, as I -- I'm often approached
13 by attorneys or people who know that I represent the
14 Sheriff's Office. They ask me about something with
15 the Sheriff's Office, and I told him that I'd do the
16 same thing that I'd do for him as others and that is
17 I would check into the matter, that I would obtain
18 the police reports, look at them and get back in
19 touch with him.
20 I told him that under no circumstance could I
21 discuss settlement. I was a little uncomfortable
22 that he seemed to continually bring up settlement and
23 the desire to work something out.
24 Q. Did you have an active case with him at that
25 time?
26 A. I did, in the one I described.
27 Q. But there was no 1983 suit pending at that
28 time in Federal court against the Sheriff's Office
29 for the incident in 2006; is that correct?
30 A. No, there was not.
31 Q. You didn't know anything about it?
32 A. I didn't know anything about it. I told him
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1 I'd look into it and get the police report and give
2 him a copy of the initial reports which are public
3 records to which any member of the public was
4 entitled. So I did, I got copies of the reports.
5 And I also told him that day that -- about the
6 case of Heck v. Humphrey, which is a case that
7 basically stands for the proposition that you can't
8 proceed civilly for damages in a situation where
9 you've been found guilty in criminal court.
10 I told him I suspected that in the incident
11 that he described to me that his stepson had probably
12 been arrested and charged with resisting arrest,
13 because he talked about a fight with the police, and
14 there is likely going to be resisting arrest charge
15 but that I would look into it. I told him that there
16 are probably multiple other violations with which he
17 is charged.
18 I got the records. And I saw that on the night
19 of the incident, Mr. Gates was arrested on five
20 different charges. One was aggravated obstruction of
21 a highway, driving while intoxicated, he was .28
22 intoxicated; open container; reckless operation and
23 resisting arrest. So true to my suspicions, he was
24 charged with the type of crimes that I thought he
25 might be charged with.
26 I called Mr. Abel, told him about that and made
27 him an offer to, you know, give him the records. At
28 some point in time there was a letter, a subpoena,
29 rather, from then attorney Hand for the records and
30 also for the, I think for the 911 transcript and the
31 dispatch records of the deputies who were dispatched
32 to the scene of the crime. And I provided Mr. Hand
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CHARLES M. HUGHES
1 with, with that documentation. I don't recall
2 whether that was before or after I actually met with
3 Mr. Abel.
4 But at some point I did meet with Mr. Abel and
5 gave him copies of the reports at my office, there
6 was a meeting at my office.
7 Q. How many meetings did you have with him?
8 A. There was a meeting at the steps of the
9 courthouse. And then there was the meeting at my
10 office. I believe there were only two occasions
11 where I actually met with him. There was a phone
12 call in between those two meetings where, again, he
13 talked about wanting to work something out, asking me
14 to call the District Attorney's Office and get
15 involved with the District Attorney's Office.
16 Q. For what purpose did he want you to do that?
17 A. It was clear to me that he wanted to, at least
18 my take on it, was that he was trying to use the
19 threat of civil litigation as some sort of leverage
20 in it for his stepson's benefit in the criminal
21 prosecution.
22 He thought that I would go to the D.A., tell
23 them, look, if you'll drop all these charges, they
24 won't sue the Sheriff's Office and that I would
25 somehow try and influence the District Attorney with
26 regard to dropping the charges.
27 Q. You are aware --
28 A. That and the continued direct request that we
29 settle, that we somehow pay him some money.
30 Q. The case was never settled. Correct?
31 A. Never was.
32 Q. As a matter of fact, the lawsuit wasn't even
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CHARLES M. HUGHES
1 pending at that time?
2 A. No suit pending at that time.
3 Q. Were you provided with any medical records so
4 that you could evaluate the value of the case to the
5 plaintiff?
6 A. I don't believe I was, no. It wouldn't have
7 mattered.
8 Q. It wasn't an active case as far as you were
9 concerned at that time; is that correct?
11 Q. Now, did you receive a letter from one of the
12 victims in this case requesting that because they
13 were victims in this case that you speak to somebody
14 at the D.A.'s office about their desire to prosecute
15 those cases?
16 A. I didn't get a letter -- you're speaking of
17 the sheriff's deputies who were the victims of the
18 resisting arrest incident.
19 Q. Correct. Look at S-1 in front of you. Are
20 you familiar with that letter?
21 A. Yes, I didn't receive this. This was a letter
22 from Walter Reed -- excuse me, from Deputy Nathan
23 Miller to Walter Reed.
24 Q. And that came by way of your letter?
25 A. From my office, yes. I got this letter from
26 Deputy Miller.
27 Q. Correct.
28 A. Okay. Yes.
29 Q. And he is one of the victims in the resisting
30 arrest altercation?
31 A. Yes. I believe Roger Gottardi and I believe a
32 Deputy Williams were the three deputies, who I think
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1 Roger Gottardi had to pursue Mr. Gates at over
2 105 miles an hour down the interstate as
3 eighteen-wheelers were slamming on brakes and forced
4 off the highway.
5 Mr. Gates came to a stop, Gottardi pulled in
6 behind him. Gates then accelerates, takes off,
7 another chase ensued with traffic scattered.
8 Gottardi, by the time Mr. Gates is stopped a second
9 time, is then aided at the scene by Deputies Williams
10 and Miller.
11 In my view, Gottardi is the victim of resisting
12 arrest with the chase, and all these deputies are
13 victims of the resisting arrest with regard to having
14 to fight Mr. Gates on the side of the interstate with
15 traffic whizzing by.
16 Q. And this was in November at around 9, 9:30 at
17 nighttime?
18 A. At least that late. It was dark. I want to
19 say it was later, but I could be mistaken.
20 Q. November it gets dark pretty early?
21 A. Oh, yes, it was dark, it was dark.
22 Q. In either the telephone conversation, the
23 courthouse meeting or the meeting in your office, did
24 you ever threaten Danny Abel with anything?
25 A. Never threatened Mr. Abel at all. Every
26 conversation I had with him was very professional,
27 very even keeled. And I could tell that he was very
28 emotionally invested because his stepson was
29 involved.
30 And because of that, and because of the fact
31 that I had this other civil case with him, I tried to
32 be very careful and not sandpaper him, not, you know,
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CHARLES M. HUGHES
1 exacerbate his angst by making it personal in any
2 way.
3 I was very firm with him in telling him that,
4 number one, I represent these deputies as victims and
5 that on behalf of these victims, these deputies, they
6 have rights too and that those rights should be
7 protected.
8 I was firm with him that we weren't paying any
9 settlement, that we weren't talking about money. I
10 was firm with him that I'm not going to try and
11 influence the District Attorney's prosecutorial
12 discretion, the D.A.'s discretion about when, where
13 and who to prosecute.
14 But, you know, most of all, I was adamant with
15 him that we were going to protect the truth and
16 protect what happened with these deputies.
17 Q. I show you what's been previously marked as
18 State's Exhibit -- I mean, Exhibit -- not State's
19 Exhibit, Exhibit No. 1, Exhibit No. 2. Do you
20 recognize those?
21 A. I do. Exhibit 1 is the packet which would
22 include documents which I gave to Mr. Abel. They are
23 the citation for resisting an officer, reckless
24 operation, open container, DWI, and aggravated
25 flight.
26 It shows in the arrest report that on the night
27 of the incident, he was arrested and charged with all
28 five of those Title 14 violations. And I discussed
29 these with Mr. Abel.
30 Q. How about 2, do you recognize 2?
31 A. Yes, I do. 2 is a letter from Mr. Abel to me
32 that I received after the meeting that I had with him
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CHARLES M. HUGHES
1 in my office. The meeting was probably in late July
2 of 2007; the letter came a week or two later.
3 When I got it, I noted that it contained a lot
4 of self-serving declarations about what his position
5 was and what had happened and what he said that I
6 said, very, very little of which would be true. I
7 got it. I looked at it. You know, again, I see he's
8 asking for $500,000 and 100,000 for this and 400 for
9 that and dismissal of the charges, which gets
10 reiterated in my mind that I was correct in my
11 suspicion that what this was all about on his part
12 was to attempt to use leverage to get the criminal
13 charges dismissed and an attempt to get money.
14 I took the letter, I really didn't give it much
15 thought or analysis. I put it in the file and didn't
16 think anything of it. I didn't respond to it.
17 Q. What's the date of this letter.
18 A. August 8th of 2007, and I would have gotten it
19 shortly thereafter.
20 Q. Let me show you Exhibit 3. Do you see
21 recognize Exhibit 3?
22 A. All right. This is the letter to Mr. Hand,
23 September 19, 2007. So, this refreshes my
24 recollection about the time frame within which I
25 would have a provided a subpoena response to Mr.
26 Hand.
27 THE COURT:
28 What's the date?
29 THE WITNESS:
30 September 19, 2011 (sic) -- I'm
31 sorry, September 19, 2007.
32 Earlier I testified I couldn't
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CHARLES M. HUGHES
1 remember whether I had sent the subpoena
2 response before or after I had the meeting
3 with Mr. Abel.
4 This clarifies it. I sent it
5 afterwards, and they had subpoenaed the
6 C.D. I sent this printout from the
7 computer-aided dispatch office at the
8 Sheriff's Office as well as, I believe,
9 the actual disk that had the audio
10 recording on it so they could listen to
11 it.
12 BY MR. NORIEA:
13 Q. What do those records depict in Exhibit 3?
14 A. That unit 2419 was dispatched in route to that
15 scene; 2211, dispatched in route to that scene; 2212,
16 2217, 2419, all at some point dispatched. And that
17 scene, five different deputies went to the scene.
18 Officer in need of an assistance. Pursuit.
19 Q. This was all pursuant to defendant in this
20 case?
21 A. DWI arrest, all pursuing the defendant. And
22 then here's a summary of what the dispatcher, you
23 know, recorded: Description of vehicle, they ran
24 NCIC on him.
25 I recall taking this and making a chronology of
26 this computer-aided dispatch with the disk with the
27 reports. And it all showed exactly what happened,
28 that he sped down the interstate at over 105 miles an
29 hour. The deputy is in hot pursuit. He stops,
30 thinks he's going to stay there. He takes off again.
31 He's running more eighteen-wheelers off the road. He
32 stops. They have to fight Mr. Gates on the side of
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CHARLES M. HUGHES
1 the road as the other deputies show up.
2 MR. REGAN:
3 I'm going to object. This is all
4 hearsay and self-serving testimony. He
5 wasn't there. This is hearsay from
6 officers and these things haven't been
7 litigated yet.
8 THE COURT:
9 Overruled.
10 THE WITNESS:
11 And in my view, my analysis was that
12 the computer-aided dispatch, the audio
13 disk, the records, the reports showed
14 exactly what happened. I gave all this to
15 Mr. Abel, and I responded to the subpoena
16 to Mr. Hand.
17 MR. NORIEA:
18 Your Honor, in connection with his
19 testimony I would like to offer, file, and
20 introduce into evidence State's Exhibit
21 S-1, which includes the envelope on the
22 back --
23 THE COURT:
24 Any objection?
25 MR. REGAN:
26 No objection.
27 THE COURT:
28 Let it be admitted.
29 MR. NORIEA:
30 -- Exhibit 1, which is the first
31 packet provided to Danny Abel --
32 THE COURT:
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CHARLES M. HUGHES
1 Any objection?
2 MR. REGAN:
3 No objection.
4 MR. NORIEA:
5 -- Exhibit 2, which is Danny Abel's
6 letter --
7 THE COURT:
8 Any objection?
9 MR. REGAN:
10 No objection.
11 THE COURT:
13 MR. NORIEA:
14 -- and Exhibit 3, which is this
15 witness's response to Mr. A.J. Hand.
16 THE COURT:
17 Any objection?
18 MR. REGAN:
19 No objection.
20 THE COURT:
22 Counsel, if she's got to mark these,
23 and you got different numbers.
24 MR. NORIEA:
25 Exhibit 1, 2 and 3 without an S on
26 it. Let's just make S-1 Exhibit 4.
27 MR. REGAN:
28 No objection. That's fine.
29 THE COURT:
30 Let's do that. That's fine. So
31 State's Exhibit 4 will be what's
32 previously been referred to as S-1.
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CHARLES M. HUGHES
1 MR. NORIEA:
2 That will just be Exhibit 4.
3 Tender the witness, Your Honor.
4 THE COURT:
7 Q. The civil lawsuit was not filed until after
8 the resisting arrest charges were added. Do you know
9 that?
10 A. The resisting arrest charges were added the
11 night of the incident.
12 Q. No, sir. They were not accepted by the
13 District Attorney's Office until after you called and
14 spoke to the District Attorney's Office.
15 A. You have to ask the D.A. about when they
16 accepted the charges. I do know that your client was
17 arrested the night of the incident for resisting
18 arrest.
19 Q. Did you, in fact, sir, call the District
20 Attorney's Office regarding the resisting arrest
21 charges?
22 A. Yes, I did.
23 Q. And who did you speak to?
24 A. I spoke with Ronnie Gracianette.
25 Q. Who else?
26 A. At some point in time, and I think it was
27 after my discussion with Mr. Gracianette, I spoke
28 with Mr. Bruce Dearing.
29 Q. Mr. Dearing. And as I understand it, at this
30 point, is that you had an extensive discussion with
31 Mr. Danny Abel regarding the defense under the Heck
32 case, two civil rights actions. Did you or did you
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CHARLES M. HUGHES
1 not?
2 A. At what point?
3 Q. Did you ever have a discussion with Danny Abel
4 regarding the Heck case?
5 A. The very first time I met Mr. Abel on the
6 steps of the courthouse and he brought up this matter
7 to me, I told him about Heck v. Humphrey. He was
8 unaware of it, didn't know the case. I didn't have
9 the citation, but I told him about the case, that it
10 was a United States Supreme Court case, that he could
11 find it and read it.
12 Q. Sir, and what you had told him about that what
13 that if there was a resisting arrest charge that he
14 is convicted of, then there is no basis for the
15 lawsuit. That's what you explained to him.
16 A. Well, there was no lawsuit at that time. I
17 did explain to him what I understood the holding of
18 Heck to be.
19 Q. And that being that you could not prevail in a
20 civil suit against the sheriff's department if there,
21 in fact, was a conviction for resisting arrest.
22 Correct?
23 A. One of the things I told him was that my
24 appreciation of Heck v. Humphrey is that you cannot
25 collaterally attack a criminal conviction in civil
26 court by attempting to prevail in civil court for
27 that which you have already been found guilty beyond
28 a reasonable doubt in criminal court, and that if he
29 were going to pursue this threatened million-dollar
30 case, as he described it, against the Sheriff's
31 Office, that I said, "Danny, you know, that's one
32 hurdle you'll have to overcome. But, look, like I
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CHARLES M. HUGHES
1 told you, Danny, I'll get the reports. I'll give you
2 copies of them. I'll look at them and get back in
3 touch with you."
4 Q. You specifically told him you would talk to
5 the District Attorney's Office about adding the
6 resisting arrest charges?
7 A. No, I didn't.
8 Q. Sir, are you sure about that?
9 A. That I told him that I would add the --
10 Q. That's correct, that you intended if he didn't
11 accept a $10,000 settlement from you, from your
12 mouth, you told him, you got a $10,000 settlement, or
13 I will call the District Attorney and I will add some
14 resisting arrest charges.
15 A. I never made any offer of settlement to Mr.
16 Abel in this case.
17 Q. I'm not talking offer, I'm talking threats.
18 A. I never threatened him.
19 Q. You never threatened that you would have
20 additional charges brought against Shane Gates?
21 A. In fact --
22 Q. Yes or no, sir.
23 A. No. In fact, I told him numerous times in the
24 course of our correspondence and discussions that
25 it's not my area, it's the District Attorney's area
26 to have sole prosecutorial discretion. And it will
27 be up to the District Attorney and not the Sheriff's
28 Office to proffer or pursue whatever charges against
29 Mr. Gates that they in their prosecutorial discretion
30 felt appropriate.
31 Q. You represent the Sheriff's Office. Correct?
32 A. I've testified to that, yes.
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CHARLES M. HUGHES
1 Q. And the second thing: You represent the
2 insurance company that insures the Sheriff's
3 department?
4 A. In this case, no.
5 Q. In any cases, generally?
6 A. There are a very few cases where St. Paul
7 Travellers which has the comprehensive general
8 liability policy for the Sheriff's Office with a
9 $500,000 self-insured retention, where I am the
10 attorney of record for both the Sheriff and the
11 insurance company.
12 In fact, though, just last week --
13 Q. I don't think last week is relevant.
14 A. -- I was against St. Paul Travellers on behalf
15 of the Sheriff's Office because they tried to deny
16 coverage in a case. So, I don't know how to answer
17 your question.
18 Q. Well, I think you can and I'll try it again.
19 First of all, you basically don't represent
20 them in this matter because you've been sued as a
21 defendant, haven't you.
22 A. I don't represent the insurance company in
23 this case because I have a professional conflict of
24 interest since I am a party. And a party -- an
25 attorney cannot be attorney of record for any party
26 in a litigation.
27 Q. Precisely. So when you tell the Court you
28 don't represent them in this matter is because you
29 can't, you're a defendant. Right?
30 A. This matter being?
31 Q. The civil suit.
32 A. The civil suit.
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CHARLES M. HUGHES
1 Q. In Federal court. You know what we're talking
2 about.
3 A. I want the record clear in this matter I don't
4 represent anyone in State v. Gates.
5 Q. Excuse me, sir --
6 A. But in the case of Gates versus the Sheriff's
7 Office, me and the deputies and the District
8 Attorney's, no, I am not attorney of record for
9 anyone in that case. I have my own attorney in that
10 case.
11 Q. Because you are a defendant.
12 A. That's right.
13 Q. Thank you.
14 Now, and let's go to times prior to that you
15 being sued, at this point. You, in fact, have
16 represented the insurance company and defended the
17 Sheriff against lawsuits, and they sometimes pay you,
18 correct, for defending them?
19 A. They, being the insurance company?
20 Q. Travellers, yes, the insurance company we're
21 talking about.
22 A. No.
23 Q. Does your firm -- I'm talking about your firm?
24 A. I understand. Under the insurance policy with
25 the Sheriff's Office, the attorney's fees and
26 expenses under the policy since we have been about
27 St. Paul Travellers which has been about ten years
28 are paid out of the $500,000 self-insured retention
29 by the Sheriff's Office as part of the retention.
30 Never has there been any case that has gone
31 beyond the 500,000 self-insured retention such that
32 St. Paul Travellers has had to actually pay any legal
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1 fees, to my knowledge.
2 There might be one or two that escape my memory
3 now, but actual legal fees have always been paid
4 within the self-insured retention by the Sheriff's
5 Office.
6 Q. And fair enough. And you represent that
7 500,000 self-retention policy or funds?
8 A. I represent the Sheriff's Office.
9 Q. Yes, sir.
10 A. I don't represent a fund.
11 Q. I'm sorry. You said that there is a $500,000
12 self-insurance fund. Is that correct?
13 A. No.
14 Q. What is it? I misunderstood. I apologize.
15 A. You do. There's a policy of insurance,
16 comprehensive general liability police professional
17 policy --
18 Q. Right?
19 A. -- issued by St. Paul Travellers to the St.
20 Tammany Parish Sheriff's Office.
21 Q. Yes.
22 A. One of the provisions of the policy is that
23 there's a $500,000 self-insured retention, which
24 means that the first $500,000 of any particular claim
25 inclusive of attorney's fees and expenses must be
26 paid by the insured.
27 Q. And who is that?
28 A. Jack Strain.
29 Q. And who represents Jack Strain?
30 A. I do.
31 Q. Thank you.
32 Now, you've got to agree that under the Heck
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1 decision, under Heck, at this time -- Heck has been
2 changed, at this point, would you agree, that the law
3 has changed?
4 A. Heck has not been changed, but there's been
5 some jurisprudence, in fact, in the Fifth Circuit
6 that has expounded upon and, you know, affected the
7 holding of Heck, I guess is a good word to use.
8 Q. In fact, back when you were talking to Danny
9 Abel and the discussion of Heck, Heck was a good
10 defense for the $500,000 fund you represented.
11 Because if a person was convicted of resisting arrest
12 beyond a reasonable doubt, at this point, then that
13 was a complete defense of civil liability under the
14 law as it existed when you were talking to Mr. Abel,
15 am I right?
16 A. I don't know if it's proper to categorize Heck
17 as a complete defense. And I didn't know when I was
18 talking to Mr. Abel on the courthouse steps enough
19 about the particulars of his case to tell him whether
20 I thought Heck actually applied.
21 I did tell him that based on what he was
22 telling me and based on what my experience is in
23 these matters, that it sounded to me that this
24 incident would involve a factual scenario wherein
25 Heck might likely come into play. So, therefore,
26 Danny, take a look at this case, and I'll get the
27 records for and I'll send them to you.
28 And, oh, by the way, you know, it sounds like
29 there's going to be a resisting arrest charge here
30 and, you know, these deputies are victims. I was
31 from the very start of the matter telling him that I
32 felt that the rights of these deputies needed to be
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1 protected.
2 Q. And, you see, back then --
3 A. That's who I represent.
4 Q. -- you had handled a case called Holly Bush?
5 A. One of my law partners did. Holly Bush v. St.
6 Tammany Sheriff's Office.
7 Q. And in fact, you were familiar with that on
8 that date, because the Heck decision gave you a
9 defense to that civil lawsuit, right? Your firm,
10 against the $500,000 self-insured policy?
11 A. I don't know the date of Holly -- of the Holly
12 Bush decision. I think in 2007 -- it probably
13 predated 2007. And I was aware of Heck and Holly
14 Bush and some of the other jurisprudence that speaks
15 towards this legal issue.
16 Q. So you've got to admit it would be in your
17 client's best interest, that's the Sheriff and the
18 $500,000 money, it would be in your best interest to
19 have Mr. Shane Gates charged and convicted of
20 resisting arrest, wouldn't you?
21 A. It would be in the best interest of the
22 Sheriff's Office to have a resisting arrest
23 conviction in a matter where there was a civil case,
24 yes.
25 Q. Yes, sir. And it would protect the $500,000
26 fund you represented?
27 A. It could.
28 Q. And it would protect you, perhaps, as well.
29 Correct?
30 A. No.
31 Q. No. Let's look at Defendant's Exhibit 1, if
32 we could, for a minute. It's a four-page photograph.
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1 You received a letter in connection with the injuries
2 sustained by Shane Gates dated August 8, 2007, from
3 Danny Abel. Correct?
4 A. Yes, I believe that's the letter in evidence.
5 MR. REGAN:
6 Yes, sir. If I could ask the Court
7 to pass that back to him, if the Court has
8 that.
9 THE COURT:
10 What exhibit?
11 MR. REGAN:
12 It's State's Exhibit, may be No. 2.
13 It's the Danny Abel letter dated 8 August
14 2007.
15 BY MR. REGAN:
16 Q. And I'd ask you to review that in light of --
17 if you would take those photographs as well?
18 A. Okay.
19 Q. And in Mr. Abel's letter, he's suggesting at
20 this point and you've got the photographs and you saw
21 the photographs back then, too, didn't you?
22 A. Yes, I did.
23 Q. He writes to you saying that there was surgery
24 already and the medicals were going to run about
25 100,000 due to corrective surgery to Gates' face.
26 Right?
27 A. That's what his letter says and -- part of
28 what his letter says, yes.
29 Q. Right. And you had at the same time in your
30 possession copies of the -- you don't have the
31 photographs. Would you reach those photographs up
32 there. That's Exhibit 1. Take a minute to go
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1 through those photographs.
2 A. I've seen them.
3 Q. Did you think that was a frivolous claim if
4 there was damage or liability, that there might be a
5 $100,000 worth of medicals?
6 A. I had no idea about the merits -- you are
7 asking me?
8 Q. Right.
9 A. I'm not sure. Did I think then it would be a
10 frivolous claim for him to file a lawsuit?
11 Q. No, sir. To ask, as you suggested a few
12 minutes ago on direct, that he was asking for 100,000
13 and 400,000 for that. There was at least some
14 photographs that would suggest there may be serious
15 injuries. Correct?
16 A. It looks like a serious injury, yes.
17 Q. It would be serious injuries. And you didn't
18 know the merits of this claim, as you said. Right?
19 A. Well, by this time I did know the merits of
20 his claim, because I had reviewed the police reports
21 and I had seen what crimes he had committed that
22 night.
23 Q. Well, let's review that together. You see,
24 you weren't there. Right?
25 A. Of course not.
26 Q. No. And were you aware that the DWI charge
27 was going away because it was, it was a bogus test,
28 did you know that?
29 A. What I knew was that he had blown about a 2.8
30 on the DWI machine and that he was probably pickled
31 and that he fought the police.
32 Q. Yes, sir. And you know at this point that the
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1 test has been shown to be bogus. Right?
2 A. I don't know that. I had no idea about that.
3 I haven't followed it.
4 Q. Look at those pictures.
5 A. I've seen them.
6 Q. Your officers, not a single officer had a
7 scratch or cut or bruise or anything on his body.
8 Are you aware of that?
9 A. I have no idea whether that's true or not.
10 Q. Wouldn't you have looked into that to be fair
11 to see if their allegations are true that he was
13 A. No. That's not my job to determine the
14 prosecution. It's the District Attorney's job. I
15 would have expected the District Attorney to look
16 into it. But I wasn't going to get involved in it
17 because it's not the bailiwick of the Sheriff's
18 Office.
19 Q. It's your job to defend the Sheriff and the
20 $500,000 policy?
21 A. There wasn't any claim made, so I wasn't
22 looking into whether the deputies had any bruises on
23 them.
24 Q. Well, would you pick up the letter where they
25 are asking for the $500,000. Certainly there was a
26 claim being made. I mean, you acknowledge getting
27 the letter. You acknowledge the amount. How can you
28 say there was no claim being made?
29 A. Because he had not made a -- I should say he's
30 not filed a suit. He's not made a claim in the sense
31 that the letter said if it becomes necessary that Mr.
32 Gates defend himself or if he must litigate civil
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1 rights claim violation, I recommend to him and to you
2 a settlement amount for $500,000 at this time.
3 I told him I wasn't going to pay him a
4 settlements. And I wasn't going to recommend to the
5 Sheriff that he authorize payment of any settlement
6 in this case.
7 Q. You acknowledge that, in fact -- so you would
8 agree that there was a settlement recommended to you.
9 Correct?
10 A. Well, no, I would agree that Mr. Abel was
11 demanding a settlement payment from me, my client.
12 Q. Paragraph 5 --
13 A. Which I rejected.
14 Q. -- I will recommend to him that you settle in
15 an amount such and such.
16 Now, you looked at the pictures, you talked to
17 him about this. You didn't review any of the medical
18 reports, correct, to see if there was a single injury
19 or scratch to any of the officers. Correct?
20 A. I don't recall ever looking at any medical
21 reports from any of the officers, that is correct.
22 Q. And you didn't interview the witnesses out
23 there that saw your officers kicking and beating this
24 young man? Did you do any investigation?
25 A. No.
26 Q. No. You just assumed that you ought to have a
27 resisting arrest there to protect your funds?
28 A. No. I didn't work on any assumption at all.
29 Sir, I read the police reports.
30 Q. You aware that law officers stood there and,
31 in fact, one of them had to pull these officers off
32 this young man who was handcuffed and being kicked?
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1 A. Your suggestion of those being the facts is
2 the first I've heard of it.
3 Q. Yes, sir, because you didn't investigate it,
4 did you?
5 A. Of course not. That's District Attorney's
6 job.
7 Q. Yes, sir. And it's not your job to call the
8 District Attorney and recommend that he add a
9 resisting arrest to the charges?
10 A. I never did that. I spoke with the District
11 Attorney about the charges that were proffered that
12 night about -- against Mr. Gates. He was arrested
13 that night with those five charges.
14 Q. Yes, sir.
15 A. It's my job to represent my clients.
16 Q. Ten months and -- and that's the Sheriff?
17 A. And the deputies.
18 Q. Who are subject to being sued?
19 A. And are sued, many times, all the time.
20 Q. Yes, sir. If I might ask you: This is
21 ten months later when they added the resisting arrest
22 charge. Are you aware of that?
23 A. The resisting arrest charges were never added.
24 They were charged that night. They were made that
25 night.
26 Q. No, sir. The bill of information that was
27 brought against my client does not include a
28 resisting arrest. Are you aware of that? Because
29 it's up to the D.A.'s office to do the investigation,
30 as you said?
31 A. And to determine whether to prosecute. And
32 with input from victims and their analysis of
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1 whatever they decide to do and whatever information
2 they get, the final prosecutorial discretion lies
3 with the District Attorney's Office. I do agree with
4 that.
5 Q. You are perfectly correct. And they screened
6 it. They investigated it and they didn't charge him
7 with resisting arrest. Will you admit that?
8 A. He was charged with resisting arrest that
9 night.
10 Q. Agreed, by the police?
11 A. Right.
12 Q. Now, take to the next step?
13 A. Right.
14 Q. As you said, it's up to District Attorney's
15 Office to review, investigate and put charges against
16 someone and they did that. And after they reviewed
17 it, screened it, they didn't charge him with
18 resisting arrest. Are you aware of that?
19 A. My understanding is that that's correct
20 because there was a felony charge of aggravated
21 obstruction of the highway and there were four
22 misdemeanor charges and that as a result of the fact
23 that there are two different prosecution tracks with
24 two different assistant district attorneys with two
25 different court dates, that many times the District
26 Attorney might decide in their prosecutorial
27 discretion that we will, we being the D.A.'s Office,
28 will prosecute the felony but not prosecute the
29 misdemeanors.
30 On behalf of the victim, the sheriff's
31 deputies, when I found out about this matter, I
32 called and made it certain that the District Attorney
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1 would take into account the position of these
2 victims.
3 Q. Yes, sir. And I understand that you refer to
4 them as victims. I refer to them as officers. You
5 then had one officer write a letter there that was
6 marked as State's Exhibit 2. Do you have that with
7 you?
8 MR. NORIEA:
9 It's 4.
10 BY MR. REGAN:
11 Q. 4. You then, you then had made a call, you
12 see, and you called that deputy and said, hey, we
13 need a letter from you regarding this. Right?
14 MR. SIMMONS:
15 Objection, Your Honor, with regards
16 to hearsay, privileged communication with
17 regard to his client.
18 THE COURT:
19 You are going to have to tell me
20 what the question was again.
21 MR. REGAN:
22 I asked that he called this
23 gentleman, and I didn't know if it was his
24 client, at this point, and --
25 THE COURT:
26 Talking about the deputy?
27 MR. REGAN:
28 Yes, is he your client?
29 THE COURT:
30 Are you asking whether he called the
31 deputy and the discussions he had with the
32 deputy?
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1 MR. REGAN:
2 I am.
3 THE COURT:
4 I'm going to sustain the objection,
5 then.
6 BY MR. REGAN:
7 Q. And you received that letter. Right?
8 A. Yes, I did receive this letter and then I
9 forwarded it to Mr. Gracianette.
10 Q. And what's the date on the letter, on your
11 envelope?
12 A. It says hand delivered September 17th, 2007.
13 MR. REGAN:
14 May I approach?
15 THE COURT:
16 Sure.
17 THE WITNESS:
18 There's no date on the letter.
19 BY MR. REGAN:
20 Q. There is no date on the letter, okay.
21 A. Yes, on the envelope.
22 Q. Did your secretary type that?
23 A. No.
24 Q. Did you have that typed?
25 A. This did not come from my office.
26 Q. Did you have that typed?
27 A. No.
28 Q. Did you direct the letter, at this point, the
29 words in the letter?
30 A. No.
31 Q. And then it's hand delivered on the 17th.
32 What date did you receive it?
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1 MR. NORIEA:
2 Your Honor, I think that was
3 received by us on the 17th.
4 THE WITNESS:
5 Yes.
6 MR. NORIEA:
7 I think that's Mr. Gracianette.
8 MR. REGAN:
9 I asked him what day he received it.
10 THE COURT:
11 He can answer the question.
12 THE WITNESS:
13 I don't specifically recall. It may
14 have been the 17th or maybe the 16th or
15 15th or very shortly before, but I don't
16 recall exactly.
17 BY MR. REGAN:
18 Q. Did you talk --
19 A. It wouldn't have been very long in time before
20 the time that I hand delivered it.
21 Q. Yes, sir. Did you talk to that gentleman that
22 wrote the letter?
23 A. I have never spoken with Nathan Miller or
24 Roger Gottardi or Deputy Williams, to my
25 recollection, at all, about this case.
26 Q. Okay. Sir, would you kindly share with us,
27 please, how did this letter appear the Friday before
28 the charges were changed? How did it appear in your
29 office?
30 You're suggesting this thing just came in,
31 nobody requested it, nobody requested that letter?
32 A. No, I didn't suggest that.
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1 Q. Well, tell me what happened.
2 A. When I spoke with Mr. Gracianette about the
3 matter, he said, you know, we always take into
4 account the position of the victims in any crime and
5 that if there's a letter from the victims, that would
6 be something that we'd look into on behalf of the
7 District Attorney to consider whether we want to
8 pursue these charges.
9 Q. Yes, sir. Then how did that get to the
10 writer, the author of the letter?
11 A. I spoke to Al Strain, who is the -- at that
12 time I believe Al was Chief Deputy at that time. If
13 he wasn't chief deputy or a deputy chief, he was in
14 one of the supervisory chief positions at the
15 Sheriff's Office, told him about the case.
16 He had to -- I had to start from, you know, the
17 beginning with him and explain the case and the
18 situation to him and tell him what the District
19 Attorney had requested from the Sheriff's Office.
20 Al said that he would take it from here and he
21 would see to it that there was a letter from the
22 deputy that could go the District Attorney so that it
23 could be considered by the District Attorney.
24 Sometime around the 15th, 16th or 17th, I
25 understood the letter had been typed, it was ready.
26 I got it and put it in this envelope and brought it
27 up to Mr. Gracianette's office. I don't recall ever
28 actually speaking with Deputy Miller.
29 Q. I understand. Did you have anything to do
30 with directing that that letter be produced?
31 A. I delivered it and I spoke in Mr. Gracianette
32 about it and spoke with Al Strain about it, what the
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1 letter needed to say in terms of, Hey, I'm the victim
2 and I want to be -- I want my rights considered.
3 Q. Which assisted you in your lawsuit. Correct?
4 MR. NORIEA:
5 Your Honor, let me object to that
6 question. There was no lawsuit pending at
7 the time.
8 MR. REGAN:
9 Excuse me, there is a demand.
10 THE COURT:
11 Overruled. He can answer the
12 question.
13 BY MR. REGAN:
14 Q. It assisted you with the civil action, at this
15 point, that's referred to in the letter in August?
16 A. Well, there was no action. What it assisted
17 me in was getting the rights of the deputies brought
18 before the District Attorney for their consideration.
19 Q. And you were able to do that, right?
20 A. Yes, I was.
21 Q. And good. And the District Attorney followed
22 it and got him charged as you wanted him charged,
23 right?
24 A. I suppose so. Although I continue to take the
25 position he was charged from day one, that night.
26 MR. REGAN:
28 THE COURT:
29 Redirect.
31 Q. I'm going to show you Exhibit 5. Do you
32 recognize Exhibit 5?
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CHARLES M. HUGHES
1 A. I recognize the form, but I can't say I've
2 ever seen this one as it pertains to Mr. Gates.
3 Q. Okay.
4 A. I don't -- I think this is the first time I've
5 ever seen this.
6 Q. That form indicates --
7 MR. REGAN:
8 Objection. That would be leading.
9 If he can't identify the form, counsel
10 shouldn't tell him what it is.
11 THE WITNESS:
12 I see what it is.
13 THE COURT:
14 I'm going to sustain the objection.
15 THE WITNESS:
16 It is a screening action form.
17 MR. REGAN:
18 Objection.
19 THE COURT:
20 The witness, I'm going to allow the
21 witness to explain what, if anything, he
22 knows about what he's been presented with.
23 MR. REGAN:
24 Yes, sir.
25 THE WITNESS:
26 I've seen a screening action form
27 before. I can't say whether I have seen
28 this particular one that says Shawn Gates
29 accepted and it's got some dates screening
30 12/13/06, says Shawn Gates accepted.
31 BY MR. NORIEA:
32 Q. Those two accepted charges showed up in the
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1 original bill of information. Correct?
2 A. I don't know that. I don't know.
3 Q. Okay. On this form, there's no charges
4 refused by the D.A.'s office as of this date, 12/13
5 of '06?
6 MR. REGAN:
7 Judge, I do object. I have no
8 objection to it coming in, but having this
9 gentleman explain the form that he's not
10 familiar with.
11 THE COURT:
12 He said he is familiar with the
13 form. He couldn't identify this specific
14 one, but if he knows whether he can
15 interpret a refusal from that form, I'm
16 going to let him tell me whether he knows
17 or not.
18 THE WITNESS:
19 I'm able to determine whether
20 there's a refusal, there's not one. In
21 fact, the word circled is "accepted."
22 And "refused" is on the form, but
23 it's not circled; so my interpretation is
24 that these charges were accepted in
25 December 13, 2006.
26 BY MR. NORIEA:
27 Q. And on that date --
28 MR. REGAN:
29 And we will stipulate to that. I'm
30 sorry. I'll withdraw all objections and
31 I'll stipulate to that fact.
32 THE COURT:
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1 I'll be honest with you, this was a
2 form that was not presented in the
3 original direct or in the cross. I'm
4 going to let you question him about the
5 form, so that we can make sure the record
6 is clear and balanced on that.
7 MR. REGAN:
8 Good.
9 BY MR. NORIEA:
10 Q. None of the charges against Shane Gates were
11 refused of this date; is that correct?
12 A. That's my interpretation, correct.
13 Q. Now, the civil rights suits have to be filed
14 within a year of the incident. Correct?
15 A. Yes.
16 Q. And is it your testimony that you were feeling
17 pressure from Danny Abel to settle this suit so he
18 wouldn't have to file a suit in Federal court?
19 A. Yes, and also that I was being pressured by
20 having him try to use the civil litigation as a
21 defense or mechanism in his criminal prosecution.
22 Q. And that he was not handling directly with our
23 office that another lawyer, A.J. Hand, was handling
24 with our office. So A.J. Hand is on one track with
25 us and you are on another track with Abel; is that
26 correct?
27 MR. REGAN:
28 This is leading. I do object.
29 THE COURT:
30 Overruled.
31 BY MR. NORIEA:
32 Q. Is that correct?
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1 A. Yes.
2 Q. Did you ever threaten anyone in our office to
3 take those two misdemeanor charges that were not
4 acted upon by anyone in the D.A.'s office to
5 accept --
6 A. No.
7 Q. -- in September of '07?
8 A. No.
9 Q. At the time you were dealing with Abel, had
10 you any knowledge of what charges were accepted and
11 what charged were being held in abeyance by the
12 D.A.'s office?
13 A. No. I wasn't aware of what charges had been
14 accepted and what charges were being held in abeyance
15 until September when I first spoke with Mr.
16 Gracianette.
17 Q. And that was because of the conversations you
18 had with Danny Abel. Correct?
19 A. Mr. Abel said that some of the charges had
20 been accepted, some of the charges had been held in
21 abeyance. But I didn't put much stock in trusting
22 Mr. Abel's veracity or truth at all on any of this.
23 Because he was emotionally invested. It was
24 his stepson. I thought he was using it for leverage.
25 I just smelled a rat the whole time.
26 Q. And you didn't do anything to convince anyone
27 in our office to accept the charges that had not yet
28 been accepted, the two misdemeanor charges. Is that
29 correct?
31 MR. NORIEA:
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1 THE COURT:
2 I'm going to allow you to recross on
3 the Exhibit 5, but not on the other areas,
4 because I think everything else was
5 related to cross-examination.
6 BY MR. REGAN:
7 Q. That exhibit says that the only charges --
8 there was a misdemeanor charge accepted. Right?
9 A. Right. It looks like there were two charges
10 accepted. And the document speaks for itself. It
11 says 14, section 108.1, aggravated flight; 14:98,
12 DWI; and then there's another notation in between
13 there that I can't tell you what that says.
14 Q. Yes, sir. So what we can say from this is
15 that, as you said, is accepted against Mr. Shane
16 Gates, two charges were accepted, a misdemeanor and a
17 felony, right? That's what it says?
18 A. That's what it looks like to me.
19 Q. And as you said, you leave it up to the
20 District Attorney to review and screen the records.
21 Right?
22 A. Yes.
23 Q. But yet, you got involved, at this point, and
24 made sure there's a letter from the officer involving
25 resisting arrest even though they didn't accept those
26 charges. Right?
27 A. No. I got involved because Mr. Abel got
28 involved and pursued me and attempted to extricate a
29 settlement from the Sheriff's Office. I would never
30 have gotten involved, had he not approached me about
31 it.
32 Q. And you would never ask Ronnie Gracianette to
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1 get a hold harmless, right? Or did you? Is there a
2 hesitation for some reason?
3 A. Because I'm trying to recall a conversation
4 from three years ago, there's a hesitation. The
5 conversion I had with Ronnie was probably 10 or
6 15 minutes, a few minutes of niceties and we talked
7 about the case and I described the case.
8 I don't remember if he was even aware of it.
9 He just screens. He's the screener, as I understand.
10 There may have been some discussion about that,
11 but it would have come from Ronnie saying that we
12 would -- saying that, that he would, that the
13 District Attorney's Office -- and I'm -- I can't
14 recall specifically, but it's possible that there was
15 some discussion about that; but it would have been
16 from Ronnie saying that they would not accept any
17 sort of plea from Mr. Gates unless the issue of hold
18 harmless was addressed.
19 On many occasions in speaking with Mr. Abel, he
20 brought up that issue of settlement and hold
21 harmless. I told him that I was absolutely not going
22 to discuss that or suggest that to the D.A., that
23 that would be improper. Because it's the District
24 Attorney's prosecutorial discretion and not the
25 Sheriff's Office.
26 Q. Agreed. And you go back to this again: The
27 District Attorney's Office did not accept the
28 resisting arrest, as you see from the form, until you
29 got involved and the Sheriff's Office got involved
30 and made sure that the resisting arrest was put on
31 the bill of information. Right?
32 A. I did talk with Ronnie about that with regard
17-30519.514
107
CHARLES M. HUGHES
1 to protecting these victims, the deputies.
2 Q. And to protect your $500,000 policy and your
3 Sheriff under the Heck decision?
4 A. In light of Mr. Gates' demand for money from
5 Mr. Abel, that was a consideration --
6 MR. REGAN:
8 THE WITNESS:
9 -- in representing the Sheriff's
10 Office.
11 MR. NORIEA:
12 Can I ask one question from that
13 form?
14 THE COURT:
15 I don't need it.
16 You can step down, Mr. Hughes.
17 MR. NORIEA:
18 Your Honor, we submit.
19 THE COURT:
20 Anything that you want to present in
21 rebuttal, Mr. Regan?
22 MR. REGAN:
23 No, sir, there is no additional
24 testimony, at this point.
25 THE COURT:
26 All right. I need to digest the
27 facts that have been presented over the
28 last few hours, so I'm going to take the
29 matter under advisement.
30 When is the first date, criminal
31 date, that we have after this week for
32 anything?
17-30519.515
108
1 THE MINUTE CLERK:
2 May 24th, our trial week and then
3 June 1st.
4 THE COURT:
5 I tell you what I'm going to do, I'm
6 going to set it for 9 a.m. on the Friday
7 of trial week. 9 a.m., May 28th, I will
8 rule in open court --
9 MR. REGAN:
10 Yes, sir.
11 THE COURT:
12 -- on the, on the motion.
13 MR. REGAN:
14 Thank you.
15 THE COURT:
16 So I'm going to take it under
17 advisement pending that date. And, Mr.
18 Gates, you need to get a subpoena.
19 MR. NORIEA:
20 Mr. Regan will probably be here for
21 the 6th on the Donaldson case, if you want
22 to do it before then.
23 THE COURT:
24 I'm going to do it on Friday while
25 I'm cleaning up my docket.
26 MR. NORIEA:
27 I won't be here that Friday. I'll
28 have somebody here.
29 THE COURT:
30 No, I think you should be. You've
31 been involved with handling the motion.
32 MR. NORIEA:
17-30519.516
109
1 I have that thing in Baton Rouge.
2 THE COURT:
3 Right. I tell you what, move it to
4 Monday morning, the 24th, 9 a.m., and I'll
5 take it up before we start picking our
6 jury.
7 MR. NORIEA:
8 Thank you, Judge.
9 Your Honor, I wanted to offer, file
10 and introduce -- I thought I'd offer,
11 file, and introduce into evidence --
12 MR. REGAN:
13 I don't have any objection.
14 MR. NORIEA:
15 I thought I offered it in.
16 MR. REGAN:
17 It should be offered, at this point,
18 as a joint exhibit, if necessary.
19 THE COURT:
20 I'll allow it to come in. I think
21 it's the fifth exhibit.
22 MR. REGAN:
23 Yes, sir.
24 THE COURT:
25 And we will make a note for the
26 record that it was offered by stipulation.
27 MR. REGAN:
28 The screening sheet. What number
29 did you want to put on it?
30 MR. NORIEA:
31 Five.
32 MR. REGAN:
17-30519.517
110
1 Five. We're good.
2 ********
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
17-30519.518
111
1 CERTIFICATE
2
3 I, THERESA TRAPANI, CCR, do hereby
4 certify that the above and foregoing is a true
5 and correct transcription of proceedings had
6 before the Honorable William J. Crain, Judge
7 Presiding, Division G, Twenty-Second Judicial
8 District Court, Parish of St. Tammany, State
9 of Louisiana, on May 10, 2010, to the best of
10 my ability and understanding.
11
12 _________________________
13 THERESA TRAPANI, CCR
14 OFFICIAL COURT REPORTER
15 CERTIFICATE NO. 93047
16
17
18
19 CERTIFICATE OF FILING
20
21 I hereby certify that the foregoing
22 transcript has been submitted to the Clerk
23 of Court's Office for filing into the record
24 on the ________ day of _____________ 2010.
25
26 _________________________
27 THERESA TRAPANI, CCR
28 OFFICIAL COURT REPORTER
29
30
31
32
17-30519.519
112

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
NOTICE FOR SUBMISSION / HEARING
This matter shall be submitted or heard on 13 April 2011 at 9:30 AM, before the Hon.
Stanwood R. Duval, Jr., Courtroom 352, in the United States District Court for the Eastern
District of Louisiana, 500 Poydras Street, New Orleans, Louisiana.

Legal Department - Suite 106 served all counsel:16 March 2011.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
17-30519.520
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
PROPOSED ORDER TO STAY PROSECUTION
For the reasons set forth in the pleadings and evidence in the testimony given under oath,
IT IS ORDERED THAT:
The matter of State of Louisiana v. Shane M. Gates, Case No. 423508, Division “A”,
pending in the 22nd Judicial District Court for the Parish of St. Tammany, State of
Louisiana, is STAYED UNTIL the 13 April 2011 hearing on these matters or upon
further notice from this Court.
_________________________________
JUDGE STANWOOD R. DUVAL, JR.
17-30519.521

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Complainant Shane M. Gates requests leave to present Oral Argument regarding this
matter on 13 April 2011 at 9:30 AM, before the Hon. Stanwood R. Duval, Jr., Courtroom 352, in
the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, New
Orleans, Louisiana.

Telephone: 504.208.9610
Cell Phone: 504.284.8521
17-30519.522

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Complainant Shane M. Gates requests leave to present Oral Argument regarding this
matter on 13 April 2011 at 9:30 AM, before the Hon. Stanwood R. Duval, Jr., Courtroom 352, in
the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, New
Orleans, Louisiana.

Telephone: 504.208.9610
Cell Phone: 504.284.8521
17-30519.523

Shane M. Gates * No. 07-CV-06983

Complainant *
* Civil Action: § 1983
v. *
* Section: K
and individual capacity; et al. * Magistrate: 2
*
**************************
MOTION AND ORDER TO ENROLL

THE HON. PASCAL F. CALOGERO, JR.
AS CO-COUNSEL OF RECORD
Mr. Gates moves the Court to enroll the Hon. Pascal F. Calogero, Jr. as counsel of record.
The Hon. Pascal F. Calogero, Jr. is a member in good standing of the Louisiana Bar and
its Courts and represents Mr. Gates in these and the related matters from which these arose.
Mr. Calogero joins Mr. Gates who move the Court that he be enrolled as attorney of record
and co-counsel with Martin Regan and Daniel Abel.
By: Pascal F. Calogero, Jr. By: Daniel G. Abel
s/ Pascal F. Calogero, Jr. s/ D aniel G. Abel
Pascal F. Calogero, Jr. Daniel G. Abel

1100 Poydras 2421 Clearview Parkway
Suite 1500 Legal Department - Suite 106
New Orleans, LA 70163 Metairie, LA 70001
Telephone: 504.582.2300 Telephone:504.208.9610
Facsimile: 504.582.2310 Facsimile: 888.577.8815
pcalogero@alsfirm.com danielpatrickegan@gmail.com
Counsel for Shane M. Gates Counsel for Shane M. Gates
I filed this pleading electronically and thereby

served all counsel on 26 March 2011.
/s Daniel G. Abel
__________________________
17-30519.524

Complainant *
v. *
* Section: K
*
**************************
PROPOSED ORDER
For the reasons set forth in the motion,
IT IS ORDERED that:
Mr. Gates’s Motion is GRANTED. The Honorable Pascal F. Calogero, Jr.
is Enrolled as counsel of record for Shane M. Gates.
New Orleans, LA Ordered on _____ March 2011.
______________________________
JUDGE
17-30519.525


Complainant *
v. *
* Section: K
*
**************************
ORDER
IT IS ORDERED that:
Mr. Gates’s Motion is GRANTED. The Honorable Pascal F. Calogero, Jr.
is Enrolled as counsel of record for Shane M. Gates.
New Orleans, LA 29th March 2011.

Ordered on _____
______________________________
JUDGE
17-30519.526

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL. SECTION “K”(2)
ORDER
Having reviewed the Motion to Reopen (Doc. 84) and the Request for Oral Argument
thereon (Doc. 85), the Court finds that oral argument will be useful. However, because of the
Court’s schedule, the April 13th date cannot be accommodated. Accordingly,
IT IS ORDERED that the Request for Oral Argument is GRANTED.
IT IS FURTHER ORDERED that the hearing on the Motion to Reopen (Doc. 84) is
CONTINUED to May 11, 2011 at 9:30 a.m.
IT IS FURTHER ORDERED that the opposition to this motion shall be filed no later
than April 25, 2011, with any reply brief to be filed no later than April 28, 2011.
New Orleans, Louisiana, this 29th day of March, 2011.

UNITED STATES DISTRICT COURT JUDGE
17-30519.527
17-30519.528
17-30519.529
17-30519.530
17-30519.531
17-30519.532
17-30519.533
17-30519.534

11th April
17-30519.535
17-30519.536
17-30519.537
17-30519.538
17-30519.539
17-30519.540
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17-30519.542
17-30519.543
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17-30519.545
17-30519.546
17-30519.547
17-30519.548
17-30519.549
17-30519.550
17-30519.551
17-30519.552
17-30519.553
17-30519.554
17-30519.555

07-CV-06983

MOTION TO QUASH SUBPOENA DUCES TECUM AND/OR FOR

PROTECTIVE ORDER AND FOR SANCTIONS PURSUANT TO RULE 26 OF
THE FEDERAL RULES OF CIVIL PROCEDURE
NOW INTO COURT, come defendants, Walter P. Reed, District Attorney for St.
Tammany Parish, in his official capacity and the St. Tammany District Attorney’s Office,
who respectfully represent:
Page 1
17-30519.556
1.
With criminal charges pending against him, plaintiff filed this civil action asserting
causes of action against these defendants and others for alleged violations of 42 U.S.C. 1983.
On April 16, 2008, this Court stayed this action pending resolution of the outstanding
criminal charges. On March 17, 2011, plaintiff filed a motion seeking to reopen this civil
proceeding and further seeking an order from this Court staying his state court criminal
proceedings. Defendants herein have filed an opposition to that motion, which is currently
set for hearing before this Court on May 11, 2011.
2.
On April 12, 2011, plaintiff’s counsel, Daniel G. Abel, signed a subpoena duces tecum
directed to District Attorney Walter Reed, requesting that he produce numerous documents
at the Law Office of Daniel G. Abel, on May 2, 2011 at 2:00 a.m. The Office of the District
Attorney received the subpoena on April 14, 2011. A copy of the subpoena duces tecum is
attached hereto as Exhibit “A”.
3.
This subpoena was issued with no prior notice to counsel for defendant, and no notice
of deposition was issued in connection with the subpoena.
4.
This action remains stayed pursuant to the prior order of this Court, pending a ruling
on the motion to reopen these proceedings scheduled to be heard on May 11, 2011.
Page 2
17-30519.557
5.
Unless this case is reopened and until the Court rules on the applicability of any
immunity defense, discovery herein is prohibited.
6.
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, undersigned counsel
requested that plaintiff’s counsel withdraw this subpoena without the necessity of filing this
motion. However, he has not complied with that request. A copy of the request directed to
Mr. Abel requesting the withdrawal is attached hereto as Exhibit “B”.
7.
Defendants allege that this subpoena was issued for an improper purpose, and this
Court should issue a protective order herein quashing such subpoena and further ordering
sanctions against plaintiff’s counsel for such improper issuance pursuant to Rule 26 of the
Federal Rules of Civil Procedure.
WHEREFORE, defendants, Walter P. Reed, District Attorney for St. Tammany
Parish, in his official capacity and the St. Tammany District Attorney’s Office, pray that this
motion be granted and that a protective order be issued, quashing the subpoena issued to
District Attorney Walter Reed, and that sanctions be ordered against plaintiff’s counsel,
Daniel G. Abel, for the improper issuance of this subpoena.
Page 3
17-30519.558

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Motion to Quash Subpoena
Duces Tecum and/or for Protective Order and for Sanctions Pursuant to Rule 26 of the
Federal Rules of Civil Procedure has been filed electronically. Notice of this filing will be
sent to all parties by operation of the Court’s electronic filing system. Parties may access this
filing through the Court’s system.
s/Kathryn Landry
KATHRYN LANDRY
Page 4
17-30519.559
17-30519.560
17-30519.561
17-30519.562
17-30519.563
17-30519.564
17-30519.565
17-30519.566

07-CV-06983

MEMORANDUM IN SUPPORT OF MOTION TO QUASH SUBPOENA DUCES

TECUM AND/OR FOR PROTECTIVE ORDER AND FOR SANCTIONS
PURSUANT TO RULE 26 OF THE FEDERAL RULES OF CIVIL PROCEDURE
capacity and the St. Tammany District Attorney’s Office, file this Memorandum in Support
Page 1
17-30519.567
of the Motion to Quash Subpoena Duces Tecum and/or for Protective Order and for
Sanctions Pursuant to Rule 26 of the Federal Rules of Civil Procedure.
criminal charges. On March 17, 2011, plaintiff filed a motion seeking to reopen this civil
proceeding and further seeking an order from this Court staying his state court criminal
proceedings. Defendants have filed an opposition to that motion, which is currently set for
hearing before this Court on May 11, 2011.
On April 12, 2011, plaintiff’s counsel, Daniel G. Abel, signed a subpoena duces tecum
directed to District Attorney Walter Reed, requesting that he produce numerous documents
at the Law Office of Daniel G. Abel, on May 2, 2011 at 2:00 a.m. The Office of the District
Attorney received the subpoena on April 14, 2011. This subpoena was issued with no prior
notice to counsel for defendant, and no notice of deposition was issued in connection with
the subpoena. Upon information and belief, undersigned counsel believes other subpoenas
may have been issued herein, but no filings or other notice to counsel herein have been filed,
so the identity of other subpoenas that may have been issued is unclear.
Defendants assert that this discovery was issued in violation of the stay order herein,
as this action remains stayed pursuant to the prior order of this Court, pending a ruling on the
motion to reopen these proceedings scheduled to be heard on May 11, 2011. In addition to
the violation of the stay herein, defendants further allege the issuance of this subpoena
Page 2
17-30519.568
violates Rule 26 of the Federal Rules of Civil Procedure and was issued by plaintiff for
improper purposes, which harasses defendant and needlessly increases the cost of litigation
herein. Rule 26(d) provides that a party may not seek discovery from any source before the
parties have conferred pursuant to subsection (f), except in cases exempted from initial
disclosures or when authorized by rule, stipulation or court order, none of which are
applicable herein.
A review of the subpoena itself provides further evidence of plaintiff’s improper
motives herein. The subpoena is returnable at 2:00 a.m. In addition, only three of the fifteen
enumerated categories of documents pertain, in any manner, to the Office of the District
Attorney. The categories of documents sought by the subpoena served upon the District
Attorney include training, internal affair and personnel records of certain deputies,
maintenance records of certain Sheriff vehicles, certain Sheriff Office computer records and
written procedures of the Sheriff’s Office.
Additionally, defendants herein intend to assert the defense of absolute and/or
qualified immunity. Accordingly, no discovery can take place herein pending a
determination of the applicability of that defense. The Fifth Circuit has held that until
resolution of the threshold question of the application of an immunity defense, discovery
should not be allowed. Plaintiffs must demonstrate prior to discovery that their allegations
are sufficiently fact-specific to remove the cloak of protection afforded by an immunity
defense. Nieto v. San Perlita Independent School District, 894 F.2d 174 (5th Cir. 1990).
Page 3
17-30519.569
Defendants allege that this subpoena was issued for an improper purpose, and this
Court should issue a protective order herein quashing such subpoena and further ordering
sanctions against plaintiff and his counsel for such improper issuance pursuant to Rule 26 of
the Federal Rules of Civil Procedure. Rule 26(g) provides as follows:
(1) . . . every discovery request, response, or objection must be signed by at

least one attorney of record in the attorney's own name--or by the party
personally, if unrepresented--and must state the signer's address, e-mail
address, and telephone number. By signing, an attorney or party certifies that
to the best of the person's knowledge, information, and belief formed after a
reasonable inquiry:
***
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering
the needs of the case, prior discovery in the case, the amount in controversy,
and the importance of the issues at stake in the action.
***
(3) If a certification violates this rule without substantial justification, the
court, on motion or on its own, must impose an appropriate sanction on the
signer, the party on whose behalf the signer was acting, or both. The sanction
may include an order to pay the reasonable expenses, including attorney's fees,
caused by the violation.
The issuance of this subpoena in violation of the stay in effect in this case clearly
constitutes grounds for sanctions pursuant to Rule 26. Counsel for plaintiff was well aware
of the stay, unilaterally issued the subpoena, with no discussion, contact or agreement with
defense counsel, issued the subpoena returnable at 2:00 a.m. and seeks documents that are
clearly not records maintained by the Office of the District Attorney. Under applicable
Page 4
17-30519.570
jurisprudence, no discovery may be conducted herein until this Court determines the issue
of immunity herein. The purpose of this subpoena was improper, solely meant to harass and
needlessly increase the cost of this litigation. Moreover, this Court has held that a subpoena
is an incorrect mechanism for seeking discovery from a party to the litigation. Front-Line
Promotions & Mktg. v. Mayweather Promotions, L.L.C., docket no. 08-3208, 2009 U.S.Dist.
Lexis 129777 (E.D. La. 2009); Powell v. United States, docket no. 09-1873, 2009 U.S.Dist.
Lexis 123350 (E.D. La. 2009). Even if a subpoena to a party were otherwise valid, plaintiff’s
counsel also failed to serve notice of any subpoenas on any counsel of record herein. Rule
45(b)(1) provides that if the subpoena commands the production of documents, electronically
stored information or tangible items, then before it is served, notice must be served on each
party. The subpoenas have not been filed electronically with this Court which would have
provided notice to all counsel of record, nor has undersigned counsel received notice of any
subpoenas herein from plaintiff’s counsel. The first notice undersigned counsel received was
contact from her client after the subpoena was received. For all of these reasons, the issuance
of the subpoena was improper, and the violation of Rule 26 was made without substantial
justification, warranting the imposition of sanctions against plaintiff’s counsel.
For the foregoing reasons, defendants, Walter P. Reed, District Attorney for St.
request that this motion be granted and that a protective order be issued, quashing the
subpoena issued to District Attorney Walter Reed, and that sanctions be ordered against
plaintiff’s counsel, Daniel G. Abel, for the improper issuance of this subpoena.
Page 5
17-30519.571

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Memorandum in Support of
Motion to Quash Subpoena Duces Tecum and/or for Protective Order and for Sanctions
Pursuant to Rule 26 of the Federal Rules of Civil Procedure has been filed electronically.
Notice of this filing will be sent to all parties by operation of the Court’s electronic filing
system. Parties may access this filing through the Court’s system.
s/Kathryn Landry
KATHRYN LANDRY
Page 6
17-30519.572

07-CV-06983

LOCAL RULE 37.1E CERTIFICATE
Undersigned counsel, on behalf of defendant, Walter P. Reed, District Attorney for
St. Tammany Parish, sent a written request to Daniel Abel, counsel for plaintiff, by electronic
transmission on April 25, 2011 requesting that he withdraw the subpoena at issue herein.
However, counsel for the plaintiff failed to respond to undersigned counsel’s request.
17-30519.573

P. O. Box 82659
Telephone No. (225) 766-0023
Facsimile No. (225) 766-7341
I hereby certify that a copy of the above and foregoing Notice of Hearing has been
filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s
electronic filing system. Parties may access this filing through the Court’s system.
s/Kathryn Landry
KATHRYN LANDRY
17-30519.574

07-CV-06983

NOTICE OF SUBMISSION
Please take notice that defendants, Walter P. Reed, District Attorney for St. Tammany
Parish, in his official capacity and the St. Tammany District Attorney’s Office, have filed a
Motion to Quash Subpoena Duces Tecum and/or For Protective Order and for Sanctions
Pursuant to Rule 26 of the Federal Rules of Civil Procedure and hereby notices such motion
for submission/hearing before the Honorable Stanwood Duval, Jr. on the 11th day of May,
2011 at 2:30 p.m. at the U.S. District Court, 500 Poydras St., New Orleans, LA.
17-30519.575

P. O. Box 82659
Telephone No. (225) 766-0023
Facsimile No. (225) 766-7341
I hereby certify that a copy of the above and foregoing Notice of Hearing has been
s/Kathryn Landry
KATHRYN LANDRY
17-30519.576

07-CV-06983

capacity and the St. Tammany District Attorney’s Office, have filed a Motion to Quash
Subpoena Duces Tecum and/or For Protective Order and for Sanctions Pursuant to Rule 26
of the Federal Rules of Civil Procedure and respectfully request oral argument on this motion
at the same time as other motions are set for argument on the 11th day of May, 2011 at 2:30
p.m.
17-30519.577

P. O. Box 82659
Telephone No. (225) 766-0023
Facsimile No. (225) 766-7341
I hereby certify that a copy of the above and foregoing Request for Oral Argument has
been filed electronically. Notice of this filing will be sent to all parties by operation of the
Court’s electronic filing system. Parties may access this filing through the Court’s system.
s/Kathryn Landry
KATHRYN LANDRY
17-30519.578
17-30519.579
17-30519.580
17-30519.581
17-30519.582
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17-30519.596
17-30519.597
17-30519.598
17-30519.599

SHANE M. GATES * CIVIL ACTION NO.: 07-6983
v. * SECTION “K” (2)
RODNEY JACK STRAIN, ET AL. * JUDGE DUVAL
* * * * * * * MAGISTRATE KNOWLES
EX PARTE MOTION TO WITHDRAW AND TERMINATE ECF NOTIFICATION
On March 17, 2008, before leaving private practice to join the United States Attorney’s
Office, the undersigned was added as additional counsel of record for defendants, Robert
Gottardi, Brian Williams, St. Paul Insurance Company, Rodney Jack Strain, the St. Tammany
Parish Sheriff’s Office, and Nathan Miller. Rec. Doc. 45. On April 17, 2008, the Court granted
the Motion to Stay (Rec. Doc. 47) the proceedings. Rec. Doc. 81. Pursuant to plaintiff’s recent
motion, the matter has been re-opened; however, the undersigned, who joined the United States
Attorney’s office in January of 2009, no longer represents any party in this matter.
17-30519.600
WHEREFORE, movant, Andre J. Lagarde, respectfully prays that the Court grant his
motion to withdraw from the captioned matter and to terminate the attendant ECF notifications.
JIM LETTEN
UNITED STATES ATTORNEY
/s/ Andre J. Lagarde

ANDRE J. LAGARDE
Assistant United States Attorney
La. Bar Roll No. 28649
Hale Boggs Federal Building
500 Poydras Street, Room 210B
Telephone: (504) 680-3009
andre.lagarde@usdoj.gov
I hereby certify that a copy of the above and foregoing has been served upon all counsel
of record this 26th day of April, 2011, in accordance with the Court’s ECF Rules.
/s/ Andre J. Lagarde

ANDRE J. LAGARDE
Assistant United States Attorney
17-30519.601
ORDER
CONSIDERING THE FOREGOING;
IT IS HEREBY ORDERED that the accompanying Motion to Withdraw is GRANTED.
Accordingly, Andre J. Lagarde is hereby terminated as counsel of record in the captioned matter;
IT IS FURTHER ORDERED that movant, Andre J. Lagarde, be removed from the ECF
participant list in these proceedings.
Thus done and signed, this ____ day of _____________, 2011, in New Orleans,
Louisiana.
HON. STANWOOD R. DUVAL, JR.

17-30519.602
SHANE M. GATES CIVIL ACTION NO. 2:07-CV-06983-

SRD-JCW
V. JUDGE STANWOOD R. DUVAL, JR.
SHERIFF, RODNEY “JACK” MAGISTRATE JUDGE WILKINSON,

STRAIN, ET AL. JR.
MOTION TO QUASH SUBPOENAS
NOW INTO COURT, through undersigned counsel, come the Honorables Raymond
Childress, William J. Crain, Reginald Badeaux, and William “Rusty” Knight, Judges of the 22nd
Judicial District Court, who move to quash the subpoenas for deposition in the above captioned
matter on April 29, 2011, for the following reasons:
1.
The above referenced case has been stayed by order of this Court and has not been
reopened.
2.
No attempt was made to clear the April 29, 2011, date with the judges.
3.
No witness fee was tendered with the subpoenas.
17-30519.603
4.
No personal service was made on Judges Childress, Badeaux or Knight.
5.
Notice of the deposition was not served on each party.
6.
Since the judge’s are subpoenaed for April 29, 2011, it is requested that this motion be
heard on an expedited basis.
WHEREFORE, Mover pray that this Motion to Quash Subpoenas be granted, quashing
the subpoenas issued to the judges for April 29, 2011.
JAMES D. “BUDDY” CALDWELL

ATTORNEY GENERAL
BY: /s/ David G. Sanders

BRIDGET B. DENICOLA, # 27433
DAVID G. SANDERS, #11696
ASSISTANT ATTORNEYS GENERAL
LOUISIANA DEPARTMENT OF JUSTICE

Litigation Division
Baton Rouge, Louisiana 70804-9005
Telephone: (225) 326-6300
FAX: (225) 326-6192
BY: /s/ Robert C. Stern

ROBERT C. STERN, # LA # 12454
KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080
Co-Counsel for Defendant, Judge Raymond Childress
17-30519.604
I hereby certify that on the 26th day of April, 2011, a copy of the foregoing was filed
electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be
sent to CM/ECF participants by operation of this court’s electronic filing system.
Daniel G. Abel Kathryn W. Landry

2421 Clearview Parkway Kathryn W. Landry, LLC
Suite 106 P. O. Box 82659
Metairie, LA 70001 Baton Rouge, LA 70884
Attorneys for Plaintiffs, Attorneys for Defendant,
Shane M. Gates Walter P. Reed, D. A.
Robert C. Stern Nancy Brechtel

Killeen & Stern, PC Cotton, Schmidt & Abbott, LLP
400 Poydras Street 650 Poydras Street
Suite 1710 Suite 2810
New Orleans, LA 70130 New Orleans, LA 70130
Co-Counsel for Judge Raymond Childress Attorneys for Defendant, Louisiana
Medical Center and Heart Hospital, LLC
and previously as Louisiana Heart
Hospital, LLC
Mark Emerson Hanna

Bradley, Murchison, Kelly & Shea, LLC
1100 Poydras St., Suite 2700
Attorney for Defendant,
Sheriff of Orleans Parish
/s/ David G. Sanders

DAVID G. SANDERS
3
17-30519.605

SRD-JCW

STRAIN, ET AL. JR.
MEMORANDUM IN SUPPORT OF
MOTION TO QUASH SUBPOENAS
Plaintiff Shane M. Gates has issued subpoenas for four judges of the 22nd Judicial District
Court for deposition and to produce documents. The judges in this Motion to Quash submit
there are several reasons to quash these depositions.
I. THIS CASE IS STAYED
By order of this Honorable Court, this case has been stayed. Rec. Doc. 81. Plaintiff has
filed a motion to reopen the case which is set for hearing, with oral argument, on May 11, 2011.
Rec. Dor. 93. Therefore, the case remain stayed a the present time and through the purposed
deposition date of April 29, 2011.
17-30519.606
Since this case has been stayed in its entirety, plaintiff may not proceed with this
discovery until the Court lifts the stay.
II. NO ATTAMPT TO SCHEDULE DEPOSITIONS AT CONVENIENT TIME TO

THE JUDGES
Plaintiff failed to contract the judges to schedule the depositions at a mutually convenient
time and place. Such would be only common courtesy but a party also has a duty under Rule
45(C)(1.) to take reasonable steps to avoid imposing undue burden or expense on the judges. By
arbitrarily picking the time and date plaintiff interferes with the efficient running of the 22nd
III. NO WITNESS FEE WAS TENDERED
If a subpoena commands a person’s attendance, Rule 45 requires that the party who
issued the subpoena serve the subpoena and tender to that person fees in the amount of one day’s
attendance and mileage allowed by law under 28 U.S.C. 1821. This requirement has been
consistently affirmed by the Fifth Circuit. See Re Dennis, 330 F.3d 696, 704 (5th Cir. 2003).
Without the proper tender of fees, there is a clear violation of Rule 45(b)(1) and 28
U.S.C. 1821. Plaintiff failed to tender these fees as required.
IV. LACK OF PERSONAL SERVICE ON JUDGES CHILDRESS, BADEAUX, AND

KNIGHT
With respect to Judges Childress, Badeaux, and Knight, service consisted of leaving the
subpoena with the judge’s staff.
Rule (45)(b)(1) requires service be made by delivering a copy of the subpoena to be
named person. Balakrishnan v. Board of Supervision of La. State University, 2009 WL 4723325
(E.D. La. 12/7/09) (Magistrate Judge Roby) (unpublished).
2
17-30519.607
Rule 45(b)(1) requires personal service of a subpoena and the failure to do so is a
violation of Rule 45(b)(1). Scottsdale Insurance Co. v. Education Management, Inc., 2007 WL
2127798 (E.D. La. 7/25/07). (Judge Berrigan) (unpublished).
Plaintiff failed to personally serve Judges Childress, Badeaux and Knight.
V. NOTICES OF THEH DEPOSITIONS WERE NOT SERVED ON EACH PARTY
Rule 45(b)(1) also provides that where a subpoena commands the production of
documents, etc., then before it is served, a notice must be served on each party. Balakrishnan,
supra.
It is our understanding from co-counsel for Judge Childress, that such notice was not
served on each party and that, in fact, counsel for defendants were unaware of the scheduling of
such depositions.
Failure to serve such notice is a violation of Rule 45.
VI. CONCLUSION
The failure of the plaintiff to comply with Rule 45 and plaintiff’s attempt to do discovery
while this case is stayed by court order justifies this Honorable Court quashing these subpoenas.

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
3
17-30519.608

ROBERT C. STERN, # LA # 12454
KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080

Attorney for Plaintiffs, Attorney for Defendant,

Co-Counsel for Judge Raymond Childress Attorney for Defendant, Louisiana Medical
Center and Heart Hospital, LLC and
previously as Louisiana Heart Hospital,
LLC
Mark Emerson Hanna


DAVID G. SANDERS
4
17-30519.609


SRD-JCW
V. JUDGE STANWOOD R. DUVAL,

JR.
SHERIFF, RODNEY “JACK”

STRAIN, ET AL. MAGISTRATE JUDGE
WILKINSON, JR.
TO: SHANE M. GATES

THROUGH:
DANIEL G. ABEL
2421 CLEARVIEW PARKWAY
LEGAL DEPARTMENT – STE. 106
METAIRIE, LA 70001
PLEASE TAKE NOTICE that the undersigned will bring the foregoing Motion to
Quash filed by the Honorables Raymond Childress, William J. Crain, Reginald Badeaux, and
William “Rusty” Knight, Judges of the 22nd Judicial District Court, before the Honorable
Stanwood R. Duval, United States District Judge, United States District Court, 500 Poydras
Street, Room C-151, New Orleans, LA, 70130, on the 11th day of May, 2011, at 9:30 a.m.
Pursuant to Local Rule 78.1E this motion shall be determined without oral argument unless any
-1-
17-30519.610
party desiring oral argument files separate written request for oral argument, or the court orders
oral argument.

ATTORNEY GENERAL
BY: _/s/ David G. Sanders_______________

DAVID G. SANDERS, Bar Roll No. 11696
BRIDGET B. DENICOLA, Bar Roll No. 27433

LITIGATION DIVISION
1885 North Third Street
P. O. Box 94005
Telephone: (225) 326-6300
Fax: (225) 326-6192
Counsel for Judges of the 22nd Judicial District Court

ROBERT C. STERN, LA # 12454
KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080
-2-
17-30519.611
I CERTIFY that on April 26, 2011 the foregoing MOTION TO QUASH was
electronically filed with the United States District Court, Eastern District of Louisiana, using the
CM/ECF filing system which sent notice electronically to all CM/ECF participants. The
following non-CM/ECF participants were mailed a copy via U.S. Mail, properly addressed with
sufficient postage affixed.

Mark Emerson Hanna Nancy Brechtel

Bradley, Murchison, Kelly & Shea, LLC Cotton, Schmidt & Abbott, LLP
1100 Poydras St., Suite 2700 650 Poydras Street
New Orleans, LA 70163 Suite 2810
Attorney for Defendant, New Orleans, LA 70130
Sheriff of Orleans Parish Attorneys for Defendant, Louisiana
and
LLC
___/s/ David G. Sanders___

DAVID G. SANDERS
BRIDGET B. DENICOLA
-3-
17-30519.612

SRD-JCW

STRAIN, ET AL. JR.
MOTION FOR EXPEDITED HEARING
Judicial District Court, who move for an expedited hearing of their Motion to Quash Subpoenas
for depositions and production of documents scheduled for April 29, 2011, for the reasons more
fully advanced in the Memorandum in Support filed in contemporaneously herein.
WHEREFORE, Movers pray that this Motion be granted and that their Motion to Quash
be heard on an expedited basis.

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
17-30519.613

ROBERT C. STERN, # LA 12454
KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080


Hospital, LLC
Mark Emerson Hanna


DAVID G. SANDERS
2
17-30519.614

SRD-JCW

STRAIN, ET AL. JR.
MOTION FOR EXPEDITED HEARING TO QUASH SUBPOENAS
Plaintiff Shane M. Gates has issued subpoenas for four judges of the 22nd Judicial District
Court for deposition and to produce documents. The judges in this Motion to Quash submit
there are several reasons to quash these depositions.
I. THIS CASE IS STAYED
By order of this Honorable Court, this case has been stayed. Rec. Doc. 81. Plaintiff has
filed a motion to reopen the case which is set for hearing, with oral argument, on May 11, 2011.
Rec. Dor. 93. Therefore, the case remain stayed a the present time and through the purposed
deposition date of April 29, 2011.
17-30519.615
Since this case has been stayed in its entirety, plaintiff may not proceed with this
discovery until the Court lifts the stay.
II. NO ATTAMPT TO SCHEDULE DEPOSITIONS AT CONVENIENT TIME TO

THE JUDGES
Plaintiff failed to contract the judges to schedule the depositions at a mutually convenient
time and place. Such would be only common courtesy but a party also has a duty under Rule
45(C)(1.) to take reasonable steps to avoid imposing undue burden or expense on the judges. By
arbitrarily picking the time and date plaintiff interferes with the efficient running of the 22nd
III. NO WITNESS FEE WAS TENDERED
If a subpoena commands a person’s attendance, Rule 45 requires that the party who
issued the subpoena serve the subpoena and tender to that person fees in the amount of one day’s
attendance and mileage allowed by law under 28 U.S.C. 1821. This requirement has been
consistently affirmed by the Fifth Circuit. See Re Dennis, 330 F.3d 696, 704 (5th Cir. 2003).
Without the proper tender of fees, there is a clear violation of Rule 45(b)(1) and 28
U.S.C. 1821. Plaintiff failed to tender these fees as required.
IV. LACK OF PERSONAL SERVICE ON JUDGES CHILDRESS, BADEAUX, AND

KNIGHT
With respect to Judges Childress, Badeaux, and Knight, service consisted of leaving the
subpoena with the judge’s staff.
Rule (45)(b)(1) requires service be made by delivering a copy of the subpoena to be
named person. Balakrishnan v. Board of Supervision of La. State University, 2009 WL 4723325
(E.D. La. 12/7/09) (Magistrate Judge Roby) (unpublished).
2
17-30519.616
Rule 45(b)(1) requires personal service of a subpoena and the failure to do so is a
violation of Rule 45(b)(1). Scottsdale Insurance Co. v. Education Management, Inc., 2007 WL
2127798 (E.D. La. 7/25/07). (Judge Berrigan) (unpublished).
Plaintiff failed to personally serve Judges Childress, Badeaux and Knight.
V. NOTICES OF THEH DEPOSITIONS WERE NOT SERVED ON EACH PARTY
Rule 45(b)(1) also provides that where a subpoena commands the production of
documents, etc., then before it is served, a notice must be served on each party. Balakrishnan,
supra.
It is our understanding from co-counsel for Judge Childress, that such notice was not
served on each party and that, in fact, counsel for defendants were unaware of the scheduling of
such depositions.
Failure to serve such notice is a violation of Rule 45.
VI. CONCLUSION
The failure of the plaintiff to comply with Rule 45 and plaintiff’s attempt to do discovery
while this case is stayed by court order justifies this Honorable Court quashing these subpoenas.

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
3
17-30519.617

KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080

Attorney for Plaintiffs, Attorney for Defendant,

Co-Counsel for Judge Raymond Childress Attorney for Defendant, Louisiana Medical
Center and Heart Hospital, LLC and
LLC
Mark Emerson Hanna


DAVID G. SANDERS
4
17-30519.618

SRD-JCW

STRAIN, ET AL. JR.
ORDER
CONSIDERING the above and forgoing Motion for Expedited Hearing:
IT IS ORDREED that the Motion to Quash filed by Judges, Childress, Badeaux, Crain
and Knight will be heard on the ______ day of _________________, 2011, at ___o’clock __.m.
New Orleans, Louisiana, this _______ day of ____________________________, 2011.
JUDGE STANWOOD F. DUVAL
17-30519.619


Complainant *
v. *
* Section: K
*
**************************

AT 11 MAY HEARING ON MOTION
TO QUASH DEPOSITIONS OF JUDGES
Judge Reginald Badeaux admitted during the 14 April 2011 hearing on the Motion for En
Banc recusal that he and Sheriff’s Counsel Chuck Hughes had ex parte conversations about the
matter pending in the 22nd Judicial District Court against Gates. Judge Badeaux also admitted that
Hughes had told him that “you”[undersigned counsel] are a “bad guy”[euphemism mine].
Hughes was trying to adversely influence Judge Badeaux’s disposition toward Mr. Gates and
counsel. It seemed to have worked. But, after his admission of the ex parte conversations, Judge
Badeaux recused himself and informed counsel that the matter would be brought to the entire bench
for En Banc recusal. The matter was continued without date.
An oral explanation as to the extent of the ex parte conversations discovered and the
subsequent request to depose all the other judges who presided over the state court matter would
serve the Court in helping it understand the extent of the constitutional violations and irreparable
injury already suffered by Gates at the hands of these defendants. This Court should know that
counsel’s concern with the ex parte conversations between Sheriff’s Counsel Hughes and Judge
Badeaux is heightened, as it is not an isolated instance.
The Louisiana Judiciary Commission found Judge Badeaux guilty of just such violations
of partiality on 28 January 2011. The Louisiana Supreme Court will hear the charges against
Judge Badeaux on 11 May 2011—the same day this Court will hear the Judges’ motion to quash.
The Louisiana Judiciary Commission has found Judge Badeaux guilty of violating:
(1) Canon 2A by “failed [failing] to respect and comply with the law and to act at all
times in a manner that promotes public confidence in the integrity and impartiality
of the judiciary, by failing to recuse himself, by engaging in ex parte
communications; and by issuing an order contrary to established law;”
17-30519.620
(2) Canon 3A(1) “by failing to be faithful to the law”;
(3) Canon 2A and 3A(1) ‘by signing an “ex parte order” about which the other party
knew and was told nothing;
(4) Canon 3A(6) “by participating in impermissible ‘ex parte’ communications that were
designed to influence and did influence his judicial action”;
(5) Because he “failed to recuse himself . . . and continued to socialize . . . [with one
party] during the pendency of the case.
The Commission found that each of these charges was “proven by clear and convincing
evidence”. The persons involved in this matter were former friends. His actions appear to have
arisen in an attempt to give the husband an advantage not afforded the wife. Judge Badeaux has not
disputed these findings. In fact, he has admitted most.
Having been found guilty of such partiality in a domestic matter involving friends, all
“reasonable persons” and counsel would conclude that he would be even more partial in favor of the
District Attorney and the Sheriff against whom Hobbs Act and other charges are pending in federal
court. As well, the relationships between persons working in his court on a daily basis, create another
instance of partiality which would alarm the “reasonable person” by any application of that standard.
The details of these and other ex parte contacts and conversations will be best understood when
explained verbally. Counsel requests leave to present oral argument.
Legal Department - Suite 106 served all counsel 26 April 2011.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.621


Complainant *
v. *
* Section: K
*
**************************
OPPOSITION TO MOTION TO EXPEDITE
THE 11 MAY HEARING ON MOTION
TO QUASH DEPOSITIONS OF JUDGES
May It Please the Court
Counsel opposes the Motion to Expedite the Hearing on the Motion to Quash the Subpoenas
issued to Judges Badeaux, Crain, Childress, and Knight. Undersigned counsel has informed
opposing counsel that he is willing to continue these depositions now set for this Friday, 29 April
2011. Undersigned counsel also agreed that the depositions of these individuals would not go
forward until such time as the Court has ruled on their Motion to Quash the Subpoenas for the
depositions and the duces tecum requests.
Counsel Has Agreed to Postpone the Depositions Until the Court Rules
The depositions were set for 29 April 2011, but as per undersigned counsel’s commitment
to Counsel Mark Hanna, those depositions will not go forward until such time as the Court rules on
the Motion to Quash. Pursuant to that agreement, counsel has released the deposition room at the
Louisiana Bar Association Center and has released the court reporter. There is no reason to expedite
the hearing.
Adequate Time Is Needed to Fully Brief the Opposition
The issues at hand involve the integrity of the entire justice system in state court, not only
17-30519.622
the prosecution of this matter. Judge Reginald Badeaux admitted during the 14 April 2011 hearing
on the Motion for En Banc recusal that he and Sheriff’s Counsel Chuck Hughes had ex parte
conversations about the matter pending in the 22nd Judicial District Court against Gates. Judge
Badeaux also admitted that Hughes had told him that “you”[undersigned counsel] are a “bad
guy”[euphemism mine]. Ex parte conversation are legendary.
Hughes was trying to adversely influence Judge Badeaux’s disposition toward Mr. Gates and
his counsel. It appears to have worked. After Judge Badeaux admitted the ex parte conversations,
he recused himself and informed counsel that the matter would be brought to the entire bench for
for En Banc recusal. The matter was continued without date. Counsel has not been told the results
of the En Banc meeting, or even if such a meeting was held.
Full Briefing Will Demonstrate Constitutional Violations and Irreparable Injury
Full briefing as to the extent of the ex parte conversations already discovered and the
subsequent request to depose all the other judges who presided over the state court matter, would
serve the Court in helping it understand the extent of the constitutional violations and irreparable
injury already suffered by Gates. The Court should know that counsel’s concern with the ex parte
conversations between Sheriff’s Counsel Hughes and Judge Badeaux, is not an isolated instance.
The Louisiana Judiciary Commission found Judge Badeaux guilty of just such violations of
partiality on 28 January 2011. The Louisiana Supreme Court will hear the charges against Judge
Badeaux on 11 May 2011—the same day this Court will hear the Judges’ motion to quash.
-2-
17-30519.623
Full Briefing Will Address the Integrity of The Prosecution
“reasonable persons” and counsel would conclude that such judges would be even more partial in
favor of the District Attorney and the Sheriff against whom Hobbs Act and other charges are pending
in federal court. As well, the relationships between persons working in his court on a daily basis,
create another instance of partiality which would alarm the “reasonable person” by any application
of that standard.
All “reasonable persons” shall also question the integrity of a proported system of justice,
in which one presiding over or prosecuting criminal matters, violates the state’s criminal laws
-3-
17-30519.624
themselves, while pretending to apply or enforce them. The details of the ex parte conversations and
other ethical and criminal violations will be best understood when briefed fully and exposed orally.
Legal Department - Suite 106 served all counsel 27 April 2011.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-4-
17-30519.625


Complainant *
v. *
* Section: K
*
**************************
REPLY TO DEFENDANTS’ OPPOSITIONS TO

GATES MOTION TO LIFT STAY AND REOPEN CASE
May It Please the Court:
Mr. Gates moved the Court to reopen this matter and lift the stay ordered over three years
ago.1 The Court has set this matter for hearing with oral argument on 11 May 2011 at 2:30 P.M..
Defendants filed their opposition timely to which Mr. Gates replies. In effect, the stay has given Mr.
Gates and counsel time to investigate and uncover the facts which prove defendants have repeatedly
violated his constitutional rights and caused him irreparable injury.
The United States Supreme Court has been clear, even the allegation of “irreparable injury
to constitutional rights” gives the district courts jurisdiction to enjoin state court actions, to prevent
existing as well as threatened injuries. Gates has suffered and continues to suffer both.
To decide this matter the Court should consider a substantial number of facts established
since the original stay was imposed and the issue of irreparable injury proved by those facts.
I Allegations of Irreparable Injury - Mandate Equitable Jurisdiction & Injunctive Relief
Allegations of irreparable injury give the United States Courts equitable jurisdiction and the
1
Rec. d. #56 [16 April 2008]
-1-
17-30519.626
authority to grant injunctive relief. Even the threat of irreparable injury extends the reach of a court
beyond the Younger doctrine2, which usually obligates a federal court to abstain from intervention
in state court matters.
While federal courts are cautious about intervening, they do so tenaciously and enjoin state
actions and behavior—most often that of state agencies such as sheriffs and prosecutors—when it
is alleged that those actions threaten to or have caused “irreparable injury” to an individual’s
constitutional rights. The Supreme Court has consistently acknowledged that the district court “can
enjoin a state criminal prosecution . . where necessary to prevent immediate irreparable injury.”3
The United States Supreme Court in Elrod held that “the loss of Constitutional Amendment
freedoms . . . either threatened or in fact being impaired . . even for minimal periods of time . . .
unquestionably constitutes irreparable injury”.4
It is recognized that “when an alleged deprivation of a constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”5 The United States Fifth
Circuit agreed that the allegation of such a deprivation, as well as the deprivation itself, “would
constitute irreparable injury.”6 The deprivations and injuries suffered by Gates are beyond
allegation, they are now proved by the facts uncovered and set forth below. The stay should be lifted.
The Court should exercise its injunctive authority, remedy the existing irreparable injuries and
2
Younger v. Harris, 401 U.S. 37 (1971)
3
Samuels v. Mackell, 401 U.S. 66, 69 (1971)
4
Elroy v. Burns, 427 U.S. 347, 373 (1976)
5
C. W right & A. Miller, Federal Practice & Procedure §2948.1At 161 (1995)
6
Mississippi Women’s Med. Clinic v. McMillan, 866 F.ed 788, 795 (1989)(dicta)
-2-
17-30519.627
prevent those threatened by these defendants and their actions.
II. The Facts That Have Caused and Continue to Threaten Irreparable Injury
The facts set forth below prove that the defendants as well as their judicial and quasi-judicial
collaborators have caused and threaten to cause irreparable injuries to Gates. Their actions and
collaboration have destroyed any semblance of justice and impartiality within the 22nd Judicial
District Courts as they pertain to Gates, and in fact to many others.
Some but certainly not all of the facts underlying these injuries are:
Ex Parte Communications Between Sheriff’s Counsel and Judges
(A) Judge Reginald Badeaux has admitted ex parte conversations with Sheriff’s Counsel
Chuck Hughes about the criminal prosecution, and having done so recused himself. But not before
the findings of the Louisiana Judiciary Commission were presented to the Court.
The Louisiana Judiciary Commission found Judge Badeaux guilty of the following violations
on 28 January 2011. The Louisiana Supreme Court will hear the charges against Judge Badeaux on
11 May 2011.
-3-
17-30519.628
“reasonable persons” would conclude that he would be even more partial in favor of the District
Attorney and the Sheriff against whom Hobbs Act and other charges are pending in federal court.
As well, the relationships between persons working in his court on a daily basis, create another
instance of partiality which would alarm the “reasonable person” by any application of that standard.
Having proved Chuck Hughes ex parte contacts and conversations with Judge Badeaux and
evidence of other contacts, four other judges have been subpoenaed to testify about their ex parte
contacts with Hughes. Apparently unaware of his conflict of interest, the Louisiana Attorney General
has appeared to represent these judges and has filed a motion to quash the subpoena, which is
pending now before this Court.7
Defendant Hughes and ADA’s Fabrication of “Deputies-as-Victims” Letter
(B) ADA Gracianette and Sheriff’s Counsel Chuck Hughes have admitted under oath that
7
The Motion identifying the Attorney General’s conflict of interest will be filed within several days.
-4-
17-30519.629
they planned and helped execute the “Deputies-as-Victims” letter8 which fabricated the story that
Gates attacked the deputies.
Dispatch Tapes, Transcripts, and Medical Records Have Been Altered & Destroyed
(C) The dispatch tapes and transcript and now the recent testimony from Dr. Kerry at
Lacombe Heart Hospital prove conclusively that the deputies were not victims and in fact never
complained of any injuries, assault, or battery by Gates. The altered and missing documents also
prove that the blood alcohol results of 0.273 were fabricated for the purpose of covering up the
injuries inflicted by the defendants on Gates.
ADA Noreia’s Brady Violations and Cover-Up
(D) District Attorney Noreia’s Brady violations and refusal to identify Officers 2216 and
2217, who were on the scene that night and whose presence is self-evidenced on the tapes also
constitute irreparable injury in violation of Gates constitutional rights.
Private investigation will show that defendant Miller was allowed to resign or was fired
because of his history of excessive force write-ups and in part because of his attack on Gates the
night of the underlying incident. Both the Sheriff and District Attorney refused to release those
records in violation of Gates’s rights as articulated in Brady.
ADA Noreia’s False Arrest Threats and Collaboration By the Court
(E) District Attorney Noreia’s threats to have Gates arrested and incarcerated until trial
because counsel Martin Regan was already in trial and was not available for trial on the dates Noreia
wanted, and the collaboration by the Judge Childress in this threat, are a violation of, as well as
constitute irreparable injuries to Gates’s due process rights.
8
Transcript from 10 May 2010 Hearing -In the record of the original motion
-5-
17-30519.630
ADA Noreia’s Repeated Attempt to Reset The Trial Without Consent of the Courts
(F) On four occasions without consulting either the Court or counsel ADA Noreia issued
letters saying that he had set the trial in this matter on a date within a few days of each notice. Aside
from his attempts to set the trial prior to the 11 May public hearing on defendants’ Hobb Act
violations in the United States District Court, Noreia repeatedly threatened Gates by saying he would
have Gates arrested if he did not appear voluntarily for the dates which were not set by the Court or
agreed upon by counsel. The Courts did not acknowledge or notice Gates or counsel for any of the
quickly-set trial dates fabricated by Noreia. Defendant Chuck Hughes collaborated with Noreia on
at least two occasions.
ADA and Deputy Knights Complicity in Fabrication of Affidavits & Reports
(G) ADA Julie Knight’s now admitted conflict of interest that she worked on this
prosecution for five years while her husband was the officer who wrote the affidavit and police
report which the Sheriff’s office had Deputy Gottardi sign, to shield Deputy Nathan Miller and
presumably yet-to-be-identified officers No. 2216 and No. 2217 and others.
This conflict is probative of the fabrication of both documents and facts underlying the
fraudulent prosecution of Gates. STPSO officer Scott Knight is the husband of Assistant District
Attorney Julie Knight, assigned to Judge Badeaux’s court by the District Attorney. Ms. Knight and
Scott Knight have been identified as actor in the initiation and prosecution of this matter and in the
matter pending in the United States District Court for the Eastern District of Louisiana. Subpoenas
duces tecum relating to contacts and communications between the Knights have issued from the
federal court in New Orleans and from this court as well.
Officer Scott Knight wrote or co-authored—along with others—the police report and
-6-
17-30519.631
affidavits allegedly signed by rookie Roger Gottardi, who was not an eye-witness to the fabricated
chase and aggravated flight. Gottardi, Knight, and others to be identified at the federal hearings on
these matters, wrote what Nathan Miller—who upon information and belief, has been fired or
allowed to resign because of his history of excessive force write-ups and other public
complaints—alleged observed and did during the initial stop. No eyewitness has written or testified
to the fabricated chase and other facts that underlie this prosecution. The truthfulness and credibility
of Officer Scott Knight is at issue. His wife assistance and complicity in these matters is also at
issue.
As a prosecuting attorney in the Gates matter for five years, she has a conflict which she did
not reveal herself or admit until called in question on 14 April 2011, now that her husband is named
as a participant in the fabrication, cover-up, and Hobbs Act violations. Both ADA Knight and her
husband, have been identified as witnesses to be called at trial in both the federal and state cases.
Subpoenas for each have been issued by both courts.
Federal Racketeering Suit Names Four Local Judges - Two As Defendants
(H) Judge Childress and other former-as-well-as-sitting judges [as defendants] in the 22nd
Judicial District Court for the Parish of St. Tammany, in a racketeering suit [Martin v. Magee /
USDC/ EDLA No.10-2786]. Two are named defendants and two are named in the RICO case
statement as additional wrongdoers. Other judges are named defendants in a parallel property fraud
suit involving Judge Childress’s former law partners William M. Magee and Mary Devereux [now
judge in this district also] now pending—the later of which—and set for trial on 17 July 2011, in the
United States District Court for the Eastern District of Louisiana. Judge Childress has been identified
as a witness to be called at the federal trial.
-7-
17-30519.632
Mr. Gates has been instrumental in the investigation and prosecution of this racketeering suit
and another involving forgery, mortgage, and bank fraud in Washington and St. Tammany Parishes
and along with Abel has worked with both state and federal law enforcement providing and
developing evidence against these defendants, as well as the local judges named and to be named
therein.
The Cover-Up of The Sheriff’s Liability for Injuries Inflicted on Gates
(I) Subsequent to a traffic stop, St. Tammany Sheriff’s deputies slammed Gates’s face
into the car door, beat-up and pepper-sprayed Gates after he was handcuffed, causing his doctors to
take 287 CT facial images and 34 CT brain images and diagnose him with permanent nerve damage
and prognose four [4] corrective surgeries. Private investigators have located a former officer on the
scene that night and will testify that the supervisor had to intervene to stop the officers from
continuing to beat him.
medical experts have stated that a BAC in that range is not possible considering Dr. Kerry’s recent
unequivocal testimony, Gates’ GSC scores and E/V/M results taken and recorded at the same time.
in anticipation of Gates’s seeking to redress their brutality and use of excessive force. In concert with
claiming that there were no doctors on duty that could treat him in Jefferson, Orleans, or St.
Tammany parishes. Investigators have confirmed that there were such doctors on duty in Jefferson,
Orleans, and also St. Tammany parishes.
-8-
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The deputies charged Gates’s with Obstruction of a Highway of Commerce, at the hospital.
They charged him with a felony in order to cover up for the serious damages which they have
inflicted upon him. When the charges got to the District Attorney the Obstruction change was
converted to a Aggravated Flight, still a felony. A cursory look at the police notes from that night,
prove that Gates did not obstruct anything, much less I-12 Highway.
The District Attorney charged Gates with Aggravated Flight and DWI, based on the
fabricated BAC results. The District Attorney told Gates’ attorney Mr. August J. Hand, that he would
consider dropping the charges if Gates would give the Sheriff and his deputies a hold harmless
against any federal civil rights action.
meeting and Hughes’ threat are also evidenced under oath.
-9-
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III. The Younger Abstention Doctrine — Not Applicable to Monetary Recovery
While the Younger doctrine of abstention often applies to requests for declaratory
judgment and injunctive or equitable relief, it does not apply and should not stay federal actions
in tort for monetary recovery. Defendants have not raised this issue; Gates reserves his right to
brief this matter if raised or if requested to do so by the Court.
IV. Conclusion
The Federal Suit Alleges Hobbs Act Violations 18 U.S.C. 1951
Counsel has stated from the outset that the Gates’s actions do not arise from the
Hobbs Act itself, but from 42 U.S.C. § 1983. But the Hobbs Act defines the criminal actions
which had taken individually and in conspiracy with each other. Those acts clearly defined by
the Hobbs Act are such as caused the irreparable injuries suffered by Gates and as continue to
threaten his constitutional rights and guarantees.
Defendants Hughes, the Sheriff’s and his deputies, the District Attorney and his ADAs
and others have conspired to and extorting by force, by violence, and by fear to induce and
attempt to induce Gates to give up his constitutional and civil rights, as well as his property and
property rights, in violation of 18 U.S.C. 1951.
The Court should reopen this matter, examine the facts established over the last three
years, and grant all equitable and injunctive relief necessary to remedy the irreparable injuries
already existing as well as those threatened.

-10-
17-30519.635

Legal Department - Suite 106 served all counsel: 28 April 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-11-
17-30519.636

ORDER
CONSIDERING THE FOREGOING;
IT IS HEREBY ORDERED that the accompanying Motion to Withdraw is GRANTED.
Accordingly, Andre J. Lagarde is hereby terminated as counsel of record in the captioned matter;
IT IS FURTHER ORDERED that movant, Andre J. Lagarde, be removed from the ECF
participant list in these proceedings.

Thus done and signed, this 29th April
____ day of _____________, 2011, in New Orleans,
Louisiana.

17-30519.637

SRD-JCW

STRAIN, ET AL. JR.
MOTION TO WITHDRAW MOTION FOR EXPEDITED HEARING
NOW INTO COURT, through undersigned counsel, come the Honorable Raymond
Judicial District Court who move to withdraw their Motion for Expedited Hearing (Rec. Doc.
100) as moot for the following reasons:
1.
Plaintiff had subpoenaed the judges for depositions and production of documents, due on
April 29, 2011.
2.
Counsel e-mailed plaintiff’s counsel that a Motion to Quash would be filed unless the
subpoenas were withdrawn, with a statement of the grounds therefore.
17-30519.638
3.
Since counsel received no reply from plaintiff’s counsel, the Motion to Quash (Rec. Doc.
99) and the Motion for Expedited Hearing (Rec. Doc. 100) were filed.
4.
Plaintiff’s counsel filed an opposition to the Motion for Expedited Hearing in which he
agreed to postpone the depositions until the Court rules on the Motion to Quash. (Rec. Doc.
102).
5.
Such agreement renders the Motion for Expedited Hearing unnecessary and moot and
counsel wishes to withdraw same.
WHEREFORE, Movers pray that this Motion be granted and the Motion for Expedited
Hearing (Rec. Doc. 100) be withdrawn as moot.

ATTORNEY GENERAL
BY: /s/ Bridget B. Denicola


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
2
17-30519.639

KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080


Hospital, LLC
Robert C. Stern
Killeen & Stern, PC
400 Poydras Street
Suite 1710
Co-Counsel for Judge Raymond Childress
/s/ Bridget B. Denicola

BRIDGET B. DENICOLA
3
17-30519.640

SRD-JCW

STRAIN, ET AL. JR.
MOTION TO WITHDRAW MOTION FOR EXPEDITED HEARING
Plaintiff has filed an opposition to the Motion to Expedite the Hearing on the Motion to
Quash Subpoenas issued to Judges Badeaux, Crain, Childress, and Knight. (Rec. Doc. 102). In
that opposition, counsel for plaintiff has agreed to postpone the depositions until the Court rules
on the pending Motion to Quash. Pursuant to that agreement, the Motion for Expedited Hearing
on the Motion to Quash is moot.
17-30519.641

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192

KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080
2
17-30519.642


Hospital, LLC
Robert C. Stern
Killeen & Stern, PC
400 Poydras Street
Suite 1710

BRIDGET B. DENICOLA
3
17-30519.643


SRD-JCW
V. JUDGE STANWOOD R. DUVAL,

JR.
SHERIFF, RODNEY “JACK”

STRAIN, ET AL. MAGISTRATE JUDGE
WILKINSON, JR.
TO: SHANE M. GATES

THROUGH:
DANIEL G. ABEL
2421 CLEARVIEW PARKWAY
LEGAL DEPARTMENT – STE. 106
METAIRIE, LA 70001
Withdraw Motion for Expedited Hearing filed by the Honorables Raymond Childress, William J.
Crain, Reginald Badeaux, and William “Rusty” Knight, Judges of the 22nd Judicial District
Court, before the Honorable Joseph C. Wilkinson, Jr., United States Magistrate Judge, United
States District Court, 500 Poydras Street, New Orleans, LA, 70130, on the 18th day of May,
17-30519.644
2011, at 11:00 a.m. Pursuant to Local Rule 78.1E this motion shall be determined without oral
argument unless any party desiring oral argument files separate written request for oral
argument, or the court orders oral argument.

ATTORNEY GENERAL

DAVID G. SANDERS, Bar Roll No. 11696
BRIDGET B. DENICOLA, Bar Roll No. 27433

LITIGATION DIVISION
1885 North Third Street
P. O. Box 94005
Telephone: (225) 326-6300
Fax: (225) 326-6192
Counsel for Judges of the 22nd Judicial District Court

KILLEEN & STERN, PC

400 Poydras Street
Suite 1710
Telephone: (504) 525-8111
FAX: (504) 680-6080
2
17-30519.645
I CERTIFY that on April 29th day of April, 2011 the foregoing NOTICE OF
SUBMISSION was electronically filed with the United States District Court, Eastern District of
Louisiana, using the CM/ECF filing system which sent notice electronically to all CM/ECF
participants. The following non-CM/ECF participants were mailed a copy via U.S. Mail,
properly addressed with sufficient postage affixed.


and
LLC
Robert C. Stern
Killeen & Stern, PC
400 Poydras Street
Suite 1710

BRIDGET B. DENICOLA
3
17-30519.646

VERSUS NO. 07-6983
SHERIFF RODNEY JACK SECTION “K”(2)

STRAIN ET AL.
ORDER ON MOTIONS
APPEARANCES: None (on the briefs)
MOTIONS: (1) Motion to Withdraw Motion for Expedited Hearing, Record

Doc. No. 108
(2) Motion for Expedited Hearing, Record Doc. No. 100
(3) Plaintiff’s Request for Oral Argument, Record Doc. No. 101
(4) Defendant’s Request for Oral Argument, Record Doc. No. 96
(5) Defendants’ Motion to Quash Subpoena Duces Tecum and/or
for Protective Order and for Sanctions, Record Doc. No. 95
(6) Defendants’ Motion to Quash Subpoena, Record Doc. No. 97
(7) Motion to Quash Subpoenas, Record Doc. No. 99
O R D E R E D:
(1) : GRANTED.
(2) : DISMISSED AS MOOT in light of the Motion to Withdraw Motion for Expedited
Hearing granted above.
(3), (4) : GRANTED, but only as provided below.
(5), (6), (7) : CONTINUED. This case is stayed and remains stayed until such time if
ever that it is reopened. The case having been stayed, the subpoenas should not have been
served. Thus, no appearance at deposition or other response to the subpoenas is required,
unless and until otherwise ordered by the court. A separate hearing concerning the
17-30519.647
motion to lift the stay and reopen the case is scheduled to occur before Judge Duval on
May 11, 2011, Record Doc. No. 93. Because the outcome of these motions depends in
part on whether the case is reopened, oral argument will not occur until after Judge Duval
has ruled. If the case is not reopened, the case will remain stayed, and the motions will
be granted. If the case is reopened, oral argument on the motions will be conducted
before me on May 25, 2011 at 11:00 a.m., or on the first Wednesday after Judge Duval
determines whether the stay has been lifted.
New Orleans, Louisiana, this 2nd day of May, 2011.

CLERK TO NOTIFY:
17-30519.648

SHANE M. GATES * CIVIL RIGHTS ACTION §1983

*
VERSUS * CASE NO. 07-6983
*
SHERIFF “JACK” STRAIN, ET AL. * JUDGE S. DUVAL
*
* MAG. JUDGE WILKENSON
*
************************* JURY TRIAL
NOTICE OF COMPLIANCE WITH COURT’S REQUEST

FOR CHRONOLOGY WITH SUPPLEMENTAL
DOCUMENTS FROM STATE COURT RECORD
Please find the chronology requested by the Court on 9 May 2011 and all state court
documents identified in the chronology that are attached as exhibits hereto.
I. Significant Dates in Chronology:
17 November 2006 - Warrant for DUI - Cleared by Arrest
17 November 2006 - Warrant for Obstruction of Highway - Cleared by Arrest - False
17 November 2006 - No Warrant for Aggravated Flight - NEVER / NO AFFIDAVIT
5 August 2003 - Holly Bush Dismissed - Resisting Arrest - EDLA #03-2836 [Red.d. 43]
24 July 2007 Abel Meets with Hughes - 10 May 2010 Transcript from Recusal Hearing
7 September 2007 - Hughes-Gracianette - Dearing Phone Calls to Recharge Gates
10 September 2007- Gates Recharged - To Fit the Heck Dismissal Reasons
17 October 2007 - Gates Files EDLA # 07-6983, then Heck changes . . .
6 February 2008 - Fifth Circuit Reverses Holly Bush EDLA #03-2836 [Rec. d. #50]
Page 1 of 11
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17 October 2007 - Gates Files § 1983 Complaint With Evidence
16 April 2008 - Court Stays §1983 Action
10 May 2010 - Recusal Hearing in State Court - Transcript
14 April 2011 - Motion to Recuse Judge Badeaux - Ex Parte With Hughes
21 April 2011 - Court to Louisiana Supreme Court for En Banc Recusal
II. Public Record Chronology
A chronological history of Facts Underlying Irreparable Injuries to Shane Gates:
1. Deputy Nathan Miller advises STPSO dispatch that he observed a dark-colored 4
door vehicle speeding on I-12 westbound at the Highway 434 exit.
2. Traffic stop by deputy Nathan Miller. Dispatch records indicate time was about
2108 or 9:08 PM at bayou Lacombe bridge approximately 0.4 tenths of a mile
from Highway 434.
3. Deputy Miller advises at 2109 that he does not want the channel which indicates
that he didn’t feel the need for a dedicated radio channel.
4. At 2111 (9:11 PM) unidentified deputy 2217 advises “code 4” meaning the
situation is under control and no further officers are needed at the scene.
At this point I must note that the dispatch transcript provided by STPSO does not
coincide with the audio disk provided. For instance, the printed version does not
have Lt. Randy Smith or Sgt. Scott Knight arriving at the scene, but they clearly
arrived sometime between 2120 (9:20 PM) and 2124 ((24 PM).
The printed form states that 2211 called in for an arrest time at 2124 (9:24 PM)
when it was actually the unidentified deputy 2217 that did so. Lt. Smith also did
Page 2 of 11
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so and at 2221 (9:21) called in the use of OC pepper spray on Gates. There are
several more discrepancies on the submitted printed form including several
-numerous - omissions.
5. Officer Roger Gottardi calls in an arrest and a resisting officer code 108 between
2121 (9:21 PM) and 2124 (9:24 PM).
At some point Lt. Smith ordered Gates to be transported to the nearest medical
facility, which is the Lacombe Heart Hospital due to head injuries inflicted during
the arrest.
According to hospital records deputies arrived at that facility with Gates at 2140
(9:40 PM.)
According to the printed dispatch log Gates was released at 0224 (2:42 AM), five
hours later, with summons # 23534.
See Exhibit-Document # 1, STPSO radio log transcript.
See Exhibit-Document # 2, Lacombe Heart Hospital Emergency Department Record
Gates was issued traffic citation # 7146634 for RS 14:99, Reckless Operation of a
Motor Vehicle and RS: 32:300, Open Container in a vehicle by Deputy Roger
Gottardi and summons # 23534 for RS 14:108, Resisting an Officer, also issued
by Deputy Roger Gottardi.
Page 3 of 11
17-30519.651
Neither citation was notarized by an ex-officio notary and were submitted as such.
It must be noted that a later version of this form was submitted in what is clearly
an altered form with the signature of Sgt. Scott Knight and dated 17 November
2006. Shane Gates is in possession of the original documents and they are
unsigned.
Additionally, a second and altered version of the traffic citation was later submitted
by STPSO. In the block for vehicle color the original says “gry” or gray, which is
the color of the vehicle. On the altered form the block is marked “gry/blk“, or
black. The color of the car is altered, but Scott Knight did not notarized the ticket
but the second version of this same ticket has Scott Knight’s initials only. And the
original summons for resisting an officer was never signed by a supervisor, but the
later versions submitted into the court record by Chuck Hughes on 10 May 2010,
clearly show that Scott Knight subsequently signed the affidavit and back-dated it
to November 16, 2006—which constitutes fraud within a public official and
involving the alteration of public records.
It must be noted that Gottardi’s written report and the radio log states that Deputy
Nathan Miller called the vehicle he observed speeding as “Black”.
There is no citation, summons, or probable cause documentation in any form by the
initiating officer, Deputy Nathan Miller including narrative form documentation.
See Exhibit-Document # 3, citation #7146624, original and altered version
Page 4 of 11
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See Exhibit-Document #4, summons # 23534, original and altered version
An “OC Administrative Warning”, which is a written document that is read aloud
to any person pepper sprayed is marked as Gates refusing the questions asked. It is
signed by Deputy Roger Gottardi and has 2220 (10:20 PM) but has no witness
signature in the space provided. In the police report Deputy Gottardi states that the
hospital treated Gates for pepper spray contamination. The hospital has no record
of decontamination and both the doctor and nurse testified that the sheriff’s
deputies did the decontamination of the pepper spray. As each is saying the other
agency did it, it is obvious that neither did any contamination, leaving Gates
contaminated.
See Exhibit-Document #5, OC Administrative Warning
A Miranda rights form marked as refused was also allegedly done at 2235 (10:35
PM) by Deputy Roger Gottardi
See Exhibit-Document #6, Statement of Miranda Rights
DWI citation # 0238587 was issued under STPSO item # 2006-21689 for the following
charges:
RS 14:99 Reckless Operation of a Motor Vehicle
RS 32:300 Open Container in a Motor Vehicle
Page 5 of 11
17-30519.653
RS 14:96 Aggravated Obstruction of a Highway of Commerce
Note the duplication of charges listed on citation # 7146624
This document is signed by Deputy Roger Gottardi and notarized by Sgt. Scott Knight.
But, there is no date to appear in court annotated, nor does the signature of Shane Gates
appear even as “refused” on the document which clearly shows that Gates was never
presented the document and made aware of the charges listed on it.
A second DWI form, the universal state form, was marked a “refused” by Gates
and was submitted to the state The names of Deputy Roger Gottardi, Deputy
Nathan Miller, and Deputy Brian Williams are printed on the form but there are
no signatures. A Request for a Administrative Hearing form was filled out and
submitted by attorney Daniel Abel. Also, the page titled “Notice toWithdraw
Blood for Chemical Test for Intoxication” was filled out naming Gates and was
used as justification to draw blood even though no crash occurred. This is in
violation of R.S. 32:661.
See Exhibit-Document #7, STPSO DWI form # 0238587
See Exhibit-Document # 8, State DWI form and Request for Administrative Hearing
A written narrative report under STPSO item number 2006-021689 was filed on
November 21, 2006 by Deputy Roger Gottardi. It must be noted that the entire
report is based on what Gottardi was told by Deputy Nathan Miller and is a report
Page 6 of 11
17-30519.654
based on second hand information. There is no written record of this incident by
the initiating officer, Deputy Miller until a letter was solicited from him, possibly
by the STPSO attorney, at a much later date. The report was signed off on by Sgt.
Scott Knight.
This report has many inconsistencies and will be broken down in a later report by
this investigator.
See Exhibit-Document # 9, STPSO report item # 2006-021689.
On the 20th of November Deputy Gottardi applied for and received a search
warrant from Judge Green of the 22nd Judicial Court for the medical records of
Shane Gates from the Lacombe Heart Hospital.
According to Gottardi he received the records of a blood test indicating that
Gates’ blood alcohol level was .273. No copy of warrant in hospital records.
On the 21st of November Deputy Gottardi submitted affidavits to Judge Burris of
the 22nd Judicial Court requesting that warrants for the arrest of Shane gates be
issued for:
RS: 14:98, Driving While Intoxicated
RS: 14:98 Aggravated Obstruction of a Highway of Commerce
Warrants # 325884 (14:98) and 325883 were issued.
Page 7 of 11
17-30519.655
It must be noted that nowhere in the affidavit requesting a warrant for Aggravated
Obstruction of a Highway of commerce does Gottardi describe any action taken
by Gates that would fit the criteria for the charge. In fact, in Gottardi’s original
report he states that, “ ….Gates maneuvered his vehicle onto emergency lane (sic)
and abruptly stopped just before the Bayou Lacombe Bridge.”
It also must be noted that Deputy Gottardi states in the initial report that Deputy
Miller smelled alcoholic beverages on Gates’ breath but nowhere in the report nor
in the affidavit for the warrant does he ever state that he himself smelled the same,
even though he clearly describes wrestling with Gates to subdue him in a close
manner. It must also be noted that Gottardi’s description of Gates’ actions at the
time of the initial stop on his Affidavits for Arrest and his initial report differ
substantially from one another.
See Exhibit-Document #10, search warrant and return for Shane Gates’ medical records.
See Exhibit-Document #11, affidavit and warrant # 325884 for DWI
See Exhibit-Document #12, affidavit and warrant #325883 for Aggravated Obstruction of
a Highway of commerce.
On November 21, a copy of the search warrant for the medical records and the
obtained medical records were submitted into STPSO evidence at the Slidell
evidence vault.
Page 8 of 11
17-30519.656
On November 28, seven days after it was submitted, that evidence was checked
out of the vault. A partial signature on the evidence receipt appears to be that of
Sgt. Scott Knight. A second and nearly unreadable signature appears to possibly
be that of “M. Beritz.”
Two initials, “SK” appear in the lower right hand corner of the evidence receipt.
There is no record in the chain of evidence as to where those documents went or
who took possession of them after that. They were requested recently and have
disappeared.
See Exhibit-Document # 13, Evidence Receipt per STPSO item #2006-021689
On December 5, Shane Gates turned himself in and was booked with warrant #
325884, DWI, booking number 115696. There were no other charges listed and he
bonded out for the one charge of DWI for a bond of $1500.00, which was
approved by District Judge Commissioner Gleason.
See Exhibit-Document # 14, St. Tammany Parish Sheriff’s Office Bond Receipt.
During the course of this investigation the question was raised concerning the
second warrant, # 325883 which had been issued for Aggravated Obstruction of a
Highway of Commerce. Shane Gates had not been charged with the second
warrant when he surrendered himself.
Page 9 of 11
17-30519.657
Investigator and federal document expert Ken Kulik checked with STPSO Administration
and discovered that the second warrant had been entered into their computer system on
November 21, 2006 and had immediately been cleared “by arrest” which essentially made
the warrant disappear. Shane Gates has never been arrested for this charge and no other
conclusion can be reached other than deliberate fraud or obfuscation was involved in the
disposition of this document.
On a miscellaneous item of note, a letter was solicited from Nathan Miller nearly a year
(10 September 2010—Was Miller was already fired or allowed to resign?) after this
incident, which was submitted to the office of Walter Reed, the St. Tammany Parish
District Attorney. The Miller letter was not notarized or sworn to as required by
Louisiana law in order to initial a prosecution. Upon information and investigation, Miller
was no longer a deputy with the STPSO at the time he and Hughes, STPSO Chief Al
Strain, ADA Gracianette wrote the undated Nathan Miller letter.
See Exhibit- Exhibit-Document # 15, letter from Nathan Miller to Walter Reed
Miller’s failure to sign any ticket or warrant or affidavit is relative to his own history of
excessive force write-ups and his subsequent firing or retirement from the STPSO. The
admitted solicitation by defendant Hughes and Al Strain and ADA Gracianette of the
letter from Miller, may explain why Miller was asked to provide a letter. Because at the
time of this fabrication, Miller was no longer an officer with the STPSO.
Page 10 of 11
17-30519.658
In the letter Miller states among other things that, “My life was at risk at this interstate
stop and Mr. Gates should not go free from these charges.”
It is curious that, if this deputy and other’s lives or safety were in such danger, why they
would fail to find a gun in Mr. Gates’s car, which the wrecker driver from A-1 Wrecker
service found in a cursory inventory of the vehicle and submitted to his office for
safekeeping. The receipt from that night clearly states “Gun in office.”
See Exhibit- Exhibit-Document #16, tow receipt with “Gun in Office.
III. Other Documents Are In Record of This Matter
Other documents including the transcript of the 10 May 2011 Recusal Hearing are already
in the records of this matter; other documents are in the record of the state court.
Legal Department - Suite 106 served counsel.10 May 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
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*
*
*
*
************************* JURY TRIAL
OPPOSITION TO MOTION TO QUASH JUDGES DEPOSITION,

AND SUBPOENAS DUCES TECUM AND NOTICE OF
ATTORNEY GENERAL JAMES D. “BUDDY”CALDWELL’S
CONFLICT OF INTEREST IN REPRESENTING THE 22ND JDC JUDGES
Counsel moves the Court to hear evidence as to Louisiana Attorney General James D.
“Buddy” Caldwell’s conflict of interest in representing the named judges and the 22nd Judicial
District Court Bench in the state court prosecution of Shane M. Gates.
I. Badeaux Admitted Ex Parte Contacts With Sheriff’s Attorney; Recused Himself
Judge Reginald Badeaux has admitted ex parte contacts and conversations about the Gates
prosecution with Sheriff’s Counsel Chuck Hughes. Once challenged and exposed, Badeaux recused
himself from the case. Judge Badeaux was already found guilty of ex parte contacts in another case,
set to be heard by the Louisiana Supreme Court on this Wednesday, 11 May 2011.1
Judge Badeaux’s admission to ex parte meetings with Sheriff’s counsel Chuck Hughes in the
Gates criminal matter, caused counsel to subpoena to the other judges to determine if Hughes made
illegal ex parte contracts with them as well. The Court will recall that it was Hughes who conspired
with ADA Gracianette to fabricate the “Deputies-as-Victims” letter, and to recharge Gates with
1
Exhibit A - Louisiana Judiciary Commission Findings Before Supreme Court
-1-
17-30519.704
resisting arrest in an attempt to bar Gates’s § 1983 claims for excessive force—as Hughes presumed
from the Holly Bush v. Jack Strain dismissal [prior to the dismissal being overturned in favor of
Holly Bush, by the U.S. Fifth Circuit]. Hughes was counsel for Sheriff Strain in this matter; Holly
Bush prevailed against the Sheriff once the Fifth Circuit reversed the trial court dismissal. In addition
to the Badeaux’s admitted ex parte contacts with Hughes, the representation of the subpoenaed
judges—each of whom presided over the Gates matter before, raising another conflict.
The Attorney General appeared to represent these judges, including Judge Badeaux who has
already admitted his violations. The Attorney General has both a constitutional and a factual conflict
in representing these judges. He does not appear to be aware of either.
Matthew 6:3: “But When Thou Doest Alms, Let Not Thy
Left Hand Know What Thy Right Hand Doeth.”2
I. The Right Hand—Investigating the 22nd JDC Bench With Counsel and Mr. Gates
Mr. Shane M. Gates himself and others have been working with Attorney General Caldwell’s
office and federal law enforcement for two years [since August of 2009] on a federal racketeering
investigation and action in which Sheriff’s Strain’s counsel William M. Magee and the Magee RICO
Enterprise: (1) stole real property belonging to the state, (2) forged public documents, (3) had the
forged signatures notarized by attorneys in his office, (4) used forged quit claim deeds to get
fraudulent declaratory judgments (5) signed by certain judges in the 22nd Judicial District Court, who
are now named RICO defendants3 and also additional wrong-doers in the federal RICO action and
2
1769 Oxford King James Bible ‘Authorized Version’
3
District Judges Devereaux and Childress are named defendants [Magee RICO / EDLA No. 10-]
-2-
17-30519.705
investigation.4
Some of the property stolen by the Magee RICO Enterprise belonged to the State of
Louisiana itself. A portion of the property on which his own home sits, was adjudicated to the State
of Louisiana in the Mills litigation and was property of the state at the time when Magee stole it.5
The following victims were identified by the team Mr. Gates serves on. These persons and
agencies and institutions were damaged by some of the same individuals and judges that Attorney
General Caldwell would now represent.
Families and Heirs Damaged & How Each was Injured.
A. Original title owners whose property was stolen or their titles made unmerchantable by
the enterprise. William Magee and his various partners have since sold these properties to third
parties for unjust profit, depriving these owners of the right to sell, donate, alienate, encumber or
maintain their property as they so determine.
Herbert Nill (Herbert F. Nill, Sr), his heirs, successors or assigns
William C. Nill, his heirs, successors or assigns
Miss M. Trainor, her heirs, successors or assigns
Mrs. A. P. Durmeyer (Durnyer), her heirs, successors or assigns
Mr. A. P. Durmeyer (Durnyer), his heirs, successors or assigns
John H. Griham (Graham?), his heirs, successors, or assigns
C.E. Sarrazin & Bros/Jules Sarrazin, their heirs, successors or assigns
J.L. Philips, his heirs, successors or assigns
4
District Burris and Hedges are named as additional wrong doers in the Martin v. Magee suit.
5
Exhibit B - RICO Case Statement
-3-
17-30519.706
Mary E. Norcross, wife of (and) John W. Westerfield
H.J. Ledoux, his heirs, successors or assigns
P.J. Patorno, his heirs, successors or assigns
Mary A. Haynes, widow of John C. Norcross, her heirs, successors or assigns
Clifford J. Bridges, Eugene E. Bridges, Rodney Charles Bridges, and Sidney George Bridges,
their heirs, successors, or assigns
Mrs. Winniefred C. Heintz, her heirs, successors and assigns.
Edward J. Hymel and James F. Turnbull, their heirs, successors or assigns
Jacqueline Wantz, wife of/and John E. Tracy, their heirs, successors or assigns
Hugh J. McDonald, his heirs, successors or assigns
Mrs. Amelia Perry, her heirs, successors or assigns
Mercedes Fucich, widow of Lambert Fucich, her heirs, successors or assigns
Willie L.Rauch, his heirs, successors or assigns
Will J. Morgan (W. J. Morgan), his heirs, successors or assigns
Albert P. Patorno, his heirs, successors or assigns
J.F. Prigott (Pigott), his heirs, successors or assigns
Phillip J. Patorno, his heirs, successors or assigns
Joe Lamousin, his heirs, successors or assigns
Stephen Vaccaro, his heirs, successors, or assigns
B. Original title owners whose property was stolen by the enterprise but has not yet been
sold to third parties for profit. The property is currently listed for sale. These victims have also been
deprived of the right to determine the eventual use or sale of their property.
-4-
17-30519.707
Edward J. Hymel and James F. Turnbull, their heirs, successors or assigns
C. Agencies of the State of Louisiana who lost the right to auction, donate or declare the
properties needed for public use and to maintain perpetual mineral rights for those properties.
D. Division of Administration, Office of State Lands, for properties that had been
adjudicated for unpaid taxes prior to 1973.
Parish of St. Tammany, for properties adjudicated for unpaid taxes after 1973.
E. Original Title Owners who were forced to defend their titles against the enterprise and
were either forced to settle or sell due to Magee’s use of extensive litigation, depriving them of their
rights to maintain or divest as they so chose.
Victoria Grisoli, wife of/and Alexander Mutti, their heirs, successors & assigns
Mrs. Winniefred C. Heintz, her heirs, successors and assigns.
F. Owners of properties for which quitclaim deeds have been filed but no further action has
been taken. The fraudulent deeds remain as a cloud against the titles to these properties
The Unknown Owners of Lot 3, Square 37, Bossier City Addition to the Town of Abita
Springs
Gulf States Title Corporation
Margaret Steele Thrasher Bean et al as heirs of/and Lloyd C. Thrasher
G. Owners of properties that the enterprise had attempted to steal through declaratory
judgment, but who Magee failed to sue due to poor title research or who were abandoned after
Magee realized he would fail.
Mill Enterprises, Inc.- (Magee sued wrong parties) FDIC has rights against owner!
Harry Bossier, his heirs, successors and assigns.- (Magee abandoned the suit the day before the
-5-
17-30519.708
hearing)
H. Current possessors of property with unmerchantable titles due to the acts of the enterprise.
(Does not list parties who employed the enterprise to acquire properties for themselves. They are
listed under 3. Above)
Carol Lee Robinson
Nicole Easterwood Martin wife of/and Lloyd Raymond Martin, III
Jennifer Gay Shiver
Tricia Quinn, wife of/and Christopher Richard John Tebboth
Glenn W. Frechou, Jr. & Marc A. Frechou
Mary Egan Byars
Rachel C. Weary
Henriette Ivy, wife of/and Chuck J. Probst
Mark William Willson
Jaime Mills, wife of/and Evan G. Trisler
Kelley Francis
Julie Brand, wife of/and Richard Larry VanVeckhoven, Jr.
Joseph A. Day
Gustave Cheshire
Cynthia Hale, wife of/and Gregory Dale Crain.
Andrea Smith, wife of/and John George Lampo
David Karl Plauche
I. Current lenders who hold mortgages which may not be able to be enforced against these
-6-
17-30519.709
properties with bad titles due to the actions of William M. Magee and the enterprise.
Wells Fargo Bank, NA
Loancity
Hibernia National Bank (now Capital One Bank)
Washington Mutual Bank, FA
United States Small Business Administration
America’s Wholesale Lender (Countrywide Home Loans)
America One Finance, Inc.
Homecomings Financial, LLC
NOLA Lending Group, LLC
Standard Mortgage Corporation
Fidelity Homestead Association
IberiaBank
Central Progressive Bank
M & T Bank
Mortgage Electronic Registration Systems, Inc.
FDIC (successor to the FSLIC, Receiver for Alliance Federal Savings and Loan Association)
J. Current guarantors of funds loaned through the mortgagees listed above
United States Small Business Administration
FDIC as guarantor for the Federal Banking Industry
Federal Housing Administration
Federal Housing Finance Agency (Conservator for Fannie Mae & Freddie Mac)
-7-
17-30519.710
U.S. Department of the Treasury
K. National title insurers issuing policies covering the titles and mortgages as listed above.
First American Title Insurance Company
Fidelity National Title Insurance Co., Inc.
A B C Title Insurance Company and any and all unknown title insurance companies.
After bringing this matter to the attention of Ethics Counsel and the United States District
Courts for the Eastern District of Louisiana, undersigned counsel gave notice to over fifty mortgage
companies, financial institutions, and title companies in St. Tammany Parish, as well as to the FDIC,
the Treasury Department, the Internal Revenue Service, and the FDIC. Each of these agencies and
financial institutions received the extensively developed information and documentation uncovered
over the past two years by the team of which Mr. Gates was an original member.
The information and documentation given to the other law enforcement agencies is identical
to that given to Mr. Caldwell and his office, to help the State of Louisiana recover property
belonging to it and stolen by the Magee RICO Enterprise.
II. The Left Hand—Defending the Certain Judges Against Ex Parte & Other Violations
Now representing these certain judges and protecting its against having to testify in federal
action involving Hobbs Act allegations. The Attorney General, as the chief law enforcement officer
for the state, in light of the admitted ex parte contacts between Judge Badeaux and Sheriff’s Counsel
Chuck Hughes, also has a conflict in representing these judges, who may also have violated both the
Canons of Judicial Ethics and other ethical and possibly state and federal violations.
III Created by Constitution—Check the Constitution & Impartiality at the Door
Article IV: Executive Branch, of the Louisiana Constitution creates and empowers the Office
-8-
17-30519.711
of the Attorney General. It mandates that:
8. Attorney General; Powers and Duties
Section 8. There shall be a Department of Justice, headed by the attorney general, who shall
be the chief legal officer of the state. The attorney general shall be elected for a term of four
years at the state general election. The assistant attorneys general shall be appointed by the
attorney general to serve at his pleasure.
As necessary for the assertion or protection of any right or interest of the state, the attorney
general shall have authority (1) to institute, prosecute, or intervene in any civil action or
proceeding; (2) upon the written request of a district attorney, to advise and assist in the
prosecution of any criminal case; and (3) for cause, when authorized by the court which
would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or
intervene in any criminal action or proceeding, or (b) to supersede any attorney representing
the state in any civil or criminal action.
The attorney general shall exercise other powers and perform other duties authorized by
this constitution or by law.
In no instance, does the Constitution give the Attorney General or his office the authority to
intervene on behalf of individual judges in a matter arising under federal law or otherwise, especially
in a instance where one of the named judges has already admitted to having illegal ex parte contacts
and conversations with counsel for the Sheriff which are at issue in the depositions and testimony
already do and further threaten to cause irreparable injury to Gates’s constitutional rights are
articulated by the United States Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976).
-9-
17-30519.712
Legal Department - Suite 106 served all counsel: 10 May 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-10-
17-30519.713
17-30519.714
17-30519.715
17-30519.716
17-30519.717
17-30519.718
17-30519.719
17-30519.720
17-30519.721
17-30519.722
17-30519.723
17-30519.724
17-30519.725
17-30519.726
17-30519.727
17-30519.728
17-30519.729
17-30519.730


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************************* JURY TRIAL
OPPOSITION TO MOTION TO QUASH DISTRICT ATTORNEY’S

AND SHERIFF’S MOTION TO QUASH SUBPOENAS DUCES TECUM
Counsel moves the Court to deny District Attorney Walter Reed’s Motion to Quash the
Subpoena Duces Tecum as District Attorney Walter Reed, ADA Nick Noriea, & Sheriff Jack Strain
have refused to acknowledge Gates’s right to the public documents, electronic data, communications,
and other information and records identified in the subpoenas which are the subject matter of both
the prosecution in the 22nd Judicial District Court as well as the matter in this Court.
Last month, the United States Supreme Court in Connick v. Thompson, [No.09 -571] again
identified the Brady violations, 553 F. 3d 851, that arise when a district attorney or other law
enforcement agencies hide, destroy, or refuse to provide for inspection, any evidence which might
allow a citizen and counsel to prepare for and defend against charges brought against him.
Although Thompson relied on a “single-incident” liability, the Court itself confirmed the
greater and broader obligations mandated of District Attorneys and other law enforcement agencies
by the United States Supreme Court in Brady and its progeny. Brady requires the District Attorney
and the Sheriff to produce and reveal exactly the same information, electronic data, public records,
and other potential evidence as set forth in the subpoenas which both the District Attorney & Sheriff
-1-
17-30519.731
would quash.
The Court should deny the District Attorney’s and the Sheriff’s Motion to Quash these
subpoenas duces tecum and order the these defendants to produce the documents and evidence
subpoenaed. These documents and evidence are necessary for the prosecution of this matter and for
Gates’s defense in state court.
In the alternative, the Court should identify all documents, evidence, and electronic data to
which Gates’s is entitled and should order these defendants to produce those immediately.
Legal Department - Suite 106 served all counsel: 10 May 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.732


*
*
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*
************************* JURY TRIAL

FOR CHRONOLOGY WITH SUPPLEMENTAL
THREATENING DOCUMENT FROM ADA NICK NOREIA
Please find the document omitted from the recent pleading, which ADA Nick Noriea
emailed to counsel and threatening Gates with arrest if he did not appear for a trial which the
District Court had not set. In fact, neither Division “I” nor newly assigned Division “C” has set a
trial for 21 April 2011.
As the letter reveals, ADA Noriea threatened Gates with arrest if he did not appear for an
April 21 trial which neither Division of the Court had acknowledged or set. In fact, on 14 April
2011 Judge Badeaux instructed counsel and Gates that there were no dates set as he was recusing
himself from the case.
And Judge Badeaux also informed counsel and Gates [through the clerk in open court]
that he did not have to appear until given further, formal notice by the Clerk of Court. Noriea’s
threat to have Gates arrested is contrary to what the Court itself has decided.
Noriea’s attempt to manipulate the Court is contrary to the actions taken by the Court
Page 1 of 2
17-30519.733
itself. As well, it exemplifies the irreparable injuries Gates has suffered in the state court action.
Attached is the letter from ADA Nick Noriea, which I failed to attach to the initial
pleading.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
Page 2 of 2
17-30519.734
17-30519.735


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************************* JURY TRIAL
FOR CHRONOLOGY WITH THIRD SUPPLEMENTAL
DOCUMENT FROM ADA NOREIA TO SET TRIAL WITHOUT LEAVE
Please find the documents omitted from the recent pleadings, in which ADA Nick Noriea
notifies that he has set new trial dates—without consulting each Court or counsel—and that all
parties need to bring Mr. Gates to trial on those days, or be subject to subpoena.
Again, neither the Courts themselves or the Clerk ever confirmed any of the dates Mr.
Noriea selected himself. Nor was counsel or Mr. Gates ever notified that the Courts were
allowing Mr. Noriea to set dates in their Divisions.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Page 1 of 2
17-30519.736
Facsimile: 888.577.8815
Page 2 of 2
17-30519.737
17-30519.738
17-30519.739
17-30519.740
SHANE M. GATES CIVIL ACTION NO. 07-cv-06983
SHERIFF RODNEY “JACK” STRAIN,

IN HIS OFFICIAL AND INDIVIDUAL
CAPACITY; ET AL
FILED:________________________ ___________________________
DEPUTY CLERK
MOTION TO ENROLL
The defendants, District Attorney Walter Reed, in his official capacity, and St. Tammnay
District Attorney’s Office move this Honorable Court to enroll Ralph S. Whalen, Jr. as additional
counsel of record. The defendant has retained undersigned counsel in the above-captioned
matter.
WHEREFORE, the foregoing considered, it is prayed that this motion be granted.
s/Ralph S. Whalen, Jr.

Ralph S. Whalen, Jr.
Bar No. 8319
2950 Energy Centre
1100 Poydras Street
(504) 525-1600
Fax (504)525-1600
ralphswhalen@ralphswhalen.com
17-30519.741
I hereby certify that on May 11, 2011, I electronically filed the foregoing with the Clerk
of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel
of record.

RALPH S. WHALEN, JR.
Bar No. 8319
2950 Energy Centre
1100 Poydras Street
(504) 525-1600
Fax (504)525-1600
17-30519.742
SHERIFF RODNEY “JACK” STRAIN,

CAPACITY; ET AL
FILED:________________________ ___________________________
DEPUTY CLERK
ORDER
IT IS ORDERED that the Motion to Enroll is hereby granted and that Ralph S. Whalen,
Jr. be and hereby is enrolled as additional counsel of record for defendant Walter Reed, in his
official capacity, and for the St. Tammany District Attorney’s Office.
New Orleans, Louisiana this day of May, 2011.
17-30519.743
MINUTE ENTRY
DUVAL, J.
MAY 11, 2011
VERSUS NO. 07-6983
RODNEY JACK STRAIN, ET AL SECTION: K (2)
ORAL ARGUMENT
MOTION to Reopen 42:1983 Action and Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany by Shane M. Gates, filed 3/17/11, doc. 84.
CASE MANAGER: SHEENA DEMAS

COURT RECORDER: BONNIE HEBERT
APPEARANCES: Daniel Abel, Pascal Calogero, Jr., Mark Hanna, Kathryn Landry,
Richard Simmons, Jr. & Byron Kitchens
Court begins at 2:37 p.m. Case called; all present and ready.
Oral argument by parties.
Deft, Charles Hughes, Jr. offer exhibit Hughes #1, no objs., admitted.
This matter is taken under ADVISEMENT.
Court adjourns at 4:17 p.m.
JS-10 (1:39)
17-30519.744
AO 187(Rev. 4/82) EXHIBIT LIST
SHANE M. GATES VS. RODNEY JACK STRAIN, DISTRICT COURT

ET AL EASTERN DISTRICT OF
LOUISIANA
PLAINTIFF’S ATTORNEY DEFENDANT’S DOCKET NUMBER

ATTORNEY
CA 07-6983 “K”(2)
Mark Hanna
Daniel Abel & Pascal Calogero, Jr. Kathryn Landry TRIAL DATE(S)
Richard Simmons, Jr. &
Byron Kitchens May 11, 2011
PRESIDING JUDGE COURT RECORDER CASE MANAGER
STANWOOD R. DUVAL, JR. BONNIE HEBERT SHEENA DEMAS
PLTF DEFT. DATE MARKED ADMITTED DESCRIPTION OF EXHIBITS
NO. NO. OFFERED

Hughes 5/11/11 X X State of LA vs. Gates Trial Delays Chart
#1
*Include a notation as to the location of any exhibit not held with the case file or not available
because of size.
Page 1 of 1 Pages
17-30519.745
SHERIFF RODNEY “JACK” STRAIN, MAGISTRATE 2

CAPACITY; ET AL
FILED:________________________ ___________________________
DEPUTY CLERK
MOTION TO ENROLL ADDITIONAL COUNSEL OF RECORD
The defendants District Attorney Walter Reed, in his official capacity, and St. Tammany
District Attorney’s Office, through undersigned counsel, move this Honorable Court to enroll
Ralph S. Whalen, Jr. as additional counsel of record
WHEREFORE, defendants District Attorney Walter Reed, in his official capacity, and
St. Tammany District Attorney’s Office respectfully request that Ralph S. Whalen, Jr. be enrolled
as additional counsel.
s/Kathryn W. Landry
Kathryn W. Landry, Bar No. 19229
P.O. Box 82659
225-766-0023
17-30519.746
I hereby certify that on May 13, 2011, I electronically filed the foregoing with the
Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to
all counsel of record.
s/Kathryn Landry
KATHRYN LANDRY
17-30519.747

CAPACITY; ET AL
FILED:________________________ ___________________________
DEPUTY CLERK
ORDER
New Orleans, Louisiana this day of May, 2011.
17-30519.748

CAPACITY; ET AL
FILED:________________________ ___________________________
DEPUTY CLERK
ORDER
New Orleans, Louisiana this 16thday of May, 2011.
17-30519.749

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTIONS
MOTIONS: (1) Defendants’ Motion to Quash Subpoena Duces Tecum and/or

O R D E R E D:
(1), (2), (3) : CANCELLED. Oral argument previously set before me on May 25, 2011
concerning the referenced motions to quash is hereby cancelled to be reset, if appropriate,
after Judge Duval has ruled upon plaintiff’s motion to reopen the case, Record Doc. No. 84.
New Orleans, Louisiana, this 24th day of May, 2011.

17-30519.750

VERSUS NO. 07-6983
ORDER AND REASONS
Before the Court is a “Motion to Re-Open 42 U.S.C. § 1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany.”
(Doc. 84). Having held oral argument on May 11, 2011, and having reviewed the pleadings,
memoranda, exhibits and the relevant law, the Court finds for the reasons to follow, that the
motion must be denied.
Background
Shane M. Gates (“Gates”) was arrested on November 16, 2006, for (1) obstruction of a
highway, (2) driving while intoxicated1; (3) having an open container; (4) reckless operation and
(5) resisting arrest. The circumstances surrounding the arrest are hotly contested and form the
basis for this § 1983 suit because he contends that he was wrongfully and brutally beaten in and
around the face by sheriff deputies at that time. Gates has sued a litany of defendants, including
Sheriff Rodney Jack Strain (“Strain”) in his official and individual capacity; the St. Tammany
Parish Sheriff’s Office; District Attorney Walter P. Reed in his official capacity; St. Tammany
District Attorney’s Office; Attorney Charles M. Hughes, Jr.; Sheriff Deputy Nathan Miller;
Sheriff Deputy Roger Gottardi; and Sheriff Deputy Brian Williams.
1
A .28 blood alcohol level reading was obtained which plaintiff maintains is inaccurate and wrongfully
procured..
17-30519.751
The circumstances surrounding this arrest are outlined in plaintiff’s Complaint for
Damages (Doc. 3). Gates alleges there that he left a car dealership in Slidell, Louisiana and was
on Interstate Highway 12 returning home to Covington, when he noticed a police car coming up
behind him. He pulled over to the shoulder and stopped his car. He claims to have gotten out of
the car and was thrown on the hood by St. Tammany Parish Sheriff Deputy Nathan Miller
(“Miller”). Plaintiff contends that because the hood was hot, he backed off of it, causing the
Miller to pepper spray him. Gates claims he was then handcuffed which apparently were not
removed in the ensuing fracas. Defendants Sheriff Deputy Roger Gottardi (“Gottardi”) and
Sheriff Deputy Brian Williams (“Williams”) then arrived on the scene, and Gates contends that
Gottardi forced Gates’ head, face and torso onto the hood of the running police car. Gates then
pulled back again to get off the hood of the hot car. Gottardi then threw Gates on the I-12 and
pounded his face into the roadway until he was unconscious.
Gates contends that he then awoke in the Emergency Room at the Louisiana Heart
Hospital. Dr. Bruce Kerry, the ER doctor noted extensive lacerations to the eye and hematomas
caused by a direct blow which eye injury required 27 stitches. There were other face and neck
injuries, mouth and swelling generally. The circumstances surrounding the blood alcohol test
which resulted in the .28 reading are contested as well and apparently occurred while at the
Louisiana Heart Hospital. Eventually, he taken by ambulance to a Mississippi hospital for
treatment.
Gates maintains that the deputies then took a course of action over several months to
fabricate a cover up of the injuries they had inflicted on Gates. Gates alleges that Hughes,
attorney for the Sheriff’s Office and the deputies involved, threatened and was able to have the
17-30519.752
District Attorney file new charges of resisting arrest on the eve of trial which potentially could
defeat the challenged civil rights claim. Gates contends that an offer was made for there to be a
settlement and release of the § 1983 claim for $10,000. (Rec. Doc. 84-2 at 8, Transcript of
Proceedings, May 10, 2010). In response, Charles M. Hughes, Jr. (“Hughs”), the Sheriff’s
attorney, maintains that Gates’ attorney was trying to blackmail the Sheriff’s office into dropping
the criminal charges by virtue of the amount of damages alleged and that Hughes had never
made any settlement offer to Abel. (Rec. Doc. 84-2 at 85 Transcript of Proceedings, May 10,
2010). Nonetheless, in Hughes’ closing testimony at that hearing, he admitted to the possibility
of a hold harmless agreement having been discussed between him and the Assistant District
Attorney Gracianette. Hughes posited that it would have been Gracianette who would not have
agreed to a reduction of the charges without a hold harmless clause. Hughes further admitted
that in this discussion Mr. Gates’ demand for money was a consideration. Thus, Gates contends
that Hughes actively participated in having the resisting arrest charge added.
Based on this testimony and these actions, Gates alleges that these actions taken together
constitute violations of the Hobbes Act2 in that the defendants sought to extort out of Gates the
relinquishment of his claims against the St. Tammany defendants in exchange for his abandoning
his constitutional rights under § 1983. He maintains that he does not seek or base his civil
claims on the Hobbs Act, but that it is proof that the federal court must step in to prevent further
violation of Gates’ constitutional rights and enjoin the criminal prosecution. This contention
turns on the fact that Gates was initially charged by the St. Tammany District Attorney’s Office
2
Hobbs Act, 18 U.S.C. § 1951 “imposes criminal sanctions on those who affect interstate commerce by
extortion. See 18 U.S.C. § 1951(a). Extortion is defined as ‘the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.’” Id.
§ 1951(b)(2).” United States v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002).
17-30519.753
only with aggravated flight (felony) and DUI (which can be enhanced to a felony) and only after
the actions outlined above, ten months later, on the eve of trial and after a civil suit was
threatened by Gates’ attorney ( who is also his step-father), a new bill of information issued
which then included resisting arrest which under the jurisprudence of Heck v. Humphrey, 512
U.S. 477 (1994)3 and its progeny might act as a complete bar to plaintiff’s § 1983 claim if these
injuries were the direct result of his having resisted the arrest.
As such, Gates has moved this Court to enjoin the state criminal proceeding claiming that
these facts underscore the unconstitutionality of the anticipated trial. As further “proof”, Gates
contends that there is evidence of Hughes and St. Tammany Judge Badeaux having ex parte
discussions about criminal prosecutions. He points to the fact that Hughes had something to do
with the sheriff deputies sending a letter complaining of their victimization in the subject arrest.
Gates contends that dispatch tapes, transcripts, and medical records have been altered and
destroyed. One assistant district attorney has refused to identify two officers who are named by
number on the dispatch tapes and transcript as being at the scene of the arrest. In addition
Assistant District Attorney for St. Tammany Parish Julie Knight is the wife of one of the officers
involved in the arrest and worked on the case for five years and is alleged to be behind the
fabrication of evidence in the matter. Based on the foregoing, the Court will now analyze
whether there is a legal basis for the relief requested.
3
Heck stands for the proposition:
that a plaintiff who has been convicted of a crime cannot recover damages for an alleged violation
of his constitutional rights if that “violation arose from the same facts attendant to the charge for
which has was convicted, unless he proves ‘that his conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invoalid by a state tribunal authorized to
make such determination or called into question by a federal curt’s issuance of a writ of habeas
corpus.’” Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008) citing Heck, 512 U.S. at 486-87
17-30519.754
ANALYSIS
I. THE ANTI-INJUNCTION ACT, YOUNGER AND SHAW
The Anti-Injunction Act, 28 U.S.C. § 2283 provides: “A court of the United States may
not grant an injunction to stay proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aide of its jurisdiction, or to protect or effectuate its
judgments.” This statute recognizes the need for comity in a federal system “giving
consideration to the sovereign status of separate state governments.” Hobbes v. Thompson, 448
F.2d 456, 463 (5th Cir. 1971). An express exception to the anti-injunction statute is found the
civil rights statute 42 U.S.C. § 1983. Mitchum v. Foster, 407 U.S. 225, 242 (1972); Shaw v.
Garrison, 467 F.2d 113, 114 (5th Cir. 1972). “The very purpose of § 1983 was to interpose the
federal courts between the States and the people, as guardians of the people’s federal rights–to
protect the people from unconstitutional action under color of state law, ‘whether that action be
executive, legislative, or judicial.’”Mitchum, 704 U.S. at 242 citing Ex Parte Commonwealth of
Virginia, 100 U.S. 339, 346 (1879). However, that exception is not absolute; criteria have been
established for exercising that exception.
The contours of the national policy forbidding federal courts to stay or enjoin pending
state court proceedings except under special circumstances placed upon its use were elucidated
in Younger v. Harris , 401 U.S. 37 (1971) and its companion cases. Shaw, 467 F.2d at 119. As
the Fifth Circuit, reviewing these cases, noted:
Younger and its accompanying opinions, while significant, do not

represent startling new doctrines with respect to the proper role of federal court in
our system of federalism. . . .
The opinion does not purport to extend beyond this traditional realm of
comity and require across-the-board abdication of federal decision-making power
in all manner of cases.
17-30519.755
Hobbes , 448 F.2d at 465. Thus, the Supreme Court “stressed the importance of showing
irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however,
the Court also made clear that in view of the fundamental policy against federal interference with
state criminal prosecution, even irreparable injury is insufficient unless it is ‘both great and
immediate.’” Shaw, 467 F.2d at 119 citing Younger, 401 U.S. at 46.
The Supreme Court in Younger continued:
Certain types of injury, in particular, the cost, anxiety, and inconvenience of

having to defend against a single criminal prosecution, could not by themselves
be considered ‘irreparable’ in the special legal sense of that term. Instead, the
threat to the plaintiff’s federally protected rights must be one that cannot be
eliminated by his defense against a single criminal prosecution. See, e.g., Ex
parte Young, [209 U.S. 123, 145-47 (1908).
Id. (emphasis added).
Furthermore, the Fifth Circuit then made clear that a showing of bad faith prosecution or
prosecution for the purpose of harassment “is equivalent to a showing of irreparable injury for
purposes of the comity restraints defined in Younger, because there is a federal right to be free
from bad faith prosecutions. Irreparable injury need not be independently established.” In such
an instance, the irreparable injury is not merely inferred, for purposes of Younger, it is
conclusively shown by a showing of bad faith or harassment. Shaw, 467 F.2d at 120 (emphasis
added). Thus, it is fair to state that where state prosecution is instituted by state officials in good
faith, injunctive relief is not available unless irreparable injury to the state court defendant is
shown. However, “should the state court defendant be able to establish that the state prosecution
has been instituted in bad faith and for purposes of harassment”, irreparable injury need
17-30519.756
not be shown provided there is a basis for federal jurisdiction. Shaw, 467 F.2d 121, n. 10
(emphasis added).
The threshold for a finding of sufficient irreparable injury based on bad faith and
harassment is significant as the facts in Shaw demonstrate. There, District Attorney Jim
Garrison had prosecuted Clay Shaw for conspiracy in the death of President Kennedy on
extremely weak evidence culminating with Garrison’s “star” witness taking the Fifth on the
stand, a circumstance that the Fifth Circuit found within the realm of Garrison’s knowledge.
Furthermore, other misdeeds outlined in detail in the opinion occurred during the initial trial.
Shaw eventually took the stand in his own defense maintaining that he did not commit
the crime. After a forty-day trial, Shaw was acquitted in fifty-five minutes of deliberation. The
next working day, Garrison signed an information charging Shaw with the crime of perjury.
Given the facts and circumstances of such a witch hunt, the Fifth Circuit affirmed the district
court’s enjoining Garrison from further prosecution of the case and found that the perjury charge
were brought in bad faith and for purposes of harassment.
The facts in the instant case do not meet such a threshold. In the case at bar, the
gravamen of plaintiff’s claims is that of prosecutorial bad faith–the late addition of a resisting
arrest charge on the eve of trial to potentially bar Gates’ §1983 claim as well as allegations that
the evidence surrounding the charges has been manufactured and altered. All of these “facts”
clearly can be presented in Gates’ defense and will speak directly to a jury’s decision as to guilt
or innocence on the charges brought. In addition, Gates’ contention that the Hobbs Act
violations (the alleged “extortion” of forcing Gates to settle for $10,000 with a full release in
17-30519.757
order for the charges to be dropped) is proof of bad faith necessary to enjoin the prosecution of
the crimes with which Gates is charged, is simply not correct.
Relying on the United States Supreme Court decision in Newton v. Rumery, 480 U.S. 386
(1987), the court in Grant v. John Hancock Mut. Life Ins. Co., 183 F. Supp.2d 344 (D. Mass.
2002), wrote:
The United States Supreme Court has held that a prosecutor may appropriately
negotiate an agreement whereby criminal charges are dropped in exchange for a
release of § 1983 claims against the city and municipal officials. As the Court
held in Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987),
upholding a “release-dismissal agreement” in light of a claim that was inherently
coercive, “[i]n many cases a defendant’s choice to enter into a release-dismissal
agreement will reflect a highly rational judgment that the certain benefits of
escaping criminal prosecution exceed the speculative benefits of prevailing in a
civil action.” Id. at 394. As to the prosecutor’s motivation, the Court refused to
assume that a prosecutor would bring frivolous charges or dismiss meritorious
charges. Id. at 396. Rather, the Court noted that a release of claims could serve
the public interest of not having to devote time and resources to the defense of
litigation. Id. at 395. Moreover the Court recognized that prosecutors must make
difficult decisions in deciding who and when to prosecute, and that judicial
deference to such prosecutorial decisions is warranted. . . Since the Supreme
Court has found that such release-dismissal agreements are not per se
improper, much less unconstitutional, the offer of such an agreement cannot
possibly be construed as unconstitutional. Therefore, Grant cannot base his
§ 1983 claim on the alleged offer to drop the criminal complaint in exchange
for a civil release.
Grant, 183 F. Supp. 2d at 360 (emphasis added).
Likewise, in Jeannite v. City of Haverhill, 2006 WL 1806410 (D. Mass. June 30, 2006),
a former police chief offered to ask District Attorney’s office to dismiss charges against plaintiff
and place him in a diversion program, if plaintiff promised not to bring a civil rights claim
against the City. Plaintiff’s attorney refused the offer and used this a the basis for a charge of
unconstitutional coercion. The district court there relying on the language noted above in
17-30519.758
Newton and Grant, rejected plaintiff’s claim, stating “The same logic applies to this case, in
which an offer was made and never accepted.” Id. at *3.
Thus, there is not enough evidence of “bad faith” present such that this district court can
invoke its power under the express exception to the Anti-Injunction Act carved out by§ 1983 as
explained in Mitchum. The resisting arrest charge was issued from the very beginning; it was
not manufactured like the perjury charge in Shaw. The resisting arrest charge was initially not
“accepted” by the District Attorney’s office allegedly because it is a misdemeanor charge. With
the inclusion of the aggravated flight charge which is a felony and DUI, which can be enhanced
to a felony, the District Attorney contends that he simply chose not to charge that crime initially.
It is clear that Hughes (the attorney for the Sheriff’s Office) brought up the fact that the resisting
arrest charge should not be ignored and instigated the writing of a “victim letter” by the deputy
sheriffs which culminated in a new Bill of Information. However, the underlying charge was not
manufactured from whole cloth and may not be unfounded. That decision awaits a trial. What
cannot be gainsaid is that Gates had received a citation for “Resisting an Officer” by Gottardi.
Clearly, as noted, the issues raised by plaintiff surrounding the arrest and alleged manufacturing
of evidence can be addressed in the context of a defense to the criminal charges at a trial on the
merits.
At oral argument, a suggestion was made that at a minimum, the stay that is in place with
respect to this case should be lifted and that this matter should be allowed to proceed to trial
without waiting for a decision on the underlying criminal charges as is the normal course.
However, pretermitting the issue of government officials’ absolute or qualified immunited as a
threshold issue, the Court finds that lifting the stay in this matter would create an impossible
17-30519.759
imbalance with respect to discovery. Clearly, while the criminal matter is pending, Gates would
be able to engage in discovery as to all the defendants but would have the right to invoke his
Fifth Amendment right in discovery addressed to him. This course of action is untenable.
Accordingly,
IT IS ORDERED that the “Motion to Re-Open 42 U.S.C. § 1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany.”
(Doc. 84) is DENIED.
New Orleans, Louisiana, this 11th day of July, 2011.

10
17-30519.760

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTIONS
MOTIONS: (1) Defendants’ Motion to Quash Subpoena Duces Tecum and/or

O R D E R E D:
(1), (2), (3) : GRANTED IN PART, subject to the order contained herein. The subpoenas
are QUASHED. In light of Judge Duval’s order denying plaintiff’s motion to reopen the
case, Record Doc. No. 121, this case remains stayed, and no discovery will be permitted.
Some movants have requested an award of fees and expenses pursuant to Fed. R.
Civ. P. 26(c)(3) and/or 45(c)(1). However, none of the motions contain evidence sufficient
to set the amount of any such award. Accordingly, IT IS ORDERED that any party who
persists in seeking a sanctions award in connection with these subpoenas must file a new
motion, no later than July 20, 2011, noticed for submission and fully supported as required
in Local Rule 54.2, together with any affidavit necessary to establish the amount of the
requested award.
11th
New Orleans, Louisiana, this day of July, 2011.

CLERK TO NOTIFY: UNITED STATES MAGISTRATE JUDGE
17-30519.761

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
D. A. Walter P. Reed, in his official capacity * Section: Judge S. Duval
Attorney Charles M. Hughes, Jr; * Magistrate: J. Wilkenson
John Doe Nos.1-5; *
Defendants *
**************************
Motion Requesting The Court

To Add 28 U.S.C. § 1292(b)
Language for Interlocutory Appeal
Mr. Gates moves the Court to add to its order of 11 July 2011 [Rec.d. 121], the 28 U.S.C.
§ 1292(b) language requisite to applying to the United States 5th Circuit Court of Appeal for
permission to file an interlocutory appeal under FRAP Rule 5.
Prior to filing a petition for the interlocutory appeal, the order at issue from the district
court must contain the language articulated in § 1292(b) as discussed in the memorandum in
support of this request.
17-30519.762
Legal Department - Suite 106 served all counsel: 12 July 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
17-30519.763

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Memorandum in Support of
Motion Requesting Court
To Add 28 U.S.C. § 1292(b)
Language for Interlocutory Appeal
Mr. Gates moves the Court to add to Its Order of 11 July 2011 [Rec.d. 121], the 28
U.S.C. § 1292(b) language requisite to his applying to the United States 5th Circuit Court of
Appeal for permission to file an interlocutory appeal under FRAP Rule 5.
Prior to filing a petition for the interlocutory appeal, the order at issue from the district
court must contain the language articulated in § 1292(b): [A district court should note that its
statement must say that its] “order involves a controlling question of law as to which there is
-1-
17-30519.764
substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so state in writing in such
order.” [See: § 1292(b)].
This matter involves a controlling question of law regarding which there is a substantial
ground for difference of opinion regarding the issue as to: (1) the law in this Circuit governing
how the Courts must examine the facts in making a determination as to irreparable injuries to Mr.
Gates’s constitutional rights and (2) what the District Court understood the law to provide and
therefore how It applied those provisions in making Its Order [Rec. d. 121], which Gates would
now appeal.
Gates avers that the a clarification from the Circuit Court as to what Its prior rulings mean
within the circumstances and facts set forth in this case will not only support the conclusion that
defendants have caused irreparable injury to his constitutional rights, but will also clarify how the
5th Circuit’s prior holdings must be understood and therefore applied. Such clarification by the 5th
Circuit of its prior rulings during the appeal process, “may materially advance the ultimate
termination of the litigation . . . . [See: § 1292].
The 5th Circuit has not decided many cases regarding such matters, therefore Its
consideration on appeal which clarify the substantial difference in opinion which exists regarding
the application and exemptions to the Abstention Doctrine especially as set forth in the Younger,
its progeny and the jurisprudence from which exceptions arise.
-2-
17-30519.765
Authority and Argument
The 5th Circuit Court of Appeals has jurisdiction over interlocutory decisions, such that
Gates can petition the Circuit for Its review of the District Court’s Order [Rec. d. 121]. The
following rules govern such appeals.
28 U.S.C. § 1292. Interlocutory decisions
(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals
shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of Guam, and the District
Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct
review may be had in the Supreme Court;
(b) When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the litigation, he shall so state
in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof shall so order. As well, Rule 5 governs
the manner by which such appeals are requested.
-3-
17-30519.766
Rule 5. Appeal by Permission
(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within the court of appeals’
discretion, a party must file a petition for permission to appeal. The petition must be filed with
the circuit clerk with proof of service on all other parties to the district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing
the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a
notice of appeal.
(3) If a party cannot petition for appeal unless the district court first enters an order
granting permission to do so or stating that the necessary conditions are met, the district court
may amend its order, either on its own or in response to a party’s motion, to include the required
permission or statement. In that event, the time to petition runs from entry of the amended order.
Conclusion
Gates avers that the a clarification from the Circuit Court as to what Its prior rulings mean
within the circumstances and facts set forth in this case will not only support the conclusion that
defendants have caused irreparable injury to his constitutional rights, but will also clarify how the
5th Circuit’s prior holdings must be understood and therefore applied. Such clarification by the 5th
Circuit of its prior rulings during the appeal process, “may materially advance the ultimate
termination of the litigation . . . . [See: § 1292].
Gates asked the Court to add to Its Order of 11 July 2011, the language requisite for him
to petition the United States 5th Circuit Court of Appeal for interlocutory review.
-4-
17-30519.767
Legal Department - Suite 106 served all counsel: 12 July 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-5-
17-30519.768
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT:
Gates Motion to add the following language to the Court’s Order of 11 July 2011 and to
Petition the U.S. 5th Circuit for Interlocutory Review is GRANTED.
The requisite language shall be added to the Court’s Order [Rec. d.121].
Ordered this ______ of August 2011. New Orleans, LA
____________________________
District Court Judge
-1-
17-30519.769

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
NOTICE FOR SUBMISSION
This matter shall be submitted on or before 24 August 2011 to the Hon. Judge Stanwood
Duval at 9:00 A.M. in Courtroom 352 of the United States District Court for the Eastern District
of Louisiana, New Orleans, Louisiana.
Respectfully,
s/ Daniel G. Abel
Daniel G. Abel
[La. Bar No. 8348]
-1-
17-30519.770
17-30519.771
17-30519.772
17-30519.773

14th July
17-30519.774

NO. 2:07-CV-06983-SRD-JCW

STRAIN, ET AL. JR.
MOTION FOR AWARD OF ATTORNEY FEES
Childress, William J. Crain, and William “Rusty” Knight, Judges of the 22nd Judicial District
Court, who move for an award of attorney fees incurred in their Motion to Quash Subpoenas
(Rec. Doc 99) for the reasons advanced in the contemporaneously filed Memorandum in Support
of Motion for Award of Attorney Fees, pursuant to Fed. R. Civ. P. Rule 45(c)(1).
WHEREFORE, Movers pray that this Motion be granted and that they be awarded
reasonable attorney fees incurred in bringing their Motion to Quash.

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
17-30519.775
Attorneys for the Honorables Raymond Childress, William

J. Crain, and William “Rusty” Knight, Judges of the 22nd
Judicial District Court
I hereby certify that on the 20th day of July, 2011, a copy of the foregoing Motion for
Award of Attorney Fees was filed electronically with the Clerk of Court using the CM/ECF
system. Notice of this filing will be sent to CM/ECF participants by operation of this court’s
electronic filing system.


Hospital, LLC
Mark Emerson Hanna

DAVID G. SANDERS
17-30519.776


STRAIN, ET AL. JR.
MOTION FOR AWARD OF ATTORNEY FEES
Plaintiff issued subpoenas to four judges of the Twenty-Second Judicial District Court for
deposition and to produce documents.
At the time the subpoenas were issued, this case had been stayed (Rec. Doc. 81) and
remained stayed through the proposed deposition dates. Subsequently, Judge Duval denied
plaintiff’s motion to reopen the case (Rec. Doc. 121).
The Court granted the motion to quash (Rec. Doc. 122) on the grounds that the case
remained stayed so no discovery will be permitted. The order further provided that any party
seeking a sanctions award must file said motion by July 20, 2011.
Under Fed. R. Civ. P. Rule 45(c)(1), a party violating that rule is subject to an appropriate
sanction, which may include reasonable attorney fees.
Attached is a contemporaneous time record reflecting the date, time involved, and nature
of the services performed, as required by Local Rule 54.2. This record reflects that $741.00 was
incurred as attorney fees related to the motion to quash the subpoenas.
17-30519.777
Movers request that this Court, pursuant to Fed. R. Civ. P. Rule 45(c)(1) award them the
sum of $741.00 as an appropriate sanction for plaintiff’s violation of Fed. R. Civ. P. 45,
including seeking discovery in a matter stayed by order of this Court.

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192

17-30519.778
I hereby certify that on the 20th day of July, 2011, a copy of the foregoing Memorandum
in Support of Motion for Award of Attorney Fees was filed electronically with the Clerk of
Court using the CM/ECF system. Notice of this filing will be sent to CM/ECF participants by
operation of this court’s electronic filing system.


Hospital, LLC
Mark Emerson Hanna


DAVID G. SANDERS
17-30519.779
Department of Justice Billing Report
jcase Name: GATES SHANE M
111
ORM No. : AG40RMCR I
Note: These are all the billable time entries for GATES SHANE M.
Sanders, David
0.20 Order on Motion to Quash and other pending motions ; Denicola, Bridget Benoit, Esq.
calendar uocoming hearing date
Print Date: 7/20/2011 17-30519.780

Page 1 of2
Department of Justice Billing Report
I Case Name: GATES SHANE M ORM No. : AG40RMCR I
Note: These are all the billable time entries for GATES SHANE M .
II Pleadings ICola, J::Hidget Benoit, Esq.

04/25/2011 L21 0 Pleadings 4 .10 11 5.00 $471.50 Research and draft MTQ Sanders, David G., Esq. N/A
04/25/201 1 A I 07 Communicate (other outside coun 0.30 115.00 $34.50 TIC Stem-letter to Abel and MTQ Sanders, David G., Esq. N/A
04/25/201 1 Llll Commun icate (Other) 0.30 115.00 $34.50 Letter to Abel-withdraw subpoenas or MTQ Sanders, David G., Esq. N/A
04/ 19/2011 A I 06 Communicate (with client) 0 .50 100.00 $50.00 TC w/ Judge Knight re : subpoena served on him and Denicola, Bridget Benoit, Esq. N/A
-ro .J4J~ -
t . '~rr -1: 74-l~ oo
responding to same
Print Date: 7/20/20 II 17-30519.781

Page 2 of2



STRAIN, ET AL. JR.
To: Shane M. Gates

Through his attorney:
Daniel G. Abel
Legal Department– Suite 106
Metairie, LA 70001
Award Attorney Fees filed by the Honorables Raymond Childress, William J. Crain, Reginald
Badeaux, and William “Rusty” Knight, Judges of the 22nd Judicial District Court, before the
Honorable Joseph C. Wilkinson, Jr., United States Magistrate Judge, United States District
Court, 500 Poydras Street, New Orleans, LA, 70130, on the 10th day of August, 2011, at 11:00
a.m. Pursuant to Local Rule 78.1E this motion shall be determined without oral argument
unless any party desiring oral argument files separate written request for oral argument, or the
court orders oral argument.

ATTORNEY GENERAL
17-30519.782


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192

17-30519.783
I hereby certify that on the 20th day of July, 2011, a copy of the foregoing Notice of
Submission was filed electronically with the Clerk of Court using the CM/ECF system. Notice
of this filing will be sent to CM/ECF participants by operation of this court’s electronic filing
system.

Robert C. Stern Mark Emerson Hanna

Killeen & Stern, PC Bradley, Murchison, Kelly & Shea, LLC
400 Poydras Street 1100 Poydras St., Suite 2700
Suite 1710 New Orleans, LA 70163
New Orleans, LA 70130 Attorney for Defendant,
Co-Counsel for Judge Raymond Childress Sheriff of Orleans Parish
Nancy Brechtel
Cotton, Schmidt & Abbott, LLP
650 Poydras Street
Suite 2810
Attorneys for Defendant, Louisiana
Hospital, LLC

DAVID G. SANDERS
17-30519.784

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
OPPOSITION TO THE ATTORNEY GENERAL’S

MOTION FOR ATTORNEY FEES AS
HE HAS FAILED TO COMPLY WITH THE
REQUIREMENTS OF COURT ORDER NO. 122
AS WELL AS LOCAL RULE 54.2 AND FRCP 45(C)(1)
As the Attorney General has (a) not filed an affidavit with his motion for attorney fees, (b)
has not verified his request as required by Local Rule 54.2 and (c) has not provided the facts
required for a consideration of attorney fees under FRCP 45 (C)(1), the Court should deny the
-1-
17-30519.785
Attorney General’s second bite at the attorney-fee apple.
The First Attempt At A Motion for Attorney Fees
Although the Louisiana Attorney General sought sanctions in his original motion to quash
the subpoenas served on four 22nd Judicial District Court judges about their ex parte contacts and
conversations with representatives of the Sheriff and the District Attorney—once Judge Reginald
Badeaux had already admitted having such ex parte conversation himself—this Court found that the
Attorney General’s motion did not “contain evidence sufficient to set the amount of any award”
[Rec. d.122].
The Court tried to coach the Attorney General along a little by allowing him and the sheriff
to try for attorney’s fees one more time, but the It warned that such motions in federal court must be
“fully supported as required in Local Rule 54.2, together with any affidavit necessary to establish
the amount of the requested award” [Rec.d.122]. The language of Magistrate’s order was clear, but
apparently not clear enough for the Attorney General.
The Second Attempt At A Motion for Attorney Fees
Not only has the Attorney General not submitted an affidavit as required, even the
memorandum in support of his motion does not contain a verified statement of the work performed
“necessary to establish the amount of the award requested”.
Instead, the Attorney General has submitted a print-out from what appears to be a billing
sheet, with all but a few of the hours blotted out with a black marker [Rec.d. 126-2: Exhibit]. The
remaining hours that are visible are hardly legible. And again, nothing on this illegible billing sheet
was verified, explained, or supported under oath by an affidavit. And the total dollar amounts for the
hours reported, are added to the billing sheet by hand. It should not matter since neither the Attorney
-2-
17-30519.786
General nor the judges who were subpoenaed are not entitled to attorney fees under FRCP 45(C)(1).
The Facts Do Not Satisfy The Requirements of FRCP 45
Federal Rule of Civil Procedure 45 (C) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions.
The Attorney General claims attorney fees under FRCP 45 (C)(1), but the judges who were
subpoenaed suffered no loss of earnings nor did they incur any attorney fees, as the Attorney General
was contacted by the Chief Judge in the 22nd JDC who agreed to represent them.
The Rule states that “A party or attorney responsible for issuing and serving a subpoena must
take reasonable steps to avoid imposing undue burden or expense on a person subject to the
subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which
may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to
comply”.
It is the party effected, not the attorneys themselves, who must seek the fees and to do so
they, not the attorneys, must demonstrate that they have incurred the costs of attorney fees. When
there are not fees incurred, there can be no sanctions. Upon information and belief, the Attorney
General did not bill the judges for filing the motion to quash. Nor did the judges incur a loss of
earning as they are salaried employees of the State of Louisiana and are paid the same about whether
they spend two hours a day or ten-and-two hours a day on the bench. But they must prove more than
that. The party seeking fees must prove that the issuance of the subpoenas [or other actions for which
sanctions are sought] were frivolous or done in bad faith. They were neither. Because one of the
judges had already admitted ex parte conversations with counsel for the sheriff and evidence that at
least one other had ex parte conversations with a interested party as well.
-3-
17-30519.787
Judge Badeaux’s Admissions Demand Further Investigation
Prior to recusing himself, Judge Reginald Badeaux admitted that he had ex parte
conversations with Sheriff’s counsel Mr. Hughes about this case. Judge Badeaux also threatened
undersigned counsel during that same closed-door hearing and specifically said that he was going
to have Mr. Hughes sue “you” [undersigned counsel] over a business matter related to his
[Badeaux’s] “girl friend”.
Judge Badeaux was recently publically censured by the Louisiana Supreme Court in another
matter where It found that Badeaux had other ex parte conversations and took action against the
wife, in favor of his friend the husband.
Based on Judge Badeaux’s ready admission to his ex parte conversations, it was and in the
future will not be frivolous to subpoena any other persons who made be presumed to have done the
same. In light of all else that has transpired during this prosecution, it would be irresponsible for
counsel not to question every action by any party which suggests partiality, impropriety, a violation
of the canons of judicial ethics, or criminal activity. As well, the Attorney General’s representation
of these judges shall cause all reasonable persons to further question the integrity of the bench and
bar.
It was and is the position of counsel and Mr. Gates that the Attorney General’s representation
of these judges not only constitutes a conflict of interest but also constitutes constructive ex parte
contacts and conversations with the bench which sits on this matter in state court.
Inherent Conflict By The Attorney General’s Representation
The Attorney General has a real as well as an apparent conflict in representing the District
Judges as it requires the Attorney General—who is the chief prosecutor in all such matters—to have
-4-
17-30519.788
his own ex parte contacts and conversations with the very district court judges whose contacts are
at issue. As the subject matter is in part, the issue of the judges’s ex parte contacts with counsel for
the sheriff and representatives of the district attorney, it is not a conflict the “reasonable person”
could view as impartial. The district attorney and the sheriff are already defendants in this federal
civil rights action, arising from their conduct during the prosecution of Mr. Gates’s case.
The Attorney General and his office is a department separate and distinct from that of the
Judiciary and already in this instance one member of the judiciary has already admitted to ex parte
conversations as to this case with counsel for the Sheriff and as a result of that contact has recused
himself from the case.
While the Attorney General argues that judges are not required to disclose their opinions or
methods of determining what actions they should or will take, judges are required to disclose all ex
parte contacts and conversations regarding any matters whatsoever. Especially in this case where
the actions of certain judges are alleged to violate the constitutional and civil rights of the defendant.
Counsel reserves the right to address this apparent conflict of the Attorney General’s
representation of the district court judges on appeal and through the presentation of other relevant
brief to this and the other proper courts.
Parties & The Judiciary Commission Must Know of Such Violations
The Badeaux-Hughes’s ex parte conversations with the court is established and admitted by
Judge Badeaux. These actions call into question the integrity of the entire Bench. Whether such ex
parte contacts are initiated by counsel for the Sheriff, the District Attorney, or any other persons
within the system, those attempted ex parte contacts and actual contacts when they occur,
compromise the integrity of the entire Bench. Had such ex parte contact not already been proven and
-5-
17-30519.789
censured by the Louisiana Supreme Court, then the request for the others subpoenaed to testify,
might be questioned. But at least one other similar ex parte action was decided against this same
Judge Badeaux by the Louisiana Supreme Court within the last two months.
To the extent that Hughes or any other persons within the system of these courts, have had
additional ex parte contacts with any judges on this Bench, regarding this or any other matter, those
persons effected by the ex parte contacts have a constitutional right to know of those contacts.
There are no provisions under Louisiana or United States law which shields the disclosure of such
ex parte contacts by interested parties even when those interested parties are law enforcement, the
district attorney, or those representing them, such as counsel Mr. Hughes.
The subpoenas served on the judges were not frivolous or vexatious, but as with most court
proceedings they were an attempt to further discover the truth about violations of the constitutional
rights of Mr. Gates and ethical violations as well.
The Attorney General has no claim for attorney fees under FRCP 45. Nor has the Attorney
General complied with Local Rule 54.2 as ordered by the Court. The motion for attorney fees should
be denied. The conflict apparent in his representation of the judges should be examined further.

Legal Department - Suite 106 served all counsel:2 August 2011
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-6-
17-30519.790


STRAIN, ET AL. JR.
MOTION FOR LEAVE TO SUPPLEMENT RECORD
Childress, William J. Crain, and William “Rusty” Knight, Judges of the 22nd Judicial District
Court, who move for leave of court to supplement their motion for an award of attorney fees
(Rec. Doc. 126) in order to comply with Local Rule 54.2 and this court’s Order on Motions.
(Rec. Doc. 122).
WHEREFORE, Movers pray that this Motion be granted and that they be granted leave
to supplement their previously filed Motion for Award of Attorney Fees incurred in bringing
their Motion to Quash Subpoenas.

ATTORNEY GENERAL


Litigation Division
17-30519.791
Telephone: (225) 326-6300

FAX: (225) 326-6192

I hereby certify that on the 8th day of August, 2011, a copy of the foregoing Motion for
Leave to Supplement Record was filed electronically with the Clerk of Court using the
CM/ECF system. Notice of this filing will be sent to CM/ECF participants by operation of this
court’s electronic filing system.


Hospital, LLC
Mark Emerson Hanna

DAVID G. SANDERS
2
17-30519.792


STRAIN, ET AL. JR.
MOTION FOR LEAVE TO SUPPLEMENT RECORD
On July 11, 2011, this Honorable Court issued an order stating that any party who
persists in seeking a sanctions award in connection with the quashing of the subpoenas issued in
this matter, must file a fully supported motion as required by Local Rule 54.2. That rule states,
“In all cases in which a party seeks attorneys’ fees, the party must submit to the court a verified,
contemporaneous report reflecting the date, time involved, and nature of the services
performed.”
On July 20, 2011, undersigned counsel, on behalf of the Honorables Raymond Childress,
William J. Crain, and William “Rusty” Knight, Judges of the 22nd Judicial Court, filed its Motion
for Award of Attorney Fees with a Department of Justice Billing Report attached as an Exhibit to
that motion (Rec. Doc. 126-2) detailing the date, time involved, and nature of the services
performed in preparing the Motion to Quash Subpoenas issued to the judges in compliance with
17-30519.793
Local Rule 54.21; however, counsel did inadvertently omit an affidavit verifying the contents of
the billing report.
Therefore, counsel moves for leave of court in order to supplement the record and the
previously-filed Motion for Award of Attorney Fees to add the affidavit verifying the
information contained in the Department of Justice Billing Report already contained in the
record of this matter. (Rec. Doc. 126-2).

ATTORNEY GENERAL


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192

1
The blacked out portions on the report contain descriptions of work performed on the Gates v. Strain
litigation but not in preparation of the Motion to Quash Subpoenas. Reimbursement for those attorney fees is
certainly not being requested.
2
17-30519.794
I hereby certify that on the 8th day of August, 2011, a copy of the foregoing
Memorandum in Support of Motion to Supplement Record was filed electronically with the
Clerk of Court using the CM/ECF system. Notice of this filing will be sent to CM/ECF
participants by operation of this court’s electronic filing system.


Hospital, LLC
Mark Emerson Hanna


DAVID G. SANDERS
3
17-30519.795
17-30519.796
17-30519.797
17-30519.798
17-30519.799


STRAIN, ET AL. JR.
ORDER
Considering the Motion for Leave to Supplement Record filed by movers, the Honorables
Raymond Childress, William J. Crain, and William “Rusty” Knight, Judges of the 22nd Judicial
District Court; accordingly,
IT IS HEREBY ORDERED BY THE COURT that Movers’ motion is GRANTED.
Movers are hereby granted leave to supplement the record with a new exhibit containing the
affidavit of David G. Sanders, counsel for movers, and attached printout from the Louisiana
Department of Justice, all of which supplements movers’ original Motion for Award of Attorney
Fees (Rec. Doc. 126) filed into the record of this case.
New Orleans, Louisiana, this _________ day of _______________________, 2011.
__________________________________________
THE HONORABLE JOSEPH C. WILKINSON, JR.
17-30519.800


STRAIN, ET AL. JR.
To: Shane M. Gates

Through his attorney of record
Daniel G. Abel
Legal Department – Suite 106
Metairie, LA 70001
PLEASE TAKE NOTICE that the undersigned will bring the foregoing Motion
for Leave to Supplement Record filed by the Honorables Raymond Childress, William J.
Crain, Reginald Badeaux, and William “Rusty” Knight, Judges of the 22nd Judicial
District Court, before the Honorable Joseph C. Wilkinson, Jr., United States Magistrate
Judge, United States District Court, 500 Poydras Street, New Orleans, LA, 70130, on the
24th day of August, 2011 at 11:00 a.m. Pursuant to Local Rule 78.1 E this motion shall
be determined without oral argument unless any party desiring oral argument files a
separate written request for oral argument, or the court orders oral argument.

ATTORNEY GENERAL
17-30519.801


Litigation Division
Telephone: (225) 326-6300
FAX: (225) 326-6192
Attorneys for the Honorables Raymond Childress,

William J. Crain, and William “Rusty” Knight,
Judges of the 22nd Judicial District Court
17-30519.802
I hereby certify that on the 8th day of August, 2011, a copy of the foregoing
Notice of Submission was filed electronically with the Clerk of Court using the CM/ECF
system. Notice of this filing will be sent to CM/ECF participants by operation of this
court’s electronic filing system.


Hospital, LLC
Mark Emerson Hanna


DAVID G. SANDERS
17-30519.803


STRAIN, ET AL. JR.
ORDER
Considering the Motion for Leave to Supplement Record filed by movers, the Honorables
Raymond Childress, William J. Crain, and William “Rusty” Knight, Judges of the 22nd Judicial
District Court; accordingly,
IT IS HEREBY ORDERED BY THE COURT that Movers’ motion is GRANTED.
Movers are hereby granted leave to supplement the record with a new exhibit containing the
affidavit of David G. Sanders, counsel for movers, and attached printout from the Louisiana
Department of Justice, all of which supplements movers’ original Motion for Award of Attorney
Fees (Rec. Doc. 126) filed

Hellointo
Thistheis record
a Test of this case.
9th
New Orleans, Louisiana, this _________ August
day of _______________________, 2011.
__________________________________________
THE HONORABLE JOSEPH C. WILKINSON, JR.
17-30519.804

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTION
MOTION: Motion for Award of Attorney Fees, Record Doc. No. 126
O R D E R E D:
XXX : DEFERRED. On this date, movants have been permitted to supplement their
motion to comply with Local Rule 54.2, requiring a verified report in support of such an
award. Accordingly, plaintiff is hereby permitted through and including August 16, 2011
to file a response to the supplement, if he desires to do so. Thereafter, the motion will be
decided on the record without oral argument.
New Orleans, Louisiana, this 9th day of August, 2011.

17-30519.805
SHANE M. GATES * CIVIL ACTION

* NO. 07-6983
*
VERSUS * SECTION “K”
*
*
SHERIFF RODNEY JACK STRAIN * MAGISTRATE 2
IN HIS OFFICIAL AND INDIVIDUAL *
CAPACITY; ST. TAMMANY PARISH *
SHERIFF’S OFFICE; ET AL. *
*
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S

MOTION REQUESTING THE COURT TO ADD 28 U.S.C.
§1292(b) LANGUAGE FOR INTERLOCUTORY APPEAL
Now into court, through undersigned counsel come defendants, Sheriff Rodney Jack
Strain, in his official and individual capacity, St. Tammany Parish Sheriff’s Office, D.A. Walter
P. Reed, in his official capacity, St. Tammany District Attorney’s Office, Attorney Charles M.
Hughes, Jr., Sheriff Deputy Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian
Williams and St. Paul Insurance Company (hereinafter collectively referred to as “Defendants”),
who, in compliance with LR 7.4 of the Local Civil Rules of the United States District Court for
the Eastern District of Louisiana, respectfully submit the following memorandum in opposition
17-30519.806
to Plaintiff, Shane M. Gates’ (hereinafter “Plaintiff”) Motion Requesting the Court to Add 28
U.S.C. § 1292(b) Language for Interlocutory Appeal [Doc. 123] and request that this Honorable
Court deny Plaintiff’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
On March 17, 2011, Gates filed a “Motion to Re-Open 42 U.S.C. § 1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany”
[Doc. 84]. This Honorable Court denied Gates’ request to enjoin the ongoing state criminal
proceeding and to lift the stay on this § 1983 action. After this Honorable Court published its
Order and Reasons for denying Plaintiff’s motions [Doc. 121], Gates subsequently filed a
Motion Requesting the Court to Add 28 U.S.C. § 1292(b) Language for Interlocutory Appeal
[Doc. 123], requesting that this Court add additional, particular language, as articulated in 28
U.S.C. §1292(b), by which a district court may certify an otherwise unappealable interlocutory
order for appeal.
More specifically, Gates has filed this Motion, claiming that the following constitute
“controlling questions of law” within the meaning of §1292(b) as to which there is substantial
ground for difference of opinion:
(1) the law in this Circuit governing how the Courts must examine
the facts in making a determination as to irreparable injuries to Mr.
Gates’s [sic] constitutional rights and (2) what the District Court
understood the law to provide and therefore how It applied those
provisions in making Its Order [Rec. d. 121], which Gates would
now appeal.
Doc. 123-1 at p. 2. Defendants respectfully request that this Court deny Plaintiff’s Motion
Requesting the Court to Add 28 U.S.C. § 1292(b) Language for Interlocutory Appeal [Doc. 123]
because, as will be discussed more fully below, the required elements to support appeal of an
interlocutory judgment pursuant to 28 U.S.C. § 1292(b) are not present here.
17-30519.807
LAW AND ARGUMENT
Generally, there has been a federal policy that an appeal may be taken only from a final
decision. See Sherry A.D. v. Kirby, 975 F.2d 193, 201 (5th Cir. 1992); citing Cobbledick v.
United States, 309 U.S. 323, 326, 60 S.Ct. 540, 541 (1940). Interlocutory appeals are allowed in
limited circumstances and are generally disfavored. Statutes permitting interlocutory appeals
must be strictly construed. In re Complaint of Ingram Towing Co., 59 F.3d 513, 515 (5th Cir.
1995). As has been noted by the Fifth Circuit in Complaint of Ingram Towing Co.:
Interlocutory appellate jurisdiction is the exception rather than the

rule. United States v. Garner, 749 F.2d 281, 285 (5th Cir. 1985).
Congress has given the courts of appeals jurisdiction over
interlocutory appeals only in certain, limited circumstances.
Dardar v. Lafourche Realty Co., Inc., 849 F.2d 955, 957 (5th Cir.
1988)
Interlocutory appeals are not favored and the statutes allowing

them must be strictly construed. Sierra Club v. Marsh, 907 F.2d
210, 214 (1st Cir. 1990); see E.E.O.C. v. Kerrville Bus Co., Inc.,
925 F.2d 129, 131 (5th Cir. 1991). “We must ‘approach this statute
somewhat gingerly lest a floodgate be opened that brings into the
exception many pretrial orders.’ ” Switzerland Cheese Ass'n., Inc.
v. E. Hornes Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17
L.Ed.2d 23 (1966).
Complaint of Ingram Towing Co., 59 F.3d 513, 515-16 (5th Cir. 1995)(emphasis added).
28 U.S.C. § 1292 specifies instances in which an interlocutory order may be appealable.
Germane to the current motion, 28 U.S.C. § 1292 provides in pertinent part:
(a) Except as provided in subsections (c) and (d) of this section,

the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States,

the United States District Court for the District of the Canal Zone,
the District Court of Guam, and the District Court of the Virgin
Islands, or of the judges thereof, granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or
17-30519.808
modify injunctions, except where a direct review may be had in the

Supreme Court;
(b) When a district judge, in making in a civil action an order not

otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing in
such order. The Court of Appeals which would have jurisdiction of
an appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay proceedings
in the district court unless the district judge or the Court of Appeals
or a judge thereof shall so order.
§ 1292(b) provides stringent criteria in order for an interlocutory order to be appealable.
Section 1292(b) expressly permits a district court to certify an order for interlocutory
appeal only if it:
(1) involves a controlling question of law as to which;
(2) there is substantial ground for difference of opinion and that an immediate appeal
from the order;
(3) may materially advance the ultimate termination of the litigation.
U.S. ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 668 F.Supp.2d 780, 813 (E.D. La.
2009) (citing 28 U.S.C. § 1292(b)). “Unless all of the criteria are satisfied, the court ‘may
not and should not certify [an order for appeal] under § 1292(b).’” Fisher v. Halliburton,
703 F. Supp. 2d 639, 665 (S.D. Tex. 2010) (citing Ahrenholz, 219 F.3d at 676) (emphasis added).
The Eastern District has further emphasized that an interlocutory appeal is “exceptional”
and “does not lie simply to determine the correctness of a judgment.” Branch Consultants, 668
F.Supp.2d at 813 (citing Chauvin v. State Farm Mut. Auto. Ins. Co., Nos. 06-7145 & 06-8769,
17-30519.809
2007 WL 4365387, at *2 (E.D.La. Dec. 11, 2007)). The moving party bears the burden of
demonstrating that an interlocutory appeal is appropriate. Id. (citing In re FEMA Formaldehyde
Prods. Liab. Litig., No. MDL 07-1873, 2008 WL 4923035, at *2 (E.D.La. Nov. 13, 2009).
“[T]he decision to permit such an appeal is firmly within the district court's discretion.” Ryan v.
Flowserve Corp., 444 F.Supp.2d 718, 722 (N.D. Tex. 2006)(citing Cheney v. U.S. Dist. Court for
Dist. of Columbia, 542 U.S. 367, 405 (2004)). Moreover, the issue for appeal must involve a
question of law - not fact. Id. (citing Clark-Dietz and Associates-Engineers v. Basic Constr. Co.,
702 F.2d 67, 69 (5th Cir. 1983) (holding that “fact-review” issues are inappropriate for § 1292
review)). For the purposes of § 1292(b) review, “a ‘question of law’ does not mean the
application of settled law to disputed facts.” Id. (citing McFarlin, 381 F.3d at 1258).
Here, this Court must deny Gates’ request to add additional language into its July 11,
2011 Order [Doc. 121] because Gates failed to articulate a “controlling question of law” upon
which there is “substantial ground for difference of opinion” which will “materially advance the
termination of the litigation”. As such, the proposed issues on appeal identified in Gates’ motion
are not available for immediate appeal and thus this Court is under no obligation to provide any
additional reasons for its Order.
From Gates’ motion, it is unclear if he requests that this Court add language regarding its
denial of his motion to re-open this case or to enjoin the state criminal proceedings. While Gates
cited to §1292(a)(1) in his Motion, he did not claim that he was entitled to appeal the Court’s
denial of the injunction of the state criminal proceedings or the refusal to lift the stay in the
§1983 action of right, but focused only on the scant reasons why he believes the Order should be
certified for appeal. Though not clearly articulated, it appears that Gates seeks review of the
portion of the trial court’s order refusing the injunction of the criminal proceeding, as Gates
17-30519.810
references “irreparable injuries.” Any analysis of “irreparable injury” is only implicated within
the context of an exception to Younger Abstention, and thus, is not applicable to the portion of
the Court’s order denying the Motion to Lift the Stay, as the law involved in determining the
appropriateness of a stay in the instant case is completely unrelated to the analysis of “irreparable
injuries.” If this Court should find that Gates only requests that this Court add additional
language regarding its denial of Gates’ motion to enjoin the state criminal proceedings, Gates
motion must be denied without any further analysis.1
On the other hand, should this Court find that Gates seeks that this Court add additional
language regarding its denial of his motion to re-open the current case, Gates must prove that all
requirements of 28 U.S.C. § 1292(b) exist. No matter which portion of the District Court’s order
Gates seeks to certify for appeal, Gates has failed to articulate a “controlling question of law”
upon which there is “substantial ground for difference of opinion” which will materially advance
the termination of the litigation. Unless all of the criteria are satisfied, this Court may not and
should not certify an order for appeal under § 1292(b). Fisher, 703 F.Supp.2d at 665. As
such, this Court’s Order & Reasons [Doc. 121] is not available for certification under 28 §
1292(b) and Defendants respectfully request that this Court deny Gates’ Motion Requesting the
Court to Add 28 U.S.C. § 1292(b) Language for Interlocutory Appeal [Doc. 123].
I. THIS COURT’S DENIAL OF GATES’ MOTIONS TO RE-OPEN 42 U.S.C. § 1983

ACTION AND TO STAY THE CRIMINAL PROCEEDINGS DO NOT PRESENT
A CONTROLLING QUESTION OF LAW
Under § 1292(b), the issue for appeal must involve a controlling question of law. A
controlling question of law is an issue with a “statutory or constitutional provision, regulation or
common law doctrine.” Fisher, 703 F.Supp.2d at 665. Furthermore, the question must be an
1
Appeal of interlocutory orders from a district court’s refusal to implement an injunction is allowable according to
28 § 1292(a)(1) as a matter of right without the necessity of certification of an Order by this Court.
17-30519.811
“abstract legal issue.” Id. Generally, an order is determined to involve a “controlling question of
law” when it has potential to have some impact on the course of the litigation. Ryan, 444
F.Supp.2d at 723. An issue of law has also been termed controlling where “the certified issue
has precedential value for a large number of cases.” Id. However, if an issue’s resolution on
appeal will have little to no effect on subsequent proceedings, it should not be deemed
“controlling”. Id. A controlling question of law has also commonly been defined as “a question
of law the resolution of which could materially advance the ultimate termination of the litigation-
thereby saving time and expense for the court and the litigants.” Id. Further, a “controlling
question of law” must involve a purely legal question, and must not seek review of application of
law to facts. See Louisiana Patients' Compensation Fund Overnight Bd. v. St. Paul Fire &
Marine Ins. Co., 411 F.3d 585, 588 (5th Cir. 2005); see also Anderson v. Jackson, 2007 WL
4414479 (E.D. La. 2007).
No controlling issue of law exists here, nor has Gates identified any controlling issues of
law sufficient to meet the above cited well-defined parameters. Gates contends that this matter
involves controlling questions of law regarding whether a substantial ground for difference of
opinion exists regarding: 1) the law in this Circuit governing how the Courts must examine the
facts in making a determination as to irreparable injuries to Mr. Gates’ constitutional rights and
2) what the District Court understood the law to provide and therefore how It applied those
provisions in making Its Order.2 Doc. 123-1 at 2.
In his first identified question of law, Gates claims that there are controlling questions of
law regarding the law in this Circuit governing how the Courts must examine the facts in making
2
While his request combines the first two requirements, for the purposes of clarity in this opposition, Defendants
will separately address the issues of whether Gates identified a controlling question of law and whether a substantial
ground for difference of opinion exists.
17-30519.812
a determination as to irreparable injuries to Mr. Gates’ constitutional rights. However, not once
in his motion or memorandum does he cite a single case or address how any contested question
of law has the capacity to impact the course of this litigation, to hold precedential value for a
large number of cases or to materially advance the ultimate termination of the litigation. Yet, he
requests that this Court now include language to allow his interlocutory appeal. Defendants
submit that the controlling law in this area is well settled and refers to this Court’s Order [Doc.
121] detailing the well-settled law applicable to the Anti-Injunction Act, 28 U.S.C. § 2283,
Younger v. Harris, 401 U.S. 37 (1971), Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1972) and their
progeny.
Addressing his second request, Gates asks the District Court to again provide the law it
“understood” and how it applied those provisions in making its Order. This request is clearly
outside the realm of § 1292(b). Any identified “controlling question of law” must involve a
purely legal question, and must not seek review of the application of law to facts. Louisiana
Patients' Compensation Fund, 411 F.3d at 588.
For instance, in Louisiana Patients' Compensation Fund, the Fifth Circuit, in reviewing
the denial of a motion for summary judgment noted that though its interlocutory appeal was
permitted under 28 U.S.C. § 1292(b), its review was limited because its “appellate jurisdiction
under § 1292(b) extends only to interlocutory orders involving a ‘controlling question of law’”.
Id. Thus, it was only proper for the Court to review whether the District Court erred in
concluding that the LMMA provided a cause of action to the Board, not whether the Board
presented sufficient evidence to raise a genuine issue of material fact to preclude summary
judgment for St. Paul. Id.
17-30519.813
Similarly, here, it is improper to review on an interlocutory appeal regarding how this
Court applied provisions of law to the facts of the current case in making its Order. Gates
explicitly states that he seeks review of the Court’s application of the law regarding irreparable
injuries to the facts in the case at hand. As such, under the holding in Louisiana Patient’s
Compensation Fund, Gates has failed to identify a controlling question of law for review.
Moreover, in its Order & Reasons [Doc. 121], this Court meticulously detailed the law
applicable to the Anti-Injunction Act, Younger and Shaw in finding that the irreparable harm is
generally required as a prerequisite to obtaining an injunction. Further, the Court stated that the
Fifth Circuit has been clear that “irreparable injury”, within the context of seeking an injunction
of ongoing criminal proceedings as an exception to Younger Abstention, requires a showing of
bad faith prosecution. Where bad faith prosecution is not shown, the petitioner is required to
show irreparable injury absent intervention by the federal district court. As such, Gates’
contention that the Fifth Circuit has not provided a framework for determining irreparable injury
within the context of an injunction is simply not supported. This Court clearly articulated such
provisions in its Order and Reasons.
Thus, Gates has failed to articulate any “controlling question of law” within the meaning
of § 1292(b) that exists here. Because he cannot satisfy this prong of § 1292(b), his Motion must
be denied.
II. THERE IS NO SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION ON

THE ISSUE OF LAW
While Defendants do not concede that any controlling question of law exists, should this
Court find that one does exists, Defendants provide the following analysis regarding Gates’
failure to identify any substantial ground for difference of opinion on the issue of law.
17-30519.814
In order to meet the requirements of § 1292(b), substantial grounds must exist for
difference of opinion over the controlling question of law. Courts have found substantial ground
for difference of opinion where:
[A] trial court rules in a manner which appears contrary to the

rulings of all Courts of Appeals which have reached the issue, if
the circuits are in dispute on the question and the Court of Appeals
of the circuit has not spoken on the point, if complicated questions
arise under foreign law, or if novel and difficult questions of first
impression are presented.
4 Am.Jur.2d Appellate Review § 128 (2005). But simply because a court is the first to rule on a
question or counsel disagrees on applicable precedent does not qualify the issue as one over
which there is substantial disagreement. Id. Nor does a party's claim that a district court has
ruled incorrectly demonstrate a substantial disagreement. Wausau Bus. Ins. Co. v. Turner Constr.
Co., 151 F.Supp.2d 488, 491 (S.D.N.Y.2001). However, if a controlling court of appeals has
decided the issue, there is no likelihood for a substantial difference of opinion. The Fifth Circuit
also notes that parties seeking interlocutory appeal must show substantially differing views
regarding the issue before the court. Clark–Dietz & Assocs.-Engrs v. Basic Constr. Co., 702 F.2d
67, 69 (5th Cir. 1983). Moreover, section 1292(b) appeals are inappropriate where there is a
“substantial ground for difference of opinion” regarding only the facts or the application of
controlling law to the facts of the case. Endurance Am. Specialty Ins. Co. v. Brown, Miclette &
Britt, Inc., 2010 WL 816710 (S.D. Tex. Mar. 4, 2010)(citing Clark-Dietz, 702 F.2d at 69).
As espoused above, this Court clearly set forth the standards applicable to the Anti-
Injunction Act, Younger and Shaw, which it applied in denying Gates’ motions to re-open the §
1983 action and to stay the state court criminal proceedings. In applying these standards, the
Court did not rule in a manner which appears contrary to other Appellate Court rulings nor are
the circuits split on the issues presented by Gates’ motions. Gates’ Motion requesting this Court
10
17-30519.815
to add additional information is nothing more than an attempt to get a second bite at the apple on
the merits of his denied Motions, which is in contravention of § 1292’s purpose in allowing
interlocutory appeals in limited circumstances.
Additionally, Gates has made no effort to cite to any different application of the
“question of law” of which he seeks review. In fact, Gates cites to no jurisprudence whatsoever
in his Motion to add certification language. As such, Gates fails to meet the second prong of the
§1292(b) test as well.
III. AN APPEAL WILL NOT MATERIALLY ADVANCE THE TERMINATION OF

LITIGATION, BUT INSTEAD WILL FURTHER PROLONG THESE
PROCEEDINGS
The last prong of the §1292(b) analysis begs the question of whether a reversal on appeal
would materially advance the termination of the litigation. 28 U.S.C. §1292(b). In the case at
hand, a reversal of this Court’s refusal to lift the stay and enjoin the state criminal proceedings by
the 5th Circuit would not materially advance the litigation. To the contrary, it would protract
proceedings, as it would permit the litigation to go forward despite the pendency of the criminal
proceedings. As recognized by this Court in its Order & Reasons [Doc. 121, p. 10]: “Clearly,
while the criminal matter is pending, Gates would be able to engage in discovery as to all the
defendants but would have the right to invoke his Fifth Amendment right in discovery addressed
to him.” Lifting the stay would further lend itself to scenarios where conflicting decisions result
as both the state criminal proceeding and this civil proceeding would be moving forward at the
same time, which could potentially create numerous problems which might very well lead to
protracted litigation.
Moreover, the §1983 action would potentially be rendered moot if Gates is convicted on
the resisting arrest charge. Thus, a reversal of the stay order would conflict with the articulated
11
17-30519.816
purpose of disallowing appeals of interlocutory orders, as it would promote the waste of judicial
resources by allowing litigation of a case potentially rendered moot by the criminal proceedings.
Further, a reversal of the stay order will not result in any termination of the litigation whatsoever,
as the lifting of the stay would allow the litigation to go forth, not terminate it. As such, Gates
has failed to satisfy this prong of the required test under §1292(b).3
CONCLUSION
For the reasons more thoroughly discussed in the above memorandum of law, this Court
must deny Gates Motion. Gates has failed to articulate a “controlling question of law” upon
which there is “substantial ground for difference of opinion” which will materially advance the
termination of the litigation. Unless all of the criteria are satisfied, this Court may not and
should not certify an order for appeal under § 1292(b). Fisher, 703 F.Supp.2d at 665. As such,
this Court’s Order & Reasons [Doc. 121] is not available for certification under 28 § 1292(b) and
Defendants respectfully request that this Court deny Gates’ Motion Requesting the Court to Add
28 U.S.C. § 1292(b) Language for Interlocutory Appeal [Doc. 123].
3
Because it appears that the portion of the District Court’s order refusing to grant the injunction of the criminal
proceedings is appealable of right pursuant to § 1292(a)(1), an analysis regarding whether a reversal of the denial of
the injunction of the criminal proceedings would lead to the ultimate termination of the §1983 action may not be
warranted. Nonetheless, if the injunction of the criminal proceedings were granted on appeal, it would have no effect
on the instant §1983 action, as Gates would still be required to satisfy his burden of proof under §1983. As such, a
reversal of this portion of the District Court’s order would also not materially advance the termination of the
litigation in the case at hand.
12
17-30519.817
Bradley Murchison Kelly & Shea LLC
s/ Mark E. Hanna
Mark E. Hanna (#19336)
1100 Poydras Street, Suite 2700
Telephone: (504) 596-6300
Fax: (504) 596-6301
E-Mail: mhanna@bradleyfirm.com
Attorney for Defendant, Sheriff Rodney Jack Strain,
in his official and individual capacity,
St. Tammany Parish Sheriff’s Office,
Sheriff Deputy Nathan Miller, Sheriff Deputy
Robert Gottardi, Sheriff Deputy Brian Williams
and St. Paul Insurance Company
s/ Ralph S. Whalen, Jr.

Ralph S. Whalen, Jr. (8319)
New Orleans, Louisiana, Louisiana 70163
Telephone: (504) 525-1600
Fax: (504) 525-1606
E-mail: ralphswhalen@ralphswhalen.com
and
s/ Katherine W. Landry
Katherine W. Landry (19229)
P.O. Box 82659
Baton Rouge, Louisiana 70884
Telephone (225) 766-0023
Fax (225) 766-7341
E-mail: kathilandry@aol.com
Attorneys for D.A. Walter P. Reed, in his official

capacity and St. Tammany Parish District
Attorney’s Office
13
17-30519.818
s/ Richard T. Simmons, Jr.

Richard T. Simmons, Jr (13116)
Hailey, McNamara, Hall, Larmann & Papale, L.L.P.
One Galleria Blvd, Suite 1400
Metairie, Louisiana
Telephone: (504) 836-6500
Fax: (504) 836-6565
E-mail: rsimmons@hmhlp.com
Attorneys for Charles M. Hughes, Jr.
I hereby certify that a copy of the above and foregoing was filed electronically on
August 16, 2011. Notice of this filing will be sent to all parties by operation of the Court’s
s/ Mark E. Hanna
Mark E. Hanna (#19336)
14
17-30519.819

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTION
MOTION: Motion for Award of Attorney Fees, Record Doc. No. 126
O R D E R E D:
XXX : GRANTED. Plaintiff issued the subject subpoenas to the non-party movants in
violation of this court’s stay order. Without a previously obtained order lifting the stay,
plaintiff was not justified in issuing subpoenas in violation of the court’s order and thereby
necessitated motion practice by movants who are not parties to this action. Applying the
lodestar approach, both the hours expended and the hourly rates charged by movants’
counsel, as reflected in the evidence that has now been submitted with the motion, are
reasonable. Accordingly, IT IS ORDERED that plaintiff Shane M. Gates and/or his
counsel of record must pay movants, through the Attorney General, State of Louisiana,
Department of Justice, the sum of $741.00. Fed. R. Civ. P. 45(c)(1).

17-30519.820

SHANE M. GATES * 42 U.S.C. 1983 ACTION

*
*
RODNEY “JACK” STRAIN, ET AL. * JUDGE: HON. S. DUVAL
*
* MAGISTRATE: HON. WILKENSON
*
*********************************
NOTICE OF APPEAL OF MAGISTRATES’ ORDER
REGARDING ATTORNEY GENERAL’S FEE ORDER
Mr. Gates and counsel appeal to the District Court to reconsider and reverse the Magistrates’
Order Granting the Louisiana Attorney General fees for representing certain St. Tammany Parish Judges
whose testimony was sought regarding their ex parte conversations both admitted and suspected, as
the Attorney General was clearly barred from such representation as those judges had and would set on
a related matter thereby effecting Mr. Gates’s constitutional and civil rights. Evident from the record
now provided by the Attorney General, he and his office had already worked on the case in its other
capacity and then itself represented the judges whose actions were at issue and whose conversations
with the Attorney General constitute yet another example of ex parte conversation, contrary to the
guarantees of the United States and Louisiana Constitutions.

Daniel G. Abel [Bar No. 8348] I have filed this pleading and
2421 Clearview Parkway the attachments in the CM/CMF
Suite 106 on 6 September 2011 and thereby
Metairie, LA 70001 served all counsel.
17-30519.821


*
*
*
*
*********************************
MEMORANDUM IN SUPPORT OF THE
NOTICE OF APPEAL OF MAGISTRATES’ ORDER
REGARDING ATTORNEY GENERAL’S FEE ORDER
The Magistrates’ Order ignores the inherent conflict caused by the Attorney General’s
representation in this matter. The District Court should examine this conflict and reverse the order.
Evident from the record now provided by the Attorney General, he and his office had already
worked on the case in its other capacity as chief law enforcement officer of the state and then itself
represented the very judges whose actions were at issue and whose conversations with the Attorney
General constitute yet another example of ex parte communications, contrary to the guarantees of the
United States and Louisiana Constitutions.
Mr. Gates and counsel appeal to the District Court to reconsider and reverse the Magistrates’
Order Granting the Louisiana Attorney General fees for representing certain St. Tammany Parish Judges
whose testimony was sought regarding their ex parte conversations both admitted and suspected, as
the Attorney General was clearly barred from such representation as those judges had and would sit on
related matters thereby effecting Mr. Gates’s constitutional and civil rights.
Constitutional Prohibitions Against Dual Conflicting Representations
Louisiana’s Constitution at Article IV creates the Executive Branch and empowers the Office of
the Attorney General. It mandates that:
8. Attorney General; Powers and Duties
17-30519.822
Section 8. There shall be a Department of Justice, headed by the attorney general, who shall be
the chief legal officer of the state. The attorney general shall have the authority to:
(1) Institute, prosecute, or intervene in any civil action or proceeding; (3)(a) to institute,
prosecute or intervene in any criminal action or proceeding, or to supercede any attorney
representing the state in any civil or criminal action. The attorney general shall exercise
other powers and perform other duties authorized by this constitution or by law.
In no instance does the Constitution give the Attorney General the authority to intervene on
behalf of individual state court judges in a matter arising under federal law or otherwise, especially in
this instance where one of the state court judges has already admitted to having illegal ex parte
conversations with counsel for the sheriff which are at issue in the depositions and testimony given, and
further threaten to cause irreparable injury to a party’s constitutional rights particularly as articulated by
the United States Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976).
Judge Badeaux had already admitted ex parte conversations with counsel for the sheriff. Once
exposed, Badeaux admitted those contacts and recused himself from the case. Badeaux’s ready
admission and the notorious history of ex parte conversations between judges and counsel for the
District Attorney and the Sheriff in St. Tammany Parish, caused counsel to subpoena the other judges to
determine what ex parte communications they had as well.
The Court will recall that it was Sheriff’s counsel who conspired with the district attorney to
fabricate a “Deputies-as-victims” letter in order to recharge Gates with resisting arrest in an also
admitted attempt to bar Gates’s Section 1983 claims for excessive force.
The Attorney General was contacted by Chief Judge William Buras who asked that he represent
him and the other judges. By agreeing to do so, the Attorney General has created a constitutional and
factual conflict by that representation.
17-30519.823
The District Court should consider this conflict, set aside the Magistrates’ Order, and issue an
order on the propriety of the Attorney General’s conflict and representation.

17-30519.824

*
*
*
*
*********************************
ORDER
Considering the pleadings and argument of counsel,
IT IS ORDERED that:
Mr. Gates’s Appeal of the Magistrates Order is GRANTED.
The Magistrates’ ORDER is reversed as the Attorney General did and would have a conflict
of interest in representing St. Tammany Parish judges who already had and may in the future
have been revealed to have had ex parte communications with the Attorney General himself,
the District Attorney, the Sheriff or his counsel.
The assessment of fees is reversed. No fees are due to the Attorney General or the judges who
were represented by the Attorney General.
Ordered on the ________ of _______________________, 2011. New Orleans, LA.
_____________________
Judge Stanwood Duval
17-30519.825


*
*
*
*
*********************************
To All Parties:
This matter shall be hear by the Hon. Judge Stanwood Duval on Wednesday, 2 November 2011
beginning at 9:30 A.M. and continuing until completed. Gates and counsel reserve their right to request
oral argument.

17-30519.826

VERSUS NO. 07-6983
ORDER
Before the Court is a Motion Requesting The Court to Add 28 U.S.C. § 1292(b)
Language for Interlocutory Appeal to its decision of July 11, 2011 (Doc. 121). Such a request
would require the Court to find that its decision concerning its refusal (1) to enjoin the state
criminal proceeding and (2) to reopen and prosecute the instant case while the state criminal
matter against Shane M. Gates proceeds “involves a controlling question of law as to which there
a substantial ground for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(B). The Court
finds that this criteria is not met. There is no substantial ground for difference of opinion and
immediate appeal would simply further delay and obstruct the state’s prosecution of the criminal
matter. Accordingly,
IT IS ORDERED that the Motion Requesting The Court to Add 28 U.S.C. § 1292(b)
Language for Interlocutory Appeal to its decision of July 11, 2011 (Doc. 121) is DENIED.
New Orleans, Louisiana, this 13th day of September, 2011.

17-30519.827

VERSUS NO. 07-6983
ORDER AND REASONS
Before the Court is a “Notice of Appeal of Magistrates’ (sic) Order Regarding Attorney
General’s Fee Order.” This appeal arises out of an award of $741.00 which Magistrate Judge
Jay Wilkinson awarded to the Honorables Raymond Childress, William J. Crain and William
“Rust” Knight, Judges of the 22nd Judicial District Court, through the Attorney General, State of
Louisiana Department of Justice, pursuant to Fed. R. Civ. P. 45(c)(1). The Court finds no merit
in the appeal.
Plaintiff Shane M. Gates filed a Motion to Re-Open 42 U.S.C. § 1983 Action on March
13, 2011. This case has been stayed since April of 2008 pending the outcome of a criminal
matter in which Mr. Gates is the defendant in the 22nd Judicial District Court for the Parish of St.
Tammany. (Doc. 81). Without having obtained leave of court or an order lifting the stay,
plaintiff issued certain subpoenas to the these non-parties in anticipation of the hearing on the
motion to lift stay. As such, the Attorney General moved to Quash the Subpoenas. This Court
denied the Motion to Lift Stay. (Doc. 121). And the Motion to Quash was subsequently denied
(Doc. 122).
On July 20, 2011, a Motion for Award of Attorney Fees was filed under Fed. R. Civ. P.
45(c)(1) which provides for the award of attorneys’ fees when the party or attorney responsible
for issuing and serving a subpoena fails to take reasonable steps to avoid imposing undue burden
or expense on the person subject to the subpoena. Based on the facts outlined above, the award
17-30519.828
is well based and must be sustained. In other words, this non-dispositive decision is not clearly
erroneous or contrary to law and thus is not subject to reversal. Fed. R. Civ. P. 72(a). The
arguments raised by plaintiff in the appeal are in no way connected to the issues relevant to this
appeal and are without any merit. Accordingly,
IT IS ORDERED that the “Notice of Appeal of Magistrates’ Order Regarding Attorney
General’s Fee Order” is DENIED
New Orleans, Louisiana, this 29th day of December, 2011.

17-30519.829

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MOTION TO RE-OPEN 42 U.S.C. §1983 ACTION

AS THE TWELVE-PERSON ST TAMMANY JURY HAS FOUND GATES
NOT GUILTY OF AGGRAVATED FLIGHT OR ANY LESSER CHARGE
Now Comes Shane M. Gates, through undersigned counsel moving the Court to reopen this
matter as the Twelve-Person St. Tammany Parish Jury found Shane M. Gates NOT GUILTY of the
felony Aggravated Flight or any of the lesser charges on Friday, 27 July 2012.
Gates testified at trial giving defendants any opportunity they wished to cross-examine, in
fact to attack, him. Defendants testified as well, admitting under oath many of the facts underlying
this § 1983 action. All parties to this suit testified or were given the opportunity to testify under oath.
The concern raised by defendants and initially acknowledged by the Court that discovery of the
defendants alone would give Gates an unfair advantage, is now moot. Gates testified under oath. The
defendants testified under oath. Experts testified under oath.
The Twelve-Person St. Tammany Parish Jury found Shane M. Gates NOT GUILTY.
On 16 April 2008, the Court stayed these proceedings but advised that Gates could ask that
the stay to be lifted in six months if the underlying matters had not been resolved. [R.doc.#81]. It
has been six years since the defendants beat up Gates while he was handcuffed; it has been four years
since this federal action was stayed.
The Twelve-Person St. Tammany Parish Jury has found Gates NOT GUILTY.
17-30519.830
While this matter was stayed, Gates’s exercise of his constitutional rights and civil rights
have been stayed as well.
The Court should re-open this matter and as Gates has been found NOT GUILTY by the
St. Tammany Parish Jury on Friday, 27 July 2012.
Legal Department - Suite 106 served all counsel: 4 August 2012
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.831

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MEMORANDUM RE: MOTION TO RE-OPEN 42 U.S.C. §1983 ACTION

AS THE TWELVE-PERSON ST TAMMANY JURY HAS FOUND GATES
NOT GUILTY OF AGGRAVATED FLIGHT OR ANY LESSER CHARGE
Shane M. Gates moves the Court to reopen this matter as the Twelve-Person St. Tammany
Parish Jury found Shane M. Gates NOT GUILTY of the felony Aggravated Flight or any of the lesser
charges on Friday, 27 July 2012.
this § 1983 action. All parties to this suit testified or were given the opportunity to testify under oath.
The concern raised by defendants and initially acknowledged by the Court that discovery of the
defendants alone would give Gates an unfair advantage, is now moot. Gates testified under oath. The
defendants testified under oath. Experts testified under oath.
Police and Medical experts testified and gave scientific evidence confirming the facts alleged
in Gates’s original complaint. The St. Tammany Parish Toxicologist’s testimony discredited the
allegations made by defendants in their attempt to cover-up their use of excessive force against Gates
after he was handcuffed. Under oath the defendants admitted holding Gates’s face down on the hot-
hood of not-one-but-two police cars, pepper-spraying him at the same time, and they throwing him
face-first to the ground after he had been handcuffed and pepper-sprayed.
17-30519.832
has been six years since the defendants beat up Gates while he was handcuffed; it has been four years
since this federal action was stayed. Gates has had one of the three prognosed surgeries.
While this matter was stayed Gates’s exercise of his constitutional rights rights have been
stayed as well.
The Court should re-open this matter and as Gates has been found NOT GUILTY by the
St. Tammany Parish Jury on Friday, 27 July 2012.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.833

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
This matter is noticed for submission with oral argument requested before the Honorable
Judge Stanwood R. Duval, Jr. on 22 August 2012, commencing at 9:30 AM, and continuing until
completed or otherwise ordered by the Court.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
17-30519.834

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
This matter is noticed for submission before the Honorable Judge Stanwood R. Duval, Jr. on
22 August 2012, commencing at 9:30 AM, and continuing until completed or otherwise ordered by
the Court.
Counsel requests oral argument in order to explain certain procedural issues that have arisen
since the last hearing over a year ago and so that counsel may address resolution of those issues.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
17-30519.835
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT
Gates’s Motion and Request for Oral Argument is GRANTED.
The matter shall be heard with oral argument on 22 August 2012, commencing at
9:30 AM, continuing until completed or otherwise ordered by the Court.
Ordered on _______ , 2012. New Orleans, Louisiana.
______________________________________
17-30519.836

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MOTION TO SET RULE 30(a)(2) HEARING FOR LEAVE TO

CONDUCT THE ORAL EXAMINATION OF NON-PARTY WITNESSES
Gates and counsel have moved the Court to set a Rule 30(a)(2) hearing for leave to Gates to
take the depositions by oral examination of certain non-party witnesses, consistent with Rule
26(b)(2) et seq. as those individuals and certain parties have not and will not stipulate to the
depositions.
Gates will additionally compel attendance by subpoena under Rule 45, once leave for these
taking is granted by this Court.
Gates has noticed submission and requested oral argument for: 29 August 2012 hearing.
Daniel G. Abel [No.8348] I have filed this pleadings with the

2421 Clearview Parkway Clerk of Court and thereby served
Legal Department, Suite 106 all counsel. 4 August 2012.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.837

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MEMORANDUM IN SUPPORT OF SHANE M. GATES’S

MOTION TO SET RULE 30(a)(2) HEARING FOR LEAVE TO
CONDUCT THE ORAL EXAMINATION OF NON-PARTY WITNESSES
depositions.
At issue in particular ex parte meetings and conversations that took place between counsel
Charles Hughes for Sheriff Rodney “Jack” Strain as well as District Attorney Ronald Gracianette
and Nicholas Noriea and presiding Judges William J. Crain, Judge Raymond S. Childress, and Judge
Reginald T. Badeaux, III—during the time each of these judges were presiding over the criminal
matter involving Shane Gates.
Also at issue is the oral examination of Judge William J. Burris as to his meetings with the
Louisiana Attorney General and his agents who appeared in federal court to represent the judges
named above. As the chief law enforcement officer of the state the Attorney General’s interaction
with the presiding judges represents a conflict prohibited by the Louisiana Canons of Judicial
Conduct which govern the actions judges, the Attorney General, and district attorneys. In the past,
each of these judges and other officials would not consent to oral examination as to their meetings
17-30519.838
with the St. Tammany Parish District Attorney or to Counsel for the Sheriff or the Sheriff himself.
As they have refused to oral examination under oath, counsel seeks leave under Rule 30(a)(2)
to notice and take oral examination under oath, of each.
takings is granted by this Court.

Telephone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.839

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
This matter is set for submission on 29 August 2012, with request for oral argument,
commencing at 11:00 AM before the Hon. Magistrate Judge J. Wilkenson and continuing until
completed or otherwise ordered by the Court.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.840

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Counsel moves the Court for leave to present oral argument at the hearing in this matter now
set for 29 August 2012, commencing at 11:00 AM before the Hon. Magistrate Judge J. Wilkenson
and continuing until completed or otherwise ordered by the Court.
The reasons for seeking oral examination of the non-party persons can be made more clear
and counsel can address any issued raised by the Court.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.841
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT
______________________________________
MAGISTRATE JUDGE J. WILKENSON.
17-30519.842

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
This matter is noticed for submission before the Honorable Judge Stanwood R. Duval, Jr. on
22 August 2012, commencing at 9:30 AM, and continuing until completed or otherwise ordered by
the Court.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
17-30519.843
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT
______________________________________
17-30519.844

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Counsel moves the Court for leave to present oral argument at the hearing in this matter now
set for 29 August 2012, commencing at 11:00 AM before the Hon. Magistrate Judge J. Wilkenson
and continuing until completed or otherwise ordered by the Court.
The reasons for seeking oral examination of the non-party persons can be made more clear
and counsel can address any issued raised by the Court.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.845
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT
______________________________________
MAGISTRATE JUDGE J. WILKENSON.
17-30519.846

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER
At the request of counsel for plaintiff, Record Doc. No. 140, and pursuant to Local
Rule 78.1, oral argument on plaintiff’s Motion to Set Rule 30(a)(2) Hearing for Leave
to Conduct the Oral Examination of Non-Party Witnesses, Record Doc. No. 137, is
hereby set on AUGUST 29, 2012 at 11:00 a.m. before Magistrate Judge Joseph C.
Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, Room B-421, New Orleans,
Louisiana.

17-30519.847

VERSUS NO. 07-6983
ORDER
The Court is in receipt of the Motion to Re-Open 42 U.S.C. § 1983 Action (Doc. 136)
seeking the reopening of the above-styled matter. As Shane M. Gates was found to be not guilty
of the underlying crime which forms the basis for Mr. Gates’s § 1983 claim,
IT IS ORDERED that the Motion to Re-Open (Doc. 136) is GRANTED and the Case
Manager shall set this matter for trial.

17-30519.848
UNITED STATED DISTRICT COURT


* NO. 07-6983
VERSUS *
* JUDGE STANWOOD DUVAL, JR.
SHERIFF “JACK” STRAIN, ET AL *
* MAG. JOSEPH WILKINSON, JR.
*************************************
NOTICE OF CHANGE OF ADDRESS
Please take notice that undersigned counsel for Sheriff Rodney “Jack” Strain, in his
official and individual capacity, St. Tammany Parish Sheriff’s Office, Sheriff Deputy Nathan
Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams and St. Paul Insurance
Company hereby gives notice of his change of address as follows: Mark E. Hanna is now with
the firm Mouledoux, Bland, Legrand & Brackett, 701 Poydras Street, Suite 4250, New Orleans,
Louisiana 70139, telephone (504) 595-3000, facsimile (504) 522-2121, e-mail
mhanna@mblb.com.
__/s/ Mark E. Hanna

MARK E. HANNA (#19336)
MOULEDOUX, BLAND, LEGRAND &
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
E-mail:mhanna@mblb.com
Attorneys for Defendants
17-30519.849
I hereby certify that a copy of the foregoing pleading has been served on all counsel of
record via the Court’s CM/ECF system, this 10th day of August, 2012.
__/s/ Mark E. Hanna

MARK E. HANNA
17-30519.850


* NO. 07-6983
VERSUS *
*************************************
JOINT MOTION FOR REHEARING PURSUANT TO F.R.C.P. 60

ON MOTION TO REOPEN 42 USC § 1983 ACTION
NOW INTO COURT, through undersigned counsel, come Defendants Sheriff Rodney
“Jack” Strain, in his official and individual capacity, Sheriff Deputy Nathan Miller, Sheriff
Deputy Roger Gottardi, Sheriff Deputy Brian Williams and St. Paul Insurance Company, District
Attorney Walter Reed, in his official capacity and St. Tammany Parish District Attorney’s
Office, Charles M. Hughes, Jr. (herein after referred to collectively as “Defendants”), who
pursuant to Federal Rule of Civil Procedure 60, seek relief from the order of this court dated
August 8, 2012 ordering that the matter be reopened and set for trial, (see Record Document 143)
for the reasons as are more fully discussed in the Memorandum filed contemporaneously with
this Motion and respectfully request this court grant this Motion for Rehearing and deny
Plaintiff’s Motion to Reopen this proceeding as there is an ongoing criminal proceeding, the
outcome of which may have a significant effect on Plaintiff’s right to proceed with this civil
action. Wherefore, considering the above and foregoing, it is respectfully requested that this
matter be considered on Motion for Rehearing as prayed for herein.
17-30519.851
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneys for Defendants, Sheriff Rodney Jack
Strain, in his official and individual capacity, St.
Tammany Parish Sheriff’s Office, Sheriff Deputy
Nathan Miller, Sheriff Deputy Robert Gottardi,
Sheriff Deputy Brian Williams and St. Paul
Insurance Company
/s/ Ralph S. Whalen, Jr.

Ralph S. Whalen, Jr. (#8319)
2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
E-mail:ralphswhalen@ralphswhalen.com
And
/s/ Kathryn W. Landry

Kathryn W. Landry (#19229)
P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
E-mail: Kathilandry@aol.com
Attorneys for Defendant Walter P. Reed, D.A., in
his official capacity and St. Tammany Parish
District Attorney’s Office
and
17-30519.852
/s/ Richard T. Simmons, Jr.

Richard T. Simmons, Jr. (#13116)
Hailey, McNamara, Hall, Larmann & Papale
One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
E-mail:rsimmons@hmhlp.com
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.853


* NO. 07-6983
VERSUS *
*************************************
MEMORANDUM IN SUPPORT OF MOTION FOR REHEARING PURSUANT

TO F.R.C.P. 60 ON MOTION TO REOPEN 42 USC § 1983 ACTION
On August 4, 2012 plaintiff filed a “Motion To Reopen 42 USC §1983 Action As The
Twelve Person St. Tammany Jury Has Found Gates Not Guilty Of Aggravated Flight Or Any
Lesser Charge.” Counsel for plaintiff asked that the matter be submitted with oral argument
before this Honorable Court on August 22, 2012. Prior to undersigned counsel filing its
opposition to the aforementioned motion, this Honorable Court issued an Order that the Motion
to Reopen the matter be granted and that the case manager set this matter for trial. This Order
was signed on August 8, 2012 and entered into the record on August 9, 2012. (See Record
Document 143).
This Court may recall that defendants filed a motion to stay the instant case which was
granted on April 16, 2008 under the rational of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.
2364 (1994) and subsequent interpretating case law, as the instant proceeding could potentially
be rendered moot by plaintiff’s conviction on a resisting arrest charge in the underlying state
criminal proceeding in St. Tammany Parish. Although plaintiff’s counsel accurately represents
that the trial of the aggravated flight from an officer did result in a not guilty verdict on July 27,
17-30519.854
2012, importantly the Court should be aware that the prosecution for two (2) counts of resisting
arrest as well as driving while intoxicated remain pending. In fact, as is evidenced by the Notice
of Misdemeanor Trial attached hereto as Exhibit “A” the resisting arrest and driving while
intoxicated trial has been set for August 31, 2012 before Judge Peter Garcia. Attached as Exhibit
“B” is the Bill of Information on the misdemeanor charges. It should be noted that both Exhibits
“A” and “B” bear case #423509.
It is respectfully submitted that the resisting arrest charge is of much greater significance
insofar as this 42 USC §1983 Action than the finding of the jury in the aggravated flight
proceeding. If the alleged injury to Mr. Gates took place contemporaneous with his resisting
arrest and if he is in fact convicted of resisting arrest, Mr. Gates civil rights action may very well
be barred. See Heck, supra; Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). It is important to
note that the Bush analysis only occurs following a trial and subsequent conviction on the crimes
serving as the basis for the excessive force claim. As evidenced in the Eastern District of
Louisiana’s earlier decision in Bush v. Strain, the court properly held that it could not determine
how the plaintiff’s excessive force claim would be effected by a criminal charge on resisting
arrest, as it is not possible to determine what effect the conviction would have without
considering the evidence offered at the criminal trial. See Bush v. Strain, 2004 WL 1158038
(E.D.La. 2004).
The policy of staying a 42 USC §1983 action during the pendency of a criminal
proceeding has been illustrated in numerous Fifth Circuit and Louisiana federal cases. Most
recently, in Pellerin v. Neustrom, 2011 WL 6749019 (W.D.La. 2011), the court stated that the,
“district courts within the Fifth Circuit, as well as this court, have routinely stayed civil rights
actions when criminal charges remain pending.” Pellerin at p. 3, (other citations omitted). As
17-30519.855
stated in Pellerin, “as in the present case, when it is premature to determine whether a plaintiff’s
civil damages claims may be barred under Heck, courts should stay the proceedings.” Pellerin at
p. 3 (other citations omitted). In the Eastern District of Louisiana in the recent case of Doe v.
Morris, 2012 WL 359315 (E.D.La. 2012) Judge Vance issued a stay of the federal proceeding
because the court found that a state criminal proceeding regarding the same subject matter was
ongoing. As stated in Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995), it is premature to
determine whether damage claims are barred under Heck and at this point, the court should stay
a §1983 case until the pending criminal case has run its course.
In the present case, plaintiff’s counsel represented that the jury in St. Tammany Parish
found Gates not guilty of aggravated flight or any of the lesser charges. However, with all due
respect to plaintiff’s counsel, this is not accurate. In fact, the most important criminal charges
insofar as having an effect on the 42 USC §1983 case pending before this Court remain to be
tried, i.e., the resisting arrest charges. Defendants respectfully would request that the Court
admonish plaintiff’s counsel regarding the need for complete disclosure of such information in
the future. Further, if the matter proceeds on August 31, 2012, there is little prejudice to plaintiff
in maintaining the stay until such time as the matter is resolved at trial. However, not knowing
for certain whether the matter will proceed on August 31, 2012 and considering the possibility
that the matter could be continued, either through motions filed by the District Attorney and/or
defense counsel or on the court’s own motion, this proceeding should remain stayed. If the
matter is in fact continued, then certainly this stay should not be lifted to allow the plaintiff a
green light to proceed with the civil rights action when the most important criminal case is still
pending in state court.
17-30519.856
CONCLUSION
Plaintiff in the case at hand has failed to divulge to this Honorable Court that the resisting
arrest charges and driving while intoxicated are still pending in state court and are set to be tried
on August 31, 2012. Thus, plaintiff has failed to allege facts which would warrant the lifting of
the stay in the instant matter and the overwhelming jurisprudence in the Fifth Circuit on this
issue justifies that the stay remain in place until such time as the criminal prosecution for
resisting arrest is concluded. As such, this Court should grant Defendants Request for Relief
from this Court’s Order of August 8, 2012 pursuant to F.R.C.P. 60.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And
17-30519.857

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.858
17-30519.859
17-30519.860


* NO. 07-6983
VERSUS *
*************************************
TO: Plaintiff Shane M. Gates

Through his attorney of record
Daniel G. Abel
2421 Clearview Pkwy., Suite 106
Metairie, LA 70001
Defendants hereby provide notice that the Motion for Rehearing pursuant to Federal
Rules of Civil Procedure 60 as to plaintiff’s Motion to Reopen 42 USC §1983 action will be
heard before the honorable Stanwood R. Duval, Jr., District Judge, United States District Court
for the Eastern District of Louisiana, Section K, on Wednesday, September 5, 2012 beginning at
9:30 a.m. or as soon thereafter as counsel may be heard.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
17-30519.861

Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
17-30519.862
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.863
SHANE M. GATES CIVIL ACTION NO. 2:07-CV-06983
VERSUS JUDGE STANDWOOD R. DUVAL, JR.
SHERIFF RODNEY “JACK” STRAIN, MAGISTRATE JUDGE JOSEPH C.

ET AL WILKINSON, JR.
RESPONSE TO PLAINTIFF’S MOTION TO DEPOSE JUDGES CRAIN, CHILDRESS,

BADEAUX AND BURRIS
Plaintiff, Shane M. Gates, has filed a motion to set a Rule 30(a)(2) hearing to obtain leave
to conduct the oral examination of non-party witnesses (Rec. Doc. 137). The hearing has been
set for August 29, 2012, at 11:00 a.m., before Magistrate Judge Wilkinson (Rec. Doc. 142).
Plaintiff seeks to depose Judges Crain, Childress and Badeaux over alleged ex parte meetings
and conversations with Charles Hughes, attorney for Sheriff Strain, Assistant District Attorney
Ronald Gracianette and Nicholas Noriea during the pendency of criminal proceedings involving
Shane Gates. (Rec. Doc. 137-1, ¶ 2). He seeks to depose Judge William J. Burris as to meetings
with the Louisiana Attorney General and his agents who appeared in this matter to represent the
judges named above in quashing subpoenas issued to them, purportedly as such representation
represents some sort of conflict. (Rec. Doc. 137-1, ¶ 3).
I. PLAINTIFF MUST SHOW NECESSITY FOR THE JUDGES’ TESTIMONY
Most jurisdictions have recognized and utilized a “heightened scrutiny” to the question of
whether a judge can be compelled to be a witness. Courts generally require a threshold showing
of necessity for the testimony. This threshold showing generally involves compelling a judge to
testify only if (1) the judge possesses factual knowledge, (2) that knowledge is highly pertinent
17-30519.864
to the fact-finder’s task, (3) that the judge is the only possible source of the testimony on the
relevant information, and (4) necessity notwithstanding, the testimony will not impinge upon the
Morgan or judicial deliberative process privilege (judges will not be compelled to testify as to
the mental processes or reasons that motivated the judge in his or her official acts). See, United
States v. Morgan, 313 U.S. 409 (1941); United States v. Cross, 516 F. Supp. 700 (M.D. Ga.
1981), reversed on other grounds, 708 F.2d 631 (11th Cir. 1983); United States v. Roth, 332
F.Supp.2d 565 (S.D.N.Y. 2004); State v. Sims, 725 N.W.2d 175 (Neb. 2006); Hensley v. Alcoa
Laboratories, Inc., 197 F.Supp.2d 548 (S.D.W.Va. 2002); Gold v. Warden, State Prison, 610
A2d 1153 (Conn 1992); State v. Wise, 879 S.W.2d 494 (Mo. 1994); Coleman v. State, 633 P.2d
624 (Mont. 1981); In Re Disqualification of Schweikert, 850 N.E.2d 714 (Ohio 2005); In Re
Whetstone, 580 S.E.2d 447 (S.C. 2003); Grant v. Sholala, 989 F2d 1332 (3rd Cir. 1993); State ex
rel. Kaufman, 535 S.E.2d 727 (W.Va. 2000); United States v. Dowdy, 440 F.Supp. 894 (W.D.
Va. 1977); United States v. Frankenthal, 582 F.2d 1102 (7th Cir. 1978); Robinson v. Comm. of
Internal Revenue, 70 F.3d 34 (5th Cir. 1995); United States v. Edwards, 39 F.Supp.2d 692 (M.D.
La. 1999).
Louisiana has now codified this jurisprudential rule by enacting Art. 519 of the Louisiana
Code of Evidence in Act 563 of 2012. That article provides as follows:
Art. 519. Subpoena of judge or his representative in civil and

criminal cases
A. General Rule. Neither a subpoena nor a court order shall
be issued to a judge or his representative to appear or
testify in any civil, criminal, or juvenile proceeding,
including pretrial discovery or an administrative hearing,
unless, after a contradictory hearing, it has been determined
that the information sought is not protected from disclosure
by the judicial deliberative process privilege, and all of the
following:
2
17-30519.865
(1) The information sought is essential to the case of

the party seeking the information and is not merely
peripheral, cumulative or speculative.
(2) The purpose of seeking the information is not to
harass the judge, nor for the mere purpose of
seeking recusal of the judge.
(3) With respect to a subpoena, the subpoena lists the
information sought with particularity, is reasonably
limited as to subject matter and period of time and
gives timely notice.
(4) There is no practical alternative means of obtaining
the information.
B. Waiver. Failure to object timely to a party’s non-
compliance with the provisions of this Article constitutes a
waiver of the procedural protections of this Article, but
does not constitute a waiver of any privilege.
C. The procedural provisions of and the protections afforded
by Paragraph A of this Article shall extend to any judge of
any court provided for by Article V of the Constitution of
Louisiana and to any commissioner or special master of
such court.
The purpose of these requirements are two-fold: it protects the judiciary and its
independence by recognizing the judicial deliberative process privilege and it protects the
judiciary from frivolous attacks upon its dignity and integrity and from interruption of its
ordinary and proper functioning. United States v. Dowdy, 440 F.Supp. 894, 896 (W.D. Va.
1997).
Therefore, plaintiff must make a threshold showing of necessity prior to the judges being
compelled to testify in this matter. Where one seeks information of questionable relevancy and
fails to indicate any factual basis for the information sought, the court is unable to satisfy itself
that the party is not simply embarking on a “fishing expedition.” The disclosure of information
protected by a privilege should be permitted only where the would-be discoverer makes a clear
showing of the nature of the information sought and why it believes such information is essential
to the proceeding in which discovery is sought. This required showing also allows the court to
3
17-30519.866
determine the need for a protective order to protect privileged information. To allow unlimited
discovery solely on factually unsupported general allegations would render the privilege
meaningless. See, State ex rel. Kaufman, 535 S.E.2d 727 (W. Va. 2000) and Commonwealth v.
Varten, 733 A.2d 1258 (Pa. 1999).
II. DEPOSITION OF JUDGE BURRIS OVER PURPORTED CONFLICT
Over and beyond the depositions sought over alleged ex parte communications, plaintiff
is seeking to depose Judge Burris as to meetings with the Louisiana Attorney General and his
agents who appeared in this matter to quash subpoenas directed to the judges. In addition to the
required showing of necessity set forth above, such information would likewise be subject to the
attorney-client privilege. In any event, such information is completely irrelevant and immaterial
for the simple fact that the representation of the judges by the Attorney General’s Office is not a
conflict.
The Attorney General holds a unique position in state government. Due to this
constitutional and statutory duties, dual representation is allowed in certain circumstances not
otherwise permitted in the arena of private practice. As the court in Manaco, Inc., v. State,
Louisiana Gaming Control Board, 98-1412 (La. App. 1st Cir. 12/28/99), 756 So.2d 430, 438,
noted:
We find no perceived impropriety with a system whereby

individual attorneys, albeit employed by the office of the Attorney
General, each represents a different agency, department, division,
or board of the State of Louisiana … The numerous and diverse
responsibilities of the office of the Attorney General make its
presence far-reaching in the state’s business but do not impugn the
reputation of the office or its employees. Merely because two
individual attorneys, both classified as assistant AGs, are involved
at some level in the same matter does not rob the proceedings of
the crucial appearance of fairness.
4
17-30519.867
In this case, Assistant Attorneys General appeared to quash improper subpoenas to the
judges. These attorneys serve in the Litigation Division, which is separate and distinct from the
Criminal Division1. These two divisions have separate chains of command, separate floors in the
Livingston Building, and separate access to the computer system. There is no conflict in having
Assistant Attorneys General handling criminal matters and others handling the defense of a civil
matter.
Since there is no conflict with the Attorney General’s Office representing the judges
civilly even though the office has a criminal division that prosecutes certain criminal matters, the
deposition of Judge Burris should not be allowed.
III. CONCLUSION
As to Judges Cain, Childress and Badeaux, plaintiff must factually demonstrate the
necessity of their testimony prior to compelling them to testify. This factual showing will also
enable the court to determine if a protective order is necessary to protect privileged information.
With respect to Judge Burris, there is no useful purpose to be served in deposing him as
plaintiff cannot make such a factual showing of necessity. Judge Burris’ meetings with attorneys
from the Attorney General’s Office would also be protected by the attorney-client privilege.
Lastly, there is no conflict in having the judges represented by the Attorney General’s Office.
1
Although Plaintiff is unclear about what the actual perceived conflict is, for purposes of this argument, it will be
assumed that the Attorney General’s Office Criminal Division did participate in the prosecution of Shane Gates.
5
17-30519.868

ATTORNEY GENERAL
By: s/ Bridget B. Denicola

David G. Sanders (11696)
Bridget B. Denicola (27433)
Assistant Attorneys General
Litigation Division
(225) 326-6300 Telephone
(225) 326-6192 Facsimile
denicolabb@cox.net
Counsel for The Honorable William J. Crain, The
Honorable Reginald Badeaux, The Honorable
Raymond Childress, and The Honorable William
Knight
By: s/ Robert C. Stern

Robert C. Stern (12454)
Killeen & Stern, PC
(504) 525-8111 Telephone
(504) 680-6080 Facsimile
rstern@killeen-law.com
Co-Counsel for The Honorable Raymond Childress
6
17-30519.869
I hereby certify that on the 20th day of August, 2012, a copy of the foregoing was filed
Daniel G. Abel Ralph S. Whalen, Jr.

Daniel G. Abel, Inc. Ralph S. Whalen, Jr., Attorney at Law
2421 Clearview Parkway, Suite 106 Energy Centre
Metairie, LA 70001 1100 Poydras St., Suite 2950
danielpatrickegan@gmail.com New Orleans, LA 70163
Co-Counsel for Plaintiff, Shane M. Gates ralphswhalen@ralphswhalen.com
Co-Counsel for Defendants, Walter P. Reed, St.
Martin E. Regan, Jr. Tammany District Attorney’s Office
Martin E. Regan, Jr. & Associates, PLC
2125 St. Chalres Ave. Richard Terrell Simmons, Jr.
New Orleans, LA 70130 Joseph L. Spilman, III
mregan@reganlaw.net Wiliam Glenn Burns
Co-Counsel for Plaintiff, Shane M. Gates Hailey McNamara Hall Larmann & Papale
(Metairie)
Pascal Frank Calogero, Jr. One Galleria Blvd., Suite 1400
Law Office of Pascal F. Calogero, Jr., P.O. Box 8288
APLC Metairie, LA 7011-8288
Energy Centre rsimmons@hmhlp.com
1100 Poydras St., Suite 1500 jspilman@hmhlp.com
New Orleans, LA 70163 gburns@hmhlp.com
pcalogero@alsfirm.com Counsel for Defendant, Charles M. Hughes, Jr.
Co-Counsel for Plaintiff, Shane M. Gates
Nancy Brechtel
Mark Emerson Hanna Byron D. Kitchens
Mouledoux Bland LeGrand Lawrence Emerson Abbott
& Brackett, LLC Cotton Schmidt & Abbott, LLP
701 Poydras St., Suite 4250 650 Poydras St., Suite 2810
mhanna@mblb.com nbrectel@csa-lawfirm.com
Counsel for Defendants, Rodney Jack Counsel for Defendants, Louisiana Medical Center
Strain, St. Tammany Parish Sheriff’s Office, and Heart Hospital, LLC, and Philip Duiett
Nathan Miller, Robert Gottardi, Brian
Williams and St. Paul Insurance Co.
Kathryn W. Landry
P.O. Box 82659
kathilandry@aol.com
Co-Counsel for Defendants, Walter P. Reed,
St. Tammany District Attorney’s Office
s/ Bridget B. Denicola
Bridget B. Denicola
7
17-30519.870
VERSUS NO. 07-6983
SHERIFF “JACK” STRAIN, ET AL JUDGE STANWOOD DUVAL, JR.
MAG. JUDGE JOSEPH WILKINSON, JR.
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO MOTION TO SET

RULE 30(a)(2) HEARING FOR LEAVE TO CONDUCT THE ORAL EXAMINATION
OF NON-PARTY WITNESSES
Defendants, Sheriff Rodney “Jack” Strain, in his official and individual capacity,
St. Tammany Parish Sheriff’s Office, Sheriff Deputy Nathan Miller, Sheriff Deputy
Robert Gottardi, Sheriff Deputy Brian Williams and St. Paul Insurance Company, District
Attorney Walter Reed, in his official capacity and St.Tammany Parish District Attorney’s
Office, and Charles M. Hughes, Jr. (hereinafter “Defendants”), respectfully submit this
Memorandum in Opposition to Shane Gates’s Motion to Set a Hearing for Leave to
Conduct the Oral Examination of Non-Party Witnesses.
FACTUAL BACKGROUND
This Honorable Court previously denied plaintiff’s discovery requests, inclusive of
subpoenas for depositions, citing the Stay Order that has been in place pending the
ultimate resolution of the criminal charges in the 22 nd Judicial District Court, State of
17-30519.871
Louisiana against Shane M. Gates. In an Order on Motions (Record Doc. 122), this
Court recognized that in light of Judge Duval’s Order denying plaintiff’s Motion to re-
open the case, and the case remaining stayed, that no discovery should be permitted.
Judge Duval had recognized that until the criminal matter runs its course, to allow the
civil proceeding to go forward, would be contrary to the jurisprudence of the Fifth Circuit
Court of Appeals and the Eastern District of Louisiana.
Shane Gates recently filed a Motion to Reopen this 42 USC §1983 case on the
basis that, “the twelve-person St. Tammany Jury found Shane M. Gates not guilty of the
felony aggravated flight or any of the lessor charges on Friday, 27 th of July, 2012 in
Court”. (See Record Doc. 136). Prior to defendants’ responding to this Motion, the
Court granted the Motion under the apparent impression that all criminal charges
pending against Mr. Gates and relating to the incident forming the basis for this 42 USC
§1983 case had in fact been tried. (See Record Doc. 143). However, as defendants
point out in their recently filed Joint Motion for Rehearing (See Record Doc. 145), the
most significant criminal charges having the greatest potential impact on the 42 USC
§1983 case pending before this Court in fact remain to be tried. The two counts of
misdemeanor resisting an officer and one count of operating a vehicle while intoxicated
are, in fact, set for trial before Judge Peter Garcia of the 22 nd Judicial District Court,
Parish of St. Tammany on August 31, 2012 at 8:30 a.m. Defendants respectfully submit
that they stand a reasonable chance of success on the Joint Motion for Rehearing and
same will be heard on September 5, 2012 before Judge Duval.1
1
Despite defendants’ F.R.C.P. 60, Motion for Re-Hearing, plaintiff has launched Requests for Admissions
to Charles M. Hughes and the St. Tammany Parish District Attorney as well as unilaterally setting a
deposition of Assistant District Attorney Ronald Gracianette (a non-party) and issuing a subpoena for
17-30519.872
Further, the reasons advanced in plaintiff’s Memorandum in Support of the
present motion before this Court are alleged, ex parte meetings and conversations
which took place between counsel for Sheriff Strain and various district attorneys in the
22nd Judicial District Court and several presiding judges in the 22 nd Judicial District
Court. Also, advanced as an issue are the alleged meetings of Judge William J. Burris
with the Louisiana Attorney General. No greater detail is provided in plaintiff’s
Memorandum in Support as to a factual basis for seeking the relief contained in
plaintiff’s Motion.
ARGUMENT AND LAW
1. This Court should refuse to hear this Motion until Judge Duval has ruled on
the FRCP 60 Motion.
It is respectfully submitted that defendants reasonably believe that they stand a
good chance to prevail on the Joint Motion for Rehearing pursuant to FRCP 60 on the
Motion to Reopen 42 USC §1983 action. It is respectfully submitted that the most
important criminal trial remains to take place: i.e., the trial on the two counts of resisting
arrest of an officer as same will have direct implications for purposes of a Heck v.
Humphrey analysis. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). The
suggestion that Shane Gates being found not guilty of felony aggravated flight from an
officer (Rec. Doc. 136) has application for the Heck analysis simply does not reflect an
accurate interpretation of how the Heck analysis is to be done. As the resisting arrest
charges are fundamental to the Heck analysis, and undersigned counsel believes that
defendants stand a good chance of prevailing on the Motion for Rehearing, it is
same to take place on August 24, 2012. It is anticipated that defendants will address these discovery
requests in separate motion practice.
17-30519.873
respectfully submitted that this Court should decline to hear plaintiff’s Motion at this time
until such time as Judge Duval has acted on defendants’ Motion for Rehearing which
again, is set for September 5, 2012. If the Stay Order remains in place, it should be
inclusive of the discovery contemplated by plaintiff in his Motion.
2. Alternatively, plaintiff does not set forth good reasons for taking such non-
party witness deposition.
There is no showing made by plaintiff that would compel this Court to grant the
relief plaintiff seeks with this Motion, regardless of the issue as to whether the Stay
Order was lifted without the Court being fully aware of the status of Mr. Gates’s
underlying criminal proceedings in state court.
Courts have recognized an exemption from compulsory testimony when
necessary “to protect the integrity and individual responsibility of governmental officials
whose duties involve the exercise of judicial and quasi judicial authority. Gary W. v.
State of La., Dept. of Health & Human Res., 861 F.2d 1366, 1368 (5th Cir. 1988),
quoting, Standard Packaging Corp v. Curwood, Inc., 365 F.Sup. 134, 135 (N.D. Ill.
1973). A protective order prohibiting the deposition of certain public officials is
particularly appropriate where the party seeking the discovery is unable to “show
specific need for the information”. Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir. 1982).
It is respectfully submitted that plaintiff does not set forth good reasons for taking such
depositions. There is no showing made that anything plaintiff seeks to depose the non-
party witnesses about is anything other than an exercise of judicial and/or quasi judicial
authority. Plaintiff is so vague and general in the description of the reasons he is
17-30519.874
seeking depositions of these governmental officials that one can only conclude that
without a specific showing that it is not judicial or quasi judicial, it must be the judicial or
quasi judicial function and authority.
For all of the above and foregoing reasons, it is respectfully submitted that this
Court should decline to hear plaintiff’s Motion in light of defendants’ Joint Motion for
Rehearing pursuant to FRCP 60 as to whether or not the Stay Order should in fact be
lifted and alternatively, this Court should deny plaintiff’s Motion on the merits as plaintiff
has failed to set forth sufficient facts to show why the compulsory testimony of various
district attorneys and judges should be allowed in this case.
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
E-mail: mhanna@mblb.com
Deputy Nathan Miller, Sheriff Deputy Robert
Gottardi, Sheriff Deputy Brian Williams and St.
Paul Insurance Company
MemoOppMtnSetRule30(A)HearingOralExam.docx

2950 Energy Centre
1100 Poydras Street
Telephone: 504-525-1600
Facsimile: 504-525-1606
E-mail: ralphswhalen@ralphswhalen.com
17-30519.875
s/Kathryn W. Landry
P. O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
Attorneys for Defendant Walter P. Reed, D.A.,
in his official capacity and St. Tammany Parish
s/Richard T. Simmons, Jr.

One Galleria Blvd.
Suite 1400
P. O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
E-mail: rsimmons@hmhlp.com
I hereby certify that on August 21, 2012, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of electronic
filing to all CM/ECF participants.
I further certify that I mailed the foregoing document and the notice of electronic
filing by first-class mail to the following non-CM/ECF participants. None.
s/Mark E. Hanna
17-30519.876


VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL SECTION "K"
PRELIMINARY CONFERENCE NOTICE

A PRELIMINARY CONFERENCE will be held BY TELEPHONE on
September 6, 2012, at 9:30 a.m., for the purpose of scheduling a
pre-trial conference and trial on the merits and for a discussion
of the status and discovery cut-off dates. The Case Manager shall
initiate this telephone conference.
TRIAL COUNSEL are to participate in this conference. If,
however, you are unable for good cause to do so, another attorney
in your firm may participate if acquainted with all details of the
case and authorized to enter into any necessary agreements. If,
for good cause, neither is possible, you must file a Motion and
Order to Continue at least one week prior to the above date.
Sheena Demas
Case Manager, Section "K"
504-589-7687
NOTICE
COUNSEL ADDING NEW PARTIES SUBSEQUENT TO THE

MAILING OF THIS NOTICE SHALL NOTIFY SUCH NEW PARTY
TO APPEAR AS REQUIRED BY THIS NOTICE.
COUNSEL ARE TO COMPLY WITH THE DISCLOSURE
REQUIREMENTS OF RULE 26(a)(1), 26(f) AND LOCAL RULE 26.
AND THE CORPORATE DISCLOSURE REQUIREMENTS OF
F.R.C.P. 7.1. COUNSEL ARE TO TO BE PREPARED TO ANSWER
THE ATTACHED QUESTIONS CONCERNING DISCLOSURE.
17-30519.877
IMPORTANT NOTICE TO COUNSEL
COUNSEL MUST PARTICIPATE IN THIS

CONFERENCE. A PARALEGAL OR SECRETARY MAY
NOT BE SUBSTITUTED.
COUNSEL WILL BE REQUIRED TO ANSWER THE
FOLLOWING QUESTIONS REGARDING DISCLOSURE
AT THE CONFERENCE:
1. Have all parties completed your Rule

26(a)(1) mandatory initial
disclosures?
2. Have all parties stipulated that

initial disclosures under Rule
26(a)(1) will not be made in this
case?
3. Do any of the parties object to making

Rule 26(a)(1) initial disclosures in
this case? Written objections must be
filed no later than 3 working days
before the Preliminary Pretrial
Conference is held.
4. Have the corporate parties filed their

corporate disclosure statements?
17-30519.878

07-CV-06983

MOTION TO QUASH DEPOSITION SUBPOENA AND REQUESTS FOR

ADMISSION AND/OR FOR PROTECTIVE ORDER AND FOR SANCTIONS
PURSUANT TO RULE 26 OF THE FEDERAL RULES OF CIVIL PROCEDURE
who respectfully represent:
Page 1
17-30519.879
1.
criminal charges. On July 11, 2011, this Court denied plaintiff’s motion seeking to reopen
this civil proceeding and further seeking an order from this Court staying his state court
criminal proceedings. On August 4, 2012, plaintiff filed another motion seeking to reopen
this proceeding, alleging that a jury had found him not guilty “of the felony Aggravated
Flight or any of the lesser charges”. Prior to defendants filing an opposition to that motion,
this Court granted the motion. However, on August 14, 2012, defendants herein filed a
Motion for Rehearing pursuant to Rule 60 of the Federal Rules of Civil Procedure, attaching
thereto evidence that the criminal proceeding remains pending. While plaintiff was found
not guilty on one charge of aggravated flight, the other charges of resisting arrest and driving
while intoxicated remain pending, and are currently scheduled for trial on August 31, 2012.
No ruling has yet been rendered by this Court on the Motion for Rehearing.1
2.
On August 20, 2012, plaintiff’s counsel, Daniel G. Abel, issued Requests for
Admission to “Ronald T. Gracianette, First Assistant District Attorney, St. Tammany Parish
1
There is also currently pending plaintiff’s Motion to Set Rule 30(a)(2) Hearing for Leave
to Conduct the Oral Examination of Non-Party Witnesses, which is set for hearing on August 29,
2012 before Magistrate Judge Wilkinson.
Page 2
17-30519.880
District Attorney”. However, Ronald T. Gracianette is not a party to this action, and
accordingly, Requests for Admission directed him are not allowed by Rule 36 of the Federal
Rules of Civil Procedure. Even if the Requests for Admission are deemed to be directed to
the District Attorney’s Office only, which is a party to this action, such discovery requests
are premature. For these reasons, the Requests for Admission should be quashed. A copy
of the Requests for Admission are attached hereto as Exhibit “A”.
3.
On August 18, 2012, plaintiff’s counsel, Daniel G. Abel, signed a deposition subpoena
directed to Ronald Gracianette, requesting that he appear for deposition and produce
documents on August 24, 2012 at 1:30 p.m. The subpoena was received by Mr. Gracianette
on August 20, 2012. A copy of the subpoena is attached hereto as Exhibit “B”.
3.
This subpoena was issued with no prior notice to counsel for defendant, and no notice
of deposition was issued in connection with the subpoena.
4.
Defendants assert that discovery herein is premature pending a ruling by the Court on
the Motion for Rehearing regarding the reopening of the case, and even upon reopening of
the case, discovery is premature until the Court rules on the applicability of any immunity
defense and counsel must comply with Rule 26 of the Federal Rules of Civil Procedure
regarding the timing of any discovery.
Page 3
17-30519.881
5.
requested that plaintiff’s counsel withdraw the Requests for Admission and the deposition
subpoena without the necessity of filing this motion. However, after receiving the request,
plaintiff’s counsel contacted undersigned counsel to advise that he would not withdraw the
Requests for Admission or the deposition subpoena. A copy of the request directed to Mr.
Abel requesting the withdrawal is attached hereto as Exhibit “C”.
6.
Defendants allege that the Requests for Admission and deposition subpoena were
issued for an improper purpose, and this Court should issue a protective order herein
quashing such discovery requests and subpoena and further ordering sanctions against
plaintiff’s counsel, in the form of an admonition or any other sanctions this Court deems
appropriate, for such improper issuance pursuant to Rule 26 of the Federal Rules of Civil
Procedure.
motion be granted and that a protective order be issued, quashing the Requests for Admission
and deposition subpoena issued to Ronald Gracianette and that sanctions be ordered against
plaintiff’s counsel, Daniel G. Abel, for the improper issuance of the Requests for Admission
and the deposition subpoena.
Page 4
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By: s/Ralph S. Whalen, Jr.

RALPH S. WHALEN, JR., Bar No. 8319
Energy Centre
1100 Poydras St. Suite 2950
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Motion to Quash Deposition
Subpoena and Requests for Admission and/or for Protective Order and for Sanctions
Pursuant to Rule 26 of the Federal Rules of Civil Procedure has been filed electronically.
Baton Rouge, Louisiana this 23rd day of August, 2012.
s/Kathryn Landry
KATHRYN LANDRY
Page 5
17-30519.883

07-CV-06983

MEMORANDUM IN SUPPORT OF MOTION TO QUASH DEPOSITION

SUBPOENA AND REQUESTS FOR ADMISSION AND/OR FOR PROTECTIVE
ORDER AND FOR SANCTIONS PURSUANT TO RULE 26 OF THE FEDERAL
RULES OF CIVIL PROCEDURE
Page 1
17-30519.884
of the Motion to Quash Deposition Subpoena and Requests for Admission and/or for
Protective Order and for Sanctions Pursuant to Rule 26 of the Federal Rules of Civil
Procedure.
criminal charges. On July 11, 2011, this Court denied plaintiff’s motion seeking to reopen
this civil proceeding and further seeking an order from this Court staying his state court
criminal proceedings. On August 4, 2012, plaintiff filed another motion seeking to reopen
this proceeding, alleging that a jury had found him not guilty “of the felony Aggravated
Flight or any of the lesser charges”. Prior to defendants filing an opposition to that motion,
this Court granted the motion. However, on August 14, 2012, defendants herein filed a
Motion for Rehearing pursuant to Rule 60 of the Federal Rules of Civil Procedure, attaching
thereto evidence that the criminal proceeding remains pending. While plaintiff was found
not guilty on one charge of aggravated flight, the other charges of resisting arrest and driving
while intoxicated remain pending and are currently scheduled for trial on August 31, 2012.
No ruling has yet been rendered by this Court on the Motion for Rehearing.1
1
There is also currently pending plaintiff’s Motion to Set Rule 30(a)(2) Hearing for Leave
to Conduct the Oral Examination of Non-Party Witnesses, which is set for hearing on August 29,
2012 before Magistrate Judge Wilkinson.
Page 2
17-30519.885
On August 20, 2012, plaintiff’s counsel, Daniel G. Abel, issued Requests for
Admission to “Ronald T. Gracianette, First Assistant District Attorney, St. Tammany Parish
District Attorney”. On August 18, 2012, plaintiff’s counsel, Daniel G. Abel, signed a
deposition subpoena directed to Ronald Gracianette, requesting that he appear for deposition
and produce documents on August 24, 2012 at 1:30 p.m. The subpoena was received by Mr.
Gracianette on August 20, 2012. This subpoena was issued with no prior notice to counsel
for defendant, and no notice of deposition was issued in connection with the subpoena.
With regard to the Requests for Admission, Rule 36 of the Federal Rules of Civil
Procedure allows service of such requests upon a party. However, the Requests for
Admission herein were issued to Ronald T. Gracianette, an Assistant District Attorney, who
is employed with the District Attorney’s Office, but is not a party to this action. For that
reason and the additional reasons stated below, the Requests for Admission should be
quashed.
Defendants further assert that discovery herein is premature pending a ruling by the
Court on the Motion for Rehearing regarding the reopening of the case, and even upon
reopening of the case, discovery is premature until the Court rules on the applicability of any
immunity defense and counsel must comply with Rule 26 of the Federal Rules of Civil
Procedure regarding the timing of any discovery.
Defendants allege that the issuance of both the deposition subpoena and the Requests
for Admission violates Rule 26 of the Federal Rules of Civil Procedure and was issued by
plaintiff for improper purposes, which harasses defendant and needlessly increases the cost
Page 3
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of litigation herein. Rule 26(d) provides that a party may not seek discovery from any source
before the parties have conferred pursuant to subsection (f), except in cases exempted from
initial disclosures or when authorized by rule, stipulation or court order, none of which are
applicable herein. Such conference includes discussion and proposal of a discovery plan,
with input from all counsel. Moreover, Local Rule 26.2 provides that the conference should
be held no later than seven working days prior to the preliminary conference scheduled by
the Court, and the parties are to report to the Court regarding a discovery plan.
Additionally, defendants herein intend to assert the defense of absolute and/or
qualified immunity. Accordingly, no discovery can take place herein pending a
determination of the applicability of that defense. One of the most salient benefits of
qualified immunity is protection from pretrial discovery, which is costly, time-consuming,
and intrusive. Backe v. Leblanc,(11-40460) – F.3d –, 2012 WL 3517361 (5th Cir. 2012).
Jurisprudence clearly holds that the issue of qualified immunity is a threshold question, and
discovery should not be allowed until that question is resolved. This rule is designed to
shield government officials from the burdens and costs of litigation and to prevent disruption
of governmental responsibilities. Brown v. Manning, 244 F.3d 133 (5th Cir. 2000), citing
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 736.
Defendants allege that the Requests for Admission and deposition subpoena were
issued for an improper purpose, and this Court should issue a protective order herein
quashing such Requests for Admission and deposition subpoena and further ordering
Page 4
17-30519.887
sanctions against plaintiff and his counsel for such improper issuance pursuant to Rule 26 of
the Federal Rules of Civil Procedure. Rule 26(g) provides as follows:
(1) . . . every discovery request, response, or objection must be signed by at

least one attorney of record in the attorney's own name--or by the party
personally, if unrepresented--and must state the signer's address, e-mail
address, and telephone number. By signing, an attorney or party certifies that
to the best of the person's knowledge, information, and belief formed after a
reasonable inquiry:
***
(B) with respect to a discovery request, response, or objection, it is:
(i) consistent with these rules and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law, or
for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering
the needs of the case, prior discovery in the case, the amount in controversy,
and the importance of the issues at stake in the action.
***
(3) If a certification violates this rule without substantial justification, the
court, on motion or on its own, must impose an appropriate sanction on the
signer, the party on whose behalf the signer was acting, or both. The sanction
may include an order to pay the reasonable expenses, including attorney's fees,
caused by the violation.
Counsel for plaintiff unilaterally issued the Requests for Admission and the deposition
subpoena, with no discussion, contact or agreement with defense counsel and knowingly did
so in violation of the guidelines set forth in Rule 26 of the Federal Rules of Civil Procedure.
Under applicable jurisprudence, no discovery may be conducted herein until this Court
determines the issue of immunity herein, and as stated above, plaintiff’s counsel failed to
comply with the guidelines of Rule 26 as argued above. The purpose of this subpoena was
improper, solely meant to harass and needlessly increase the cost of this litigation.
Page 5
17-30519.888
Plaintiff’s counsel failed to serve notice of any subpoenas on any counsel of record herein.
Rule 45(b)(1) provides that if the subpoena commands the production of documents,
electronically stored information or tangible items, then before it is served, notice must be
served on each party. Undersigned counsel has not received notice of any subpoena or
deposition herein from plaintiff’s counsel. The only notice undersigned counsel received was
contact from the District Attorney’s Office after the subpoena was received. Moreover, this
is not the first time plaintiff’s counsel has taken such action, unilaterally issuing subpoenas
prematurely. For all of these reasons, the issuance of the subpoena and discovery requests
was improper, and the violation of Rule 26 was made without substantial justification,
warranting the imposition of sanctions against plaintiff’s counsel, in the form of an
admonition or any other sanctions deemed appropriate by this Court. Pursuant to Rule 26
of the Federal Rules of Civil Procedure, undersigned counsel requested that plaintiff’s
counsel withdraw the Requests for Admission and the deposition subpoena without the
necessity of filing this motion. However, after receiving the request, plaintiff’s counsel
contacted undersigned counsel to advise that he would not withdraw the Requests for
Admission or the deposition subpoena.
request that this motion be granted and that a protective order be issued, quashing the
Requests for Admission and deposition subpoena issued to Assistant District Attorney
Page 6
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Ronald Gracianette, and that sanctions be ordered against plaintiff’s counsel, Daniel G. Abel,
for the improper issuance of this discovery.

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
Motion to Quash Deposition Subpoena and Requests for Admission and/or for Protective
Order and for Sanctions Pursuant to Rule 26 of the Federal Rules of Civil Procedure has been
Baton Rouge, Louisiana this 23rd day of August, 2012.
s/Kathryn Landry
KATHRYN LANDRY
Page 7
17-30519.890

07-CV-06983

Motion to Quash Deposition Subpoena and Requests for Admission and/or For Protective
Order and for Sanctions Pursuant to Rule 26 of the Federal Rules of Civil Procedure and
hereby notices such motion for submission before the Honorable Magistrate Judge Joseph
C. Wilkinson, Jr. on the 12th day of September, 2012.
17-30519.891

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Notice of Submission has been
Baton Rouge, Louisiana this 22nd day of August, 2012.
s/Kathryn Landry
KATHRYN LANDRY
17-30519.892
17-30519.893
17-30519.894
17-30519.895
17-30519.896
17-30519.897
17-30519.898
17-30519.899
17-30519.900

SHANE M. GATES * NO. 07-CV-06983

Complainant *
* CIVIL ACTION: §1983
versus *
* SECTION: K
SHERIFF RODNEY JACK STRAIN, *
CHARLES M. HUGHES, et al *
Defendants * MAGISTRATE: 2
*
*
DEFENDANT, CHARLES M. HUGHES MOTION TO QUASH PLAINTIFF’S DEPOSITION

SUBPOENA AND REQUESTS FOR ADMISSIONS AND/OR FOR PROTECTIVE ORDER
AND FOR SANCTIONS PURSUANT TO RULE 26 OF THE F.R.C.P.
NOW INTO COURT, through undersigned counsel, comes defendant, Charles M.
Hughes, Jr., who respectfully represents:
1.
Despite knowledge of undersigned counsel’s representation of defendant, Charles
Hughes for over four years, plaintiff’s counsel (Danny Abel) improperly attempted to serve
a subpoena and Request for Admissions on Mr. Hughes at his law office without contacting
Hughes’ counsel.
2.
There is a pending Motion for Rehearing as to the Court’s Order reopening the case.
(See Joint Motion for Rehearing).
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17-30519.901
3.
Plaintiff’s counsel, despite a request from undersigned counsel, has failed to
withdraw the above discovery.
4.
The plaintiff counsel’s action against Hughes and others, demonstrate a pattern of
abusive use of subpoena power for purposes of harassment.
5.
The Court should grant a Protective Order, quashing the deposition subpoena and
discovery requests and further order appropriate sanctions against plaintiff.
WHEREFORE, the defendant, Charles Hughes pray that this Motion be granted and
that a Protective Order be issued, quashing the deposition subpoena and to the Request for
Admissions directed to Charles Hughes and that sanctions be ordered against plaintiff’s
counsel, Danny Abel for improper issuance of a deposition subpoena and Requests for
Admissions on a represented client.
HAILEY, McNAMARA, HALL,

BY : /s/Richard T. Simmons, Jr._________

RICHARD T. SIMMONS, JR., #12089
Metairie, Louisiana 70011-8288
Telephone: (504) 836-6500
Counsel for Charles M. Hughes, Jr.
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17-30519.902
I hereby certify that a copy of the above and foregoing has been filed electronically.
New Orleans, Louisiana this 23rd day of August, 2012.
_/s/Richard T. Simmons, Jr.____
RTS Library:1999-63829\M_B-007941_2 _1 3
17-30519.903


Complainant *
versus *
* SECTION: K
SHERIFF RODNEY JACK STRAIN, *
CHARLES M. HUGHES, et al *
*
*
DEFENDANT, CHARLES M. HUGHES MEMORANDUM IN SUPPORT OF HIS

MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA AND REQUESTS
FOR ADMISSIONS AND/OR FOR PROTECTIVE ORDER AND FOR SANCTIONS
PURSUANT TO RULE 26 OF THE F.R.C.P.
Defendant, Charles M. Hughes, Jr., represents the following in support of his
Motion to Quash:
A. Improper Service of a Represented Client
Undersigned counsel has been counsel of record for Charles Hughes in connection
with the instant Federal Civil Rights action for over four (4) years and has also on at least
two occasions appeared on behalf of Mr. Hughes in state criminal court proceedings in St.
Tammany Parish in response to a subpoena served on Mr. Hughes by plaintiff’s counsel,
Danny Abel. Thus, it is well known to plaintiff’s counsel that Charles Hughes, in
connection with the instant Federal Case, is being represented by undersigned counsel.
On August 20, 2012, plaintiff’s counsel, Danny Abel attempted to serve Charles
Hughes at his law office in St. Tammany with a Subpoena and Requests for Admissions in
RTS Library:1999-63829\M_B-007941_1 _1 1
17-30519.904
connection with the instant Federal Civil Rights Action. Mr. Hughes was not at his office
and the process server was so advised. After briefly leaving, the server returned and
thrust the paperwork at the secretary for Mr. Hughes. The secretary refused to accept the
papers and returned them to the process server, following him outside and placing it on
his car. The server refused to take them back, and the paper work was left on the ground
outside Mr. Hughes law office. Prior to August 20, undersigned counsel received no
communications from plaintiff’s counsel Danny Abel or other plaintiff’s counsel as to an
effort to serve these pleadings on his client.
B. The Pending Motion for Hearing on Court’s Order to Re-Open Case
The District Court stayed this civil rights actions on April 16, 2008, pending the
resolution of the outstanding state criminal charges. On July 11, 2011, the Court denied
plaintiff’s effort to reopen this case, once again staying the proceedings until the outcome
of the criminal court proceedings.
Mr. Gates was arrested on several state charges including felony aggravated flight,
resisting arrest, DWI, etc. While Mr. Gates was recently found “not guilty” on one charge -
the felony aggravated flight, he is still pending trial on the other charges scheduled for
trial on August 31, 2012. The resisting arrest charge is particularly relevant to the federal
court action and is still unresolved.
On August 4, 2012, plaintiff filed another Motion seeking to reopen the proceedings,
alleging that he had been “found not guilty of the felony aggravated flight or any lesser
charge.” While it is true he was found not guilty of the aggravated flight, there was no
trial in connection with the lesser charges (e.g. resisting arrest) which are still pending.
RTS Library:1999-63829\M_B-007941_1 _1 2
17-30519.905
Basis upon plaintiff’s counsel misrepresentation of the status of the state criminal
case and prior to defendants filing an opposition, the Court granted the Motion to Reopen.
On August 14, 2012, all defendants jointly file a Motion for Rehearing pursuant to Rule 60
of the Federal Rules of Criminal Procedure based on the fact that there are still
outstanding criminal proceedings in State Court.
C. Plaintiff’s Effort at Premature Discovery and Failure to Withdraw Discovery
On August 20, 2012, plaintiff’s counsel, Danny Abel attempted to serve the discovery
directly on Mr. Charles Hughes, who is represented by counsel. There is now a
“scheduling conference” for September 6, 2010 at which such discovery issues could be
discussed if the case is open. Undersigned counsel has written a letter to Mr. Abel
directing that all discovery requests, (subpoenas, Requests for Admissions, etc.) be
directed to long standing counsel of record and not be directed to his individual client.
requested plaintiff counsel withdraw the Requests for Admissions and the subpoenas
served on Mr. Hughes without the necessity of filing this Motion. However, plaintiff’s
counsel has not complied with that request. A copy of the requested letter to Mr. Abel
requesting withdrawal is attached as Exhibit “A”.
It is suggested that the above tactics are merely a method of harassment and form a
pattern of abusive use of subpoena power, requiring undersigned counsel to respond to
such subpoenas by Motions to Quash and Motions for Protective Order.1 There has been
no prior communications between counsel and such tactics are unnecessary given Federal
1The defendant Hughes is an attorney and as an attorney for the Sheriff’s office has to assert an attorney-client
privilege. Motions for Protective Order have been filed in the State Court proceedings.
RTS Library:1999-63829\M_B-007941_1 _1 3
17-30519.906
Court procedures which govern discovery. Plaintiff’s counsel has likewise issued
discovery requests to other defendants or other persons. All defendants respectfully
suggest that discovery is premature pending a ruling by the Court on the Motion for
Rehearing as to the reopening the case and resolutions of issues with regard to
representation to this Court that the state criminal proceedings are “over”.
The defendants allege that the Requests for Admissions and deposition subpoena to
Hughes, along with similar subpoena to others, were issued for improper purposes and the
Court should issue a Protective Order herein, quashing both the subpoena and the
Requests for Admission and further ordering sanctions against plaintiff’s counsel for
improper issuance pursuant to Rule 26 of the Federal Rules of Civil Procedure. Pursuant
to local rule 54.2, attached is the Affidavit of undersigned counsel attesting to the date and
time involving service efforts in connection with the Motion pursuant to local rule 54.2.
(See Exhibit “B”)
WHEREFORE, the defendant, Charles Hughes pray that this Motion be granted
and that a Protective Order be issued, quashing the deposition subpoena and to the
Request for Admissions directed to Charles Hughes and that sanctions be ordered against
plaintiff’s counsel, Danny Abel for improper issuance of a deposition subpoena and
Requests for Admissions on a represented client.
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17-30519.907


Telephone: (504) 836-6500
RTS Library:1999-63829\M_B-007941_1 _1 5
17-30519.908


Complainant *
versus *
* SECTION: K
Sheriff Rodney Jack Strain, et al *
*
*
In consideration of the foregoing Motion;
Please take notice that defendant, Charles M. Hughes, has filed a Motion to
Quash Deposition Subpoena and Requests for Admission and/or For Protective Order
and for Sanctions Pursuant to Rule 26 of the Federal Rules of Civil Procedure and
hereby notices such motion for submission before the Honroable Magistrate Judge
Joseph C. Wilkinson, Jr. on the 12th day of September 2012.


Telephone: (504) 836-6500
RTS Library:1999-63829\M_B-007941_3 _1 1
17-30519.909
I hereby certify that a copy of the above and foregoing has been filed
electronically. Notice of this filing will be sent to all parties by operation of the Court’s
RTS Library:1999-63829\M_B-007941_3 _1 2
17-30519.910
17-30519.911
17-30519.912
17-30519.913
17-30519.914


Complainant * Civil Action: § 1983
* Section: K
v. * Magistrate: 2
*
*
Sheriff Rodney Jack Strain, et al. *
Defendants *
**************************
Ex Parte Motion to Enroll Counsel

James McClendon Williams
Shane M. Gates moves the Hon. Court to enroll James McClendon Williams as counsel
of record, to serve as co-counsel on behalf of Mr. Gates in this and any related matter.
Mr. Williams is an officer of these United States District Court for the Eastern District of
Louisiana and is accomplished in this area of practice.
s/ Daniel G. Abel s/ James McClendon Williams
Daniel G. Abel James McClendon Williams

2421 Clearview Parkway Gauthier, Houghtaling & Williams
Legal Department - Suite 106 3500 N Hullen St
Metairie, LA 70001 Metairie LA 70002-3420
Telephone” 504.208.9610 Telephone:(504) 456-8600
Facsimile: 888.577./8815 Facsimile: (504) 456-8624
Email: danielpatrickegan@gmail.com Email:jmw@ghwlegal.com
Having filed this motion with the

Clerk of Court, we have served all
counsel electronically: 25 August 2012.
s/ Daniel G. Abel
17-30519.915

* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
Mr. Shane M. Gates motion to enroll Mr. James McClendon Williams as counsel
of record, to serve as co-counsel on his behalf, is GRANTED.
Mr. James McClendon Williams is enrolled as counsel for Mr. Gates.
Ordered on this ______ day of August 2012. New Orleans, Louisiana.
_________________________________
Hon. Stanwood R. Duval, Jr.
17-30519.916

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MOTION FOR EXTENSION OF TIME TO FILE REPLY BRIEF

MOTION TO SET RULE 30(a)(2) HEARING ON 29 AUGUST 2012
Gates and counsel move the Court for an extension of time within with to file their
reply to defendants’ opposition to the Rule 30(a)(2) motion set for oral argument on this Wednesday,
29 August 2012.
In light of the fact that Hurricane Isaac is now predicted to hit the New Orleans area Tuesday
night and Wednesday morning and preparations for evacuation of the city have begun, counsel in
an abundance of caution now asks the Court for an extension of time to file the reply brief in the
Rule 30 hearing. Counsel asks the Court to extend the time of filing the reply brief to whatever date
is practical after the hurricane has passed.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.917
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
It is ORDERED that Gates has until the _______ day of ___________., 2012
by which to file his reply brief to defendants’ opposition to his Rule 30 motion.
Ordered on this ______ day of __________, 2012. New Orleans, Louisiana.
_______________________________
District Judge
17-30519.918

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION

TO DEFENDANTS’ MOTION TO REINSTATE STAY ORDER
Gates and counsel move the Court for an extension of time within which to file their
opposition to defendants’ Motion to Reinstate Stay Order, noticed for submission on 5 September
2012. Gates’s opposition and request for oral argument is due by Tuesday, 28 August 2012.
In light of the fact that Hurricane Isaac is now predicted to hit the New Orleans area Tuesday
night and Wednesday morning and preparations for evacuation of the city have begun, counsel in
an abundance of caution now asks the Court for an extension of time to file their opposition to
defendants’ motion and to request oral argument. Counsel asks the Court to extend the time of filing
the opposition brief to whatever date is practical after the hurricane has passed.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.919
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
by which to file his opposition to defendants’ motion to reinstate the stay order.
Ordered on this ______ day of __________, 2012. New Orleans, Louisiana.
_______________________________
District Judge
17-30519.920

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTION
MOTION: Plaintiff’s Motion to Set Rule 30(a)(2) Hearing for Leave to Conduct
the Oral Examination of Non-Party Witnesses, Record Doc. No. 137
O R D E R E D:
XXX : CONTINUED. Due to adverse weather conditions brought on by Tropical

Storm Isaac, IT IS ORDERED that oral argument on plaintiff’s motion, previously set
on August 29, 2012, is hereby continued to SEPTEMBER 5, 2012 at 11:00 a.m. before
me.

17-30519.921

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
September 2012
It is ORDERED that Gates has until the _______ day of ___________.,

by which to file his reply brief to defendants’ opposition to his Rule 30 motion.
Ordered on this 27th August 2012. New Orleans, Louisiana.

______ day of __________,
_______________________________
UnitedDistrict
States Judge
Magistrate Judge
17-30519.922


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
Mr. Shane M. Gates motion to enroll Mr. James McClendon Williams as counsel
of record, to serve as co-counsel on his behalf, is GRANTED.
Mr. James McClendon Williams is enrolled as counsel for Mr. Gates.
27th day of August 2012.

Ordered on this ______ New Orleans, Louisiana.
_________________________________
17-30519.923

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
Hello
For the reasons This
set forth in is
theamotion,
Test
August
by which to file his opposition to defendants’ motion to reinstate the stay order.
Ordered on this 27th August 2012. New Orleans, Louisiana.
______ day of __________,
_______________________________
District Judge
17-30519.924

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
Defendants’ Motion to Re-institute the Stay Order is noticed for submission before the
Honorable Judge Stanwood R. Duval, Jr. on 5 September 2012, commencing at 9:30 AM, and
continuing until completed or otherwise ordered by the Court.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
17-30519.925
Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
ORDER
IT IS ORDERED THAT
The matter shall be heard with oral argument on 5 September 2012, commencing at
______________________________________
17-30519.926


Complainant *
v. *
* Section: K
* Magistrate: 2
**************************
OPPOSITION TO DEFENDANTS’ MOTION
TO RE-INSTITUTE STAY ORDER
Shane M. Gates moved the Court to reopen this matter as the Twelve-Person St.
Tammany Parish Jury found Shane M. Gates NOT GUILTY of the felony Aggravated Flight or
any of the lesser charges brought on Friday, 27 July 2012. The Court reopened this action and
ordered the clerk to set it for trial. [Rec. doc. 143]. The defendants now object saying, they have
more charges they wish to bring before a local judge, having lost the first trial before a jury.
While the District Attorney did not bring the six-year old misdemeanor charges of DUI
and Resisting Arrest, they did call every witness and present every adjudicative fact about blood
alcohol and resisting arrest in an attempt to prejudice the Jury. Having brought those witnesses
and that evidence once, the District Attorney cannot now bring these old charges offering the
same evidence again.1 The evidence brought was the following.2
Heck v. Humphrey -Defeated By the Testimony of Gottardi, Miller, & Gates
I. Gottardi Admitted: Gates Was Handcuffed When His Face Slammed Onto Blacktop
Deputy Gottardi testified that he held Gates face down on the hot hood of his police car
1
Exhibit A - 23-27August 2012 Trial Minutes W ith Trial W itnesses & Evidence Identified
2
Gates has request a copy of the trial transcript, which will not be ready until mid-October.
Page 1 of 15
17-30519.927
and handcuffed Gates. Gottardi admitted that when Gates raised up, to get his face off the hot
hood, Gottardi threw Gates face-first to the concrete and “fell”on top of him. No witness now
disputes this fact: Gates was handcuffed at the time his face was slammed on the road and beaten.
Miller also testified that it was his [their] practice to hold a person’s [including Gates’s]
face onto the hood of their car to handcuff them. Miller also admitted that when Gates raised up
from the hot hood of his car, he pepper-sprayed him in the face. Miller and Gottardi confirmed
that they knowingly and intentionally held Gates’s face down onto the hot hood of each of their
cars. They admitted that it was a practice of deputies in their department. This Court is too
conversant with Heck v Humphrey to revisit and has already warned defendants as to what it will
rule if convinced Gates was handcuffed [as he was] when the injuries were inflicted upon him.
II. Gates Testified That Gottardi Beat His Head On The Concrete Until Unconscious
In Its earlier consideration of this matter, this Court was concerned that discovery might
give Gates an advantage if he did not testify at trial. Gates did testify at trial and will now testify
during discovery in this civil matter. The Court’s concern is answered. Gates also confirmed that
he was handcuffed when Gottardi threw him to the ground on his face.
What Gottardi failed to say and what Gates testified to was: that once Gottardi had thrown
him face-first onto the roadway, Gottardi repeatedly pounded his face into the concrete until Gates
passed out. During rebuttal and re-direct, neither Gottardi nor Miller disputed Gates’s testimony.
The photographs and medical records are probative of the truthfulness of Gates sworn testimony
about the cause and timing of his injuries. The Trial Minutes record [verbatim]:
Minute Entry Detail for 7/24/2012
Date 7/24/2012 Judge RICHARD A. SWARTZ Division C
Page 2 of 15
17-30519.928
Minute Entry
423508 STATE OF LOUISIANA VS SHANE MICHEAL GATES
The defendant being present in open Court attended by his Counsel, Martin Regan and this
matter being on assignment for felony jury trial. The state and defense announced their
readiness to proceed.
The defendant being present in open Court attended by his Counsel Martin Regan.
The jury was returned to the courtroom at this time.
Evidence was heard on behalf of the defense with the following named person giving
testimony:
1. Shane Gates
The jury was retired at this time.
The state at this time furnishes the court with medical records, the defense objects, stating
they have never received copies. Court informs the state not to go into the civil
liberties of case but does allow them inquiry as to the DWI. [Emphasis ours]
The jury was returned at 5:35 p.m. to the courtroom.
The defense at this time offered, introduced and filed into evidence the following:
D-3 Photo of defendant's face with eye injury
D-6 Photo of defendant's hand
Page 3 of 15
17-30519.929
The state at this time objected to the defense introducing the bloody clothing, which Court
sustained said objection.
The defense at this time offered, introduced and filed into evidence the following:
D-10 Photo of defendant's neck and chin
Further, the Court admonished the jury not to discuss the case with anyone and further
ordered them to report back tomorrow at 9:30 a.m.
III. Gottardi, the Sheriff, and D.A. Covered-Up That Gottardi Was Demoted From Detective
Gottardi also failed to admit that he was demoted and why he was demoted s a detective
from the Sheriff’s office. The District Attorney’s other main witness, Nathan Miller was allowed
to resign when he was proved to have lied during an Internal Affairs Investigation. Both the
Sheriff and the District Attorney failed to admit that Gottardi was fired and covered up that
relevant information during open-file discovery.
Counsel for Gates only learned that Gottardi was fired at trial, during cross-examination.
Counsel only learned why Gottardi was fired after trial. Gottardi perjured himself at trial when he
testified that he “does not know why he was fired” and under pressure later said “it was because
he failed to return a phone call”. Upon information and belief, Gottardi was fired for failing return
a purse and the money in the purse to a victim during an investigation.3
IV. The Twelve Person Jury Rejected All Evidence for All Matters Brought
3
Exhibit B - Requests for Admissions to former Detective Roger Gottardi
Page 4 of 15
17-30519.930
this § 1983 action. All parties to this suit testified or were given the opportunity to testify under
oath.
The concern raised by defendants and initially acknowledged by the Court that discovery
of the defendants alone would give Gates an unfair advantage, is now moot. Gates testified under
oath. The defendants testified under oath. All experts have testified under oath.
Defendants claim that there are other charges pending but the Jury was only presented with
these charges and The Twelve Person St. Tammany Parish jury found Gates NOT GUILTY on the
charges that were brought.
The defendants already presented the Jury with every witness and every piece of evidence
which they used in an attempt to relate to resisting arrest, the facts related to blood alcohol, the
facts that they would have to use again and bring again before a receptive local judge.
The minutes from the trial prove that the District Attorney has brought every witness and
all evidence already, even the evidence which would have to be heard again to prosecute the two
charges that the District Attorney did not bring. The trial minutes also confirm that the District
Attorney brought former deputy Miller, former Deputy Gottardi, Patrick Williams hospital lab
supervisor to testify about the blood test, St. Tammany Parish Toxicologist from the Coroner’s
Office Dr. Lazaguth, and others. The defendants not only failed to tell this Court, when before
Judge Duval in April of 2008, but also failed to tell Gates, that the person Roger Loll, who
actually performed the blood alcohol test was dead and had been dead since June of 2007.
The minutes prove that:
Minute Entry Detail for 7/25/2012
Page 5 of 15
17-30519.931
Minute Entry
Evidence was heard on behalf of the state with the following named person giving
testimony:
1. Philip Duet [sic] [Nurse] [Title provided by us]
The defense offered, introduced and filed into evidence the following:
MTS D-1 Copy of Department of Public Safety and Corrections
Notice to Withdraw Blood for Chemical Test for Intoxication
MTS D-2 Refusal by Shane Gates to Submit to Chemical Test
MTS D-3 Copy of Search Warrant in reference to Shane Gates
Evidence was heard on behalf of the state with the following named person giving
testimony:
2. Patrick Williams [Lab Supervisor] [Title provided by us]
At this time the Motion to Suppress was recessed.
The defendant being present in open Court attended by his counsel, Martin Regan. At
2:50 p.m. the jury was returned to the courtroom and the trial resumed at this time.
Evidence was heard on behalf of the defense with the following named person giving
testimony:
4. Dr. Bruce Kerry
The state and the defense stipulate that the witness is an expert in the field of
emergency room treatment. Court at this time accepted witness as an expert.
The jury was retired at this time.
Page 6 of 15
17-30519.932
The District Attorney also called the following witnesses to prove the DUI allegations:
[Verbatin transcription]
Minute Entry
The defendant being present in open Court attended by his Counsel, Martin Regan. The
defense having taken writ to Louisiana Supreme Court and the Court having received
notice that said writ had been denied. The trial was resumed at this time.
The jury was returned to the courtroom at this time.
The defense rested its case.
Rebuttal evidence was heard on behalf of the state, with the following named person
giving testimony:
1. Philip Duet [Nurse]
The state offered, introduced and filed into evidence the following:
S-4 Certification of Medical Records on Shane Gates
2. Patrick Williams [Lab Supervisor]
The state offered, introduced and filed into evidence the following:
S-5 Laboratory Performance Overview by BIO-RAD
3. John Lazarguth [St. Tammany Parish Assistant Coroner - Toxocologist]
The state at this time qualified the witness as an expert, and the Court accepted said
witness as an expert in the field of forensic toxicology.
Page 7 of 15
17-30519.933
4. Deputy Roger Gottardi
The jury was retired at this time for dinner recess.
The defendant being present in open Court attended by his Counsel, Martin Regan. At
8:17 p.m. the jury was returned to the courtroom.
5 Deputy Brian Williams
The jury reviewed all state and defense evidence at this time.
A discussion was held at the bench, and the defense made an oral motion for a mis-trial,
which was denied by the Court.
The state rested its case.
The state at this time made its closing argument to the jury, followed by the closing
argument by the defense.
The state made its closing rebuttal argument to the jury.
At 10:37 p.m. the jury was retired for deliberation.
The defendant being present in open Court attended by his Counsel, Martin Regan. At
11:47 p.m. the jury returned to the courtroom and through their foreperson, returned their
written verdict to the court, which verdict the clerk was ordered to read as follows: "We,
the jury, find the defendant, Shane Michael Gates, NOT GUILTY/signed Randall Evans,
Foreperson, dated, July 27, 2012. [Emphasis ours]
"We, the jury, find the defendant, Shane Michael Gates, NOT GUILTY/signed Randall
Evans, Foreperson, dated, July 27, 2012.
Page 8 of 15
17-30519.934
Police and Medical experts testified and gave scientific evidence confirming the facts
alleged in Gates’s original complaint. The St. Tammany Parish Toxicologist’s testimony
discredited the allegations made by defendants in their attempt to cover-up their use of excessive
force against Gates after he was handcuffed.
The St. Tammany Parish Jurors understood. Now the District Attorney would like to try
this matter one more time before a more receptive fact finder, a local judge.4
These minutes transcribed verbatim prove that the District Attorney presented every
witness available and offered every piece of evidence to prove both the charge of Aggravated
Flight and Flight, which charges the D.A. brought to trial. As well, the District Attorney brought
every witness and every piece of evidence which it would also have brought if it would have also
brought the six-year old misdemeanors of DUI and Resisting to trial. But the District Attorney did
not bring those misdemeanors to trial.
As perplexing, the Trial Court never ruled on defendant’s longstanding motion to dismiss
the misdemeanor charges for a variety of reasons, although those motions have been pending for
over five years, since the spring of 2007. Those motions were set on more than five dates when
the original judge presided over the prosecution.
V. How Many Criminal Trials Can The District Attorney Bring and Why?
has been six years since the defendants beat up Gates while he was handcuffed; it has been four
4
The local judge named in defendants’ motion is the target of several pending investigations.
Page 9 of 15
17-30519.935
years since this federal action was stayed. Gates has had one of the three prognosed surgeries.
VI. Why Do the District Attorney and Sheriff Need and Want Another Trial?
The District Attorney wants another trial as his office was complictuous with the Sheriff
and other defendants in the fabrication of evidence and malicious prosecution perpetrated against
Gates over the last six years. Not only have these defendants fabricated evidence they have hidden
evidence including but not only the fact that Gottardi was demoted as a detective and the
dishonesty which lead to his firing.
These earlier facts underlying such were testified to under oath on 10 May 2010 5:
charges against Gates in order to save money for his insurance company [$500,000] and to
protect certain deputies from the civil rights actions pending against them in federal court
[Exhibit B - Recusal Hearing Transcript, 10 May 2010, pp. l31-139];
(2) ADA Ronald Gracianette testified that there was no need to add “Resisting Arrest” charges
for the purpose of prosecution, as those charges were not enhancable and served no
purpose for the prosecution whatsoever [Exhibit B - Recusal Hearing Transcript, 10 May
2010, p.85-89];
(3) ADA Ronald Gracianette then testified that he personally told Hughes what Hughes and
the Sheriff could do to have the District Attorney add the charges of “Resisting Arrest”-
They would have to characterize the deputies as Victims of Gates [Exhibit B - Recusal
5
Transcript of 10 May 2010 hearing in the record of this matter.
Page 10 of 15
17-30519.936
Hearing Transcript, 10 May 2010, p.85-93];
(4) Hughes testified that he told the Sheriff’s uncle Chief Deputy Al Strain what the District
Attorney wanted the deputies [“As Victims”] to write, in order for the District Attorney to
add “Resisting Arrest” charges [Exhibit B - Recusal Hearing Transcript, 10 May 2010,
p.120-125];
(5) Hughes testified that the deputies’ letter was delivered from his office to the District
Attorney, just before the District Attorney recharged Gates with resisting arrest. [Exhibit B
- Recusal Hearing Transcript, 10 May 2010, p. 100, ff.];
(6) Hughes told Abel when they first met that he would have resisting arrest charges added, as
he did, if Gates went forward with any civil rights claims [Exhibit B - Recusal Hearing
Transcript 10 May 2010, pp. 36-38];
(7) ADA Gracianette testified that the District Attorney, he, and ADA Dearing have been
named in the civil rights action pending in federal court-[but this would not influence his
decision in adding charges or prosecuting the underlying case] [Exhibit B - Recusal
Hearing Transcript, 10 May 2010, pp.93-94].
But on 5 January 2012, Nathan Miller testified that He Did Not Write or Know of the
Letter that Hughes and Gracianette said that he [Miller] wrote. Miller’s 5 January 2012 testimony
is the underlying basis for a perjury motion which the trial court also refused to hear.
The public or any “reasonable person” would conclude that Hughes used his public
position with the Sheriff in concert with Chief Deputy Al Strain and the District Attorney’s office
to institute the specific prosecution for purposes and in a manner prohibited by the federal and
state constitutions and Louisiana law. These matters arose from a traffic stop during which
Page 11 of 15
17-30519.937
certain sheriff deputies violated Gates most elemental civil rights.
VII. Summary Of Underlying Fabrication of Facts by Deputies and District Attorney
diagnose him with permanent nerve damage and prognose four [4] corrective surgeries; [Exhibit
A - Photographs] Private investigators have located a former officer on the scene that night and
will testify that the supervisor had to intervene to stop the officers from continuing to beat him.
medical experts have stated that a BAC in that range is not possible considering Gates’ GCS
scores and E/V/M results taken and recorded at the same time.
in anticipation of Gates’s seeking to redress their brutality and use of excessive force. In concert
with hospital personnel, the deputies had Gates shipped out of Louisiana to Hattiesburg,
Mississippi, claiming that there were no doctors on duty that could treat him in Jefferson, Orleans,
or St. Tammany parishes. Investigators have confirmed that there were such doctors on duty in
Jefferson, Orleans, and also St. Tammany parishes.
The deputies decided later to charge Gates with Obstruction of a Highway of Commerce, a
felony. They charged him with a felony in order to cover up for the serious damages which they
have inflicted upon him. When the charges got to the District Attorney the Obstruction change
was converted to a Aggravated Flight, still a felony. The District Attorney changed the charge to
“Aggravated Flight” so that they would have a felony with which to bargain against the serious
Page 12 of 15
17-30519.938
injures the deputies had inflicted upon him. A cursory look at the police notes from that night,
prove that Gates did not obstruct anything, much less I-12 Highway.
judge. The judge signed a warrant for “Obstruction of a Highway”, but that warrant was never
served and Gates was never arrested on any charge other than DUI.
Gates was never arrested for “Aggravated Flight” and no warrant for that charge was ever
issued. Without any conversation or further interaction with the ONE officer who made the
stop—not the officers who arrived later, at the scene, who were the only ones who signed
affidavits initiating the arrest—the District Attorney simply charged Gates with felony flight that
might fit once the officer was told what to say. Obstruction of a highway could not fit any facts.
the transcripts are examined carefully. The charges were fabricated by the District Attorney
without any affidavit or sworn statement from or conversation with the ONE officer who could
have been the only witness to the stop. Hughes and Gracianette both testified that there was no
contact with this officer prior to fabrication of the “Deputies-as-Victims” letter, to which they
were all parties.
Page 13 of 15
17-30519.939
purpose of obstructing or preventing any redress of the violation of Gates’s civil rights, which on
the Friday before the Monday morning trial—true to his word, Hughes did just that. The fact of
this meeting and Hughes’ threat are also evidenced under oath. [See : Testimony from 2010
Hearing cited in paragraph 6 on page 3 above].
Conclusion
The Court re-opened this matter on 8 August 2012. It should remain opened and go
forward. While this matter was stayed Gates’s exercise of his constitutional rights have been
stayed as well. Gates has testified at trial and will testify in discovery. Gates is the only person
prejudiced if this matter—after six years—is again stayed. Gates is the only person who will be
prejudiced if the defendants are allowed to continue falsifying and fabricating evidence which has
already been completely rejected by a jury of Gates’s peers.
Gates has been found NOT GUILTY by a St. Tammany Parish Jury of his peers on Friday,
27 July 2012 on ALL THE CHARGES WHICH THE DISTRICT ATTORNEY BROUGHT TO
TRIAL. The misdemeanor charges were not brought timely and have not been acted upon since
2007. The underlying probable cause arising from the charges of aggravated flight or even simple
flight justifying any stop have been rejected by the St. Tammany Parish Jury. The District
Page 14 of 15
17-30519.940
Attorney has already offered every witness and every piece of evidence adjudicative of the
misdemeanor charges not brought. The testimony of Gottardi, Miller, Hughes, and Gracianette
defeat the upcoming argument, qualified immunity, have established facts which defeat their
claim for such.
Gates has testified at trial, will again testify during discovery, and at the trial.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
Page 15 of 15
17-30519.941

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL SECTION: "K"(2)
ORDER
The Plaintiff Shane M. Gates' Request for Oral Argument (Doc. 162) is DENIED. The
motion shall be considered submitted.

17-30519.942


* NO. 07-6983
VERSUS *
*************************************
MOTION FOR LEAVE TO FILE REPLY MEMORANDUM
NOW INTO COURT, through undersigned counsel, comes defendants Sheriff Rodney
“Jack” Strain in his official and individual capacity, Sheriff Deputy Nathan Miller, Sheriff
Office, Charles M. Hughes, Jr. (hereinafter referred to collectively as “Defendants”) who pray
that they be granted leave of court in order to file the attached Reply Memorandum in Support of
their Joint Motion for Re-hearing pursuant to FRCP 60 on the Motion to Re-Open 42 USC§1983
action. Defendants respectfully submit that leave is warranted as the attached memorandum is
brief, was filed promptly after receipt of plaintiff’s memorandum in opposition, 1 and will assist
the Court in clarifying various inaccurate statements and/or applications of law contained in
plaintiff’s opposition.
WHEREFORE, Defendants Sheriff Rodney “Jack” Strain in his official and individual
capacity, Sheriff Deputy Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian
Williams and St. Paul Insurance Company, District Attorney Walter Reed, in his official capacity
1
See Record Document No. 163 (filed August 31, 2012).
17-30519.943
and St. Tammany Parish District Attorney’s Office, Charles M. Hughes, Jr. pray that they be
granted leave in order to file the attached Reply Memorandum.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
17-30519.944
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
record via the Court’s CM/ECF system, this 4th day of September, 2012.
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.945


* NO. 07-6983
VERSUS *
*************************************
REPLY MEMORANDUM IN SUPPORT OF JOINT MOTION FOR RE-HEARING

PURSUANT TO F.R.C.P. 60 ON MOTION TO RE-OPEN 42 USC§1983 ACTION
Defendants Motion is noticed for submission before this Court on September 5, 2012.
Plaintiff has requested Oral Argument (Record Document 162), but same was denied (Record
Document 165). The Defendants wish to address briefly the merits of Plaintiff’s Opposition filed
on August 31, 2012.
Plaintiff’s Memorandum Is Of No Assistance to the Court
Plaintiff spends the vast majority of his opposition arguing evidence presented in the
felony aggravated flight trial on July 27, 2012 and that the findings of the jury in that case
somehow have a preclusive effect on the misdemeanor resisting arrest trial that was set for
August 31, 2012 and anticipated to be reset very soon. Plaintiff also argues, “having brought
those witnesses and that evidence once, the District Attorney cannot now bring these old charges
offering the same evidence again”. (See Record Document 163 at p. 1). Further, Plaintiff
suggests that the misdemeanor prosecution is not timely. (Record Document 163 at p. 14).
Plaintiff offers no case citations or other law to suggest that Defendants’ arguments as set forth
in their Motion for Re-Hearing are in error.
17-30519.946
Essentially, the plaintiff is asking this Court to determine the merits of the pending
misdemeanor prosecution in state court, which prosecution is based on the charge of resisting
arrest. This is tantamount to seeking federal judicial review of an ongoing state criminal
proceeding. It is respectfully submitted that what plaintiff seeks in this opposition is a review and
action that would be contrary to the doctrine of Younger abstention and/or the Rooker-Feldman
Doctrine, which prohibits review of a plaintiff’s claims seeking to undo what the state court has
done.
The fact is that the misdemeanor resisting arrest charge is still pending and it is for the
state court trial judge to consider the arguments advanced by the plaintiff within the context of
this opposition to defendants’ motion. Once that happens, then the effect of the resisting arrest
charge and prosecution in the present case will be known. Plaintiff seeks to have this court
evaluate the validity and correctness of the state court misdemeanor prosecution while ongoing
and not wait until the state trial court has decided these issues.
Younger abstention provides that a federal court must abstain from considering a case in
favor of an ongoing state proceeding, if the relief sought in federal court would interfere with the
state proceeding. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). As plaintiff can raise
the same arguments advanced in this opposition memorandum directly to the judge in the state
criminal proceeding, plaintiff cannot maintain a parallel federal action involving the same
claims. The Younger abstention requires the federal court to defer to the state proceeding. See
Borkowski v. Fremont Inv. and Loan of Anaheim, Cal., 368 F. Supp.2d 822 (N.D. Ohio 2005).
Plaintiff has offered nothing to suggest that state criminal procedure law prevents a presentation
of these very same arguments to the state criminal trial court judge. Further, under the
17-30519.947
Rooker-Feldman Doctrine, this opposition of plaintiff in the federal proceeding is in substance, a
collateral attack seeking to undo in advance whatever the state court judge might do insofar as
the state misdemeanor criminal prosecution. Although there are no judgments currently in place
as to whether the District Attorney in St. Tammany Parish can go forward with the misdemeanor
prosecution as plaintiff suggests, plaintiff is attempting an “end run” to have this Court
determine the propriety of the misdemeanor prosecution before it happens and thus essentially
making a ruling on the Heck v. Humphrey issue even before the Court has adjudicated the issue
of Mr. Gates’ guilt or innocence on the resisting arrest charge and any issues that might have
direct application to this ongoing civil proceeding.
Plaintiff’s allegations are focused squarely upon the validity of the actions of the District
Attorney’s office in prosecuting plaintiff’s misdemeanor resisting arrest charge. Plaintiff’s
opposition makes clear that they seek to defeat Defendant’s motion because they allege the state
court proceedings are erroneous and they believe they have been harmed by the state court
proceedings. Plaintiff’s opposition invites this Federal District Court to review and reject the
actions of the state court which is contrary to Younger abstention and the Rooker-Feldman
Doctrine. Such an opposition is not properly within the jurisdiction of the Federal District Court
and Plaintiff’s avenue for redress is through the trial courts and appellate courts of the Louisiana
State Court System.
Considering the above, this Court should reject plaintiff’s opposition to the Joint Motion
for Re-hearing pursuant to FRCP 60 and reinstitute a stay of the 42 USC §1983 action until such
time as the underlying misdemeanor resisting arrest charge has been fully litigated to a decision
by the trial court.
17-30519.948
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

17-30519.949

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.950

* NO. 07-6983
VERSUS *
*************************************
ORDER
Considering the Motion for Leave to File Reply Memorandum filed by Defendants
Sheriff Rodney “Jack” Strain, in his official and individual capacity, Sheriff Deputy Nathan
Company, District Attorney Walter Reed, in his official capacity and St. Tammany Parish
District Attorney’s Office, Charles M. Hughes, Jr.; accordingly,
IT IS HEREBY ORDERED BY THE COURT that Defendants’ motion is GRANTED.
Defendants are hereby granted leave to file a Reply Memorandum.
_______________________________________
h:\1050\12315 - gates\pleadings\mtn for leave to file reply memo - order.docx
17-30519.951


* NO. 07-6983
VERSUS *
*************************************
JOINT MOTION TO CONTINUE PRELIMINARY CONFERENCE
NOW INTO COURT, through undersigned counsel, come Sheriff Rodney “Jack” Strain,
in his official and individual capacity, Sheriff Deputy Nathan Miller, Sheriff Deputy Roger
Gottardi, Sheriff Deputy Brian Williams and St. Paul Insurance Company, District Attorney
Walter Reed, in his official capacity and St. Tammany Parish District Attorney’s Office, Charles
M. Hughes, Jr. (herein after referred to collectively as “Defendants”), who respectfully request
that the preliminary conference in this matter currently scheduled for September 6, 2012 at 9:30
a.m. be continued to be re-set after such time as the Court has ruled on the Joint Motion for Re-
hearing Pursuant to F.R.C.P. 60 on Motion to Re-Open 42 USC§1983 action (Record document
145) and for the reasons as are more fully set forth in the attached memorandum hereto.
WHEREFORE, considering the above and foregoing, it is respectfully requested that the
preliminary conference be continued until such time as the Court has ruled on the Joint Motion
for Re-hearing pursuant to F.R.C.P. 60 on Motion to Re-Open 42 USC§1983 action.
/s/ Mark E. Hanna

17-30519.952

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

17-30519.953
One Galleria Blvd.

Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.954


* NO. 07-6983
VERSUS *
*************************************
JOINT MOTION TO CONTINUE PRELIMINARY CONFERENCE
On August 4, 2012 plaintiff filed a “Motion to Re-open 42 USC §1983 Action as the 12
Person St. Tammany Jury Has Found Gates Not Guilty of Aggravated Flight or Any Lesser
Charge”. Prior to undersigned counsel filing its opposition to the aforementioned motion, this
Honorable Court issued an Order that the Motion to Re-open the matter be granted and that the
case manager set the matter for trial. This Order was signed on August 8, 2012 and entered into
the record on August 9, 2012. (See Record Document 143).
Subsequently, the Defendants filed a Motion for Re-hearing Pursuant to FRCP 60. (See
Record Document 145). As set forth in the Memorandum in Support of the Motion for
Re-hearing, under the rational of Heck v. Humphrey, 512 US 477, 114 S.Ct. 2364 (1994) and
subsequent interpreting case law, the instant proceeding could potentially be rendered moot by
plaintiff’s conviction on a resisting arrest charge currently pending in St. Tammany Parish. The
resisting arrest charge and driving while intoxicated were set for trial on August 31, 2012, but
were continued because of Hurricane Isaac and it is anticipated will be reset shortly.
17-30519.955
Undersigned counsel contacted counsel for the plaintiff to determine if counsel for the
plaintiff objected to this continuance and counsel for the plaintiff does object.
It is respectfully submitted that to conduct a preliminary conference, enter into a
scheduling order, set pre-trial conference and trial dates and various cut off dates and comply
with FRCP 26 disclosure requirements while the Motion for Re-hearing on the Motion to Lift the
Stay of this proceeding is pending is, respectfully, premature. Defendants would respectfully
suggest that the preliminary conference be continued to be reset only after the Court has ruled on
the Motion for Re-hearing and determined whether or not the stay will in fact be reinstituted in
this civil proceeding.
Thus, for all of the above and foregoing reasons, it is respectfully requested that the
preliminary conference be continued to be reset as prayed for herein.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

17-30519.956
2950 Energy Centre

1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
h:\1050\12315 - gates\pleadings\joint mtn to continue preliminary conf - memo.docx
17-30519.957


* NO. 07-6983
VERSUS *
*************************************
To: Plaintiff Shane Gates

through his attorney of record
Daniel G. Abel
Suite 106
Metairie, LA 70001
Defendants hereby provide Notice that the Joint Motion to Continue Preliminary
Conference will be heard before the Honorable Stanwood R. Duval, Jr., District Judge,
United States District Court for the Eastern District of Louisiana, Section K on
Wednesday, September 19, 2012, beginning at 9:30 a.m. or as soon thereafter as counsel
may be heard.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneysfor Defendants
17-30519.958
/s/ Mark E. Hanna

MARK E. HANNA
h:\1050\12315 - gates\pleadings\joint mtn to continue preliminary conf - notice of submission.docx
17-30519.959
Case 2:07-cv-06983-SRD-JCW Document 168 Filed 09/04/12 Page 1 of 4


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
REPLY TO DEFENDANTS’ OPPOSITION
TO GATES’S FRCP RULE 30 MOTION
depositions.
In their oppositions, defendants asked for “more information” as to why certain judges would
be noticed for depositions. Those judges would be noticed because they have had prohibited ex parte
conversations with the counsel for the sheriff Charles Hughes and as well as ex parte conversations
with ADA Nick Noriea and ADA Ronald Gracianette and others.
At issue also are the ex parte meetings and conversations that took place between counsel
Charles Hughes for Sheriff Rodney “Jack” Strain as well as District Attorney Ronald Gracianette
and Nicholas Noriea and presiding Judges William J. Crain, Judge Raymond S. Childress, Judge
Reginald T. Badeaux, III — during the time each of these judges was presiding over the criminal
matter involving Shane Gates prior to which the St. Tammany Parish Jury found Gates NOT
GUILTY of all the charges brought before that jury on 23-27 July 2012.
As these judges have refused oral examination under oath, counsel seeks leave under Rule
30(a)(2) to notice and take oral examination under oath, of each.
takings is granted by this Court.
I. Judge Badeaux Recused After Facts Filed Into the Record
Counsel for Shane M. Gates requested that a Motion for En Banc Recusal be submitted to
the Entire Bench of the 22nd Judicial District Court. On Thursday, 14 April 2011, Judge R. Badeaux
instructed counsel that the matter of en banc recusal would be presented to the entire court. And that
Page 1 of 4
17-30519.960
no other action would take place until the committee of the entire court decided what it wished to
do.
Judge Badeaux recused himself and advised counsel that once the matter was considered by
the bench, counsel would be notified of the actions the bench had taken. Judge Badeaux did not set
any new dates for motions or trial, nor did he ask the clerk of court to reassign the case to another
division—prior to an en banc meeting and decision by the bench. Contrary to what the Judge
Badeaux had ruled, Sheriff’s counsel Chuck Hughes and ADA Nick Noreia went to the clerk, had
the matter reassigned and asked that it to be set immediately for trial. Their actions call into question
the authority and the integrity of the Bench Itself. It raises the more element question: Who Runs the
Court, Its Judges or Sheriff’s Counsel Chuck Hughes?
The Louisiana Judiciary Commission Had Already Found Against Judge Badeaux Mandating
His Recusal For Ex Parte Actions In Another Matter
The Louisiana Judiciary Commission has found Judge Reginald Badeaux guilty of violating:
“reasonable persons” would conclude that he would be even more partial in favor of the District
Page 2 of 4
17-30519.961
Attorney and the Sheriff. As well, the relationships between persons working in his court on a daily
basis, create another instance of partiality which would alarm the “reasonable person” by any
application of that standard.
Although Hughes’s ex parte contacts with judges in the district are notorious, if not simply
legendary, in this instance those ex parte contract have been admitted by Judge Badeaux himself.
Judge Badeaux having admitted those contacts and conversations with Hughes, has recused himself.1
Judge Raymond Childress was encouraged to recused himself also.
II. Judge Childress Recused After Facts Filed Into the Record
On Friday, 15 April 2011, Sheriff’s Counsel Chuck Hughes and ADA Noreia instructed the
clerk of court to go forward, re-allot the case and set it for trial immediately.
Hughes and Noreia’s actions call into question the integrity of these Courts themselves and
whether the presiding judge has any authority over the setting of motions and trials in his or her own
division? Not to mention whether judges are obligated in the 22nd JDC to consult opposing counsel
about availability for motion and trial dates, as the judges in other judicial districts are, and always
do. After ADA Nick Noreia spoke with Judge Raymond Childress about having Gates and counsel
Abel arrested and incarcerated until such time as lead counsel Martin Regan could appear and trial
the case, Judge Childress personally told Gates and Abel that he was going order them both
arrested—as Noriea had asked Judge Childress to do. Martin Regan was in trial in Criminal Court
in Orleans Parish, as both Noriea and Judge Childress knew that he was in trial.
When presented with these action and with his actions in a pending RICO case in federal
case, Judge Childress also recused himself.
III. Numerous Conflicts Have Existed for Years But Were Not Revealed, Until Exposed
This calls into question a more serious issue: if counsel had not filed his motion to recuse
would anyone has ever know of the contacts and influence Hughes and the District Attorneys has
had on the judges presiding over state court criminal prosecution.
1
Judge Badeaux admitted ex parte conversations with Hughes about this matter and undersigned counsel
including that Hughes told him counsel was a “bad guy” [euphemism mine] and to which Badeaux added
that Hughes was going to sue me for his fiancee [Badeaux’s] over a business dispute. Badeaux’s
statements confirmed again, his disregard for the law and rules and Hughes’s practice of having ex parte
conferences with the judges in this district, and the other Hobbs Acts violations pending in federal court.
The Louisiana Judiciary Commission found Judge Badeaux guilty of violating the Canons of Judicial
Conduct regarding ex parte conferences and ex parte actions. He has admitted to most of the violations.
The Louisiana Supreme Court heard the matters and determined sanction on 11 May 2011
[Louisiana Supreme Court Docket No. 11-0-0214].
Page 3 of 4
17-30519.962
How many more ex parte contacts has Hughes had regarding this matter with the sitting
judges in this district, much less which other judges in other matters. Federal depositions subpoenas
have issued to each of the other judges who handled this matter in the past, seeking information
about prior ex parte contacts between Hughes and the other judges who have presided over this case.
Those depositions are set to be taken on 29 April 2011 but were subsequently quashed and continued
without date.
Gates moves the Court to grant his motion and allow him to depose these individuals for the
express and particular purpose of discovery their ex parte communications and the extent of the
constitutional and civil rights violations arising therefrom.
Submitted and certified, Certificate of Service
Daniel G. Abel [La.Bar No. 8348] I have filed this pleading with the
2421 Clearview Parkway Clerk of Court electronically and
Legal Department - Suite 106 served all counsel: 4 September 2012.
Metairie, LA 70001
Telephone: 504.208.9610
Facsimile: 888.577.8815
Page 4 of 4
17-30519.963


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
OPPOSITION TO DEFENDANTS’ MOTION TO QUASH

DEPOSITIONS OF HUGHES AND GRACIANETTE
AND TO QUASH WRITTEN DISCOVERY
Counsel served defendants with written discovery and noticed Charles Hughes and
Ronald Gracianette for depositions on 22 August 2012. Counsel for defendants filed a motion to
quash the depositions and the written discovery. In order to prevent additional expense, counsel
agreed to continue the depositions without date until such time as the Court ruled on the motion.
Counsel did not agree to withdraw or continue the time within which the written discovery
would be due.
The Court is too familiar with the facts and allegations underlying these 1983 violations to
revisit them again. Over the six year prosecution of the state court action, counsel and others have
discovered the fabrication or evidence, the spoliation of evidence, perjury, and fraud in the criminal
prosecution.
As well, ex parte conversations have been discovered and admitted between several presiding
judges and several district attorneys, sheriff’s officers and the attorney for the sheriff. Among those
persons who the Louisiana Supreme Court has already ordered to testify were those individuals,
Charles Hughes and Ronald Gracianette, whose deposition were set for 22 August 2012 at the
Lafayette Room of the LSBA Bar Center, 601 St. Charles Avenue, New Orleans, Louisiana.
I. Depositions of Hughes and Gracianette — Prohibited Ex Parte Violations
Gates and counsel will depose these individuals concerning facts in evidence
in the record of the state court prosecution. The questions raised here, are answered in
the sworn testimony transcribed at the 10 May 2010 hearing. The testimony given under oath
proves the allegations made in the original complaint.
Page 1 of 13
17-30519.964
1. Does the sworn admission of the fabrication of the “Deputies-as-Victims” letter
constitute a constitutional rights violation;
2. Does the sworn admission by ADA Gracianette that he worked with Sheriff’s
Counsel Chuck Hughes and Deputy Sheriff Al Stain, in writing the “Deputies-as-
Victims” letter, constitute a constitutional rights violation;
3. Does the sworn admission and evidence that “Deputies-as-Victims” letter was
was not written by former deputy Nathan Miller constitute a constitutional rights
violation;
4. Does the evidence that the “Deputies-as-Victims” letter was never known to Miller
despite the fact that Hughes testified that Miller wrote it and brought it to his or the
district attorney’s office constitute a constitutional rights violation;
5. Does the sworn admission by ADA Gracianette that the “Resisting Arrest” charges
were not necessary for the prosecution but that they were added at the request of the
Sheriff and his attorney Chuck Hughes, constitute a constitutional rights violation;
6. Does the sworn admission that Sheriff and Counsel asked the DA to file the
“Resisting Arrest” charges against Gates to bar Gates’s 42 U.S.C. § 1983
action—because at the time prior to the Fifth Circuit’s decision in Holly Bush [also
decided against Sheriff Jack Strain], a conviction for resisting arrest was an absolute
bar to excessive force claim, constitute a constitutional rights violation;
7. Does sworn testimony of the fact that Sheriff’s Attorney Chuck Hughes told Gates’s
counsel that he would call the DA and have the “Resisting Arrest” charges added, if
Gates filed a § 1983 action in federal court and that he, acting in concert with the
Chief Deputy Al Strain and ADA Gracianette, did have those charges added,
constitute a constitutional rights violation;
8. Does the fact that during the 10 May 2010 hearing, a sequestered witness was
provided with the testimony of other witnesses, prior to testifying himself, constitute
a violation of Gates’s constitutional rights,constitute a constitutional rights violation;
and
9. Does the sworn testimony and evidence now in the record of the 22nd Judicial District
Court’s proceedings, prove that Hobbs Act purposes as well as the lack of integrity
Page 2 of 13
17-30519.965
and failure of the DA and Sheriff to be constrained by the Louisiana and United
States Constitutions, with which the entire prosecution was handled, confirm that this
matter constitute a constitutional rights violation.
Three years ago, this Court stayed these proceedings and all such discovery as requested not
but advised that Gates could ask that the stay to be lifted in six months if the underlying matters had
not been resolved [16 April 2008][R.doc.81]. The Court opened this matter recently.
II. Evidence & Testimony Proving § 1983 Violations
During those same three years, investigators, former law enforcement officers and counsel
have gathered evidence of § 1983 violations and discriminatory prosecution practices by the District
Attorney and the Sheriff and his attorneys, which undersigned counsel is now prepared to present
to this Court.
§ 1983 offenses by Chuck Hughes, counsel for Sheriff Jack Strain and District Attorney Walter P.
Reed, and attorneys working in his office. They were ordered to testify in a hearing for a motion to
recuse the District Attorney. On 10 May 2010, they testified under oath.
Surprisingly, at the 10 May 2010 hearing, the defendants admitted those violations under
oath. The facts which defendants have sworn to are now in evidence proving allegations made over
three years ago. Those admissions call for the Court to reopen this matter and allow Gates to exercise
his due process rights under the United States Constitution and federal law: 42 U.S.C. §1983.
III. 10 May 2010 - Testimony Given Under Oath
original allegations, their testimony also proved that counsel for the Sheriff Jack Strain and Strain’s
uncle Chief Deputy Al Strain acted in concert with the District Attorney Gracianette, to recharge
Gates for the specific purposes of:
Page 3 of 13
17-30519.966
this was done. The testimony of each is set forth in the paragraphs below and cited to the hearing
transcript which is attached hereto.1
The Court should reopen this matter and stay the prosecution pending in the 22nd Judicial
District Court.
IV. Facts Now In Evidence As Sworn to by Defendants and Their Agents
These facts were testified to under oath on 10 May 2010 3:
charges against Gates in order to save money for his insurance company [$500,000]
and to protect certain deputies from the civil rights actions pending against them in
federal court [Exhibit B - Recusal Hearing Transcript, 10 May 2010, pp. l31-139];
(2) ADA Ronald Gracianette testified that there was no need to add “Resisting Arrest”
charges for the purpose of prosecution, as those charges were not enhancable and
served no purpose for the prosecution whatsoever [Exhibit B - Recusal Hearing
(3) ADA Ronald Gracianette then testified that he personally told Hughes what Hughes
1
2
3
Page 4 of 13
17-30519.967
and the Sheriff could do to have the District Attorney add the charges of “Resisting
Arrest”- They would have to characterize the deputies as Victims of Gates [Exhibit
B - Recusal Hearing Transcript, 10 May 2010, p.85-93];
(4) Hughes testified that he told the Sheriff’s uncle Chief Deputy Al Strain what the
District Attorney wanted the deputies [“As Victims”] to write, in order for the
District Attorney to add “Resisting Arrest” charges [Exhibit B - Recusal Hearing
Transcript, 10 May 2010, p.120-125];
(5) Hughes testified that the deputies’ letter came from his law office and was delivered
to the District Attorney, just before the District Attorney recharged Gates with
resisting arrest. [Exhibit B - Recusal Hearing Transcript, 10 May 2010, p. 100, ff.];
(6) Hughes told Abel when they first met that he would have resisting arrest charges
added, as he did, if Gates went forward with any civil rights claims [Exhibit B -
Recusal Hearing Transcript 10 May 2010, pp. 36-38];
(7) ADA Gracianette testified that the District Attorney, he, and ADA Dearing have
been named in the civil rights action pending in federal court-[but this would not
influence his decision in adding charges or prosecuting the underlying case] [Exhibit
B - Recusal Hearing Transcript, 10 May 2010, pp.93-94].
with the Sheriff in concert with Chief Deputy Al Strain and the District Attorney’s office to institute
the specific prosecution for purposes and in a manner prohibited by the federal and state
constitutions and Louisiana law. These matters arose from a traffic stop during which certain sheriff
deputies violated Gates most elemental civil rights.
V. Written Discovery Requests Probative of § 1983 Civil Rights Violations
Requests for Admissions address matters already testified to in trial or at hearing in the state
prosecution. In particular they address facts underlying the violations of Gates’s civil and
constitutional rights.
As well, subpoenas have been issued to the District Attorney and the Sheriff to produce
documents and department investigations which they failed to produce under Brady and Kyle and
which were discovered through exhaustive cross-examination at trial.
Neither the District Attorney nor the Sheriff relieved that defendant former detective Roger
Page 5 of 13
17-30519.968
Gottardi was demoted from that position for what appears to be dishonesty. The other former deputy
defendant Nathan Miller was also forced to resign when caught lying during a investigation. Gottardi
lied at trial when he testified that “he could not recall” why he was demoted from the position of
detective. A subsequent investigation revealed why he was demoted and prove that he lied under
oath and perjured himself at trial.
The request for admissions address his lies and perjury at trial. They are as follows.
[SERVED ON FORMER DETECTIVE GOTTARDI]
REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO. 1
ADMIT THAT: You testified in the matter of the State of Louisiana v. Shane M.
Gates during the week of 23-27 July, 2012 in the 22nd Judicial District
Court for the Parish of St. Tammany.
ADMIT THAT: You testified that you had been promoted to detective sometime after
the 16 November 2006, incident involving Shane M. Gates.
ADMIT THAT: You testified that you had subsequently been demoted from the
position of detective with the St. Tammany Parish Sheriff’s Office.
ADMIT THAT: You testified that you did not remember why you had been demoted
from the position of detective with the St. Tammany Parish Sheriff’s
Office.
ADMIT THAT: You testified that “you could not recall” why you had been demoted
from the position of detective with the St. Tammany Parish Sheriff’s
Office.
ADMIT THAT: You eventually testified that you thought you were demoted from the
Page 6 of 13
17-30519.969
position of detective with the St. Tammany Parish Sheriff’s Office
because “you did not return a phone call”.
ADMIT THAT: In fact you did know why you were demoted from the position of
detective with the St. Tammany Parish Sheriff’s Office.
ADMIT THAT: In fact, the St. Tammany Parish Sheriff’s Office had conducted an
investigation which resulted in your being demoted from the position
of detective with that office.
ADMIT THAT: The St. Tammany Parish Sheriff’s Office conducted a departmental
investigation into your conduct which caused the Sheriff’s department
to demote you from your position of detective with that office.
ADMIT THAT: You did know when you testified at trial the reason why the Sheriff
demoted you from the position of detective.
ADMIT THAT: The reason you were demoted from the position of detective is that
you took property from a St. Tammany Parish citizen during an
investigation.
you took cash from a St. Tammany Parish citizen during an
investigation.
did not return the property you took from the St. Tammany Parish
citizen.
Page 7 of 13
17-30519.970
did not return the cash you took from the St. Tammany Parish citizen.
ADMIT THAT: The reason you were demoted from the position of detective was also
because you did not “return her phone calls” when she tried to
recover her property.
ADMIT THAT: The reason you were demoted from the position of detective was also
because you did not “return her phone calls” when she tried to
recover her cash.
ADMIT THAT: Your taking of the money and property from the St. Tammany Citizen
was the reason you were demoted from the position of deputy.
ADMIT THAT: You knew this was the reason why you were demoted from the
position of detective on the day you testified at trial.
ADMIT THAT: You did not tell the truth when you testified that you “could not
recall” why you were demoted from the position of detective.
ADMIT THAT: You did not tell the truth when you testified that you “could not
remember” why you were demoted from the position of detective.
ADMIT THAT: The real reasons why you were demoted from the position of
detective were in the internal affairs report which lead to your
demotion.
ADMIT THAT: You and Sheriff’s Attorney Brian Trainor discussed the reasons why
Page 8 of 13
17-30519.971
you were demoted from the position of detective prior to your
testifying at trial.
ADMIT THAT: You and ADA Nick Noriea discussed the reasons why you were
demoted from the position of detective prior to your testifying at trial.
ADMIT THAT: You and Sheriff Jack Strain discussed the reasons why you were
demoted from the position of detective prior to your testifying at trial.
ADMIT THAT: The file concerning the investigation of this matter and your demotion
were given to the Court as part of the open-file discovery request.
REQUEST FOR ADMISSION NO. 26.
ADMIT THAT: You are a defendant in the above captioned matter pending in the
United States District Court for the Eastern District of Louisiana.
Upon information and belief, neither Gottardi, Noriea, the Sheriff gave the files regarding
this matter to the Court as the Court did not inform Gates or Counsel of its existence and did not
know that Gottardi had also been fired from his position, as had Miller.
Gottardi should answers these questions and the District Attorney and Sheriff should produce
the files related to Gottardi’s demotion, as those have been requested through the federal subpoenaes
issued from this Court.
As well, Gracianette and Hughes should answer the requests served on them and pertinent
to the violation of Gates’s § 1983 constitutional and civil rights including but not only the fabrication
of evidence, the spoliation of evidence, the personal ex parte contacts with Judges Crain, Badeaux,
Childress, and most recently Garcia and other matters know through the six year investigation and
to be revealed to this Court between now and the time of trial.
[SERVED ON ADA RONALD GRACIANETTE]
Page 9 of 13
17-30519.972
ADMIT THAT: You have testified under oath on 10 May 2010 in the matter captioned
State of Louisiana v. Shane M. Gates in the 22nd Judicial District
Court for the Parish of St. Tammany.
ADMIT THAT: You were ordered by the Louisiana Supreme Court to testify under
oath on 10 May 2010 in the matter captioned State of Louisiana v.
Shane M. Gates in the 22nd Judicial District Court for the Parish of St.
Tammany.
ADMIT THAT: You have had ex parte conversations with certain judges in St.
Tammany while those judges were presiding over that matter.
ADMIT THAT: You had ex parte conversations about the Gates matter with Judge
William Crain during the time he was presiding over the matter.
ADMIT THAT: Judge Reginald Badeaux, III recused himself from the Gates matter.
ADMIT THAT: You are aware that Judge Reginald Badeaux, III admitted during an
in chambers recusal hearing that your office had ex parte
conversations about the matter.
ADMIT THAT: Judge Badeaux recused himself after admitting that he had had ex
parte conversations with Sheriff’s Counsel Charles M. Hughes, Jr.
about the Gates matter.
ADMIT THAT: ADA Nick Noriea had ex parte conversations with Judge Raymond
Childress at the time Childress was presiding over the Gates matter.
ADMIT THAT: Judge Raymond Childress recused himself subsequent to the ex parte
Page 10 of 13
17-30519.973
conversations.
ADMIT THAT: You have had ex parte conversations with other presiding judges
about the Gates matter, not only with Judges Crain, Childress, and
Badeaux.
ADMIT THAT: ADA Nick Noriea had ex parte conversations with other presiding
judges about the Gates matter, not only with Judges Crain, Childress,
and Badeaux.
[SERVED ON SHERIFF’S COUNSEL HUGHES]
ADMIT THAT: You are the General Counsel for the St. Tammany Parish Sheriff’s
Department.
ADMIT THAT: You represent the defendant St. Tammany Parish Sheriff’s
Department in matter captioned Holly Ray Bush v. Roddy “Jack”
Strain, pending in the United States District Courts for the Eastern
District of Louisiana, at Docket No.2: 03-cv-02836
ADMIT THAT: That you spoke with Assistant District Attorney Bruce Dearing on the
afternoon of 17 September 2007.
ADMIT THAT: That you spoke with Dearing about charging Mr. Gates with Resisting
Arrest.
ADMIT THAT: That Mr. Dearing did charge Mr. Gates with Resisting Arrest three
days later, on 20 September 2007.
Page 11 of 13
17-30519.974
ADMIT THAT: You told Mr. Dearing that Gates could not pursue a 42 U.S.C. § 1983
action, if he was convicted of Resisting Arrest.
ADMIT THAT: You met with Gates civil attorney Daniel Abel on 24 July 2007.
ADMIT THAT: You did not know on 24 July 2007 that the District Attorney had not
charged Mr. Gates with Resisting Arrest.
ADMIT THAT: You told Mr. Abel that you “would call or have the Sheriff call the
District Attorney and have him charges Gates with Resisting Arrest
and that would put an end to any civil rights claims he would have.”
ADMIT THAT: Mr. Dearing did charge Mr. Gates with Resisting Arrest on Monday
20 September 2007.
ADMIT THAT: Mr. Dearing charged Mr. Gates with Resisting Arrest only three [3]
days after you asked him to.
ADMIT THAT: Mr. Dearing charged Mr. Gates with Resisting Arrest almost ten [10]
months after the initial traffic charges were filed against Gates.
ADMIT THAT You have not spoken personally about the Gates matter with deputy
Roger Gottardi.
ADMIT THAT: You have not spoken personally about the Gates matter with deputy
Brian Williams.
ADMIT THAT: You have not spoken personally about the Gates matter with deputy
Nathan Miller.
Page 12 of 13
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ADMIT THAT: You have not received correspondence from any of the deputies
involved in the Gates matter.
Conclusion: The Court Should Order Depositions & Discovery to Go Forward
Neither Gottardi, Noriea, the Sheriff gave the files regarding this matter to the Court as the
Court did not inform Gates or Counsel of its existence and did not know that Gottardi had also been
fired from his position, as had Miller.
Gottardi should answers these questions and the District Attorney and Sheriff should produce
the files related to Gottardi’s demotion, as those have been requested through the federal subpoenas
issued from this Court.
Gracianette and Hughes should answer the requests served on them and pertinent to the
violation of Gates’s § 1983 constitutional and civil rights including but not only the fabrication of
evidence, the spoliation of evidence, the personal ex parte contacts with Judges Crain, Badeaux,
Childress, and most recently Garcia and other matters know through the six year investigation and
to be revealed to this Court between now and the time of trial.
There is a Rule 30 Motion pending before the Court. Once decided, all persons with facts and
information relevant and material to the fabrication of evidence, the spoliation of evidence, the
personal ex parte contacts with Judges Crain, Badeaux, Childress, and Garcia should be ordered to
appear for their deposition, answer written discovery, and produce all documents and materials and
evidence requested.
Gates and counsel moves the Court to order these depositions, answers, and responses to
written discovery.
Daniel G. Abel [La.Bar No. 8348] I have filed this pleading with the
2421 Clearview Parkway Clerk of Court electronically and
Legal Department - Suite 106 served counsel: 4 September 2012.
Metairie, LA 70001
Telephone: 504.208.9610
Facsimile: 888.577.8815
Page 13 of 13
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MINUTE ENTRY
WILKINSON, M. J.
SEPTEMBER 5, 2012


VERSUS NO. 07-6983
STRAIN ET AL.
HEARING AND ORDER ON MOTION
APPEARANCES: Daniel Abel, representing plaintiff; Mark Hanna, Ralph Whalen, Jr.,
Mary Brechtel and Richard Simmons, Jr., representing defendants;
David Sanders, representing non-party Judges Raymond Childress,
William J. Crain, Reginald Badeaux and William Burris
MOTION: Plaintiff’s Motion to Set Rule 30(a)(2) Hearing for Leave to Conduct
the Oral Examination of Non-Party Witnesses, Record Doc. No. 137
O R D E R E D:
XXX : DENIED IN PART AND DISMISSED AS MOOT IN PART. In this motion,

plaintiff, Shane M. Gates, seeks leave to depose four (4) state court trial judges, three (3) of
whom were involved in or conducted parts of the state court criminal proceedings against
Gates, which are substantially related to the Section 1983 civil action that he asserts in the
instant case. Plaintiff’s perfunctory motion papers state only that (a) the depositions of three
(3) of the judges are sought concerning “ex parte meetings and conversations that took place
between” these judges and some of the defendants and/or their agents, and (b) the deposition
of the fourth judge is sought “as to his meetings with the Louisiana Attorney General and his
agents who appeared in federal court to represent the judges. . . .” Record Doc. No. 137-1
at p. 1.
As to the fourth judge whom plaintiff proposes to depose, William Burris, who did
not preside over any portion of plaintiff’s state court criminal proceedings, plaintiff’s counsel
stated during oral argument that he no longer wants to depose Judge Burris. Accordingly,
the motion is dismissed as moot as to the deposition of Judge Burris. The motion is denied
as to plaintiff’s request to depose the three other judges.
MJSTAR: 0 : 15
17-30519.977
Depositions of judges concerning their official duties are disfavored, principally

because of the judicial deliberative process privilege. Federal law applicable to this issue,
including both Supreme Court and Fifth Circuit precedent, which plaintiff’s motion papers
fail to cite or address, has been thoroughly and concisely summarized in Ciarlone v. City of
Reading, 263 F.R.D. 198 (E.D. Pa. 2009), as follows:
The decision making process of a judge is usually not a discoverable
matter. The general rule is that a judge may not be compelled to testify
concerning the mental processes used in formulating official judgments or the
reasons that motivated him in the performance of his official duties. [O]nly in
the most extraordinary cases, such as a strong showing of bad faith or
improper behavior by a judge or quasi-judicial officer or where circumstances
were such to overcome the presumption of regularity as to the acts of the
decision maker, may a judge be questioned as to matters within the scope of
his adjudicative duties. Nonetheless, a judge may be called to testify to
relevant matters of fact that do not probe into or compromise the mental
processes employed in formulating the judgment in question.
Id. at 202 (citations and quotations omitted) (emphasis added).
Applying the foregoing standard, I find that the instant motion must be denied and the
requested depositions of the three state court judges who at various times presided over
Gates’s criminal proceedings must be prohibited. Plaintiff’s motion papers provide only the
vaguest of descriptions of the subject matter sought to be explored in these depositions.
However, plaintiff’s counsel made clear at oral argument that his deposition questions will
delve into matters concerning the judges’ mental processes and the information provided to
the judges in connection with the conduct of their adjudicative functions in the state court
criminal proceedings against plaintiff, which arise from the same incidents that are the
subject of this civil lawsuit. Specifically, plaintiff’s counsel stated at oral argument that he
intended to depose the judges concerning ex parte conversations that they allegedly had
about the substance of the criminal proceedings, which conversations were allegedly directed
to affect the judges’ thinking and mental processes in their rulings in the criminal
proceedings.
No effort has yet been made to obtain information concerning these alleged ex parte
contacts from the defendants themselves or from the other witnesses named in plaintiff’s
motion. The deposition testimony of these other persons may render the depositions of the
judges unnecessary and would not present the same judicial deliberative process privilege
issues raised by deposing the judges. Plaintiff has made no showing of extraordinary
circumstances sufficient to permit the judges’ depositions.
For all of the foregoing reasons, leave is not granted to depose the state court judges,
and any attempt to notice their depositions or subpoena them is prohibited at this time.

17-30519.978

Shane M. Gates *
Complainant *
*
v. * No. 07-CV-06983
*
John Doe Nos.1-5; *
Defendants *
**************************
OPPOSITION TO DEFENDANTS’ MOTION TO CONTINUE

6 SEPTEMBER 2012 SCHEDULING CONFERENCE AS MOOT;
SCHEDULING CONFERENCE HELD AND TRIAL DATE SELECTED
In compliance with the order of this Court, Its Case Manager conducted the scheduling
conference at 9:30 AM. Over the objections of defendants’ counsel, the Case Manager went
forward in compliance with Judge Duval’s order and selected 29 July 2012 as the trial date.
This matter will be tried by a jury and all discovery dates and other cutoffs have been set. As
the Court conducted its scheduling conference as ordered by Judge Duval, the defendants’
motion to postpone this conference is moot.
All the 42 U.S.C. § 1983 claims and Louisiana law claims shall be tried at that time. Neither
17-30519.979
the claims advanced nor those to be tried are simply “excessive force” claims. The facts support
numerous § 1983 claims and state law claims which have been alleged and are still pending since
the original petition was filed in 2007. Because of the action taken by the Court Itself, defendants
motion is now moot.

Legal Department, Suite 106 all counsel. 6 September 2012.
Telephone: 504.284.8521
Facsimile: 888.577.8815
-2-
17-30519.980


* NO. 07-6983
VERSUS *
*************************************
ORDER
Considering the Motion for Leave to File Reply Memorandum filed by Defendants
Sheriff Rodney “Jack” Strain, in his official and individual capacity, Sheriff Deputy Nathan
Company, District Attorney Walter Reed, in his official capacity and St. Tammany Parish
District Attorney’s Office, Charles M. Hughes, Jr.; accordingly,
IT IS HEREBY ORDERED BY THE COURT that Defendants’ motion is GRANTED.
Defendants are hereby granted leave to file a Reply Memorandum.
_______________________________________
h:\1050\12315 - gates\pleadings\mtn for leave to file reply memo - order.docx
17-30519.981


* NO. 07-6983
VERSUS *
*************************************
REPLY MEMORANDUM IN SUPPORT OF JOINT MOTION FOR RE-HEARING

PURSUANT TO F.R.C.P. 60 ON MOTION TO RE-OPEN 42 USC§1983 ACTION
Defendants Motion is noticed for submission before this Court on September 5, 2012.
Plaintiff has requested Oral Argument (Record Document 162), but same was denied (Record
Document 165). The Defendants wish to address briefly the merits of Plaintiff’s Opposition filed
on August 31, 2012.
Plaintiff’s Memorandum Is Of No Assistance to the Court
Plaintiff spends the vast majority of his opposition arguing evidence presented in the
felony aggravated flight trial on July 27, 2012 and that the findings of the jury in that case
somehow have a preclusive effect on the misdemeanor resisting arrest trial that was set for
August 31, 2012 and anticipated to be reset very soon. Plaintiff also argues, “having brought
those witnesses and that evidence once, the District Attorney cannot now bring these old charges
offering the same evidence again”. (See Record Document 163 at p. 1). Further, Plaintiff
suggests that the misdemeanor prosecution is not timely. (Record Document 163 at p. 14).
Plaintiff offers no case citations or other law to suggest that Defendants’ arguments as set forth
in their Motion for Re-Hearing are in error.
17-30519.982
Essentially, the plaintiff is asking this Court to determine the merits of the pending
misdemeanor prosecution in state court, which prosecution is based on the charge of resisting
arrest. This is tantamount to seeking federal judicial review of an ongoing state criminal
proceeding. It is respectfully submitted that what plaintiff seeks in this opposition is a review and
action that would be contrary to the doctrine of Younger abstention and/or the Rooker-Feldman
Doctrine, which prohibits review of a plaintiff’s claims seeking to undo what the state court has
done.
The fact is that the misdemeanor resisting arrest charge is still pending and it is for the
state court trial judge to consider the arguments advanced by the plaintiff within the context of
this opposition to defendants’ motion. Once that happens, then the effect of the resisting arrest
charge and prosecution in the present case will be known. Plaintiff seeks to have this court
evaluate the validity and correctness of the state court misdemeanor prosecution while ongoing
and not wait until the state trial court has decided these issues.
favor of an ongoing state proceeding, if the relief sought in federal court would interfere with the
state proceeding. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746 (1971). As plaintiff can raise
the same arguments advanced in this opposition memorandum directly to the judge in the state
criminal proceeding, plaintiff cannot maintain a parallel federal action involving the same
claims. The Younger abstention requires the federal court to defer to the state proceeding. See
Borkowski v. Fremont Inv. and Loan of Anaheim, Cal., 368 F. Supp.2d 822 (N.D. Ohio 2005).
Plaintiff has offered nothing to suggest that state criminal procedure law prevents a presentation
of these very same arguments to the state criminal trial court judge. Further, under the
17-30519.983
Rooker-Feldman Doctrine, this opposition of plaintiff in the federal proceeding is in substance, a
collateral attack seeking to undo in advance whatever the state court judge might do insofar as
the state misdemeanor criminal prosecution. Although there are no judgments currently in place
as to whether the District Attorney in St. Tammany Parish can go forward with the misdemeanor
prosecution as plaintiff suggests, plaintiff is attempting an “end run” to have this Court
determine the propriety of the misdemeanor prosecution before it happens and thus essentially
making a ruling on the Heck v. Humphrey issue even before the Court has adjudicated the issue
of Mr. Gates’ guilt or innocence on the resisting arrest charge and any issues that might have
direct application to this ongoing civil proceeding.
Plaintiff’s allegations are focused squarely upon the validity of the actions of the District
Attorney’s office in prosecuting plaintiff’s misdemeanor resisting arrest charge. Plaintiff’s
opposition makes clear that they seek to defeat Defendant’s motion because they allege the state
court proceedings are erroneous and they believe they have been harmed by the state court
proceedings. Plaintiff’s opposition invites this Federal District Court to review and reject the
actions of the state court which is contrary to Younger abstention and the Rooker-Feldman
Doctrine. Such an opposition is not properly within the jurisdiction of the Federal District Court
and Plaintiff’s avenue for redress is through the trial courts and appellate courts of the Louisiana
State Court System.
Considering the above, this Court should reject plaintiff’s opposition to the Joint Motion
for Re-hearing pursuant to FRCP 60 and reinstitute a stay of the 42 USC §1983 action until such
time as the underlying misdemeanor resisting arrest charge has been fully litigated to a decision
by the trial court.
17-30519.984
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

17-30519.985

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.986
C.A. 07-6983 "K"(2)

COUNSELOR:
PLEASE READ THIS ORDER CAREFULLY.
IT CONTAINS INSTRUCTIONS
REGARDING MOTION PRACTICE,
PROCEDURES FOR SCHEDULING A
SETTLEMENT CONFERENCE, AND TRIAL
PROCEDURES THAT APPLY IN SECTION
"K" ONLY.
FAILURE TO COMPLY WITH THE
PROCEDURES OUTLINED HEREIN COULD
RESULT IN EXCLUSION OF EVIDENCE OR
OTHER APPROPRIATE ACTION BY THE
COURT.
17-30519.987

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL SECTION: K (2)
SCHEDULING ORDER
A Preliminary Conference was held on September 6, 2012.
Participating were:
Daniel Abel, Mark Hanna, Kathryn Landry, Ralph Whalen, Jr.,
Richard Simmons, Jr., Nancy Brechtel
Pleadings have been completed. Jurisdiction and venue are established.
All pretrial motions, including motions in limine regarding the admissibility of expert
testimony (Daubert), shall be filed no later than May 28, 2013 and served in sufficient time to permit
hearing on June 12, 2013. Section "K" adheres to Local Rule 78.1E with respect to motion practice
and oral argument. Any motions filed for hearing in violation of this order shall be deemed waived
unless good cause has been shown. All other motions in limine shall be allowed to be filed up to
the time of trial or as otherwise ordered by the Court.
Counsel shall complete all disclosure of information as follows:
Initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) have not been completed.
All parties have stipulated that initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) will not
be conducted in this case.
Depositions for trial use shall be taken and all discovery shall be completed not later
than May 28, 2013.
Amendments to pleadings, third-party actions, cross-claims, and counterclaims shall
17-30519.988
be filed no later than October 9, 2012. A party may amend the party's pleading only by leave of
court or by written consent of the adverse party.
Counsel adding new parties subsequent to mailing of this Notice shall serve on each
new party a copy of this order. Pleadings responsive thereto, when required, shall be filed within
the applicable delays therefor.
Written reports of experts, excluding treating physicians, who may be witnesses for
Plaintiffs fully setting forth all matters about which they will testify and the basis therefor shall be
obtained and delivered to counsel for Defendant as soon as possible, but in no event later than
March 27, 2013. If any party determines that because of special circumstances an expert report
should be provided by a treating physician (i.e. if a causation opinion is rendered) a motion shall be
filed no later than 120 days prior to the trial date to compel a report.
Written reports of experts, who may be witnesses for Defendants fully setting forth
all matters about which they will testify and the basis therefor shall be obtained and delivered to
counsel for Plaintiff as soon as possible, but in no event later than April 29, 2013.
Counsel for the parties shall file in the record and serve upon their opponents a list
of all witnesses who may or will be called to testify at trial and all exhibits which may or will be
used at trial not later than April 29, 2013.
The Court will not permit any witness, expert or fact, to testify or any exhibits to be
used unless there has been compliance with this Order as it pertains to the witness and/or exhibits,
without an order to do so issued on motion for good cause shown.
In jury cases with more than one hundred (100) pages of exhibits, ALL exhibits must
be put on CD rom. In non-jury cases, a numbered set of exhibits and exhibit list shall be delivered
17-30519.989
to chambers one week prior to trial (unless it is likely that more than five hundred (500) pages of
exhibits will be involved). In such circumstances, the Court may order that the exhibits be put on
CD rom. This will be discussed at the telephone status conference scheduled by the Court.
Additionally, any party intending to offer computer generated evidence (which is not
ordinary documentary evidence, but evidence created by computer software), counsel must allow
opposing counsel sixty (60) days prior to the pretrial conference to examine the exhibit or a copy,
and all underlying assumptions and/or software. Discovery regarding such evidence may continue
thirty (30) days beyond this deadline. Any challenge to the evidence shall be by motion in limine.
Computer generated evidence includes any evidence, substantive or demonstrative, which is created
or generated by computer, but excludes any evidence which has not been modified in any way and
which is to be exhibited or presented during the trial.
IT IS ORDERED THAT COUNSEL FOR THE PLAINTIFF SHALL CONTACT
THE ASSIGNED MAGISTRATE JUDGE SIX WEEKS PRIOR TO THE PRETRIAL
CONFERENCE DATE FOR THE PURPOSE OF SCHEDULING A SETTLEMENT
CONFERENCE WHICH SHOULD BE HELD WITHIN TWO WEEKS PRIOR TO THE
PRETRIAL CONFERENCE.
IT IS FURTHER ORDERED THAT COUNSEL FOR THE PLAINTIFF SHALL
INFORM THE COURT BY LETTER OF THE DATE AND TIME OF SAID CONFERENCE.
This case may involve extensive documentary evidence, depositions or other
discovery. No special discovery limitations beyond those established in the Federal Rules or Local
Rules of this Court are established.
A Telephone Status Conference will be held on March 14, 2013 at 10:30 a.m. This
17-30519.990
telephone conference call shall be initiated by plaintiffs’ counsel to Chambers at (504) 589-
7540. All counsel of record shall participate. All counsel should be prepared to discuss the
status of the case, including a discovery schedule, amendments to pleadings and any issue
which needs to be addressed in order to maintain the trial date.
Final Pretrial Conference will be held on June 27, 2013 at 1:30 p.m. Counsel will
be prepared in accordance with the final Pretrial Notice attached. THE PRETRIAL ORDER
SUBMITTED TO THE COURT MUST BE DOUBLE SPACED AND SIGNED BY ALL
COUNSEL.
Trial will commence July 22, 2013 at 8:30 a.m. before the District Judge with a
jury. Attorneys are instructed to report for trial no later than 30 minutes prior to this time. Trial is
estimated to last 5 day(s). The starting time on the first day of a jury trial may be delayed or moved
up because of jury pooling.
Deadlines, cut-off dates, or other limits fixed herein may only be extended by the
Court upon timely motion filed in compliance with the Local Rules and upon a showing of good
cause. Continuances will not normally be granted. If, however, a continuance is granted, deadlines
and cut off dates will be automatically extended, unless otherwise ordered by the Court.
New Orleans, Louisiana this 7th day of September, 2012

Issued for the Court:

By: Sheena Demas
Case Manager
(504) 589-7687
17-30519.991
NOTE:
ON THE MORNING OF TRIAL COUNSEL ARE TO FURNISH THE CASE MANAGER
WITH: 1. A LIST OF ALL WITNESSES THAT WILL BE CALLED DURING TRIAL; 2.
A LIST OF ALL EXHIBITS THAT ARE TO BE OFFERED DURING TRIAL, EXHIBITS
ARE TO BE PRE-MARKED AND NUMBERED IN ACCORDANCE WITH THE EXHIBIT
LIST. ALL EXHIBITS TO BE ADMITTED INTO THE RECORD SHALL BE CLEAN,
CLEAR COPIES AND 8 1/2 x 11 or 8 1/2 X 14. IF LARGER, IE: BLOWUPS, POSTER,
LARGER PHOTOS, ETC., THESE SHOULD BE REDUCED TO THE
AFOREMENTIONED SIZE FOR THE RECORD. COUNSEL TO READ ALL OF THE
ATTACHED DOCUMENTS THOROUGHLY.
17-30519.992

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL SECTION: K (2)
ADDENDUM TO SCHEDULING ORDER
Motions for summary judgment and oppositions to motions for summary judgment
shall be filed in compliance with Local Rules 56.1 and 56.2 E & W, requiring parties to file a short
and concise statement of material facts as to which there does or does not exist a genuine issue to
be tried. Additionally, each party shall make specific reference to record evidence supporting its
statement of material facts. Citations to record evidence shall indicate, whenever applicable, an
exhibit reference, page reference, and record document number reference. Record evidence not
specifically referred to by the parties may not be considered by the Court.
17-30519.993
17-30519.994
17-30519.995
17-30519.996
17-30519.997
17-30519.998
17-30519.999
17-30519.1000
17-30519.1001
17-30519.1002
17-30519.1003
17-30519.1004
17-30519.1005
17-30519.1006

VERSUS NO. 07-6983
ORDER
IT IS ORDERED that the Joint Motion to Continue Preliminary Conference is MOOT
as the conference has been held.

17-30519.1007

VERSUS NO. 07-6983

STRAIN ET AL.
ORDER ON MOTIONS
MOTIONS: (1) Motion of Defendants Walter P. Reed and St. Tammany

District Attorney’s Office to Quash Deposition Subpoena and
Requests for Admissions and/or for Protective Order and for
Sanctions Pursuant to Fed. R. Civ. P. Rule 26, Record Doc.
No. 150
(2) Motion of Defendant Charles M. Hughes to Quash Plaintiff’s
Deposition Subpoena and Requests for Admissions and/or for
Protective Order and for Sanctions Pursuant to Fed. R. Civ. P.
26, Record Doc. No. 151
O R D E R E D:
(1), (2) : GRANTED IN PART AND DENIED IN PART as provided herein. Although
a motion for reconsideration is pending before the district judge, Record Doc. Nos. 143,
145 and 165, the stay has been lifted and the Rule 16 scheduling conference has been
conducted. A trial date and discovery deadline have been set. Record Doc. No. 177. This
case is now almost five (5) years old. Discovery and trial preparation must commence and
proceed until such time, if ever, that the case is again stayed. Accordingly, the pending
motions are addressed as follows:
The motions are denied insofar as they seek a protective order and/or an order
quashing the depositions of Ronald Gracianette and Charles Hughes and the Requests for
Admissions submitted to Charles Hughes. IT IS ORDERED that Charles Hughes must
provide plaintiff with his written responses to the Requests for Admissions no later than
October 12, 2012. IT IS FURTHER ORDERED that all counsel must confer via
telephone immediately and schedule the depositions of Gracianette and Hughes on a
17-30519.1008
mutually convenient date so that these depositions may be completed no later than October
31, 2012.
Obviously, if the presiding district judge again stays this case before this discovery
is completed, it will not go forward.
The motion is granted insofar as it seeks an order quashing the Requests for
Admissions submitted to Ronald Gracianette, who is not a party to this action. Rule 36
discovery may be conducted only as to parties, not non-parties. No responses to these
Requests for Admissions need be provided.
The motion is granted insofar as it seeks an order that service of discovery and other
papers be served on counsel. All counsel must comply with Fed. R. Civ. P. 5(b)(1).
The motions are denied insofar as they seek sanctions. I find that a reasonable
apportionment of the expenses incurred in connection with these motions is that each side
should bear its own. Fed. R. Civ. P. 37(a)(5)(C).

-2-
17-30519.1009


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
Ex Parte Motion to Enroll

Counsel
Alanah Odoms Hebert
Shane M. Gates moves the Hon. Court to enroll Alanah Odoms Hebert as counsel of
record, to serve as co-counsel on behalf of Mr. Gates in this and any related matter.
Ms. Hebert is an officer of the United States District Court for the Eastern District of
Louisiana and is accomplished in this area of practice. Respectfully submitted,
s/ Daniel G. Abel s/ Alanah Odoms Hebert
Daniel G. Abel Alanah Odoms Hebert

2421 Clearview Parkway Gauthier, Houghtaling & Williams
Legal Department - Suite 106 3500 N Hullen St
Metairie, LA 70001 Metairie LA 70002-3420
Telephone” 504.208.9610 Telephone:(504) 456-8600
Facsimile: 888.577./8815 Facsimile: (504) 456-8624
Email: danielpatrickegan@gmail.com Email: alanah@ghwlegal.com
Having filed this motion with the

Clerk of Court, we have served all
counsel electronically: 15 September
2012.
s/ Daniel G. Abel
17-30519.1010

* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
Mr. Shane M. Gates motion to enroll Ms. Alanah Odoms Hebert as counsel of
record, to serve as co-counsel on his behalf, is GRANTED.
Ms. Alanah Odoms Hebert is enrolled as counsel for Mr. Gates.
Ordered on this day of September 2012. New Orleans, Louisiana.
17-30519.1011


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
Motion Designating James McClendon Williams

As Lead Attorney for Shane M. Gates
Shane M. Gates moves the Hon. Court to designate James McClendon Williams as
Lead Attorney of Record, on his behalf in this and any related matter. Attorney Alanah
Odoms Hebert will serve as co-counsel with James Williams along with others already enrolled.
Mr. Abel will no longer serve as Lead Attorney, but should be noticed.
s/ James McClendon Williams s/ Alanah Odoms Hebert
James McClendon Williams Alanah Odoms Hebert

Gauthier, Houghtaling & Williams Gauthier, Houghtaling & Williams
3500 N Hullen St 3500 N Hullen St
Metairie LA 70002-3420 Metairie LA 70002-3420
Telephone:(504) 456-8600 Telephone:(504) 456-8600
Facsimile: (504) 456-8624 Facsimile: (504) 456-8624
Email:jmw@ghwlegal.com Email:jmw@ghwlegal.com
Respectfully, Certificate of Service
2421 Clearview Parkway Having filed this motion with the

Legal Department-Suite 106 Clerk of Court, we have served all
Metairie, LA 70001 counsel electronically:15 September 2012.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.1012

* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
James McClendon Williams is hereby designated as Lead Attorney of Record for Shane
M. Gates. Attorney Alanah Odoms Hebert will serve as co-counsel with James Williams along
with others already enrolled.
Mr. Abel will no longer serve as Lead Attorney, but will continue to be noticed.
New Orleans, Louisiana. Ordered this ____ day of September 2012.
______________________________
Judge Stanwood R. Duval, Jr.
17-30519.1013


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
Mr. Shane M. Gates motion to enroll Ms. Alanah Odoms Hebert as counsel of
record, to serve as co-counsel on his behalf, is GRANTED.
Ms. Alanah Odoms Hebert is enrolled as counsel for Mr. Gates.
Ordered on this 17th day of September 2012. New Orleans, Louisiana.
17-30519.1014


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
James McClendon Williams is hereby designated as Lead Attorney of Record for Shane
M. Gates. Attorney Alanah Odoms Hebert will serve as co-counsel with James Williams along
with others already enrolled.
Mr. Abel will no longer serve as Lead Attorney, but will continue to be noticed.
New Orleans, Louisiana. 17th day of September 2012.

Ordered this ____
______________________________
17-30519.1015


* NO. 07-6983
VERSUS *
*************************************
MOTION TO DISMISS
“Jack” Strain, in his official and individual capacity, St. Tammany Parish Sheriff’s Office,
Sheriff Deputy Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams
and St. Paul Insurance Company, (herein after referred to collectively as “Defendants”), who,
pursuant to Federal Rule of Civil Procedure 12(b)(6) or alternatively F.R.C.P. 12(c) and for the
reasons more fully discussed in the attached Memorandum in Support, respectfully submit that
plaintiff has failed to state a claim upon which relief can be granted.
WHEREFORE, Defendants respectfully request that this Court dismiss them from this
action with prejudice.
17-30519.1016
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneysfor Defendants, Sheriff Rodney Jack
Insurance Company
record via the Court’s CM/ECF system, this 21STday of September, 2012.
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1017


* NO. 07-6983
VERSUS *
*************************************

Daniel G. Abel
Suite 106
Metairie, LA 70001
and
James Williams
3500 N. Hullen St.
Defendants hereby provide Notice that the Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6)or alternatively 12(c) will be heard before the Honorable Stanwood R.
Duval, Jr., District Judge, United States District Court for the Eastern District of Louisiana,
Section K on Wednesday, October 17, 2012, beginning at 9:30 a.m. or as soon as counsel may be
heard.
17-30519.1018
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneysfor Defendants
record via the Court’s CM/ECF system, this 21stday of September, 2012.
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1019


* NO. 07-6983
VERSUS *
*************************************
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
I. PLAINTIFF HAS FAILED TO ALLEGE SUFFICIENT FACTS SO AS TO STATE

A CLAIM UNDER 42 USC § 1983 AGAINST SHERIFF RODNEY “JACK” STRAIN
IN HIS OFFICIAL CAPACITY.
Plaintiff alleges that Sheriff Strain is liable under 42 USC § 1983 for violations of
plaintiff’s constitutional rights. In Paragraph 4 of the Complaint, Gates states regarding Sheriff
Strain: “He is sued in his individual as well as his official capacity.” Plaintiff’s Complaint does
not allege sufficient facts to support a claim against Sheriff Strain under § 1983 in his official
capacity. Conclusory allegations are insufficient to impose liability under this section.
Monell Liability – Official Capacity
“Official capacity suits generally represent another way of pleading an action against an
entity of which an officer is an agent.” Burge v. Parish of St. Tammany, 187 F.3d 453, 466 (5th
Cir. 1999). The Sheriff, in his official capacity, is the proper juridical entity subject to suit.
Valentine v. Bonneville Ins. Co., 56-1382 (La. 3/17/97), 691 So.2d 665.
To establish liability against a government official in his or her “official capacity,” a §
1983 plaintiff must show that a policy or custom formulated and implemented by the official
“must have played a part in the violation of federal law.” Hafer v. Melo, 502 U.S. 21, 28 (1991).
That is, “the plaintiff must show that the municipality has a policy or custom that caused his
17-30519.1020
injury.” Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007). “A plaintiff may not infer a policy
merely because harm resulted from some interaction with a governmental entity.” Colle v.
Brazos County, TX, 981 F.2d 237, 245 (5th Cir. 1993). Rather, a plaintiff must identify the policy
or custom that was adopted or maintained with objective deliberate indifference to his
constitutional rights. Scott v. Moore, 114 F.3d 51, 54 (5th Cir. 1997); Zara v. Strain, 2011 WL
723409 (E.D. La. 2011). “Deliberate indifference is an extremely high standard to meet.”
Domino v. Texas Dep’t of Crim. Justice, 239 F. 3d 752, 756 (5th Cir. 2001).
In order for plaintiff to prevail on a failure to train claim, plaintiff would have to establish
both that the failure to train caused Mr. Gates’ injury and that the failure to train was done with
deliberate indifference to Mr. Gates’ rights. Thompson v. Upshur County, TX, 245 F.3d 447, 459
(5th Cir. 2001). “The standard applicable to failure to train allegations is based on that for
municipal liability.”Roberts v. City of Shreveport, 397 F.3d 287 (5th Cir. 2005). In order to show
that the failure to train amounted to deliberate indifference, the plaintiff needs to produce some
evidence that either there was a high probability that the failure to train would lead to Mr. Gates’
specific injury or that Sheriff Strain was responsible for a pattern of inadequate training
sufficient to support the inference that he was deliberately indifferent to Mr. Gates’ rights.
Thompson, supra. There are no well pled facts that any of the Deputies had a known propensity
for the improper use of force.
“To survive a motion to dismiss, 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, 129 S.Ct. 1937, 1949 (2009)(quoting Bell A’tl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
17-30519.1021
Ashcroft at 1949. The plaintiff’s pleadings must contain more than a “formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 550. “Threadbare recitals of the elements
of a cause of action supported by mere conclusory statements, do not suffice.” Iqbal, at 1949.
The United States Court of Appeals for the Fifth Circuit addressed a similar case against
St. Tammany Parish Sheriff Rodney Strain, Jr. inYates v. Unidentified Parties, 73 Fed.Appx. 19
(5th Cir. 2003). In Yates, the Fifth Circuit affirmed the magistrate judge’s dismissal of plaintiff’s
42 USC § 1983 claims against Sheriff Strain. The court noted that “[l]iability arises only when
the execution of an official policy or custom of the municipality causes constitutional injury.”Id.
20(quoting Gros v. City of Grand Prairie, Texas, 181 F.3d 613, 615 (5th Cir. 1999)). Yates
further set forth the standard for establishing municipal liability under 42 USC § 1983.
An official policy must be either a written ordinance or regulation or “a persistent
widespread practice of city officials or employees that, although not authorized by officially
adopted policy, is so common and well settled as to constitute a custom that fairly represents
official municipal policy.”Id.(quoting McConney v. City of Houston, 863 F.2d 1180, 1184 (5th
Cir. 1989)).
The Fifth Circuit upheld the dismissal of Yates’ claims against the sheriff, noting that
plaintiff’s “claim fails because he has not alleged facts sufficient to show a pattern or practice of
abuse by St. Tammany deputies that is so persistent and widespread as to constitute an official
custom attributable to the sheriff.”Id.(citing McConney, supra). Moreover, plaintiff’s conclusory
allegations are insufficient to state a claim under 42 USC § 1983. Wild v. Foti, 2002
WL31554003 (E.D. La. 2002).
The Fifth Circuit has noted:
We have consistently required a plaintiff to plead “specific facts, not merely

conclusory allegations.” A § 1983 plaintiff must plead specific facts with
17-30519.1022
sufficient particularity to meet all elements of recovery. “Allegations of a single

isolated incident are not sufficient to show the existence of a custom or policy.”
Id. at *2(quoting Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)).
In the present matter, plaintiff has made insufficient conclusory allegations to make a
Monell claim. Plaintiff has not alleged facts sufficient to show a pattern or practice of abuse as it
relates to other incidents that is so persistent and widespread as to constitute an official custom
attributable to Sheriff Strain. At most, plaintiff has alleged one isolated incident on the part of the
St. Tammany Parish Sheriff. As noted supra, the Fifth Circuit has made clear that allegations of
“a single isolated incident are not sufficient to show the existence of a custom or policy.”Yates,
supra.
In “COUNT IV - § 1983 LIABILITY OF SHERIFF, DEPUTIES AND HIS OFFICE,”
Paragraphs 104-117 of the Complaint, plaintiff attempts to set forth allegations of custom, policy
or practice of the St. Tammany Parish Sheriff’s Office. However, plaintiff fails to allege facts
supportive of these conclusory allegations. Plaintiff makes no attempt to assert facts supportive
of the conclusion that this was any more than a single incident.
In the Complaint, plaintiff alleges:
Paragraph 107 - It is alleged the Sheriff, “Failed to adopt sufficient policies . . .”Plaintiff
does not identify what those policies would be, how or when they should have been
implemented and how such policies would have prevented the alleged injury to Gates.
Paragraph 108 - It is alleged the Sheriff failed to develop and/or maintain a policy to re-
train the officers who allegedly violated Gates’ civil rights.There are no facts pled as to
training or lack of training of the officers involved in this incident.
Paragraph 109 - It is alleged the Sheriff negligently hired and retained officers.Plaintiff
cites to no specific instance when this took place. Plaintiff doesn’t identify the officers
with any particularity.
Paragraph 110 - It is alleged that illegal and unconstitutional policies and procedures
were the “driving force” of the alleged civil rights violations.Plaintiff neither identifies in
17-30519.1023
any way the policies or procedures, nor does he draw a connection to such policies or
procedures and this incident.
Paragraph 111 - This is a deliberate indifference claim.Again, no facts are set out in
support of this conclusory claim. Deliberate indifference is a high standard that is not met
here.
Paragraph 112 - This paragraph alleges that the Sheriff “had a policy and procedure of
engaging in illegal activities to illegally secure charges against innocent persons.Plaintiff
does not cite to one incident with any supportive facts to support such an outrageous and
conclusory allegation. This is a classic “threadbare recital” supported by mere conclusory
statements.
Paragraph 114 - This is more “threadbare recital.”
In the absence of past violations, there can be no notice to Sheriff Strain in his official
capacity that the Sheriff’s policies were inadequate. The Fifth Circuit has consistently rejected
application of the “single incident exception.” Moreover, Gates has provided no factual evidence
of a pattern of inadequate training that would support a conclusion that Sheriff Strain was
deliberately indifferent to Mr. Gates’ rights. Since plaintiff has not shown that Sheriff Strain’s
training was deliberately indifferent to Mr. Gates’ rights, plaintiff’s claims for failure to train
should be dismissed.
II. PLAINTIFF’S CLAIMS FOR PUNITIVE DAMAGES AGAINST SHERIFF

STRAIN IN HIS OFFICIAL CAPACITY MUST BE DISMISSED
Throughout his Complaint and more particularly in the “Damages” section on page 30 of
the Complaint, plaintiff prays for punitive damages under 42 USC § 1983 against all defendants.
However, the Fifth Circuit held in Oden v. Oktibbha County, MS, 246 F.3d 458, 466 (5th Cir.
2001), cert denied, 122 S.Ct. 341 (2001), that “[t]he act precludes plaintiff’s from recovering
punitive damages against governments, government agencies and political subdivisions.”
Further, the courts of the Eastern District of Louisiana have held likewise. For example, in Evans
v. St. Bernard Parish School Board and Beasley v. St. Tammany Parish School Board, the court
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stated that “§ 1983 does not allow for recovery of punitive damages against a local governmental
entity.” Evans v. St. Bernard Parish School Board, 2003 WL 22174272 at p. 1 (E.D. La. 2003);
Beasley v. St. Tammany Parish School Board, 1997 WL 382056 at p. 4 (E.D. La. 1997).
Accordingly, defendants respectfully submit that plaintiff’s request for punitive damages against
Sheriff Strain in his official capacity is not sanctioned by law and should be dismissed.
III. VICARIOUS LIABILITY
It is clear that plaintiff is making a vicarious liability claim for the actions of the deputies
named in this lawsuit. In Paragraph 5 of the Complaint it is stated that the defendant St.
Tammany Parish Sheriff’s Office “is responsible for the actions and omissions of the deputies of
the Sheriff’s Department.” In Paragraph 105, it is stated that the “St. Tammany Sheriff and his
office are responsible for the acts and omissions of the employees and are liable for the activities
of its agents, who are not employees.” In Paragraph 114 it is stated that “Sheriff Jack Strain is
responsible for the actions and inactions of his subordinates as it relates to the violations of
Gates’ civil rights.” In Paragraph 116 it is stated that “the Sheriff’s Office is liable for the acts of
defendant and/or vicarious (sic) liability for all causes and claims stated herein.”
It is well-established that, pursuant to 42 USC § 1983, municipalities/political
subdivisions cannot be held liable on the theory of responsibility via respondeat superior.
SeeMonell v. Dept. of Social Services for the City of New York, 436 US 658, 691, 98 S.Ct. 2018,
2036, 56 L.Ed. 2d 611, (1978); Pembaur v. City of Cincinnati, 475 US 469, 106 S.Ct. 1292, 89
L.Ed. 2d 451 (1986). The aforementioned statements in the Complaint of Mr. Gates are in direct
contradiction to the law, which does not allow vicarious liability actions against municipalities
pursuant to § 1983. As such, this Court should dismiss plaintiff’s claims based on vicarious
liability.
17-30519.1025
IV. THE SHERIFF AND SHERIFF DEPUTIES NAMED INDIVIDUALLY IN THIS

CASE HAVE QUALIFIED IMMUNITY.
Plaintiff has failed to state a claim upon which relief can be granted against Sheriff
Rodney “Jack” Strain in his individual capacity, Sheriff Deputy Nathan Miller, Sheriff Deputy
Robert Gottardi and Sheriff Deputy Brian Williams as they all fall under the purview of qualified
immunity from individual suit.
The purpose of the qualified immunity doctrine is to shield public servants not only from
liability, but also from defending a lawsuit. Public officials are entitled to qualified immunity
from suit under 42 USC § 1983 unless it is shown by specific allegations that the officials
violated clearly established law.Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed. 2d 396 (1982);Morin v. Caire, 77 F.3d 116 (5th Cir. 1996) (citing Schultea v. Wood, 27
F.3d 1112, 1115 (5th Cir. 1994), aff’d in part, 47 F.3d 1427 (5th Cir. 1995)).
As recently promulgated in Pearson v. Callahan, the United States Supreme Court held
that the two-part test generally applied by lower courts to determine the qualified immunity
application is now discretionary. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808 (2009).
The court noted the prior test dictated the court must first determine (1) whether the facts alleged
make out a violation of a constitutional right, and (2) if so, determine whether that right was
“clearly established” at the time of the defendant’s alleged misconduct, followed by a
determination of whether the official’s conduct violated the right. The court found that the rigid
two-part test articulated above is no longer mandatory.
Questions regarding qualified and absolute immunity are resolved on the face of the
pleadings and with limited resort to pre-trial discovery. See Babb v. Dorman, 33 F.3d 471 (5th
Cir. 1994); see also Jackson v. City of Beaumont Police Dept., 958 F.2d 616 (5th Cir. 1992);
James v. Sadler, 909 F.2d 834, 838 (5th Cir. 1990).
17-30519.1026
Even if a government official reasonably, but mistakenly, commits a constitutional
violation, he or she is still entitled to immunity. Goodson v. City of Corpus Christi, 202 F.3d
730, 736 (5th Cir. 2000). In other words, a defendant’s acts are objectively reasonable unless all
reasonable officials in defendant’s circumstance would have known that the defendant’s conduct
violated the Constitution. Thompson v. Upshur County, Texas, 245 F.3d 477 (5th Cir. 2001).
Further, in response to individual suits against government officials, the Fifth Circuit stated in
Colle v. Brazos County:
When government officials are likely to invoke qualified immunity, we demand

that a complaint state factual detail and particularity including why the defendant-
official could not maintain the immunity defense.
See Colle v. Brazos County, 981 F.3d 472 (5th Cir. 1994).
When a governmental official with discretionary authority is sued for damages under §
1983 and raises the defense of qualified immunity, the plaintiff bears the burden of rebutting that
defense. See Salis v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). Thus, Shane Gates must not
only show how the sheriff and the deputies’ conduct was unreasonable in light of clearly
established law, but must also particularly address why qualified immunity does not apply in this
case.
Plaintiff in this case cannot support a claim under 42 USC § 1983 against the sheriff and
the sheriff’s deputies in their individual capacities as the plaintiff has failed to address in his
complaint why the sheriff and the sheriff’s deputies are not immune from suit. Sparse and
conclusory allegations must necessarily fail in light of the articulated purposes of the qualified
immunity defense. The Complaint is simply insufficient to meet the pleading requirements of 42
USC § 1983.
17-30519.1027
Plaintiff asserts claims against Sheriff Strain in his individual capacity, but has provided
no evidence that he had any personal involvement with the events of November 16, 2006. Since
there are no facts pled regarding Sheriff Strain’s personal involvement in Mr. Gates arrest and
there is no vicarious liability under 42 USC § 1983, the individual capacity claims against Sheriff
Strain must also be dismissed. Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
Personal capacity claims require specific allegations of misconduct by some official to
give rise to a constitutional violation. Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002).
“Personal involvement is an essential element of a civil rights cause of action.” Thompson v.
Steele, supra. It is well established that a supervisor may not be held personally liable under §
1983 based on a theory of vicarious liability. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.
1987).
The individual claims against Sheriff Strain can essentially be described as:
1) That he participated in having the District Attorney file new charges of resisting
arrest (See Paragraph 61 of Complaint).No facts as to how Sheriff Strain was
involved in the “new charges” (i.e., who, what, when, where and why) are set out.
2) That Sheriff Strain threatened and was able to have the District Attorney file new
charges (See Paragraph 62 of Complaint).Again, this is conclusory; there are no facts
set out to support this allegation.
3) That Chuck Hughes would have Sheriff Strain call the District Attorney for the
express purpose of filing resisting arrest charges. (See Paragraph 63 of
Complaint).This is conclusory. There are no facts pled that Sheriff Strain made such a
call.
4) Plaintiff alleges this was not the first time that the Sheriff and his deputies fabricated
facts, affidavits and reports or conspired with the District Attorney. (See Paragraph 64
of Complaint)No facts are set out about other times where this was allegedly done or
how Sheriff Strain did so in this case. Again, these are simply conclusory allegations.
5) Plaintiff alleges that as part of a “cover up” the Sheriff and his deputies constructed
facts and fabricated charge. (See Paragraph 66 of Complaint).This is conclusory.
Gates does not set out what the “constructed facts and fabricated charges” are.
17-30519.1028
6) Gates sets out conspiracy allegations. (See Paragraph 83 of Complaint).This

allegation is devoid of any factual support.
Under the heightened pleading standards established by the United States Fifth Circuit
Court of Appeal, a plaintiff must support his claim with “sufficient precision and factual
specificity to raise a genuine issue as to the illegality of the defendant’s conduct at the time of the
alleged accident.”Schultea v. Wood, 47 F.3d 142, 1434 (5th Cir. 1995).Further, the Fifth Circuit
in Roberts v. City of Shreveport found that plaintiff’s state law claims against the police chief
should be dismissed under Louisiana’s discretionary immunity statute. Roberts v. City of
Shreveport, 397 F.3d 287, 296 (5th Cir. 2005). Therefore, if this Court finds the plaintiff’s federal
claims should be dismissed against Sheriff Strain, then it should also dismiss plaintiff’s state law
claims because the same standard applies.
It is respectfully submitted that this Complaint is devoid of facts sufficient to determine
whether the individual deputies’ conduct was unreasonable under clearly established law. The
plaintiff’s only stock contentions are that the actions of the officers induced the use of brutal and
unnecessary force, with the object of conspiracy, and that the arrest and subsequent
imprisonment were unwarranted. It is respectfully submitted that the allegations made by Gates
in this case do not attempt to offer a reason as to why the deputies took the actions that they
allegedly did, or whether the deputies had probable cause for the stop and arrest, whether Gates
resisted the arrest or was armed or whether Gates was sober and/or dangerous.SeeBrown v.
Glossip, 878 F.2d 871 (5th Cir. 1989). As in Jackson v. City of Beaumont Police Department, 958
F.2d 616 (5th Cir. 1992), Gates does not plead any facts regarding his own conduct during the
incident (other than he pulled over to the shoulder, stopped his car and got out), the reasons
given, if any, by the deputies being called to the scene, or any other factors relating to the
circumstances leading up to and surrounding the plaintiff’s arrest and the other alleged actions by
10
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the deputies. It is respectfully submitted that Shane Gates’ conclusory allegations are insufficient
to overcome the qualified immunity defense.
A. The complaint fails to plead specific facts sufficient to overcome the deputies qualified
immunity defense under the heightened pleading requirement for illegal arrest in civil
rights claims.
In Babb v. Dorman, 33 F.3d 472 (5th Cir. 1994), the court succinctly stated the law with
regard to qualified immunity in suits alleging an illegal arrest:
In suits alleging illegal arrest, the qualified immunity determination turns on

‘whether a reasonable officer could have believed [the arrest] to be lawful, in light
of clearly established law and the information the … officer possessed.’ Even law
enforcement officials who ‘reasonably but mistakenly conclude that probable
cause is present’ are entitled to immunity.”Hunter v. Bryant, 502 US 224, 112
S.Ct. 534, 536, 116 L.Ed. 2d 589, 595 (quoting Anderson v. Creighton, 483 US
635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed. 2d 523, 531-32 (1987)); see also
Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989) “the issue is not probable cause
in fact but “arguable” probable cause”) (quoting Floyd v. Farrell, 675 F.2d 1, 5
(1st Cir. 1985)); Saldana v. Garza, 684 F.2d 1159, 1164 (5th Cir. 1982), cert
den’d., 460 U.S. 1012, at 103 S.Ct. 1253, 75 L.Ed. 2d 481 (1983)(Police Officer
may be immune from liability under § 1983 even if it is later determined that
probable cause for an arrest did not exist). The qualified immunity defense
protects “all but the plainly incompetent or those who knowingly violate the
law.”Malley v. Briggs, 475 US 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d, 271,
278 (1986). Thus, a qualified immunity defense cannot succeed where it is
obvious that a reasonably competent officer would find no probable cause. Id. On
the other hand, “if officers of reasonable competence could disagree on this issue,
immunity should be recognized.”Id.
Babb at 477.
In the Complaint, Shane Gates alleges:
58. As he was being prepared for transport from the Louisiana Heart Hospital,
Deputy Gottardi gave Gates two citations: reckless operation and DUI.
Nowhere in the Complaint does Gates submit facts to suggest that he was not intoxicated at the
time of the incident, nor does he submit any facts to suggest he was not driving recklessly prior
to his stop. It was reasonable to believe that Gates had committed an offense.
68. Gates asserts that deputies filed affidavits charging him with obstruction of a
11
17-30519.1030
highway of commerce and again with DUI.
Although Gates alleges that the charges were false, he only offers that the reason they are false
“will become evident between now and the time of trial.” Gates offers no facts to suggest that he
was not obstructing a highway of commerce nor driving while intoxicated.
In several paragraphs, Gates addresses a resisting arrest charge that was brought against
him. Although Gates alleges that these charges were brought against him for the express purpose
of defeating his civil rights claim, in no way does Gates set forth facts as to whether he was
resisting arrest, was intoxicated at the time of the incident, verbally abusive and confrontational
with the deputies, whether either dangerous or exigent circumstances existed at the time of his
arrest, or any facts pertaining to the events of the night in question to suggest that he was not
resisting arrest.
For purposes of probable cause, the determination as to the possible danger element is
reviewed not under the standard used in a judicial determination of guilt, but rather by whether at
that moment the facts and circumstances which were within the officer’s knowledge of which he
had reasonably trustworthy information was sufficient to warrant a prudent man in believing that
plaintiff had committed or was committing an offense. Babb at 479 (citing Beck v. Ohio, 379 US
89, 91, 85 S.Ct. 223, 225, 13 L.Ed. 2d 142, 145 (1964)). It is respectfully submitted that Shane
Gates has not carried his burden in this regard and the allegations of a false arrest should be
dismissed.
B. Unlawful detention and confinement
Gates sets forth no facts to suggest he was jailed as “detention and confinement”
contemplate.
C. Sheriff’s Refusing or neglecting to prevent
12
17-30519.1031
A police officer is “personally involved” in a constitutional violation if he or she either:
(1) “directly participates,” defined as the “intentional participation in the conduct constituting a
violation of the victim’s rights by one who knew the facts rendering it illegal, or (2) fails “to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Biggs v. City of New York, 2010 WL 462 8360
(S.D.N.Y. 2010)(citing Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001);
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). There are no facts set forth sufficient to
show Sheriff Strain was “personally involved” in the arrest or any alleged constitutional
violation. There are insufficient facts pled as to the individual deputies to sustain this cause of
action.
D. Conspiracy cause of action
To support a conspiracy claim under § 1983, a plaintiff must allege facts that suggest: (1)
an agreement between private and public defendants to commit an illegal act, and (2) an actual
deprivation of constitutional rights. Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). As to
the conspiracy claim, Gates offers no facts which would meet this test.
V. THE “ST. TAMMANY PARISH SHERIFF’S OFFICE” IS NOT A JURIDICAL

ENTITY THAT CAN BE SUED
Plaintiff’s Complaint names as a Defendant the St. Tammany Parish Sheriff’s Office.
Under the heading “Parties,” Paragraph 5 makes defendant the “St. Tammany Parish Sheriff’s
Office” and describes same as “a local authority within the Parish of St. Tammany, State of
Louisiana, and as such does not have 11th Amendment immunity under the United States
Constitution or the 11th Amendment to that Constitution.”
It is well settled that “the law of Louisiana affords no legal status to the ‘Parish Sheriff’s
Department’ wherein said department can sue or be sued, such status being reserved for the
13
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Sheriff individually. “Porche v. St. Tammany Parish Sheriff’s Office, 67 F.Supp. 2d 631, 635
(E.D. La. 1999); Liberty Mut. Ins. Co. v. Grant Parish, 350 So.2d 236, 238 (La. Ct. App. 1977).1
It is the elected sheriff, not the “parish sheriff’s office,” that is the constitutionally designated
chief law enforcement officer of the parish. Liberty Mut. Ins. Co. v. Grant Parish Sheriff’s Dept.,
supra. Likewise, to the extent that allegations are made that the “Sheriff’s Office is jointly and
insolido liable for others activities,” as the Sheriff’s office is not a juridical entity capable of
being sued, such claims also must be dismissed. Therefore, this Court should dismiss plaintiff’s
claims against the St. Tammany Parish Sheriff’s Office as the proper juridical entity is the
elected sheriff.
VI. NO CLAIMS UNDER 42 USC §§ 1985 AND 1986
In the Complaint filed On October 17, 2007 by plaintiff Shane Gates, Mr. Gates asserts the
following:
1. Jurisdiction is invoked pursuant to 42 USC §1985 and 1986.
2. In Paragraph 91, Shane Gates alleges the conduct of the defendants is subject to “42 USC
§1983, 1985, 1986, and 1988.”
3. In Paragraph 94 Shane Gates also alleges that the conduct of the defendants is subject to
“42 USC §1983, 1985, 1986 and 1988.”
4. In Paragraph 113 Shane Gates also alleges that “Defendants are liable pursuant to 42
USC § 1983, 1985, 1986 and 1988.”
5. Lastly, in the section “Damages,” plaintiff seeks damages pursuant to 42 USC §1985 and
1986.
It is respectfully submitted that the Complaint fails to state a claim against these
defendants for the claims brought pursuant to 42 USC §1985 and 42 USC §1986.
1
See alsoFurgeson v. Stephens, 623 So.2d 711 (La. App. 4 Cir. 1993); Garner v. Avoyelles Parish Sheriff’s
Department, 511 So.2d 8 (La. App. 3 Cir. 1987); Jenkins v. Jefferson Parish Sheriff’s Office, 385 So.2d 578 (La.
App. 4 Cir. 1980).
14
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The United States Supreme Court in Griffin v. Breckenridge, 403 US 88, 29 L.Ed. 2d
338, 91 S.Ct. 1970 (1971), stated as follows with regards to allegations of a 42 USC § 1985
conspiracy:
The language requiring an intent to deprive of equal protection, equal privileges

and immunities, means that there must be some racial, or perhaps otherwise class
based, insidiously discriminatory animus behind the conspirator’s action. 403 US
at 102, 29 L.Ed. 2d 348, 91 S.Ct. 1798.
A complaint under 42 USC § 1985 that does not contain such allegations of racial or class
based animus will be dismissed. Vines v. Howard, 658 F.Supp. 34 (E.D. Pa. 1987); see also
Komasinski v. I.R.S., 588 F.Supp. 974 (D.C. Ind. 1984). In other words, § 1985 does not apply to
tortious acts which have no evidence of class discrimination. McNally v. Pulitzer Prize Co., 352
F.2d 65 (8th Cir. 1976), cert. denied, 429 US 55, 50 L.Ed. 2d 131, 97 S.Ct. 150. Importantly, the
Fifth Circuit has noted with regard to § 1985 claims that, “in this circuit, we require an allegation
of a race-based conspiracy.”Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000).
Plaintiff, a Caucasian male, never once alleges that he was the victim of a race based
conspiracy. Plaintiff’s Complaint does not allege a class based action based on discriminatory
animus which is at the heart of 42 USC § 1985.
Further, any cause of action under 42 USC § 1986, which provides an action for neglect
to prevent a conspiracy to interfere with the civil rights of others, fails absent a valid claim for
relief under 42 USC § 1985, which protects against conspiracies to interfere with civil rights.
Trerice v. Pedersen, 769 F.2d 1398 (9th Cir. 1985). A cause of action under § 1986 is premised
on the violation of § 1985; thus, where plaintiff cannot maintain a claim under § 1985, his § 1986
claim must fail as well. Rhodes v. Mabus, 676 F.Supp. 755 (S.D.Miss. 1987).
There is absolutely no mention whatsoever of a racial, or class based animus in plaintiff’s
Complaint pursuant to 42 USC § 1985 and 1986. Therefore, Defendants request that this Court
15
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dismiss as to all defendants, the § 1985 and § 1986 portions of the Complaint for failure to state a
claim upon which relief can be granted.
VII. CONSTITUTIONAL CLAIMS SHOULD BE DISMISSED.
In the Complaint filed herein, plaintiff states on page 4 that jurisdiction for injunctive
relief is invoked pursuant to the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the
United States Constitution. Further, on page 19 in Paragraphs 88 and 89, plaintiff asserts that the
Sheriff and his deputy defendants “falsely arrested, battered, detained, and charged plaintiff in
violation of the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States
Constitution.” In Paragraph 89 it is alleged that the defendants acted in combination to commit
such unlawful and unconstitutional acts and that the law under the Fourth, Fifth, Eighth and
Fourteenth Amendments is clearly established. Similar allegations are made in Paragraph 115 of
the Complaint. However, plaintiff does not attempt to draw a connection between any of the
aforementioned constitutional provisions and the specific facts plead. In the Third Amended
Complaint, Gates makes a Sixth Amendment Claim.
Under the pleading standards of the Federal Rules of Civil Procedure, plaintiff has failed
to allege facts which implicate the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution because these constitutional provisions do not protect individuals
from the type of harm alleged by plaintiff. Defendants respectfully submit that the absence of
any foundational allegations for such claims warrants their dismissal.
Plaintiff has failed to offer well plead allegations of fact which suggest thatGates was
participating in conduct protected by the First Amendment. The United States Supreme Court
has instructed:
“[F]reedom of speech” means more than simply the right to talk and to write. It is
possible to find some kernel of expression in almost every activity a person
16
17-30519.1035
undertakes – for example, walking down the street and meeting one’s friend at a
shopping mall – but such a kernel is not sufficient to bring the activity within the
protection of the First Amendment. City of Dallas v. Stanglin, 490 US 19, 25, 109
S.Ct. 1591, 1595 (1989).
Defendants aver that plaintiff’s mere citation to the First Amendment is wholly inadequate.
Accordingly, such claims must be dismissed.
In the same vein, the Fifth Amendment only applies to the actions of the federal
government and not to the actions of a municipal government. Bartkus v. Illinois, 359 US 121,
124 (1959), Richard v. Hinson, 70 F.3d 415, 416 (5th Cir. 1995). There is no doubt that the
Sheriff of St. Tammany Parish is considered a political subdivision of the State of Louisiana.
Because none of the defendants are federal officials, Gates cannot bring any claim based on a
violation of his Fifth Amendment due process rights.
As to the Sixth Amendment claim, Gates has set forth no facts that the right to counsel
attached and/or that a “critical stage” in the proceedings was reached. Thus, Gates does not have
a cause of action under the Sixth Amendment. It is well-settled that a defendant’s right to
counsel attaches “at or after the time adversary judicial proceedings have been initiated against
him,” Kirby v. Illinois, 406 U.S. 682, 688 (1972), and once the right attaches, it continues to
apply at every critical stage of the proceedings. McAfee v. Thaler, 630 F.3d 383, 390-91 (5th Cir.
2011) cert. denied, 132 S.Ct. 754, 181 L.Ed. 2d 480 (U.S. 2011). See also Fritchie v. McCarthy,
664 F.2d 208, 214 (9th Cir. 1981)(“Sixth Amendment attaches only upon the initiation of
adversary judicial criminal procedures”).
Further, the protections of the Eighth Amendment against cruel and unusual punishment
are limited in scope to convicted prisoners and do not apply to those who are being taken into
custody by police officers. Morin v. Caire, 77 F.3d 116 (5th Cir. 1996)(citing Ingraham v.
Wright, 430 US 651, 691, n.40, 97 S.Ct. 1401, 1412, n. 40, 51 L.Ed. 2d 711 (1977)).
17
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Accordingly, plaintiff’s claims arising under the First, Fifth, Sixth, Eighth and Fourteenth
Amendments should be dismissed.
VIII. NO CLAIM UNDER 28 USC § 1337
In the Complaint, under the caption “Jurisdiction” plaintiff asserts a federal law claim
pursuant to 28 USC § 1337. 28 USC § 1337 addresses commerce and anti-trust regulations;
amount in controversy and cost. 28 USC §1337(a) states:
The district court shall have original jurisdiction of any civil action or proceeding
arising under any act of Congress regulating commerce or protecting trade and
commerce against restraints and monopolies.
The underlying action is an action pursuant to 42 USC § 1983 and other civil rights
claims and does not involve a claim involving commerce or protecting trade. As such, any claims
pursuant to 28 USC § 1337 should be dismissed.
IX. NO CLAIM UNDER 18 USC § 1961-1968
In the Complaint filed by plaintiff Shane Gates and under the caption “Jurisdiction”,
plaintiff asserts federal law claims pursuant to 18 USC § 1961 – 1968. These are criminal
statutes found in Title 18, of the United States Code, Crimes and Criminal Procedure. However,
under 18 USC § 1964, Civil Remedies, Section (C) makes clear that recovery is only available
for injuries to business or property, not for personal injury. The other sections pertaining to USC
§ 1961 – 1968 largely deal with procedural mechanisms available to the U.S. Attorney General
when prosecuting civil claims on behalf of the United States and in no way provide plaintiff a
cause of action. Without a harm to a specific business or property interest, there is no injury to
“business or property” within the meaning of the RICO Act. Plaintiff makes no allegation that he
was deprived of “business or property” within the meaning of RICO. Thus, any claims brought
by plaintiff pursuant to 18 USC § 1961 – 1968 should be dismissed.
18
17-30519.1037
X. THERE IS NO PRIVATE RIGHT OF ACTION UNDER HIPAA
In the Complaint, plaintiff alleges in “Count VII: Violation of 45 C.F.R. HIPPA (sic)”
that “at all times relevant herein, the conduct of all defendants was subject to 45 C.F.R.
164.513(HIPAA).2 Plaintiff alleges that violation of these regulations proves defendants’
violation of complainants constitutional and civil rights.
However, it is well settled that Congress did not intend for private enforcement of
HIPAA. Numerous district courts have considered the issue and are in agreement that the statute
does not support a private right of action. Acara v. Banks, 470 F.3d 569 (5th Cir. 2006); Roberts
v. Unitrin Specialty Lines Ins. Co., 405 Fed.Appx. 874 (5th Cir. 2010). In fact, in a case involving
similar allegations pertaining to obtaining a blood sample, the court in Dodd v. Jones, 623 F.3d
563 (8th Cir. 2010) stated:
Dodd asserts that Jones violated a “right of privacy” by obtaining a blood sample
from paramedic Jay Frey without complying with HIPAA. He alleges that HIPAA
superseded a Missouri statute that requires medical personnel “acting at the
request and direction of [a] law enforcement officer” to “withdraw blood for the
purpose of determining alcohol content of the blood.” Mo.Rev.Stat. § 577.029.We
agree with the district court that this claim fails because HIPAA does not create a
private right of action. Adams v. Eureka Fire Prot. Dist., 352 Fed.Appx. 137, 139
(8th Cir. 2009); Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir. 2006).
Thus, plaintiff’s allegations in the Complaint seeking a right of action against the
defendants pursuant to HIPAA must be dismissed.
XI. PLAINTIFF’S DUE PROCESS CLAIMS SHOULD BE DISMISSED
In Paragraph 96 of the Complaint, plaintiff alleges generally that excessive use of force
and assault and battery were committed by sheriff’s officers in violation of due process of law
and Gates’ right to equal protection. In Paragraph 97 he asserts that there was concerted unlawful
and malicious subsequent arrest and charges which deprived him of his liberty without due
2
It should also be noted that 45 C.F.R. 165.513 does not exist.
19
17-30519.1038
process of law and rights to equal protection of the laws. In Paragraph 98 he asserts concerted
unlawful and malicious sequential detention and confinement which deprived him of due
process.
In Paragraph 99 he alleges the Sheriff refused or neglected to prevent sheriff’s officers
under his control from violating the rights, privileges and immunities of Gates in violation of his
due process rights. In Paragraph 100 he alleges the Sheriff and District Attorney engaged in a
malicious prosecution in violation of his due process rights. In Paragraph 101 Gates alleges the
Sheriff and the District Attorney abused process without due process of law and the right to
equal protection of the laws. In several other instances, Gates makes general assertions that there
were customs, policies and practices which have the effect of depriving Gates of his right to due
process of law. Lastly, in Count VI – Due Process and Equal Protection Violations, Paragraph
122 Gates states:
By illegally and sequentially arresting, falsely charging and recharging plaintiff

and denying plaintiff a good faith prosecution, a right to a fair trial, all Sheriff-
Deputies and District-Attorneys defendants violated Gates rights to due process
and equal protection as set forth by the United States Constitution.
To state a Fourteenth Amendment due process claim “a plaintiff must first identify a
protected life, liberty or property interest then prove that governmental action resulted in a
deprivation of that interest.” Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). In the case at
hand, plaintiff’s Complaint merely recites a laundry list of his interactions with sheriff’s deputies
and events thereafter and in particular, pertaining to his prosecution. Plaintiff makes only
conclusory allegations that the above laundry list of events has violated his due process rights.
Plaintiff fails to make the connection between the events of November 16, 2006, the citations
received, the subsequent prosecution and any life, liberty or property interest of which he was
allegedly deprived. Further, plaintiff makes no specific factual allegation regarding how the
20
17-30519.1039
procedure for issuing and prosecuting plaintiff’s violations specifically deprived plaintiff of due
process as plaintiff simply states that the issuance of the citations, arrest and subsequent
prosecution violated his due process rights under the Fourteenth Amendment. These conclusory
statements do not suffice to support a cause of action against the defendants for violations of
plaintiff’s right to due process.
In the Eastern District, it has been stated:
The Fourth Amendment is the proper test under which to analyze plaintiff’s claim
under § 1983 because it provides an explicit textual source of protection against
unreasonable seizure. As a result, plaintiff may not also bring claims for alleged
violations of his due process rights.
Vinas v. Serpas, 2012 W.L. 2135286 (E.D. La. 2012)
It has also previously been held that where a plaintiff’s complaint is not specific
regarding the nature of the due process claim, but merely alleged that plaintiff has a recognized
property interest and defendants deprived plaintiff of that right, such a conclusory allegation did
not allege sufficient facts to support a due process claim. Aucoin v. Kennedy, 355 F.Supp. 2d
830, 843 (E.D. La. 2004)(where plaintiff merely alleged that she “had a recognized property
interest in her continued state employment” and was deprived of that right by defendant).
Plaintiff here has made similar conclusory allegations to those as made in Aucoin, but does not
articulate how the issuance or prosecution of the citations violated plaintiff’s due process rights.
For instance, Shane Gates does not state whether he was deprived of notice of a hearing, denied
the right to defend himself at a hearing, denied the right to call witnesses in his defense at a
hearing or trial, or any other specific facts that would support a due process Fourteenth
Amendment claim. As such, plaintiff Shane Gates has failed to adequately plead a claim for
violation of due process rights and this claim against defendants should be dismissed.
21
17-30519.1040
A. This court should refrain from hearing plaintiff’s due process claim when plaintiff
has an adequate state court remedy to address the due process claim.
Further, plaintiff’s claim that his due process rights have been violated should properly be
heard in state court, as Louisiana’s state courts provide an adequate remedy for any of plaintiff’s
claims of due process violations. When a plaintiff makes a claim that a state action has deprived
him of his due process rights, the Supreme Court has held that the state’s action is not complete
unless and until it refuses to provide a post-deprivation remedy. See Hudson v. Palmer, 468 US
517, 531 (1984). Hudson specifically found that unauthorized intentional actions of state
employees are not ripe for consideration when an adequate post-deprivation remedy is available,
holding that “an unauthorized intentional deprivation… by a state employee does not constitute a
violation of the procedural requirements of the due process clause of the Fourteenth Amendment
if a meaningful post-deprivation remedy of the loss is available.” See Id.
In the case in hand, Louisiana’s state courts provide an adequate remedy for plaintiff’s
claim that defendants improperly cited him for various traffic and criminal violations both felony
and misdemeanor. Plaintiff has been allowed the opportunity to have the validity of the
citations/charges addressed and determined by local state district courts.3 Plaintiff can appeal any
decisions of the 22nd Judicial District Court insofar as any remaining prosecution. Plaintiff has
plead no facts to demonstrate that such state court remedies have been exhausted and/or are
inadequate to address any complaint with regard to the issuance of the citations/charges by these
defendants. Plaintiff has not alleged how these procedures would be inadequate to address the
due process claims and as such, the due process claims should be dismissed.
XII. SUITS AGAINST FICTITIOUS DEFENDANTS HAVE NO LEGAL EFFECT

AND SUCH FICTITIOUS DEFENDANTS SHOULD BE DISMISSED FROM
THIS ACTION
3
In fact, plaintiff was as the court is aware, exonerated of the felony charges on July 24, 2012.
22
17-30519.1041
Generally, a Complaint which names a fictitious defendant has no legal effect. While
there is no proscribed statute of limitations for actions for violations of constitutional rights, the
forum states law regarding statute of limitations for personal injury actions will apply to such
actions for civil rights violations. Miller v. Mancuso, 388 Fed. Appx. 389, 391 (5th Cir.
2012)(citing Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)). Louisiana Code of Civil
Procedure Article 891 sets forth the requirements a petition must conform to in order to give rise
to an action, and the Article is saidto contemplate such requirements for both real persons and
legal entities. Article 891 does not allow for a pleading naming a fictitious party to interrupt the
running of prescription. Further, a petition against a fictitious defendant has no legal effect, as
such a petition does not state a cause of action against the actual defendant intended to be
inserted into the action later, nor does it affect an interruption of prescription as against that
defendant. Commercial Union Ins. Co. v. Bringol, 262 So.2d 532 (La. App. 4 Cir. 1972). Such
petitions against fictitious defendants have been explicitly found to be “without legal effect.”See
Hill v. Shell Oil, 760 So.2d 511 (La. App. 5 Cir. 2000).
Further, in the Eastern District of Louisiana, it has been found that fictitious defendants,
such as unnamed state actors, have no capacity to be sued under Federal Rule of Civil Procedure
17(b). In U.S. v. Banks, the plaintiff sought to bring an action against several unknown F.B.I.
agents. The Honorable Judge Beer found that such fictitious defendants had no capacity to be
sued as required under F.R.C.P. 17(b). Further, the court stated that, without the identity of the
agents, or some reasonable expectation of obtaining their identities, the plaintiff had failed to
name a proper party with determinable capacity to be sued and will be unable to execute service.
The court subsequently dismissed such an action against the fictitious defendant F.B.I. agents.
See Banks v. U.S., 2007 WL 1030326 (E. D. La. 2007).
23
17-30519.1042
In the case in hand, plaintiff has named as defendants “John Does No. 1 through 5” as
defendants in this matter. However, as illustrated above, Louisiana law holds the naming of
fictitious defendants in a lawsuit is ineffective to interrupt prescription against those defendants.
As such, a petition that fails to interrupt prescription and fails to state a claim against a particular
defendant necessarily has no legal effect. Further, the Eastern District of Louisiana has
considered that such petitions naming fictitious defendants fail to meet the pleading requirements
of Federal Rules of Civil Procedure 17(b), stating that the fictitious defendants have no capacity
to be sued under Rule 17(b) and are to be properly dismissed. Plaintiff’s claims against John Doe
defendants 1 through 5 should be dismissed.
XIII. STATE LAW CLAIMS SHOULD BE DISMISSED
Plaintiff alleges claims under Louisiana state law for false arrest, battery, extortion and
“other illegal acts as more fully set forth above.” These claims should be dismissed.Under
Louisiana law, unlawful detentions are those made “without the color of legal authority.”
O’Conner v. Hammond Police Dept., 439 So.2d 558, 559 (La.App. 1 Cir 1983). The burdenis on
the plaintiff to show that the arrest was unlawful. Id. A police officer “doing his duty in good
faith” will not be held liable for false arrest or false imprisonment. Gibson v. State, So.2d 782,
788 (La. 2000). An officer making an arrest acts in good faith “if the arrest is based on probably
cause.” Id.
In the present case, plaintiff has not set forth facts that he was not intoxicated, was not
driving recklessly or at high speeds, that he did not resist arrest and as such, there is nothing pled
to refute that the arrest was based on probable cause.Insofar as battery, “under ordinary
circumstances the use of reasonable force to restrain an arrestee shields a police officer from
liability for battery.” Ross v. Sheriff of Lafourche Parish, 479, So.2d 506, 511 (La.App. 1Cir.
24
17-30519.1043
1985). Thus, the same qualified immunity analysis would apply to the use of force and as
plaintiff has not pled sufficient facts to overcome the officer’s qualified immunity, there can be
no state law battery claim.
Insofar as plaintiff’s claim for extortion and civil kidnapping, as stated in Vinas v. Serpas,
2012 WL 2135286 (E.D. La. 2002), “Louisiana law does not recognize a civil kidnapping
claim,” Id. at 6, and “there does not appear to be a cause of action for extortion under Louisiana
tort law.”Id. at 7. As such, in Vinas, plaintiff’s kidnapping and extortion claims were dismissed.
The same should hold true in the present case; there is no state law tort claim for kidnapping or
extortion.
XIV. CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that their motion be
granted and that the aforementioned claims in plaintiff’s Complaint be dismissed.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneys for Defendants
h:\1050\12315 - gates\pleadings\motion to dismiss - memo in support
- monell.docx
record via the Court’s CM/ECF system, this 21st day of September, 2012.
/s/ Mark E. Hanna

MARK E. HANNA
25
17-30519.1044


* NO. 07-6983
VERSUS *
SHERIFF “JACK” STRAIN, ET AL. *
*************************************
MOTION FOR STAY PENDING DISPOSITION OF RULE 60 MOTION OR,

ALTERNATIVELY, MOTION FOR PROTECTIVE ORDER AND/OR TO LIMIT
DISCOVERY TO ISSUES OF QUALIFIED IMMUNITY
“Jack” Strain, in his official and individual capacity, St. Tammany Parish Sheriff’s Office,
Sheriff Deputy Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams
and St. Paul Insurance Company, District Attorney Walter Reed, in his official capacity and St.
Tammany Parish District Attorney’s Office, Charles M. Hughes, Jr. (herein after referred to
collectively as “Defendants”), and move this Court to stay its August 8, 2012 order re-opening
this case while Defendants’ Rule 60 motion remains pending. In the alternative, Defendants
move this Court to enter an order prohibiting any and all discovery in this matter and/or limiting
discovery to the issue of qualified immunity until such time as Defendants’ qualified immunity
defenses are finally resolved.
WHEREFORE, for the reasons discussed more fully in their Memorandum in Support,
Defendants respectfully request that their motion be granted.
17-30519.1045
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
and

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and
17-30519.1046

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1047


* NO. 07-6983
VERSUS *
*************************************

Daniel G. Abel
Suite 106
Metairie, LA 70001
Defendants hereby provide Notice that the Motion for Stay Pending Disposition of Rule
60 Motion or, alternatively, Motion for Protective Order and/or to Limit Discovery to Issues of
Qualified Immunity will be heard before the Honorable Stanwood R. Duval, Jr., District Judge,
United States District Court for the Eastern District of Louisiana, Section K on Wednesday,
October 17, 2012, beginning at 9:30 a.m. or as soon as counsel may be heard.
17-30519.1048
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
and

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and
17-30519.1049

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1050


* NO. 07-6983
VERSUS *
*************************************
pursuant to Local Rule 78.1 of the U.S. District Court for the Eastern District of Louisiana,
hereby requests oral argument on its Motion for Stay Pending Disposition of Rule 60 Motion or,
alternatively, Motion for Protective Order and/or to Limit Discovery to the Issues of Qualified
Immunity filed contemporaneously herein.
17-30519.1051
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
and

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and
17-30519.1052

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1053


* NO. 07-6983
VERSUS *
SHERIFF “JACK” STRAIN, ET AL. *
*************************************
MEMORANDUM IN SUPPORT OF MOTION FOR STAY PENDING DISPOSITION OF

RULE 60 MOTION OR, ALTERNATIVELY, MOTION FOR PROTECTIVE ORDER
AND/OR TO LIMIT DISCOVERY TO ISSUES OF QUALIFIED IMMUNITY
Defendants, Sheriff Rodney “Jack” Strain, in his official and individual capacity, St.
Tammany Parish Sheriff’s Office, Sheriff’s Deputy Nathan Miller, Sheriff’s Deputy Robert
Gottardi, Sheriff’s Deputy Brian Williams and St. Paul Insurance Company, District Attorney
Walter Reed, in his official capacity and St. Tammany Parish District Attorney’s Office, and
Charles M. Hughes, Jr. (hereinafter “Defendants”), respectfully submit this Memorandum in
Support of their Motion for Stay Pending Disposition of Rule 60 Motion or, alternatively,
Motion for Protective Order and/or to Limit Discovery to the Issues of Qualified Immunity. For
the reasons discussed below, Defendants request that their motion be granted.
I. BACKGROUND
On August 8, 2012, this Honorable Court issued an order that plaintiff’s “Motion To
Reopen 42 USC §1983 Action As The Twelve Person St. Tammany Jury Has Found Gates Not
Guilty Of Aggravated Flight Or Any Lesser Charge” be granted and that the case manager set
this matter for trial. (R. Doc. 143). Defendants subsequently filed a Rule 60 motion seeking
relief from this order (R. Doc. 145) which is still pending.
17-30519.1054
Since the entry of this order, plaintiff has taken steps to conduct broad-ranging discovery
of several parties and non-parties. This Court recently denied Defendants motion for protective
order and/or to quash deposition subpoena with respect to Requests for Admission directed to
Charles Hughes and the depositions of Hughes and Ronald Gracianette, ordering that responses
to the Requests for Admissions be provided no later than October 12, 2012 and that the
depositions be completed by October 31, 2012. (R. Doc. 179). The order placed no restrictions
on the scope of discovery generally, or specifically with respect to the Requests for Admission or
the depositions of Hughes and Gracianette.1
For the reasons discussed below, Defendants respectfully request a stay of the Court’s
order re-opening the case while their Rule 60 motion remains pending. In the alternative,
Defendants respectfully submit that they are entitled to protection from discovery entirely or, at
the very least, entitled to have the scope of discovery limited to the issue of qualified immunity
until the Court makes a determination as whether the defense of qualified immunity is available.
II. LAW AND ARGUMENT
A. Stay Pending Disposition of Defendants’ Rule 60 Motion
Pursuant to Federal Rule of Civil Procedure 62, Defendants respectfully request that this
Court exercise its discretion to stay the operation of its August 8, 2012 order granting plaintiff’s
Motion to Re-Open (R. Doc. 143) while Defendants’ Rule 60 motion is pending. Rule 62
provides that, under appropriate circumstances for the opposing party’s security, the court may
1
Although Charles Hughes is not a direct employee of the government, he is nonetheless entitled to qualified
immunity. See Filarsky v. Delia, 132 S.Ct. 1657, 1665-1666 (2012) (“Affording immunity not only to public
employees but also to others acting on behalf of the government similarly serves to ensure that talented candidates
are not deterred by the threat of damages suits from entering public service.”) (internal quotations and citations
omitted).
17-30519.1055
stay the execution of a judgment—or any proceedings to enforce it—pending disposition of a
motion under Rule 60 for relief from a judgment or order.2
Defendants filed a Rule 60 motion (R. Doc. 145) on August 14, 2012 seeking relief from
the order granting plaintiff’s Motion to Re-Open, alerting the Court that, contrary to what
plaintiff represented, there is an ongoing state court criminal proceeding, the outcome of which
may have a significant effect on plaintiff’s right to proceed with this civil action. As discussed in
Defendants’ Rule 60 motion, the re-opening of this case while the criminal proceeding remains
pending would be prejudicial to Defendants’ ability to assert the defense of qualified immunity.
Additionally, a stay preventing the re-opening of the case while Defendants’ Rule 60 motion is
pending is justified in light of plaintiff’s counsel’s incomplete disclosure to the Court regarding
the underlying criminal case in order the have the stay of the proceedings lifted in the first
instance.
Accordingly, Defendants respectfully request that the Court stay the operation of its
August 8, 2012 order re-opening the case pending the disposition of their Rule 60 motion
through which it seeks to have the stay of the entire proceeding reinstated.
B. Alternatively, Defendants Seek Protection from Discovery and/or Limitation of

Discovery to the Issue of Qualified Immunity
The defense of qualified immunity affords government officials immunity not only from
liability but also immunity from suit.3 The application of qualified immunity should be resolved
at the earliest possible stage as one of the doctrine’s purposes is the protection of public officials
from “broad-ranging discovery” of the type that can be “peculiarly disruptive of effective
government.”4
2
Fed. R. Civ. P. 62(b)(4).
3
Mitchell v. Forsyth, 472 U.S. 511, 522-26 (1985).
4
Harlow v. Fitzgerald, 457 U.S. 800, 817(1982).
17-30519.1056
As the Supreme Court held in Harlow v. Fitzgerald, discovery should not commence
until the threshold issue of qualified immunity is resolved.5 “[S]ubjecting officials to trial,
traditional discovery, or both concerning acts for which they are likely immune undercuts the
protection from governmental disruption which official immunity is purposed to afford.” 6 Thus,
“allowing any but perhaps the most preliminary proceedings on the immunity-barred claim runs
squarely counter to the doctrine’s basic protective purpose: that officials be free to exercise their
duties and functions without fear of having their attentions distracted by the subsequent claims of
unhappy or unsuccessful litigants.”7
In Mitchell v. Forsyth, the United States Supreme Court held that denials of immunity are
subject to interlocutory appeal in order to shield government officials from the costs and risks of
trial, including “such pretrial matters as discovery.”8 The Supreme Court and the Fifth Circuit
have held further that immunity questions should be resolved at the earliest possible stage of the
litigation.9
Should the Court deny Defendants’ request for a stay while their Rule 60 motion is
pending, Defendants respectfully request a protective order prohibiting all discovery or,
alternatively, an order limiting the scope of discovery to the issue of qualified immunity.
C. The Court’s Order of September 12, 2012
Magistrate Judge Wilkinson entered an Order on September 12, 2012 (R. Doc. 179)
granting in part and denying in part motions to quash and/or for protective orders filed on behalf
of defendants Walter P. Reed and the St. Tammany District Attorney’s Office (R. Doc. 150) and
defendant Charles M. Hughes (R. Doc. 151). Importantly, the defendants raised the issue of
5
Id. at 818.
6
Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir.1985).
7
Id.
8
Mitchell, 472 U.S. at 526 (emphasis added).
9
See id.; Harlow, 457 U.S. at 818; see also Hunter v. Bryant, 501 U.S. 224, 227, 228 (1991).
17-30519.1057
qualified immunity in their submissions to the Court, pointing out that “[o]ne of the most salient
benefits of qualified immunity is protection from pretrial discovery, which is costly, time-
consuming, and intrusive”10 and that the “[j]urisprudence clearly holds that the issue of qualified
immunity is a threshold question, and discovery should not be allowed until that question is
resolved.”11
Magistrate Judge Wilkinson’s September 12, 2012 Order did not address these arguments
and did not place any limits on the Requests for Admissions directed to Charles Hughes or the
upcoming depositions of Hughes and Ronald Gracianette. In other words, unfettered discovery
is set to proceed despite United States Supreme Court and Fifth Circuit precedent requiring that
no discovery or, at most, limited discovery, occur before the Court addresses the issue of
qualified immunity.
III. CONCLUSION
Defendants respectfully request a stay of the Court’s August 8, 2012 order re-opening
this case while their Rule 60 motion remains pending. A stay is appropriate under the
circumstances because it would, if only briefly, restore this case to its position prior to plaintiff’s
counsel’s incomplete disclosure to the Court regarding the underlying state court criminal
proceedings.
Alternatively, Defendants, supported by substantial Supreme Court and Fifth Circuit
precedent, move this Honorable Court to enter an order prohibiting any and all discovery in this
matter and/or limiting discovery to the issues of qualified immunity until such time as
Defendants’ qualified immunity defenses are finally resolved.
10
R. Doc. 150-1, p. 4 (citing Backe v. Leblanc, (11-40460) – F.3d –, 2012 WL 3517361 (5th Cir. 2012)).
11
Id.
17-30519.1058
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
and

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and
17-30519.1059

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1060


* NO. 07-6983
VERSUS *
*************************************
pursuant to Local Rule 78.1 of the U.S. District Court for the Eastern District of Louisiana,
hereby requests oral argument on its Motion for Stay Pending Disposition of Rule 60 Motion or,
alternatively, Motion for Protective Order and/or to Limit Discovery to the Issues of Qualified
Immunity filed contemporaneously herein.
17-30519.1061
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
and

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and
17-30519.1062

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1063
17-30519.1064
17-30519.1065
17-30519.1066
17-30519.1067
17-30519.1068
17-30519.1069
17-30519.1070
17-30519.1071
17-30519.1072
17-30519.1073
17-30519.1074
17-30519.1075
17-30519.1076
17-30519.1077
17-30519.1078

07-CV-06983

MOTION TO DISMISS
who, pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively 12(c), for the
reasons more fully described in the attached Memorandum in Support, respectfully submit
Page 1
17-30519.1079
that plaintiff has failed to state a claim against these defendants upon which relief can be granted.
motion to dismiss be granted and that all causes of action asserted against these defendants
be dismissed with prejudice.

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Motion to Dismiss has been
Baton Rouge, Louisiana this 1st day of October, 2012.
s/Kathryn Landry
KATHRYN LANDRY
Page 2
17-30519.1080

07-CV-06983

of the Motion to Dismiss.
Page 1
17-30519.1081
THE CAUSES OF ACTION ASSERTED AGAINST THE DISTRICT ATTORNEY
Plaintiff, Shane Gates (“Gates”) has alleged that the District Attorney conspired with
the Sheriff to file charges of resisting arrest against Gates for the purpose of preventing Gates
from redress of his constitutional and civil rights actions in this Court. See Complaint, ¶62,
82. Gates has alleged that these actions constituted malicious prosecution and abuse of
process and violated his constitutional and civil rights, subjecting the District Attorney to
liability under 42 U.S.C. 1983. See Complaint, ¶100-103, 118-122. The District Attorney
submits that, under Louisiana law, he has the entire charge and control of every criminal
prosecution instituted or pending in his district, and determines whom, when, and how he
shall prosecute. All actions taken by the District Attorney alleged herein were within his
powers and duties. For the following reasons, the causes of action asserted against the
District Attorney herein by plaintiff fail, and this action should be dismissed against the
District Attorney.
THE OFFICE OF THE DISTRICT ATTORNEY NOT A PROPER PARTY
Plaintiff has named as defendants Walter P. Reed, District Attorney, in his official
capacity (Complaint, ¶6) and the St. Tammany Parish District Attorney’s Office (Complaint,
¶7). However, Louisiana law does not permit a district attorney's office to be sued in its own
name, nor is the office a person capable of being sued under § 1983. Instead, the claim must
be brought against the district attorney in his official capacity. Delta Fuel Co., Inc. v.
Maxwell, 2011 WL 5159703 (W.D. La. 2011) report and recommendation adopted, 2011 WL
5158955 (W.D. La. 2011) aff'd, 2012 WL 3264279 (5th Cir. 2012), citing Hudson v. City of
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17-30519.1082
New Orleans, 174 F.3d 677, 680 (5th Cir.), cert. den., 582 U.S. 1004 (1999). Accordingly,
the St. Tammany Parish District Attorney’s Office should be dismissed from this action.
COUNTS I, II AND V - §1983 ACTIONS AGAINST DISTRICT ATTORNEY IN

OFFICIAL CAPACITY
Plaintiff named Walter P. Reed, District Attorney for the Parish of St. Tammany, in
his official capacity. (Complaint, ¶6). For purposes of “official capacity” suits under § 1983,
district attorney's offices have been held to resemble local government entities, and as such,
these suits are considered to be suits against the municipality, i.e. the Parish of St. Tammany.
Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999).
To establish liability against a government official in his “official capacity”, a
plaintiff, under §1983, must show that a policy or custom formulated and implemented by
the official must have played a part in the violation of federal law. Hafer v. Melo, 502 U.S.
21, 28 (1991). Plaintiffs must prove that “action pursuant to official municipal policy”
caused their injury. Connick v. Thompson, – U.S. –, 131 S.Ct. 1350, 179 L.Ed.2d 417
(2011). Official municipal policy includes the decisions of a government’s lawmakers, the
acts of its policymaking officials and practices so persistent and widespread as to practically
have the force of law. Id. In order, through § 1983, to state a claim under federal law against
a municipality, a plaintiff must allege: (1) a constitutional or federal right was violated; (2)
the deprivation was committed by a person acting under color of state law; and (3) an official
policy or custom of the municipality was a cause in fact of the violation. Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994) (quoting Monell v. Dep't of Social Servs.
Page 3
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of the City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A
plaintiff may not infer a policy merely because harm resulted from some interaction with a
governmental entity. Colle v. Brazos County, TX, 981 F.2d 237, 245 (5th Cir. 1993). Rather,
a plaintiff must identify the policy or custom that was adopted or maintained with objective
deliberate indifference to his constitutional rights. Scott v. Moore, 114 F.3d 51, 54 (5th Cir.
1997). “Liability arises only when the execution of an official policy or custom of the
municipality causes the constitutional injury.” Yates v. Unidentified Parties, 73 F. App'x 19,
20 (5th Cir. 2003), citing Gros v. City of Grand Prairie, Texas, 181 F.3d 613, 615 (5th
Cir.1999). An official policy may be either a written ordinance or regulation or “a persistent,
widespread practice of city officials or employees that, although not authorized by officially
adopted policy, is so common and well settled as to constitute a custom that fairly represents
official municipal policy.” Yates, supra, citing McConney v. City of Houston, 863 F.2d
1180, 1184 (5th Cir.1989). When a complaint amounts to no more than an isolated incident,
it will not trigger official liability. Id. See also Quatrevingt v. Thibodeaux, 2011 WL
2182104 (E.D. La. 2011) report and recommendation adopted, 2011 WL 2182069 (E.D. La.
2011) (“[T]o have an actionable claim against a local government entity, a plaintiff must
allege that he was harmed by an official policy or custom of the entity and identify that
policy or custom. Again, plaintiff does not even allege that the purported violations here were
caused by an official policy or custom, much less identify such a policy or custom.”). The
“official policy” requirement was intended to distinguish acts of the municipality from the
acts of employees of the municipality, and thereby make clear that municipal liability is
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limited to actions for which the municipality is actually responsible. A municipality may not
be held liable under § 1983 solely because it employs a tortfeasor. It is when execution of
a government's policy or custom, whether made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983. “Official policy” often refers to formal rules or
understandings—often but not always committed to writing—that are intended to, and do,
establish fixed plans of action to be followed under similar circumstances consistently and
over time. Therefore, plaintiffs must demonstrate that the municipality was the “moving
force” behind the injury alleged. To establish liability on the part of a District Attorney,
plaintiff must allege that a policy or custom of the government entity caused the alleged
constitutional deprivation. A failure to identify the policy or custom which caused the
deprivation of plaintiff's constitutional rights is fatal to plaintiff's claims. Montgomery v. City
of Lake Charles, 10-1297, 2011 WL 1365547 (W.D. La. 2011).
In this case, plaintiff does no more than allege an isolated instance of conduct, i.e. he
alleges the District Attorney wrongly added charges to the bill of information in an attempt
to interfere with his rights to redress wrongs allegedly perpetrated by the Sheriff. The act of
deciding who, when and how to prosecute is within the power specifically granted to district
attorneys. La. C.Cr.P. art. 61. Plaintiff has asserted no facts and made no allegations that
the District Attorney acted in accordance with an official municipal policy or custom. Such
allegations are insufficient to state a cause of action against the District Attorney in his
official capacity, and for that reason, the §1983 action against him should be dismissed.
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COUNT III - §1983 CONSPIRACY CAUSE OF ACTION
To state a claim for conspiracy under section 1983, a plaintiff must allege the
existence of (1) an agreement to do an illegal act and (2) an actual constitutional deprivation.
Cinel v. Cannock, 15 F.3d 1338, 1343 (5th Cir.1994). A plaintiff must show a purposeful
conspiracy to deny him due protection; mere errors or irregularities in the state court
proceedings are not sufficient. Merely characterizing conduct as conspiratorial or unlawful
does not set out allegations upon which relief can be granted. Snowden v. Hughes, 321 U.S.
1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Allegations are insufficient to establish a conspiracy-
based claim under § 1983 if it is not shown that the defendants agreed to commit an illegal
act. Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir.1990). The only act at issue herein with
respect to the District Attorney is the amendment of the bill of information to include two
counts of resisting an officer. The District Attorney submits such allegations are insufficient
to state a conspiracy cause of action against it, as such act was not illegal. In addition, there
is no allegation of an “actual” constitutional deprivation, only plaintiff’s allegations that this
was done with the intent or attempt to deprive him of his civil rights. While plaintiff is
somewhat unclear as to the identity of the civil or constitutional rights of which he is being
deprived, the District Attorney submits that plaintiff has not been deprived of any such rights.
Plaintiff filed this action, and therefore, was not deprived of any right to file the action. If
his argument is that he was deprived of an opportunity to prevail on these claims, the District
Attorney submits that he has no federal or constitutional right to prevail in a civil action, so
such cannot constitute the deprivation at issue.
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In addition to the foregoing, as stated above, for purposes of §1983, a suit against the
District Attorney, in his official capacity, is considered to be a suit against the municipality.
The same is true for suits against the sheriff, in his official capacity, under §1983. A suit
against a sheriff, in his official capacity, is also construed as a suit against the municipality
or parish. Boston v. Normand, 11-829, 2012 WL 607978 (E.D. La. 2012). See also Brown
v. Strain, 663 F.3d 245, 251 (5th Cir. 2011) (“Because Strain is being sued in his official
capacity as St. Tammany Parish Sheriff, the suit against him is ‘in essence’ a suit against a
municipality.”) The deputies named as defendants herein are alleged to be employed by the
Sheriff, and the attorney, Charles Hughes, is alleged to represent the Sheriff. With regard
to Charles Hughes, the Supreme Court recently held that there is no distinction, for purposes
of immunity, of a private attorney from that of a full-time municipal employee. Filarsky v.
Delia, – U.S. –, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). Accordingly, all of the alleged
actors herein are considered the municipality and/or employees of the municipality.
The law presumes that municipalities are incapable of entering into conspiracies. See
Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.1998) (The City of Houston is
a single legal entity and, as a matter of law, its employees cannot conspire among
themselves.); Hiliard v. Ferguson, 30 F.3d 649, 653 (5th Cir.1994). In Miller v. Harris
County, 08-2826, 2011 WL 4456094 (S.D. Tex. 2011), plaintiff sued various defendants,
including the Sheriff of Harris County and deputies of the Sheriff (referenced by the court
as the “Harris County Defendants”), and the District Attorney and several assistant district
attorneys (referenced by the court as the “District Attorney Defendants”), alleging various
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causes of action, including a §1983 conspiracy claim. The court found that as to the
plaintiff’s allegations that the Harris County Defendants and the District Attorney
Defendants had conspired among one another to violate his constitutional rights, the intra-
corporate conspiracy doctrine required dismissal of the claim, because under Fifth Circuit
law, a municipality and its employees are considered to be a single legal entity, and therefore,
incapable of conspiring with itself for purposes of satisfying the requirements of §1983. The
same is true herein. All of the entities and/or individuals alleged to have conspired against
Gates consist of the municipality itself or employees thereof. Such allegations are
insufficient to state a cause of action for conspiracy, as a single legal entity, such as the
Parish of St. Tammany, cannot conspire with itself.
For the foregoing reasons, this cause of action should be dismissed.
NO CLAIMS UNDER 42 U.S.C. §§ 1985 AND 1986
In various paragraphs of the Complaint filed herein plaintiff alleges causes of action
against defendants pursuant to 42 U.S.C. §§1985 and 1986. Defendant respectfully submits
the Complaint fails to state a cause of action against defendants pursuant to these statutes.
In Griffin v. Breckenridge, 403 U.S. 88, 29 L.Ed.2d 338, 91 S.Ct. 1970 (1971), the
United States Supreme Court held as follows with regard to allegations of a 42 U.S.C. §1985
conspiracy:
The language requiring an intent to deprive of equal protection, equal

privileges and immunities, means that there must be some racial, or perhaps
otherwise class based, insidiously discriminatory animus behind the
conspirator’s action. 403 U.S. at 102, 29 L.Ed.2d 348, 91 S.Ct. 1798.
Page 8
17-30519.1088
A complaint under 42 U.S.C. 1985 that does not contain such allegations of racial or
class based animus will be dismissed. Vines v. Howard, 658 F.Supp. 34 (E.D. Pa. 1987);
see also Komasinski v. I.R.S., 588 F.Supp. 974 (D.C. Ind. 1984). In other words, §1985 does
not apply to alleged tortious acts which have no evidence of class discrimination. McNally
v. Pulitzer Prize Co., 352 F.2d 65 (8th Cir. 1976), cert. denied 429 U.S. 55, 50 L.Ed.2d 131,
97 S.Ct. 150. Importantly, the Fifth Circuit has noted with regard to §1985 claims that “in
this circuit, we require an allegation of a race-based conspiracy.” Bryan v. City of Madison
Miss., 213 F.3d 267, 276 (5th Cir. 2000). There is no allegation by Gates of any
discriminatory actions, and accordingly, he has no cause of action under 42 U.S.C. §1985.
Moreover, any cause of action under 42 U.S.C. §1986, which provides an action for
neglect to prevent a conspiracy to interfere with the civil rights of others, fails absent a valid
claim for relief under 42 U.S.C. §1985. Trerice v. Pedersen, 769 F.2d 1398 (9th Cir. 1985).
A cause of action under §1986 is premised on the violation of §1985; thus, where a plaintiff
cannot maintain a claim under §1985, his §1986 claim must fail as well. Rhodes v. Mabus,
676 F.Supp. 755 (S.D. Miss. 1987). There is absolutely no mention whatsoever of a racial
or class based animus in plaintiff’s complaint pursuant to 42 U.S.C. §1985 and 1986.
In addition, the application of the intra-corporate conspiracy doctrine, discussed
above, is also applicable to conspiracy claims under these provisions, and these claims should
be dismissed for this additional reason. See Swilley v. City of Houston, 457 F. App'x 400,
404 (5th Cir. 2012).
For the foregoing reasons, this claim should also be dismissed.
Page 9
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COUNT VI - CONSTITUTIONAL CLAIMS
In the Complaint filed by plaintiff herein, he states on p. 4, that jurisdiction for
injunctive relief is invoked pursuant to the First, Fourth, Fifth, Eighth and Fourteenth
Amendments to the United States Constitution. In addition to alleging constitutional
violations in connection with his §1983 claim, plaintiff makes other allegations that the
District Attorney violated his constitutional rights. See ¶121, 122 of original Complaint. In
his amended complaints filed herein, plaintiff makes more allegations regarding alleged
violation of his constitutional rights. While many of the allegations, such as Counts X, XI
and XII in the Third Amended Complaint, do not appear to involve the District Attorney,
plaintiff makes broad reference to “defendants”, without designating the defendants he is
alleging are at issue with each count. The District Attorney submits that plaintiff has failed
to allege facts which implicate the provisions cited by plaintiff, the First, Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution because these provisions do not
protect individuals for the type of harm alleged herein or provide for private actions for
damages. Defendants respectfully submit that the absence of any foundational allegations
or cause of action for such claims warrant their dismissal.
Plaintiff alleges denial of due process and equal protection, and in Count VI, at ¶122,
he specifically alleges a cause of action for such violations. There is no factual allegation
that plaintiff was denied due process or in what manner such due process was denied to him.
In fact, he filed this action, and accordingly, there has been no denial of due process as to his
civil rights. A conclusory allegation that plaintiff has a recognized property interest and
Page 10
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defendants deprived him of that right is insufficient to support a due process claim. Aucoin
v. Kennedy, 355 F.Supp.2d 830, 843 (E.D. La. 2004).
Moreover, when a plaintiff makes a claim that a state action has deprived him of due
process rights, the Supreme Court has held that the state’s action is not complete unless and
until it refuses to provide a post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 531
(1984). Louisiana state courts provide an adequate remedy for plaintiff’s claim that
defendants improperly cited and/or charged him, as he has been allowed the opportunity to
have the validity of those citations and/or charges addressed and determined by the state
courts. In fact, as alleged in a more recent pleading requesting a lifting of the stay herein,
plaintiff admits that following a trial on the felony charge of aggravated flight, he was
acquitted. Plaintiff has pled no facts to demonstrate that such state court remedies have been
exhausted and/or are inadequate to address any complaint with regard to the charges at issue.
These due process and equal protection claims should be dismissed.
28 U.S.C. §1337
In the Complaint, under Jurisdiction, plaintiff asserts a federal claim pursuant to 28
U.S.C. §1337, which addresses commerce and anti-trust regulations, amount in controversy
and costs. This action is one pursuant to 42 U.S.C. §1983 and other civil rights claims and
does not involve 28 U.S.C. §1337, and any claims pursuant to that statute should be
dismissed.
Page 11
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18 U.S.C. §1961-1968 and COUNT IX - 18 U.S.C. §1951
In the Complaint, again under Jurisdiction, plaintiff asserts a federal claim pursuant
to 18 U.S.C. §1961-1968, which are criminal statutes. 18 U.S.C. §1964 makes clear that
recovery is only available for injuries to business or property, not personal injury. The
remainder of the statutes do not provide private causes of action. Without a harm to a
specific business or property, there is no injury to business or property within the meaning
of the RICO act. Plaintiff makes no such allegation, and accordingly, any causes of action
asserted by plaintiff pursuant to 28 U.S.C. §1961-1968 should be dismissed.
In the Second Amended Complaint, in Count IX, plaintiff alleges violation of the
Hobbs Act, 28 U.S.C. §1951. While plaintiff asserts that he is not asserting a private right
of action for any alleged violations of the Hobbs Act and it was only included in connection
with his request for injunctive relief, which has previously been denied, it was included as
a separate count, and accordingly, out of an abundance of caution, the District Attorney seeks
dismissal of such cause of action. It is moot under the plaintiff’s representation that it was
included in connection with the request for injunctive relief, previously denied by this Court.
In addition, the Hobbs Act provides only for criminal sanctions and not civil relief.
Brookhart v. Rohr, 385 F. App'x 67, 70 (3d Cir. 2010); Moore v. Garner, 04-CV-79, 2005
WL 1022088 (E.D. Tex. 2005); Decker v. McDonald, 09-CV-27, 2010 WL 1424322 (E.D.
Tex. 2010) report and recommendation adopted, 2010 WL 1424292 (E.D. Tex. 2010).
Accordingly, any alleged cause of action asserted under the Hobbs Act should be dismissed.
Page 12
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COUNT VII - HIPAA
Plaintiff alleges, in the First Amended Complaint, as Count VII a violation of HIPAA
as to all defendants, although the factual allegations do not appear to involve the District
Attorney, and any cause of action against the District Attorney involving HIPAA should be
dismissed for that reason. Plaintiff alleges that violation of these regulations proves
defendants’ violation of his constitutional and civil rights. However, HIPAA does not
support a private right of action. Acara v. Banks, 470 F.3d 569 (5th Cir. 2006); Roberts v.
Unitrin Specialty Lines Ins. Co., 405 Fed. Appx. 874 (5th Cir. 2010). Accordingly, any cause
of action asserted under HIPAA should be dismissed.
COUNT VIII - STATE LAW CLAIMS
Plaintiff has alleged various state law claims, although again he does not appear to
distinguish between which causes of action pertain to which defendants herein. The District
Attorney submits that it is entitled to immunity from such state law claims under Louisiana
law.
Under Louisiana law, it is well-settled that the District Attorney and his assistants are
absolutely immune from civil liability when actions within the scope of their duties in
initiating and pursuing a criminal prosecution. State prosecuting attorneys are constitutional
officers who serve in the judicial branch of the government. For this reason, a prosecuting
attorney acting within the scope of their prosecutorial duties in initiating and pursuing
criminal prosecution is entitled to the same absolute immunity extended to judges. Sinclair
Page 13
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v. State ex rel. Dept. of Pub. Safety & Corr., 1999-2290 La. App. 1 Cir. 11/3/00, 769 So. 2d
1270, 1271 (La. App. 1 Cir. 2000), citing Knapper v. Connick, 681 So.2d 944 (La.10/15/96).
Alternatively, under La. R.S. 9:2798.1, the District Attorney asserts that it is entitled to
qualified immunity from such actions. That statute provides:
A. As used in this Section, “public entity” means and includes the state and
any of its branches, departments, offices, agencies, boards, commissions,
instrumentalities, officers, officials, employees, and political subdivisions and
the departments, offices, agencies, boards, commissions, instrumentalities,
officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or

employees based upon the exercise or performance or the failure to exercise
or perform their policymaking or discretionary acts when such acts are within
the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate
governmental objective for which the policymaking or discretionary power
exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious,

intentional, willful, outrageous, reckless, or flagrant misconduct.
The factual allegations against the District Attorney revolve around that office
charging Gates with the crime of resisting arrest. However, La. C.Cr.P. art. 61 provides that
the district attorney has entire charge and control of every criminal prosecution instituted or
pending in his district and determines whom, when and how he shall prosecute. Accordingly,
the alleged actions of the District Attorney alleged herein are within the course and scope of
his lawful powers and duties, and he is therefore entitled, under Louisiana law, to immunity
from these state law causes of action, which should be dismissed.
Page 14
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COUNTS X, XI AND XII
In his Third Amended Complaint, plaintiff alleges that sheriff’s deputies failed to
intercede and prevent violation of his constitutional rights, sheriff’s deputies conducted
improper interrogation and coerced a statement from him and violated his Sixth Amendment
right to counsel. While it does not appear that the District Attorney is alleged to have been
involved in any of these asserted causes of action, in various instances, plaintiff makes
reference to all defendants. However, a clear reading of these allegations fails to assert any
facts against the District Attorney for these asserted causes of action. Accordingly, the
District Attorney is entitled to judgment dismissing it from these claims.
RESPONDEAT SUPERIOR
To the extent plaintiff’s claims allege that the District Attorney is liable for the acts
of its employees on the basis of respondeat superior or vicarious liability, he has no cause of
action. While plaintiff does not make a specific allegation regarding respondeat superior
liability, he does make allegations that the District Attorney is responsible for the policies,
procedures, and practices implemented by its employees.
A municipality will not face §1983 liability under a respondeat superior liability
theory. Posos v. City of San Antonio, 463 F. App'x 303, 304 (5th Cir. 2012). Local
government agencies, such as District Attorney's offices, cannot be held liable for
constitutional torts under Section 1983 pursuant to a theory of respondeat superior.
Livermore v. Arnold, 2011 WL 693569 (M.D. La. 2011) report and recommendation
Page 15
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adopted, 2011 WL 691865 (M.D. La. 2011). Accordingly, to the extent such claim is raised,
it should be dismissed.
CONCLUSION
request that this motion be granted and all causes of action asserted against them be
dismissed, with prejudice.

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
Page 16
17-30519.1096
Motion to Dismiss has been filed electronically. Notice of this filing will be sent to all
parties by operation of the Court’s electronic filing system. Parties may access this filing
through the Court’s system.
s/Kathryn Landry
KATHRYN LANDRY
Page 17
17-30519.1097

07-CV-06983

Motion to Dismiss and hereby notice such motion for submission before the Honorable Judge
Stanwood R. Duval, Jr. on the 17th day of October, 2012 at 9:30 a.m.
17-30519.1098

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
I hereby certify that a copy of the above and foregoing Notice of Submission has been
s/Kathryn Landry
KATHRYN LANDRY
17-30519.1099

SHANE M. GATES * NO. 2:07-CV-06983

Complainant, *
v. *
* JUDGE STANWOOD R. DUVAL, JR.
SHERIFF RODNEY JACK STRAIN, * SECTION: K
ATTORNEY CHARLES M. HUGHES, *
ET AL. *
Defendants. * MAGISTRATE JUDGE
* JOSEPH C. WILKINSON, JR.
* DIVISION: 2
DEFENDANT CHARLES M. HUGHES’S

MOTION TO DISMISS
NOW INTO COURT, through undersigned counsel, comes attorney-defendant Charles
M. Hughes, Jr., on behalf of Sheriff Jack Strain in his official capacity as Sheriff of St.
Tammany, who, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or,
alternatively, Rule 12 of the Federal Rules of Civil Procedure, and for the reasons more fully
discussed in the attached Memorandum in Support, respectfully moves this Honorable Court to
dismiss plaintiff’s claims against Mr. Hughes for failure to state a claim upon which relief can be
granted.
WHEREFORE, Mr. Hughes respectfully requests this Court dismiss him from this
action with prejudice.
17-30519.1100


Telephone: (504) 836-6500
Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
New Orleans, Louisiana this _____day of _______________, 2012.
17-30519.1101


Complainant, *
v. *
ET AL. *
* DIVISION: 2
DEFENDANT CHARLES M. HUGHES’S

Defendant Charles M. Hughes, Jr. (“Defendant” or “Mr. Hughes”), attorney on behalf of
Sheriff Jack Strain in his official capacity as Sheriff of St. Tammany Parish, respectfully submits
this Memorandum in Support of his Motion to Dismiss and would show the Court as follows:
I. PLAINTIFF FAILS TO ALLEGE FACTS SUFFICIENT TO STATE A CLAIM

UNDER 42 USC § 1983 AGAINST CHARLES HUGHES
A. Adoption and Incorporation by Reference of Defendants’ Motion to Dismiss

Regarding Plaintiff’s Failure to State a Claim Under 42 USC § 1983
In the interest of judicial economy and pursuant to FRCP 10(c), Defendant hereby adopts
and incorporates by reference, to the extent applicable to Mr. Hughes, any and all legal
arguments regarding plaintiff Shane Gates’s (“Plaintiff”) claims under 42 USC § 1983 contained
in Section I. of the Memorandum in Support of Motion to Dismiss (R. Doc. 184-2), filed by
1
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defendants Sheriff Rodney “Jack” Strain, St. Tammany Parish Sheriff’s Office, Sheriff Deputy
Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams and St. Paul
Insurance Company. Specifically, Defendant, who denies any conspiracy with any party, adopts
those arguments regarding Plaintiff’s failure to demonstrate injuries arising from an alleged
action performed pursuant to municipal policy.
B. Plaintiff Fails to Demonstrate a Claim Under 42 USC § 1983 Against Charles

Hughes as Counsel for Sheriff Strain and the St. Tammany Sheriff’s Office
To survive a motion to dismiss, 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, 677, 129 S.Ct. 1937, 1949 (2009)(quoting Bell A’tl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 1974 (2007)). A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 677. A complaint that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
550. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. “Threadbare recitals of the elements of a cause of action supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 1949; Wild v. Foti, 2002
WL31554003 (E.D. La. 2002).
Here, Plaintiff fails to plead facts sufficient to state a cause of action under 42 USC §
1983 against Mr. Hughes attorney on behalf of Sheriff Jack Strain in his official capacity as
Sheriff of St. Tammany. As with any attorney, Mr. Hughes is entitled and in fact required as a
matter of law to act as a zealous advocate for his clients and defend their interests to the best of
2
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his abilities. See MRPC Preamble1 and Rules 1.12, 2.13. Plaintiff’s allegations in the various
Complaints fail to demonstrate any illegalities or civil rights violations perpetrated by Mr.
Hughes in his valid and zealous legal representation of Sheriff Strain. Rather, Plaintiff’s
Complaints contain a litany of conclusory and baseless assertions concerning Mr. Hughes that
are insufficient to sustain a cause of action under § 1983. Plaintiff’s § 1983 claims against Mr.
Hughes, thus, lack the necessary facial plausibility necessary to survive a motion to dismiss.
Plaintiff’s allegations against Mr. Hughes center on purported “threats” made by
Defendant to Plaintiff’s counsel to have the District Attorney file “new charges” of resisting
arrest against Gates allegedly to obstruct Plaintiff’s constitutional and civil rights. See 2nd Am.
Complaint, p. 4-5 ¶¶61-63. These alleged “threats”, however, were no threats at all. The act of
deciding who, when and how to prosecute is within the exclusive discretion and power of the
district attorney. See La. C.C.R.P. art. 61. Furthermore, and as aforestated, Mr. Hughes was
acting as a zealous advocate for his client, Sheriff Strain, in pursuing any and all claims against
Gates, including the resisting arrest charge that was not a “new charge” created after-the-fact but
in fact was originally included in the arrest of Gates in November 2006, to adequately protect his
clients’ rights. See MRPC Preamble4. Plaintiff’s Complaints are devoid of facts that demonstrate
how Mr. Hughes, acting in his capacity as legal counsel for Sheriff Strain violated Gates’s
1
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a
client with an informed understanding of the client's legal rights and obligations and explains their
practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the
adversary system.
2
A lawyer shall provide competent representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
3
In representing a client, a lawyer shall exercise independent professional judgment and render candid
advice.
4
[2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a
client with an informed understanding of the client's legal rights and obligations and explains their
practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the
adversary system.
3
17-30519.1104
constitutional rights. Mr. Hughes’s actions in actively defending his clients do not amount to
any type of illegality, nor do his actions give rise to a claim under § 1983.
Plaintiff further alleges in his Second Amended Complaint (R. Doc. 36) that Defendant,
as counsel for the STSO (St. Tammany Sheriff Office) and Sheriff Strain, conspired with the
named defendants “to extort and otherwise deprive complainant of his rights under law and did
file the express charges of Resisting Arrest for the specific purpose of extorting him, and thereby
depriving him of his property and rights[.]” See 2nd Am. Complaint, p. 2. Plaintiff further
alleges that Mr. Hughes “threatened to have the District Attorney file additional charges of
Resisting Arrest against Gates, in order to obstruct any civil rights claims that Gates might file,
citing Heck v. Humphrey and related cases.” Id. (emphases supplied by Plaintiff). Plaintiff goes
on to allege, baselessly, that Mr. Hughes “instigated and [ADA] Dearing billed out the new
charges to cover up the actions of the deputies and the Sheriff’s office and by doing so
knowingly and intentionally attempted to and conspire to deprive and to otherwise threaten and
induce Gates to give up his rights, including his constitutional and property rights[.]” Id.
Accordingly, Plaintiff contends that Mr. Hughes allegedly engaged in a sort of conspiratorial
prosecution of Gates by charging Gates with a valid charge, that was indisputably included
among the charges against Gates at the time of his arrest in November 2006, in an attempt to
deprive Plaintiff of his constitutional rights in violation of § 1983.
To support a conspiracy claim under § 1983, a plaintiff must allege facts that suggest: (1)
an agreement between private and public defendants to commit an illegal act, and (2) an actual
deprivation of constitutional rights. Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
Allegations are insufficient to establish a conspiracy-based claim under § 1983 if it is not shown
4
17-30519.1105
that the defendants agreed to commit an illegal act. Dayse v. Schuldt, 894 F.2d 170, 173 (5th Cir.
1990) (emphasis added).
Here, not only does Plaintiff fail to demonstrate facts or proof of any purported
“agreement” between Mr. Hughes and other named defendants, to create after-the-fact charges
against Mr. Gates, but Plaintiff fails to demonstrate how Mr. Hughes committed any “illegal act”
in operating as counsel for Sheriff Strain. The only purported act involving Mr. Hughes is his
request to the D.A., solely in his capacity as attorney for Sheriff Strain, that the D.A. consider
prosecution of Mr. Gates for the resisting arrest charge—which were originally charged against
Gates by the arresting officers on the night of the incident. Such allegations are entirely
insufficient to support a conspiracy claim under § 1983. Plaintiff fails to even satisfy the first
prong of the two-part test applied by federal courts in adjudicating a conspiracy claim under §
1983. Ultimately, Plaintiff’s Complaints are devoid of facts sufficient to meet this two-part test
necessary to support a § 1983 conspiracy claim.
Plaintiff has failed to provide any factual evidence or support for his claims against Mr.
Hughes under § 1983. Moreover, Plaintiff’s broad and conclusory allegations involving
“threats” and “conspiracies” are insufficient to support a claim against Mr. Hughes under § 1983
as Mr. Hughes was merely acting as legal counsel for his client, and because the District
Attorney for St. Tammany Parish has entire charge and control of every criminal prosecution
instituted or pending in his district. Without more, Plaintiff’s Complaints do not contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
Twombly, 550 U.S. at 570. Thus, Plaintiff’s claims against Mr. Hughes arising under § 1983
should be dismissed.
5
17-30519.1106
II. CHARLES HUGHES IS ENTITLED TO QUALIFIED IMMUNITY FROM SUIT

UNDER 42 USC § 1983
Regardless of Plaintiff’s ability to state a claim under § 1983, which Defendant avers
Plaintiff fails to do, Mr. Hughes is entitled to qualified immunity from suit under § 1983 as a
private individual performing work for the government.
The purpose of the qualified immunity doctrine is to shield public servants not only from
liability, but also from defending a lawsuit. Filarsky v. Della, 132 S.Ct. 1657, 1662, 182 L.Ed.2d
662 (2012)(citing W. Prosser Law of Torts § 25, p. 150 (1941)(common law protections derived
from the need to avoid the “impossible burden [that] would fall upon all our agencies of
government” if those acting on behalf of the government were “unduly hampered and
intimidated in the discharge of their duties” by a fear of personal liability)). According to the
Fifth Circuit, “[s]ince qualified immunity is immunity not only from damages but also from suit
itself, it is to be determined as early as possible” in the course of a lawsuit. Brown v. Lyford, 243
F.3d 185, 191 (5th Cir. 2001), cert. denied 534 U.S. 817, 122 S.Ct. 46, 151 L.Ed.2d 17 (2001).
Consistent with this principle:
§ 1983 actions that raise the issue of qualified immunity necessitate heightened
pleading standards. The complaint cannot be cast in broad, indefinite and
conclusory terms. Rather, the plaintiff must plead specific facts with sufficient
particularity to meet all the elements necessary to lay a foundation for recovery,
including those necessary to negative the defense of qualified immunity.
Brown v. Texas A & M University, 804 F.2d 327, 333 (5th Cir. 1986)(internal citations and
quotation marks omitted). See also Nance v. New Orleans and Baton Rouge Steamship Pilots
Association, 2006 WL 2338193 (E.D.La. 2006).
Qualified immunity protects government’s ability to perform its traditional functions.
Filarsky, 132 S.Ct. at 1665 (citing Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118
L.Ed.2d 504 (1992)). It does so by helping to avoid “unwarranted timidity” in performance of
6
17-30519.1107
public duties, ensuring that talented candidates are not deterred from public service, and
preventing the harmful distractions from carrying out the work of government that can often
accompany damage suits. Id. (citing Richardson v. McKnight, 521 U.S. 399, 409-411, 117 S.Ct.
2100, 138 L.Ed.2d 540 (1997)).
The Supreme Court of the United States has called the government interest in avoiding
“unwarranted timidity” on the part of those engaged in the public’s business “the most important
special government immunity-producing concern.” Id. Ensuring that those who serve the
government do so “with the decisiveness and the judgment required by the public good” is of
vital importance regardless whether the individual sued as a state actor works full-time or on
some other basis. Filarsky, 132 S.Ct. at 1665 (citing Scheuer v. Rhodes, 416 U.S. 232, 240, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The decisions of the Supreme Court of the United States have recognized similar
immunities under § 1983, reasoning that common law protections “‘well grounded in history and
reason’ had not been abrogated by ‘covert inclusion in the general language’ of § 1983.” Id. at
1662 (citing Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 47 L.Ed.2d 128
(1976)(quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951))).
Significantly, as it pertains to Mr. Hughes, immunity under § 1983 does not vary depending on
whether an individual working for the government does so as a permanent or full-time employee,
or on some other basis. Filarsky, 132 S.Ct. at 1665, 1668. An uncertain immunity is little better
than no immunity at all. Id. at 1667.
As recently promulgated in Filarsky, the United States Supreme Court held that a private
individual (an attorney) temporarily retained by the government to carry out its work is entitled
to seek qualified immunity from suit under § 1983. 132 S.Ct. at 1658. In that case, a firefighter
7
17-30519.1108
brought a § 1983 action against the City of Rialto, California, the City’s fire department and
officials, and a private attorney, alleging that an internal affairs investigation violated his
constitutional rights. Id. The private attorney, Filarsky, was hired by the City to interview the
firefighter and investigate his prolonged action from work. Id. The firefighter’s attorney
threatened a civil rights action against the City and Filarsky as a result of the investigation. Id.
Nevertheless, the investigation went forward and the plaintiff later brought his action under §
1983. The district court granted summary judgment to the individual defendants based upon
qualified immunity. Id. The Court of Appeals for the Ninth Circuit affirmed with respect to all
individual defendants except Filarsky, concluding that he was not entitled to seek qualified
immunity because he was a private attorney, not a City employee. Filarsky then appealed the
Ninth Circuit’s decision to the Supreme Court of the United States.
In determining whether the Ninth Circuit made a valid distinction between City
employees and Filarsky, the Supreme Court looked to the general principles of tort immunities
and defenses applicable at common law, and the reasons the Court had afforded protection from
suit under § 1983 in the past. Id. The Supreme Court concluded that common law principles of
immunity were incorporated into § 1983 and should not be abrogated absent clear legislative
intent. Id. The Supreme Court stated that immunity under § 1983, therefore, should not vary
depending on whether an individual working for the government does so as a permanent or full-
time employee. Id. at 1659.
The Supreme Court further found that nothing about the reasons the Court had given for
recognizing immunity under § 1983 counsels against carrying forward the common law rule. Id.
In so doing, the Supreme Court noted the public interest in ensuring performance of government
duties free from the distractions that accompany lawsuits is implicated whether those duties are
8
17-30519.1109
discharged by private individuals or permanent government employees. Id. “Distinguishing
among those who carry out the public’s business based on their particular relationship with the
government creates significant line-drawing problems and can deprive state actors of the ability
to ‘reasonably anticipate when their conduct may give rise to liability for damages.’” Id. (citing
Anderson v. Creighton, 483 U.S. 635, 646, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Thus, the
Supreme Court unanimously held that Filarsky, a private attorney retained by a government
entity, was entitled to qualified immunity from suit under § 1983. Id. at 1658, 1669.
Here, Plaintiff has sued Mr. Hughes, a private attorney, in his individual capacity arising
from Defendant’s legal representation of Sheriff Strain, a government official. See Porche v. St.
Tammany Parish Sheriff’s Office, 67 F.Supp.2d 631, 635 (E.D.La. 1999). Accordingly, Mr.
Hughes is entitled to qualified immunity from suit under § 1983 pursuant to the Supreme Court’s
recent decision in Filarsky. 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012). As in Filarsky, Mr.
Hughes, a private attorney, was retained to provide legal counsel for a government official,
Sheriff Strain. In fact, Mr. Hughes is much more connected with Sheriff Strain than the attorney
in Filarsky: He has served as an attorney for Sheriff Strain and his deputies for 17 years, has
been involved in scores of litigation matters in both state and federal court on behalf of the
STPSO, and even holds a special commission from the Sheriff. Given the nature of his
employment by a government official and/or entity, Mr. Hughes is entitled to the same immunity
from suit under § 1983 as provided a government employee. Filarsky, 132 S.Ct. at 1658. In
addition, Mr. Hughes is involved in this matter only in his role as an attorney for Sheriff Strain.
As such, his involvement can only be rightly viewed as “state action.”
9
17-30519.1110
Questions regarding qualified immunity are resolved on the face of the pleadings and
with limited resort to pre-trial discovery. See Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.
1994)(citing James v. Sadler, 909 F.2d 834, 838 (5th Cir.1990)); see also Jackson v. City of
Beaumont Police Dept., 958 F.2d 616, 620 (5th Cir. 1992). Moreover, even if a government
official reasonably, but mistakenly, commits a constitutional violation, he or she is still entitled
to immunity. Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).
Furthermore, Plaintiff bears the burden of rebutting Defendant’s defense of qualified
immunity. Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992). Plaintiff’s Complaint(s) must
state factual detail and particularly including why the defendant cannot maintain the immunity
defense. Colle v. Brazos County, 981 F.2d 237, 246 (5th Cir. 1993). Here, Plaintiff has patently
failed in his Complaints to provide any facts detailing with particularity why the named
defendants, including Mr. Hughes, are not entitled to qualified immunity.
Ultimately, and as aforestated, Plaintiff fails in his Complaints to plead facts sufficient to
state a cause of action under 42 USC § 1983 against Mr. Hughes in his individual capacity as
legal counsel for Sheriff Strain. Mr. Hughes, as their attorney, is entitled as a matter of law to
act as a zealous advocate for his clients and vehemently defend their interests. Plaintiff’s
allegations in the various Complaints fail to demonstrate any illegalities or civil rights violations
perpetrated by Mr. Hughes in his valid and zealous legal representation of Sheriff Strain.
Plaintiff’s Complaints merely contain a litany of conclusory and baseless allegations against Mr.
Hughes involving “threats” and “conspiracies” that are insufficient to sustain a cause of action
under § 1983. Plaintiff fails to demonstrate how Mr. Hughes’s legal representation of Sheriff
Strain amounts to a civil rights violation. Plaintiff’s deficient and conclusory allegations, thus,
are insufficient to sustain a § 1983 claim against Mr. Hughes. Furthermore, Defendant is entitled
10
17-30519.1111
to qualified immunity from suit under § 1983 and, thus, Plaintiff’s claims against Mr. Hughes
arising under § 1983 should be dismissed.
III. PLAINTIFF FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE

GRANTED FOR CLAIMS ARISING UNDER 42 USC §§ 1985 AND 1986
In the interest of judicial economy and pursuant to FRCP 10(c), Defendant hereby joins,
adopts and incorporates by reference any and all legal arguments regarding Plaintiff’s claims
under 42 USC §§ 1985 and 1986, contained in Section VI. of the Memorandum in Support of
Motion to Dismiss (R. Doc. 184-2) filed by defendants, as applicable to Mr. Hughes. Plaintiff’s
allegations fail to demonstrate any intent whatsoever by Mr. Hughes or other named defendants
to deprive Gates of equal protection based upon some racial or class based animus. Vines v.
Howard, 658 F.Supp. 34 (E.D.Pa. 1987). Accordingly, Mr. Hughes joins in defendants’ request
that said claims should be dismissed for the reasons contained in R. Doc. 184-2.
IV. PLAINTIFF’S CONSTITUTIONAL CLAIMS SHOULD BE DISMISSED
In the interest of judicial economy and pursuant to FRCP 10(c), Defendant hereby adopts
and incorporates by reference any and all legal arguments, as applicable to Mr. Hughes,
concerning Plaintiff’s claims arising under alleged violations of the Fourth, Fifth, Eight and
Fourteenth Amendments to the United States Constitution, contained in Section VII. of the
Memorandum in Support of Motion to Dismiss (R. Doc. 184-2) filed by defendants. Defendant
avers that said Memorandum sufficiently addresses Plaintiff’s constitutional claims on behalf of
all defendants such that Mr. Hughes need not burden the Court with additional analysis.
Defendant joins in the request that said claims should be dismissed for the reasons contained
therein.
11
17-30519.1112
V. PLAINTIFF DOES NOT POSSESS A CLAIM AGAINST DEFENDANT UNDER 28

USC § 1337
Plaintiff’s federal law claims under 28 USC § 1337 should be dismissed. 28 USC § 1337
specifically addresses commerce and anti-trust regulations, along with jurisdictional issues of
amount in controversy and cost. Plaintiff’s underlying action against Mr. Hughes, however,
strictly concerns 42 USC § 1983 and other allegations of civil rights violations. Plaintiff’s
underlying claims against Defendant do not implicate 28 USC § 1337 whatsoever and, thus,
should be dismissed pursuant to FRCP 12(b)(6).
VI. PLAINTIFF FAILS TO STATE A CLAIM UNDER 18 USC §§ 1961-1968
In his Second Amended Complaint (R. Doc. 36), Plaintiff asserts federal law claims
arising under 18 USC §§ 1961-1968. Plaintiff, however, fails to allege any cognizable claim
against Mr. Hughes, or any other named defendant for that matter, that falls within the gamut
and/or protections provided by 18 USC §§ 1961-1968. As a result, any claims brought by
Plaintiff arising under 18 USC §§ 1961-1968 should be dismissed pursuant to FRCP 12(b)(6) for
failure to state a claim upon which relief may be granted.
VII. PLAINTIFF DOES NOT POSSESS A PRIVATE RIGHT OF ACTION UNDER

HIPAA
Plaintiff alleges as Count VII in his First Amended Complaint (R. Doc. 3) claims for
violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) against
all defendants. Plaintiff contends that said violations of HIPAA evince defendants’ violations of
Plaintiff’s constitutional and civil rights. HIPAA, however, does not support a private right of
action. Roberts v. Unitrin Specialty Lines Ins. Co., 405 Fed.Appx. 874 (5th Cir. 2010).
Consequently, any claims asserted by Plaintiff arising under HIPAA should be dismissed as the
statute does not support a private right of action.
12
17-30519.1113
VIII. PLAINTIFF’S DUE PROCESS CLAIMS (COUNTS X, XI AND XII) SHOULD BE

DISMISSED AS TO CHARLES HUGHES
In Plaintiff’s Third Amended Complaint (R. Doc. 43) he brings forth various allegations
specifically against the STSO (a non-judicial entity incapable of being sued under Louisiana),
and its deputies for violations of Plaintiff’s constitutional rights arising from (1) a failure to
intercede and prevent violation of constitutional rights by other officers; (2) improper
interrogation and coercion of statements; and (3) violation of Sixth Amendment right to counsel.
While Plaintiff does not specifically charge Mr. Hughes with any involvement in Counts X, XI
and XII, he references “all defendants” on the face of the pleadings. A careful reading of these
allegations, however, reveals that Plaintiff fails to assert any facts against Mr. Hughes relative to
these causes of action. Thus, Counts X, XI and XII contained in Plaintiff’s Third Amended
Complaint should be dismissed relative to Mr. Hughes.
IX. PLAINTIFF’S STATE LAW CLAIMS SHOULD BE DISMISSED
In Plaintiff’s original and thrice amended Complaints he sets forth various causes of
actions against all defendants, including Mr. Hughes, arising under Louisiana state law.
Plaintiff’s state law claims, however, should be dismissed as they are not sanctioned by
Louisiana law. Moreover, any state law claims brought against Mr. Hughes arise from the
alleged “conspiracy” in charging Gates with the crime of resisting arrest—which, once again,
was originally included in the charges brought by the arresting officers. As discussed above, the
District Attorney has the sole discretion over every criminal prosecution instituted or pending in
his district and determines whom, when and how he shall prosecute. La. C.C.R.P. art. 61.
Accordingly, Plaintiff’s state law claims brought against Mr. Hughes are deficient as a matter of
law and should be dismissed pursuant to FRCP 12(b)(6).
13
17-30519.1114
X. CONCLUSION
For the foregoing reasons, defendant Charles M. Hughes, Jr. respectfully requests that his
motion be granted and the aforementioned causes of action in Plaintiff’s original and thrice
amended Complaints be dismissed, with prejudice.


Telephone: (504) 836-6500
New Orleans, Louisiana this 2nd day of October, 2012.
14
17-30519.1115


Complainant, *
v. *
ET AL. *
* DIVISION: 2
Please take notice that defendant Charles M. Hughes, Jr., on behalf of Sheriff Jack Strain
in his official capacity as Sheriff of St. Tammany, has filed a Motion to Dismiss and hereby
notices such motion for submission before the Honorable Judge Stanwood R. Duval, Jr. on the
17th day of October, 2012 at 9:30 a.m.


Telephone: (504) 836-6500
17-30519.1116
New Orleans, Louisiana this 1st day of October, 2012.
17-30519.1117

SHANE M. GATES ∞ NO.: 07-CV-06983

Complainant ∞
∞ CIVIL ACTION: § 1983
Versus ∞
∞
SHERIFF RODNEY JACK STRAIN, et al ∞
Defendants ∞ SECTION K
∞
∞
∞ MAGISTRATE: 2
∞
MOTION TO CONTINUE HEARING ON DEFENDANTS’ MOTIONS

TO DISMISS AND DEFENDANT’S MOTION TO DISQUALIFY DANIEL G.
ABEL AS ATTORNEY OF RECORD
NOW COMES, Shane M. Gates, plaintiff herein, through undersigned counsel, who
moves this court for a continuance of the hearing on Defendants’ Motions to Dismiss and
Defendant’s Motion to Disqualify Daniel G. Abel as Attorney of Record currently set for
October 17, 2012 for the reasons more fully set forth in the memorandum in support of this
motion attached hereto.
WHEREFORE, plaintiff prays that the Defendants’ Motions to Dismiss and Defendant’s
Motion to Disqualify Daniel G. Abel as Attorney of Record.
17-30519.1118
GAUTHIER, HOUGHTALING
& WILLIAMS, L.L.P.
s/JamesM. Williams_________________
James M. Williams, Esq. Bar No: 26141
Alanah O. Hebert, Esq. Bar No: 31904
3500 N. Hullen Street
Telephone: (504) 456-8600
Facsimile: (504) 456-8624
ATTORNEYS FOR PLAINTIFFS
DANIEL G. ABEL, BAR NO. 8348

Legal Department - Suite 106
Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815
I hereby certify that on the 5th day of October, 2012, I electronically filed the foregoing
with the Clerk of Court by using the CM/ECF system which will send a notice of electronic
filing to all counsel of record.
________s/ James M. Williams________________

JAMES M. WILLIAMS
17-30519.1119


Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
MEMORANDUM IN SUPPORT OF MOTION TO CONTINUE

HEARING ON DEFENDANTS’ MOTIONS TO DISMISS AND DEFENDANT’S
MOTION TO DISQUALIFY DANIEL G. ABEL AS ATTORNEY OF RECORD
Counsel for plaintiff has a previously scheduled deposition in the matter entitled and
numbered: “Queentene Jefferson v. Emma Smith, et al, 24th Judicial District Court, No: 705-
870.” The deposition of this matter is scheduled to begin on October 17, 2012, the same date as
the set hearing. Further, counsel for plaintiff was recently enrolled on August 27, 2012 and
requires additional time to thoroughly review the case. Counsel for plaintiff contacted opposing
counsel to determine if they expressed any objections to plaintiff’s continuance. All counsel
except for Mr. Mark Hanna, opposing counsel for Sheriff Rodney Jack Strain, St. Tammany
Sheriff’s Office, Sheriff Nathan Miller, Sheriff Deputy Robert Gottardi, Sheriff Deputy Brian
Williams, St. Paul Insurance Company, expressed no objection to the continuance. As such,
counsel for plaintiff request the hearing is continued.
17-30519.1120
For these reasons, plaintiff requests that this hearing be continued to the next available
hearing date.
& WILLIAMS, L.L.P.
s/James M. Williams_________________
Telephone: (504) 456-8600
Facsimile: (504) 456-8624

Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815

JAMES M. WILLIAMS
17-30519.1121


Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
TO: ALL COUNSEL OF RECORD
PLEASE TAKE NOTICE that undersigned counsel for Plaintiff, Shane Gates, will
bring their Motion to Continue Hearing on Defendants’ Motions to Dismiss and Defendant’s
Motion to Motion to Disqualify Daniel G. Abel as Attorney of Record for submission before the
Honorable Stanwood R. Duval, Jr. at the United States District Court for the Eastern District of
Louisiana, 500 Poydras Street, New Orleans, LA 70130, at 9:30 A.M. on Wednesday, October
17, 2012.
Respectfully submitted on October 5, 2012.
17-30519.1122
& WILLIAMS, L.L.P.
s/James M. Williams______________________
JAMES M. WILLIAMS, BAR NO. 26141
ALANAH O. HEBERT, BAR NO. 31904
Telephone: (504) 456-8600
Facsimile: (504) 456-8624

Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815
I hereby certify that a copy of the foregoing pleading has been served upon counsel for all
parties via facsimile transmission, electronic mail, hand delivery, or by placing same in the U.S.
Mail, postage prepaid and properly addressed, this 5th day of October, 2012.
________s/James M. Williams___________
JAMES M. WILLIAMS
17-30519.1123

Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
ORDER
Considering the foregoing Motion to Continue:
IT IS ORDERED that the hearing on Defendants’ Motions to Dismiss and Defendant’s
Motion to Disqualify Daniel G. Abel as Attorney of Record in the above-captioned matter be and
is hereby continued until _____ day of _______________, 2012 at ______ o’clock ___a.m.
New Orleans, Louisiana, this ____ day of ________________, 2012.
____________________________________
17-30519.1124


Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
MOTION FOR EXPEDITED CONSIDERATION
NOW INTO COURT through undersigned counsel, comes plaintiff, Shane Gates, who
respectfully moves the court to set an expedited consideration on his Motion to Continue
Defendants’ Motions to Dismiss and Defendant’s Motion to Disqualify Daniel G. Abel as
attorney of record for the reasons set forth in the accompanying Memorandum.
& WILLIAMS, L.L.P.
Telephone: (504) 456-8600
Facsimile: (504) 456-8624
17-30519.1125

Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815

JAMES M. WILLIAMS
17-30519.1126


Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
MEMORANDUM IN SUPPORT OF MOTION FOR EXPEDITED CONSIDERATION

OF PLAINTIFF’S MOTION TO CONTINUE HEARING ON DEFENDANTS’
MOTIONS TO DISMISS AND DEFENDANT’S MOTION TO DISQUALIFY DANIEL G.
ABEL AS ATTORNEY OF RECORD
Plaintiff, Shane Gates, has brought to this Court for expedited consideration his motion to
continue hearing on Defendants’ Motions to Dismiss and Defendant’s Motion to Disqualify
Daniel G. Abel as attorney of record.
Undersigned counsel requests expedited consideration because the pending hearings are
set on October 17, 2012. As more fully explained in the memorandum accompanying the
Motion to Continue, undersigned counsel has a conflict on this date is unavailable to attend.
For the reasons stated above, Plaintiff, Shane Gates, respectfully request that the Court
hear their motion on an expedited basis.
Dated: October 5, 2012.
17-30519.1127
& WILLIAMS, LLP
Telephone: (504) 456-8600
Facsimile: (504) 456-8624

Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815
JAMES M. WILLIAMS
17-30519.1128


Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
TO: ALL COUNSEL OF RECORD
PLEASE TAKE NOTICE that undersigned counsel for Plaintiff, Shane Gates, will
bring their Motion for Expedited Consideration of Motion to Continue Hearing on Defendants’
Motions to Dismiss and Defendant’s Motion to Motion to Disqualify Daniel G. Abel as Attorney
of Record for submission before the Honorable Stanwood R. Duval, Jr. at the United States
District Court for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, LA 70130,
at 9:30 A.M. on Wednesday, October 17, 2012.
Respectfully submitted on October 5, 2012.
17-30519.1129
& WILLIAMS, L.L.P.
s/James M. Williams______________________
Telephone: (504) 456-8600
Facsimile: (504) 456-8624

Metairie, LA 70001
Telephone: (504) 208-9610
Facsimile: (888) 577.8815
________s/James M. Williams___________
JAMES M. WILLIAMS
17-30519.1130

Complainant ∞
Versus ∞
∞
∞
∞
∞ MAGISTRATE: 2
∞
ORDER
Considering the foregoing motion;
Plaintiff’s Motion for Expedited Consideration is hereby granted.
New Orleans, Louisiana, this _____, day of October, 2012.
_____________________________________
U.S. DISTRICT JUDGE
17-30519.1131


* NO. 07-6983
VERSUS *
*************************************
MOTION TO EXTEND DEADLINE FOR AMENDMENTS TO PLEADINGS,

THIRD PARTY ACTIONS, CROSS CLAIMS AND COUNTER CLAIMS
NOW INTO COURT, through undersigned counsel, comes defendants Sheriff Rodney
“Jack” Strain in his official and individual capacity, St. Tammany Parish Sheriff’s Office, Sheriff
Deputy Nathan Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams and St.
Paul Insurance Company, District Attorney Walter Reed, in his official capacity and St.
Tammany Parish District Attorney’s Office, Charles M. Hughes, Jr. (hereinafter referred to
collectively as “Defendants”) who move this Court to extend the current deadline of October 9,
2012 for amendments to pleadings, third-party actions, cross claims and counter claims for the
reasons as are more fully set out in the memorandum in support of this motion attached hereto.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
17-30519.1132

Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
17-30519.1133
record via the Court’s CM/ECF system, this 9th day of October, 2012.
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1134


* NO. 07-6983
VERSUS *
*************************************
MEMORANDUM IN SUPPORT OF MOTION TO EXTEND

DEADLINE FOR AMENDMENTS TO PLEADINGS,
THIRD PARTY ACTIONS, CROSS CLAIMS AND COUNTER CLAIMS
Pursuant to the Scheduling Order filed into the record of these proceedings on September
7, 2012, the deadline for amendments to pleadings, third party actions, cross claims and counter
claims is October 9, 2012.
Pending before this Court are several motions brought pursuant to F.R.C.P. 12. These
motions include:
(1) Defendant Charles M. Hughes Motion to Dismiss (Rec. Doc. 190);

(2) Motion to Dismiss of Walter P. Reed, District Attorney for St. Tammany Parish, in
his official capacity and the St. Tammany District Attorney’s Office (Red. Doc. 189);
and
(3) Motion to Dismiss of Defendants Sheriff Rodney “Jack” Strain, in his official and
individual capacity, St. Tammany Parish Sheriff’s Office, Sheriff Deputy Nathan
Miller, Sheriff Deputy Roger Gottardi, Sheriff Deputy Brian Williams and St. Paul
Insurance Company (Rec. Doc. 184).
It is respectfully submitted that the Court’s rulings on the aforementioned motions to
dismiss brought pursuant to F.R.C.P. 12 could necessitate amendments to pleadings, third party
actions, cross claims and counter claims by any or all parties to this action. The submission date
for such F.R.C.P. 12 motions is currently set for October 17, 2012.
17-30519.1135
Additionally, to extend this single cutoff date until after the Court has ruled on the
Defendants F.R.C.P. 12 motions will not unduly delay the progress of this case in any way.
Pursuant to the Scheduling Order, trial is not set until July 22, 2013 and the next relevant date
after the amendment of pleadings date pursuant to the Scheduling Order is a telephone status
conference to be held on March 14, 2013. The discovery cut off is not until May 28, 2013. Thus,
to extend the pleading amendment deadline to a brief period of time after the Court acts on
Defendants’ F.R.C.P. 12 motions will not delay the progress of this matter, will not work as a
prejudice to any party and will not interfere with the trial date or any other currently set cut off
dates pursuant to the Scheduling Order of the Court.
F.R.C.P. 16(b)(4) provides that the court’s scheduling order may be modified for good
cause. The Court has wide discretion to amend its scheduling orders and continue existing trial
dates. The Fifth Circuit has explained that “an amendment of a pre-trial order should be
permitted when no substantial injury will be occasioned to the opposing party, the refusal to
allow the amendment might result in injustice to the movant, and the inconvenience to the court
is slight”. Wright v. Shell Offshore, Inc., 10-2108, 2011 WL 6304148 (E.D.La. 12/16/2011),
citing Sherman v. United States, 462 F.2d 577, 578 (5th Cir. 1972).
Thus, for these reasons, Defendants request that the cutoff date for amendment of
pleadings currently set for October 9, 2012 be extended until such time as the Court has ruled on
the Defendants’ F.R.C.P. 12 motions.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
17-30519.1136
Telephone: (504) 595-3000

Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
Facsimile: 504-836-6565
17-30519.1137
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1138


* NO. 07-6983
VERSUS *
*************************************

Daniel G. Abel
Suite 106
Metairie, LA 70001
and
James Williams
3500 N. Hullen St.
Defendants hereby provide Notice that the Motion to Extend Deadlines for Amendments
to Pleadings, Third Party Actions, Cross Claims and Counter Claims will be heard before the
Honorable Stanwood R. Duval, Jr., District Judge, United States District Court for the Eastern
District of Louisiana, Section K on Wednesday, October 31, 2012, beginning at 9:30 a.m. or as
soon as counsel may be heard.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
17-30519.1139

Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Insurance Company

2950 Energy Centre
1100 Poydras St.
Telephone: 504-525-1600
Facsimile: 504-525-1606
And

P.O. Box 82659
Telephone: 225-766-0023
Facsimile: 225-766-7341
and

One Galleria Blvd.
Suite 1400
P.O. Box 8288
Telephone: 504-836-6500
17-30519.1140
Facsimile: 504-836-6565
/s/ Mark E. Hanna

MARK E. HANNA
17-30519.1141

* NO. 07-6983
VERSUS *
*************************************
ORDER
Considering the Motion to Extend Deadline for Amendments to Pleadings, Third Party
Actions, Cross Claims and Counter Claims:
IT IS ORDERED that the deadline for amendments of pleadings, third party actions,
cross claims and counter claims be and the same is hereby continued from October 9, 2012 to be
reset after such time as the Court has acted on Defendants’ F.R.C.P. 12 motions.
New Orleans, Louisiana, this __ day of October, 2012.
_______________________________________
h:\1050\12315 - gates\pleadings\motion to extend deadline - order.docx
17-30519.1142

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, SECTION “K”(2)

ET AL
ORDER AND OPINION
Before the Court is a “Joint Motion for Rehearing Pursuant to F.R.C.P. 60 on Motion to
Reopen 42 U.S.C. §1983 Action” filed on behalf of defendants Sheriff Rodney “Jack” Strain, in his
official and individual capacity, Sheriff Deputy Nathan Miller, Sheriff Deputy Roger Gottardi,
Sheriff Deputy Brian Williams, St. Paul Insurance Company, District Attorney Walter Reed, in his
official capacity, St. Tammany Parish District Attorney’s Office, and Charles M. Hughes, Jr. (Doc.
145). Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons
assigned, GRANTS defendants’ “Joint Motion for Rehearing Pursuant to F.R.C.P. 60 on Motion to
Reopen 42 U.S.C. §1983 Action” (Doc. 145), vacates the order entered August 9, 2012 reopening
this litigation (Doc. 143) and orders that the Court’s April 16, 2008 order granting defendants’ joint
motion to stay proceedings remain in effect until such time as the Court grants a motion to reopen
this matter.
BACKGROUND
The background of this litigation is set forth in detail in the Order and Reasons filed July 11,
2011 (Doc. 121), and therefore will not be repeated herein after. The following additional facts are
relevant to consideration of this motion:
• On July 27, 2012, a jury in the 22nd Judicial District for the
17-30519.1143
Parish of St. Tammany found Shane Gates “Not Guilty” of

the crime of aggravated flight or any lesser included offense;
• On August 4, 2012, Mr. Gates filed a “Motion to Reopen 42
U.S.C. §1983 Action as The Twelve Person St. Tammany
Jury Has Found Gates Not Guilty of Aggravated Flight or
Any Lesser Charge” and set that motion for submission on
August 22, 2012 (Doc. 136).
• The Court granted plaintiff’s motion on August 8, 2012 (Doc.
143).
• At the time the Court granted plaintiff’s motion, defendants
had not yet filed a response to the motion to reopen.
• At the time of Mr. Gates’s acquittal on the aggravated flight
charge, there remained pending in the 22nd Judicial District
Court, a misdemeanor bill of information charging Mr. Gates
with one count of operationing a vehicle while intoxicated
(La. Rev. Stat. 14:98) and two counts of resisting an officer
(La. Rev. Stat. 14:108). Those charges remain pending and
await the setting of a new trial date. The charges were
previously scheduled for trial on August 31, 2012, but for
reasons not apparent from the record the state district judge
continued the trial.
ANALYSIS
Defendants rely upon Rule 60(b) of the Federal Rules of Civil Procedure in seeking relief
from the order reopening this case. However Rule 60 provides relief from final orders and
judgments only. Nonetheless, it is well established that the district court has “the inherent
procedural power to reconsider, rescind or modify an interlocutory order for cause seen by it to be
sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981); see also Xerox Corp. v.
Genmoora Corp., 888 F.2d 345, 356 (5th Cir. 1989).
Courts look to the standard applicable to Rule 60(b) motions for guidance in reconsidering
interlocutory orders. See Teal v. Eagle Fleet, Inc., 932 F.2d 341 (5th Cir. 1991); The Tokio Marine
and Fire Insurance Co., Ltd. v. M/V Flora, 1999 WL 461966 (E.D. La. July 2, 1999). Rule 60(b)
provides for relief from an order for, among other reasons, “mistake.” At the time the Court
17-30519.1144
granted the motion to reopen this matter, it was unaware that misdemeanor criminal charges
remained pending against Mr. Gates. Neither the motion to reopen nor the plaintiff’s memorandum
in support of that motion indicated that criminal charges remained pending against Mr. Gates. Had
the Court known that the misdemeanor criminal charges against Mr. Gates were still pending, it
would have denied the motion to reopen. Therefore, the Court grants defendants’ joint motion for
rehearing with respect to its order reopening this matter..
Turning to plaintiff’s motion to reopen, the Court notes that in its Order and Reasons
denying plaintiff’s “Motion to Re-Open 42 U.S.C. §1983 Action and Stay Unconstitutional
Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany” (Doc. 121), the Court
opined that if Mr. Gates’s injuries “were the direct result of his having resisted the arrest” then “
the jurisprudence of Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny might act as a
complete bar to plaintiff’s §1983 claim . . ..”
Plaintiff asserts that having been acquitted of the aggravated flight charge, “the district
Attorney cannot now bring these old charges offering the same evidence again.” Doc. 163, p. 1.
Plaintiff’s contention lacks merit. The jury acquitted Mr. Gates after concluding that the evidence
presented by the prosecution failed to satisfy the prosecution’s burden of proving the elements of
aggravated flight and its lesser included offenses beyond a reasonable doubt. No jury has yet
evaluated the prosecution’s evidence to determine whether it establishes beyond a reasonable doubt
the elements of the offense of resisting an officer. Because the elements of aggravated flight and
resisting an officer are not identical, plaintiff’s acquittal does not negate the possibility of a
conviction for resisting an officer and a finding that Mr. Gate’s injuries “were the direct result of his
having resisted the arrest,” a finding that might preclude §1983 liability under Heck and its progeny.
17-30519.1145
Because a conviction on the resisting arrest charges could bar plaintiff’s §1983 claim, the Court
vacates its prior order reopening this matter (Doc. 143), denies plaintiff’s motion to reopen the
matter, and orders that the stay previously imposed in this matter remain in effect. Upon dismissal
of the pending criminal charges for resisting an officer or Mr. Gates’s acquittal on the charges,
plaintiff may file a motion to reopen this matter.
New Orleans, Louisiana, this 10th day of October, 2012.

17-30519.1146

VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, SECTION “K”(2)

ET AL
ORDER
The following motions are pending before the Court:
• “Motion to Dismiss” filed on behalf of defendants Robert

Gottardi, Nathan Miller, St. Paul Insurance Company, St.
Tammany Parish Sheriff’s Office, Rodney Jack Strain, and
Brian Williams (Doc. 184);
• “Motion for Stay Pending Disposition of Rule 60 Motion
or, Alternatively, Motion for Protective Order and/or to
Limit Discovery to Issue of Qualified Immunity” filed on
behalf of defendants Robert Gottardi, Charles M. Hughes,
Jr., Nathan Miller, Walter P. Reed, St. Paul Insurance
Company, St. Tammany Parish District Attorney’s Office,
St. Tammany Sheriff’s Office, Rodney Jack Strain, and
Brian Williams (Doc. 185);
• “Motion to Disqualify Plaintiff’s Counsel Daniel G. Abel”
filed on behalf of defendant Charles M. Hughes, Jr. (Doc.
188);
• “Motion to Dismiss” filed on behalf of defendants Walter
P. Reed and St. Tammany Parish District Attorney’s Office
(Doc. 189);
• Motion to Dismiss filed on behalf of defendant Charles M.
Hughes, Jr. (Doc. 190);
• “Motion to Continue Hearing on Defendants’ Motion to
Dismiss and Defendant’s Motion to Disqualify Daniel G.
Abel as Attorney of Record” filed on behalf of plaintiff
Shane Gates (Doc. 191);
• “Motion for Expedited Consideration” filed on behalf of
plaintiff Shane Gates; and
• “Motion to Extend Deadlines for Amendments to
Pleadings, Third Party Actions, Cross Claims and Counter
Claims” filed on behalf of defendants Robert Gottardi,
17-30519.1147
Charles M. Hughes, Jr., Nathan Miller, Walter P. Reed, St.

Paul Insurance Company, St. Tammany Parish District
Attorney’s Office, Rodney Jack Strain, and Brian Williams
(Doc. 195).
Considering the Court’s Order and Opinion granting defendants’ “Joint Motion for
Rehearing Pursuant to F.R.C.P. 60 on Motion to Reopen 42 U.S.C. §1983 Action,” vacating the
order entered August 9, 2012 reopening this litigation and ordering that the Court’s April 16,
2008 order granting defendants’ joint motion to stay proceeding remain in effect until such time
as the Court grants a motion to reopen this matter (Doc. 196), the pending motions set forth
herein above are denied as moot. The parties may refile these motions, if necessary, once this
matter has been reopened.
New Orleans, Louisiana, this 10th day of October, 2012.

17-30519.1148


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
MOTION TO WITHDRAW AS COUNSEL
The Honorable Pascal Calogero has asked undersigned counsel to seek leave of
the Court for him to withdraw from this and other unrelated civil matters, as he is scaling back
his practice of law. The other unrelated civil matters are not before this Court.
Mr. Calogero has spoken with undersigned counsel personally, making this request within
the last week and I have informed his staff that I shall do the same today.
Mr. James Williams as shall continue as lead counsel .
Daniel G. Abel LSB No. 8348 I have filed this pleading and order
2421 Clearview Parkway using the ECF system and thereby
Metairie, LA 70001 served the Court and all counsel
Telephone: 504.284.8521 on this 25 June 2014.
17-30519.1149

* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
The Honorable Pascal Calogero is given leave to withdraw from this matter
as counsel of record [to be noticed]. Mr. Williams as shall continue as lead counsel .
New Orleans, Louisiana. Ordered this ____ day of __________, 2014.
______________________________
17-30519.1150


* Section: K
v. * Magistrate: 2
*
*
Defendants *
**************************
ORDER
The Honorable Pascal Calogero is given leave to withdraw from this matter
as counsel of record [to be noticed]. Mr. Williams as shall continue as lead counsel .
New Orleans, Louisiana. Ordered this 30th June
____ day of __________, 2014.
______________________________
17-30519.1151

VERSUS NO. 13-6425
and
VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL. SECTION "K"(2)
ORDER AND REASONS
Before the Court is a Motion to Stay (Doc. 29) filed by defendants, St. Tammany Parish
Sheriff, Rodney "Jack" Strain, in his official and individual capacity as Sheriff, St. Tammany
Parish Sheriff Captain Sherwood, St. Paul Fire & Marine Insurance Company , Louisiana
Attorney General James D. "Buddy"Caldwell, the office of the Louisiana Attorney General,
Kathryn Landry, ADA Nicholas f. Noriea and ADA Ronnie Gracianette (hereinafter
"Defendants"). Having reviewed the pleadings, memoranda and the relevant law, the Court
finds merit in this motion.
Background
This case is a continuation of a matter that is stayed in this Court, that being Shane M.
Gates v. Sheriff Rodney Jack Strain, et al., C.A. No. 07-6983. In the 2007 suit, Shane Gates
seeks damages under 42 U.S.C. § 1983, et seq., under 45 C.F.R. 164.513 ("HIPAA"), pendent
state law claims, and a claim for injunctive relief to prevent bad-faith prosecution. That case
17-30519.1152
arose from the arrest of Shane M. Gates (“Gates”) on November 16, 2006 for (1) obstruction of
a highway, (2) driving while intoxicated1; (3) having an open container; (4) reckless operation
and (5) resisting arrest. The circumstances surrounding that arrest have been hotly contested and
formed the basis for the original § 1983 suit based on his contention that he was wrongfully and
brutally beaten in and around the face by sheriff deputies at the time of his arrest. Gates sued a
litany of defendants, including Sheriff Rodney Jack Strain (“Strain”) in his official and
individual capacity; the St. Tammany Parish Sheriff’s Office; District Attorney Walter P. Reed
in his official capacity; St. Tammany District Attorney’s Office; Attorney Charles M. Hughes,
Jr.; Sheriff Deputy Nathan Miller; Sheriff Deputy Roger Gottardi; and Sheriff Deputy Brian
Williams.
Gates further contends in that 2007 suit that the defendants sought to extort out of Gates
the relinquishment of his claims against the St. Tammany defendants in exchange for his
abandoning his constitutional rights under § 1983. He sought to have the federal court step in to
prevent further alleged violations of Gates’ constitutional rights and enjoin the criminal
prosecution. He based this contention on the allegation that Gates was initially charged by the
St. Tammany District Attorney’s Office only with aggravated flight (felony) and DUI (which
can be enhanced to a felony); however, ten months later and after, on the eve of trial and after a
civil suit was threatened by Gates’ attorney ( who is also his step-father), a new bill of
information issued which then included resisting arrest which under the jurisprudence of Heck v.
1
procured.
17-30519.1153
Humphrey, 512 U.S. 477 (1994)2 and its progeny might act as a complete bar to plaintiff’s §
1983 claim if these injuries were the direct result of his having resisted the arrest.
The 2007 case was initially stayed on April 17, 2008, pending the resolution of the
criminal charges in the Twenty-Second Judicial District Court, (Rec. Doc. 81). On July 27,
2012, Gates was indeed acquitted of the felony aggravated flight charges and moved the Court
to re-open without informing the Court that the misdemeanor charges were still pending. Those
misdemeanor criminal charges including resisting arrest were and remain still pending3 and as
noted could result in the dismissal of the § 1983 suit. The Court on reconsideration issued its
Order and Reasons again staying that case pending the outcome of the misdemeanor charges
which in the event Gates is found guilty might render this suit moot under Heck v. Humphrey,
512 U.S. 477 (1994). Apparently, the resisting arrest trial had been set for August 12, 2013 in
the 22nd Judicial District Court before Judge Swartz..
The instant suit arises out of these same underlying facts and involves four of the same
defendants4. This suit was filed in the United States District Court for the Middle District of
Louisiana on August 5, 2013 (on the eve of the misdemeanor trial) and transferred to the Eastern
2
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make
such determination or called into question by a federal curt’s issuance of a writ of habeas corpus.’”
Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008) citing Heck, 512 U.S. at 486-87
3
For a full explanation of all of the charges and procedural history of this case, see Rec. Docs. 81 and 121
in C.A. No. 07-6983.
4
St. Tammany Parish District Attorney, Walter Reed; St. Tammany Parish Sheriff, Rodney "Jack" Strain;
The St. Tammany Parish District Attorney's Office; and St. Paul-Traveler's Insurance Company.
17-30519.1154
District on November 15, 2013. The case was initially allotted to another section of this court,
but was transferred to the undersigned based on its being related to the 2007 suit.
In this §1983 complaint, plaintiff now alleges that the District Attorney of St. Tammany
Parish, the St. Tammany Parish clerk of Court and the Bench in St. Tammany Parish have
conspired against him, committing a "fraud upon the Court" and that the defendants have
committed various crimes in pursuit of the second criminal prosecution. In both civil lawsuits,
plaintiff seeks "injunctive relief to prevent bad faith prosecution." In both complaints, plaintiff
asserts that evidence has been destroyed, altered or fabricated. While there are new facts added,
these facts are inextricably linked to the events of the night of November 16, 2006. Indeed, this
case is the chronological extension of the stayed suit.
In Wallace v. Kato, 549 U.S. 384 (2007), the Supreme Court stated:
If a plaintiff files a false-arrest claim before he has been convicted (or files
any other claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the district court, and in
accord with common practice, to stay the civil action until the criminal case or the
likelihood of a criminal case is ended. . . . If the plaintiff is ultimately convicted,
and if the stayed civil suit would impugn that conviction, Heck, will require
dismissal; otherwise, the civil action will proceed, absent some other bar to suit.
Id. at 393-394. See Busick v. City of Madison Mississippi, 20 Fed. Appx. 713 (Feb. 6, 2004);
Quinn v. Guerrero, 2010 WL 412901 (E.D. Tex. 2010). Clearly then, a stay in this matter is
appropriate.
Moreover, plaintiff's claim that he is entitled to injunctive relief to prevent bad-faith
prosecution as to the misdemeanor claim has been previously rejected by this Court and that
analysis remains valid and is hereby re-iterated and adopted in full in this case. Gates v. Strain,
2011 WL 2690607 (E.D.La. July 11, 2011). The Court found then that under the provisions of
17-30519.1155
the Anti-Injunction Act, 28 U.S.C. § 2283, Younger v. Harris , 401 U.S. 37 (1971) and Shaw v.
Garrison, 467 F.2d 113, 114 (5th Cir. 1972), that the facts in the 2007 case did not meet the
requisite threshold to allow this Court to enjoin the state court proceeding. The suit sought to be
enjoined herein is the self-same suit; any "new" evidence of "bad-faith," "manufacturing," and
"altering" can be presented in Gates’ defense and will speak directly to a jury’s decision as to
guilt or innocence on the charges brought. Accordingly,
IT IS ORDERED that this higher-numbered case, Gates v. Strain, C.A. 13-6425 be
CONSOLIDATED with the lower numbered case, Gates v. Strain, C.A. No. 07-6983. This
higher-numbered case is hereby CONSOLIDATED with the lower numbered case and that
lower numbered case is hereby designated as the "lead case."
Pursuant to the court’s directive, all pleadings hereafter filed in this consolidated
proceeding shall bear the caption of the lead case together with only the docket number of all
cases within the consolidated suit to which the document applies or the notation "All Cases" if it
applies to all cases.
The clerk of court is directed to establish a master file and a master docket sheet for the
consolidated group of cases.
All entries shall be made on the master docket sheet only, with a notation listing the cases
to which the document applies, except that orders and documents terminating a party or
disposing of a case will also be entered on the individual docket sheet. All documents shall be
filed in the master file only, except that orders and documents terminating a party or disposing of
a case will also be filed in the record of the individual case.
17-30519.1156
In the event that a case is separated from the consolidated group it shall be the
responsibility of counsel to jointly designate documents necessary to the continued litigation of
the case and to file such designation and copies of the documents.
IT IS FURTHER ORDERED that Motion to Stay (Doc. 29) in C.A. No. 13-6425 is
GRANTED.
IT IS FURTHER ORDERED that the following motions filed in C.A. No. 13-6425:
Motion for More Definite Statement (Doc. 30);
Motion for Entry of Default as to Defendant Walter P. Reed (Doc. 51);
Motion for Entry of Default as to All Defendants (Doc. 52);
Motion for Entry of Default as to Defendant Richard A. Swartz (Doc. 53);
Motion to Stay or in the Alternative Motion to Dismiss (Doc. 55)
are DISMISSED as MOOT without prejudice to such motions being re-filed upon the proper
reopening of these matters.

6
17-30519.1157
SHANE M. GATES CIVIL ACTION NO. 07-6983
VERSUS SECTION “K”(2)
SHERIFF RODNEY JACK STRAIN, ET AL
Consolidated With
MOTION TO SUBSTITUTE AND WITHDRAW COUNSEL OF RECORD
NOW INTO COURT, through undersigned counsel, comes defendant, Walter Reed,
in his individual capacity, who moves to withdraw Kathryn W. Landry as counsel of record
and substitute Ralph S. Whalen, Jr. as counsel of record. Defendants, Walter Reed, in his
official capacity, and the St. Tammany District Attorney’s Office, move to withdraw Ralph
S. Whalen, Jr. as counsel of record and substitute Kathryn W. Landry as counsel of record.
WHEREFORE, defendant, Walter Reed, in his individual capacity, moves to
withdraw Kathryn W. Landry as counsel of record and substitute Ralph S. Whalen, Jr. as
Page 1
17-30519.1158
counsel of record, and defendants, Walter Reed, in his official capacity, and the St. Tammany
District Attorney’s Office, move to withdraw Ralph S. Whalen, Jr. as counsel of record and
substitute Kathryn W. Landry as counsel of record.

P. O. Box 82659
Telephone: (225) 766-0023
Facsimile: (225) 766-7341
Counsel for Walter Reed, In His Official Capacity

Energy Centre
Telephone: (504) 525-1600
Facsimile: (504) 525-1606
Counsel for Walter Reed, In His Individual
Capacity
I hereby certify that a copy of the above and foregoing pleading has been filed with
the Clerk of Court using the CM/ECF system, which will send electronic notice of this filing
to all counsel of record.
New Orleans, Louisiana this 28th day of April, 2015.
s/Kathryn W. Landry
KATHRYN W. LANDRY
Page 2
17-30519.1159
Consolidated With
ORDER
Considering the foregoing Motion To Substitute and Withdraw Counsel of Record:
IT IS HEREBY ORDERED that Ralph S. Whalen, Jr. is withdrawn as counsel of
record for Walter Reed, in his official capacity, and the St. Tammany District Attorney’s
Office, and entered as counsel of record solely for Walter Reed, in his individual capacity,
and Kathryn W. Landry is withdrawn as counsel of record for Walter Reed, in his individual
capacity, and entered as counsel of record solely for Walter Reed, in his official capacity, and
the St. Tammany District Attorney’s Office.
New Orleans, Louisiana, this _______ day of April, 2015.
___________________________________
JUDGE
17-30519.1160
Consolidated With
ORDER
Considering the foregoing Motion To Substitute and Withdraw Counsel of Record:
IT IS HEREBY ORDERED that Ralph S. Whalen, Jr. is withdrawn as counsel of
record for Walter Reed, in his official capacity, and the St. Tammany District Attorney’s
Office, and entered as counsel of record solely for Walter Reed, in his individual capacity,
and Kathryn W. Landry is withdrawn as counsel of record for Walter Reed, in his individual
capacity, and entered as counsel of record solely for Walter Reed, in his official capacity, and
the St. Tammany District Attorney’s Office.

___________________________________
JUDGE
17-30519.1161


Plaintiff ∞ c/w 13-CV-06425
∞
Versus ∞ CIVIL ACTION: § 1983
∞
SHERIFF RODNEY JACK STRAIN, et ∞ SECTION: “K”
al ∞ JUDGE STANWOOD R. DUVAL, JR.
Defendants ∞
∞ DIVISION: 2
∞ MAG. JUDGE JOSEPH C. WILKINSON,
JR.
MOTION TO WITHDRAW AS COUNSEL OF RECORD
NOW COMES, James M. Williams who moves this court to withdraw as counsel of record
for plaintiff for the reasons more fully set forth in the memorandum in support of this motion
attached hereto.
WHEREFORE, James M. Williams prays that the Motion to Withdraw as Counsel of
Record be granted.
CHEHARDY, SHERMAN, WILLIAMS

MURRAY, RECILE, GRIFFITH,
STAKELUM & HAYES, LLP
One Galleria Boulevard, Suite 1100
Metairie, LA 70001
Telephone: (504) 833-5600
Facsimile: (504) 833-8080
17-30519.1162
I hereby certify that on the 5th day of June, 2015, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all
counsel of record.

JAMES M. WILLIAMS
17-30519.1163


∞
∞
Defendants ∞
∞ DIVISION: 2
JR.
MEMORANDUM IN SUPPORT OF MOTION TO

WITHDRAW AS COUNSEL OF RECORD
Now comes James M. Williams, Bar No. 26141, of Chehardy, Sherman, Williams, Murray,
Recile, Griffith, Stakelum & Hayes, LLP One Galleria Boulevard, Suite 1100, Metairie, Louisiana
70001, who moves this Honorable Court for an Order withdrawing as counsel of record for
plaintiff, in the above entitled and numbered matter. On June 2, 2015, Shane Gates sent
correspondence terminating the attorney client relationship with James M. Williams and the law
firm of Chehardy, Sherman, Williams, Murray, Recile, Griffith, Stakelum & Hayes, LLP. See
correspondence attached hereto as Exhibit A. Plaintiff is still currently represented by Danny
Abel, Esq., and as such, undersigned counsel’s withdrawal shall have no effect on the
representation of Plaintiff.
For these reasons, James M. Williams requests that the Motion to Withdraw as Counsel of
Record be granted.
17-30519.1164
CHEHARDY, SHERMAN, WILLIAMS

MURRAY, RECILE, GRIFFITH,
STAKELUM & HAYES, LLP
One Galleria Boulevard, Suite 1100
Metairie, LA 70001
Telephone: (504) 833-5600
Facsimile: (504) 833-8080
I hereby certify that on the 5th day of June, 2015, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all
counsel of record.

JAMES M. WILLIAMS
17-30519.1165

∞
∞
Defendants ∞
∞ DIVISION: 2
JR.
ORDER
Considering the foregoing Motion to Withdraw as Counsel of Record:
IT IS HEREBY ORDERED that James M. Williams and the law firm of Chehardy,
Sherman, Williams, Murray, Recile, Griffith, Stakelum & Hayes, LLP is hereby withdrawn as
counsel of record for Shane Gates in the above entitled and numbered cause.
New Orleans, Louisiana, this ____ day of ________________, 2015.
_______________________________________
17-30519.1166
17-30519.1167


∞
∞
Defendants ∞
∞ DIVISION: 2
JR.
ORDER
Considering the foregoing Motion to Withdraw as Counsel of Record:
IT IS HEREBY ORDERED that James M. Williams and the law firm of Chehardy,
Sherman, Williams, Murray, Recile, Griffith, Stakelum & Hayes, LLP is hereby withdrawn as
counsel of record for Shane Gates in the above entitled and numbered cause.
New Orleans, Louisiana, this ____

8th day of ________________,
June 2015.
_______________________________________
17-30519.1168
Consolidated With
This Pleading Pertains to All Cases
MOTION TO SUBSTITUTE COUNSEL OF RECORD
NOW INTO COURT, through undersigned counsel, come defendants, Walter Reed,
in his official capacity, the Office of Walter Reed District Attorney for the Parish of St.
Tammany, Ronnie Gracianette, Nicholas Noriea and Kathryn Landry, who move to withdraw
Kathryn W. Landry as counsel of record and substitute Emily Couvillon as counsel of record.
Page 1
17-30519.1169
WHEREFORE, defendants, Walter Reed, in his official capacity, the Office of Walter
Reed District Attorney for the Parish of St. Tammany, Ronnie Gracianette, Nicholas Noriea
and Kathryn Landry, move to withdraw Kathryn W. Landry as counsel of record and
substitute Emily Couvillon as counsel of record herein.

P. O. Box 82659
Telephone: (225) 766-0023
By: s/Emily Couvillon

EMILY COUVILLON, Bar No. 31114
701 N. Columbia St.
Covington, LA 70433
Telephone: (985) 809-8383
I hereby certify that a copy of the above and foregoing pleading has been filed with
the Clerk of Court using the CM/ECF system, which will send electronic notice of this filing
to all counsel of record.
Baton Rouge, Louisiana this 26th day of January, 2016.
s/Kathryn Landry
KATHRYN LANDRY
Page 2
17-30519.1170
Consolidated With
ORDER
Considering the foregoing Motion To Substitute Counsel of Record:
IT IS HEREBY ORDERED that Emily Couvillon is substituted as counsel of record
for Walter Reed, in his official capacity, the Office of Walter Reed District Attorney for the
Parish of St. Tammany, Ronnie Gracianette, Nicholas Noriea and Kathryn Landry, and
Kathryn W. Landry is withdrawn as counsel in this action.
New Orleans, Louisiana, this _______ day of January, 2016.
___________________________________
JUDGE
17-30519.1171
Consolidated With
ORDER
Considering the foregoing Motion To Substitute Counsel of Record:
IT IS HEREBY ORDERED that Emily Couvillon is substituted as counsel of record
for Walter Reed, in his official capacity, the Office of Walter Reed District Attorney for the
Parish of St. Tammany, Ronnie Gracianette, Nicholas Noriea and Kathryn Landry, and
Kathryn W. Landry is withdrawn as counsel in this action.
26th day of January, 2016.

___________________________________
JUDGE
17-30519.1172
CIVIL ACTION NO.: 07-CV-06983

SHANE GATES c/w 13-CV-06425
VERSUS SECTION: “K”
SHERIFF RODNEY JACK STRAIN, ET AL MAGISTRATE: 02
JURY DEMAND
JOINT MOTION TO WITHDRAW

AND SUBSTITUTE COUNSEL OF RECORD
NOW INTO COURT, through undersigned counsel, come defendants, Rodney J. “Jack”
Strain, Jr., in both his official and individual capacity as former Sheriff of St. Tammany Parish,
Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, and Deputy Brian
Williams, who move that Chadwick W. Collings, Andrew R. Capitelli and Thomas S. Schneidau
of the law firm Milling Benson Woodward L.L.P., be substituted as counsel of record on their
behalf in the above-captioned and numbered matter, and that Mark E. Hanna and the law firm of
Mouledoux, Bland, Legrand & Brackett, L.L.C., be withdrawn from the representation of
defendants, Rodney J. “Jack” Strain, Jr., in his official and individual capacity as former Sheriff
of St. Tammany Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy
Sherwood, and Deputy Brian Williams. Mark E. Hanna and the law firm of Mouledoux, Bland,
Legrand & Brackett, L.L.C., will continue to represent St. Paul Fire and Marine Insurance
Company.
89240/438508
Page 1 of 2
17-30519.1173
MOULEDOUX, BLAND, LEGRAND MILLING BENSON WOODWARD, L.L.P.

& BRACKET, LLC
BY: /s/ Mark E. Hanna BY: /s/ Chadwick W. Collings__________

MARK E. HANNNA (19336) CHADWICK W. COLLINGS (25373)
One Shell Square ANDREW R. CAPITELLI (31649)
701 Poydras Street THOMAS S. SCHNEIDAU (33359)
Suite 4250 68031 Capital Trace Row
New Orleans, LA 70139 Mandeville, LA 70471
Telephone: (504) 595-3000 Telephone: (985) 292-2000
mhanna@mblb.com ccollings@millinglaw.com
I hereby certify that on September 7, 2016, a copy of the foregoing Pleading was filed
sent to all counsel of record by operation of the court’s electronic filing system, and to all pro se
litigants via United States Mail.
/s/ Chadwick W. Collings
89240/438508
Page 2 of 2
17-30519.1174

JURY DEMAND
ORDER
Considering the foregoing Motion to Withdraw and Substitute Counsel of Record;
IT IS ORDERED that Chadwick W. Collings, Andrew R. Capitelli and Thomas S.
Schneidau of the law firm Milling Benson Woodward L.L.P., is substituted as counsel of record
on behalf of defendant, Rodney J. “Jack” Strain, Jr., in both his official and individual capacity
as former Sheriff of St. Tammany Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain
Kathy Sherwood, and Deputy Brian Williams, and as such, be entered on the record and docket
thereof.
IT IS FURTHER ORDERED that Mark E. Hanna and the law firm of Mouledoux,
Bland, Legrand & Brackett, L.L.C., be withdrawn from the representation of defendants, Rodney
J. “Jack” Strain, Jr., in both his official and individual capacity as former Sheriff of St. Tammany
Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, and Deputy
Brian Williams. Mark E. Hanna and the law firm of Mouledoux, Bland, Legrand & Brackett,
L.L.C., will continue to represent St. Paul Fire and Marine Insurance Company.
New Orleans, Louisiana, this _____ day of _____________, 2016.
____________________________________
JUDGE
17-30519.1175
89240/438523

JURY DEMAND
ORDER
thereof.
September 2016.
New Orleans, Louisiana, this _____ day of _____________,
____________________________________
JUDGE
17-30519.1176
89240/438523
SHANE M. GATES, * APPLIES TO: Civil Action Nos.

Plaintiff * 07-6983 and 13-6425
*
VERSUS * JUDGE STANDWOOD R. DUVAL, JR.
*
SHERIFF RODNEY JACK STRAIN, * MAGISTRATE JUDGE
ET AL., * JOSEPH C. WILKINSON, JR.
Defendants *
*
******************************************************************************
JOINT MOTION TO LIFT STAY FOR THE LIMITED PURPOSE OF

COMPELLING PLAINTIFF TO APPEAR IN HIS UNDERLYING STATE
COURT CRIMINAL PROCEEDING, FAILING WHICH, THIS MATTER
SHOULD BE DISMISSED WITH PREJUDICE
NOW INTO COURT, through undersigned counsel, come defendants, Rodney J. "Jack"
Strain, Jr., in both his individual capacity and his official capacity as former Sheriff of St.
Tammany Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood,
Deputy Brian Williams, Walter P. Reed, in both his individual and his official capacity as former
District Attorney for the 22nd Judicial District Court, Assistant District Attorney Ronald
Gracianette, Assistant District Attorney Nicholas F. Noriea, Jr., Kathryn Landry, former
Louisiana Attorney General James D. Caldwell, Office of the Louisiana Attorney General, Judge
Richard Schwartz of the 22nd Judicial District Court, Marie-Elise Prieto, in her individual and her
official capacity as former Clerk of Court for the Parish of St. Tammany, Charles M. Hughes, Jr.,
and Philip Duiett1, to move this Honorable Court to lift the stay for the limited purpose of giving
plaintiff sixty (60) days to appear and be served for trial in his underlying state court criminal
proceeding (and to resolve his attachment in connection therewith), and no other purpose, failing
1
Counsel for the Sheriff has been informed that St. Paul Fire and Marine Insurance Company takes no
position as to this motion.
89240/439429
Page 1 of 4 17-30519.1177
which, this action should be dismissed with prejudice. Should plaintiff timely take such steps,
this action should again be stayed until plaintiff's state court criminal proceeding is fully
resolved.
The grounds for this motion are set forth in the attached exhibits and accompanying
memorandum in support.
s/ Chadwick W. Collings_______________ s/ David G. Sanders___________________

Chadwick W. Collings, T.A. (#25373) David Glen Sanders, T.A (# 11696)
Andrew R. Capitelli (#31649) Louisiana Department of Justice
Thomas S. Schneidau (#33359) Litigation Division
MILLING BENSON WOODWARD L.L.P. P.O. Box 94005
68031 Capital Trace Row 1885 North 3rd St.
Mandeville, Louisiana 70471 Baton Rouge, LA 70804-9005
ccollings@millinglaw.com sandersd@ag.louisiana.gov.
Counsel for Rodney J. "Jack" Strain, Jr., Counsel for the Louisiana Attorney
in both his individual capacity and his General, former Attorney General James
official capacity as former Sheriff of St. D. Caldwell, and Judge Richard Schwartz
Tammany Parish, Deputy Nathan Miller, of the 22nd Judicial District Court
Deputy Roger Gottardi, Captain Kathy
Sherwood, and Deputy Brian Williams
s/ Emily G. Couvillon_______________ s/ Nancy A. Cundiff________________

Emily Gaunt Couvillon, T.A (#31114) Byron D. Kitchens, T.A. (#25129)
22nd Judicial D.A.'s Office Nancy A. Cundiff (#27974)
701 N Columbia Street Cotten, Schmidt & Abbott, LLP
Covington, LA 70433 650 Poydras Street
Telephone: (985) 809-8374 Suite 2810
ecouvillon@22da.com New Orleans, LA 70130
Counsel for Walter P. Reed, in his official Telephone: (504) 568-9393
capacity as former District Attorney for the ncundiff@csa-lawfirm.com
22nd Judicial District Court, Assistant Counsel for Philip Duiett
District Attorneys Ronald Gracianett, and
Nicholas F. Noriea, Jr., and Kathryn
Landry
89240/439429
Page 2 of 4 17-30519.1178
s/ Richard T. Simmons________________ s/ Thomas H. Huval___________________

Richard T. Simmons, Jr., T.A. (#12089) Thomas H. Huval (#21725)
Hailey, McNamara, Hall, Larmann Huval, Veazey, Felder & Renegar, LLC
& Papale 532 E. Boston St.
One Galleria Blvd., Suite 1400 Covington, LA 70433
P. O. Box 8288 Telephone: (985) 809-3800
Metairie, LA 70011-8288 thuval@hvfr-law.com
Telephone: (504) 836-6500 Counsel for the former Clerk of Court for
rsimmons@hmhlp.com the Parish of St. Tammany, Marie-Elise
Counsel for Charles M. Hughes, Jr. Prieto, in her individual and her official
capacity
s/ Ralph S. Whalen___________________
Ralph S. Whalen , Jr. (#8319)
Energy Centre
Telephone: (504) 525-1600
Counsel for Walter P. Reed, in his
individual capacity
89240/439429
Page 3 of 4
17-30519.1179
I hereby certify that the above and foregoing was electronically filed with the Clerk of
Court of the United States District Court for the Eastern District of Louisiana on October 20,
2016, by using the CM/ECF system, which system will send a notice of electronic filing to
appearing parties in accordance with the procedures established.

Chadwick W. Collings
89240/439429
Page 4 of 4
17-30519.1180

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
MEMORANDUM IN SUPPORT OF DEFENDANTS’ JOINT MOTION TO

LIFT STAY FOR THE LIMITED PURPOSE OF COMPELLING PLAINTIFF
TO APPEAR IN HIS UNDERLYING STATE COURT CRIMINAL
PROCEEDING, FAILING WHICH, THIS MATTER
NOW COME Defendants, Rodney J. "Jack" Strain, Jr., in both his individual capacity
and his official capacity as former Sheriff of St. Tammany Parish, Deputy Nathan Miller, Deputy
Roger Gottardi, Captain Kathy Sherwood, Deputy Brian Williams, Walter P. Reed, in both his
individual and his official capacity as former District Attorney for the 22nd Judicial District
Court, Assistant District Attorney Ronald Gracianette, Assistant District Attorney Nicholas F.
Noriea, Jr., Kathryn Landry, former Louisiana Attorney General James D. Caldwell, Office of
the Louisiana Attorney General, Judge Richard Schwartz of the 22nd Judicial District Court,
Marie-Elise Prieto, in her individual and her official capacity as former Clerk of Court for the
Parish of St. Tammany, Charles M. Hughes, Jr., and Philip Duiett, each and all appearing herein
89240/439430
Page 1 of 8
17-30519.1181
through undersigned counsel, respectfully submit this memorandum in support of their motion to
lift stay, and they aver as follows:
I. BACKGROUND TO AND PROCEDURAL HISTORY OF THIS ACTION
This Honorable Court has summarized the background to this action in its July 11, 2011,
Order and Reasons (Doc. 121), which is incorporated herein by reference. In short, plaintiff,
Shane Gates ("Mr. Gates"), was arrested by deputies of the St. Tammany Parish Sheriff's Office
on November 16, 2006, for: (1) obstruction of a highway; (2) driving while intoxicated; (3)
having an open container; (4) reckless operation; and (5) resisting arrest.
In 2007, Mr. Gates filed this action against a litany of defendants, claiming he was
wrongly beaten by deputies in conjunction with his 2006 arrest. He seeks relief under 42 U.S.C.
§ 1983, among other statutory provisions and theories of recovery. In 2013, Mr. Gates filed a
related action in the United States District Court for the Middle District of Louisiana. That
action was transferred to this Honorable Court and consolidated with the present action.
Although the 2013 action alleged new facts concerning the handling of Mr. Gates' criminal
prosecution, this Court has found that those "facts are inextricably linked to the events of the
night of November 16, 2006" and represent a "chronological extension" of the 2007 suit. Doc.
61, p. 4.
The 2007 action was first stayed in April of 2008, pending resolution of the criminal
charges against Mr. Gates in the Twenty-Second Judicial District Court for the Parish of St.
Tammany, State of Louisiana. See Doc. 81. A motion to re-open the case was denied in July
2011, while all state charges against Mr. Gates were still pending. See Doc. 121. The Court
briefly re-opened the case in August of 2012 after it was advised by counsel for Mr. Gates that
Mr. Gates was found not guilty of the crime of aggravated flight in the state court proceedings.
89240/439430
Page 2 of 8
17-30519.1182
See Docs. 136, 143. However, when this Court became aware there remained pending against
Mr. Gates one count of operating a vehicle while intoxicated and two counts of resisting an
officer, the stay was reinstituted. See Doc. 196. When the 2013 action was consolidated with
the 2007 action in August of 2014, it also was stayed. See Doc. 200.
Significantly, an attachment was issued for the arrest of Mr. Gates by the state court
judge after Mr. Gates failed to appear as ordered to be served for his misdemeanor trial. See
Exhibit A and Exhibit B attached to the motion. Since the issuance of the attachment, Mr. Gates
has not presented to the state court to receive service and stand trial, despite the knowledge of his
counsel as to the existence of the attachment for his client's arrest.
Mr. Gates' inaction is now untenable. The present action should not be allowed to
languish indefinitely while Mr. Gates evades his obligation to present and resolve his state court
criminal proceeding. Movers request a lifting of the stay for the purpose of compelling Mr.
Gates' compliance with the state court's order that he personally present to the clerk to be served
for trial (and, now, resolve the attachment for his arrest). He then should proceed to trial. If Mr.
Gates fails to present and be served for trial in accordance with state court directives within 60
days of the lifting of the stay, this action should be dismissed with prejudice, consistent with
FRCP 41(b) and Local Rule 41.3. No other substantive action should be allowed in this federal
proceeding during the lifting of the stay. If Mr. Gates timely complies, the stay should be
reinstituted until the resolution of the state court proceeding.
FRCP 41(b) provides:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
89240/439430
Page 3 of 8
17-30519.1183
dismissal not under this rule—except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19—operates as an adjudication on the merits.
Similarly, Local Rule 41.3 provides, in pertinent part: "Unless good cause is shown in response
to the court's show cause order why issue has not been joined, the case may be dismissed for
failure to prosecute pursuant to FRCP 41(b)."
Mr. Gates' refusal to present to the clerk to be served for his misdemeanor criminal trial
resulted in an attachment being issued for his arrest. See Exhibit A and Exhibit B attached to the
motion. Even though his counsel is aware of the existence of the attachmenthaving been
advised of it by the state court judge on the record in open courtMr. Gates has not turned
himself in to work toward resolution of the state court matter. Instead, it would appear he hopes
to wait out Louisiana's criminal justice system while keeping his federal civil action alive. This
Honorable Court should not allow such an abuse of process.
If Mr. Gates wants to prosecute his federal action, he should be compelled to appear in
order to resolve his underlying state court proceeding, consistent with the previous orders of this
Court. Otherwise, this action should be dismissed with prejudice under FRCP 41(b) and Local
Rule 41.3 for dilatory tactics.
Movers suggest the case of Billiot v. Beavers, Civ. Act. No. 12-2946 (6/17/15, EDLA);
2015 U.S. Dist. LEXIS 90532, approved and adopted as stated in Billiot, 2015 U.S. Dist. LEXIS
91140, is instructive and supports movers' position. See in globo Exhibit C attached to the
motion. In Billiot, this Court discussed six factors traditionally used by courts within the Fifth
Circuit to determine the appropriateness of a civil stay order when there is an underlying
criminal proceeding, namely:
1. the extent to which the issues in the criminal case overlap with those
presented in the civil case;
89240/439430
Page 4 of 8
17-30519.1184
2. the status of the case, including whether the criminal defendant has been
indicted;
3. the private interests of the plaintiff in proceeding expeditiously weighed
against the prejudice to plaintiff caused by the delay;
4. the private interests and burden on the defendants;
5. the interests of the courts; and
6. the public interest.
See id. at *7 (citations omitted). In Billiot, an evaluation of these factors led this Court to
conclude that maintaining the stay in plaintiff's § 1983 action was appropriate until his
underlying criminal charges were resolved. Here, movers believe the same holds true, but with
an important caveat: the stay loses its power to compel resolution when the plaintiff refuses to
appear to participate in that resolution.
Therefore, the stay in this matter should be lifted solely as a means to compel plaintiff's
appearance for his underlying criminal proceeding. If plaintiff continues to avoid appearance in
that proceeding, his unlawful evasiveness should constitute evidence sufficient to warrant
dismissal of this collateral civil action. Movers suggest allowing plaintiff sixty (60) days to
appear and be served as directed by the state court (and to resolve the attachment issued for his
arrest). If plaintiff fails to take such steps within the allotted time from the lifting of the stay,
then this Court should dismiss this action with prejudice for failure to prosecute. If plaintiff
timely takes such steps, however, the stay in this action should be reinstituted to serve the
purposes for which it was first enforced.
The relief requested by movers is consistent with the Billiot factors. More specifically:
1. As this Court has already recognized, the issues in the criminal and federal
civil proceedings overlap, since "a conviction on the resisting arrest
charges could bar plaintiff's § 1983 claim." Doc. 196, p. 4.
2. The judge in the state court criminal proceeding has implicitly indicated
he is ready for this matter to be tried, issuing an attachment for the arrest
of Mr. Gates as a means to compel his appearance. See Exhibit A and
Exhibit B attached to the motion.
89240/439430
Page 5 of 8
17-30519.1185
3. Resolving the state court criminal proceeding is the quickest way to

properly resolve this federal civil action and, thus, is in plaintiff's interests.
4. Defendants want resolution to this civil matter pending for close to ten
(10) years, and the suggested course of action is the most efficient way to
see to that.
5. Both the state and federal courts also want to resolve matters long pending
on their respective dockets.
6. The public is interested in seeing criminal matters appropriately resolved
in the most expeditious fashion and does not want public funds to be
continually expended to monitor and defend a civil action becoming stale
by plaintiff's inaction and non-compliance.
III. CONCLUSION
For the reasons expressed supra and in the referenced exhibits, this Honorable Court
should lift the stay in this matter for the limited purpose of giving plaintiff sixty (60) days to
appear and be served for trial in his underlying state court criminal proceeding (and to resolve his
attachment in connection therewith), and no other purpose, failing which, this action should be
dismissed with prejudice. Should plaintiff timely take such steps, this action should again be
stayed until the state court criminal proceeding is fully resolved.

89240/439430
Page 6 of 8
17-30519.1186

Telephone: (985) 809-8374 Suite 2810
District Attorneys Ronald Gracianette and
Landry

P. O. Box 8288 Telephone: (985) 809-3800
capacity
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity
89240/439430
Page 7 of 8
17-30519.1187

89240/439430
Page 8 of 8
17-30519.1188

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
PLEASE TAKE NOTICE that Defendants, Rodney J. "Jack" Strain, Jr., in both his
individual capacity and his official capacity as former Sheriff of St. Tammany Parish, Deputy
Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, Deputy Brian Williams,
Walter P. Reed, in his individual and his official capacity as former District Attorney for the 22nd
Judicial District Court, Assistant District Attorney Ronald Gracianette, Assistant District
Attorney Nicholas F. Noriea, Jr., Kathryn Landry, former Louisiana Attorney General James D.
Caldwell, Office of the Louisiana Attorney General, Judge Richard Schwartz of the 22nd Judicial
District Court, Marie-Elise Prieto, in her individual and her official capacity as former Clerk of
Court for the Parish of St. Tammany, Charles M. Hughes, Jr., and Philip Duiett, each and all
appearing herein through undersigned counsel, respectfully submit their limited motion to lift
stay before the Honorable Stanwood R. Duval, Jr. of the United States District Court for the
Eastern District of Louisiana, on the 16th day of November, 2016 at 9:30 a.m.
89240/439431
Page 1 of 3
17-30519.1189


Telephone: (985) 809-8374 Suite 2810
Landry

P. O. Box 8288 Telephone: (985) 809-3800
capacity
89240/439431
Page 2 of 3
17-30519.1190
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity

89240/439431
Page 3 of 3
17-30519.1191
17-30519.1192
17-30519.1193
17-30519.1194
17-30519.1195
17-30519.1196
17-30519.1197
17-30519.1198
17-30519.1199
17-30519.1200
17-30519.1201

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
NOW INTO COURT, through undersigned counsel, come Defendants, Rodney J.
"Jack" Strain, Jr., in both his individual capacity and his official capacity as former Sheriff of St.
Deputy Brian Williams, Walter P. Reed, in his individual and his official capacity as former
and Philip Duiett, who respectfully request that this Honorable Court allow oral argument on
their limited motion to lift stay. Defendants' motion currently is noticed for submission before
the Honorable Stanwood R. Duval, Jr. on the 16th day of November, 2016 at 9:30 a.m.
89240/439433
Page 1 of 4
17-30519.1202
This is a long-standing, collateral § 1983 action, because of the pending state court
criminal proceeding and related attachment for plaintiff's arrest, defendants believe the Court
would benefit from hearing the oral presentation of counsel on the unique issues involved.

s/ Emily G. Couvillon_______________ s/ Richard T. Simmons________________

Emily Gaunt Couvillon, T.A (#31114) Richard T. Simmons, Jr., T.A. (#12089)
22nd Judicial D.A.'s Office Hailey, McNamara, Hall, Larmann
701 N Columbia Street & Papale
Covington, LA 70433 One Galleria Blvd., Suite 1400
Telephone: (985) 809-8374 P. O. Box 8288
ecouvillon@22da.com Metairie, LA 70011-8288
capacity as former District Attorney for the rsimmons@hmhlp.com
22nd Judicial District Court, Assistant Counsel for Charles M. Hughes, Jr.
Landry
89240/439433
Page 2 of 4
17-30519.1203
s/ Nancy A. Cundiff________________ s/ Ralph S. Whalen___________________

Byron D. Kitchens, T.A. (#25129) Ralph S. Whalen , Jr. (#8319)
Nancy A. Cundiff (#27974) Ralph S. Whalen, Jr., Attorney at Law
Cotten, Schmidt & Abbott, LLP Energy Centre
New Orleans, LA 70130 Telephone: (504) 525-1600
Telephone: (504) 568-9393 ralphswhalen@ralphswhalen.com
ncundiff@csa-lawfirm.com Counsel for Walter P. Reed, in his
Counsel for Philip Duiett individual capacity
s/ Thomas H. Huval___________________
Thomas H. Huval (#21725)
Huval, Veazey, Felder & Renegar, LLC
532 E. Boston St.
Covington, LA 70433
Telephone: (985) 809-3800
thuval@hvfr-law.com
Counsel for the former Clerk of Court for
the Parish of St. Tammany, Marie-Elise
Prieto, in her individual and her official
capacity
89240/439433
Page 3 of 4
17-30519.1204

89240/439433
Page 4 of 4
17-30519.1205
SHANE M. GATES, CIVIL ACTIONS

Plaintiff, NOS. 07-6983 and 13-6425
versus
JUDGE STANDWOOD R. DUVALL, JR.
SHERIFF RODNEY JACK STRAIN,
et al., MAGISTRATE JUDGE
Defendants. JOSEPH C. WILKINSON, JR.
MOTION TO ENROLL
NOW COMES the Plaintiff herein, Shane M. Gates, who is also the defendant in the
Motion to Lift Stay filed by the Defendants here which is presently pending before this Court,
appearing herein through his undersigned successor counsel, who respectfully moves this Honor-
able Court as follows:
1.
Daniel Abel, Esquire, Movant’s original counsel of record herein who initially filed this
action, is not presently practicing in this U.S. District Court due to this Court’s own action.
2.
Martin Regan, Esquire, who was enrolled herein as one of Movant’s counsel, dis-
charged Movant as his client in 2014.
3.
As a result of the foregoing, at the time Movant became aware of the pending Motion to
Lift Stay, Movant was effectively unrepresented by counsel.
17-30519.1206
4.
Movant then contacted a lawyer who agreed to represent him and who was preparing to
enroll on Movant’s behalf when that lawyer discovered that he had a conflict of interest herein
which prevented him from actually enrolling herein.
5.
Movant was finally able to retain undersigned counsel to represent him herein and now
desires to have the name of John A. Hollister, Esquire, enrolled herein as his counsel of record
in this civil action.
WHEREFORE, Movant Shane M. Gates respectfully moves this Honorable Court to
enroll the name of John A. Hollister, Esquire, as his counsel of record herein.
/s/ J. A. Hollister
JOHN A. HOLLISTER (La. Bar #6963)
613 Bon Temps Roulé
Mandeville, Louisiana 70471
(985) 792-5353
jahollister@yahoo.com
I HEREBY CERTIFY that the above and foregoing pleading was filed electronically
with the Clerk of the United States District Court for the Eastern District of Louisiana on No-
vember 8, 2016, using that Court’s CM/ECF system, which system will send a notice of elec-
tronic filing to appearing parties in accordance with the Court’s established policies and proce-
dures.
/s/ J. A. Hollister
JOHN A. HOLLISTER
-2-
17-30519.1207

versus
ORDER TO ENROLL COUNSEL
CONSIDERING THE MOTION OF the Plaintiff herein, Shane M. Gates, to have the
name of John A. Hollister, Esquire, enrolled herein as his successor counsel of record in this
civil action,
AND THE COURT FINDING that the Movant is entitled, as a matter of law, to the re-
lief sought,
IT IS ORDERED BY THE COURT that the name of John A. Hollister, Esquire, be
enrolled herein as Shane M. Gates’ successor counsel of record herein.
NEW ORLEANS, LOUISIANA, this _____ day of November, 2016.
17-30519.1208

versus
MOTION FOR EXTENSION OF TIME AND TO CONTINUE
NOW COMES the Plaintiff herein, Shane M. Gates, through his undersigned counsel,
who respectfully moves this Honorable Court (a) for an extension to time to respond to the Mo-
tion to Lift Stay filed herein by the Defendants and (b) to continue the submission date for said
Motion from November 16, 2016 and similarly to continue and any oral argument that may be
set upon said Motion, for the following reasons:
1.
Daniel G. Abel, Esquire, Movant’s original counsel of record herein who initially filed
this action, is not presently practicing in this U.S. District Court due to this Court’s own action.
2.
Martin Regan, Esquire, who was previously enrolled herein as one of Movant’s coun-
sel, terminated their professional relationship and discharged Movant as his client in 2014.
3.
As a result of the foregoing, at the time Movant became aware of the pending Motion to
Lift Stay, Movant was effectively unrepresented herein by counsel.
17-30519.1209
4.
Movant then contacted a lawyer who agreed to represent him and who was preparing to
enroll on Movant’s behalf when that lawyer discovered that he had a conflict of interest herein
which prevented him from actually enrolling herein.
5.
Movant was finally able to locate, and arrange to retain, John A. Hollister, Esquire to
represent him herein and Mr. Hollister has now filed a Motion to Enroll herein. However, Mr.
Hollister has had no prior ccontact with this voluminous case—for just one example, the Defen-
dant’s pending Motion is Document Number 211 on the docket of this matter—and will there-
fore require a reasonable amount of time to read himself into it and to make himself familiar with
its history.
6.
Even a preliminary review of the Movants’ Motion reveals that there appear to be severe,
and potentially crippling, ethical and Constitutional problems with the two misdemeanor cases to
which it refers. These issues require careful examination of the various case records in order
properly to lay them out for this Court’s consideration. They include, by way of illustration but
not limitation:
a. Severe, and almost certainly unconstitutional, conflicts of interest between
Walter Reed, in his official capacity as the District Attorney who instituted and main-
tained these misdemeanor charges against Shane Gates, and Walter Reed as the private
-2-
17-30519.1210
lawyer representing and defending the commercial insurance company that was at risk of
paying huge damages for the post-arrest assault and battery upon Shane Gates;1
b. Excessive delays by the St. Tammany Parish District Attorney in bringing
these misdemeanor charges to trial—they had already been pending, without ever having
been set for trial, for several years by the time a St. Tammany Parish jury found Mr.
Gates not guilty of the felony charges against him, during which time he had been present
in court in St. Tammany Parish on more than forty-four (44) occasions, on any one of
which he could have been served with a notice of trial--such that both the mandatory
Louisiana statutory and Federal constitutional speedy trial standards, which are an essen-
tial element of protected due process, have been hopelessly compromised; and
c. Practical impossibilities in the Movants’ proceeding with the misdemeanor
DUI charge against Mr. Gates, arising from:
(1). Their failure to have his blood tested by a facility that was certified
by the U.S. Department of Transportation to conduct alcohol tests for highway
safety purposes, thus rendering those test results inadmissible at trial;
(2). Their failure to obtain either a judicial warrant or Mr. Gates’ consent
prior to drawing the blood that was allegedly tested by the uncertified facility, fur-
ther rendering those test results inadmissible at trial; and
(3). Their failure to keep and preserve the blood sample that was allegedly
drawn from Mr. Gates so that competent independent experts could verify or re-
fute the results of the highly questionable blood-alcohol test that the Defendants
allegedly had performed.
1
The Court will recall that similar conflicts of interest between Mr. Reed’s public and private activities as a lawyer
gave rise to some of the eighteen Federal felony charges on which Mr. Reed was recently convicted in this same
U.S. Judicial District.
-3-
17-30519.1211
These several issues alone are sufficient to show that the Defendants are not in good faith in their
insistence upon attempting to proceed with their long-expired misdemeanor prosecutions of Mr..
Gates and why, therefore, those allegedly-pending charges should be given no credence by this
Court. In addition, they clearly illustrate why it will take undersigned counsel some time ade-
quately to prepare a response to it, even without taking into account that the process of reviewing
the necessary records will almost certain uncover other substantial issues that likewise need to be
raised.
7.
This civil matter has been pending since 2007, and the Defendants—who, as the prosecu-
torial authorities in St. Tammany Parish, Louisiana, have complete control over the misdemeanor
cases that have previously caused it to be stayed—have never, ere now, made any attempt to
move it along. Therefore, there is no reasonable ground of fact, law, or public policy that now
would reasonably militate against the granting of the extension and continuance requested
herein.
8.
Further, the Movants’ own words, as set forth in their Motion and its accompanying
Memorandum, effectively state that they are maintaining the aforesaid misdemeanor prosecu-
tions on their books as a means of exacting a procedural advantage in this relatively open-and-
shut “Rodney King-style” civil suit for the gross beating administered to Shane Gates by St.
Tammany Parish Sheriff’s Deputies after he was arrested and handcuffed. This evident bad faith
on the part of the Movants, and the extensive record developed in the course of the earlier (and
unsuccessful) felony prosecution of Mr. Gates by these Defendants, now require Mr. Hollister to
undertake a lengthy review of that prior record in order properly to prepare a response to
-4-
17-30519.1212
Movant’s Motion so as adequately to present to this Court the serious Constitutional and ethical
issues raised by that same Motion.
9.
Undersigned counsel has contacted Chadwick Collins, Esquire, lead counsel for the
Movants, and requested his and their consent to this Motion. Mr. Collins has informed under-
signed counsel that he polled his colleagues and that he and they refuse their consent.
WHEREFORE, Shane Gates respectfully moves this Court (a) to grant him and his new
counsel a minimum of a four (4)-week extension of time in which to respond to said Motion and
(b) to continue, for the same period, the submission date of said Motion as well as any oral ar-
gument that may be set thereon.
/s/ J. A. Hollister
(985) 792-5353
with the Clerk of the United States District Court for the Eastern District of Louisiana on No-
vember 8, 2016, using that Court’s CM/ECF system, which system will send a notice of elec-
tronic filing to appearing parties in accordance with the Court’s established policies and proce-
dures.
/s/ J. A. Hollister
JOHN A. HOLLISTER
-5-
17-30519.1213

versus
ORDER FOR EXTENSION OF TIME AND TO CONTINUE
CONSIDERING THE MOTION OF the Plaintiff herein, Shane M. Gates, for an ex-
tension of time to respond to the pending Motion to Lift Stay herein and for a continuance of the
submission date and of any oral argument thereon,
AND THE COURT FINDING that the Movant is entitled to the relief sought,
IT IS ORDERED BY THE COURT that Shane Gates be, and he hereby is, granted an
extension of time until _______________________, 2016 in which to respond to said Motion.
IT IS FURTHER ORDERED BY THE COURT that Shane Gates be, and he hereby
is, granted a continuance of the submission date of said Motion until ____________________
______, 2016 and a similar continuance of any oral argument that may be set thereon.
NEW ORLEANS, LOUISIANA, this _____ day of November, 2016.
17-30519.1214

versus
ORDER TO ENROLL COUNSEL
CONSIDERING THE MOTION OF the Plaintiff herein, Shane M. Gates, to have the
name of John A. Hollister, Esquire, enrolled herein as his successor counsel of record in this
civil action,
AND THE COURT FINDING that the Movant is entitled, as a matter of law, to the re-
lief sought,
IT IS ORDERED BY THE COURT that the name of John A. Hollister, Esquire, be
enrolled herein as Shane M. Gates’ successor counsel of record herein.

9th day of November, 2016.
NEW ORLEANS, LOUISIANA, this _____
17-30519.1215

versus
ORDER FOR EXTENSION OF TIME AND TO CONTINUE
CONSIDERING THE MOTION OF the Plaintiff herein, Shane M. Gates, for an ex-
tension of time to respond to the pending Motion to Lift Stay herein and for a continuance of the
submission date and of any oral argument thereon,
AND THE COURT FINDING that the Movant is entitled to the relief sought,
IT IS ORDERED BY THE COURT that Shane Gates be, and he hereby is, granted an
extension of time until December 6, 2016 in which to respond to said Motion.
IT IS FURTHER ORDERED BY THE COURT that Shane Gates be, and he hereby
is, granted a continuance of the submission date of said Motion until December 14, 2016 and a
similar continuance of any oral argument, if granted, that may be set thereon.
NEW ORLEANS, LOUISIANA, this 9th day of November, 2016.
17-30519.1216

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
JOINT MOTION TO DETERMINE COUNSEL FOR PLAINTIFF

AND JOINT RESPONSE MEMORANDUM TO PLAINTIFF’S MOTION
TO ENROLL AND MOTION FOR EXTENSTION OF TIME
and Philip Duiett, and herewith respectfully request this Honorable Court determine who will
represent the Plaintiff in this matter and Defendants also wish to provide this Honorable Court
with the following brief memorandum in order to correct some inaccurate assertions made in
plaintiff’s recent filings with the Court.
89240/439899
Page 1 of 6 17-30519.1217
PLAINTIFF’S MOTION TO ENROLL
Plaintiff claims that he has been “effectively unrepresented by counsel” until the filing of
the recent motion to enroll (Doc. 213). Notwithstanding this assertion, Martin Regan was at the
time of Defendants’ filing of the Motion to Lift Stay (Doc. 211) and continues to remain counsel
of record for Mr. Gates. Mr. Regan was served a copy of the Motion to Lift Stay along with all
other counsel when it was originally filed on October 20, 2016. At no point has Mr. Regan filed
a motion and order to withdraw.1 Additionally, undersigned counsel for the Sheriff called and
spoke with Mr. Regan approximately a month and half ago and was told by Mr. Regan that it
was his intention to remain as counsel for Mr. Gates.2
Defendants would respectfully request that this Honorable Court order all current counsel
of record for Plaintiff, along with Mr. Gates, to personally appear at the hearing on the Motion to
Lift Stay on December 14, 2016, in order to ascertain who will represent Mr. Gates in these
proceedings. The necessity of their appearance is clear, as it would be patently unfair to the
Defendants in this matter for Plaintiff, who is currently a fugitive, to have one or more counsel of
record ostensibly representing him in this matter, and then at some future date after an adverse
ruling by the Court have the Plaintiff appear and disavow his prior representation as having
never been authorized by him. Put simply, Defendants suggest the Plaintiff’s apparent “musical
chairs” approach to representation should not be allowed as a trial tactic.3
1
Defendants also note that Daniel Abels and Martin Regan share an email address, see Attached Exhibit “A”
2
Undersigned counsel for the Sheriff also called and spoke with Ms. Alanah Hebert, who is also currently counsel
of record for Mr. Gates, approximately a month and a half ago, and although Ms. Hebert has not filed a motion and
order to withdraw, she did inform counsel for the Sheriff that she did not intend to remain as counsel for Mr. Gates.
3
Defendants would point out to the Court that plaintiff’s most recent counsel of record, John Hollister, is Mr. Gates’
sixth attorney to have enrolled on his behalf in this matter.
89240/439899
Page 2 of 6 17-30519.1218
PLAINTIFF’S MOTION FOR EXTENSION OF TIME AND TO CONTINUE
As with Plaintiff’s Motion to Enroll, Mr. Gates makes several assertions as to his
representation which seem at odds with the record of this matter. Additionally, Mr. Gates makes
several conclusory statements in his motion for a continuance, without any legal support, that his
pending misdemeanor charges are somehow legally defective. Defendants would respectfully
suggest to this Honorable Court that the State District Court is the appropriate forum to make
these arguments. Indeed, Mr. Gates has already attempted in the State proceedings to have the
District Attorney’s office recused from continuing to prosecute him for the pending
misdemeanor charges of Driving While Intoxicated and Resisting Arrest, and the State District
Court, after having considered Mr. Gates’ motion, rejected Mr. Gates’ argument.4 Mr. Gates was
then granted leave to file for a writ to the Louisiana First Circuit Court of Appeal, although it is
unclear from the record if Mr. Gates did in fact file for a writ. Defendants would respectfully
suggest the arguments of Plaintiff are nothing more than a rehash of similar arguments that have
been asserted and rejected in the State proceedings, and to raise them in this proceeding is
nothing more than an attempt to use this Court as a court of appeal from adverse rulings in the
State criminal proceedings.
CONCLUSION
Wherefore, for the reasons above, Defendants herein respectfully request that this
Honorable Court order all counsel of record for the Plaintiff along with the Plaintiff to personally
appear on December 14, 2016, at 9:30 a.m. for purposes of ascertaining who will represent Mr.
Gates in this matter. Further, Defendants respectfully request that after the hearing on December
4
See attached Exhibit “B”
89240/439899
Page 3 of 6 17-30519.1219
14, 2016, that the Defendants’ Motion to Lift Stay be granted for the limited purpose of giving
proceeding (and to resolve his attachment in connection therewith), failing which, this action
should be dismissed with prejudice. Should plaintiff timely take such steps, this action should
again be stayed until plaintiff's state court criminal proceeding is fully resolved.


Telephone: (985) 809-8374 Suite 2810
Landry
89240/439899
Page 4 of 6 17-30519.1220

P. O. Box 8288 Telephone: (985) 809-3800
capacity
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity
89240/439899
Page 5 of 6
17-30519.1221
Court of the United States District Court for the Eastern District of Louisiana on November 16,

89240/439899
Page 6 of 6
17-30519.1222

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
appearing herein through undersigned counsel, respectfully submit their Joint Motion to
Determine Counsel for Plaintiff before the Honorable Stanwood R. Duval, Jr. of the United
States District Court for the Eastern District of Louisiana, on the 14th day of December, 2016 at
9:30 a.m.
89240/439920
Page 1 of 3
17-30519.1223


Telephone: (985) 809-8374 Suite 2810
Landry

P. O. Box 8288 Telephone: (985) 809-3800
capacity
89240/439920
Page 2 of 3
17-30519.1224
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity

89240/439920
Page 3 of 3
17-30519.1225

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
Considering the foregoing Motion to Enroll filed by Plaintiff (Doc. 213), Defendants’
Joint Motion to Determine Counsel for Plaintiff, and Defendants’ previously filed Joint Motion
to Lift Stay (Doc. 211);
IT IS ORDERED that oral argument is HEREBY GRANTED on Defendants’ Joint
Motion to Lift Stay and Defendants’ Joint Motion to Determine Counsel for Plaintiff.
IT IS FURTHER ORDERED that the Plaintiff, Shane M. Gates, along with all counsel
of record for the Plaintiff, Martin E. Regan, Jr., Alanah Odems Hebert, and John A. Hollister,
shall appear before this Court on December 14, 2016, at 9:30 a.m.
____________________________________
JUDGE
89240/439906
17-30519.1226
17-30519.1227
17-30519.1228
17-30519.1229
17-30519.1230
17-30519.1231
17-30519.1232

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
their previously filed limited Motion to Lift Stay and Defendants’ Joint Motion to Determine
Counsel for Plaintiff.. Defendants' motions currently are noticed for submission before the
Honorable Stanwood R. Duval, Jr. on the 14th day of December, 2016 at 9:30 a.m.
89240/439433
Page 1 of 4
17-30519.1233


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/439433
Page 2 of 4
17-30519.1234

s/ Thomas H. Huval___________________
532 E. Boston St.
Covington, LA 70433
Telephone: (985) 809-3800
thuval@hvfr-law.com
capacity
89240/439433
Page 3 of 4
17-30519.1235

89240/439433
Page 4 of 4
17-30519.1236

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
JOINT MOTION TO DETERMINE COUNSEL FOR PLAINTIFF AND

IN THE ALTERNATIVE JOINT RESPONSE MEMORANDUM TO PLAINTIFF’S
MOTION TO ENROLL AND MOTION FOR EXTENSTION OF TIME
and Philip Duiett, and herewith respectfully request this Honorable Court determine who will
represent the Plaintiff in this matter. In the alternative, Defendants also wish to provide this
Honorable Court with the attached brief memorandum in order to correct some inaccurate
assertions made in plaintiff’s recent filings with the Court.
89240/440027
Page 1 of 4
17-30519.1237
WHEREFORE, for the reasons set forth in the attached memorandum and in the
previously filed pleadings, Defendants herein respectfully request that this Honorable Court
order all counsel of record for the Plaintiff along with the Plaintiff to personally appear on
December 14, 2016, at 9:30 a.m. for purposes of ascertaining who will represent Mr. Gates in
this matter. Further, Defendants respectfully request that after the hearing on December 14,
2016, that the Defendants’ Motion to Lift Stay be granted for the limited purpose of giving

89240/440027
Page 2 of 4
17-30519.1238
s/ Emily G. Couvillon_______________ s/ Ralph S. Whalen___________________

Emily Gaunt Couvillon, T.A (#31114) Ralph S. Whalen , Jr. (#8319)
22nd Judicial D.A.'s Office Ralph S. Whalen, Jr., Attorney at Law
701 N Columbia Street Energy Centre
Covington, LA 70433 1100 Poydras St., Suite 2950
Telephone: (985) 809-8374 New Orleans, LA 70163
ecouvillon@22da.com Telephone: (504) 525-1600
Counsel for Walter P. Reed, in his official ralphswhalen@ralphswhalen.com
capacity as former District Attorney for the Counsel for Walter P. Reed, in his
22nd Judicial District Court, Assistant individual capacity
Landry
s/ Nancy A. Cundiff________________ s/ Thomas H. Huval___________________

Byron D. Kitchens, T.A. (#25129) Thomas H. Huval (#21725)
Nancy A. Cundiff (#27974) Huval, Veazey, Felder & Renegar, LLC
Cotten, Schmidt & Abbott, LLP 532 E. Boston St.
650 Poydras Street Covington, LA 70433
Suite 2810 Telephone: (985) 809-3800
New Orleans, LA 70130 thuval@hvfr-law.com
ncundiff@csa-lawfirm.com the Parish of St. Tammany, Marie-Elise
Counsel for Philip Duiett Prieto, in her individual and her official
capacity
s/ Richard T. Simmons________________
Richard T. Simmons, Jr., T.A. (#12089)
Hailey, McNamara, Hall, Larmann
& Papale
P. O. Box 8288
Telephone: (504) 836-6500
rsimmons@hmhlp.com
89240/440027
Page 3 of 4
17-30519.1239

89240/440027
Page 4 of 4
17-30519.1240

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MEMORANDUM IN SUPPORT OF DEFENDANTS’ JOINT

MOTION TO DETERMINE COUNSEL FOR PLAINTIFF AND
JOINT RESPONSE MEMORANDUM TO PLAINTIFF’S MOTION
TO ENROLL AND MOTION FOR EXTENSTION OF TIME
NOW COME, through undersigned counsel, defendants, Rodney J. "Jack" Strain, Jr., in
both his individual capacity and his official capacity as former Sheriff of St. Tammany Parish,
Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, Deputy Brian
Williams, Walter P. Reed, in both his individual and his official capacity as former District
Attorney for the 22nd Judicial District Court, Assistant District Attorney Ronald Gracianette,
Assistant District Attorney Nicholas F. Noriea, Jr., Kathryn Landry, former Louisiana Attorney
General James D. Caldwell, Office of the Louisiana Attorney General, Judge Richard Schwartz
of the 22nd Judicial District Court, Marie-Elise Prieto, in her individual and her official capacity
as former Clerk of Court for the Parish of St. Tammany, Charles M. Hughes, Jr., and Philip
Duiett, and herewith respectfully request this Honorable Court determine who will represent the
Plaintiff in this matter. Defendants also wish to provide this Honorable Court with the attached
892400/440026
Page 1 of 6 17-30519.1241
brief memorandum in order to correct some inaccurate assertions made in plaintiff’s recent
filings with the Court.
PLAINTIFF’S MOTION TO ENROLL
Plaintiff claims that he has been “effectively unrepresented by counsel” until the filing of
the recent motion to enroll (Doc. 213). Notwithstanding this assertion, Martin Regan was at the
time of Defendants’ filing of the Motion to Lift Stay (Doc. 211) and continues to remain counsel
of record for Mr. Gates. Mr. Regan was served a copy of the Motion to Lift Stay along with all
other counsel when it was originally filed on October 20, 2016. At no point has Mr. Regan filed
a motion and order to withdraw.1 Additionally, undersigned counsel for the Sheriff called and
spoke with Mr. Regan approximately a month and half ago and was told by Mr. Regan that it
was his intention to remain as counsel for Mr. Gates.2
Defendants would respectfully request that this Honorable Court order all current counsel
of record for Plaintiff, along with Mr. Gates, to personally appear at the hearing on the Motion to
Lift Stay on December 14, 2016, in order to ascertain who will represent Mr. Gates in these
proceedings. The necessity of their appearance is clear, as it would be patently unfair to the
Defendants in this matter for Plaintiff, who is currently a fugitive, to have one or more counsel of
record ostensibly representing him in this matter, and then at some future date after an adverse
ruling by the Court have the Plaintiff appear and disavow his prior representation as having
1
Defendants also note that Daniel Abels and Martin Regan share an email address, see Attached Exhibit “A”
2
Undersigned counsel for the Sheriff also called and spoke with Ms. Alanah Hebert, who is also currently counsel
of record for Mr. Gates, approximately a month and a half ago, and although Ms. Hebert has not filed a motion and
order to withdraw, she did inform counsel for the Sheriff that she did not intend to remain as counsel for Mr. Gates.
892400/440026
Page 2 of 6 17-30519.1242
never been authorized by him. Put simply, Defendants suggest the Plaintiff’s apparent “musical
chairs” approach to representation should not be allowed as a trial tactic.3
PLAINTIFF’S MOTION FOR EXTENSION OF TIME AND TO CONTINUE
As with Plaintiff’s Motion to Enroll, Mr. Gates makes several assertions as to his
representation which seem at odds with the record of this matter. Additionally, Mr. Gates makes
several conclusory statements in his motion for a continuance, without any legal support, that his
pending misdemeanor charges are somehow legally defective. Defendants would respectfully
suggest to this Honorable Court that the State District Court is the appropriate forum to make
these arguments. Indeed, Mr. Gates has already attempted in the State proceedings to have the
District Attorney’s office recused from continuing to prosecute him for the pending
misdemeanor charges of Driving While Intoxicated and Resisting Arrest, and the State District
Court, after having considered Mr. Gates’ motion, rejected Mr. Gates’ argument.4 Mr. Gates was
then granted leave to file for a writ to the Louisiana First Circuit Court of Appeal, although it is
unclear from the record if Mr. Gates did in fact file for a writ. Defendants would respectfully
suggest the arguments of Plaintiff are nothing more than a rehash of similar arguments that have
been asserted and rejected in the State proceedings, and to raise them in this proceeding is
nothing more than an attempt to use this Court as a court of appeal from adverse rulings in the
State criminal proceedings.
3
Defendants would point out to the Court that plaintiff’s most recent counsel of record, John Hollister, is Mr. Gates’
sixth attorney to have enrolled on his behalf in this matter.
4
See attached Exhibit “B”
892400/440026
Page 3 of 6 17-30519.1243
CONCLUSION
WHEREFORE, for the reasons above and for the reasons set forth in Defendants’
previously filed pleadings, Defendants herein respectfully request that this Honorable Court
order all counsel of record for the Plaintiff along with the Plaintiff to personally appear on
December 14, 2016, at 9:30 a.m. for purposes of ascertaining who will represent Mr. Gates in
this matter. Further, Defendants respectfully request that after the hearing on December 14,
2016, that the Defendants’ Motion to Lift Stay be granted for the limited purpose of giving

892400/440026
Page 4 of 6 17-30519.1244

Landry

Suite 2810 Telephone: (985) 809-3800
capacity
s/ Richard T. Simmons________________
& Papale
P. O. Box 8288
Telephone: (504) 836-6500
rsimmons@hmhlp.com
892400/440026
Page 5 of 6
17-30519.1245

892400/440026
Page 6 of 6
17-30519.1246

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
appearing herein through undersigned counsel, respectfully submit their Joint Motion to
Determine Counsel for Plaintiff before the Honorable Stanwood R. Duval, Jr. of the United
9:30 a.m.
89240/439920
Page 1 of 3
17-30519.1247


Telephone: (985) 809-8374 Suite 2810
Landry

P. O. Box 8288 Telephone: (985) 809-3800
capacity
89240/439920
Page 2 of 3
17-30519.1248
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity

89240/439920
Page 3 of 3
17-30519.1249

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
____________________________________
JUDGE
89240/439906
17-30519.1250
17-30519.1251
17-30519.1252
17-30519.1253
17-30519.1254
17-30519.1255
17-30519.1256

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
their previously filed limited Motion to Lift Stay and Defendants’ Joint Motion to Determine
Counsel for Plaintiff. Defendants' motions currently are noticed for submission before the
Honorable Stanwood R. Duval, Jr. on the 14th day of December, 2016 at 9:30 a.m.
89240/439433
Page 1 of 4
17-30519.1257


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/439433
Page 2 of 4
17-30519.1258

s/ Thomas H. Huval___________________
532 E. Boston St.
Covington, LA 70433
Telephone: (985) 809-3800
thuval@hvfr-law.com
capacity
89240/439433
Page 3 of 4
17-30519.1259

89240/439433
Page 4 of 4
17-30519.1260


* Section: K
v. * Magistrate: 2
*
* Consolidated With
Sheriff Rodney Jack Strain, et al. * No.13-cv-06425
*
Defendants *
**************************
EX PARTE MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR
MARTIN E. REGAN, JR., ALANAH ODOMS HEBERT, AND DANIEL G. ABEL
Counsel Martin E. Regan, Jr., Alanah Odoms Hebert, and Daniel G. Abel move the Court
for an order withdrawing them as counsel of record for Shane M. Gates in these consolidated
cases. Ms. Odoms Hebert now works as an Attorney for the Louisiana Supreme Court and has
asked and given me permission to file this motion on her behalf. Mr. Abel has given me
permission to file this on his behalf as well.
I represented Mr. Gates in the underlying matters in St. Tammany, when after a five-day
trial, the twelve person jury found him NOT GUILTY of all charges brought within 30 minutes,
on 27 July 2012, four years ago. I no longer represent him in this matter.
Mr. Abel is on “interim suspension” in this Court as the result of a bar complaint filed by
former District Attorney Walter P. Reed, regarding which the United States Fifth Circuit Court of
Appeal has issued an order holding the suspension of Mr. Abel by the Louisiana Supreme Court
in abeyance. He has given me permission to file this on his behalf as well; he cannot file
anything with the Clerk of Court electronically at this time. None of us represent Mr. Shane M.
Gates at this time.
Mr. Gates agrees with our request to withdraw and has retained Mr. John Hollister, a
17-30519.1261
constitutional law professor, former police officer, and Anglican-Catholic minister to represent
him.
Martin E. Regan, Jr. & Associates, PLC Certificate of Service
/s/ Martin E. Regan, Jr. /s/ Martin E. Regan, Jr.
Martin E. Regan, Jr. Having filed this pleading electronically

Attorney at Law with the Clerk of Court, 18 November 2016,
Martin E. Regan, Jr. & Associates, PLC we have served all defendants accordingly.
LSB No. 11153
2125 St. Charles Avenue
Telephone: (504) 522-7260
Facsimile: (504) 522-7507
17-30519.1262

* Section: K
v. * Magistrate: 2
*
* Consolidated With
*
Defendants *
**************************
PROPOSED ORDER
For the reasons set forth in the Ex Parte Motion to Withdraw filed by Mr. Martin
E. Regan, Jr. on his own behalf and on behalf of former counsel Ms. Odoms Hebert,
and Mr. Daniel Abel,
IT IS ORDERED THAT:
THEIR MOTION IS GRANTED
IT IS ORDERED THAT:
Ms. Odoms Hebert, Mr. Martin E. Regan, Jr. and Mr. Daniel G. Abel are allowed
to withdraw as counsel of record in these matters for Mr. Shane M. Gates. Mr.
Gates has Mr. John Hollister enrolled as lead counsel; he is represented.
Ordered this ____ day of _________, 2016. New Orleans, Louisiana.
______________________________________________
17-30519.1263

VERSUS NO. 07-6983

C/W NO. 13-6425
ORDER
IT IS ORDERED that Oral Argument on the Motion to Reopen Case (Doc. 211) shall be
had on December 14, 2016 at 9:30 a.m.
New Orleans, Louisiana, this 18th day of November, 2016.

17-30519.1264

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
November 2016.
18th day of _____________,
New Orleans, Louisiana, this _____
____________________________________
Based on the Order JUDGE
United States District Judge
granting the
Motion to
Withdraw (Doc.
221).
89240/439906
17-30519.1265


* Section: K
v. * Magistrate: 2
*
* Consolidated With
*
Defendants *
**************************
PROPOSED ORDER
IT IS ORDERED THAT:
IT IS ORDERED THAT:
Ordered this 18th

____ day ofNovember
_________, 2016. New Orleans, Louisiana.
______________________________________________
17-30519.1266

versus
PLAINTIFF’S OPPOSITION
TO DEFENDANTS’ JOINT MOTION TO LIFT STAY
who respectfully opposes the Defendants’ Joint Motion to Lift Stay (Rec. Doc. 211) on the fol-
lowing grounds.
1.
The relief sought by the Defendants/Movants is not authorized by law, inasmuch as the
Movants cite no authority whatever to justify their request that this Honorable Court order Mr.
Gates to submit himself physically to the same state authorities in St. Tammany Parish, Louisi-
ana who have already viciously and unlawfully beaten him, without provocation or justification,
while he was handcuffed and unable to defend himself after his unlawful arrest, and who now
show every disposition to continue their oppression of and assaults upon him.
2.
The Defendants/Movants’ Motion was filed herein in bad faith and for an utterly improp-
er purpose, having been filed in violation of Rule 11, Fed. R. Civ. Proc., of Rule 3.3, R. Prof.
Cond., Rule 8.4(c), R. Prof. Cond., Rule 8.4(d), R. Prof. Cond., and Rule 8.4(g), R. Prof. Cond.:
SMG Opp 2 Mtn 2 Lift Stay Page 1 of 14

17-30519.1267
a. Their Motion violates Rule 11, Fed. R. Civ. Proc., because it was filed for the purpose
of harassing and delaying Mr. Gates’ pursuit of his civil rights tort lawsuit against these same
Defendants/Movants.
b. Their attorneys, by filing this Motion, violated Rule 3.3, R. Prof. Cond., requiring at-
torneys to exercise candor toward the tribunal, because it deliberately omits to disclose to this
Court numerous material facts and issues of law that are not only adverse to the position asserted
by the Defendants/Movants but which render their Motion and the relief they have requested
both impossible and utterly nugatory.
c. Their attorneys, by filing this Motion, violated Rule 8.4(c), R. Prof. Cond., because its
filing constitutes conduct importing dishonesty regarding, fraud upon, deceit against, and misrep-
resentations toward, both this Court and Mr. Gates.
d. Their attorneys, by filing this Motion, violated Rule 8.4(d)l, R. Prof. Cond., because
the representations made to this Court therein, and the motives for its filing, are alike prejudicial
to the administration of justice. And, finally,
e. Their attorneys, by filing this Motion, violated Rule 8.4(g), R. Prof. Cond., which for-
bids using a purported criminal prosecution for the purpose of obtaining an advantage in civil
litigation.
3.
Among the material matters that the Defendants/Movants have concealed from this Court
is the fact that their renewed or continued prosecution now would be barred under the Louisiana
Constitution and the United States Constitution’s respective bans on double jeopardy in criminal
cases, as well as by Louisiana’s statutory time bar on misdemeanor prosecutions.

17-30519.1268
4.
Initially, the State made a deliberate choice to bill Mr. Gates on the felony flight charge
under La. Rev. Stat. 14:108.1 rather than on a misdemeanor resisting arrest charge under La.
Rev. Stat. 14:108.2 because the former would exact the heaviest potential penalty. This was con-
firmed during a hearing in the state court on May 10, 2010. On that day, Ronald Gracianette,
then the head of the St. Tammany Parish District Attorney’s criminal division and now one of
the individual Defendants/Movants herein, testified under oath that the District Attorney’s Of-
fice’s own evaluation of Shane Gates’ arrest resulted only in the institution of the felony charge
of unlawful flight, because that charge carried the highest potential penalty available. (See Ex-
hibit “A”, p. 61, lines 6-18.) Mr. Gracianette further testified that the misdemeanor charge of
resisting arrest was instituted only later, and when it was filed, that was solely at the special re-
quest of Charles M. Hughes, Jr., who was at that time the attorney representing St. Tammany
Parish’s liability insurer. (See Exhibit “A”, p. 61, lines 19-32.) A copy of the relevant portion
of the transcript of May 10, 2010 hearing, which contains Mr. Gracianette’s admission against
interest, is attached hereto as Exhibit “A” and by reference incorporated herein.
5.
On July 27, 2012, the trial jury in that state felony prosecution returned—after less than
30 minutes’ deliberation—a general verdict in favor of Mr. Gates, finding him not guilty of the
matters that had been presented to it. A copy of that jury verdict is attached hereto as Exhibit
“B” and by reference incorporated herein.
6.
Although intoxication is not an element of felony flight that the State was required to
prove at Mr. Gates’ trial on that latter charge, nevertheless, on July 27, 2012, the State chose—

17-30519.1269
over Mr. Gates’ strenuous objection—to devote almost an entire day of trial to introducing into
evidence exhibits and testimony that the State contended would prove that, at the time of Mr.
Gates’ arrest, his blood alcohol level was 0.273%, i.e., that he was intoxicated more than three
times the legal limit for operating a motor vehicle. (The only other testimony adduced by the
State that day involved the factual elements required for it to prove Mr. Gates’ alleged resisting
arrest.)
7.
When Mr. Gates initially objected to the admission of the materials relating to his alleged
state of intoxication, the trial court upheld its exclusion, but the State took this issue to the Loui-
siana First Circuit Court of Appeal on an overnight writ application. The First Circuit granted
that writ on July 26, 2012, the third day of the felony trial, whereupon Mr. Gates took another
overnight writ to the Louisiana Supreme Court. On July 27, 2012, the fourth day of the felony
trial, the state supreme court denied his writ, State v. Gates, 2012-1744, 92 So.3d 350 (La.
7/27/2012), after which the State spent an entire day, July 27, 2012, the final day of the felony
trial, doing nothing but putting on several witnesses and other evidence, all of which and whom
it intended to prove Mr. Gates’ state of intoxication at the time of the traffic stop concerned.
Thus this evidence of intoxication was no mere de minimis happenstance or side issue raised in-
cidentally during the State’s presentation of its case but, on the contrary, was a major portion of
the State’s plan to sway the jury in its favor, was extensively litigated by both sides—to the point
that each side filed an emergency writ application in the appellate courts—and on which Mr.
Gates was incontestably put in jeopardy at trial.
A copy of the transcript of that fourth day of trial, showing the State’s introduction of this
evidence of Mr. Gates supposed intoxication (Exhibit “C”, passim) and of his supposed resisting

17-30519.1270
his arrest (see Exhibit “C”, page 165, line 13 through page 184, line 20), and the efforts Mr.
Gates was forced to make in response to this evidence, is attached hereto as Exhibit “C” and by
reference incorporated herein.
8.
Thus when that trial jury—again, after less than 30 minutes’ deliberation—returned a
general verdict finding Mr. Gates to have been not guilty of the matters submitted to it, all the
predicate facts that could have been used, then or later, for the pursuit of either the DWI charge
against him or the resisting arrest charge, were conclusively and finally determined in his favor
and adversely to the State. Because he was once placed in jeopardy on those facts, the State can-
not now be relitigate them against him without violating his state and federal protections against
double jeopardy.
9.
Even if the State’s relitigation of these two misdemeanor charges against Mr. Gates were
not now barred under the constitutional guarantees against double jeopardy, all of those misde-
meanor charges would now be time-barred, both under the specific Louisiana statutory provision
that requires misdemeanor cases to be tried within one year of an arrest, La. Code Crim. Proc.
Art. 578(A)(3), and under the U. S. Constitution’s VI and XIV Amendment due process guaran-
tee of a speedy trial.
10.
Louisiana Code of Criminal Procedure, Article 578, provides in its entirety:
“Art. 578 General rule

“A. Except as otherwise provided in this Chapter, no trial shall be commenced
nor any bail obligation be enforceable:
“(1) In capital cases after three years from the date of institution of the prosecu-
tion;

17-30519.1271
“(2) In other felony cases after two years from the date of institution of the prose-
cution; and
“(3) In misdemeanor cases after one year from the date of institution of the
prosecution.
“B. The offense charged shall determine the applicable limitation.”
[Emphasis supplied.]
11.
Mr. Gates was arrested on November 16, 2006 and the state court felony trial concluded
on July 27, 2012, more than five years and eight months after that arrest. During that entire time,
Mr. Gates was continuously resident in St. Tammany Parish, his residence address was on file
with the state trial court, and he was personally present in court in connection with the felony
case on at least forty-four (44) occasions, on any one of which he could have been served with a
notice of hearing or trial on those misdemeanor charge, provided only that any such hearing or
trial ever been set.
12.
However, throughout that five years and eight months that elapsed between Mr. Gates’
arrest and the conclusion of his felony trial, at no time were those misdemeanor charges ever set
for trial or hearing. Where they were never set for trial, then of course no notice of any trial date
regarding them was ever issued by the state trial court and so, of course, no such notice was ever
served, either upon Mr. Gates himself or upon any of his counsel of record. Thus the running of
the time-bar period under La. Code Crim. Proc. 578(A)(3) was never interrupted and thus, too,
the State’s statutory one-year window of opportunity to try Mr. Gates on those misdemeanor
charges closed on November 16, 2007, long before his felony trial even commenced, let alone
concluded.

17-30519.1272
13.
Throughout the entire five years and eight months that elapsed between Mr. Gates’ arrest
and the conclusion of his felony trial, both the State and he requested one or more continuances
in the felony case but Mr. Gates never requested any continuance of any trial or hearing on those
misdemeanor charges. (Nor would he have had any occasion to request any such continuance,
inasmuch as no hearing or trial was ever set regarding them.) Thus, by the plain terms of La.
Code Crim. Proc. 578(A)(3), as of the conclusion of the felony trial, the State was already at
least four years and eight months too late to take Mr. Gates to trial upon any misdemeanor
charges that might have remained unresolved. See, e.g., State v. Paul, 2011-1347 (La. App. 4th
Cir. 10/3/2012) (unpublished).
14.
In addition to the time bar imposed by La. Code Crim. Proc. 578(A)(3), the State’s own
voluntary delay of any misdemeanor trial violated Mr. Gates’ due process right to a speedy trial
as guaranteed by U.S. Constitution, Amendments VI and XIV.
15.
The United States Court of Appeals for the Fifth Circuit has defined the contours of the
federally-guaranteed due-process right to a speedy trial in Amos v. Thornton, 646 F.3d 199 (5th
Cir. 2011), applying the rule laid down in Barker v. Wingo, 407 U.S. 514, 521–22, 92 S.Ct. 2182,
33 L.Ed.2d 101 (1972). In Thornton, it held that after a one-year’s delay in bringing a criminal
charge to trial, the federal courts must analyze state criminal proceedings to see if they comply
with federal due process standards. After eighteen months’ delay, in the Barker analysis that de-
lay is considered strongly to favor the defendant and to weigh against the State

17-30519.1273
16.
In that same Barker analysis, after five years’ delay in bringing those charges to trial, the
federal courts are to presume that the state’s failure to proceed to trial timely has caused harm to
the defendant, without further proof of such damage. But in the instant case, quite apart from
that automatic presumption of damages, there is no doubt that such actual damage has accrued
through the state’s unwarranted delay, including, without limitation: (a) the death in 2007 of the
hospital laboratory technician who purportedly performed the blood alcohol test on which the
State relies, thus making him unavailable for testimony or to be cross-examined; and (b) the
State’s failure to preserve the actual blood alcohol sample that was taken from Mr. Gates at Lou-
isiana Heart Hospital on the day of his arrest. This failure makes it impossible for him to obtain
any confirmatory testing by an independent third-party expert. Thus, under the Amos rule, and
quite apart from the issues of the double jeopardy involved in any future trial the misdemeanor
charges and the State’s failure to comply with La. Code Crim. Proc. 578(A)(3), as a matter of
federally-protected constitutional due process, the State is barred from now proceeding on them
against Mr. Gates.
17.
In this connection, it is especially noteworthy that, at the felony trial, Mr. Gates was, for
these same reasons, denied effective confrontation with the essential witness and evidence
against him on the issue of his intoxication but, despite his unfairly laboring under that disability,
the jury nevertheless returned a general verdict in his favor.
18.
Finally, the Defendants/Movants’ Motion to Lift Stay was filed in violation of numerous
procedural and ethical rules. The very wording of their Motion (Rec. Doc. 211) and of the un-

17-30519.1274
precedented relief they request therein reveals that it was brought solely to obtain an improper
advantage in a civil case, namely, the dismissal of Mr. Gates § 1983 civil suit for damages on the
basis of the State’s specious claim to pursue already-abandoned and now long-expired misde-
meanor charges.
19.
Further, at a hearing in the state trial court on May 10, 2010, Ronald Gracianette, at that
time the head of the St. Tammany Parish District Attorney’s criminal division, testified under
oath that when Charles M. Hughes, Jr., then the attorney for the liability insurer of the St. Tam-
many Parish Sheriff’s Office and himself one of the individual Defendants/Movants in the in-
stant Motion, specially requested that an additional misdemeanor charge of resisting arrest be
lodged against Mr. Gates, Mr. Gracianette refused to institute that charge unless he received a
“victim letter” from the arresting Sheriff’s Deputy requesting him to do so. He further testified
that he subsequently did receive such a letter from Mr. Hughes and, after getting Mr. Hughes’
assurances that this letter would be forwarded to him, granted Mr. Hughes’ request by charging
Mr. Gates with resisting arrest. (See Exhibit “A”, page 61, lines 19 through 32.)
20.
The “victim letter” referred to in Mr. Gracianette’s testimony first came to light when it
was produced during a hearing held in the state trial court on May 10, 2010. A copy of it, as then
produced, is attached hereto as Exhibit “D” and incorporated by reference herein.
21.
As Exhibit “D” shows on its face, it purports to have been written on or about September
17, 2007 and signed by Nathan Miller, the St. Tammany Parish Sheriff’s Deputy who made the

17-30519.1275
initial traffic stop of Mr. Gates and Mr. Gates’ new motor vehicle (i.e., the one he spent the af-
ternoon prior to his arrest purchasing at a dealership in Slidell).
22.
However, on January 5, 2012, Nathan Miller testified under oath that he had nothing to
do with instituting the misdemeanor charges against Mr. Gates, that he never delivered any letter
to Mr. Gracianette or to Mr. Gracianette’s office, and that the letter in question—which was de-
livered by Mr. Hughes to Mr. Gracianette—was neither written nor signed by Mr. Miller. A
copy of the relevant portions of Mr. Miller’s testimony that day is attached hereto as Exhibit “E”
and by reference incorporated herein.
23.
At the time Mr. Miller gave that testimony, he was (as he still remains) a named defend-
ant in this instant civil case, so it would have been just as much in his personal interest as it was
in that of St. Paul Travelers’ Insurance for the Hecht rule to have continued to obstruct Mr.
Gates’ suit against him. Thus Mr. Miller’s testimony actually constitutes an admission against
interest.
24.
The provenance of the “victim letter” was the subject of testimony by Mr. Hughes on
May 10, 2010, at which time he averred that he had called Al Strain, then the Chief Deputy of
the St. Tammany Parish Sheriff’s Office and brother to then-Sheriff Jack Strain, and told Al
Strain what the “victim letter” needed to contain. According to Mr. Hughes, Al Strain (who has
since died) assured Mr. Hughes that he would take care of obtaining the letter.

17-30519.1276
25.
However, if Mr. Miller did not author the “victim letter” which Mr. Gracianette received
from Mr. Hughes, the attorney for St. Paul Travelers’ Insurance, and on which Mr. Gracianette
relied in filing the misdemeanor charges against Mr. Gates, the only rational conclusion is that
either Mr. Hughes or someone associated with him in the insurance company’s behalf forged that
letter.
26.
Mr. Hughes’ motive in arranging for the production of Exhibit “D” and for delivering it
to Mr. Gracianette is explained in Mr. Hughes’ own testimony on May 10, 2010. There, he ad-
mitted that he wished to have Mr. Gates charged with resisting arrest because, at that time and
under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the prevailing
case law was generally believed to make a conviction on that charge an absolute bar to a victim’s
recovery on an excessive force claim. A copy of the relevant page of the transcript of Mr.
Hughes’ testimony is attached hereto as Exhibit “F”. (The “$500,000 self-insured policy” to
which Mr. Hughes there admitted that he was concerned to protect represented, in effect, a
$500,000 deductable on the Parish’s liability insurance policy.)
27.
Thus Mr. Hughes, in both his capacities as attorney of record for the Parish’s liability in-
surer and as an individual Defendant/Movant herein, admitted that his motive for provoking the
misdemeanor prosecutions against Mr. Gates was solely to obtain an advantage against Mr.
Gates in the latter’s pursuit of civil tort remedies against that Parish and its officers. How ur-
gently he felt the need to obtain that unethical advantage is shown by the lengths he was pre-

17-30519.1277
pared to go to obtain it, such as the letter he delivered to Mr. Gracianette in Nathan Miller’s
name but, according to Mr. Miller’s own testimony, without Mr. Miller’s knowledge.
28.
The Defendants/Movants’ substantial financial motives for thus trying to “whipsaw” Mr.
Gates into abandoning his civil suit are shown, inter alia, by the fact that it has now come to
light that Walter Reed, the former District Attorney under whose authority the original charges
were lodged against Mr. Gates, was at the same time representing, as part of his private law prac-
tice, St. Paul Travelers’ Insurance Company, which was then the Parish’s liability insurer that is
now at risk of paying a large portion of any judgment herein. The Court will recall that when
Mr. Reed was recently convicted on eighteen (18) federal felony charges, among those charges
was a very similar instance of Mr. Reed’s “double dipping” by representing St. Tammany Parish
Hospital, a public institution, allegedly in his capacity as District Attorney but collecting fees for
that representation through his private law practice, a situation all too akin to Mr. Reed’s rela-
tionship with St. Paul Traveller’s Insurance Company.
29.
These same purely financial motives for maintaining the bogus misdemeanor case against
Mr. Gates still persist, as was shown recently when the current District Attorney, Mr. Reed’s
successor Warren Montgomery, was asked to abandon further pursuit of the long-expired and
duplicative charges, he refused, stating that he could not afford to do so because a judgment in
Mr. Gates’ civil case would bankrupt his office. Also, undoubtedly connected with that refusal,
is the fact that Mr. Gates is in possession of documents which show, and he therefore believes,
that Mr. Montgomery himself, in his official capacity as the District Attorney, now represents
One Beacon/Bedivere, the current liability insurer for the Parish (which may also have some lia-

17-30519.1278
bilities in the instant case), despite the inherent obvious impropriety of a tax-supported public
agency’s using its resources to benefit a private business corporation.
30.
The Defendants/Movants’ Motion makes the absurd and unreasonable demand that Mr.
Gates place himself at risk of further grevious bodily harm, or even death, by placing himself
once again in the hands of the St. Tammany Parish Sheriff’s Office. The reasonableness of Mr.
Gates’ fears is shown clearly by the facts that (a) the Deputy Sheriff who beat him to a pulp has
never been disciplined for his unlawful actions but, instead, remains on duty there, and (b) the
Sheriff’s Department shift supervisor who reported to the scene of Mr. Gates’ arrest and who al-
legedly “investigated” that beating, Lt. Randy Smith, not only took no action regarding that
crime but is now himself the Sheriff in command of that department who, therefore, has a strong
financial interest in avoiding the substantial civil liability asserted in Mr. Gates’ suit.
31.
Because the institution and maintenance of the misdemeanor charges against Mr. Gates
(actually, of the felony charges on which he was found not guilty as well as the allegedly-
pending misdemeanor charges) was done for the purpose of extorting an improper and unethical
benefit with respect to his civil claims, each attorney who signed the instant Motion to Lift
Stay—i.e., Chadwick W. Collings, David G. Sanders, Emily G. Couvillon, Richard T. Simmons,
Ralph S. Whalen, Nancy A. Cundiff, and Thomas H. Huval—, and each individual attorney de-
fendant in Mr. Gates’ civil action who authorized his or her counsel to file that Motion—i.e.,
James D. Caldwell, Richard Schwartz, Walter P. Reed, Ronald Gracianette, Nicholas F. Noriea,
Jr., Kathryn Landry, and Charles M Hughes, Jr.—, is guilty of seriously violating Rules 11, Fed.
R. Civ. Proc. as well as Rules 3.3, 8.4(c), 8.4(d), and 8.4(g), R. Prof. Cond.

17-30519.1279
WHEREFORE, Shane Gates respectfully requests this Honorable Court to deny the De-
fendants/Movants’ Motion to Lift Stay on the grounds that the relief sought therein is at once un-
authorized, unjust, unethical, and clearly intended to deprive Mr. Gates of substantial and sub-
stantive constitutional rights.
/s/ J. A. Hollister
(985) 792-5353
with the Clerk of the United States District Court for the Eastern District of Louisiana on De-
cember 6, 2016, using that Court’s CM/ECF system, which system will send a notice of electron-
ic filing to appearing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

17-30519.1280
17-30519.1281
17-30519.1282
17-30519.1283
17-30519.1284
1 TWENTY-SECOND JUDICIAL DISTRICT COURT
2 PARISH OF ST. TAMMANY
7 VERSUS NO. 423508
8 SHANE MICHAEL GATES
10
11
12 * * * * * * * * * * * * * * * * * * * * * * * * * * *
13
14
EXCERPT OF TRANSCRIPT OF PROCEEDINGS AS
15 PERTAINING TO ALL WITNESSES, taken before the
Honorable Richard A. Swartz, Jr., Judge Presiding,
16 Division "C", Twenty-Second Judicial District Court,
Parish of St. Tammany, State of Louisiana, on the
17 27th day of July, 2012, in Covington, Louisiana.
18
19
20 APPEARANCES:
21
NICK NORIEA, ESQ.
22 (ASSISTANT DISTRICT ATTORNEYS)
23
MARTIN REGAN, ESQ.
24 -AND-
DANIEL ABEL, ESQ.
25 (ATTORNEY FOR SHANE MICHAEL GATES)
26
27
28
29
REPORTED BY:
30
Mary Broom Gressaffa, RPR, CCR
31 Official Court Reporter
Certificate No. 93016
32
1
17-30519.1285
1 THE COURT:
2 You may be seated.
3 MR. NORIEA:
4 Your Honor, Nick Noriea, on behalf
5 of the State.
6 MR. REGAN:
7 Martin Regan, on behalf of Shane
8 Gates.
9 I believe they were at the Supreme
10 Court at 9:00 to file the writ.
11 THE COURT:
12 That's not correct. I discussed it
13 with the Supreme Court two minutes ago.
14 The writ application has not been filed.
15 They tried to contact your office, and
16 they could not get in touch with you.
17 Your office told them they couldn't get in
18 touch with -- I don't if it's you or
19 Mr. Abel. But we're going forward at this
20 point.
21 MR. REGAN:
22 Judge, can I just -- give me a
23 minute. This is the first time I've
24 learned of any problem. Could I find out
25 what's happened, please? Just give me a
26 minute or two to --
27 THE COURT:
28 You have five minutes, and then
29 we're going to proceed with the trial.
30 (At this time a discussion was held
31 off the record.)
32 (At this time a recess was taken.)
2
17-30519.1286
1 THE COURT:
2 Be seated.
3 I've just been advised that the
4 Supreme Court has the writ application.
5 It was filed at 9:50 this morning.
6 Mr. Regan.
7 MR. REGAN:
8 Yes, sir. The -- we worked on it
9 all night. This morning, when it was
10 being printed out, before 8:00, the
11 printer that was being used to print
12 broke. We couldn't replace the printer.
13 Danny has advised me of this, at this
14 point, they needed the technician to go to
15 the printer and print it out. They
16 immediately printed it out and immediately
17 took to the Court. It wasn't from any
18 lack of due diligence. None of the stores
19 were opened to even buy another printer,
20 at this point. We are -- I think it got
21 there -- they just called just now, at
22 this point, and it was there by 9:50 --
23 that as humanly as possibly, as fast as we
24 can go.
25 If I could just say this, Your
26 Honor -- and today's -- I mean, it was
27 typed. It was prepared. It truly is an
28 uncontrollable --
29 THE COURT:
30 I'm going to wait for the Supreme
31 Court to tell me whether or not they're
32 going to allow the filing of the writ
3
17-30519.1287
1 application or they're going to deny it.
2 So we'll just take a recess here for a
3 little bit longer.
4 MR. REGAN:
5 Judge, can I --
6 THE COURT:
7 Yes, sir.
8 MR. REGAN:
9 We've taken a writ or two. If I may
10 just ask the Court, with this preface,
11 this is a significant issue. And a
12 correct ruling will determine whether this
13 case has to be tried a second time. The
14 issues has been joined. We know what they
15 are. It's a critical matter in the
16 outcome -- or the effect of this case.
17 It's very, very relevant.
18 I ask the Court, at this point, to
19 grant us an extension, because obviously
20 when you don't file within the time frame
21 a Court gives you normally it's dead. And
22 that's where we're at. But this case --
23 this whole case I think may very well turn
24 on this one legal issue -- I'd ask the
25 Court --
26 THE COURT:
27 Based on your representations to the
28 Court, I will allow the writ application
29 to be filed before 10:00 a.m., Friday
30 morning.
31 MR. REGAN:
32 Thank you, sir.
4
17-30519.1288
1 THE COURT:
2 My clerk will call the Court and
3 tell them.
4 MR. REGAN:
5 Thank you.
7 THE COURT:
8 We're back on the record, State of
9 Louisiana versus Shane Gates. We've just
10 been informed by the Supreme Court that
11 the writ application is denied.
12 MR. REGAN:
13 Writ has been denied.
14 THE COURT:
15 Yes, sir. So we will continue on
16 with the trial.
17 You have rested, Mr. Regan?
18 MR. REGAN:
19 Excuse me, I'm sorry. What I
20 think -- I think we need, if we could. I
21 understand they denied the writ.
22 I think, as the First Circuit said,
23 at this point we need to continue with the
24 proceedings. And I think it's still
25 incumbent to show the Busby standards were
26 met. We haven't gotten there yet, at this
27 point.
28 The First Circuit said, at this
29 point, that there was a distinction
30 between a police-directed BAC versus a
31 physician. And we don't argue with that.
32 That is the current status of the law.
5
17-30519.1289
1 The question then goes, at this
2 point, to two issues: One, the issue
3 regarding confrontation. And we know
4 that's there from Crawford, at this point.
5 And I think we need to make the record
6 complete on that. And then, finally, the
7 Daubert standard. Daubert, Your Honor, as
8 we believe, the Daubert standard is the
9 scientific standard in the community. We
10 were in the process of doing that when we
11 stopped it the last time. It's my belief,
12 and the witness is not here, that the
13 testing was done with alcohol, which under
14 anybody's theory contaminated the results
15 of the tests --
16 MR. NORIEA:
17 Let me object --
18 MR. REGAN:
19 Excuse me. Let me fin--
20 MR. NORIEA:
21 No. That is directly in
22 contradiction of what the witness said
23 yesterday. He said he used Betadine.
24 THE COURT:
25 That's correct.
26 MR. REGAN:
27 Excuse me, Judge --
28 THE COURT:
29 He said he used Betadine.
30 MR. REGAN:
31 -- I've got a sworn testimony --
32 Excuse me. We were in the process
6
17-30519.1290
1 of having that hearing when we stopped,
2 okay. The testimony by this witness was
3 that it was alcohol, Your Honor. And I've
4 got that as sworn testimony, at this
5 point. We were the process of having the
6 hearing when the Court discovered two
7 things: One, that the man that was on the
8 witness stand, at this point, was not the
9 person that performed the test, number
10 one. And we also learned that that man
11 was not available to be cross-examined.
12 Then we were, at this point, we were going
13 to go into, with examination of that
14 gentleman, which we never got a chance to
15 do, the contamination issue, at this
16 point. We need to complete that record,
17 at this point, before they introduce the
18 point --
19 THE COURT:
20 Mr. Regan, all of those issues were
21 raised in writ application. While the
22 actual opinion that was rendered by the
23 First Circuit Court of Appeal does not
24 address that, I have to assume that they
25 considered those arguments that you made
26 in your writ application. I further have
27 to assume that the Supreme Court has
28 considered those arguments that were made
29 in writ application. So I'm not going to
30 conduct any further evidentiary hearings.
31 We are going to continue on with the
32 trial. And you will have ample
7
17-30519.1291
1 opportunity to cross-examine the witness
2 on those points.
3 MR. REGAN:
4 Judge, and I respectfully note an
5 objection.
6 THE COURT:
7 So noted.
8 MR. NORIEA:
9 Judge, could you just give me a
10 minute to round up the witness --
11 THE COURT:
12 Yes, sir.
13 MR. NORIEA:
14 -- because we didn't know what we
15 were coming into in here, if you don't
16 mind.
17 MR. REGAN:
18 Can I ask the Court, was the
19 decision simply writ denied, or was there
20 anything --
21 THE COURT:
22 We were just contacted by the clerk
23 of the Supreme Court and advised that the
24 writ was denied.
25 MR. REGAN:
26 No written reasons?
27 THE COURT:
28 I don't know if they will submit
29 written reasons or not.
30 MR. REGAN:
31 As the State is not here, I'll have
32 to wait until he returns.
8
17-30519.1292
2 off the record.)
3 MR. NORIEA:
4 We are ready, Your Honor.
5 THE COURT:
6 Counsel, anything else before we
7 bring in our jurors?
8 MR. NORIEA:
9 Not by the State, Your Honor.
10 MR. REGAN:
11 The only --
12 THE COURT:
13 Yes.
14 MR. REGAN:
15 Just, as we go forward, all we know
16 is that the writ was denied, period, at
17 this point.
18 The First Circuit said, at this
19 point, that the, quote: This matter is
20 remanded to you, the Court, to the trial
21 court for further proceedings.
22 THE COURT:
23 Which means that we continue the
24 trial, Mr. Regan.
25 MR. REGAN:
26 Okay. It didn't specifically say
27 trial.
28 THE COURT:
29 That's what it means.
30 Anything else?
31 MR. REGAN:
32 I just respectfully disagree that
9
17-30519.1293
1 it's not clear.
2 THE COURT:
3 Yes, sir.
4 Bring in the jury.
5 (At this time, the jury was
6 returned.)
7 THE COURT:
8 Please be seated.
9 MR. NORIEA:
10 Good morning, ladies and gentlemen.
11 Do any of you have anything to report to
12 the Court?
13 Hearing nothing, the defense has
14 rested in this matter. The State is now
15 in a position to present rebuttal
16 witnesses if they so choose.
17 Mr. Noriea.
18 MR. NORIEA:
19 Your Honor, the State would call
20 Philip Dueitt.
21 (PHILIP DUEITT, after having been
22 first duly sworn under oath, did testify
23 as follows:)
24 DIRECT REBUTTAL EXAMINATION BY MR. NORIEA:
25 Q. State your name for the jury, Mr. Dueitt.
26 A. Phillip Dawson Dueitt.
27 Q. Okay, now, you've got to be able to speak all
28 the way to Ms. Tedrow in the back, okay?
29 THE WITNESS:
30 Can you hear me?
31 THE JURY:
32 (Nodding head affirmatively.)
10
17-30519.1294
1 EXAMINATION BY MR. NORIEA:
2 Q. What is your profession?
3 A. Registered nurse.
4 Q. Where did you go to school for that degree?
5 A. University of Southern Mississippi, in
6 Hattiesburg.
7 Q. And when did you get a degree in nursing?
8 A. May of 1992, I graduated.
9 Q. Over the years, from 1992 to the date of this
10 event, 2006, did you work as a registered nurse?
11 A. Yes, sir.
12 Q. Would you tell the ladies and gentlemen of the
13 jury where you worked as a registered nurse during
14 that period of time. Where did you work during that
15 period of time?
16 A. Several different places. Started out at
17 Forrest General Hospital, in Hattiesburg,
18 Mississippi. Worked at Providence Hospital in
19 Mobile, Alabama, on a couple of different occasions.
20 I worked at South Central Regional Medical Center in
21 Laurel, Mississippi; at Methodist Hospital, in
22 Hattiesburg; and I did travel nursing where I worked
23 three-month assignments all over the country.
24 Q. Had you ever worked at the Heart Hospital in
25 Lacombe, Louisiana?
26 A. Yes, I worked there on a per diem basis
27 through a per diem agency before I started working
28 there full-time.
29 Q. I want to direct your attention to
30 November 16, 2006. Were you on duty that day in the
31 emergency room?
32 A. That night, yes, sir.
11
17-30519.1295
1 Q. Did you have the occasion to meet up with a
2 Shane Gates?
3 A. Yes, sir.
4 Q. Do you see him present in court?
5 A. Yes, I do.
6 Q. Would you point him out to the jury?
7 A. The gentleman sitting over here at the defense
8 table. (Indicating.)
9 MR. NORIEA:
10 Your Honor, let the record reflect
11 he's identified the defendant before the
12 bar.
14 Q. Tell the ladies and gentlemen of the jury what
15 Shane Gates was doing the first time you met him at
16 the hospital.
17 A. Mr. Gates was escorted into the emergency room
18 by a sheriff's deputy. He had on handcuffs and leg
19 chains and had a contusion, a hematoma to his left
20 eye, with a laceration, that involved both the upper
21 and the lower eyelid. We brought him in just like we
22 would any other patient and tried to take care of him
23 as best we could.
24 Q. Was he saying anything at that time?
25 A. Yes, sir. He was ranting, hollering, as he
26 came -- the first thing I heard him say as he came
27 through the door was: I'm going to sue all of y'all.
28 You don't know who you're dealing with. You don't
29 know who my dad -- some male relative is. He's a
30 lawyer, and I'm going to own you before this is over
31 with.
32 Q. Did he appear to be intoxicated at that time?
12
17-30519.1296
1 A. Yes, sir, he did.
2 Q. Now, tell the jury what physical
3 manifestations he exhibited that led you to that
4 conclusion?
5 A. Well, he was being heavily supported by the
6 sheriff's deputy. If he has not had some -- been
7 able to lean on someone as he came in, I'm sure that
8 he would have been on the floor.
9 Q. What else? Anything else?
10 A. He smelled heavily of alcohol. He could
11 answer certain questions for you. Others, he
12 couldn't. He could tell you what his name was. If
13 you asked him what his -- where he was at, he would
14 say the hospital. Never did determine that he could
15 identify time, as far as what day it was or anything
16 like that. But he was definitely oriented to person
17 and place, as long as he was being stimulated. And
18 when you quit stimulating him, he immediately went to
19 sleep.
20 Q. I'm going to show you what I've marked for
21 identification as Defendant's Exhibit 4. Could you
22 tell me if you recognize that and explain to the jury
23 what it is, if you do recognize it.
24 A. This is a copy of the lab reports and medical
25 records from the Heart Hospital concerning --
26 Q. Who's the patient, who's the patient?
27 A. Shane Gates.
28 Q. Now, I want to direct your attention to the --
29 some of the chemical tests that were performed on the
30 defendant. Do you see where those chemical tests
31 are?
32 A. Yes, sir.
13
17-30519.1297
1 Q. All right. Let's look at his blood alcohol
2 concentration. What was that?
3 MR. REGAN:
4 Judge, we object. We ought to have
5 the technician -- or the people who did
6 these tests here. Unless this gentleman
7 performed the tests -- unless he performed
8 the tests, at this point, this is pure
9 hearsay. I don't believe he even knows
10 how the tests were performed, the
11 equipment was used, or whether or not the
12 person that performed the test followed
13 standard procedures, at this point. We
14 believe he hasn't. And I would object to
15 any hearsay testimony from this gentleman.
16 MR. NORIEA:
17 That's certified copies of the
18 hospital records. That's an exception to
19 the Hearsay Rule, Your Honor.
20 MR. REGAN:
21 Judge, it is pure --
22 THE COURT:
23 Is it certified?
24 MR. REGAN:
25 -- hearsay.
26 MR. NORIEA:
27 Yes, it is.
28 THE COURT:
29 All right. Overruled.
30 MR. REGAN:
31 Note my objection to that.
32 THE COURT:
14
17-30519.1298
1 So noted.
3 Q. What is the blood alcohol content?
4 A. 273.
5 Q. Now, explain to the jury what's the normal --
6 A. According to this lab report, here, it should
7 be less than ten.
8 Q. Now, 273, how would that break down as a
9 percentage of alcohol scale in a DWI?
10 A. Should be like 2.73 times -- well, it would be
11 a little bit more than that because I think DWI is
12 .08 now.
13 Q. And this would be .273?
14 A. Right.
15 Q. So that's over three times the legal limit of
16 alcohol concentration of blood?
17 A. Thereabout.
18 Q. Now, at some point in time did you -- did you
19 start an IV for the defendant?
20 A. Yes, I did.
21 Q. Tell the jury what you did when you started
22 the IV and if anything else that you did in starting
23 that IV.
24 A. I prepped the skin, as you do to prevent
25 infection whenever you're starting an IV. You wipe
26 it with Betadine solution and allow it to dry for a
27 few seconds and you wipe it again with a Betadine
28 solution and allow it to dry for few seconds. You
29 apply it for a third time. And then you wipe it out
30 with a cotton ball. And then while you're getting
31 your other stuff and are ready to stick, dry it again
32 for a few seconds. And then you start your IV
15
17-30519.1299
1 catheter. At that point, while I was starting the
2 IV, I drew the blood -- or I collected the blood into
3 the tubes at that time. And the reason why we do
4 that is to keep from sticking the patient twice. No
5 use to stick him two times to get blood when you can
6 get it whenever you're starting the IV site itself.
7 And then I hung the bag up, connected it to the IV
8 tubes, and started a bag of IV fluids.
9 Q. Now, what type of fluids were used to treat
10 the defendant?
11 A. Dr. Kerry ordered a banana bag.
12 Q. What's a banana bag?
13 A. A banana bag is a normal saline that you add
14 like two grams of magnesium and a vial of
15 multivitamins. And I can't remember the exact
16 proportion but there's thiamine that's added to it as
17 well, which helped to replace electrolytes that are
18 lost whenever people have been -- or are heavily
19 intoxicated.
20 Q. Let me direct your attention to this page,
21 emergency room record. Can you give us the time of
22 those --
23 A. I started --
24 Q. -- medications you gave the defendant?
25 A. I started the saline-lock at 22:15, which is
26 10:15.
27 Q. Can you go back, I'm sorry. What time was he
28 admitted? What was the time that he showed up at the
29 hospital, according to those records?
30 A. According to my triage record, I received him
31 at 21:40.
32 Q. That would be 9:40 p.m.?
16
17-30519.1300
1 A. Yes, sir.
2 Q. And when did you start that medication in the
3 IV drip?
4 A. That would have been at -- banana bag, at
5 23:30, is when that was actually started.
6 Q. And beside -- and beside the banana bag did he
7 receive any other saline or any other medications
8 intravenously?
9 A. Intravenously, after he received that liter
10 bag of the banana bag at 23:30, two hours later, at
11 01:30, a second bag of just regular normal saline was
12 started on him.
13 Q. As a registered nurse you're trained to draw
14 blood?
15 A. Yes, sir.
16 Q. How many times have you drawn blood on
17 patients and/or started IVs on patients?
18 A. Thousands.
19 Q. Now, explain to the jury the -- you spoke
20 about some vials. Can you tell the jury about what
21 the blood, after you drew it, was done to transmit it
22 to the other parts of hospital for analysis?
23 A. Once we label it, you put the labels on it,
24 it's pre-printed, have the patient's name and all
25 pertinent information, their medical record, all that
26 stuff is put on it. The only thing that you have to
27 do to it then is put a time when you drew the blood
28 and your initials that you're the one who drew it.
29 Put it into biohazard bag and send it to the lab.
30 Q. After that you would have no other dealings
31 with it?
32 A. None, whatsoever. Once it goes to the lab or
17
17-30519.1301
1 once I put it in that bag and send it, it's out of my
2 hands.
3 Q. Explain how the Heart Hospital gets the
4 results of blood alcohol concentration down to the
5 emergency room.
6 A. It's transmitted to a printer in the emergency
7 room where it prints off.
8 Q. So once the blood leaves to go to the lab, you
9 are advised of the results by a printer that's set up
10 in the emergency room, hooked to the machine that
11 analyzed it?
12 A. How it's done, I'm not sure. All I know is,
13 is that it starts printing, and you look over there,
14 and there's something on it. And you go read it and
15 see what it is.
16 Q. Now, I noticed that Dr. Kerry noticed smell of
17 alcohol. On your particular notes, in dealing with
18 this patient, is that also noted?
19 A. Yes, sir.
20 Q. What other complaints did the patient have
21 when you treated him that night?
22 A. When -- when he presented to the ER he had the
23 very obvious laceration, hematoma, to his left eye.
24 And he was complaining of some left elbow pain.
25 Q. Did he have anything, that you could see, with
26 his chin or his forehead?
27 A. No.
28 Q. Did you notice any burns or blisters on his
29 face?
30 A. No.
31 Q. Did you debride the area of his eye that was
32 swollen and red?
18
17-30519.1302
1 A. Yes.
2 Q. Explain to the jury what you do when you
3 debride that and what you found during the debriding,
4 or cleaning, of his eye injury?
5 A. You just very gently take a bottle of
6 sterilized saline and squirt it gently across the
7 area that is involved and try to wash away any
8 material, you know, like, in his case, there was a
9 little bit of sand that was embedded into that
10 laceration and hematoma. And then, as you're
11 squirting, if there's any that's kind of stuck you
12 may take a little piece of dampened gauze and very
13 gently, you know, rub it, just gently, to break it
14 loose so that it can be cleaned off.
15 Q. Now, let's take a step back. When he was
16 brought into the emergency room, do you remember if
17 he was handcuffed or not?
18 A. Yes, he was.
19 Q. And were the handcuffs in front of him or
20 behind him?
21 A. His handcuffs were in front of him at that
22 time.
23 Q. Were there any other leg irons on him or
24 anything like that?
25 A. Yes, he had leg irons on him.
26 Q. When he arrived at the hospital, does the
27 record indicate if the bleeding was controlled in the
28 eye area?
29 A. I noted that.
30 Q. That's your handwriting, the bleeding was
31 controlled?
32 A. You're talking about on this page, right here,
19
17-30519.1303
1 yes.
2 Q. Okay.
3 A. In fact, it's noted on a couple of different
4 pages.
5 Q. Okay. Let's look at your notes, the emergency
6 room record, on your notes, beginning at 21:40. Do
7 you see that?
8 A. You're talking about on the narrative note?
9 Q. Yes, sir.
10 A. Okay.
11 Q. What happened at 21:40 that you wrote on the
12 hospital record?
13 A. Patient ambulated into E-3 without difficulty
14 or assistance, accompanied by St. Tammany Parish
15 Sheriff's Department, Deputy Gottardi. Patient
16 handcuffed and leg chains, deep laceration to left
17 orbit and outside corner, unable to determine if left
18 eyeball is intact at this time due to hematoma and --
19 around left eye. Patient is awake and alert.
20 Answers some questions. Refuses to answer others.
21 Strong smell of ETOH --
22 Q. What's ETOH?
23 A. Sir?
24 Q. What's ETOH?
25 A. Alcohol.
26 Q. Okay.
27 A. Patient denies street drug use. Bleeding is
28 controlled.
29 Q. All right. What is noted at 21:45?
30 A. Dr. Kerry in to see patient.
31 Q. And at 21:50, what is noted?
32 A. Saline gauze dressing applied to left -- to
20
17-30519.1304
1 laceration at left eye.
2 Q. And 22:15?
3 A. Started 18-gauge JELCO to left AC for
4 saline-lock on first attempt. Drew rainbow of blood
5 for lab. Flushed easily with five milliliters of
6 saline.
7 Q. This is all Standard Operating Protocol for a
8 nurse rendering treatment to a patient?
9 A. Yes.
10 Q. All right. What about 22:25?
11 A. Patient to radiology for CT scan per bed.
12 Q. What does that mean?
13 A. That means that he was in custody of the
14 Sheriff's Department, and he was handcuffed to the
15 bed. And it was easier to send him, bed and all,
16 than it was to go through all the rigamarole of
17 getting all the chains and shackles and all that
18 stuff off and take him to the CT.
19 Q. What's the next entry and the time?
20 A. 22:49, patient returned from CT scan
21 accompanied up and back by deputy. Patient remains
22 in handcuffs.
23 Q. 23:10?
24 A. Bleeding noted from laceration to the left
25 eye. Pressure dressing applied. Bleeding
26 controlled.
27 Q. And what is this next one? Is that 01:15?
28 That would be 1:15 a.m. in the morning,
29 approximately, two hours after the 23:10?
30 A. Yes, sir.
31 Q. And what had happened at that time?
32 A. It says Dr. Kerry spoke with Dr. Martina at
21
17-30519.1305
1 Forrest General Hospital in search of a plastic
2 surgeon.
3 Q. And at 1:20?
4 A. Dr. Martinez, or Martina, at Forrest General
5 in Hattiesburg accepts patient as ER to ER transfer.
6 Q. 1:30 a.m.?
7 A. We called Acadian Ambulance for transport.
8 Q. What about 1:35?
9 A. Called Forrest General. Spoke with Jo Jean
10 Miller, who is an RN. She's the nursing supervisor
11 there. And kind of gave her a little heads up about
12 what we had coming and making sure that they had a
13 bed available and all that kind of stuff.
14 Q. 1:40?
15 A. I called report to Roseanne Cuevis, who is the
16 RN in the emergency room at Forrest General, and gave
17 her a detailed report of what we had going on.
18 Q. And at 2:30?
19 A. Acadian Ambulance arrived to transport the
20 patient and gave report to Kevin Jay, EMT, paramedic
21 from Acadian.
22 Q. And what were the notations after the Acadian
23 Ambulance arrived?
24 A. We add -- can I add something?
25 Q. Sure.
26 A. One of the stipulations with -- that they gave
27 us for Forrest General Hospital was that they would
28 accept the patient, but they wanted a urine drug
29 screen before -- you know, the results of a urine
30 drug screen before they got him. If we had known
31 that beforehand -- but we didn't until after we
32 talked with them. So, anyhow, it was -- whenever
22
17-30519.1306
1 Acadian got there it was 2:30. At 2:50, I had two
2 notations. One that the patient out of ER to Forrest
3 General Hospital in Hattiesburg per Acadian Ambulance
4 and that the patient provided a clean kit urine
5 specimen for urine drug screen and that it was sent
6 to lab.
7 And then we had the results back by 03:30.
8 And at this point in time patient had been gone for
9 40 minutes or so. And I faxed those results of the
10 urine drug screen to Forrest General at that time.
11 Q. And there was no problem with Forrest General
12 accepting this patient when he arrived in
13 Hattiesburg?
14 A. Not so far as I'm aware.
15 Q. Now, would you turn to that part in the record
16 that concludes the results of the CAT scans.
17 A. You've got three of those, CT of brain and
18 facials.
19 Q. Okay. Let's first look at the CAT scan, the
20 CT of the brain. What did that indicate?
21 A. Findings were that the study was mildly
22 limited by motion artifact. No mass, mass affect, or
23 midline shift. No specific evidence of acute
24 intercranial abnormality. No depressed clavicular
25 fracture. Left frontal superficial tissue swelling,
26 partially visualized.
27 Q. Is it a fair statement to say that the reason
28 you couldn't see the cornea or the eyeball is because
29 the swelling of the eye had closed that opening?
30 A. Yes. Whenever he first arrived, you couldn't
31 tell whether he had an eyeball in there or not
32 because of the swelling.
23
17-30519.1307
1 Q. It was swollen shut?
2 A. Right.
3 Q. Now, let's do the CT of the facials.
4 A. It says that -- the frontal ethmoid,
5 maxillary, and sphenoid sinuses are well developed
6 and aerated without air fluid levels --
7 Q. Hold on. What does that mean?
8 A. That means that there's no fluid trapped in
9 the sinuses.
10 Q. If fluid were trapped in the sinuses, what
11 would that indicate to you, as a nurse?
12 A. Could indicate anything from the fact that he
13 had a stopped-up nose to he had blood in there.
14 Q. But there was nothing in there?
15 A. But there was nothing in there.
16 Q. Okay.
17 A. Diffuse soft tissue swelling is seen in the
18 left periorbital region. The underlying globe
19 appears intact.
20 Q. Hold on. What is the left periorbital region?
21 A. Left eye.
22 Q. And underlying globe appears intact, what is
23 the underlying globe?
24 A. That would be the eyeball.
25 Q. And this was seen through a CAT scan, correct,
26 or CT scan?
27 A. Yes.
28 Q. Go ahead.
29 A. No retrobulbar abnormality is seen.
30 Q. Hold on. What's that?
31 A. I don't know. That's radiologist speak.
32 Q. Go ahead. What's the next one?
24
17-30519.1308
1 A. I do not see any fractured sinuses. No
2 orbital floor fractures identified.
3 Q. Okay.
4 A. Sagittal coronal reconstructors are somewhat
5 limited by choice of algorithm. Final impression was
6 that the left periorbital soft tissue swelling with
7 no fractures seen.
8 Q. Let's go to the left elbow injury. Was there
9 anything indicating that any diagnostic test or
10 procedures was done to determine the extent, if any,
11 of his left elbow that was injured in this record?
12 A. I do not see any x-raying or anything of a
13 left elbow.
14 Q. But a left elbow injury was noted in the
15 history or the examination --
16 A. Well, he was complaining -- on arrival he
17 complained of left elbow pain.
18 Q. Is there anything in this record indicating he
19 was complaining of pain to his chin or concrete or
20 asphalt in his chin?
21 A. I don't recall there being any other injury to
22 his face other than that of the -- around the left
23 eye.
24 Q. And it would be your practice that if somebody
25 did make a complaint you would note it in his records
26 for accuracy, correct; any other complaints would be
27 noted in his records?
28 A. Yes.
29 Q. Any other examination results of injury would
30 be noted in these records?
31 A. Should be.
32 Q. All right. I want you to look at the first
25
17-30519.1309
1 couple of pages. Was information provided to you
2 concerning Mr. Gates' family?
3 A. No. Whenever -- I know the admissions
4 technician, the lady that handles getting someone
5 admitted in, had to come back several times before
6 she could get --
7 MR. REGAN:
8 Judge, I do object --
9 THE WITNESS:
10 -- all the information --
11 MR. REGAN:
12 -- if they're going to call someone
13 from admissions, there's no objection.
14 But he's not going to tell us what the
15 lady at admissions said.
17 Q. No. Don't tell us what is said, but I want
18 you to look at, I believe --
19 THE COURT:
20 Sustained.
22 Q. -- it's the third page of this document, see
23 what's recorded in these official certified records
24 about the relative.
25 A. Relative. Christine E. Hymel.
26 Q. And how do you spell that?
27 A. The last name?
28 Q. Yes.
29 A. H-Y-M-E-L.
30 Q. Okay. And do they have an address for that
31 person?
32 A. 56345 McManus Road, Slidell, Louisiana.
26
17-30519.1310
1 Q. How about a phone number?
2 A. Yes, there is.
3 Q. What is it?
4 A. 985-845-1739.
5 Q. And what was her relationship to the
6 defendant?
7 A. It's my understanding that was his wife.
8 Q. What does the record say?
9 A. Spouse.
10 Q. At any time before the defendant left the
11 hospital at -- what time did he leave that morning?
12 A. Ten minutes to three.
13 Q. At any time from that 9:40 when you first saw
14 him until ten minutes to 3 did any member of his
15 family show up at the hospital?
16 A. No.
17 Q. And how much dealing over that four- or
18 five-hour period of time was devoted to the defendant
19 Gates, by you?
20 A. By me?
21 Q. Yes.
22 A. Pretty much I was with him almost all the
23 time. We weren't very busy that night.
24 MR. NORIEA:
25 Your Honor, I tender the witness.
26 MR. REGAN:
27 Thank you.
28 CROSS-REBUTTAL EXAMINATION BY MR. REGAN:
29 Q. Mr. Dueitt, is there anything you want to
30 change about your testimony before I start asking you
31 a few serious questions?
32 A. Nope.
27
17-30519.1311
1 Q. You stand by everything you say?
2 A. The best of my recollection, I've told the
3 truth, the whole truth, and nothing but the truth.
4 Q. And you're an honest man?
5 A. I try to be.
6 Q. Very good. Let me make sure we've got the
7 spelling of your name correct for the jury so we
8 don't have you confused with anybody.
9 Your first name is Philip?
10 A. Yes, sir.
11 Q. And how do you spell your last name?
12 A. That's not how you spell my first name.
13 Q. D-U-E-I-T-T?
14 A. That's how you spell my last name, but that's
15 not how you spell my first --
16 Q. How do you spell your first name?
17 A. One L.
18 Q. One L?
19 A. Yes.
20 Q. One L. So you're Mr. Philip Dueitt, with one
21 L?
22 A. Yes.
23 Q. Now, you just told the jury, and I want to be
24 sure we got it straight, that when Shane Gates,
25 according to you, was helped into the hospital by the
26 police, you said something about he was loud,
27 ranting, raving -- give me those verbs, adverbs.
28 What was he doing? As Mr. Dueitt -- as this young
29 man over here --
30 MR. REGAN:
31 Stand up, Shane.
32 THE DEFENDANT:
28
17-30519.1312
1 (Complies.)
2 EXAMINATION BY MR. REGAN:
3 Q. That man?
4 A. Uh-huh (affirmative response).
5 MR. REGAN:
6 Please have a seat.
8 Q. -- was brought into the hospital by the
9 police, tell me again what you just said. What was
10 he doing?
11 A. Staggering.
12 Q. Staggering?
13 A. Okay.
14 Q. Okay.
15 A. He was very loud.
16 Q. Loud.
17 A. Vocal.
18 Q. Was he raging?
19 A. From time to time.
20 MR. NORIEA:
21 Your Honor, let me object --
22 MR. REGAN:
23 Excuse me. Objection. Counsel --
24 MR. NORIEA:
25 -- to raging.
26 THE COURT:
27 Overruled. Overruled.
29 Q. Did you use the word "raging"?
30 A. I believe that I may have used the word
31 "raging".
32 Q. Raging. Okay. Cursing?
29
17-30519.1313
1 A. Yes.
2 Q. Cursing. Okay. We haven't added -- how about
3 ranting? Was he ranting?
4 A. I think that goes along with raging, yes, sir.
5 Q. Okay. We'll put that right here. Ranting.
6 Well, sir -- and the jury is going to get
7 them. There's 20 pages of report here, right?
8 A. I don't know how many there is.
9 Q. Take a look. First -- we may want to even
10 number them, at this point, so the jury knows whether
11 you're telling them the truth or not, okay?
12 A. Yes.
13 Q. Would you kindly, at this point, look at Page
14 20 so we can see if you're telling the truth or lying
15 to these people.
16 A. There are no numbers on these pages, sir.
17 Q. Let me see, sir. Let's take a minute. I'm
18 going to put numbers on that because we're going to
19 be going back and forth to see if you're being honest
20 with anybody.
21 I count 24 pages in your State's Exhibit
22 Number 4.
23 You know, in addition to that, I think you've
24 even said at one time, he had, in fact, had peed on
25 himself, right?
26 A. He did.
27 Q. Peed. Let's put that up here.
28 Now let's see if you told the jury the truth.
29 Let's go back to Page 20. What time did you see
30 Shane Gates for the first time, Mr. Dueitt?
31 A. What time did I see?
32 Q. Yes, sir. What time is on the time of arrival
30
17-30519.1314
1 at the top? It should be easy to find.
2 A. That's not on Page 20.
3 Q. Yes, sir. It's called the Emergency
4 Department Record. Let's make sure we've got the
5 right man.
6 You can see it at the bottom of the page.
7 I'll find it for you, sir, get you to Page 20.
8 A. I'll get to where -- I know where that is at,
9 if you give me just a second.
10 Q. Yes, sir. You're at 14. We're going to Page
11 20, which is the Emergency Department Record with a
12 time of 21:40.
13 A. Well, my Page 20 does not have that on here
14 as --
15 Q. Let me see what we're dealing with. Excuse me
16 one second so there's no confusion here.
17 I'm sorry. What was the time of arrival at
18 the department, at the emergency department?
19 A. 21 --
20 MR. NORIEA:
21 Just for clarification, what page is
22 that?
23 THE COURT:
24 What page number?
25 MR. REGAN:
26 21, sir. 21 is the next page over.
28 Q. Now let's make sure the jury understands,
29 here. He just said 21:40, right?
30 A. Yes, sir.
31 Q. And who signed that document?
32 A. That's signed by me.
31
17-30519.1315
1 Q. No question it's you, right? We don't have
2 any problem with that. Then at the bottom of that
3 page, sir, it says Psychosocial Report as of 21:40.
4 How did you describe his demeanor?
5 A. As flat.
6 Q. We're going to make sure we get this. We've
7 got -- we've got -- read the next word.
8 A. The next word that I checked?
9 Q. Calm, right?
10 A. Yes.
11 Q. Calm. You describe him as being calm. At
12 what time? 21:40, right?
13 A. Yes, sir.
14 Q. Did you lie on that report, or are you lying
15 to the jury now?
16 A. I didn't lie either time, sir.
17 Q. I see. So, at this point, staggering, loud,
18 raging, ranting, cursing, at this point, is calm?
19 A. No.
20 Q. Sir --
21 A. Simply, whenever you quit stimulating him, he
22 went, (indicating), to sleep, just that fast.
23 Q. Does the fact that you've been sued in this
24 case and you've got a trial coming in the future make
25 you change your testimony from what you wrote that
26 night when you said calm?
27 A. No.
28 Q. Do you agree with me that when you were asked
29 to describe his demeanor from a psychosocial
30 standpoint, at 21:40, the time he arrived, he is
31 calm?
32 A. I just explained to you that from one second
32
17-30519.1316
1 or from a very few seconds from this point to this
2 point that he could go from doing all those loud
3 ranting, raging, cursing things to, if you left him
4 alone for just a minute, he went to sleep.
5 (Indicating.)
6 Q. I see, sir. Let me go just one step further.
7 Thank you for pointing out that his affect at this
8 time was flat, meaning he was emotionless. His
9 affect -- let's go back over this because the jury
10 needs to hear this. You wrote down at 21:40, based
11 on your emergency report, that his personality was
12 flat. Flat means nonemotional, right?
13 A. It does whenever you're asleep.
14 Q. Flat, okay. He comes in at 21:40. He's flat
15 and he's calm, right?
16 A. When he's asleep.
17 Q. Yes, sir. And would you do me a favor? Where
18 in that report, at this point, did you write that he
19 was loud, boisterous, raging, cursing, threatening
20 anything?
21 A. I didn't write that at any place in here, that
22 I recall, sir.
23 Q. You didn't write it. You're going to tell the
24 jury -- you told them all this, and you didn't bother
25 to put it in your report?
26 A. No, sir. I didn't know that this was going to
27 wind up in court, either. If I had, you can believe
28 I would have written it.
29 Q. Sir, let me ask you something else, because
30 we're talking about honesty, at this point. You got
31 fired by that hospital, didn't you?
32 A. I certainly did.
33
17-30519.1317
1 Q. Yes, sir.
2 A. Sheriff's Department is the ones that caused
3 it.
4 Q. You got fired. You know, they had enough of
5 you, right? They had enough of you, didn't they?
6 A. No.
7 Q. And, wait, tell the jury. You're a truck
8 driver, right? You went from nursing to truck
9 driving?
10 A. Driving is one of the things that I know how
11 to do and I'm licensed by the law to do.
12 Q. And, in fact, you've commented, at this point,
13 that nursing's not a manly drive so you went out and
14 did a manly job by truck driving; is that right?
15 A. Like I said that in a sarcastic way during my
16 deposition, yes, I did say that.
17 Q. And you hold the sheriff responsible for you
18 getting fired over there, right?
19 A. No. But the sheriff's department was the
20 reason why I was given why I was because they said I
21 was disrespectful to a police officer from the
22 St. Tammany Sheriff's Department.
23 Q. Yes, sir.
24 So we have flat and calm, is how you found
25 him, not any of these things. And you have been sued
26 in the federal suit that hasn't gone to trial yet,
27 right? You've financial interest in this outcome?
28 A. Me? I'm just here -- yeah, I got -- I wish --
29 I don't even want to be here at all.
30 Q. No, sir. You don't want to be in federal
31 court either, do you?
32 A. Look, I don't have -- I don't seem to have a
34
17-30519.1318
1 whole lot of choice about any of this kind of stuff.
2 And it's not because of anything that I did.
3 Q. Now, if you're describing somebody as being a
4 drunk and all that, at this point, and peeing on
5 himself, find in the report where you said he was
6 peeing on himself. I'm going to get a drink of
7 water. Take your 21-, 24-page report and tell me
8 where in there you wrote that he peed on himself.
9 A. I didn't write that in the report.
10 Q. You didn't?
11 A. I didn't see that it had any significance to
12 his medical -- to what was going on with him
13 medically. And I didn't write it down. All I did
14 was change his bed clothes and give him some dry
15 clothes to wear and got him ready to go to Forrest
16 General Hospital.
17 Q. Sir, so you're looking at somebody -- you
18 think drunks would pee on themselves, right? That's
19 kind of an indication of intoxication?
20 A. Some do, some don't.
21 Q. And you're here telling the jury all about how
22 drunk he was. You've got to say yes or no. You
23 can't just shake your head.
24 A. Oh, I'm sorry. I'm not sure -- I didn't
25 realize that requires an answer.
26 Q. It does, sir, at this point. Don't you think
27 you ought to report in your report, at this point,
28 that, in fact, he's drunk and he's peed on himself?
29 A. Well, I recorded that he had a very strong --
30 that they had a strong odor of alcohol on him.
31 Q. You sure did.
32 A. I did.
35
17-30519.1319
1 Q. See, you thought that was important, okay.
2 A. I did.
3 Q. And then we learn that -- and you've got the
4 reports there. We learn because we heard the
5 testimony here that Dr. Bruce Kerry was the physician
6 on duty, right; he was on duty that day. And just so
7 we don't make a mistake, would you take a look -- you
8 find the page number where we have Dr. Bruce Kerry's
9 notes. You saw him at 21:40.
10 We have Dr. Bruce Kerry, MD --
11 A. Uh-huh (affirmative response.)
12 Q. And, you know, he's testified before this jury
13 already a couple of days ago. He sat right there
14 under oath and testified to them. And he didn't --
15 he didn't find that he was intoxicated.
16 A. Right here on his --
17 Q. He told the jury he did not find --
18 A. Right here on his he wrote odor of ETOH.
19 Q. I agree. We agree. That's what -- odor.
20 But, you know, he was asked about intoxication, and
21 he said he didn't find him to be intoxicated.
22 MR. NORIEA:
23 Your Honor, let me object -- let me
24 object to this question. It's
25 argumentative. And the jury heard the
26 doctor's testimony for themselves.
27 MR. REGAN:
28 Absolutely. I agree. And it's not
29 argumentative.
31 Q. You disagree that Dr. Kerry told this jury
32 that he did not find this man intoxicated --
36
17-30519.1320
1 MR. NORIEA:
2 He was not here, Your Honor, for the
3 testimony.
4 THE WITNESS:
5 I don't have any idea of what Dr.
6 Kerry told this jury.
7 THE COURT:
8 It's cross-examination. I'm going
9 to allow that question.
11 Q. Now let's --
12 THE COURT:
13 But he's answered it twice.
14 Move on.
16 Q. Let's now go through what Dr. Kerry found,
17 okay, assuming he did testify to that fact. Let's
18 see how he found Shane Gates when he saw him.
19 First of all, I think the jury needs to know,
20 when did he see Mr. Gates? When was that in
21 relationship to when you saw him? Okay?
22 We know that you saw him at 21:40, right?
23 A. Yes.
24 Q. You said he was calm?
25 A. Yes.
26 Q. And his a personality, or his appearance, was,
27 at this point, what, flat, right?
28 A. That's what --
29 Q. Now, let's make sure we're right, because
30 we're going to go through this. And, again, is there
31 anything you want to change about your testimony,
32 sir?
37
17-30519.1321
1 A. Not one word.
2 Q. Let's go to the doctor. He saw him at what
3 time?
4 A. Well, I said that I think he saw him at 21:45.
5 And I think he said he saw him at 21:50. So take
6 your pick.
7 Q. Let's do this, just so we're clear with
8 everybody. We're going to put both times. He either
9 saw him five minutes after you or ten minutes after
10 you, right?
12 Q. Either 21:45 or 21:50.
13 Now, I depend on medical records, as a
14 professional. Don't you?
15 A. Sure.
16 Q. Why are medical records and accuracy of
17 medical records important, at this point? Tell the
18 jury why is it important to keep good medical
19 records.
20 A. We do the best we can to keep up with what's
21 going on with a patient.
22 Q. Right. And you absolutely are not to put
23 false information in a medical record, are you?
24 A. Well, we try and avoid that at all costs.
25 Q. Yes, sir. And does it surprise you that
26 Dr. Kerry did not find this man ranting, raging,
27 cursing, or anything like that, five or ten minutes
28 later? Dr. Bruce Kerry didn't find any of that. Can
29 you -- you know that, don't you?
30 A. I don't have any idea what he testified to,
31 sir.
32 Q. So you find him, at 21:40, calm. The
38
17-30519.1322
1 doctor sees him at 21:45 or 21:50 and doesn't find
2 any of these adverbs, adjectives that you used
3 regarding this man's conduct, right?
4 A. I don't know what he said.
5 Q. Between you and me, I mean, we can trust
6 Dr. Kerry; he's an honest man, right?
7 A. As far as I know.
8 MR. NORIEA:
9 Your Honor, let me object to these
10 questions. He's not here to comment on
11 honesty of any witness.
12 THE COURT:
13 Sustained.
15 Q. Now, let's find what Dr. Bruce Kerry found,
16 okay. You have his report there, sir?
17 A. Yes, sir.
18 I think you might want to note also, even
19 though he says he saw him at 21:50, it says over here
20 on the second page that he didn't complete this until
21 01:00.
22 Q. I understand.
23 A. But this wasn't done exactly whenever
24 everything was going on.
25 Q. Sure.
26 A. This he did from memory, just like I probably
27 did mine from memory. You know, it wasn't done
28 exactly at that time because you can't perform
29 physical duties and write down stuff that's going on
30 all at the same time.
31 Q. Yes, sir.
32 A. You either have to make a choice about what
39
17-30519.1323
1 you're going to do.
2 Q. I understand. And I think the jury
3 understands.
4 A. I want to make sure they do.
5 Q. Because you didn't fill the report out
6 immediately, you forgot about the cursing, the
7 raging, the ranting, the peeing on himself when you
8 got around to filling out the report. Is that what
9 you're trying to get them to believe you? Huh?
10 A. I'm just telling them that that's what -- this
11 is what I wrote -- or what I wrote on those pages
12 that pertained to me is what I thought pertained
13 medically to his condition. And I tried to cover
14 everything that I had to do with his medical
15 condition.
16 Q. Now let's look at the Emergency Physician's
17 Record. And it says head injury, right, got it?
18 A. That's preprinted on there, head injury.
19 Q. Head injury. Let me ask you, did y'all, of
20 course, use the right form; he had a head injury?
21 A. As it turned out he didn't have a head injury,
22 but we were trying to rule out whether or not he did,
23 because he had that awful contusion to his left eye.
24 Q. I'm looking at this. Mr. Dueitt, look at this
25 form. Come down the next line. Does it have chief
26 complaint -- you want to make a point that this
27 wasn't a head -- chief complaint. And Dr. Bruce
28 Kerry filled out face, right? There was no
29 confusion, was there?
30 A. You're trying to twist things.
31 Q. I'm sorry?
32 A. This right here is just -- what wound up
40
17-30519.1324
1 having could very well have been written up on a T
2 sheet that said laceration.
3 Q. Well, let's go back --
4 A. But because he had the possibility of there
5 being a closed head injury, a fracture of his skull,
6 that was underlying of this contusion and laceration
7 that he had around his left eye, he wrote it up and
8 went with a T sheet that said head injury.
9 Q. Yes, sir. Do you disagree -- I mean, this
10 sheet says head injury. And then it's got chief
11 complaint. It's got head you can circle; face you
12 can circle; mouth you can circle; chin you can
13 circle; nose you can circle; and ear.
14 You're trying to tell the jury -- and they're
15 going to get to read this. Remember that. They're
16 going to get to read this themselves.
17 A. I hope they do.
18 Q. Do you see what the form that asks head, face,
19 mouth, lip, you're trying to suggest that this is the
20 wrong form that Dr. Kerry used?
21 A. No, I'm not trying to suggest that at all.
22 Q. Let's move on. So let's go on to this form.
23 Then we go down here, at this point. It says -- it
24 says -- they're looking for the severity. What's the
25 severity?
26 A. It says severe.
27 Q. Do you disagree?
28 A. I was pretty worried about him at the time. I
29 didn't know if there was an eyeball left in there or
30 not.
31 Q. I ask you again. Do you agree with the
32 doctor's findings at 21:50 hours that it was severe?
41
17-30519.1325
1 A. Sure.
2 Q. Fantastic. Now go down to the bottom.
3 Physical exam. And we're going to see who's telling
4 the truth, here. Physical exam. The doctor, at this
5 point, examined him, right? And it says --
7 Q. -- with respect to his appearance and status,
8 he's alert. Didn't he, in fact, check off the word
9 "alert"?
10 Come on.
11 A. Well, I'm trying to find what you're talking
12 about.
13 Q. Sir, it's easy to find. You see the checkmark
14 right there? What's his physical exam status?
15 A. Oh, he says that --- he says alert.
16 Q. He says alert. He doesn't say drunk. He
17 doesn't say raging. He doesn't say that he, in fact,
18 is doing anything, other than you describe him as
19 being calm?
20 A. Alert means --
21 Q. Do you think he changed in the ten minutes?
22 A. Alert means that you can identify who you
23 are -- in general, it's called being oriented times
24 three; oriented to person, place, and time. If you
25 asked Mr. Gates who are you, he could tell you: My
26 name is Shane Gates. If you asked him where he was
27 at, he could tell you: I'm in the hospital. I do
28 not recall that he ever was able to tell us what time
29 or what day that it was.
30 Q. Well, we're going to help you decide that in a
31 minute. We're going to help the jury see exactly
32 that question, and it's going to be answered by
42
17-30519.1326
1 Dr. Bruce's report as to whether it was time, place,
2 as you said. But let's finish this before we go
3 directly to the Glasgow, okay?
4 A. Okay.
5 Q. So let's see who's being honest with the jury.
6 What does physical exam say, how does he find his
7 status and general appearance, at this point, on the
8 left side of Dr. Bruce's report at 21:50? He finds
9 him alert, right?
10 A. That's what he's got checked.
11 Q. Right. And if, in fact, he has said that the
12 man had no slurred speech of any kind, would you
13 disagree with that? If Dr. Kerry found that that man
14 over there had no slurred speech?
15 A. I don't know what Dr. Kerry --
16 Q. I mean, drunks are slurred, they're talking,
17 you can't understand. (Demonstrating).
18 A. I mean, you could understand pretty much
19 everything he said whenever he was saying whatever he
20 was saying.
21 Q. So if Dr. Bruce -- you saw Dr. Bruce speak
22 with him, right? He was alert, according to
23 Dr. Bruce. He talked to this man, at this point.
24 And Dr. Bruce found that he had no slurred speech.
25 I'm going to put "no speech problem".
26 And it was none. And there was no --
27 Don't you think drunks have slurred speech,
28 huh? If this is a drunk -- point -- I'm going to put
29 that number out because we're going to spend a lot of
30 time on that. We've got a guy that is not just .08.
31 We've got a guy at .27. What's the last digit?
32 27, what, that you fictitiously came -- what
43
17-30519.1327
1 was the report? 27, what, that he's drunk?
2 A. Oh, that wasn't a .27. That would be a 2.73,
3 wouldn't it?
4 Q. No, sir.
5 A. According to the thing, it was 273. Now
6 convert that to whatever you want to convert it to.
7 Q. Well, I tell you, sir, you're the registered
8 nurse, right?
10 Q. You went to nursing school, right?
11 A. I did.
12 Q. You're now a truck drunk?
13 A. Among other things.
14 Q. Let me ask you: You don't know the difference
15 between .08 and .273?
16 A. I do.
17 Q. And .273 is a huge number of intoxication that
18 you somehow come up with here?
19 A. I didn't come up with that. That was what the
20 report that came back from the lab.
21 Q. We're going to show how you cause that number
22 before we finish here.
23 A. Okay.
24 Q. Let's continue to go with this.
25 .273 is extremely intoxicated, right?
26 A. I've seen higher, but that's pretty high.
27 Q. That is darn high, right?
28 A. That's pretty high.
29 Q. I mean, he is at three-eights, or 24. He's
30 three or four times drunk, right?
31 A. That's probably about right.
32 Q. If you're three or four times drunk, don't you
44
17-30519.1328
1 think Dr. Bruce would have seen that and found him to
2 be intoxicated or he would have had some kind of
3 slurred speech, if we're being honest?
4 A. I have no earthly idea why or how Dr. Kerry
5 filled out any of his things. I had nothing to do
6 with that.
7 Q. You might be able to point out the earthly
8 idea in a minute, sir.
9 THE COURT:
10 Mr. Regan --
11 MR. REGAN:
12 No earthly idea.
13 THE COURT:
14 Mr. Regan, ask questions.
15 MR. REGAN:
16 Yes. I apologize --
17 THE COURT:
18 Don't make comments between your
19 questions.
20 MR. REGAN:
21 Yes, sir.
23 Q. Now, you said a minute ago -- and I need to
24 get more water -- you were referring to another test
25 that was done. I mean, Dr. Kerry appeared to be
26 normal to you that evening at 1:50 -- 9:50. He
27 wasn't drunk, he wasn't staggering. Dr. Kerry had
28 all his senses about him, right? Am I right?
29 A. Yes, sir.
30 Q. And Dr. Kerry was his normal self?
31 A. Yes, sir.
32 Q. So let's go on to what they call -- we talked
45
17-30519.1329
1 about the physical exam, at this point. Let's move
2 on now to what they call the neuropsychic exam.
3 And we have that, too, for the jury, don't we?
4 Let's go through that.
5 What did, at this point, what did the doctor
6 find at ten minutes after you saw him with respect to
7 his neuropsychic? First of all, with respect to
8 being alert or not, what does the doctor say? He's
9 what? Alert, right?
10 You've got a problem looking at that, please?
11 A. No, I don't. I keep wondering why you're
12 asking me about what Dr. Kerry put down instead of
13 referring to the stuff I wrote.
14 Q. Because it's 180 degrees different from yours.
15 A. I don't think so.
16 Q. And he's the doctor.
17 A. I don't think so. I think that if you looked
18 at mine, mine says the same thing that his does.
19 You're trying to make it look like I'm doing
20 something different, and I'm not. It says he was
21 alert. It says he was oriented. I think I put times
22 two and he put times three.
23 Q. Let me -- let me -- let me let the judge be
24 the -- the jury be the judge of that.
25 A. Why don't we.
26 Q. So we've got, first of all, Dr. Kerry has said
27 that he's alert?
29 Q. And he, in fact, is orientated, oriented times
30 three, okay. And we found his -- what's that? What
31 is his mood, this 2.7 drunk, at this point, that you
32 see? What is his mood? It says normal, huh?
46
17-30519.1330
1 A. No, it does not say normal.
2 Q. Excuse me.
3 A. There's a check there by mood and effect. And
4 there is nothing circling normal.
5 Q. Sir, can you read what it says? You see this
6 check block? I'm going to show this to the jury
7 because so they can see this all by themselves.
8 We've got a block at this point. And we've
9 got a block. And we've got alert, at this point.
10 And we've got a check on that. And then the next
11 block says orientated -- oriented, excuse me, by
12 three. And got that checked off. And the next one,
13 at this point, it says mood, at this point, and,
14 slash, affect. And we've got normal.
16 Q. If mine reads the way yours does, that's what
17 it says, right? Right? What's it say? He's got a
18 big check. The mood is normal. This is ten minutes
19 after you claim he was so drunk and cursing. Do you
20 find it normal for people to come in --
21 A. I don't interpret that the way that you
22 interpret that. I take that he checked mood or
23 affect. And if he would have wanted it to be normal,
24 he would have circled normal.
25 Q. Well, we've got the check for normal --
26 A. No, you don't. You've got the check for
27 mood/affect.
28 Q. Now we want to see if this drunk, cursing,
29 raging fellow is cooperative. You didn't think he
30 was, did you?
31 A. I didn't say --
32 Q. Tell the jury. How did Dr. Kerry find him?
47
17-30519.1331
1 A. I did not say he wasn't cooperative.
2 Q. Did Dr. Kerry say he was cooperative.
3 A. Dr. Kerry did. And I don't believe that I
4 said that he wasn't.
5 Q. He's cooperative, okay.
6 So that's the doctor's findings, at this
7 point.
8 He's orientated by three. And then you see to
9 the right there's some places that doctor could have
10 checked, with respect to neuropsychology, okay? You
11 see those little checks? And the doctor could have
12 selected slow. Did he check off slow?
13 A. He didn't check off anything over there on
14 that side.
15 Q. Let's add the word "confused". Did he check
16 off or circle the word "confused" to tell us that
17 this fellow looked confused to him? Tell us. Read
18 it. He didn't check confused. How about no response
19 to command?
20 A. I already said he didn't check off anything
21 over there on that side.
22 Q. No response to command. That's what -- if
23 he's slow -- and I'll use another color because I
24 don't want to confuse us with what we have here at
25 this point.
26 And this is ten minutes after you saw him,
27 right?
28 A. Thereabouts.
29 Q. Yes, sir. Slow and confused. Nothing, no
30 response. Nothing.
31 And then I think it's even clearer when we go
32 back to this orientated by three, okay. Orientated
48
17-30519.1332
1 by three is what we call a Glascow [sic]?
2 A. No, it's not.
3 Q. I'm sorry. If you disagree, I'll read the
4 report to you.
5 A. Okay.
6 Q. And we will get that for you.
7 And you know there's 15 points to that, right?
8 A. I'm well aware of that.
9 Q. To the Glasgow examination. If you total 15
10 out of 15, at this point -- 15 out of 15 on this
11 test, then you are orientated, right?
12 A. No, sir. That just means basically that your
13 brains probably aren't scrambled.
14 Q. Well, let's take a look at that. Your brain's
15 not scrambled.
16 A. It means that you get four points if you can
17 open your eyes spontaneously. In other words, if
18 you're asleep and somebody comes up and taps you,
19 doesn't say anything you, and you open your eyes, you
20 get four points.
21 Q. Well, excuse me -- excuse me --
22 A. If you -- verbally, if you're oriented, which
23 means if you know who you are, if you know where you
24 are --
25 Q. Yes, sir.
26 A. And Dr. Kerry -- I mean, I gave him 15 as
27 well. So if you can tell where you are, you get five
28 points.
29 Q. Yes, sir.
30 A. If you obey commands --
31 Q. Yes, sir.
32 A. -- if someone says can you touch your nose --
49
17-30519.1333
1 Q. Yes, sir.
2 A. -- and you do this, (Indicating) --
3 Q. Yes, sir.
4 A. -- you get six points. And that totals 15.
5 Q. Yes, sir. And that's the best score you can
6 get?
7 A. It is.
8 Q. You can't do any better than 15 out of 15?
9 A. You cannot.
10 Q. Right. And while I think you said you
11 disagreed with the doctor on something, tell me
12 something, is there anything in there saying that
13 when Dr. Kerry saw that he was not slurring and that
14 he was not intoxicated, that he was sleeping? That's
15 what you're suggesting, that he could open his eyes.
16 Was he sleeping when Dr. Kerry examined him? Tell
17 the jury the truth.
18 A. He was sleeping when Dr. Kerry came in and
19 first seen him, and I think Dr. Kerry woke up at that
20 point --
21 Q. Yes, sir. Let me ask you something. You've
22 seen the injuries here.
23 MR. REGAN:
24 Could I have those pictures.
26 Q. Let me ask you if you might think somebody
27 might close their eyes at this point.
28 3, 4, 5. Would you agree that someone is
29 probably in a great deal of pain? Tell me, would you
30 agree somebody's in a great deal of pain if that's
31 what happened to him?
32 A. He didn't -- he reported being a five on --
50
17-30519.1334
1 his pain as being five on a ten -- pain is
2 subjective.
3 Q. I agree.
4 A. And not objective. We don't have a dial on us
5 that tells what our pain was. He reported five. I
6 have to accept five as what he's saying.
7 Q. Again, we're going back and looking at him.
8 Do you think this kind of guy is going to be asleep
9 ten minutes after he gets into the hospital --
10 remember, this is 21:50 --
11 MR. NORIEA:
12 Your Honor, let me object to some of
13 these questions, Your Honor. They've been
14 asked and answered --
15 THE COURT:
16 Wait. You get to object to each
17 individual question. Which question do
18 you wish to object to?
19 MR. NORIEA:
20 This last one he's asking right now
21 has been asked and answered four times.
22 MR. REGAN:
23 I asked him if he was sleeping at
24 21:50 when he was in that condition --
25 THE WITNESS:
26 Yes, he was.
28 Q. He was sleeping when Dr. Kerry saw him,
29 10 minutes later?
30 A. Whenever Dr. Kerry came in to see him, he
31 aroused him from sleep.
32 Q. At this point, ten minutes later, he was
51
17-30519.1335
1 asleep?
2 Do you see anywhere in those medical records
3 where Dr. Kerry said this man was asleep, just
4 resting, when I walked in?
5 A. No, sir, I did not.
6 Q. You didn't see that? You don't have that? So
7 let's go back --
8 A. I'm not sure that's required to be put into
9 medical records if you come in and somebody's asleep
10 and you wake him up.
11 Q. You know, we get into this. First of all --
12 and we're going to get into the DWI numbers in a few
13 minutes. Let's stick with this. First of all, you
14 took urine. Urine was taken to see if he had any
15 drugs in his urine, right? Tell the jury.
16 Absolutely zero. Urine is zero. Am I right?
17 A. And that concurs with what the patient told us
18 whenever he came through the door. He said he did
19 not do any drugs.
20 Q. He was being honest with you? He told you he
21 wasn't doing any drugs, and you tested him and he had
22 no drugs, no prescription drugs, no street drugs,
23 nothing in his body, right?
24 A. None --
25 Q. Come on. Tell the jury.
26 A. None that were detected --
27 Q. Zero?
28 A. Zero. Absolutely negative.
29 Q. Negative. Okay. Right. We're good with
30 that.
32 Q. So let's go back. And you're going to tell
52
17-30519.1336
1 this jury that this fellow who spoke to the doctor
2 and filled out this nice report was asleep when the
3 doctor talked to him? Come on.
4 A. Whenever the doctor came into the room, he was
5 asleep. And Dr. Kerry started talking to him and
6 woke him up.
7 Q. You think Dr. Kerry would have remembered
8 that?
9 A. I don't have any idea knowing what Dr. Kerry
10 would remember.
11 Q. So what I would like to do, if we could just a
12 minute, because we're there, at this point --
13 Oh, I needed to make sure I'm clear. When you
14 say he was asleep within ten minutes after getting --
15 this man goes from cursing, raging, ranting,
16 threatening to sue everybody at 21:40 to being asleep
17 in ten minutes, right? That's what you want this
18 jury to believe? Is that the truth?
19 A. I want you to believe that he could do it in a
20 lot less than ten minutes. He could do in a matter
21 of seconds.
22 Q. Yes, sir.
23 A. He could go from doing all that, and you left
24 him alone, and he just, (indicating), go back to
25 sleep.
26 Q. Went right to sleep?
27 A. Yep, right to sleep.
28 Q. Now, at this point, you would expect that the
29 doctor would have indicated -- because you're worried
30 about a guy having a concussion, at that point,
31 right?
32 A. That's the reason we're doing the test.
53
17-30519.1337
1 Q. I mean, I know as a dad -- I have four kids --
2 that if somebody hits their head, you don't want them
3 to go to sleep because there may be a problem here.
4 And you don't want them to go to asleep. I mean,
5 isn't that common sense in everyday medicine?
6 A. Not necessarily.
7 Q. Not necessarily. It's okay for this guy
8 that's ranting and raving to go to sleep, huh? Does
9 that make any sense to you?
10 A. I don't really know how you could have kept
11 him awake without sitting there and shaking him
12 constantly or something like that. I don't. He was
13 highly intoxicated.
14 Q. Highly -- well, we know there were no drugs in
15 him?
16 A. No drugs were found.
17 Q. And I can't wait until we get to the alcohol
18 thing.
19 A. I can't either.
20 Q. So let's go ahead, and we're checking your
21 honesty against Dr. Bruce's report, which clearly
22 conflicts with yours.
23 A. I don't see that it does.
24 Q. You don't see that.
25 A. But you say that it does, so.
26 Q. With the exception that you said he was
27 calm -- we don't have to go back there, right?
28 You said that -- you're looking at me strange.
29 You said that this man was calm. Do we have to go
30 back and go over that one more time?
31 A. I believe that was Dr. Kerry that said the
32 one --
54
17-30519.1338
1 Q. You see, the problem with that, that's got
2 your signature on it. Let's go back to your
3 signature at this point.
4 A. Yes, I did check calm.
5 Q. I'm sorry?
6 A. I did check --
7 Q. You just forgot that already?
8 A. No. We've been turning back and forth quite
9 frequently. Go ahead. I'm sorry.
10 Q. Sir, this is a big problem for you, isn't it?
11 A. No, not a problem for me at all. I gave the
12 man the best medical care that I could give him when
13 he came into the emergency room. And if I was
14 working there again today and he came in in that
15 situation, I would do exactly the same things because
16 I don't know any other way to have done it. I mean,
17 we took care of it.
18 Q. Can I ask you something?
20 Q. And, again, maybe you can explain this to me.
21 How you can -- and I don't want to be -- if your
22 personality is flat, that means you have no emotion.
23 You're calm, at this point. And just -- and
24 Dr. Kerry agrees with that report, okay, because he
25 said the same thing to where he is staggering loud,
26 drunk, and can't walk without being held up by two --
27 a couple of policemen.
28 How does that happen?
29 A. I don't know, sir.
30 Q. It doesn't make any sense?
31 A. Well, like I said, in the process of making
32 your notes, which may be done a few minutes after
55
17-30519.1339
1 you've actually done the physical work that has been
2 doing, I undoubtedly neglected to write those things
3 down.
4 Q. And let's talk about your education.
5 A. Sure.
6 Q. What kind of trucks are you driving now?
7 MR. NORIEA:
8 Your Honor, let me object to that,
9 education --
10 THE COURT:
11 Sustained.
12 MR. REGAN:
13 Oh, excuse me. His education. He's
14 testified as a nurse. If I could ask
15 him --
16 THE COURT:
17 You're asking him about his
18 education. What type of trucks he's
19 driving has nothing to do with his
20 education. And what he's doing now has
21 nothing to do with what he was doing back
22 there and what his educational background
23 is.
24 Move on.
26 Q. Yes, sir. You obtained a registered nurse
27 degree; is that right?
28 A. I did.
29 Q. From the University of Mississippi?
30 A. No, from the University of Southern
31 Mississippi.
32 Q. And that's in what city?
56
17-30519.1340
1 A. Hattiesburg.
2 Q. Yes, sir. And it took you, what, six years to
3 get that?
4 A. No. It took me five years.
5 Q. Yes, sir, because you couldn't pass the basic
6 chemistry course. In fact, you had to leave school
7 because you couldn't pass the basic chemistry, right?
8 A. No. It's not that I couldn't pass it. But
9 you had to have a certain grade. So I went to junior
10 college, backed up, and went to JCJC, and made an A
11 in that course and the lab and came back and finished
12 up my nursing degree.
13 Q. Yes, sir. And you took that, was that 103,
14 chemistry?
15 A. I believe it was 102.
16 Q. Basic first year of chemistry, right?
17 And how many years did it take to get past
18 102, basic chemistry?
19 A. I believe that was the second time that I took
20 it.
21 Q. Yes, sir. And if I could, if I could just go
22 a little bit further, at this point.
23 But you're working for the Wright
24 Transportation Company. And, again, if this is
25 objectionable, I don't mean to cross -- or the D & E
26 Trucking?
27 A. I'm not working for either one of them.
28 Q. You have, in fact, worked -- do you know how
29 many different hospitals you've worked at?
30 A. Sure, a bunch.
31 Q. Bunch. So -- and you hold the sheriff
32 responsible -- this sheriff in this parish
57
17-30519.1341
1 responsible?
2 A. I don't know if he was -- I don't know if he
3 was the one who actually elected -- that was unfair
4 awhile ago because it may have been his predecessor.
5 Q. Sure. But you hold the sheriff of this good
6 parish of St. Tammany responsible for you getting
7 fired?
8 A. Do you want to hear the story?
9 Q. Sir, I just want to ask you. Who do you hold
10 responsible for you getting fired? You said the
11 sheriff. Are you changing that now?
12 A. No. The Sheriff's Department brought a
13 suicidal, homicidal patient into the emergency room
14 in handcuffs.
15 Q. Yes, sir.
16 A. Dropped him off.
17 Q. Yes, sir.
18 A. Left him without being handcuffed anymore and
19 said it was my responsibility to make sure that this
20 man didn't leave. And I said that that was ignorant
21 and stupid. And a couple of weeks later I was called
22 in and told: You know what, you showed disrespect to
23 our police officers and you're out of here. And that
24 was it. That was the reason why.
25 Q. Let me go back to your job as a nurse. We're
26 not going to be talking about trucking.
27 First of all, how many cities in Texas have
28 you worked as a nurse?
29 A. Cities in Texas?
30 Q. Start with Dallas.
31 A. Three or four.
32 Q. Three or four. That's in Texas?
58
17-30519.1342
2 Q. How about in Arizona? How many cities in
3 Arizona?
4 A. Three.
5 Q. Three different cities in Arizona?
6 A. Right.
7 Q. How many cities in Vermont?
8 A. Vermont? Let's see, two, I believe. Not --
9 just one in Vermont.
10 Q. How many cities in Colorado?
11 A. Just one. But I worked at a couple in New
12 Hampshire. I worked at two or three in North
13 Carolina.
14 Q. I was getting there.
15 A. Right. You have to realize, this, as a travel
16 nurse, you sign a three-month contract. You go there
17 because that's what they want, is somebody to come
18 and work for three months. You go there and you work
19 and you do your time. And sometimes you get extended
20 and they keep you for another three months. Or
21 sometimes they just say we don't need you anymore;
22 you know, we've hired staff to fill out staffing
23 positions. And so -- and that's the way it is with
24 travel nurses. You work at lots and lots of
25 hospitals.
26 Q. Let me finish the list, and we'll go back
27 about we-just-don't-need-you-anymore situation.
28 MR. NORIEA:
29 Your Honor, let me object to the
30 relevance.
31 MR. REGAN:
32 It's very relevant. Nursing and
59
17-30519.1343
1 training education.
2 THE COURT:
3 Approach the bench, Counsel.
4 (At this time, a discussion was held
5 at the bench.)
6 Retire the jury.
8 retired.)
9 THE COURT:
10 You may step down, sir.
11 (At this time the following
12 discussion was held at the bench:)
13 THE COURT:
14 Mr. Regan.
15 MR. REGAN:
16 Yes, sir.
17 THE COURT:
18 I've given you great latitude in
19 your cross-examination of this witness.
20 You cannot continue to make comments
21 between your asking the questions on his
22 testimony or on anybody else's testimony.
23 Please try to limit asking the same
24 questions to three or four times.
25 MR. REGAN:
26 Yes, sir.
27 THE COURT:
28 And we need to move this case along.
29 You made lot of good points. But you
30 can't keep arguing with the witness.
31 MR. REGAN:
32 Yes, sir.
60
17-30519.1344
PHILIP DUEITT
1 THE COURT:
2 So let's try to limit our
3 cross-examination and get this case to a
4 conclusion.
5 MR. REGAN:
6 Yes, sir, and I'll follow your
7 instructions.
8 THE COURT:
9 Thank you.
10 Ten minute recess.
12 THE COURT:
13 You may be seated.
14 MR. NORIEA:
15 Judge, should the witness get back
16 on the stand?
17 THE COURT:
18 Yes.
19 Anything, Counsel, before we bring
20 in the jury?
21 MR. NORIEA:
22 Not by the State, Your Honor.
23 THE COURT:
24 Very good.
25 MR. REGAN:
26 Not by the defense.
28 returned.)
29 THE COURT:
30 Please be seated.
31 You may continue.
32 MR. REGAN:
61
17-30519.1345
PHILIP DUEITT
1 Thank you.
3 Q. And just -- we stopped a minute ago, and we
4 were just wrapping up the locations of where you
5 worked. You threw in two more to me. You threw in
6 two in North Carolina?
7 A. Yes, sir.
8 Q. And you threw in two in -- you threw in two in
9 New Hampshire for us?
10 A. I believe that's right.
11 Q. And you say you never got fired from any of
12 these jobs; you just never got asked back, did you?
13 After your contract, you just left, and they didn't
14 want you back?
15 A. Most of the time, as a travel nurse, you
16 don't. They hire you because they have a shortage in
17 their department and whenever -- if they hire people
18 from locally while you're there, then whenever your
19 contract is up, they don't ask you back because they
20 fulfilled their own staffing needs by hiring someone
21 from their community.
22 Q. Sir, let me ask you, most of these places, you
23 only worked there for one contract, and they let you
24 go?
25 MR. NORIEA:
26 Your Honor, let me object. It's
27 been asked and answered many times.
28 MR. REGAN:
29 We need an answer to that.
30 THE COURT:
31 Overruled.
62
17-30519.1346
PHILIP DUEITT
1 Q. Most of the contracts that you had were
2 one-time contracts, and they didn't invite you back,
3 did they?
4 A. Some of them were, some of them weren't.
5 Q. What is your -- and, again, I think this is
6 important. Tell the jury, what's your attitude
7 towards nursing? Is that a manly job?
8 A. There's nothing the matter with nursing at
9 all, nothing whatsoever. Nothing. Nursing is the
10 kind of profession that, quote, uses people up.
11 There's a lot of stress. There's a lot of strain.
12 There's a lot of pressure. And you get to a point
13 where sometimes you just don't want to put up with
14 the pressure anymore. And when you know how to do
15 other things, why should you have to? If you drive a
16 truck, go drive a truck for a while.
17 Q. Sir, do you remember saying under oath at this
18 point that nursing was not a manly profession?
19 MR. NORIEA:
20 Judge, let me object to the
21 relevance.
22 THE COURT:
23 Sustained.
24 MR. REGAN:
25 Excuse me, Judge --
26 THE COURT:
27 It's not relevant, Mr. Regan.
28 MR. REGAN:
29 Yes, sir.
30 And I do note an objection, at this
31 point.
32 THE COURT:
63
17-30519.1347
PHILIP DUEITT
1 So noted.
3 Q. Is your attitude the same today with respect
4 to nursing as it was?
5 MR. NORIEA:
6 I'm going to object to the relevancy
7 of that question, Judge.
8 THE COURT:
9 Sustained. None of this is
10 relevant --
11 MR. REGAN:
12 Judge, I do --
13 THE COURT:
14 -- to this case.
15 MR. REGAN:
16 Yes, sir.
17 THE COURT:
18 Note your objection.
19 MR. REGAN:
20 Thank you.
22 Q. Sir, you've indicated, at this point, that
23 this young man had no injuries to his chin, right?
24 A. In -- I can't -- whenever you looked at the
25 magnitude of what was going on with his eye, I cannot
26 swear that there may not have been something on his
27 chin. But I did not note it at the time.
28 Q. Yes, sir. Let me show you Defense Exhibit 10,
29 which has already been identified. And you can see
30 the date. It was taken right after the incident.
31 Do you doubt -- or can you tell us whether or
32 not that injury -- you told the DA he didn't have any
64
17-30519.1348
PHILIP DUEITT
1 injury to the chin, right?
2 A. He has a little bo-bo.
3 Q. And do you know if any asphalt came out of
4 that little bo-bo?
5 A. Not that I'm aware of. I was not aware of --
6 like I say, this was not bleeding whenever he came
7 in. Because if it would have been, then I would have
8 cleaned it and would have noted it.
9 Q. If you did a good job you would have, right?
10 A. I always do a good job, sir. You would be
11 lucky if you had me as a nurse whenever you come in
12 whenever you were hurt.
13 Q. Yes, sir.
14 Sir, I'm going to ask you this, and please
15 tell the jury the truth. You didn't even take his
16 clothes off, his shirt or his pants off, did you?
17 A. Didn't even take his -- sure, we did.
18 Q. Well, sir, take a look. I'm going to show you
19 pictures of his chest, that there are boot marks on
20 his chest.
21 MR. REGAN:
22 And our next exhibit is what?
23 THE CLERK:
24 24.
25 MR. REGAN:
26 24, 25.
27 MR. NORIEA:
28 Your Honor, I'm going object to the
29 relevance of any of these pictures --
30 MR. REGAN:
31 They're very relevant.
32 MR. NORIEA:
65
17-30519.1349
PHILIP DUEITT
1 -- showing clothes --
2 Wait. Where?
3 MR. REGAN:
4 I'm sorry. You see the footprint
5 there and the footprint there?
6 MR. NORIEA:
7 No. Unless it's a ghost.
9 Q. I'm going to show my next exhibits for
10 identification, 24 and 25 --
11 THE COURT:
12 Mr. Noriea's objection is overruled.
13 You may proceed.
15 Q. Now, let's look to the picture here. You see,
16 there's a body here.
17 A. Sir, this was taken on sometime on the 17th.
18 Q. Yes, sir.
19 A. This in no way reflects whether or not we took
20 his clothes off of him or not.
21 Q. Well, let's see what we can find.
22 A. Definitely it was not -- I don't believe that
23 these photographs were taken while he was -- while he
24 was at the Heart Hospital. And that's the only thing
25 that I can testify about, is what happened there.
26 Q. Okay. Do you have anything else? I'm going
27 to ask you a couple more questions.
28 Don't put them down. You've got to hold
29 those, please.
30 A. I don't want to hold them.
31 Q. You don't want to hold them?
32 A. No.
66
17-30519.1350
PHILIP DUEITT
1 Q. Well, sir, what's the date of those
2 pictures --
3 THE WITNESS:
4 Do I have to hold those, Judge?
5 THE COURT:
6 Just answer his questions.
7 THE WITNESS:
8 Okay.
10 Q. What's the date on those photographs?
11 A. 17th.
12 Q. Of what year and what month?
13 A. 2006.
14 Q. 2006.
16 Q. Let me -- let's make sure we're -- Dueitt.
17 And let's make sure we're on the right page here.
18 What we're dealing with is 2006. In what
19 month?
20 A. The 11th month.
21 Q. The day?
22 A. 17th.
23 Q. The year?
24 A. 2006.
25 Q. 2006. What day of the month in November 2006
26 did he leave your hospital to go to Hattiesburg?
27 A. He left ten minutes to three in the morning.
28 Q. What was the date?
29 A. On the 17th.
30 Q. Of what?
31 A. November.
32 MR. NORIEA:
67
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1 Your Honor, we'll stipulate it's the
2 date that he's writing down. That will
3 save us some time.
5 Q. And the dates of the photographs, please?
6 A. Yes. I've already said --
7 MR. NORIEA:
8 We'll stipulate to those too, Judge.
9 MR. REGAN:
10 Stipulate to those photographs.
11 Thank you.
12 THE WITNESS:
13 Is there a time these were taken?
14 THE COURT:
15 Just answer the questions.
17 Q. Do you have your medical exhibit up there
18 anywhere?
19 A. No, you have it in your hand.
20 Q. I've got a couple -- let me give you this one.
21 Take a look at the picture of his body,
22 please.
24 Q. This is around 14.
25 Do you see any marks on his body, his elbow or
26 his chest with the footprint?
27 A. No.
28 Q. No. His clothes never came off of him, did
29 they?
30 A. Yeah, we put him into a gown.
31 Q. His clothes never came off of him?
32 A. No, sir, we put him in a gown.
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1 Q. They didn't. Let me show you his clothes.
2 MR. REGAN:
3 I'd mark this in globo -- we have
4 three pieces.
5 And we'd go to 26.
7 Q. A; he was wearing this Loyola Louisiana shirt?
8 A. I don't know what kind of shirt --
9 Q. He's a graduate of Loyola?
10 A. I don't remember what kind of shirt he was
11 wearing.
12 Q. And he had a sweater. November 16, 17, and a
13 sweater, right?
14 A. I don't know what he was wearing. I didn't
15 record that. I don't remember.
16 Q. Yes, sir. And not only did you not record it,
17 nobody took them off of him either, did they? That's
18 how you examined him?
19 A. His basic first examination may have been like
20 that. But before he left he had on a pair of scrubs.
21 Q. Sir, did you mark that anywhere in there?
22 A. No, sir.
23 Q. Excuse me?
24 A. I said no, sir.
25 Q. No, okay.
26 Let's go on to something --
27 MR. REGAN:
28 I'd offer --
30 Q. Do you object -- do you think that's not his
31 clothing, with the blood or anything?
32 A. I don't have any earthly idea whose clothing
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1 that is. That could very well be yours, your dog's
2 blood. I don't know. Have you done DNA testing on
3 that to make sure that it is his blood?
4 Q. No, sir, we've had testimony that those are
5 his clothes and pictures.
6 A. Well, we had mine about a lot of things, too,
7 but you don't seem to believe me --
8 Q. Now, if we could go on, please.
9 Let us go through -- first of all, we know,
10 from looking at your report -- which you have?
11 A. Yes, sir.
12 Q. How did he get admitted? Tell the jury what
13 he said as to why he was being admitted. Tell the
14 jury. Why was he being admitted?
15 A. Because he had a contusion in his -- and
16 laceration.
17 Q. I'm sorry?
18 A. Laceration to his left eye.
19 Q. Sir?
20 A. Because he had contusion, laceration to his
21 left eye.
22 Q. That's for sure. But go back to your medical
23 records and see if, in fact, he got admitted because
24 of a fight with police?
25 A. We covered that whenever we were in that,
26 whatever that other hearing was. That's something
27 that's generated by the people doing the admissions.
28 THE COURT:
29 Mr. Dueitt, answer his questions.
30 THE WITNESS:
31 Yes, sir. I'm sorry.
32 That sheet where it says that, I had
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1 nothing to do with it. That is a sheet
2 that is generated by the people in the
3 admissions part of the thing. And where
4 they got that information, I don't know.
5 I have no knowledge.
7 Q. Let's see if we can logically come to a
8 conclusion. He comes into the hospital, according to
9 you, at this point, complaining about the police,
10 right?
11 A. Whenever he came into the hospital, he came in
12 with a bad contusion to his left eye, and he was
13 telling everybody that he was going to sue us all;
14 that he was going to sue us and that they were going
15 to own us. And that was it.
16 Q. Okay.
17 A. There was no complaint by him about anything
18 for a good long time. And that had nothing -- what
19 happened before he came into the hospital had
20 absolutely nothing to do with the medical care that I
21 gave Mr. Gates. None.
22 Q. Why do we have this information regarding
23 Shane Gates? And it says Admit DX -- admit DX.
24 Admit DX, fight with police. Why would the hospital
25 put that in there if that's not what he told you?
26 A. I don't know.
27 Q. Don't know, okay.
28 A. I have no knowledge of how any of this
29 information on this sheet --
30 Q. Yes, sir.
31 A. -- gets done.
32 Q. Yes, sir.
71
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1 A. This was done by someone else.
2 Q. Yes, sir.
3 A. I cannot answer any questions about this sheet
4 of paper.
5 Q. Yes, sir.
6 And you also told this jury that he was so
7 disoriented -- even though Dr. Kerry disagreed, he
8 was so disoriented he didn't know where he lived or
9 what his phone number was or anything else. Look at
10 this sheet. I'm looking at Page 3. Flip to Page 3.
11 Let's see how true that is now. Page 3.
12 A. I told you I cannot give you any stuff. I
13 know that it was my opinion, whenever he first came
14 in, that he was choosing not to give us answers to
15 some questions.
16 Q. Yes, sir. But whoever -- this record has been
17 brought in by the District Attorney and given to you?
19 Q. So whatever it is, it's produced.
20 Let's look -- you've got Page 3?
21 A. Page 3.
22 Q. Let's see what -- he gives an address. Where
23 does he give -- his name is Shane M. Gates, right?
24 A. Yes, sir.
25 Q. Let's verify this. He says he lives in
26 Slidell?
27 A. Yes, sir.
28 Q. And, at this point, we know that the address,
29 he gives 56345 McManus Road?
30 A. Yes.
31 Q. No reason to doubt that. And give the jury
32 the phone number he gives as his home phone number.
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1 A. 985-845-1739.
2 Q. Yes, sir. And then as we go down here, at
3 this point, we go down further. Do we, in fact,
4 see -- how do you think they come up with this
5 information if he refused to give the information?
6 A. I don't have any earthly idea.
7 Q. Yes, sir. But, according to you, he was so
8 intoxicated and out of it that he didn't even know
9 his own phone number where he lived, right?
10 A. I don't believe that I ever said that.
11 Q. Yes, sir. And the fight with the police,
12 that's the first time you learned of that, fight with
13 police?
14 A. This, right here, there was -- there was no
15 notation in any of my documentation about a fight
16 with police.
17 Q. Yes, sir.
18 A. There was no documentation anywhere, that I
19 know of, that I wrote anything about a fight with the
20 police. This paper was generated by someone else.
21 Q. Yes, sir.
22 A. And how and when they got this information, I
23 have no knowledge of.
24 Q. Fair enough, at this point.
25 You don't disagree with the accuracy of that
26 information, right?
27 A. I don't have any earthly idea whether it was
28 accurate or not. I don't know what Mr. Gates' home
29 address was.
30 Q. Yes, sir.
31 A. Or what his telephone number is or what his
32 spouse's name is.
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1 Q. Based on what you heard him threatening to sue
2 the police, basically have their job, what they did
3 to him, do you think that a fight with police has
4 been made up?
5 A. I don't have any earthly knowledge --
6 MR. NORIEA:
7 Objection, Your Honor --
8 THE WITNESS:
9 -- of anything that happened --
10 MR. NORIEA:
11 -- objection, Your Honor. It's been
12 asked and answered --
13 MR. REGAN:
14 I'll move on.
15 THE COURT:
16 Sustained.
17 MR. REGAN:
18 I'll move on.
19 THE COURT:
20 Sustained.
21 You don't have to say anything else.
22 THE WITNESS:
23 Okay. Thank you, sir.
25 Q. Okay. Now, how quickly did he fall asleep
26 after he came in? Just give me --
27 MR. NORIEA:
28 Objection, Your Honor. It's been
29 asked and answered.
30 MR. REGAN:
31 I absolutely have a question
32 regarding that. You said ten minutes, and
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1 I'll answer it for you.
2 THE WITNESS:
3 No, sir, I didn't say ten minutes.
4 THE COURT:
5 Wait, wait. Then rephrase your
6 question --
7 MR. REGAN:
8 Yes, sir.
9 THE COURT:
10 -- and ask a different question
11 because that one has been asked and
12 answered several times.
14 Q. Sir, did you tell the jury the truth today, or
15 did you tell the truth under oath when you said that
16 Shane spent the first hour or an hour and a half
17 threatening to sue them?
18 MR. NORIEA:
19 Your Honor, let me object to that
20 question. That question has been asked
21 and answered too.
22 MR. REGAN:
23 No, no.
24 THE COURT:
25 I'm going to overrule that.
27 Q. Back to you again. Did you tell the jury the
28 truth that this man fell asleep right away and Dr.
29 Kerry -- before Kerry saw him? Or did you tell the
30 truth under oath on March 11, 2011 --
31 MR. NORIEA:
32 Your Honor --
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2 Q. --- when you said --
3 MR. NORIEA:
4 -- this is an improper way to
5 impeach the witness. I'm objecting to the
6 form of the question.
7 THE COURT:
8 Wait.
9 Rephrase your question --
10 MR. REGAN:
11 Yes, sir.
12 THE COURT:
13 -- Mr. Regan.
15 Q. Sir, do you remember saying, at this point,
16 under oath, in 2011, that Shane Gates spent the first
17 hour, and an hour and a half threatening to sue the
18 police?
19 A. Every time Mr. Gates was stimulated, whether
20 it was to take his blood pressure or whether it was
21 to check his wound to see -- make sure it wasn't
22 bleeding, any time that something happened, Mr. Gates
23 was stimulated, he would wake up, and he would rant
24 and he would rave. As the night progressed and
25 his -- and he, for lack of a better word, sobered up,
26 that behavior improved. He got where he didn't do it
27 as often. But, yes, for the first hour to an hour
28 and a half, every time that he was stimulated, he
29 woke up threatening and being abusive.
30 Q. Yes, sir. And, again, I don't have to go back
31 to the word "calm", right?
32 A. I'm not going to let you twist my words, sir.
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1 I refuse to let you twist my words.
2 Q. Yes, sir. The report says calm. Do you need
3 to go back to that?
4 A. I already explained that.
5 Q. Calm.
6 A. When you're asleep, you're calm.
7 Q. Let's take it one step further, sir. One step
8 further.
9 Do you remember saying under oath that the
10 reason you didn't write ranting and raving and
11 cursing because, quote, you didn't want to embarrass
12 him? Do you remember saying that under oath, that
13 that's --
14 MR. NORIEA:
15 Let me object to the form of the
16 question, Judge. And all this has been
17 covered --
18 MR. REGAN:
19 Oh, certainly not.
20 MR. NORIEA:
21 -- in some form or fashion.
22 THE COURT:
23 It has. But I'm going to allow this
24 question. Let's try to get to the end of
25 it.
27 Q. On March 2, 2011, did you say --
28 A. I said that under oath.
29 Q. When you were asked as to why you didn't put
30 the ranting, raging, cursing, and everything in your
31 report, you explained your conduct in not putting it
32 in there because, quote, you didn't want to embarrass
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1 Mr. Gates, right?
2 A. That's what I said.
3 Q. And you were being deposed because you are
4 being sued in federal court, right?
5 MR. NORIEA:
6 Objection, Your Honor --
7 THE COURT:
8 Don't make comments about --
9 MR. REGAN:
10 Excuse me.
12 Q. This sworn testimony you gave was in -- this
13 sworn testimony on March 2, 2011, where you said you
14 didn't put in your medical records because you didn't
15 want to embarrass Mr. Gates, that was in a sworn
16 statement you gave under oath regarding the federal
17 civil litigation?
18 MR. NORIEA:
19 Object, Your Honor.
20 THE COURT:
21 Sustained. He just answered the
22 question.
23 It's already been answered.
24 Move on.
25 MR. REGAN:
26 Yes, sir.
28 Q. So let's go to the blood alcohol, okay. We've
29 been waiting to hear about that. If you would help
30 me with a few details. First of all, I want to -- I
31 want to just go through a couple -- urine test was
32 negative, right? Right?
78
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1 A. Urine drug test was negative.
2 Q. Glasgow was best you can get, 15 out of 15,
3 right?
4 A. It was.
5 Q. Now, let's talk about the blood alcohol test
6 that you've testified about, okay?
7 First of all, how important it is -- is it --
8 tell the jury -- that you take the blood from a human
9 being in a proper procedure? How important is the
10 procedure?
11 A. There's a procedure that you follow when you
12 draw blood.
13 Q. I'm sorry. Excuse me?
14 A. I said there is a procedure that you follow
15 whenever --
16 Q. Right.
17 A. -- you draw blood.
18 THE COURT:
19 Mr. Regan, before you continue on,
20 would you move the clothes and put them
21 back?
22 MR. REGAN:
23 Yes, sir.
24 I'd offer this into evidence --
25 MR. NORIEA:
26 I'd object to that, Your Honor.
27 It's irrelevant to this case.
28 THE COURT:
29 I'm going to sustain the objection.
30 MR. REGAN:
31 Note my objection.
32 THE COURT:
79
17-30519.1363
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1 So noted.
2 MR. REGAN:
3 I'm going to offer into evidence
4 Exhibits No. 25 -- 24 and 25. 10 is
5 already in.
6 MR. NORIEA:
7 I'm going to object to those, Your
8 Honor, as they are irrelevant to this
9 case.
10 MR. REGAN:
11 Excuse me. He brought up the issue
12 regarding chin injury. These show chin
13 injury.
14 The State brought that up.
15 THE COURT:
16 There's been no testimony, Mr.
17 Regan, that identifies those photographs
18 as being your client or as being -- he did
19 not see those injuries, apparently. So
20 I'm not going to allow those exhibits into
21 evidence either.
22 MR. REGAN:
23 Judge, respectfully, Mr. Gates
24 testified about the injuries to his chin,
25 at this point. And we have pictures --
26 THE COURT:
27 The photograph of the chin is not in
28 evidence?
29 THE CLERK:
30 It's in.
31 THE COURT:
32 It's in. We're talking about two
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1 photographs of his chest, which I heard no
2 testimony.
3 MR. REGAN:
4 But we haven't gotten there yet, if
5 I could. I'll offer those.
6 The two photographs of his chest, at
7 this point, 24 and 25. Okay.
8 MR. NORIEA:
9 Your Honor, I'm going to object.
10 He's already asked and answered, this man.
11 He doesn't know anything about these
12 photographs.
13 THE COURT:
14 Mr. Dueitt, do you recognize those
15 photographs? Do you know who that is in
16 those pictures?
17 THE WITNESS:
18 I don't, Your Honor.
19 THE COURT:
20 Objection sustained.
21 MR. REGAN:
23 THE COURT:
24 So noted.
26 Q. Okay. I think we're clear.
27 Let's go to the alcohol, okay.
28 There's procedures that are required to insure
29 that you get the correct result, right?
30 A. There are procedures that you use when you
31 draw blood, and I followed them.
32 Q. I'm sorry?
81
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1 A. There are procedures that we follow whenever
2 we're starting an IV and/or drawing blood, and I
3 followed those procedures.
4 Q. Yes, sir. And let me ask you. You see,
5 drawing blood for alcohol analysis requires a certain
6 procedure, does it not?
7 A. I did not draw that blood for alcohol
8 analysis.
9 Q. You didn't?
10 A. No.
11 Q. So, in other words, when you drew that blood,
12 at this point, you were not directed to draw blood in
13 a certain way to preserve it for alcohol content,
14 correct?
15 A. The -- it's my understanding that the tubes
16 and the way that you do it whenever you're drawing
17 blood normally cover that in -- the way it's done as
18 if you were drawing it specifically to be for alcohol
19 analysis. However, I'm not sure about that. There's
20 bound to be somebody from the lab that can answer
21 those questions for you with authority. And I'm not
22 an authority on what -- lab tests.
23 Q. I understand that because let's do the
24 checklist on that. You do not perform the test on
25 the blood that's drawn?
26 A. I do not.
27 Q. Number two, you're not trained, at this point,
28 to run any of the machinery that determines the
29 alcohol blood content?
30 A. No, sir.
31 Q. Yes, sir. And, at this point, you -- all you
32 did was draw blood, right?
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1 A. I started his IV. And in the process of
2 starting his IV, I collected blood into the tubes,
3 labeled it correctly, put the time that I -- that I
4 collected the specimen, put my initials on it, and
5 sent it to the lab.
6 Q. Yes, sir. And, in fact, you don't remember
7 the colors of each one of the vials that you
8 preserved the blood in, do you?
9 A. There are several different colors of tops.
10 Red tops --
11 Q. Yes, sir.
12 A. -- purple tops, yellow tops, blue tops, green
13 tops. Some of them can be used to do the same thing.
14 Reds, greens, and yellows can all be done -- used to
15 do chemistries on them.
16 Q. Yes, sir.
17 A. Purples are for like CBCs and that kind of
18 thing. And blues are for PTs and PTTs to be drawn
19 into. I drew a rainbow. I drew some of everything.
20 Q. Yes.
21 A. I didn't know whether or not this gentleman
22 was going to go to surgery, if he was going to even
23 have to have a type and cross done, or something like
24 that. And if he did, I didn't want that procedure
25 of -- or the time that it took for them to get him
26 ready for surgery, if he had to go, to be slowed up
27 because we didn't send blood for a type and cross.
28 So we drew a rainbow. That's what we call it, a
29 rainbow. Draw a tube of everything.
30 Q. Yes, sir. And how many tubes did you use for
31 the DWI test, for the blood alcohol test?
32 A. I didn't draw any blood specifically for a DWI
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1 test.
2 Q. Are you aware there are certain vials you have
3 to use so that they are --
4 A. I think --
5 MR. REGAN:
6 Can I ask --
7 THE COURT:
8 Let him finish the question, and
9 then you can give an answer.
11 Q. Are you aware there are certain vials, certain
12 colors that have to be used, to, at this point,
13 freeze the blood satis (phonetic) with respect to
14 alcohol? Are you aware of that content?
15 A. We always sent -- when we were doing a
16 specific alcohol, if I'm not mistaken, it was always
17 sent in a red top tube.
18 Q. Well, sir, let me ask you, in this particular
19 case, at this point, how many -- did you definitely
20 use a red tube -- top?
21 A. Yes, I definitely drew a red top.
22 Q. How many?
23 A. I think I drew -- I'm certain I drew one. And
24 I think I drew two.
25 Q. Very good. And you also know that you have to
26 use a special vial, at this point -- why do you use a
27 particular vial for a blood alcohol test?
28 A. Sir, I don't know. They just tell you what
29 color tube they want it in, and you send it to them.
30 Q. You don't understand why you do that? Why a
31 particular vial has to be used for blood alcohol test
32 if you're going to get an accurate test?
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1 A. I don't know that I have to know that.
2 Q. Did you personally go up to the lab when they
3 tested any of the vials that you sent up there?
4 A. No, sir.
5 Q. Were you asked any questions to point out
6 which vials you used for this test or that test or
7 anything like that?
8 A. No, sir.
9 Q. Yes, sir. So let's go back. Tell me the
10 difference between a procedure used for drawing blood
11 for testing for alcohol purposes versus drawing blood
12 for other purposes. What, if anything, differs?
13 A. I don't know that there's anything different
14 in the procedure. Now, if you can show me that in
15 writing, I'll be more than happy to believe that.
16 But otherwise I think you're blowing hot air.
17 Q. Now, Mr. Dueitt, do you not know, as you sit
18 here today -- how many years were you a nurse? Let's
19 find that out.
20 A. I started in '92, and I was there in 2006.
21 Q. How many years?
22 A. I don't know. You do the math.
23 Q. This jury can.
24 Do you know the difference in the material
25 used to wipe the surface of the skin? And do you
26 know that using an alcohol wipe significantly
27 adversely affects the results -- using alcohol
28 versus --
29 A. I used Betadine.
30 Q. I'm sorry?
31 A. I used Betadine.
32 Q. Let's make a note of that.
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1 You used what? Spell it for me.
2 A. B-E-T-A-D-I-N-E.
3 Q. And why did you use Betadine rather than an
4 alcohol wipe?
5 A. Because that's what came in the IV start kit.
6 Q. You see, sir, you would agree with me when I
7 say that using an alcohol wipe would affect the
8 results? Do you know that?
9 A. I don't know.
10 MR. NORIEA:
11 I'm going to object to that, Your
12 Honor. It's of no relevance, and he
13 already testified --
14 MR. REGAN:
15 It's right on point. It's the whole
16 problem --
17 THE COURT:
18 Sustained.
20 Q. Okay. Sir, why do you use Betadine versus
21 alcohol?
22 MR. NORIEA:
23 I'm going to object, Your Honor.
24 It's asked and answered.
25 MR. REGAN:
26 Judge, may we have a side bench?
27 This is absolutely --
28 THE COURT:
29 I'm going to allow him to answer the
30 question.
31 MR. REGAN:
32 Thank you.
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2 Q. Do you know why you use Betadine instead of
3 alcohol?
4 A. I think the reason why you do it -- because
5 I've never done any research on this, personally. I
6 think that the reason that you use Betadine rather
7 than alcohol is because -- and only if you don't
8 allow the alcohol to dry properly, to dry properly
9 before you draw the blood, that there can be -- it
10 can cause there to be a difference in the alcohol.
11 But alcohol was not used. And everything was dried
12 before the IV was started.
13 Q. Well, I asked you, Mr. Dueitt, under oath --
14 A. Yes, sir.
15 Q. -- under oath --
16 A. Under oath.
17 Q. -- on March 2nd, last year, you said, under
18 oath: I'm not even sure if you used alcohol or not.
19 It may have been iodine, at this point; it may have
20 been alcohol. That's what you said. It may have
21 been alcohol; it may have been iodine. That's what
22 you said under oath. What's the truth now? Now
23 you're going to tell the jury you used Betadine?
24 A. I believe, to the best of my knowledge, that's
25 what I used.
26 Q. Would you like to read what you said?
27 A. No, you just read it.
28 Q. Do you admit that that's what you said?
29 A. If that's what it says there, it must be --
30 Q. Must be true?
31 A. The recorder that was recording it --
32 Q. So were you telling the jury the truth about
87
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1 Betadine --
2 MR. NORIEA:
3 Objection, Your Honor. It's gone
4 over three times.
5 MR. REGAN:
6 This is the key to --
7 MR. NORIEA:
8 Repetitive --
9 MR. REGAN:
10 -- to this whole --
11 MR. NORIEA:
12 -- argumentative.
13 THE COURT:
14 Sustained.
16 Q. Now, since you prepared -- you've met with
17 this man many times preparing for trial, right?
18 A. I never saw that man before Tuesday.
19 Q. You never saw Nick Noriea before? Come on.
20 A. Never.
21 Q. You've been here for how many days?
22 A. I told you I never saw him before Tuesday.
23 Q. Oh, Tuesday, right.
24 And did you talk to other people in the
25 District Attorney's Office?
26 A. I certainly did.
27 Q. How many times?
28 A. I don't know. Every time you pulled one of
29 your stunts to delay stuff, then I had to wait. I
30 came to testify on Tuesday and go home, and I'm --
31 Q. Do you think that asking you whether or not
32 you said you may have used alcohol is a stunt, or is
88
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1 that a scientific issue?
2 A. I didn't say that at all.
3 Q. Okay, that's not a stunt, is it?
4 A. You know what you've done, sir. And that has
5 nothing to do with this case.
6 Q. We'll see.
7 A. Okay.
8 Q. Now, at this point, did they discuss with you,
9 at this point, the problem of your saying that you
10 used alcohol? Did they tell you about that problem?
11 A. No one has discussed any of that stuff with
12 me.
13 Q. Yes, sir. Okay. Do you remember saying that
14 you made sure -- at this point, with respect to the
15 alcohol -- or whatever you used --
17 Q. -- right? Don't know?
18 In fact, when you started to do the test, you
19 weren't specifically testing for B-A-T, for alcohol
20 content in the blood, correct?
21 A. Sir, for about the tenth time, I drew blood
22 whenever I was starting the IV so that the blood
23 would be in the lab so that whatever tests were
24 ordered there would be blood there to do those tests
25 with.
26 Q. Yes, sir. And it is a known fact that you
27 didn't want to embarrass Mr. Gates, because that's
28 what you told us under oath, right: You didn't want
29 to embarrass Mr. Gates --
30 MR. NORIEA:
31 Your Honor, let me object to that --
32 THE COURT:
89
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PHILIP DUEITT
1 Sustained.
3 Q. Did you want to be accurate with drawing blood
4 for a B-A-T?
5 MR. NORIEA:
6 Your Honor, I'm going to object to
7 that. It's a BAC. I don't know what the
8 BAT is from.
9 MR. REGAN:
10 No, no, no. Blood alcohol test is
11 also a BAC, but it's a blood alcohol test.
12 THE COURT:
13 Answer the question.
14 THE WITNESS:
15 What was the question?
17 Q. Sir, let me ask you something. You've seen a
18 lot of drunks, you say?
19 A. Seen a lot of what?
20 Q. Drunks come in?
21 A. I have.
22 Q. And we're looking at someone that would have
23 been three times more -- three-plus over being drunk,
24 at this point, okay. That's what that reading says.
25 .273. Do you agree?
26 A. I guess.
27 Q. And you cannot tell this jury that you didn't
28 make a mistake and use alcohol to rub the skin for
29 that blood draw?
30 A. I don't believe that I did.
31 Q. Well, sir, that's not what you said --
32 A. We've already been over that too.
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1 Q. Yes, sir. But, again, that's not what you
2 said under oath.
3 MR. NORIEA:
4 Objection, Your Honor. That's been
5 asked and answered.
6 THE COURT:
7 Move on.
9 Q. Now, when did you decide to change your
10 testimony from alcohol-- iodine to Betadine? That's
11 what you said today.
12 A. I believe -- and the povidone-iodine is
13 Betadine. I believe I used -- and I think I alluded
14 to that in that other testimony, that -- but I
15 couldn't be sure. But it makes no difference because
16 even if I had used alcohol, whenever I start an IV, I
17 wipe it with the thing, you allow it a few seconds to
18 air dry, then you wipe it again; you allow it a few
19 seconds to air dry, then you wipe it a third time.
20 And then you wipe it off. You dry it completely with
21 a cotton ball before you then make your puncture.
22 Q. Yes, sir. And I'm going to go from the
23 scientific to the common sense. Will you work with
24 me on this, please?
25 A. Okay.
26 Q. We don't know for sure what you used. You
27 said that. Can you explain to the jury how somebody
28 that is as drunk as .273, at this point, is meeting
29 with a doctor who's competent that finds no slurred
30 speech, nothing to indicate that he's intoxicated but
31 somehow he's got a score that can convict three
32 people of DWI, if you didn't make a mistake with the
91
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PHILIP DUEITT
1 alcohol?
2 A. There was no mistakes made, sir. And I can't
3 help what Dr. Kerry recorded.
4 Q. Uh-huh (affirmative response.)
5 A. Mr. Gates was drunk. And as his -- over the
6 period of hours that he was there, his behavior
7 reflected that he was sobering up, just as it does
8 with any other drunk when they come in and they're
9 given IV fluids to help dilute that alcohol content
10 in their blood.
11 Q. Go ahead. I'm listening.
12 A. And by the time he was -- he was in much
13 better shape whenever he was transferred out than he
14 was whenever he came in. He was not abusive at that
15 time, either.
16 Q. You see, it wasn't when he was transferred out
17 that the doctor wrote this. He wrote it either at
18 21:45 or 21:50 --
19 MR. NORIEA:
21 that question. It's been asked and
22 answered.
23 THE WITNESS:
24 Can I --
25 THE COURT:
26 He wants to answer.
27 THE WITNESS:
28 That thing you kept saying, 21:45.
29 I showed on the medical records where the
30 doctor actually said he filled that out at
31 01:00. That was several hours after he
32 actually did that assessment.
92
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PHILIP DUEITT
2 Q. Wait a minute. Wait. Let's make -- tell me,
3 sir, did he or did he not see him at 21:50? Is that
4 false?
5 MR. NORIEA:
6 Your Honor, let him finish answering
7 the question.
9 Q. Did he or did he not see him --
10 THE COURT:
11 I thought he finished answering the
12 question.
14 Q. Did he or did he not --
15 THE COURT:
16 Did you finish answering your
17 question?
18 THE WITNESS:
19 Yes, sir.
20 THE COURT:
21 Thank you. Okay. Ask the next
22 question.
24 Q. Did he did he not see him at 21:50?
25 A. He did.
26 Q. Now, three hours later -- I mean, if he didn't
27 get to him for three hours, we'd have a problem with
28 the medical services, right?
29 A. (Indicating).
30 Q. Yes, sir.
31 A. I offer into evidence. This. (Indicating.)
32 THE COURT:
93
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PHILIP DUEITT
1 Mr. Dueitt, you cannot offer any
2 evidence.
3 THE WITNESS:
4 Oh, I'm sorry.
5 THE COURT:
6 You can testify to the exhibit.
8 Q. I'm sorry. What are you trying to offer into
9 evidence?
10 A. This is the second sheet that you're getting
11 your 21:50 off of.
12 Q. Yes, sir.
13 A. And this is the time that he actually did
14 that.
15 Q. Right.
16 A. Which is 01:00.
17 Q. He did a final report and signed it, right?
18 A. I think that you'll find that this is when he
19 actually filled this out.
20 Q. Well, sir, let me flip back the other way.
21 We've already heard from him, at this point. And he
22 confirmed that he saw him at 21:50?
23 A. Yes, sir, yes.
24 Q. Do you think his memory got worse when he
25 filled that out --
26 A. I don't have any earthly idea. I'm just
27 trying to make a point to you and the people in the
28 jury that this -- because this says 21:50 here, does
29 not necessarily mean that this piece of paper was
30 signed -- or was completed at 21:50.
31 Q. Can you do one thing before we go? 21:50,
32 what does that 21:50 -- why is that spot filled in?
94
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PHILIP DUEITT
1 What does it say?
2 A. Time seen.
3 Q. Time seen. What does that mean, time seen?
4 Is it like I'm looking at you now, or is it time that
5 he's examined by the physician?
6 A. That means the first time that he's gone in
7 and seen by a physician.
8 Q. Okay. So the only -- you're explaining that
9 he's wrong because he forgot and he filled this
10 paperwork out three hours later?
11 A. No. I'm just bringing that to everybody's
12 attention that just because this thing says 21:50
13 does not mean that it was filled out at 21:50. It
14 would be quite impossible for him to fill that out
15 and see the patient at the same time.
16 Q. I do understand that. We're talking notes
17 now. And the question is, at this point, you worked
18 with Dr. Kerry for how long?
19 A. On and off, you know, whenever we were
20 scheduled to work together, for several months.
21 Q. Right. Did you ever find him to be
22 incompetent?
23 A. No.
24 Q. Did you ever find him to be neglectful?
25 A. No.
26 Q. Did you ever find him to have any mental
27 difficulties?
28 A. No.
29 Q. And you would believe him under oath as to
30 what he says, right?
31 A. I would also believe that he could see
32 somebody at 21:50 and complete this piece of paper at
95
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PHILIP DUEITT
1 01:00, too. That's not being neglectful; that's just
2 doing it when you make time to.
3 Q. Let's move the -- the blood. You take blood,
4 at this point. You sent it to the laboratory, right?
5 A. I did.
6 Q. And the laboratory guy is now dead; he's
7 not --
8 A. I don't have any knowledge of that.
9 Q. You have no knowledge, as you sit there, you
10 don't know that the man who ran this test is
11 deceased, back in 2007?
12 A. Somebody said he was, but I don't know. I
13 didn't know him personally.
14 Q. And you weren't there to do a checklist to see
15 what he did?
16 A. No.
17 Q. He didn't ask you whether you used alcohol or
18 Betadine or iodine, did he?
19 A. No.
20 Q. And you had no report that you sent up to the
21 lab saying: I drew this blood and I did not use
22 alcohol, right?
23 A. I drew the blood just like I told you, and I
24 sent it.
25 Q. What I'm saying, is there any paperwork the
26 jury can look at to show that you wrote that you used
27 iodine or anything else?
28 A. No.
29 Q. No. And back when you were questioned just a
30 year ago, why were you confused as to whether you
31 used alcohol or not?
32 MR. NORIEA:
96
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1 Your Honor, object. It's been asked
2 and answered.
3 THE COURT:
4 Sustained.
5 MR. REGAN:
6 I'm sorry?
7 THE COURT:
8 Sustained.
9 MR. REGAN:
12 Q. And I think, at this point, we're finished.
13 It will take someone who actually tested the
14 substance, right, the blood?
15 MR. NORIEA:
17 question. Is he making a speech, or
18 asking questions?
19 MR. REGAN:
20 I'm asking a question.
21 THE COURT:
22 Well, don't make a speech before you
23 ask a question.
24 MR. REGAN:
25 Yes, sir.
27 Q. Okay, the .273, you couldn't tell if it
28 was .273? It would take someone who did the test,
29 right?
30 MR. NORIEA:
31 Objection to that, Your Honor.
32 That's irrelevant.
97
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PHILIP DUEITT
1 MR. REGAN:
2 Who took --
3 MR. NORIEA:
4 He's --
5 THE COURT:
6 Rephrase your question.
7 MR. REGAN:
8 I will. I thank you, Your Honor.
10 Q. With respect to this, you can't say it's .273;
11 it would require the person who did the test, right?
12 MR. NORIEA:
13 Objection, Your Honor.
14 THE COURT:
15 Just ask him what he knows.
17 Q. Do you know if it would take the person who
18 actually did the test to know if he did it right?
19 MR. NORIEA:
20 Your Honor, let me object to that.
21 There's a medical tech that is going to
22 testify. This man drew the blood.
23 MR. REGAN:
24 I'm just asking if he knows.
25 MR. NORIEA:
26 He's not an expert on what Regan
27 wants him to be.
28 THE COURT:
29 Well, I'm going to let him answer
30 that question.
31 MR. REGAN:
32 Yes, sir.
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1 THE WITNESS:
2 This is -- with my limited knowledge
3 of what they do in the lab --
5 Q. What is your knowledge?
6 A. Very limited. It's very limited.
7 Q. I don't want to go to limited knowledge. We
8 need accurate information.
9 A. Okay, well, then you're going to have to take
10 what you can get, Mr. Regan.
11 MR. NORIEA:
12 -- ask him questions, Judge.
14 Q. Okay, the bottom line?
15 A. The bottom line is this. I know that they
16 do -- that they do checks daily on all that equipment
17 in the lab. To -- it's calibrated. It's done to
18 make sure that they are getting accurate readings.
19 Now, I don't know how often they do this whether it's
20 once a day, whether it's once a shift, whether it's
21 every two hours. I don't know how often that they do
22 these checks and tests.
23 Q. Yes, sir.
24 A. But I do know that the law requires that they
25 test those things and that they keep a record of
26 them.
27 Q. Yes, sir.
28 A. And that is all that I know.
29 Q. Right. So you don't know if the lab
30 technician that did this did the checks and did it
31 right, do you?
32 A. I don't.
99
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PHILIP DUEITT
1 Q. Thank you.
2 And do you have any explanation, any
3 explanation, how someone could have such a high blood
4 alcohol content and not have slurred speech and not
5 appear to be drunk to the doctor that examined him?
6 Give the jury an explanation, please.
7 A. Because they drank a lot of hooch.
8 Q. A lot of hooch.
9 A. Yeah, they drank a lot of beer and/or alcohol
10 and they tolerate it fairly well enough that it
11 really doesn't slur their speech that much. But
12 whenever they get -- I mean, they go to sleep
13 whenever you leave them alone. That's the only
14 explanation that I have. I did nothing wrong to this
15 man. The only thing that I did was try to give him
16 good medical care, which I think I did.
17 Q. Well, you didn't even take his clothes off to
18 examine his body.
19 A. That's your -- you say that.
20 MR. REGAN:
22 REDIRECT REBUTTAL EXAMINATION BY MR. NORIEA:
23 Q. Urine was drawn for the purpose of analyzing
24 what? Let's see what the urine was drawn to analyze.
25 That's in this record; is that correct?
26 A. Yes, sir.
27 Q. I believe it's on that page. Tell the jury
28 what controlled dangerous substances were tested for
29 in the urine.
30 A. -- benzodiazapine, cocaine, amphetamines. I
31 can't read what that one says. But opiates and
32 barbiturates and tricyclics, antidepressants.
100
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PHILIP DUEITT
1 Q. Urine was not sent to be tested for alcohol,
2 correct?
3 A. It was not.
4 Q. Okay. Now, was blood sent to be tested for
5 alcohol?
6 A. Yes, sir.
7 Q. So that was the only bodily substance that was
8 tested for alcohol?
9 A. Yes.
10 Q. Now, on this admit diagnosis -- I think it's
11 the third page. I don't have mine marked. But right
12 before the fight with police, what does it say there?
13 A. It says ETOH.
14 Q. What does that mean?
15 A. Ethanol alcohol, I believe.
16 Q. It's alcohol?
17 A. Yeah, alcohol.
18 Q. And that's right before the fight with the
19 police?
20 A. Right.
21 Q. Let's go to this page where -- the emergency
22 physician record. You got this one right here.
23 (Indicating.)
24 A. Yes, sir.
25 Q. All right. That was filled out by Dr. Kerry?
26 A. Yes, sir.
27 Q. Time seen, according to this, is 21:30?
28 A. No, 21:50.
29 Q. 21:50, I'm sorry.
30 A. Yes, sir.
31 Q. Right above that, what does this "X" say?
32 A. It says positive odor, ETOH.
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1 Q. And that's alcohol?
2 A. Yes, sir. It also says it down here.
3 (Indicating.)
4 Q. Okay. So it's all over the page.
5 Now let's look to the right of the page.
6 A. Yes, sir.
7 Q. You see, it says -- look where it says "eyes".
8 A. Yes, sir.
9 Q. Are any of those checked anything wrong with
10 his eyes?
11 A. No, sir -- his -- we're unable to -- here it's
12 noted, unable to view left orbit secondary to
13 swelling.
14 Q. Okay. What is a subconjunctival hemorrhage?
15 Is that a hemorrhage of the eyeball?
16 A. Yes. The conjunctiva is the white part of
17 your eye. And sometimes if you get hit in the eye or
18 something like that, there will be, you know, blood
19 that appears in the white of your eye.
20 Q. That was not checked?
21 A. Well, you couldn't see the left eye, and so --
22 and then there wasn't --
23 Q. Okay.
24 A. You know, the one -- the right one didn't
25 appear that way.
26 Q. Okay. Periorbital edema ecchymosis. What's
27 that?
28 A. Periorbital edema means swelling.
29 Q. That's what he had?
30 A. Right.
31 Q. How come the doctor didn't check that? He was
32 just going a little too fast?
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PHILIP DUEITT
1 A. I don't know. Maybe because he wrote over
2 here unable to view left orbit secondary to swelling
3 and figured that would answer anybody's questions.
4 He figured he covered it with that note.
5 Q. So all these questions on here that are filled
6 out by the physician are to aid in his treatment,
7 correct?
8 A. Or to describe his treatment.
9 Q. And prepare a plan to get him better?
10 A. Yes, sir.
11 Q. Go to the next page.
12 A. Yes, sir.
13 Q. Up at the top right there's "normal" written
14 by the facial bones, correct?
15 A. Yes, sir. And I'm sure that he didn't write
16 that there until after he got a CT report back that
17 told -- said that there was no fractures of his
18 facial bones. Now, you'll have to ask Dr. Kerry
19 about that specifically, but that's the way I would
20 interpret that.
21 Q. And I want you to look at the top of this
22 page, here. That's -- that's handwritten in above
23 the CT scan. What does that say?
24 A. ETOH 273.
25 Q. And that matches the .273 blood alcohol
26 concentration he had?
27 A. Yes, sir.
28 Q. And that is written at a point where everybody
29 wants -- needs to see it; it's that important,
30 correct?
31 A. Yes, sir.
32 Q. Let's talk about the banana bag. Tell the
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1 jury what a banana bag is, what it does.
2 A. Alcohol is a natural diuretic. And when you
3 have a diuretic that means that you're losing fluid
4 faster than you're taking it in. And almost all
5 diuretics cause you to lose significant amounts of
6 electrolytes. Banana bag has got magnesium; it's got
7 a vial of MVI; it's got a hundred milligrams,
8 sometimes two hundred milligrams of thiamine. And
9 you mix that into a liter of normal saline. And you
10 give it to them at whatever rate the doctor chose
11 to --
12 MR. REGAN:
13 I'm going to object. Not one
14 question about the banana bag. That this
15 was an hour and a half after he got there.
16 This is not -- this is not re-- I didn't
17 talk about the banana bag because it was
18 so far down the trip here.
19 I object to the DA going into a
20 banana bag that's an hour and a half after
21 he gets here.
22 THE COURT:
23 It's already been answered.
24 Do you have a response, Mr. Noriea?
25 MR. NORIEA:
26 No, Your Honor.
27 He's talked about everything. I'm
28 just trying to relate what the doctor
29 ordered after this --
30 THE COURT:
31 Well, that's been answered.
32 Move on.
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PHILIP DUEITT
2 Q. Who prepared the banana bag?
3 A. I did.
4 Q. Did you put in his IV?
5 A. Yes, sir.
6 Q. Did it help him?
7 A. I guess.
8 MR. REGAN:
9 Objection to relevancy. This is an
10 hour and a half after he's in the
11 hospital.
12 THE COURT:
13 We're talking about his IV, which I
14 think was started -- wasn't that the
15 question?
16 MR. REGAN:
17 It's the banana bag.
18 THE COURT:
19 No, that wasn't the question,
20 Mr. Regan. Listen to the question.
21 Overruled.
22 THE WITNESS:
23 Do I need to finish telling them
24 about the banana bag?
25 THE COURT:
26 No, you were talking about the IV.
27 MR. REGAN:
28 The objection is not about the IV.
29 It's about the banana bag.
30 THE COURT:
31 Okay. Ask another question.
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1 Q. The patient receives the banana bag by way of
2 IV drip, correct?
3 A. Yes, sir.
4 MR. NORIEA:
5 I don't have any further questions,
6 Your Honor. No further questions.
7 THE COURT:
8 You may step down.
9 THE WITNESS:
10 Thank you, sir.
11 THE COURT:
12 Yes, sir.
13 MR. REGAN:
14 Excuse him subject to re-call, Your
15 Honor.
16 MR. NORIEA:
17 Your Honor --
18 THE COURT:
19 Subject to re-call?
20 MR. NORIEA:
21 We're finished.
22 THE COURT:
23 Yes, this is rebuttal. There's no
24 re-call.
25 You're free to go, sir. You're
26 released from your subpoena.
27 MR. NORIEA:
28 Your Honor, at this time I would
29 like to offer, file, and introduce into
30 evidence State's Exhibit 4, which is the
31 certified copy of the medical records from
32 the Heart Hospital for June 16th -- I
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1 mean, November 16 and 17, 2006.
2 THE COURT:
3 Let the --
4 MR. REGAN:
5 Judge --
6 THE COURT:
7 -- records be received into
8 evidence.
9 I note your objection.
10 MR. REGAN:
11 In light of that, what we'd ought to
12 do, if I could, please, I'd like to have
13 14 copies so the jury can study them.
14 MR. NORIEA:
15 I've already got them.
16 THE COURT:
17 Very good.
18 MR. REGAN:
19 14 copies?
20 MR. NORIEA:
21 I've got 16, Martin. Is that good
22 enough?
23 MR. REGAN:
24 Whatever it takes so everybody gets
25 their own copy.
26 THE COURT:
27 Counsel, do not discuss the matter
28 between yourselves. Talk to the Court.
30 MR. NORIEA:
31 Patrick Williams.
32 THE COURT:
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1 Retire the jury.
3 retired.)
4 THE COURT:
5 You've got proposed jury charges.
6 MR. NORIEA:
7 Okay.
8 MR. REGAN:
9 I do, sir.
10 THE COURT:
11 When we go to closing each of you
12 will have 40 minutes to make your
13 arguments.
14 MR. NORIEA:
15 Yes, sir.
16 MR. REGAN:
17 Yes.
19 THE COURT:
22 MR. NORIEA:
23 Patrick Williams.
24 (PATRICK WILLIAMS, after having been
26 as follows:)
28 Q. Mr. Williams, state your name, for the jury,
29 please.
30 A. Patrick Williams.
31 Q. Mr. Williams, try to speak as loud -- you've
32 got to get all the way to Ms. Tedrow way in the back.
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PATRICK WILLIAMS
1 What is your occupation?
2 A. I'm a medical technologist.
3 Q. And tell us about your undergraduate degree.
4 A. I have a bachelor of science in medical
5 technology from Northeast Louisiana University.
6 Q. What year did you get that?
7 A. 1984.
8 Q. And after you got your degree, what type of
9 jobs were you employed in that involved medical
10 technology?
11 A. I work in a lab -- hospital, actually three
12 different hospitals in the parish over like
13 20-something years.
14 Q. And currently what is your position?
15 A. I'm a medical technologist at the Louisiana
16 Heart Hospital in charge of the chemistry department.
17 Q. In connection with that job, what type of
18 machine do you use to analyze blood alcohol
19 concentrations?
20 A. It's Siemens Dimension RXL.
21 Q. And in 2006, was that a state-of-the-art
22 machine?
23 A. Yes, sir.
24 Q. And is that machine checked daily for accuracy
25 by yourself?
26 A. By me or whoever is there working at the time.
27 Q. And tell the jury how it is checked for
28 accuracy.
29 A. We have a system test done every night by the
30 night shift --
31 MR. REGAN:
32 Excuse me. I'm going to object. He
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PATRICK WILLIAMS
1 said either he or someone else. I mean,
2 we can't have him saying someone else.
3 Either he did it. Or he can't tell us if
4 someone else did it.
5 THE WITNESS:
6 Somebody does it when I'm not there.
7 MR. REGAN:
8 Same objection.
9 I'll bring it out on
10 cross-examination.
11 THE COURT:
12 Good.
14 Q. The test results are recorded regardless of
15 who does it?
16 A. The test results or the quality control?
17 Q. Yes.
18 A. Both of them are, actually.
19 Q. So whenever anybody calibrates the test
20 machine, or uses it, those results are printed out?
21 A. Yes, sir.
22 Q. Is that the required protocol in your lab with
23 respect to testing blood?
24 A. Yes.
25 Q. And besides that, are there any other
26 protocols that you follow routinely to ensure the
27 accuracy of a blood alcohol concentration?
28 A. We get quarterly proficiency samples.
29 Q. And do you receive training -- did you receive
30 training as to this machine?
31 A. Yes.
32 Q. Prior to your job at the Heart Hospital where
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PATRICK WILLIAMS
1 did you work?
2 A. Northshore and Slidell. It's
3 Northshore/Ochsner now. They've changed the name
4 when they were taken over.
5 Q. What type of blood alcohol concentration
6 machine was there?
7 A. I'm not really sure. I didn't work in that
8 department there.
9 Q. Did you ever use the Siemens RXL before?
10 A. Yes. I worked part-time at Lakeview Hospital
11 in Covington, and they have one there. Actually,
12 they have two.
13 Q. You worked as a tech in that lab?
14 A. Yeah. Actually, I still work there part-time.
15 Q. Tell the jury about the control samples that
16 are used to test the machine and the purpose of them.
17 A. They are samples of known values. So we run
18 them to verify that the answers we get are within the
19 range of the value that they should be, to prove that
20 the machine is working correctly and we are getting
21 numbers that are correct.
22 Q. Where did these -- where did these known
23 samples come from that you used to test the accuracy
24 of the machine?
25 A. They're commercially made. We get them from a
26 company.
27 Q. And correct me if I'm wrong, the blood alcohol
28 concentration is on that tube that you put in,
29 correct, in the machine for testing? Or how do you
30 go about that?
31 A. You put the control samples on the instrument.
32 And they run just like they would a patient. And
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PATRICK WILLIAMS
1 then we check --
2 MR. REGAN:
3 Judge, Judge, I'm going to object.
4 He's telling people he did not do this
5 test. He wasn't even there. For him to
6 tell the jury what they did --
7 THE COURT:
8 What he's testifying to is the way
9 you do the test.
10 MR. REGAN:
11 The way you do it, not --
12 THE COURT:
13 Not that it was done, he did it;
14 just how you do it.
15 THE WITNESS:
16 Yeah.
17 The samples are put on the analyzer,
18 and they're run just like we would a
19 patient sample. And then we compare the
20 results we got that day to what they
21 should be.
23 Q. Is there a certain standard deviation that you
24 must come within?
25 A. Yes. Two standard deviations.
26 Q. You get printouts of that after the samples
27 are done?
28 A. There's a printout on the instrument, and it
29 goes into a quality control computer in the lab.
30 Q. And that particular -- those tests -- those
31 test sample results, those are your records?
32 A. Yes.
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1 Q. I'm going to show you State's Exhibit 5 and
2 tell me if you could explain to the jury what State's
3 Exhibit 5 is.
4 A. It's a copy of a quality control records from
5 Bio-Rad, the company that we -- it's -- the Bio-Rad
6 is the company that makes the control material. And
7 it's quality control reports.
8 Q. What are the date of those quality control
9 reports?
10 A. Let's see. Let me find the date.
11 Q. On the first page look at the top right. That
12 might help.
13 A. Yeah, it's for 11/6, November, in 2006.
14 Q. Let's look through this data and let's tell
15 the ladies and gentlemen of the jury how that machine
16 was working with respect to accuracy the month of
17 November, 2006. Can you do that?
18 A. Yes. It compares our control to our normal
19 ranges into the peer data for everybody in the
20 country that has the same instrument and control
21 material that we do.
22 Q. Now, let's look at this a little more
23 carefully. Let's look at Page 1 of this because I'm
24 not too good at chemistry. And what does Page 1
25 show?
26 A. It's a graph representation of how the
27 controls were in range. They should be -- perfect is
28 in the center, which is almost where these two levels
29 are. And it has to be within -- it should be in the
30 gray area. It should be -- the results should be in
31 the white area.
32 Q. The white area is plus or minus 1.5?
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1 A. It's one deviation.
2 Q. Oh, one deviation, I'm sorry.
3 A. Yeah, the first one is one deviation. The
4 second white area is the second deviation. And the
5 gray would be out of range. There's an explanation
6 on this page here.
7 Q. Any time during that month was this machine
8 out of the deviation that's acceptable for your
9 professional standards?
10 A. This is a cumulative graph of the month.
11 There's a graph that shows for each day we ran the
12 controls back here.
13 Q. Okay. Okay. Let's see if we can --
14 A. This is on page -- I'm not sure if it has a
15 page number on it.
16 Q. Let's mark this page. It might help.
17 MR. NORIEA:
18 Exhibit 5. We'll mark this Page 1.
19 THE COURT:
20 Speak up, Mr. Noriea.
21 Page 2, Page 3.
22 Mr. Regan, can you move so she can
23 see the witness.
24 MR. REGAN:
25 Oh, I'm just trying to --
26 THE COURT:
27 I understand.
28 MR. NORIEA:
29 4. This is Exhibit 5. Page 5. 6.
30 7.
32 Q. Okay. Get to the page you need to explain
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1 that to the jury, would you please.
2 A. Page -- on Page 5.
3 Q. Okay.
4 A. Yeah. There's a graph representation of what
5 the numbers should be for the controls. And the
6 little dots represent the value of the control that
7 we got that day.
8 Q. Okay. Now, let's look at 11-1. Just explain
9 how this goes. You've got a Level 1, a Level 2, and
10 a Level 3?
11 A. There was three levels of controls that we ran
12 for each level. Level 1, the mean value is 42. And
13 that's the target value. And Level 2, the target
14 value is 100. And Level 3 is 265.
15 Q. Let's look on the November 16th, the Level 1.
16 The target value is 42?
17 A. Yeah.
18 Q. Where did that value fall?
19 A. It's just slightly above 42.
20 Q. Is that within the acceptable standard
21 deviations for this machine?
22 A. Yes, it can go up to 51 or down to 33 would be
23 acceptable.
24 Q. So it's --
25 A. Yeah, it's actually pretty close to the mean
26 level.
27 Q. 44?
28 A. 42, yes.
29 Q. I mean, the reading on this machine, for --
30 A. For that particular day.
31 Q. -- was around 44?
32 A. Yes.
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1 Q. Now, let's go to Level 2. What's the mean
2 level?
3 A. It's 100.
4 Q. Now let's look --
5 A. For that particular day, 16, it's right --
6 just barely over 100.
7 Q. Almost touching 100?
8 A. Yes.
9 Q. Level 3. What's the mean target?
10 A. 265.
11 Q. Okay.
12 A. And the level was just below 265.
13 Q. So 263, 264?
14 A. Yeah.
15 Q. Now, let's go back.
16 A. Actually, I mean, I don't know if they have
17 the actual printout. On Page 7 --
18 Q. Uh-huh (affirmative response.)
19 A. -- it's the actual numbers that he got that
20 day. Yeah, the numbers were 44, 101, and 260.
21 Q. Wait. Let me write this down. 44. 101?
22 A. And 260. And that's on Page 7.
23 Q. 260. Now, for the 44 rating, what's the high
24 and low acceptable numbers for accuracy and
25 calibration?
26 A. The high would be up to 51. The other would
27 be down to 33.
28 Q. So we got 44. So that's well within the
29 standard deviation?
30 A. Yes.
31 Q. For accurate calibration.
32 Level 2, what's the high and low?
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1 A. Up to 1:20 and down to 80.
2 Q. And that rating was 101?
3 A. 101.
4 Q. And that's almost right on target, correct?
5 A. Yes, sir.
6 Q. And for Level 3, what's the high and low
7 acceptable levels?
8 A. Up to 318 and down to 212.
9 Q. Then target is 265. And that was 260, I
10 believe?
11 A. Yes, sir.
12 Q. So as of November 16, 2006, this machine was
13 accurately calibrated, correct?
14 A. Yes.
15 Q. Tell the jury how you go about analyzing blood
16 in this machine for the purpose of determining the
17 blood alcohol content.
18 A. The sample is drawn. And wherever it's drawn
19 at, whatever department in the lab, it's sent to the
20 lab. They have a pneumatic tube system. For the
21 alcohol it has to be centrifuged first because the
22 test is actually run on the serum part of the blood,
23 not the cells.
24 Q. Speak a little louder so Ms. Tedrow can hear
25 you back here.
26 A. Sorry. It's centrifuged for ten minutes.
27 After centrifugation --
28 Q. Can I ask you a question?
29 A. Yes.
30 Q. If the blood is not properly centrifuged, will
31 the machine operate?
32 A. If it was centrifuged for a little bit short
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1 of time it would still operate. But if it was not
2 centrifuged at all, it wouldn't -- it wouldn't run on
3 the whole blood.
4 Q. Okay. The time of the centrifuge, does that
5 have bearing on the accuracy of the blood alcohol
6 content and blood?
7 A. If it was a very -- extremely short time it
8 might, but it would probably get an invalid number
9 because it would still have cells mixed with the
10 serum.
11 Q. So if it's centrifuged properly, the machine
12 will correctly analyze the blood alcohol
13 concentration?
14 A. Yes.
15 Q. If it's not centrifuged, or improperly
16 centrifuged, the machine will not operate to
17 determine the blood alcohol concentration?
18 A. It would give an error message.
19 Q. So after you -- we do the centrifuge, what is
20 done next?
21 A. The sample is put on the instrument -- we have
22 a hospital computer. And it reads the barcode on the
23 sample tube, gives the information from the hospital
24 computer of what test to run, and then it
25 automatically runs the test.
26 Q. And when the test is run, where do the results
27 come?
28 A. There's a printer connected to the instrument,
29 and it sends the information back to the hospital
30 computer system.
31 Q. And does that computer system have the ability
32 to print results in the emergency room?
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1 A. Yes, sir.
2 Q. I'm going to show you State's Exhibit 4. Tell
3 me if you recognize these documents in State's
4 Exhibit 4. This document right here. (Indicating.)
5 A. It's a chart report from The Heart Hospital.
6 Q. Who is the patient?
7 A. It says Shane Gates.
8 Q. And what is his blood alcohol concentration?
9 A. It's not on this page. This is other results
10 from other testing that they did.
11 273.3.
12 Q. And what is the normal range for somebody?
13 A. Normally it should be 0 if you're not drinking
14 or anything.
15 Q. Do you know how that translates into blood
16 alcohol as calculated by the Department of Public
17 Safety, for driving purposes?
18 A. It would be .27.
19 Q. After you put the blood sample in the machine,
20 the computer prints out the name of whose blood it
21 belongs to automatically; is that correct?
22 A. Yes, sir.
23 Q. And after the blood goes in the machine, this
24 machine automatically prints it out?
25 A. Yes. Yes, sir.
26 Q. So it's not like a chemical or scientific
27 experiment where you've got to take some water after
28 15 minutes and mix it a little bit and put it down
29 and come back a little bit later and do something
30 else to it; is that a fair statement?
31 A. Yes, the machine is totally automated.
32 Q. It's totally computerized and everything?
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1 A. Yes.
2 Q. Once you put it in, it just goes?
3 A. Yes.
4 Q. Is there any way to cheat this machine to get
5 a higher or lower rating, realistically?
6 A. There's -- there could be a way you could do
7 it, but we wouldn't have anything in our lab to do it
8 with.
9 Q. Now, the person that actually ran this test,
10 what was his name?
11 A. Roger Lowell.
12 Q. And did you know him?
13 A. Yes.
14 Q. Did you train him?
15 A. Yes.
16 Q. And did you -- you were the head of the
17 chemistry part of that lab, correct?
18 A. Yes, sir.
19 Q. Did Roger work underneath you?
20 A. Yes.
21 Q. Did you verify his results?
22 A. Yes.
23 Q. And where is Roger now?
24 MR. REGAN:
25 Judge, I'm going to object, at this
26 point. He wasn't there. He didn't verify
27 the results at this point. There's no
28 foundation.
29 THE COURT:
30 Put a time frame on that question,
31 Mr. Noriea. Ask him about this particular
32 case about verifying results.
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2 Q. About verifying results around November 2006?
3 MR. REGAN:
4 Judge, again, objection. We're
5 dealing with --
6 THE COURT:
7 You get to cross-examine him,
8 Mr. Regan.
9 MR. REGAN:
10 Yes.
11 THE WITNESS:
12 I'm sorry, have we checked the
13 results?
15 Q. Yes, sir.
16 A. They're reviewed the next day.
17 Q. As protocol for the lab?
18 A. Yes, sir.
19 Q. When a sample is a drawn it is placed in
20 certain vessels that are designed to maintain the
21 integrity of the blood; is that correct?
22 A. Yes.
23 Q. After blood is drawn and is placed in the
24 vials what would -- is it possible for the blood
25 alcohol to -- content to increase in those vials with
26 a passage of time?
27 A. Not to my knowledge.
28 Q. If anything, what would the blood alcohol
29 concentration do after it's placed in vials with the
30 passage of time?
31 A. It would -- especially if the tube has been
32 open and exposed to air, it would go down.
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1 Q. So the only thing that could happen to a blood
2 alcohol concentration after it's placed in the tube
3 would possibly reduce the BAC level, correct?
4 A. As far as I know, yes.
5 Q. Now, are your lab procedures meticulously
6 adhered to?
7 A. Yes.
8 Q. And you're trained and tested for proficiency
9 on the machine?
10 A. Yes, sir.
11 Q. Periodically?
12 A. (Nodding head affirmatively).
13 Q. And you routinely inspect and maintain this
14 Siemens -- this machine is made by Siemens
15 Corporation, correct?
16 A. Yes.
17 Q. Do you routinely inspect and maintain this
18 machine?
19 A. Yes.
20 Q. And, as you said before, it's calibrated
21 virtually on a daily basis for accuracy?
22 A. It's checked for quality control daily.
23 MR. NORIEA:
24 No further questions, Your Honor.
25 MR. REGAN:
26 Oh, thank you.
28 Q. Mr. Williams, thank you for coming. Let me
29 ask you something.
30 A. Sure.
31 Q. The -- there's a national clinic laboratory
32 standards, in terms of taking blood for -- some
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PATRICK WILLIAMS
1 people refer to it as a BAC test, others, BAT, blood
2 test, BAC test, the same thing?
3 A. I would think so, yes.
4 Q. And there's standards involved, right?
5 A. Yes.
6 Q. In other words, there are standards in terms
7 of collecting the blood before it gets to the lab?
8 A. Yes.
9 Q. And those standards must be maintained? Why?
10 Why do you have standards in drawing blood properly
11 from a human being?
12 A. So that you don't have contamination --
13 Q. So what?
14 A. You don't have any kind of contamination.
15 Q. Right.
16 A. Or that they have standards and rules as far
17 as labeling the specimen to ensure that the correct
18 patient --
19 Q. Sure, to make sure that whatever gets to the
20 lab is properly collected, correct?
21 A. Yes.
22 Q. And to make sure it's not contaminated?
23 A. Yes.
24 Q. And to make sure there's no potential for an
25 inaccurate report, or record, examination?
26 A. Yes.
27 Q. And what are the standards, at this point --
28 who sets up the standards in the country with the
29 FDA, or whatever laboratory, who sets the standards
30 as to how to collect the blood properly?
31 A. The American College of Pathologists.
32 Q. Okay.
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1 A. I'm not sure exactly who are on the joint
2 commission.
3 Q. What's standards did you adhere to, back in
4 the 16th of November -- on the 16th of November,
5 2006, what standards regarding collecting the blood
6 for examination did you follow?
7 A. I'm not sure which ones they follow by the
8 hospital, but they're joint commission inspected.
9 I'm not sure.
10 Q. You don't recall? You don't know?
11 A. No, not off -- not which ones they are
12 actually following, no.
13 Q. Tell the jury what it is today and how it
14 changed from 2006.
15 A. I don't know if anything has changed.
16 Q. Wait. You're telling the jury they can be
17 comfortable with your results, and you don't know the
18 standards that were used to collect the blood to
19 start with?
20 A. We don't collect the blood in the lab.
21 Q. Well, let me ask you something, if we could.
22 It's really curious. We know the number we're
23 dealing here is extremely high. It's .273.
24 A. Yes.
25 Q. That's pretty high, isn't it?
26 A. Yes.
27 Q. I mean, how would you describe it in laymen's
28 terms? How drunk is somebody at .273?
29 A. Um --
30 Q. Tell the jury.
31 A. Well, I'm not sure what word you use. He
32 would be very drunk with that kind of number.
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1 Q. Very drunk?
2 A. Yeah.
3 Q. I mean, that's three times more than the DWI
4 standard, right? You're pretty darn drunk, right?
5 A. Yes.
6 Q. And, in fact, I was doing some research -- see
7 if you agree with me -- that people actually can die
8 when you hit the 3.0 number?
9 A. Yes.
10 Q. Yes. So he was only, what, really a few
11 points off of death, according to that reading your
12 machine got on the day in question? I mean, he is
13 drunk?
14 A. Yes.
15 Q. Yes?
16 A. According to that result.
17 Q. So let's assume a couple of things, and we're
18 going to get to the heart of this whole problem.
19 Let's assume, for example, your machine was working
20 perfectly, right?
21 A. Yes.
22 Q. Now, you weren't there; you don't know if it
23 was. But you're going to assume that the machine
24 that was testing this sample was working perfectly?
25 A. Yes.
26 Q. Right? And let's assume -- you didn't watch
27 the man who did the test; you didn't see if he
28 spilled something or got it wrong or anything, right?
29 A. No.
30 Q. So we don't know what he did up in the lab,
31 right?
32 A. No.
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1 Q. There's no way you can tell us that. And most
2 importantly, tell the jury, did y'all save a sample
3 so that we can go back and test it?
4 A. Not for this long of a time period.
5 Q. No. How about a month later? Where did the
6 sample go that would show .273, almost dead?
7 A. Well, we only hold the samples for seven days.
8 Q. So, anyway, there's no sample to check, okay?
9 A. No.
10 Q. So let's assume and give the whatever -- the
11 machine's working. The man who did this, at this
12 point --
13 A. Yes.
14 Q. -- did it right; we don't have anybody to say
15 that, at this point, and he comes up with .273. And
16 we know that the doctor's observation of the patient
17 show -- he sees no intoxication; he sees no slurred
18 speech; his demeanor is calm; he's orientated on the
19 Glasgow by the maximum results, 15/15, how would you
20 attribute a mistake in the report of 2.73, which is
21 just about death? How would you explain? Where
22 would the error occur? Assuming the machine worked,
23 assuming that the lab technician did it right --
25 Q. -- where would we look to see to if there was
26 some kind of mistake?
27 A. At the collection.
28 Q. The collection process. Collection process.
29 And let's look at the collection process. Why is it
30 important to do a collection process right?
31 A. To make sure that they do the right patient
32 and --
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PATRICK WILLIAMS
1 Q. You see, if you don't do the collection
2 process right, that is, when you take it out of the
3 body you might end up with a reading close to death
4 and it be wrong, right? Am I right?
5 A. Yes.
6 Q. So what can go wrong at the collection
7 process?
8 A. If they drew the wrong patient.
9 Q. What?
10 A. If somebody drew the wrong patient.
11 Q. Absolutely. You could take it from the wrong
12 person, right. Now, I'm sure you're familiar with --
13 and the fact that the test, when you wipe the skin
14 before taking the blood, it should be done with an
15 iodine or Betadine substance?
16 A. Yes, something that's not alcoholic.
17 Q. Something that's what?
18 A. That doesn't have alcohol in it.
19 Q. Right. And why?
20 A. Because it could cause possible contamination.
21 Q. So if the guy who -- if the guy who drew the
22 blood doesn't know if he used alcohol or not -- and
23 he says that under oath, he doesn't know whether he
24 used alcohol or not -- could the alcohol affect the
25 final result?
26 A. For this particular test, by a small amount.
27 Q. Let's talk about alcohol. Alcohol would
28 affect the test, right?
29 A. Yes.
30 Q. And we're talking about alcohol swabs, right?
31 A. Yes.
32 Q. And when you're dealing with alcohol swabs,
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1 tell the jury why the protocol -- you don't remember
2 what protocol y'all were using, but you know for a
3 fact that if you don't follow protocol and you use
4 alcohol, it can give you a bad result, can't it?
5 A. Yeah, it could change the results a little.
6 Q. It can change it, right?
8 Q. And do you know that a year ago, at this
9 point, the man who drew the blood did not know
10 whether he used alcohol or not to draw the blood?
11 A. I didn't know.
12 Q. You don't know?
13 A. I wasn't here when he testified.
14 Q. Did you interview him even?
15 You see, you come to tell us how the equipment
16 worked perfectly?
17 A. Yes.
18 Q. And we're going to give the machine -- the
19 devil its due, whatever, and say that the machine was
20 working perfectly, that it was spitting out the
21 numbers, it was in prime shape, okay? And we're
22 going to assume that the deceased, at this point, was
23 top of the line, ten out of ten lab technician, okay?
24 A. Yeah.
25 Q. Let's assume all that just for the sake of
26 assumption. And we're assuming that because he's not
27 here to testify.
28 A. Yeah.
29 Q. If he got alcohol-contaminated blood wrong --
30 because they used alcohol swabs to clean the surface,
31 it could affect the results?
32 A. It would have a slight affect, possibly.
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1 Q. Well, let me tell you what I know. And see if
2 you agree. You're an expert?
4 Q. If a human being who -- he is educated, he's a
5 medical physician, he's an MD, sees a person,
6 examines him, talks to him, and in his opinion the
7 man has no slurred speech, he's not intoxicated,
8 okay, that's what you know, you're given that.
10 Q. You also, at this point, from the Glasgow
11 score, he's 15 out of 15 mentally, psychologically,
12 okay, and he's described as being calm, at this
13 point --
14 A. Okay.
15 Q. -- no slurred speech, not intoxicated, at this
16 point, ten minutes after he arrives at the hospital.
17 Would you suspect that the blood sample sent up to
18 the lab may have been incorrect?
19 MR. NORIEA:
20 Your Honor, let me object. That
21 calls for pure speculation.
22 MR. REGAN:
23 It's an expert, Your Honor.
24 THE COURT:
25 Sustained.
26 MR. REGAN:
27 I'm sorry.
29 Q. Well, would you tell me, if all those facts
30 are accurate, to a trained physician, he does not
31 appear to be intoxicated --
32 MR. NORIEA:
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1 I'm going to --
3 Q. He has no demonstrat--
4 MR. REGAN:
5 Wait. He's an expert.
7 Q. He demonstrates no sign of alcohol
8 intoxication, at this point, and you get a reading of
9 almost death, what would you think about the test?
10 MR. NORIEA:
12 that question. It calls for pure
13 speculation.
14 THE COURT:
15 Sustained.
16 MR. REGAN:
17 Please note my objection.
18 THE COURT:
19 Noted.
20 MR. REGAN:
21 Can we approach, please?
22 THE COURT:
23 No.
25 Q. Do you trust human being's observations?
26 MR. NORIEA:
28 that question, the relevance of that
29 question.
30 THE COURT:
31 Mr. Regan, this man actually has not
32 been qualified as an expert.
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1 MR. REGAN:
2 Oh, I'm sorry.
3 THE COURT:
4 He's testified as to his position as
5 a medical --
6 MR. REGAN:
7 I'm sorry.
8 THE COURT:
9 -- as to his position as a medical
10 tech. And in the area of inquiry you're
11 going with him is not his expertise, even
12 if he was qualified as an expert.
14 Q. Sir --
15 A. Can I just say one thing?
16 THE COURT:
17 No, sir, you just respond to
18 questions.
19 THE WITNESS:
20 Okay. I'm sorry.
22 Q. Let me ask you. As far as this machine goes
23 and everything, you know your machine?
24 A. Yes.
25 Q. And the jury can feel safe that you know your
26 machine?
27 A. Yes.
28 Q. You can't tell us what the deceased did on the
29 night in question?
30 A. No because I was not there.
31 Q. And have you ever seen the vial that they used
32 to collect the blood for the BAT or BAC test?
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1 A. Not on this particular patient.
2 Q. You haven't seen it?
3 A. No.
4 Q. So there are lots of unknowns here?
5 A. Yes.
6 Q. Lots of unknowns. But I'm not even going to
7 go there. If he doesn't get a properly collected
8 blood sample down from emergency room, we can't trust
9 the results can we?
10 A. No.
11 MR. REGAN:
12 Thank you for coming.
14 Q. If alcohol was used, it would change the
15 results a little?
16 A. Possibly slightly.
17 Q. All right. So we've got .273. Without the
18 alcohol on the arm, what would it be?
19 A. Well, according to the literature --
20 MR. REGAN:
21 Excuse me, I'm going to object,
22 unless he's run tests and he can tell
23 us --
24 MR. NORIEA:
25 According to --
26 MR. REGAN:
27 Foundation. I'm asking for
28 foundation, please.
29 THE COURT:
30 Well, Mr. Noriea, he's not an
31 expert.
32 MR. REGAN:
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1 He's not.
2 THE COURT:
3 You didn't qualify him as an expert.
4 So you're going to have him testify
5 as an expert? He's now reading the
6 literature and testifying?
9 Q. Do you know, from your experience in the lab,
10 as a layman, how much the .273 would change if
11 alcohol -- if alcohol was used in obtaining the blood
12 sample?
13 MR. REGAN:
14 Objection, foundation. How many
15 tests has he done with alcohol use versus
16 not. And does he have any scientific
17 reports? Is he qualified? Has he done
18 any studies? He is not qualified to
19 answer that question.
20 THE COURT:
21 Lay a foundation.
23 Q. How many studies and how many studies have you
24 read concerning the effects of using an alcohol prep
25 on the blood alcohol concentration results?
26 A. The literature from the instrument company has
27 a thing for interfering substances.
28 Q. And you're familiar with that literature?
29 A. Yes.
30 Q. And as part of operating this machine
31 correctly, you have to know these things?
32 A. Yes.
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1 Q. And for this machine you know how that
2 improper prep at the site of injection --
3 MR. REGAN:
4 Excuse me --
5 Never mind. Withdraw.
7 Q. -- would affect the end blood alcohol
8 concentration result?
9 A. According to the literature from Siemens, it's
10 .4 percent.
11 Q. So you would take --
12 MR. REGAN:
13 Excuse me. .04 percent?
14 THE WITNESS:
15 .4.
16 MR. REGAN:
17 That's more than the read.
18 MR. NORIEA:
19 .4 percent of what? The 273?
20 THE WITNESS:
21 Yeah, the 273.
23 Q. So it would affect that less than one percent?
24 A. Yeah.
25 Q. Less than a half of a percent?
26 A. Yeah.
27 MR. REGAN:
28 Judge, I'd like to cross-examine on
29 these statistics.
30 THE COURT:
31 No.
134
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PATRICK WILLIAMS
1 Q. Now, Counsel describes something as lots of
2 unknowns would affect the test. What are -- can you
3 tell the jury, with specificity, what are the "lots
4 of unknowns" that would render this test
5 scientifically unacceptable?
6 A. Just the fact that we're not the ones that
7 drew the sample. All we have is a tube of blood with
8 a name on it.
9 Q. And if that tube --
10 A. So if anything that happened before it came to
11 the lab, we don't know about it.
12 Q. Okay. But if that tube of blood was collected
13 appropriately and labeled appropriately by the nurse
14 that took the blood --
15 A. Yeah.
16 Q. -- all those unknowns would evaporate?
17 MR. REGAN:
18 Excuse me. I do object. That's
19 not -- label correctly. It's taken,
20 collected correctly, not labeled.
21 THE COURT:
24 Q. Okay. If all the protocol of collecting blood
25 by the nurse at The Heart Hospital were followed,
26 would that eliminate an unknown?
27 MR. REGAN:
28 Again, objection. The witness could
29 not say whether he used alcohol or not.
30 And he said it the other way. So how can
31 this man testify any different than the
32 man who actually collected the blood?
135
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PATRICK WILLIAMS
1 THE COURT:
2 Overruled.
4 Q. If the blood were collected correctly, would
5 that change -- would that be an unknown that would be
6 eliminated if the blood were collected correctly?
7 A. Yes.
8 Q. Now, we might do a little math here. If he
9 used an alcohol pad on this machine, the .273 would
10 be adjusted by .4 percent?
11 A. It would be.
12 MR. REGAN:
13 Objection. I'd like him to cite the
14 study that says .4 percent.
15 MR. NORIEA:
16 Well, it's in the literature.
17 THE COURT:
18 I'm going to sustain the objection
19 because it's been asked and answered.
20 MR. NORIEA:
21 Your Honor, I just want to make sure
22 the jury understands. Mr. Regan --
23 MR. REGAN:
24 Objection --
25 MR. NORIEA:
26 -- seems to think that the blood
27 alcohol would be in the negative range
28 because he's taken it as .4 minus .273.
29 THE COURT:
30 You can make that argument to the
31 jury. These ladies and gentlemen are
32 listening very closely to this testimony.
136
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PATRICK WILLIAMS
1 MR. NORIEA:
2 Okay.
4 Q. And there's nothing that you have in any of
5 the test results from the machine and/or deviation
6 from lab procedures that anything was done wrong in
7 your lab; is that correct?
8 A. No.
9 Q. You agree with me?
10 A. Yes.
11 MR. NORIEA:
12 No further redirect, Your Honor.
13 THE COURT:
14 Thank you, sir. You may step down.
15 MR. NORIEA:
16 Call John Lizarraga.
17 Your Honor, in connection with this
18 witness's testimony, I'd like to offer,
19 file, and introduce into evidence State's
20 Exhibit 5.
21 THE COURT:
22 Any objection?
23 MR. REGAN:
24 May I approach?
25 THE COURT:
26 Yes.
27 Do you have an objection?
28 MR. REGAN:
29 Based on what we said before
30 regarding the records.
31 THE COURT:
32 Okay. Let it be received into
137
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JOHN LIZARRAGA
1 evidence.
2 MR. REGAN:
3 Other than that, no. None.
4 (JOHN LIZARRAGA, after having been
6 as follows:)
8 Q. State your name, for the jury.
9 A. My name is John Lizarraga.
10 Q. Now, you've got to speak loud enough to get
11 all the way back to Ms. Tedrow, way, way in the back,
12 okay?
13 A. Yes. My name is John Lizarraga.
14 Q. And how are you employed?
15 A. I am currently the chief forensic toxicologist
16 for the St. Tammany Coroner's Office.
17 Q. And how long have you been in that capacity?
18 A. About two and a half years.
19 MR. NORIEA:
20 Your Honor, at this time I'm going
21 to attempt to qualify this witness as an
22 expert in the field of forensic
23 toxicology.
24 MR. REGAN:
25 I'm sorry.
27 Q. Would you give us your educational background
28 in this area?
29 A. Yes. I have a bachelor's degree in biology.
30 Q. Speak loudly.
31 A. I have a bachelor's degree in biology and
32 master's in forensic toxicology.
138
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JOHN LIZARRAGA
1 Q. Since you got those degrees, where have you
2 worked in the fields that involve your studies,
3 college studies and degrees?
4 A. I've been in the field, it will be 14 years
5 this August.
6 Q. And where have you worked over those 14 years?
7 A. In forensic toxicology labs.
8 Q. Where?
9 A. My first lab I worked for at the time was
10 called Laboratory Specialist Incorporated. At the
11 time that I left it was called Krole (phonetic)
12 Laboratory Specialties.
13 Q. Where was that lab located?
14 A. In Gretna, Louisiana.
15 Q. And when did you leave that lab?
16 A. I left before I took my current position.
17 Q. And which is with whom?
18 A. With the St. Tammany Coroner's Office.
19 Q. In connection with your job as a forensic
20 toxicologist, how many times are you called upon to
21 conduct tests, analyze results?
22 A. Currently, we are taking a case work for our
23 post-mortem work. And that's approximately 200 cases
24 a year when we're operational.
25 Q. And tell the jury what a forensic toxicologist
26 does as part of his job.
27 A. Yes. Well, we basically analyze biological
28 fluids and organ tissues for toxins, mainly alcohol
29 and drugs. That is primarily what we do.
30 Q. And how long have you done that?
31 A. That's -- I've been doing that for about
32 14 years now.
139
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JOHN LIZARRAGA
1 Q. And do you keep up with the literature in
2 forensic toxicology involving this specific subject?
3 A. Which specific subject?
4 Q. Analyzing blood for toxins?
5 A. Yes.
6 Q. And how often have you done that over the
7 years?
8 A. That would be hard to say. I'm not -- I'm
9 not -- I don't think I understand what you're asking.
10 Q. Okay. Are you a member of any organizations
11 involved in this field?
12 A. Yes.
13 Q. What?
14 A. Member of the American Academy of Forensic
15 Scientists and Society of Forensic Toxicologists.
16 Q. And do you keep up with the literature and
17 advancement in that scientific field?
18 A. Yes.
19 Q. How do you do that?
20 A. Through published literature that's sent to
21 me.
22 Q. Have you published any literature?
23 A. No.
24 Q. Have you ever been qualified as an expert in
25 this field before?
26 A. No.
27 Q. Have you ever been denied qualifications in
28 this field before?
29 A. No.
30 MR. NORIEA:
31 Your Honor, I tender him on the
32 predicate.
140
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JOHN LIZARRAGA
1 MR. REGAN:
2 Just briefly.
4 Q. You've never been qualified in this field as
5 expert in court?
6 A. I have been put forward as an expert in a
7 deposition, but I have no other knowledge of that.
8 Q. Did you write a report on this case?
9 A. No.
10 Q. When did they ask you to come down and
11 testify?
12 A. Let's see. I was asked on Monday morning.
13 Q. Monday of this week?
14 A. Yes.
15 Q. To come down and testify in this case. And
16 who asked you to come down on Monday?
17 A. Mr. Nick Noriea.
18 Q. This gentleman, here?
19 A. Yes.
20 Q. And this case goes back to -- do you know what
21 year it goes back to?
22 A. I can't say off the top of my head.
23 MR. REGAN:
24 Judge, may we approach?
25 THE COURT:
26 Yes.
29 MR. REGAN:
30 Martin Regan. Your Honor, we
31 requested written discovery back in '07,
32 for any scientific tests or anything that
141
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JOHN LIZARRAGA
1 was going to be introduced, at this point.
2 This gentleman -- and then we were given
3 open file discovery. Obviously there's
4 nothing in open file discovery that we
5 could possibly have gotten about this
6 particular expert. Had we known that, had
7 he complied with discovery, had it been
8 open file -- you, in fact, had a chance to
9 review the open file -- not necessary. He
10 says he didn't talk to him until this
11 week. I would suggest to the Court that.
12 And I do object to him testifying.
13 MR. NORIEA:
14 It's a rebuttal witness, Your Honor.
15 MR. REGAN:
16 You're going to bring in an expert
17 on toxicology?
18 THE COURT:
19 Actually, he says it's rebuttal.
20 It's not subject to discovery. And
21 there's no written report. There's
22 nothing in their file to provide an open
23 file discovery. So I've been in the same
24 situation you've been in, Mr. Regan. If
25 they don't have reports, the expert
26 witnesses come in and they testify.
27 MR. REGAN:
28 Even a notice.
29 Respectfully note our objection for
30 the record.
31 THE COURT:
32 Overruled.
142
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JOHN LIZARRAGA
1 MR. REGAN:
2 We'll go forward.
3 (The following proceedings were held
4 in open court:)
5 THE COURT:
6 Do you want to continue on the
7 predicate, Mr. Regan? Or are you
8 satisfied?
9 MR. REGAN:
10 Yes, sir.
12 Q. Let me ask you. We started this case -- we
13 started picking the jury on Monday. What time did
14 you start with Mr. Noriea?
15 A. It was in the morning. Sometime before noon.
16 But I'm not sure exactly what time.
17 Q. Okay. Let me just -- you're asked to be
18 accepted as a forensic toxicologist, correct?
19 A. Yes, sir.
20 Q. Correct? Okay. You and I have never spoken?
21 A. No, I've never met you.
22 Q. You never told us you were even coming, right?
23 Did you?
24 A. No, I never --
25 Q. Hey, Martin, I'm coming? Nothing like that,
26 right?
27 A. I don't know you, sir. I couldn't.
28 Q. Again, I've never met you. First time. I
29 don't know much about you.
30 Did you say you've never been qualified in a
31 court of law in this field?
32 A. Yes.
143
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JOHN LIZARRAGA
1 Q. And you're asking to be qualified at this
2 time?
3 A. Yes.
4 Q. I assume you're licensed to do this?
5 A. Yes, I'm licensed to do blood alcohol
6 analysis.
7 Q. Okay. Okay. Fair enough.
8 And what is it that you do on a day-to-day
9 basis?
10 A. Basically, I manage the operations of the
11 forensic toxicology department, which includes
12 performing analysis, making reagents, making
13 calibrators, monitoring quality control, reviewing
14 data. Really, anything that comes through.
15 Q. Okay.
16 MR. REGAN:
17 Your Honor, based on what he's
18 said -- I've never met him. I've been --
19 I have no objection to him testifying in
20 this area.
21 THE COURT:
22 The Court will accept Mr. Lizarraga
23 as an expert in the field of forensic
24 toxicology.
25 MR. REGAN:
26 Forensic toxicology.
28 Q. In connection with the field of forensic
29 toxicology, could you explain to the jury what would
30 be the physical manifestation of a .273 blood alcohol
31 concentration on a normal person? What would you
32 expect those physical manifestations to be?
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JOHN LIZARRAGA
1 A. I would say you would see --
2 MR. REGAN:
3 Speak loudly. I really need to hear
4 you over here, please.
5 THE WITNESS:
6 You would see extreme manifestation,
7 poor coordination, poor balance. The
8 individual may demonstrate drowsiness.
9 They may be slow to react to stimuli.
10 They may also have an increased pain
11 threshold. There are many other common
12 effects like nausea could also be observed
13 as well.
15 Q. Would the judgment-making ability of that
16 person be affected and, if so, to what extent?
17 A. I would say substantially. But to what extent
18 I cannot really tell you. That depends on the
19 individual.
20 Q. Would a chronic alcoholic exhibit the same
21 physical manifestation at that level as someone who
22 does not hardly drink at all?
23 A. No. A chronic alcoholic probably would
24 demonstrate some degree of tolerance for the alcohol.
25 Q. Would those manifestations that you just
26 described be less because of the chronic alcoholic
27 levels that he's used to?
28 A. Yes, I would say it would be less extreme.
29 Q. So he would not -- as comparing a chronic
30 alcoholic with a nondrinker, let's say, a chronic
31 alcoholic would function better physically than a
32 nondrinker if they were both at that same blood
145
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JOHN LIZARRAGA
1 alcohol concentration?
2 A. In general, I would say yes.
3 Q. The same way for judgment?
4 A. Yes.
5 Q. Vision?
6 A. Yes.
7 Q. Now, there's two components of vision.
8 There's straight-ahead vision and peripheral vision,
9 correct?
10 A. Yes.
11 Q. Would both of those be affected by .273 BAC?
12 A. Peripheral vision is more extremely affected.
13 That's usually the first thing to be affected. So
14 that would be the first thing to really -- to go in
15 that situation.
16 Q. Peripheral vision is the vision that comes out
17 that permits you to see if you're driving down the
18 road, cars on this side of you and cars on that side
19 of you, correct?
20 A. Yes, vision to your sides.
21 Q. And that would be the first -- that would be
22 more -- that would be something that would really be
23 affected?
24 A. Yes.
25 Q. The peripheral vision?
26 Reaction time. Would reaction time be
27 affected?
28 A. Yes, it would.
29 Q. Would it be affected less than a chronic
30 alcoholic or -- as opposed to a person that doesn't
31 drink, at that same BAC level?
32 A. Yes.
146
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JOHN LIZARRAGA
1 Q. What other physical manifestations or thought
2 processes would be affected by this .273 BAC level?
3 A. Other side effects can be diminished memory.
4 That's a prominent affect. Otherwise, it's pretty
5 much what we've gone over, the majority effects.
6 Q. Let's talk about memory. A person at that
7 level, chronic alcoholic, or non, would their ability
8 to recall the events that transpired when they were
9 near that blood alcohol concentration be difficult to
10 recall?
11 A. I can say it would more difficult for them to
12 recall events from the time when they were
13 intoxicated.
14 Q. What about recalling events accurately? Would
15 the accuracy of their recall be affected by this BAC
16 level, the next day, let's say?
17 A. Can you clarify? Did you mean the entire
18 events or just isolated events or --
19 Q. Either. Can you -- whatever you are, whether
20 it's -- in an event of a car chase that lasted two
21 minutes?
22 A. That would be depending on the individual.
23 Q. Night vision. Would night vision be affected?
24 A. I don't know.
25 Q. How about responding to authority? Would
26 they -- at that level, would they be capable of
27 making sound judgments with respect to decisions?
28 A. Well, it's -- like I originally said, one of
29 the effects is lower reaction time to stimuli. And
30 that would probably fall into that category.
31 Q. Are you familiar with the term "banana bag"?
32 A. No.
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JOHN LIZARRAGA
1 Q. Would you -- when a person --
2 MR. REGAN:
3 Judge, if we're talking about a
4 banana bag an hour and a half later, which
5 is after the doctor met with him, and the
6 doctor doesn't -- this gentleman does
7 not --
8 THE COURT:
9 Mr. Regan, let him ask his question.
10 MR. REGAN:
11 I object.
12 THE COURT:
13 Well, I haven't heard the question.
14 I don't know what you're objecting to.
15 Ask the question.
17 Q. Once a person is hospitalized with that BAC
18 level and treatment is given to remedy that position,
19 how soon would you expect to see that level come down
20 to where he appeared to act more sober?
21 A. All I can say is that the amount of blood
22 alcohol is going to drop approximately .015 grams per
23 hour. So whatever you're starting at, it's going to
24 take that number of hours to push that level down.
25 Q. Would the addition of fluids, minerals, and
26 other vitamins intravenously --
27 A. I can't speak to that. I don't know.
28 Q. That's not in your area?
29 A. No.
30 Q. Even though the .27 blood alcohol
31 concentration is high, people would be able to
32 function with some degree of impairment? Is that a
148
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JOHN LIZARRAGA
1 fair statement?
2 MR. REGAN:
3 Objection. Speculative. He
4 can't --
5 THE COURT:
6 He's an expert. I don't know if --
7 If you can answer the question, do
8 so.
9 THE WITNESS:
10 Can you clarify that a little bit?
12 Q. At .273 would you be in a coma?
13 A. No. No, that's not in a coma.
14 Q. At .273, would you be able to drive a car?
15 A. By that do you mean would somebody be able to
16 walk and get into the vehicle?
17 Q. And drive it, albeit recklessly or whatever?
18 A. You know, it depends on the individual. Some
19 individuals if they're new to alcohol, that amount is
20 probably going to put them to sleep.
21 MR. REGAN:
22 Probably what? Say it again.
23 Probably what?
24 THE WITNESS:
25 Put them to sleep.
27 Q. If it doesn't put them to sleep?
28 A. I can -- it's conceivable that someone could
29 get into a vehicle and drive it at that level.
30 Q. Would a chronic alcoholic be able to do that
31 better than a person not used to that?
32 A. Yes.
149
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1 MR. NORIEA:
3 THE COURT:
4 Cross.
5 MR. REGAN:
6 Thank you.
8 Q. Let me ask you. I mean, you're an expert.
9 I've got just some common sense questions, okay? And
10 apply your expertise, all right?
11 Would you agree -- and a law professor said --
12 would you agree with the statement sometimes we pay
13 an expert to borrow our watch to tell us what time it
14 is when you can use common sense to come to the same
15 conclusion? Do you think common sense gets us to
16 conclusions?
17 A. I would say common sense is very important.
18 Q. And having said that, we're going to try to
19 use common sense, coupled with your education, okay?
20 What I'd like to do, at this point, is just see what
21 the facts are that we know, at this point.
23 Q. And I guess the best way to do it, so there's
24 no misunderstanding, from a time standpoint we
25 know -- we know, based on evidence, at this point,
26 there's nothing to contradict this. We know that he
27 was in the company of someone until about 8:30 p.m.
28 It may have been as late as 8:40 p.m., on 11/16 of
29 '06. Okay? And he was -- he left the company 8:30
30 and 8:40. And he had been with the individual for
31 two and a half to three hours. Two and a half, three
32 hours prior to 8:30, okay? We know that he was
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JOHN LIZARRAGA
1 stopped at 9:06 p.m., on 11/16/06, okay? Assuming at
2 8:30, 8:40 he shows no sign of intoxication. He is
3 with -- he's not drinking anything. He's there being
4 observed.
5 How many drinks would it take to get you to
6 .273? How many drinks do you have to have to get to
7 .273? Tell me -- come on. Do -- I'll get you a pad
8 or a calculator.
9 A. I can approximate. I think it's about six
10 drinks in one hour to get to .1. And that's standard
11 weight. When you think --
12 Q. Ounces, don't we? Either an ounce of liquor
13 or beer?
14 A. Yeah, like a 12 ounce beer.
15 Q. So it takes six drinks, times one hour, to get
16 us to what level? Please tell the jury.
17 A. .1.
18 Q. I'm sorry?
19 A. .1. And that's assuming he's an average size
20 male.
21 Q. Right, right, right.
22 My client --
23 MR. REGAN:
24 Stand up, okay.
26 Q. I think he's about 5-7, 5-8. You see his
27 weight.
28 MR. REGAN:
29 Turn around a little bit.
31 Q. Could we say he's the average size male?
32 A. Yes, I would guess.
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1 Q. So it takes six drinks and one hour to get to
2 that. And how many drinks -- I sound like a math
3 teacher -- does it take to get to .273?
4 A. Well, it would take a lot more -- are we
5 assuming a half an hour time frame?
6 Q. Well, let's forget about time. Let's just say
7 if I'm sitting here drinking, okay, how many drinks
8 would it take to get me to .273?
9 A. An hour? I would need a calculator.
10 MR. REGAN:
11 He needs a calculator, if we could,
12 Your Honor, if we could borrow yours one
13 more time.
14 THE COURT:
15 We have some jurors that need a
16 break. Let's retire the jury.
18 retired.)
19 THE COURT:
20 You can step down. We're going to
21 take a break. Don't discuss your
22 testimony with anyone.
23 MR. REGAN:
24 Five minutes?
25 THE COURT:
26 Yes.
27 Counsel, have you had an opportunity
28 to look at the proposed jury instructions?
29 MR. NORIEA:
30 I think the only one, Judge, we
31 might not need is identification.
32 THE COURT:
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1 I'm sure the defense might have a
2 different viewpoint. Maybe they don't.
3 MR. NORIEA:
4 You know what I'm talking about,
5 Judge. I mean, as opposed to an armed
6 robbery where there's an alibi. He was
7 arrested in the car. That's what I mean
8 by that.
9 THE COURT:
10 Yes.
11 No objections to the jury
12 instructions?
13 MR. REGAN:
14 My initial review, no. I do want to
15 study it a little bit more. I've been
16 working every second, I promise you.
17 They've still got two more witnesses to
18 go. And they are probably going to be
19 very lengthy witnesses.
20 THE COURT:
21 Well, we're going to finish tonight.
22 So just keep that in mind when you're
23 cross-examining the witnesses --
24 MR. REGAN:
25 Judge, I respect your work ethic.
26 THE COURT:
27 We are going to finish tonight, Mr.
28 Regan. That's what we are going to do.
29 MR. REGAN:
30 But in my situation, I would
31 certainly object to making them work late.
32 THE COURT:
153
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JOHN LIZARRAGA
1 Then limit your questions to one
2 question rather than four questions on the
3 same area.
4 MR. REGAN:
5 I'm sorry, Your Honor. And, again,
6 I don't want to waste the Court's time.
7 But sometimes you have to close all four
8 doors to get an answer, that box.
10 returned.)
11 THE COURT:
14 Q. Sir, I just -- we're trying to get to .273.
15 And assuming there wasn't any burnoff, okay, would
16 you do the numbers and tell me how many drinks it
17 would take to get from 0 to .273?
18 A. I come up with 16. -- 16 and a third drinks.
19 Q. I think it's actually 16.34 drinks to get to
20 .273.
21 So if the drinking somehow started between
22 3:30 and 8:40, and you had, at this point, to get to
23 that level, you'd have to hit 16 drinks -- let me ask
24 you, how long does alcohol remain on your breath?
25 Has there been any studies -- like, for example, if I
26 have a couple of beers, say, at 4:30 and 5 and I
27 don't eat anything, don't drink anything else, at
28 this point, would you expect me to have alcohol on my
29 breath for awhile?
30 A. Are you referring to a Breathalyzer?
31 Q. No, no, no.
32 I like common sense and working with it. If I
154
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JOHN LIZARRAGA
1 don't brush my teeth, I don't chew gum, I don't do
2 anything, and the last thing I had to drink was
3 alcohol, do you think it might show up on my breath?
4 A. What's the time frame?
5 Q. We don't know for sure, but we're going to say
6 two hours, three hours, two and a half hours. We
7 don't know. Do you have any studies regarding how
8 long alcohol remains on your breath?
9 A. No.
10 Q. So let's just stick with common sense and
11 there's no evidence of brushing the teeth, washing
12 the mouth out, eating, anything of that sort.
13 What I'd like to do is -- would you
14 describe -- what characteristics, because you're the
15 expert in this field -- we might find in an
16 individual with .273 alcohol? What would you expect
17 his body actions to be like? What would you expect?
18 First of all, what about speech?
19 A. Speech would be slurred.
20 Q. Speech is slurred, okay, at this point. What
21 would you expect -- are you familiar with the Glasgow
22 test? It's --
23 A. No, not off the top.
24 Q. Do you know -- well, let me ask you -- and,
25 again, it's just common sense. I know back in my
26 college days .273, in common terms, would you say the
27 guy was blitzed or loaded?
28 A. Sir, I can't say that because what I might
29 say -- my slang might be different --
30 Q. I'm going to stand over here because our court
31 reporter -- .273, okay?
32 A. I could say that's extremely drunk.
155
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1 Q. Extremely drunk. And you'd think a medical
2 doctor who sees him at 9:45 to 9:50 would see that
3 he's extremely drunk if he drunk that much? Tell the
4 jury, do you think a trained physician who
5 interviewed somebody at 9:45, 9:50, give or take a
6 five minutes, at this point, who is .273 -- really
7 .273, not a laboratory mistake. Do you think that
8 that might be -- slurred speech. What else would you
9 expect the doctor to see?
10 A. Poor coordination.
11 Q. Coordination problems?
12 A. Yeah.
13 Q. Right, right.
14 A. Probably would be drowsy, nodding off eyes.
15 Q. Sure, sure.
16 A. Many other characteristics that I mentioned
17 before, like nausea.
18 Q. Sure. You don't have to be rocket scientist
19 or a physician to judge someone to be under the
20 influence at .273?
21 A. I would say that anyone with any experience,
22 they should know.
23 Q. .273?
24 A. Well, they might not be able to tell the
25 level, but they would know someone was intoxicated.
26 Q. Yes, sir. Why does the speech get slurred?
27 A. I can't say. I don't know.
28 Q. Why do you lose your balance?
29 A. The alcohol acts upon the brain -- more basic
30 functions of the brain at that high a level. So at
31 lower levels alcohol acts on the higher function
32 of -- lower inhibitions, euphoria. But at higher
156
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JOHN LIZARRAGA
1 levels begin to act upon the primary functions of the
2 brain, which balance is one of them.
3 Q. Okay. And do you know Dr. Bruce Kerry?
4 A. No.
5 Q. You don't know whether he's a good doctor or a
6 bad doctor or anything else?
7 A. I've never heard of him.
8 Q. Fair enough. But there's no doubt in your
9 mind, at this point, that someone at .273 would be
10 affected?
11 A. Yes.
12 Q. Okay. And the effect, to a trained eye, to a
13 physician in an emergency room, to someone with that
14 type of education, it would certainly be obvious,
15 right?
16 A. I believe so.
17 Q. Now, are you familiar with what causes
18 contamination of the blood? In other words, you draw
19 blood from a human being.
21 Q. You send it to a lab where they have a
22 technician, at this point. The first question I'm
23 going to ask you, did you ever see the vial of blood
24 that was taken, at this point, from Shane Gates?
25 A. No, sir.
26 Q. No, okay. And, to the best of your knowledge,
27 that's not available for anybody to test, at this
28 point, as far as you know?
29 A. I have no knowledge.
30 Q. Nobody's asked you. So would you agree that
31 if, in fact, you get a reading like this,
32 (indicating), off a machine -- it's working -- assume
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1 it's working, okay?
3 Q. And his actions, reactions, and
4 observations --
6 Q. -- are that he's not intoxicated, not drunk,
7 would you question that there may be a scientific
8 problem in the test or the substance they drew for
9 the test, the way they collected it?
10 A. I can't say necessarily because of the types
11 of samples that are submitted to my laboratory. I
12 usually don't get that kind of information.
13 Q. That's right. But if, in fact -- let me just,
14 again, common sense, straight up. If I'm with the
15 guy at 9:10 p.m. --
17 Q. -- excuse me, make it 9:50 p.m. That's wrong.
18 9:50. And I see no signs of slurred speech,
19 intoxication, whatever. And I come up with a level
20 this high, at this point, because the blood is drawn,
21 at that point, would there be some thinking that
22 maybe there is a problem, either with the machine or
23 in fact the method of collection of the blood?
24 A. If I had knowledge to that?
25 Q. Yeah.
26 A. You know, we would take a close look at the
27 analysis to make sure everything was fine.
28 Q. And certainly the collection to make sure the
29 collection process was correct?
30 A. Yes.
31 Q. And are you aware that you collect blood for
32 blood alcohol test using iodine or Betadine when you
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1 clean the test?
2 A. Yes. Because you don't want to use
3 Isopropanol --
4 Q. Tell the jury. You don't want to use what?
5 A. Isopropanol is a typical ingredient --
6 Q. Because it's what? Alcoholic?
7 A. It is a form of alcohol.
8 Q. And tell the jury how that messes up your
9 results. Why don't you want it?
10 A. Well, it doesn't mess up all results. It
11 won't mess up the results that I'm performing because
12 I can distinguish the difference between ethyl
13 alcohol and that alcohol.
14 Q. You didn't do that in that test?
15 A. No, I didn't.
16 Q. But you avoid using alcohol-based material,
17 correct?
19 Q. Because it can throw the result off --
20 A. It could have a minor effect with my
21 methodology. But I can't speak for what they did.
22 Q. Okay. Let me put it this way: Do you have
23 any charts or stats to show the percentage you'd be
24 off?
25 A. Percentage? I'm not -- I don't think I
26 understand what --
27 Q. I understand. Well, first of all, we're
28 sitting here. You do know, at this point, that most
29 standard procedures for blood alcohol collection
30 tests, at this point, require that you not use an
31 alcohol basic rub on the skin, right?
32 A. Yes, I believe so.
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1 Q. And you agree with me that all these
2 procedures say you don't do that because it can cause
3 an incorrect result -- reading?
4 A. Well, it can cause interference, not an
5 incorrect result.
6 Q. Yes, sir. And if you see what appears clearly
7 to be an error, at this point, .273, and the human
8 eye and observation from a physician doesn't indicate
9 anyone drunk, it may have had an affect on the
10 reading, don't you agree, if alcohol was used?
11 A. Honestly, I cannot say because I don't know
12 what type of test they performed.
13 Q. Fair enough. Fair enough.
14 So we're looking -- let me say one more thing,
15 because we get this -- he's got to have 6. -- 16
16 drinks in his body, okay, at this point. And then
17 you figure he stopped at 9:06, at this point, because
18 that's what the radio dispatch says. And they do the
19 test, at this point, in the hospital. They drew the
20 blood. They put in and drew the blood. We're not
21 going to talk about how they drew it or whether they
22 used alcohol or not. That would have been almost
23 from 9:06 to 9:50, okay. That would have been about
24 an hour nobody seeing him drink anything, right?
25 A. Uh-huh, yes.
26 Q. How much would he have burned off?
27 A. What was that time frame?
28 Q. Burn -- well, let me do this because I think
29 the level -- again, I don't agree with .273. But if,
30 in fact, he hasn't been drinking in the presence of
31 the police, and they took him from the street, took
32 him in, and then drew his blood, at this point,
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1 generally drew his blood, 9:40 -- that's what it
2 says, 9:40 --
4 Q. -- his alcohol level would have actually been
5 higher than .273?
6 A. Yes. Because the alcohol is currently
7 metabolizing during that time frame. So it would
8 have been higher.
9 Q. Would have been higher. And certainly if it's
10 higher, you would expect obvious intoxication at that
11 level, you certainly would have expected it at a
12 higher level?
13 A. Absolutely.
14 Q. Do you know anything about the federal lawsuit
15 that's pending against these folks at this time?
16 A. I don't know.
17 MR. NORIEA:
18 Your Honor, I object to these
19 questions.
20 THE COURT:
21 He answered he had no knowledge.
22 Move on.
24 Q. Can I ask you what -- I guess we could do the
25 math if we needed to, but in order to consume between
26 8:30, which is a longer time, and 9:06, 36 minutes,
27 16 drinks, would you figure out how many drinks you'd
28 have to have? 16 into 36 minutes, how many drinks
29 per minute?
30 16 minutes. Excuse me. I misstate that. I
31 apologize. We're talking 36 minutes. 36 minutes
32 from 8 -- the longest time 8:40 to 9:06, how many
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1 drinks per minute?
2 A. You say 36.
3 Q. 36 minutes. He drinks 16 drinks.
4 A. About 9.8, if I'm correct. I'm wrong?
5 MR. NORIEA:
6 Your Honor, we'll stipulate it's
7 about two drinks a minute.
8 MR. REGAN:
9 I'm sorry? It's higher. Do the
10 math -- some people have been wrong on the
11 other math. Let's make sure we're right.
12 It's 16 into 36 minutes.
13 MR. NORIEA:
14 It's 2.25 drinks, Martin.
16 Q. That's a drink every --
17 A. It's over 32.
18 Q. Excuse me?
19 A. I'm getting 32.7. I may be incorrect.
20 Q. Would we agree it's about two drinks every --
21 MR. NORIEA:
22 We'll agree it's two drinks an hour,
23 whatever you what. We'll agree to
24 anything right now.
25 MR. REGAN:
26 You'll agree to anything? It's
27 vanilla and it's not egregious.
28 How many drinks?
29 MR. NORIEA:
30 I don't care.
31 MR. REGAN:
32 You don't care.
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2 Q. All right. All I can say is we'll have to do
3 the math. But the bottom line, in order to get to
4 this point, you've got to have 16 and a third drinks
5 in 36 minutes. And, finally, it may have been more
6 because the time from not drinking, allegedly, to the
7 time they take his blood, it would have been going
8 down? Are we right?
10 Q. Okay. Have you ever drawn blood in a hospital
11 emergency room?
12 A. No, I'm not a phlebotomist.
13 Q. Are you familiar with a man named Philip
14 Dueitt? That's Philip with one L, Dueitt?
15 A. No, sir.
16 MR. REGAN:
17 No further questions. Thank you.
19 Q. That drink amount, you're talking about beers,
20 correct?
21 A. That's the standard drink, a 12-ounce beer.
22 Q. Okay. Now -- and you're assuming that you're
23 starting off at 0, not having a drink the whole day,
24 correct?
25 A. Yes.
26 Q. And also the lack of food in your stomach
27 would cause that figure to go up faster, correct?
28 A. Yes, an empty stomach would cause the alcohol
29 to absorb much more quickly.
30 Q. And are you aware that the treating physician
31 in this case ordered a special mixture of vitamins
32 and minerals to help this guy become sober?
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1 MR. REGAN:
2 Excuse me. I'm going to object.
3 The test was not done for an hour and a
4 half after the drawing of the blood. So
5 the banana bag is not relevant probative
6 material to this case.
7 THE COURT:
8 And he's already testified that he
9 doesn't even know what a banana bag --
10 MR. NORIEA:
11 I'm just questioning him about the
12 doctor's conduct ordering something to
13 help the man because of his condition,
14 because they tried to get --
15 MR. REGAN:
16 I'm going to object at this point.
17 MR. NORIEA:
18 -- the jurors at this point to say
19 that this doctor said he was perfectly
20 normal, that treated him, and that
21 ordering the bag was just a blunder, I
22 guess that's why --
23 MR. REGAN:
24 Judge, this is just argument, at
25 this point.
26 THE COURT:
27 Well, that's what I get from you in
28 most every question you ask.
29 MR. REGAN:
30 Yes, sir.
31 THE COURT:
32 Rephrase your question, Mr. Noriea.
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2 Q. The fact that the doctor, the treating
3 physician ordered a special IV for this patient to
4 have to correct his inebriated condition, would
5 indicate to you that he had a high BAC level,
6 correct?
7 A. I can't comment on that.
8 MR. NORIEA:
10 THE COURT:
13 MR. NORIEA:
14 Roger Gottardi.
15 (ROGER GOTTARDI, after having been
17 as follows:)
19 Q. State your name, for the jury, please.
20 A. Roger Nicholas Gottardi.
22 A. St. Tammany Parish Sheriff's Office Criminal
23 Patrol Division.
24 Q. For how long?
25 A. Nine and a half years.
26 Q. What was your position on November 16, 2006?
27 A. I was a criminal patrol deputy.
28 MR. REGAN:
29 I didn't hear. I'm sorry.
30 THE WITNESS:
31 Criminal patrol deputy.
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1 Q. Around 9:00 that night, did you receive a call
2 for an officer needing assistance?
3 A. Yes, sir.
4 Q. And who made that call?
5 A. Deputy Nathan Miller.
6 Q. As a result of that call and transmissions you
7 heard over the dispatch and the Sheriff's Department
8 radio, what did you do?
9 A. I'm sorry, what -- could you repeat the
10 question, please?
11 Q. As a result of radio dispatch transmissions
12 and call from other people involved in this chase,
13 what did you do?
14 A. I put myself en route to his location.
15 Q. And where physically were you when you
16 started, if you know precisely?
17 A. 12 Westbound, right by Airport Road/Northshore
18 Boulevard.
19 Q. And what did you do after you got these calls
20 for help?
21 A. I headed towards Deputy Miller, his location.
22 Q. Did you know where he was at that time?
23 A. He advised just past 434 -- Highway 434.
24 Q. And that was the direction you were going in?
25 A. That's correct, westbound.
26 Q. Tell the ladies and gentlemen of the jury what
27 you saw when you arrived at that location.
28 A. When I arrived on scene, I saw Deputy Miller
29 in a struggle with the defendant, and I immediately
30 got out of my car, went to go assist him. I advised
31 that I was going to try -- I was going to place
32 Mr. Gates into handcuffs. And he started flailing
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1 his arms as I tried to retrieve my handcuffs. Deputy
2 Miller then administrated a spray of OC.
3 Q. What's OC?
4 A. Pepper Spray, Oleoresin Capsicum.
5 Q. That's okay, pepper spray is good.
6 A. And as he did that, I was able to get a
7 handcuff on him and then secure his other hand and
8 handcuff him and escort him back to my vehicle.
9 Q. How were the vehicles stacked that night? Who
10 was first, second, or third? I guess you were the
11 third car on the scene; is that a fair statement?
12 A. That is correct.
13 Q. How were the other vehicles positioned
14 vis-à-vis each other?
15 A. Deputy Miller's vehicle was positioned in
16 front of mine, and the defendant's vehicle was
17 positioned in front of his.
18 Q. What kind of vehicle did the defendant have?
19 A. Black sedan. I believe it's a GTO.
20 Q. What type of tag did it have, license tag?
21 A. Temporary tag.
22 Q. As you began -- after you got the defendant
23 handcuffed, did Deputy Nathan Miller have anything
24 else to do with him?
25 A. No.
26 Q. Did you have a partner that you rode with that
27 night?
29 Q. Who?
30 A. Deputy Brian Williams.
31 Q. Who drove and who rode?
32 A. I was driving.
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1 Q. What was Deputy Williams doing, if you know,
2 at the time when you were trying to get the defendant
3 handcuffed?
4 A. I do not know. I was -- he was coming to
5 assist. I was going to help Deputy Miller.
6 Q. And when you got to Deputy Miller you were
7 able to get the defendant under control?
9 Q. Did you smell any alcohol on the defendant?
10 A. I believe later we did, after we secured him
11 in the back of the police car.
12 Q. Tell the jury about his trip to the police car
13 with you, after you got him handcuffed.
14 A. It is our policy to pat a suspect down before
15 we place him in the back seat of a police car. And
16 as I was holding the defendant on the side of my car,
17 I began to pat him down. And he started to struggle
18 with me and throw his body back into me. And at that
19 time I tried to gain more control over him using an
20 arm bar technique that we're taught in training, and
21 called for assistance. And at that time he threw
22 himself back into me again, and our momentum carried
23 us down to the ground.
24 Q. Who hit the ground first?
25 A. The defendant.
26 Q. What part of his body hit the ground first?
27 A. The left side, the left face.
28 Q. Did he go straight down on his head, or did he
29 fall to the side, or do you remember?
30 A. I don't remember. We both went down at the
31 same time.
32 Q. Your body weight was on top of him?
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2 Q. After that happened, what did you do?
3 A. I immediately picked him back up, saw that he
4 had an injury, tended to that injury with some paper
5 towels and stuff, tried to stop the bleeding.
6 Q. Where was Deputy Williams at that time?
7 A. He was running to assist me.
8 Q. What was he doing? Do you know?
9 A. I believe he was doing an inventory of the
10 vehicle.
11 Q. Whose vehicle?
12 A. The defendant's.
13 Q. Do you see the defendant in court?
14 A. I do.
15 Q. Point him out for the jury.
16 A. He's right over there. (Indicating.)
17 Q. Is that the defendant you arrested that night?
19 Q. After you got him into the vehicle, what did
20 you do?
21 A. We went to -- we were just past the Lacombe
22 bridge on I-12 Westbound. I proceeded down westbound
23 right before the Fish Hatchery overpass that goes
24 over I-12, across the median, which is the shortest
25 distance to get back to the Louisiana Heart Hospital
26 in Lacombe.
27 Q. Who went -- what happened to Deputy Williams?
28 A. He was in the car with me.
29 Q. Tell the jury about the defendant's conduct
30 after you got him to The Heart Hospital.
31 A. He was yelling at everyone, telling them that
32 he was going to sue them.
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1 Q. Was he walking on his own?
2 A. We were assisting him.
3 Q. Who's "we"?
4 A. Myself and Deputy Williams.
5 Q. After you got him to the -- at that time, was
6 he handcuffed -- where did you -- how did you
7 handcuff him originally?
8 A. Originally, he was a handcuffed behind his
9 back.
10 Q. Then was that subsequently changed?
11 A. Yes. We handcuffed him in his front and put
12 shackles on him.
13 Q. Why did you do the change?
14 A. So he could hold a paper towel on head where
15 his injury, he sustained on the side of the
16 interstate.
17 Q. And is it proper procedure that when you
18 handcuff somebody in the front they need to have leg
19 shackles also?
20 A. That's correct, if they --
21 Q. If -- right. If they're handcuffed in the
22 back, they don't need leg shackles, correct?
23 A. Correct.
24 Q. How much time, if you recall, did you spend at
25 the hospital?
26 A. Many hours.
27 Q. You stayed there as the defendant was being
28 treated?
29 A. Yes, I did.
30 Q. How about Deputy Williams?
31 A. He was there with me.
32 Q. At any time during the evening did you smell
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1 alcohol on his breath?
2 A. I don't remember.
3 MR. REGAN:
4 I didn't hear you, I'm sorry.
5 THE WITNESS:
6 I don't remember at that time.
8 Q. Was the defendant impaired?
9 A. Yes.
10 Q. Extreme?
11 A. Yes, sir.
12 MR. NORIEA:
15 Q. Thank you for coming, Officer Gottardi. I've
16 got some questions regarding when you arrived, okay?
17 A. Yes, sir.
18 Q. Would you agree -- let's just start from the
19 beginning that when you arrived, the two doors -- the
20 two-door car, that was stopped, correct?
21 A. Yes, sir.
22 Q. It was not a four-door?
23 A. No, sir.
24 Q. No. And it had a temporary tag on it with
25 that same date, 11/16/06?
26 A. I don't remember the date.
27 Q. Okay. You --
28 A. I don't remember the date on the temporary
29 tag.
30 Q. You don't disagree -- you don't know one way
31 or the other?
32 Now, this is the thing I think you can help
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1 the jury with. And it's a question at this point,
2 when you got there, you didn't see any high speed
3 anything, correct?
5 Q. You didn't see the car getting stopped or how
6 long it took to get it stopped?
8 Q. Is that right?
9 A. Yes, sir.
10 Q. But when you got there, and we know this from
11 your report, what did you observe was happening to
12 this man's face?
13 A. I observed Deputy Miller --
14 Q. Tell the truth.
15 A. I observed Deputy Miller on top of Shane, with
16 Shane's face down towards the hood of the car. And
17 he was breathing heavily.
18 Q. Yes, sir. And I think you specifically said
19 that he was pushing his face down on the hood of the
20 car?
21 A. No, I did not say that.
22 Q. Let's look at your report, okay, because I
23 know this has been important to us. My client
24 maintains that his face is being pushed on top of the
25 hood of the car. Did you write a report?
26 A. The report says he was face down on the hood
27 of the car.
28 Q. And did you write in your report that you
29 observed Miller -- that's Nathan Miller -- with
30 Shane's face down on the hood of a car?
31 A. I observed Deputy Miller with Mr. Shane Gates'
32 face down on the hood of the car.
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1 Q. Right. And this hood of the car that he's got
2 his face down on is what car?
3 A. A police car.
4 Q. A police car. And whose police car?
5 A. Deputy Miller's police car.
6 Q. Miller's car. And do you know that Miller had
7 been driving that car at that time, right up until
8 then?
9 A. Yes, sir.
10 Q. Yes, sir. And there was nothing on the trunk
11 of Nathan Miller's car, was there, to stop somebody
12 from being put back on the back of the police car?
13 A. I don't remember -- recall anything on the
14 trunk.
15 Q. Yes, sir. You didn't take the temperature of
16 the hood of the police car that you saw Nathan Miller
17 putting his face on, did you?
18 A. No.
19 Q. No. And, in fact, according to your report,
20 that Shane Gates refused to put his face on the hood
21 of the car, you saw him pulling back, right?
22 A. I observed him face down on the hood of the
23 car while Deputy Nathan Miller was in a struggle with
24 him. That's what I observed.
25 Q. Right. Let's be a little more graphic, a
26 little more specific at this point. You saw Nathan
27 Miller, according to your report, struggling with
28 this man holding his face down on the hood of the
29 car, right?
30 A. He was face down on the hood.
31 Q. Yes, sir. And you also observed at this point
32 that Gates -- Gates was resisting holding his face on
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1 the hood of the police car, right?
2 A. I observed him resisting arrest.
3 Q. Well, that can be done of many ways, okay.
4 Do you think a person, a normal human being,
5 would want his face pushed down on the top of a hot
6 car?
7 A. I don't know what other people want.
8 Q. Again, I deal in logic and common sense.
9 Do you think it's possible that an individual
10 when his face is being put down on a hot car may
11 refuse to keep it on the hot car?
12 A. Well, I think when somebody doesn't want to go
13 to jail then they'll do whatever they want to not to
14 go to jail.
15 Q. That's true. I agree with you. People don't
16 want to go to jail. Well, we're not dealing with
17 people not wanting to go to jail. We're dealing with
18 someone with their face, which you observed, at this
19 point -- and I think we've already heard, at this
20 point, from Shane; you confirm when Shane says his
21 face was being held on top of the police car, you
22 agree with that, right?
23 A. He never told me anything about his face on
24 top of a police car. I observed --
25 Q. Well --
26 A. I observed --
27 Q. You --
28 A. I observed him face down on a police car.
29 Q. Yes, sir.
30 A. The only way you -- the only way he can be
31 handcuffed from behind. That's a position that -- he
32 was in a struggle.
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1 Q. Well, let's talk about that, okay? How many
2 policemen were there at the time? Three?
3 A. Yes, sir.
4 Q. Yes, sir. And was there anything wrong with
5 the trunk of the automobile, the police automobile,
6 that he --
7 A. I don't -- -
8 Q. -- that he couldn't be held down on the trunk?
9 A. I don't know.
10 Q. You don't know?
11 A. I don't know what was wrong with the trunk, if
12 there was something wrong with it.
13 Q. There was nothing wrong with it, was there?
14 A. I don't know.
15 Q. Oh, come on. Was there anything wrong with
16 the trunk of your car?
17 A. I believe not. I don't know.
18 Q. Nothing. And you got to believe that the
19 trunk of the automobile, the police unit, if it's
20 necessary to make a guy bend over, at this point, is
21 generally not hot, would you agree?
22 A. Yes, the trunk is not hot.
23 Q. Why would a decedent police officer want to
24 push somebody's face down on the hood of a hot car?
25 A. Probably because he felt his life was in
26 danger on the side of the interstate, in a struggle
27 with a suspect. And that was the first place that he
28 could go.
29 Q. I see. So you force his face down.
30 Would you think that if, in fact, there was a
31 hot surface, that the normal human being would pull
32 up or buck up against that?
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1 A. Sure, I guess.
2 Q. Sure. I mean, it's common sense. And at this
3 point, at this point we've got you confirming that --
4 who was the other officer that was with you that can
5 confirm that his face was being pressed down on the
6 hood of that car?
7 A. Deputy Williams.
8 Q. Yeah. Now, I understand -- you see, he wasn't
9 listening to Miller about leaving his face on the
10 hood of the car. You got involved at this point,
11 handcuffed him, right?
13 Q. And how did you say you put him on the ground?
14 A. I used an arm bar.
15 Q. What is that?
16 A. It's a technique we use to subdue a fighting
17 subject.
18 Q. And if you're handcuffed, you can't break your
19 fall, can you?
20 A. No, sir. But when you're fighting --
21 Q. Yes, sir. You want to --
22 MR. REGAN:
23 I'd ask that Shane Gates be able to
24 stand next to this officer. Let's see the
25 physical size of the two together.
26 THE COURT:
27 Any objection, Mr. Noriea?
28 MR. NORIEA:
29 No, Your Honor.
30 MR. REGAN:
31 Let's see if you'd come over here
32 and stand by the officer so the jury
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1 can -- over here is good, just right in
2 front of everybody.
3 THE WITNESS:
4 (Complies.)
5 MR. REGAN:
6 Okay.
8 Q. Now, go back. I've got some more questions,
9 so we can ask you.
10 The size -- we know what Miller's size was
11 because we've seen him. What was the size of the
12 other officer that was there with you?
13 A. I don't know. I didn't take his measurements.
14 Q. Well, I mean, he's your size?
15 A. He's right out there, if you want --
16 Q. So we're going to get to look at him?
17 A. Yes.
18 Q. So between the two of you, it was necessary to
19 throw this man on the ground on his face?
20 A. I was by myself.
21 Q. Would you agree that he was injured at that
22 point?
23 A. Yes.
24 Q. Would you agree that prior to doing that he
25 was not injured?
26 A. Prior to that? Yes.
27 Q. Now -- and at this point, do you think that it
28 was necessary to throw him on his face, on the
29 ground?
30 A. I didn't throw him on the ground.
31 Q. I'm sorry.
32 You know what the problem is? Would you show
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1 the jury how you would put me on the ground on my
2 face with my handcuffs behind my back?
3 A. Well, considering the momentum that -- when he
4 bumped back on me and we're both in a struggle, I
5 reached behind his arm and grabbed his right arm --
6 Q. Uh-huh (affirmative response).
7 A. -- which blate (phonetic) -- and he come back
8 on me again and blated (phonetic) and fell down on
9 the ground on his left side.
10 Q. You had your gun on you, right?
12 Q. What other weapons were you carrying with?
13 Did you have a baton or anything else?
14 A. I had one at the time. I don't have one now.
15 Q. And he's not armed, huh?
16 A. No.
17 Q. Do you think this little guy is going to start
18 a fight with three policemen with guns? Does that
19 make sense to you?
20 A. Yes, it makes sense.
21 Q. It makes sense to you?
22 A. Yes, sir.
23 Q. Well, let me go one step further. You were a
24 detective back then?
25 A. I was a deputy.
26 Q. Have you ever held a title with detective?
27 A. Yes, I have.
28 Q. You don't hold it anymore?
29 A. No, I don't.
30 Q. You don't hold it anymore. You were a
31 detective. What does it take to become a detective?
32 A. You put in for the position and interview.
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1 Q. And, I mean, you've got -- I guess you've got
2 to be good, you've got to be qualified. They don't
3 pick anybody to be a detective, do they?
4 A. They pick who they want.
5 Q. No, no, no, no. I mean, the Sheriff -- I
6 respect Sheriff Strain. He doesn't pick anybody he
7 wants. He picks people that are qualified?
8 A. Okay.
9 Q. Do you agree with that?
10 A. Yes, sir.
11 Q. And then since then they've taken that
12 detective status away from you?
14 Q. And they put you in the jail guarding people,
15 right?
16 A. No.
17 Q. Do you work in the jail?
18 A. No, I do not.
19 Q. Never worked in the jail?
20 A. When I first began in the sheriff's office.
21 Q. When they took your detective status away, did
22 you ever go work in the jail?
23 A. No, sir.
24 Q. What did you do to get your detective status
25 taken away from you?
26 A. I don't recall. I'd have to look.
27 Q. Wait a minute. Wait. "I don't recall". I've
28 heard that from people who don't want to answer the
29 question. Why can't you recall why the status of
30 detective was taken away from you? Tell the jury the
31 truth. Do you not recall?
32 A. I didn't answer a phone call or something. I
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1 think it was something of that nature.
2 Q. You didn't answer a phone call, so they
3 stripped you of your detective status?
4 A. It happened.
5 Q. Okay. All right. Okay.
6 And you said -- and I read your report, you
7 did not smell any alcohol on Shane Gates, did you?
8 A. I did not put it in the report.
9 Q. I'm sorry?
10 A. It's not in the report.
11 Q. No, sir. In fact, you were so close you had
12 him and you threw him on the ground, and you did not
13 smell any alcohol, and you didn't put it in your
14 report?
15 A. We were both in a struggle, and it happened
16 just like real fast.
17 Q. Uh-huh (affirmative response). And you spent
18 how many hours over at the hospital with him?
19 A. I don't remember exactly.
20 Q. Yeah.
21 A. At the time.
22 Q. And not -- didn't smell at all?
23 A. Yes, I did.
24 Q. What do you do now, Former Detective?
25 A. I'm a deputy, criminal patrol.
26 Q. Any further thoughts on why your status was
27 taken away from you? Your higher position?
28 A. No.
29 Q. No idea?
30 A. (Shaking head negatively).
31 Q. How long have you been with the sheriff?
32 A. Nine and a half years.
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1 Q. Sir -- and, again, I don't mean to be rude. I
2 would think that being a detective is a good thing?
3 A. Yes, sir.
4 Q. I would think that you would have been pretty
5 proud to have been a detective?
7 Q. Am I right?
8 A. Yes, sir.
9 Q. I would think that somebody who was a
10 detective would be able to articulate in great detail
11 why they stripped you of that title.
12 A. I didn't answer a phone call.
13 Q. That's it?
14 A. Yes, sir.
15 Q. One phone call, and you're out?
17 Q. That's it?
18 A. That's correct. It's a policy violation. I
19 violated it.
20 Q. And you didn't have a good reason, right?
21 A. I didn't answer a phone call.
22 Q. I think Sheriff Strain is a very fair man,
23 don't you?
24 A. Yes, I do.
25 Q. Sheriff Jack Strain has got a reputation in
26 the parish to be honest and fair, right?
27 A. Yes, sir.
28 Q. And do you think, at this point, that that's
29 the beginning and end of your problems, in being
30 stripped of the status of detective?
31 A. I'm sorry, what do you mean -- can you
32 rephrase that question?
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1 Q. Yes. How long did it take you to become a
2 detective?
3 A. A couple of weeks.
4 Q. No, no, no. How many years were you with the
5 Sheriff's Department?
6 A. Approximately six and a half, maybe seven
7 years.
8 Q. Yes, sir. And it was -- the only -- I'm
9 sorry. You've answered. It was taken away because
10 you didn't return a phone call?
12 Q. Thank you. And with respect to -- with
13 respect to Shane Gates, the bucking back, at this
14 point, was lifting his head off the hood of the car,
15 right?
16 A. He threw his whole head and torso back into
17 mine.
18 Q. And the only way you could control him was to
19 dump him on the ground on his face?
20 A. I tried to control him back on the hood of the
21 car so I could safely pack him down and put him into
22 my police car.
23 Q. Yes, sir. And would you agree that's
24 excessive force?
25 A. No.
26 Q. No?
27 A. No, sir.
28 Q. No excessive force there?
29 A. No, sir.
30 Q. You've been sued, haven't you? You've got a
31 trial -- you've got a trial coming in federal court
32 for your actions, don't you?
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1 A. I don't know.
2 Q. Wait. I'm sorry. You don't know if you've
3 been sued?
4 A. I know I've been sued, but I don't know when
5 that date is.
6 Q. Let's start with that. You know you've been
7 sued as a result of this, right?
8 A. Okay.
9 Q. And you've been sued with allegations of
10 excessive force, right?
11 A. Yes.
12 Q. I mean, you've got a lawyer and everything?
13 A. Yes.
14 Q. Okay. And with respect to that, at this
15 point, the allegations are that you basically used
16 such excessive force to cause permanent injuries to
17 Shane Gates' face?
18 A. Yes, sir, allegations.
19 Q. Yes, sir. You know this man has no felony
20 convictions of any kind?
21 A. There's a lot of people that get arrested with
22 no history.
23 Q. Do you know he's a Loyola graduate?
24 MR. NORIEA:
26 relevance of that.
27 THE COURT:
28 Sustained.
30 Q. Do you know he was a long-term resident of
31 St. Tammany?
32 MR. NORIEA:
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1 Object.
2 THE COURT:
3 Sustained.
4 MR. REGAN:
7 Q. You've got your vest on now?
9 Q. Did you have it on then, or do you remember?
10 A. I wear it every day I wear this uniform.
11 Q. Okay.
12 MR. NORIEA:
13 Judge --
15 Q. Could you pretend I'm Shane Gates, and I'm
16 handcuffed behind my back. Could you come up and
17 show the jury --
18 A. If this is the hood of the car -- I'm sorry.
19 The hood of the car is right here. I had my foot,
20 with my weapon away from him.
21 Q. Wait. How was I standing? What was I doing?
22 A. You'd be on the -- you'd be on the hood of
23 the -- towards the hood of the car right here.
24 Q. Okay. So this --
25 A. Here's the hood of the car. And he came back,
26 threw his body back into me. And I tried to push him
27 back on the car. And as he was trying to come back
28 off, I put my arm behind his back, right here, and
29 grabbed his hands and tried to control him on the
30 hood of the car so I could finish patting him down
31 for weapons or anything because that hadn't been done
32 yet.
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1 Q. And then?
2 A. And he threw back himself again, and we fell
3 down on the ground with each other, and I landed on
4 top of him.
5 Q. How much did you weigh at that time, about?
6 A. 210.
7 Q. How much?
8 A. 210 pounds.
9 Q. After he fell on the ground, what did you do
10 immediately after that?
11 A. Immediately got off the ground after I
12 hollered for help, for assistance.
13 Q. Who came to help you?
14 A. Deputy Brian Williams.
15 Q. All the things that you just did with me, is
16 that taught by the sheriff's office?
17 A. It's taught in the POST Academy, as well as
18 the sheriff's office.
19 Q. Did you intend to hurt Shane Gates?
20 A. No, sir.
21 MR. NORIEA:
23 THE COURT:
25 THE WITNESS:
26 Thank you.
27 MR. NORIEA:
28 Brian Williams.
29 THE COURT:
30 No, we're going to take a break. We
31 have our dinner here for our jury. So
32 we're going to take a break until 8:15.
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1 MR. REGAN:
2 Would you instruct the officer
3 concerning his sequestration, please.
4 THE COURT:
5 Yes.
6 Officer, don't discuss with your
7 testimony with anyone other than counsel.
8 THE WITNESS:
9 Yes, sir.
10 THE COURT:
11 You may retire the jury.
13 retired.)
14 THE COURT:
16 You may be seated. Call your next
17 witness.
18 MR. NORIEA:
19 Brian Williams.
20 (BRIAN WILLIAMS, after having been
22 as follows:)
24 Q. State your name, please, for the jury.
25 A. Detective Brian Williams.
27 A. St. Tammany Parish Sheriff's Office,
28 Investigations.
29 Q. How long have you been employed in that
30 capacity?
31 A. 14 years.
32 Q. I want to direct your attention to
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1 November 2006. What was your responsibility for the
2 St. Tammany Sheriff's Office at that time?
3 A. I was assigned to the criminal patrol
4 division, field training officer.
5 Q. And on that night did you assist Nathan Miller
6 in attempting to stop a defendant in a chase?
7 A. Yes.
8 Q. Were you in a car by yourself?
9 A. No, sir. It was myself and Detective Roger
10 Gottardi.
11 Q. Tell the jury what you heard, where you were,
12 and what you did in response to what you heard over
13 the broadcast.
14 A. Heard Deputy Miller coming over. He was in
15 pursuit of a vehicle I-10 westbound. Put ourselves
16 en route to back him. And got onto I-12.
17 Q. And after you arrived at the scene, tell the
18 jury what you saw and what you did.
19 A. Got out of the car and immediately went up to
20 Deputy Miller's location. We observed him with
21 Mr. Gates on the hood of the front of car, on the
22 hood of the car.
23 Deputy Miller -- Deputy Miller appeared to be
24 out of breath as if had been in a struggle. We
25 immediately went to assist him in handcuffing
26 Mr. Gates. Mr. Gates started to swing his arms as if
27 was trying to avoid being handcuffed, at which time
28 Detective Miller sprayed him in the eyes with pepper
29 spray. At that time we were able to handcuff him.
30 Q. After he was handcuffed, what did Miller do,
31 if you recall? Nathan Miller?
32 A. After he was handcuffed -- I saw Gottardi walk
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BRIAN WILLIAMS
1 him to the unit.
2 MR. REGAN:
3 I'm sorry, I can't hear you over
4 here.
5 THE WITNESS:
6 Detective Gottardi walked him soon
7 after to the unit and placed him in the
8 unit.
10 Q. And what did you do?
11 A. At that time Deputy Gottardi was walking him
12 to the unit. I went to help start the inventory for
13 the wrecker log.
14 Q. Is that procedure?
15 A. Yes, sir.
16 Q. How far did you get in the inventory and what
17 did you see?
18 A. Got into the car, observed a red cup in the
19 middle console with a brown liquor in it that wreaked
20 of alcohol.
21 Q. Was it a beer?
22 A. No, sir.
23 Q. What did you do after that?
24 A. Soon after that -- I believe I still had the
25 cup in my hand. I heard Gottardi yell for
26 assistance. And he said: "Hey." And when I looked,
27 him and Mr. Gates were on the ground.
28 Q. What did you do then?
29 A. Put the cup back in car, rushed over to Deputy
30 Gottardi. At that time he was helping Mr. Gates back
31 to his feet.
32 Q. What condition was Gates at that time, the
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1 defendant?
2 A. He had a laceration to his left eye.
3 Q. As a result of that, what did y'all decide to
4 do?
5 A. Take him to the hospital.
6 Q. Was that immediate?
7 A. Yes, sir.
8 Q. Did you waste any time around?
9 A. No, sir.
10 Q. After you got to the hospital, what was Gates'
11 condition?
12 A. He -- slurred speech. I could hardly make out
13 what he was saying. Pretty much couldn't get
14 anything out of him.
15 Q. What was his demeanor?
16 A. I would say agitated. He was real aggravated.
17 I remember him mentioning that he was a manager of
18 some law firm or something like that, I remember him
19 saying.
20 Q. Was he able to walk by himself?
21 A. No, sir.
22 Q. Who helped him?
23 A. Myself and Deputy Gottardi.
24 Q. After you got to the hospital, did you turn
25 him over to the hospital staff?
26 A. Yeah. Yes, sir.
27 Q. Other than getting to start the inventory of
28 the defendant's car -- you were sidetracked, correct?
29 A. Yes, sir.
30 Q. You didn't return to do anything like that?
31 A. No, sir.
32 Q. You were more concerned about the defendant's
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BRIAN WILLIAMS
1 condition?
2 A. Absolutely.
3 Q. And do you see him present in court, the
4 defendant you arrested that night?
5 A. Yes.
6 Q. Could you point him out?
7 A. Yes, sir. He's right there in the black suit.
8 Q. Let the record reflect he identified the
9 defendant before the bar.
10 MR. NORIEA:
11 Tender the witness, Your Honor.
12 MR. REGAN:
13 Thank you.
15 Q. Officer, this red cup with alcohol in it, if
16 that's the case, that's pretty serious evidence?
17 A. Yes.
18 Q. Right? No one's got it. It didn't appear.
19 It wasn't on anyone's evidence log, right?
20 A. That's correct. My main concern was getting
21 him to the hospital.
22 Q. And you're a defendant in this lawsuit in
23 federal court?
24 A. Yes.
25 Q. And your partner is Gottardi, right?
26 A. Yes.
27 Q. And you know for a fact, at this point, that
28 with respect to an open container in a car, is an
29 offense?
30 A. Yes.
31 Q. And, in fact, the District Attorney refused to
32 accept that charge of an open container in the car?
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BRIAN WILLIAMS
1 You know that as well --
2 MR. NORIEA:
3 I'm going object to the question --
4 MR. REGAN:
5 It was refused.
6 MR. NORIEA:
7 -- Your Honor. He's got nothing to
8 do with what charges are --
9 THE COURT:
10 Sustained.
11 MR. REGAN:
12 I'm sorry.
14 Q. You don't. But the District Attorney
15 decides -- Mr. Noriea and his folks decide on what
16 they want to charge. You do know that they did not
17 accept the charge of open container in the car, don't
18 you?
19 MR. NORIEA:
20 I'm going to object, Your Honor.
21 It's beyond his knowledge.
22 MR. REGAN:
23 I think he knows.
24 THE COURT:
25 Well, do you have any personal
26 knowledge as to what charges were taken?
27 THE WITNESS:
28 I remember writing a summons for it.
30 Q. For open container, right?
31 A. Yes, sir.
32 Q. And you know that take. Take that to the
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BRIAN WILLIAMS
1 bank. You wrote him an open container charge because
2 of what you claimed, at this point. And the District
3 Attorney did not charge my client with open
4 container, did he?
5 A. No, sir.
6 Q. Now, let's go on. You're a defendant in the
7 case, right?
8 A. Yes.
9 Q. This fellow is obviously drunk, to you, right?
10 A. Yes, sir.
11 Q. And you don't bother to get this cup with
12 liquor that could confirm that he's been drinking
13 liquor in his car?
14 A. Again, my main concern was the injury to his
15 eye and was taking him to the hospital.
16 Q. Sir, you've got three officers there, right?
17 A. I'm telling you what I did, sir.
18 Q. Yes. And when you get there, you tell the
19 jury, and I want to make sure I wrote this down. You
20 said that he appeared to be drunk, you had to help
21 him in, right?
22 A. Yes.
23 Q. He had slurred speech?
24 A. Yes.
25 Q. And he acted agitated?
26 A. Yes, sir.
27 Q. Right. And down -- do you know Mr. Philip,
28 with one L, Dueitt --
29 A. No, sir.
30 Q. -- the nurse?
31 A. No, sir.
32 Q. Do you know that he described him as being
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BRIAN WILLIAMS
1 calm?
2 MR. NORIEA:
3 I'm going to object to this
4 question, Your Honor. It's irrelevant.
5 He wasn't here for the testimony. And
6 it's immaterial.
7 THE COURT:
8 It's cross-examination. He can ask
9 the question.
11 Q. Calm. You said that he, Shane Gates, this
12 fellow over here with a cup of liquor sitting in his
13 car that you didn't save, was, in fact, had slurred
14 speech. You talked to him, right?
15 A. He didn't talk much at all. When he did, it
16 was slurred.
17 Q. Slurred. And can you explain -- and you guys
18 took him right from the scene to The Heart Hospital,
19 right?
20 A. Yes, sir.
21 Q. Can you explain to this jury, in common sense,
22 why the doctor who examined him at that time, just a
23 few minutes later, found no slurred speech and no
24 intoxication?
25 A. I'm telling you what my observation was. I
26 didn't speak to him much.
27 Q. And your observation, sir, is your pocketbook
28 is on the line in federal court right now?
29 A. That has nothing to -- I mean --
30 Q. Well, let's see if it does or doesn't, okay.
31 First of all, you didn't see any aggressive
32 aggravated flight, did you?
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BRIAN WILLIAMS
1 A. No. When I got there the pursuit was over.
2 Q. And you can tell us this wasn't a four-door
3 automobile but a two-door automobile, right?
4 A. I don't remember.
5 Q. Do you know how many doors it was?
6 A. I don't recall.
7 Q. Well, let's assume, for the sake of just
8 talking, that they got -- they stopped a two-door --
9 that is, Miller stopped a two-door, not a four-door,
10 okay. And let's just assume for our discussion, at
11 this point, that this fellow, at this point, his face
12 is put on the hood of a car. That issue of the hood
13 of the car and struggle with the police had nothing
14 to do with aggravated flight, do you agree?
15 A. The issue --
16 Q. I'm sorry, that's a lot. Let me break it
17 down. First of all, we know from testimony and from
18 the report that when you guys got there you saw
19 Miller putting his face on the hood of a police unit?
20 A. I saw Miller standing behind him, his face was
21 on the hood.
22 Q. On the hood.
23 A. In the area of the hood.
24 Q. Fair enough.
25 A. Miller's out of breath. And this is all
26 happening in seconds. We're running up there to give
27 him a hand.
28 Q. And if the hood is hot and burns his skin,
29 what would a normal human being do?
30 A. Probably raise up.
31 Q. Yeah. And when you raise up and push back, at
32 this point, huh, and you mistake that to be
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BRIAN WILLIAMS
1 resisting --
2 A. (Shaking head negatively).
3 Q. No. And he's thrown on the ground and you've
4 got 100,000 worth of medical damage, at this point,
5 you guys could be liable, right? Am I right?
6 A. Yeah.
7 Q. So we went from a case of aggravated flight,
8 which may have stopped the wrong car, to all this
9 intoxication, at this point, after his -- he's thrown
10 on the ground, he's intoxicated, right?
11 A. I spoke to Gottardi. They fell on the
12 ground -- I didn't see -- when I looked they were
13 already on the ground, sir.
14 Q. Yes, sir. And then we've got this whole thing
15 with the red cup with the alcohol in it, which you
16 didn't save, didn't report it -- I mean, didn't file
17 any type of recovery or anything on it, right?
18 A. Listed it in the narrative report.
19 Q. What I think happened, at this point, sir, is
20 we had a case of somebody being arrested for
21 aggravated flight, nothing else, right? That's why
22 he was stopped because he allegedly was a four-door
23 car that was speeding down I-12. You do know that's
24 why he was stopped?
25 A. That's why he was pursued.
26 Q. And you know this case has been described as a
27 nonvarious vanilla-type case. Do you know that? No?
28 It now turns --
29 A. I don't understand what you're saying.
30 Q. Excuse me?
31 A. I don't understand.
32 Q. Well, it's now turned into a case of an
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BRIAN WILLIAMS
1 allegation of police brutality that's in the federal
2 court, right?
3 A. Yes.
4 Q. And have you -- who represent? You got an
5 attorney, right?
6 A. No, sir. I haven't personally hired an
7 attorney.
8 Q. I know. You haven't personally hired one, but
9 there's been an attorney on your case?
10 A. I guess.
11 Q. You guess. Sure you know.
12 A. I mean, I haven't talk to him.
13 Q. File an answer, okay.
14 So we then end up with this -- would you
15 describe to me what you mean he's agitated, slurred
16 speech -- probably walking crooked, too, huh?
17 A. I say agitated. I mean, he just look -- at
18 his face, I mean, to me, in my opinion, he appeared
19 agitated. Didn't speak much.
20 Q. Was he --
21 A. Couldn't understand much what did.
22 Q. Was he alert?
23 A. He was incoherent.
24 Q. Let's talk about incoherent. Do you know that
25 his face was pounded, (demonstrated), three times on
26 the asphalt?
27 A. I don't believe that.
28 Q. You don't?
29 A. I don't believe that for one second.
30 Q. You don't believe that?
31 A. No.
32 Q. How did he get this big problem with his eye
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BRIAN WILLIAMS
1 and multiple stitches and all the other damage?
2 A. Like I said, when I turned around, they were
3 on the ground already.
4 Q. Yes, sir.
5 A. When I rushed over there, Gottardi was already
6 picking him up, helping him up. That's when I
7 noticed the damage to his eye.
8 Q. Right. You were rushing over there. So
9 whatever happened on the ground is over with at that
10 point, right?
11 A. Yes.
12 Q. Do you know that he was actually unconscious?
13 A. No, I didn't.
14 Q. Do you think somebody might be a bit groggy,
15 you know, at this point if he was knocked out
16 briefly?
17 A. He was kind of incoherent before that, sir.
18 Q. Incoherent. He was incoherent before his head
19 hit the ground?
20 A. He was -- he didn't speak. He resisted --
21 wouldn't go into the handcuffs. He wouldn't talk
22 hardly -- he wouldn't hardly talk. And when he did,
23 you couldn't understand him.
24 Q. If -- you saw damage to his face?
25 A. Yes, sir.
26 Q. Do you think that if somebody's head was
27 pounded on the asphalt, serious, okay, and that
28 serious damage, that he might very well be stunned?
29 I mean, that's common sense?
30 A. Yes.
31 Q. And could you excuse a fellow who was stunned
32 with that type of massive injury from not talking
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BRIAN WILLIAMS
1 right away? Huh? Are we fair?
2 A. That's fair.
3 Q. And you would say that when you took him in
4 the hospital he was so agitated that anybody saw him
5 would know he was agitated, right?
6 A. That's what my opinion, sir, he was agitated.
7 Q. Okay. At this point. And you have --
8 A. The --
9 Q. -- no special connection -- do you know who
10 Dr. Bruce Kerry is, the physician who treated him?
11 A. I met him that night.
12 Q. Right. Did you know him before or after?
13 A. No, sir.
14 Q. He didn't have any grudge against you or your
15 partner Gottardi?
16 A. No, sir.
17 Q. No? At this point. And there was no reason
18 you would think that Dr. Bruce Kerry would lie to
19 protect him and say that he wasn't intoxicated, he
20 didn't have a speech problem, he was alert and
21 everything else? There was no reason that you could
22 give this jury why Dr. Kerry would lie about that,
23 right?
24 A. No.
25 Q. And, you see, you're a detective, right?
26 A. Yes, sir.
27 Q. Your partner was a detective?
28 A. Yes.
29 Q. Do you know why they took his detective status
30 away?
31 A. I do not.
32 Q. I'm sorry?
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1 A. I don't know.
2 Q. You don't know. How long have y'all been
3 friends?
4 A. Since he got hired here.
5 Q. How many years?
6 A. Eight or nine.
7 Q. I think you're very proud of the fact that
8 you're a detective?
9 A. I am.
10 Q. And they don't pick everybody to be
11 detectives, do they?
12 A. No, sir.
13 Q. And they specially pick you for that?
14 A. Yes, sir.
15 Q. And you would agree that taking that status
16 away is hurtful?
17 A. Depends on who you talk to.
18 Q. Oh, I see. I see. So as far as you're
19 concerned, taking your status away wouldn't mean
20 anything to you?
21 MR. NORIEA:
22 Your Honor, let me object to this
23 question. That's argumentative and it's
24 irrelevant.
25 THE COURT:
26 Sustained.
28 Q. Sir, let me ask you something, at this point,
29 Detective -- he was a detective, Gottardi, at this
30 point, do you think if somebody took your detective
31 status away you would know exactly why?
32 A. Yes.
199
17-30519.1483
1 MR. NORIEA:
2 I'm going to object --
4 Q. And would you say to someone "I don't
5 remember" and have to be asked two or three times why
6 they took your detective status away? No?
7 I thank you for coming.
8 And there's no sign of this red cup, right,
9 anywhere?
10 A. No.
11 MR. NORIEA:
12 Nothing further.
13 THE COURT:
15 MR. NORIEA:
16 Your Honor, I just want to make
17 sure -- I'd like to make sure that
18 everything that we have not offered ---
19 offered into evidence, I think Exhibits 1,
20 2, 3, 4, 5, that it has been offered and
21 admitted.
22 THE CLERK:
23 No. 3 has not.
25 off the record.)
26 MR. NORIEA:
27 S-3, we'll withdraw that.
28 THE CLERK:
29 It's not in.
30 MR. NORIEA:
31 So we've just got 1, 2, 4 and 5.
32 Your Honor, the State rests.
200
17-30519.1484
1 THE COURT:
2 And all of the defense exhibits are
3 in evidence, correct?
4 MR. REGAN:
5 I think all exhibits that have been
6 offered have been accepted. I would ask
7 that all of the exhibits be published to
8 the jury, with them keeping in mind they
9 won't be able to take the written
10 documents into the jury room. They have
11 to read the medical reports here.
12 MR. NORIEA:
13 Your Honor, this is Exhibit 3. We
14 have a copy for each juror because it is
15 the medical records that's probably --
16 THE CLERK:
17 Do you have it as 4, the medical
18 records?
19 MR. NORIEA:
20 Yes, Exhibit 4, that's what I meant
21 to say.
22 THE COURT:
23 Now, you don't have any objection to
24 duplicates being --
25 MR. REGAN:
26 No, sir, the publication.
27 THE COURT:
28 Okay. Publish the exhibits to the
29 jury.
30 MR. REGAN:
31 Right, those are the medical
32 reports, as we've indicated and discussed
201
17-30519.1485
1 before.
2 (Whereupon, at this time, the
3 evidence was published to the jury for
4 review.)
5 THE COURT:
6 Ladies and gentlemen, please examine
7 the written documents and other exhibits
8 very closely, as you will not be allowed
9 to take those exhibits into the jury room.
10 Counsel, approach the bench.
13 THE COURT:
14 Once you look at a picture you can
15 just pass it down.
16 MR. NORIEA:
17 Your Honor, may we approach just a
18 minute while they review the evidence?
19 THE COURT:
20 Yes.
23 MR. REGAN:
24 I think it's incumbent on me at this
25 point -- we've now heard a great deal more
26 evidence regarding the blood alcohol test,
27 BAC/BAT. The witness himself, at this
28 point, I think has been shown he doesn't
29 know whether or not he used alcohol or not
30 as a swab. There are cases that say if
31 alcohol was used in the swab, then the
32 test can't be introduced, the results
202
17-30519.1486
1 can't be introduced. I would suggest that
2 based on what you have now, I need to
3 reurge my motion at this point. I guess,
4 two things: One, I'd ask that the Court
5 advise the jury to disregard the 2.73
6 result because of the lack of
7 confrontation and the issues involving
8 Melendez -- the issues involving Daubert
9 at this point. Advise them to disregard
10 or grant us a mistrial, now that the
11 evidence has been fleshed out as much as
12 it has at this point, they testified they
13 didn't keep a sample, can't be retested.
14 The lab technician is dead, for
15 cross-examination purposes. The nurse in
16 question has admitted he said in the past,
17 in March of 2011, that he didn't know for
18 sure whether he had used alcohol or not
19 for that part of the swab. And for all
20 these things that have now come to the
21 forefront through cross-examination I'd
22 ask that the Judge, one, two, instruct the
23 jurors to disregard, three, and/or two
24 grant us a mistrial at this point.
25 THE COURT:
26 The Court has listened to the
27 testimony. And actually one of the
28 concerns that the Court had was that the
29 records were not certified. The State has
30 actually produced certified records here
31 today with their witnesses so that that
32 portion is satisfied, based upon the
203
17-30519.1487
1 ruling of the First Circuit and the
2 Supreme Court.
3 Your motion is denied.
4 MR. REGAN:
6 Thank you.
7 THE COURT:
8 So noted.
9 (The following proceedings were held
10 in open court:)
11 THE COURT:
12 Ladies and gentlemen we're about to
13 go to closing arguments. If there is
14 anyone that has reviewed all of the
15 evidence and needs to go for a break, you
16 can do so it at this time.
17 We will now have our closing
18 arguments. The State will proceed first.
19 (At this time, the trial continued
20 with the closing arguments.)
21
22
23
24
25
26
27
28
29
30
31
32
204
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1 REPORTER'S CERTIFICATE
2 This certificate is valid only for a transcript
3 accompanied by my original signature and original
4 required seal on this page.
5 I, Mary Broom Gressaffa, Official Court
6 Reporter, in and for the State of Louisiana, employed
7 as an official court reporter by the Twenty-Second
8 Judicial Court for the State of Louisiana, as the
9 officer before whom this testimony was taken, do
10 hereby certify that this testimony was reported by me
11 in the stenotype reporting method, was prepared and
12 transcribed by me or under my direction and
13 supervision, and is a true and correct transcript to
14 the best of my ability and understanding, that the
15 transcript has been prepared in compliance with
16 transcript format guidelines required by statute or
17 by rules of the board or by the Supreme Court of
18 Louisiana, and that I am not related to counsel or to
19 the parties herein nor am I otherwise interested in
20 the outcome of this matter.
21
22 ________________________________
Mary Broom Gressaffa, RPR, CCR
23 Certified Court Reporter
Certificate No. 93016
24
25
26
27
28
29
30
31
32
205
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17-30519.1495
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17-30519.1497
17-30519.1498
17-30519.1499
17-30519.1500

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
Gracianette, Assistant District Attorney Nicholas F. Noriea, Jr., Kathryn Landry, Marie-Elise
Prieto, in her individual and her official capacity as former Clerk of Court for the Parish of St.
Tammany, Charles M. Hughes, Jr., and Philip Duiett, to respectfully move this Honorable Court
for leave to file the attached reply memorandum in support of their Joint Motion to Lift Stay [see
R. Doc. 211]. Defendants request such leave because they believe it is necessary to address
several of the representations and arguments made by Shane Gates in his opposition
memorandum. Defendants believe that their reply memorandum will benefit the Court in its
consideration of their Joint Motion to Lift Stay.
89240/440363
Page 1 of 3
17-30519.1501
WHEREFORE, Movers pray that they be granted leave to file the attached reply
memorandum into the record and that the same be deemed filed into the record.
s/ Chadwick W. Collings_______________ s/ Emily G. Couvillon_______________

Chadwick W. Collings, T.A. (#25373) Emily Gaunt Couvillon, T.A (#31114)
Andrew R. Capitelli (#31649) 22nd Judicial D.A.'s Office
Thomas S. Schneidau (#33359) 701 N Columbia Street
MILLING BENSON WOODWARD L.L.P. Covington, LA 70433
68031 Capital Trace Row Telephone: (985) 809-8374
Mandeville, Louisiana 70471 ecouvillon@22da.com
Telephone: (985) 292-2000 Counsel for Walter P. Reed, in his official
Facsimile: (985) 292-2001 capacity as former District Attorney for the
ccollings@millinglaw.com 22nd Judicial District Court, Assistant
Counsel for Rodney J. "Jack" Strain, Jr., District Attorneys Ronald Gracianette and
in both his individual capacity and his Nicholas F. Noriea, Jr., and Kathryn
official capacity as former Sheriff of St. Landry
Tammany Parish, Deputy Nathan Miller,
s/ Thomas H. Huval___________________ s/ Richard T. Simmons________________

Thomas H. Huval (#21725) Richard T. Simmons, Jr., T.A. (#12089)
Huval, Veazey, Felder & Renegar, LLC Hailey, McNamara, Hall, Larmann
532 E. Boston St. & Papale
Telephone: (985) 809-3800 P. O. Box 8288
thuval@hvfr-law.com Metairie, LA 70011-8288
Counsel for the former Clerk of Court for Telephone: (504) 836-6500
the Parish of St. Tammany, Marie-Elise rsimmons@hmhlp.com
Prieto, in her individual and her official Counsel for Charles M. Hughes, Jr.
capacity
89240/440363
Page 2 of 3
17-30519.1502

Court of the United States District Court for the Eastern District of Louisiana on December 12,

89240/440363
Page 3 of 3
17-30519.1503

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
Considering the foregoing Joint Motion for Leave to File Reply Memorandum;
IT IS ORDERED that Defendants’ Joint Motion for Leave to File Reply Memorandum
is HEREBY GRANTED and Defendants’ Joint Reply Memorandum shall be filed into the
record of this matter.
____________________________________
JUDGE
89240/440370
17-30519.1504

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************

Noriea, Jr., Kathryn Landry, Marie-Elise Prieto, in her individual and her official capacity as
former Clerk of Court for the Parish of St. Tammany, Charles M. Hughes, Jr., and Philip Duiett
(collectively, "Movers"), each and all appearing herein through undersigned counsel, to
respectfully submit this reply memorandum in support of their joint motion to lift stay, and they
aver as follows:
89240/440364
Page 1 of 6
17-30519.1505
THE REASON THE STAY WAS PUT IN PLACE TO BEGIN WITH
Plaintiff, Shane M. Gates ("Mr. Gates"), avers in his opposition memorandum that
Movers' joint motion to lift stay was filed "in bad faith and for an utterly improper purpose,"
specifically, "for the purpose of harassing and delaying Mr. Gates' pursuit of his civil rights tort
lawsuit." R. Doc. 225, pp. 1–2. Even the most advanced logical gymnastics fail to offer a
satisfactory explanation as to how "moving to lift the stay" can harass or delay a plaintiff in the
"pursuit" of a lawsuit that is, indeed…stayed.
Of course, the present action is not arbitrarily stayed. On the contrary, it is stayed, in the
words of this Honorable Court, "pending resolution of the criminal charges in the Twenty-
Second Judicial District Court against plaintiff Shane M. Gates, or until such time as the Court,
on motion of a party, lifts the stay." R. Doc. 81, p. 1. This Court later stated that, "Upon
dismissal of the pending criminal charges for resisting an officer or Mr. Gates's acquittal on the
charges, plaintiff may file a motion to reopen this matter." R. Doc. 196, p. 4.
Mr. Gates was ordered by the state court criminal trial judge to appear to be served for
that underlying trial. He failed to do so. Therefore, an attachment was issued for his arrest. See
R. Docs. 211-3 and 211-4. Nonetheless, Mr. Gates still has not appeared to answer the charges
in state court. However, Mr. Gates has shown an ability and willingness to retain new counsel in
the present proceeding so as to pursue itif that is what opposing the lifting of the stay in a
stayed action can be properly called.
As best as can be deciphered, Mr. Gates has no interest in addressing the underlying
criminal proceeding, because he believes he has viable defenses to that proceeding (e.g. double
jeopardy, timeliness, etc.). Certainly, Mr. Gates appreciates the need to assert defenses to a
89240/440364
Page 2 of 6
17-30519.1506
proceeding in the proceeding itself. Again, this matter was stayed for the express purpose of
allowing the State and Mr. Gates to address the underlying charges (and, by extension, the
defenses to those charges) in the state court criminal proceeding. Mr. Gates's inaction and
avoidance of service show he has no interest in doing so. Instead, his position is something
along the lines of "Trust me, the underlying action is not viable and, by the way, each of the
attorneys seeking to lift the stay is unethical."
THE RECYCLING OF OLD ARGUMENTS
If Mr. Gates's underlying opposition arguments sound familiar, it is because they have
been raised and definitively addressed before by this Honorable Court. Back in 2011, when Mr.
Gates sough to re-open this case and "Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany" (see R. Doc. 84), this Honorable Court denied the
request and stated, in pertinent part:
In the case at bar, the gravamen of plaintiff's claims is that of prosecutorial bad
faiththe late addition of a resisting arrest charge on the eve of trial to potentially
bar Gates' § 1983 claim as well as allegations that the evidence surrounding the
charges has been manufactured and altered. All of these "facts" clearly can be
presented in Gates' defense and will speak directly to a jury's decision as to guilt
or innocence on the charges brought.
R. Doc. 121, p. 7. In a later ruling, this Court further noted, "Plaintiff asserts that having been
acquitted of the aggravated flight charge, 'the district Attorney cannot now bring these old
charges offering the same evidence again.' Doc. 163 p.1. Plaintiff's contention lacks merit. " R.
Doc. 196, p. 3.
Further, when Mr. Gates brought a second § 1983 action in the Middle District in 2013,
he alleged, as this Court later described, that "the defendants committed various crimes in pursuit
of the second criminal prosecution." R. Doc. 200, p. 4. Mr. Gates's second § 1983 action,
89240/440364
Page 3 of 6
17-30519.1507
which was transferred to the Eastern District and consolidated herein, is, as this Court has called
it, the "chronological extension" of Mr. Gates's first-filed § 1983 suit. Id. In the 2014 decision
which consolidated the two § 1983 suits, this Court again addressed Mr. Gates's tired arguments
about his underlying prosecution:
Moreover, plaintiff's claim that he is entitled to injunctive relief to prevent bad-

faith prosecution as to the misdemeanor claim has been previously rejected by this
Court and that analysis remains valid and is herby re-iterated and adopted in full
in this case.
Id. at. p. 4. This Court further stated that any "new" evidence of bad faith can be presented in his
defense on the underlying charges. Id. at p. 5.
Consequently, Mr. Gates's new attorney is advancing the same old arguments advanced
by his former attorneys and rejected repeatedly by this Court. All the while, the stay continues
while Mr. Gates disregards the order of the state court as though it was a mere suggestion.
CONCLUSION
Movers assert that the moment has come to compel action on the part of Mr. Gates. If he
wants to move forward with the present proceeding, it is time that he appear in the underlying
proceeding, where he is free to assert his defenses. If Mr. Gates is uninterested in pursuing this
proceeding and is content merely in having his counsel make derogatory comments about
opposing counsel, FRCP 41(b) clearly offers Movers the remedy of dismissal.
For the reasons expressed supra and in the referenced exhibits and previous
memorandum of Movers, this Honorable Court should lift the stay in this matter for the limited
purpose of giving plaintiff sixty (60) days to appear and be served for trial in his underlying state
court criminal proceeding (and to resolve his attachment in connection therewith), and no other
purpose, failing which, this action should be dismissed with prejudice. Should plaintiff timely
89240/440364
Page 4 of 6
17-30519.1508
take such steps, this action should again be stayed until the state court criminal proceeding is
fully resolved.


Telephone: (985) 809-3800 P. O. Box 8288
capacity
89240/440364
Page 5 of 6
17-30519.1509


89240/440364
Page 6 of 6
17-30519.1510

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
JOINT MOTION TO STRIKE OPPOSITION MEMORANDUM

AND REQUEST FOR EXPEDITED CONSIDERATION AND FEES
Tammany, Charles M. Hughes, Jr., and Philip Duiett, to respectfully move this Honorable Court
to strike the opposition memorandum recently filed by defendant, Shane Gates [See R. Doc.
225]. As more fully set forth in the accompanying memorandum in support, Mr. Gates's
memorandum contains redundant, immaterial, impertinent and scandalous matter. Because there
is a hearing on the underlying joint motion to lift stay [see R. Doc. 211] scheduled for December
89240/440364
Page 1 of 3
17-30519.1511
14, 2016, Movers request that this motion to strike be given expedited consideration. They also
request an award of fees as stated in their memorandum in support.
WHEREFORE, Movers pray that, after expedited consideration, the opposition
memorandum filed by defendant, Shane Gates [see R. Doc. 225] be struck from the record.
Movers also request an award of attorney fees from Mr. Gates and his counsel, consistent with
Rule 11(c)(2), in connection with Movers' motion to strike and their reply memorandum in
support of their joint motion to stay.

89240/440364
Page 2 of 3
17-30519.1512

Telephone: (985) 809-3800 P. O. Box 8288
capacity


89240/440364
Page 3 of 3
17-30519.1513

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
Attorney Nicholas F. Noriea, Jr., Kathryn Landry, Marie-Elise Prieto, in her individual and her
and Philip Duiett, each and all appearing herein through undersigned counsel, respectfully
submit their Joint Motion to Strike before the Honorable Stanwood R. Duval, Jr. of the United
9:30 a.m.
89240/440367
Page 1 of 3
17-30519.1514

s/ Thomas H. Huval___________________ s/ Nancy A. Cundiff________________

Thomas H. Huval (#21725) Byron D. Kitchens, T.A. (#25129)
Huval, Veazey, Felder & Renegar, LLC Nancy A. Cundiff (#27974)
532 E. Boston St. Cotten, Schmidt & Abbott, LLP
Telephone: (985) 809-3800 Suite 2810
thuval@hvfr-law.com New Orleans, LA 70130
the Parish of St. Tammany, Marie-Elise ncundiff@csa-lawfirm.com
Prieto, in her individual and her official Counsel for Philip Duiett
capacity

Telephone: (985) 809-3800 P. O. Box 8288
capacity
89240/440367
Page 2 of 3
17-30519.1515
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity
Court of the United States District Court for the Eastern District of Louisiana on Decembe 12,

89240/440367
Page 3 of 3
17-30519.1516

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MEMORANDUM IN SUPPORT OF JOINT MOTION TO

STRIKE OPPOSITION MEMORANDUM AND
REQUEST FOR EXPEDITED CONSIDERATION AND FEES
respectfully submit this memorandum in support of their joint motion to strike and for expedited
consideration and fees, and they aver as follows:
89240/440366
Page 1 of 7
17-30519.1517
MR. GATES'S OPPOSITION SHOULD BE STRUCK FROM THE RECORD
According to Mr. Gates and his counsel, undersigned counsel recently "seriously"
violated Rule 11 of the Federal Rules of Civil Procedure and, amazingly, no less than four (4)
provisions of the Louisiana Rules of Professional Conduct (i.e. Rule 3.3, 8.4(c), 8.4(d) and
8.4(g)).1 See R. Doc. 225, pp. 2, 13. The purported offense? Undersigned counsel had the
audacity to request that the current stay be lifted under reasonable terms so the parties can start
resolving these actions.
Indeed, it was stated in Mr. Gates's opposition memorandum that such relief was
"impossible and utterly nugatory." R. Doc. 225, p. 2. The argument was advanced that lifting
the stay of a stayed action delays the action and harasses the plaintiff. Id. Further, it was
claimed that Movers' aim is to "whipsaw" Mr. Gates into abandoning his civil suit and amounted
to a demand that he place himself "at risk of . . . even death." Id. at pp. 12–13.
1
Federal Rule of Civil Procedure 11 prohibits, among other matters, an attorney presenting a paper for filing
"for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation . .
. ." §§(b)(1).
Louisiana Rule of Professional Conduct 3.3 prohibits, in pertinent part, knowingly "mak[ing] a false
statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made
to the tribunal by the lawyer." §§(a)(1). It further prohibits a lawyer from knowingly failing to disclose controlling
legal authority known to be adverse to the client's position but not disclosed by opposing counsel and from
knowingly offering false evidence. Id. at §§(b)(2–3).
Additionally, Louisiana Rule of Professional Conduct 8.4(c) states it is professional misconduct for a
lawyer to "[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ." Louisiana Rule of
Professional Conduct 8.4(d) states it is professional misconduct for a lawyer to "[e]ngage in conduct that is
prejudicial to the administration of justice . . . ." Finally, Louisiana Rule of Professional Conduct 8.4(g) states it is
professional misconduct for a lawyer to "[t]hreaten to present criminal or disciplinary charges solely to obtain an
advantage in a civil matter . . . ." The allegation that undersigned counsel violated this provision by filing their joint
motion is particularly bizarre (among many bizarre allegations), since undersigned counsel cannot threaten to
present criminal charges when those charges have already been presented (and are actively being avoided by Mr.
Gates).
89240/440366
Page 2 of 7
17-30519.1518
With such claims levied against members of the bar and officers of the Court, one would
expect that an attorney ready to make such comments was armed with evidence to support them.
Unfortunately, Mr. Gates's counsel (and Mr. Gates) can only make arguments based on why they
believe they should be successful at the underlying criminal trial. Their opposition memorandum
suggests that, because undersigned counsel have not argued Mr. Gates's defenses to that separate
proceeding, undersigned counsel have somehow committed serious ethical violations in seeking
to lift the stay. See R. Doc. 225, p. 2.
charges offering the same evidence again.' Doc. 163 p.1. Plaintiff's contention lacks merit." R.
Doc. 196, p. 3.
89240/440366
Page 3 of 7
17-30519.1519

in this case.
by his former attorneys and rejected repeatedly by this Court. Yet he is taking them a step
further and alleging undersigned counsel are violating Federal Rule of Civil Procedure 11 and
provisions of Louisiana's Rules of Professional Conduct by failing to argue his client's
underlying defenses in an unrelated motionand again, after this Court has already said those
defenses are for the state court.
Federal Rule of Civil Procedure 12(f) has a remedy to address such "redundant,
immaterial, impertinent, or scandalous matter[s]" as have been alleged by Mr. Gates and his
counsel, specifically, the striking of the pleading containing such matters. Movers and their
counsel request such relief, for the reasons set forth supra. Further, Movers and their counsel
call to the attention of this Honorable Court the fact that counsel for Mr. Gates failed to follow
any prerequisites for making a claim of a Rule 11 violation. First, his allegations are set forth in
an opposition memorandum and not a separate motion, as required by Rule 11(c)(2). Second, a
copy of the allegations was never served in advance of filing on undersigned counsel so as to
89240/440366
Page 4 of 7
17-30519.1520
give an opportunity to respond before their names were impugned in the public record, also as
required by Rule 11(c)(2).
Movers request an award of attorney fees from Mr. Gates and his counsel, consistent with
Rule 11(c)(2), in connection with Movers' response herein and in their reply memorandum in
support of their joint motion to stay.
Because there is a hearing on the underlying motion [see R. Doc. 211] scheduled for
December 14, 2016, Movers request that this motion be given expedited consideration.
CONCLUSION
For the reasons set forth supra, after expedited consideration, the opposition
memorandum of plaintiff, Shane Gates, electronically filed as R. Doc. 225, should be struck
from the record, and attorney fees should be awarded in favor of Movers and against Mr. Gates
and his counsel, in connection with Movers' responsein this present motion and in their reply
memorandum in support of their joint motion to lift stayto the redundant, immaterial,
impertinent and scandalous matter contained in R. Doc. 225.
89240/440366
Page 5 of 7
17-30519.1521


Telephone: (985) 809-3800 P. O. Box 8288
capacity

89240/440366
Page 6 of 7
17-30519.1522

89240/440366
Page 7 of 7 17-30519.1523

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
Considering the foregoing Joint Motion to Strike Opposition Memorandum and Request
for Expedited Consideration and Fees;
IT IS ORDERED that expedited consideration is HEREBY GRANTED on
Defendants’ Joint Motion to Strike Opposition Memorandum and Request for Expedited
Consideration and Fees, and that Plaintiff, Shane M. Gates, along with his counsel of record,
John A. Hollister, shall appear before this Court on December 14, 2016, at ___________ o’clock
a.m.
IT IS FURTHER ORDERED that oral argument is HEREBY GRANTED on
Consideration and Fees.
____________________________________
JUDGE
89240/440368
17-30519.1524

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
*
*
******************************************************************************
Tammany, Charles M. Hughes, Jr., and Philip Duiett, who respectfully request that this
Honorable Court allow oral argument on their previously filed limited Motion to Lift Stay and
Consideration and Fees. Defendants' motion is currently noticed for submission before the
Honorable Stanwood R. Duval, Jr. on the 28th day of December, 2016 at 9:30 a.m., however,
expedited consideration is requested in order to have this motion heard on the same day as
89240/440369
Page 1 of 4
17-30519.1525
Defendants’ previously filed Motion to Lift Stay, which is scheduled for hearing with oral
argument on December 14, 2016, at 9:30 a.m. before the Honorable Stanwood R. Duval, Jr.


Telephone: (985) 809-3800 P. O. Box 8288
capacity
89240/440369
Page 2 of 4
17-30519.1526

89240/440369
Page 3 of 4
17-30519.1527

89240/440369
Page 4 of 4
17-30519.1528

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
12th day of December, 2016.

New Orleans, Louisiana, this _____
____________________________________
JUDGE
89240/440370
17-30519.1529

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************

respectfully submit this reply memorandum in support of their joint motion to lift stay, and they
aver as follows:
89240/440364
Page 1 of 6
17-30519.1530
THE REASON THE STAY WAS PUT IN PLACE TO BEGIN WITH
Plaintiff, Shane M. Gates ("Mr. Gates"), avers in his opposition memorandum that
Movers' joint motion to lift stay was filed "in bad faith and for an utterly improper purpose,"
specifically, "for the purpose of harassing and delaying Mr. Gates' pursuit of his civil rights tort
lawsuit." R. Doc. 225, pp. 1–2. Even the most advanced logical gymnastics fail to offer a
satisfactory explanation as to how "moving to lift the stay" can harass or delay a plaintiff in the
"pursuit" of a lawsuit that is, indeed…stayed.
Of course, the present action is not arbitrarily stayed. On the contrary, it is stayed, in the
words of this Honorable Court, "pending resolution of the criminal charges in the Twenty-
Second Judicial District Court against plaintiff Shane M. Gates, or until such time as the Court,
on motion of a party, lifts the stay." R. Doc. 81, p. 1. This Court later stated that, "Upon
charges, plaintiff may file a motion to reopen this matter." R. Doc. 196, p. 4.
Mr. Gates was ordered by the state court criminal trial judge to appear to be served for
that underlying trial. He failed to do so. Therefore, an attachment was issued for his arrest. See
R. Docs. 211-3 and 211-4. Nonetheless, Mr. Gates still has not appeared to answer the charges
in state court. However, Mr. Gates has shown an ability and willingness to retain new counsel in
the present proceeding so as to pursue itif that is what opposing the lifting of the stay in a
stayed action can be properly called.
As best as can be deciphered, Mr. Gates has no interest in addressing the underlying
criminal proceeding, because he believes he has viable defenses to that proceeding (e.g. double
jeopardy, timeliness, etc.). Certainly, Mr. Gates appreciates the need to assert defenses to a
89240/440364
Page 2 of 6
17-30519.1531
proceeding in the proceeding itself. Again, this matter was stayed for the express purpose of
allowing the State and Mr. Gates to address the underlying charges (and, by extension, the
defenses to those charges) in the state court criminal proceeding. Mr. Gates's inaction and
avoidance of service show he has no interest in doing so. Instead, his position is something
along the lines of "Trust me, the underlying action is not viable and, by the way, each of the
attorneys seeking to lift the stay is unethical."
THE RECYCLING OF OLD ARGUMENTS
charges offering the same evidence again.' Doc. 163 p.1. Plaintiff's contention lacks merit. " R.
Doc. 196, p. 3.
89240/440364
Page 3 of 6
17-30519.1532

in this case.
by his former attorneys and rejected repeatedly by this Court. All the while, the stay continues
while Mr. Gates disregards the order of the state court as though it was a mere suggestion.
CONCLUSION
Movers assert that the moment has come to compel action on the part of Mr. Gates. If he
wants to move forward with the present proceeding, it is time that he appear in the underlying
proceeding, where he is free to assert his defenses. If Mr. Gates is uninterested in pursuing this
proceeding and is content merely in having his counsel make derogatory comments about
opposing counsel, FRCP 41(b) clearly offers Movers the remedy of dismissal.
For the reasons expressed supra and in the referenced exhibits and previous
memorandum of Movers, this Honorable Court should lift the stay in this matter for the limited
purpose of giving plaintiff sixty (60) days to appear and be served for trial in his underlying state
court criminal proceeding (and to resolve his attachment in connection therewith), and no other
purpose, failing which, this action should be dismissed with prejudice. Should plaintiff timely
89240/440364
Page 4 of 6
17-30519.1533
take such steps, this action should again be stayed until the state court criminal proceeding is
fully resolved.


Telephone: (985) 809-3800 P. O. Box 8288
capacity
89240/440364
Page 5 of 6
17-30519.1534


89240/440364
Page 6 of 6
17-30519.1535

VERSUS NO. 07-6983

C/W 13-6425
SHERIFF RODNEY JACK SECTION: “K” (2)

STRAIN, ET AL.
ORDER
Due to a conflict with the Court’s calendar,
IT IS ORDERED that the Oral Argument on the Motion to Reopen Case (Doc. 211)
currently scheduled for 9:30 a.m. on December 14, 2016 shall be RESET for 10:30 a.m. that
same day.
________________________________
17-30519.1536
Shane M. Gates, * No. 07-CV-06983

* Section: K
* Magistrate: 2
v. *
* Consolidated With
* No. 13-cv-06425
Sheriff Rodney Jack Strain, et al., *
Defendants *
*
***************************
EX-PARTE MOTION TO SUBSTITUTE COUNSEL OF RECORD
ON BEHALF OF ST. PAUL FIRE & MARINE INSURANCE COMPANY
NOW INTO COURT, through undersigned counsel, comes St. Paul Fire & Marine
Insurance Company (improperly named as “Travelers-St. Paul Insurance Companies”)
(hereinafter, “St. Paul”), and under Rule 83.2.11 of the Local Civil Rules of the United States
District Court for the Eastern District of Louisiana, respectfully moves this Court for an order
allowing Mark E. Hanna and the law firm of Mouledoux, Bland, Legrand & Brackett, L.L.C. to
withdraw as counsel of record, and substituting William H. Howard, Alissa J. Allison, and the
law firm of Baker, Donelson, Bearman, Caldwell and Berkowitz, PC as counsel of record for St.
Paul in the captioned matter.
WHEREFORE, St. Paul respectfully requests that this Court enter the attached order
allowing Mark E. Hanna and the law firm of Mouledoux, Bland, Legrand & Brackett, L.L.C. to
withdraw as counsel of record, and substituting William H. Howard, Alissa J. Allison, and the
law firm of Baker, Donelson, Bearman, Caldwell and Berkowitz, PC as counsel of record for St.
Paul in the captioned matter.
17-30519.1537

BRACKETT, L.L.C.
/s/ Mark E. Hanna

MARK E. HANNA (19336)
701Poydras Street, Suite 4250
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
mhanna@mblb.com
-and-
BAKER, DONELSON, BEARMAN,

CALDWELL & BERKOWITZ, PC
By: /s/ William H. Howard III

WILLIAM H. HOWARD III, T.A. (7025)
/s/ Alissa J. Allison

ALISSA J. ALLISON (17880)
201 St. Charles Avenue, Suite 3600

Telephone: (504) 566-5275
Facsimile: (504) 636-3975
bhoward@bakerdonelson.com
aallison@bakerdonelson.com
COUNSEL FOR ST. PAUL

FIRE & MARINE INSURANCE
COMPANY
17-30519.1538
I hereby certify that on December 13, 2016, the foregoing pleading was filed
sent to all counsel of record by operation of the Court’s electronic filing system..
/s/ William H. Howard III

WILLIAM H. HOWARD III
17-30519.1539

* Section: K
* Magistrate: 2
v. *
* Consolidated With
* No. 13-cv-06425
Defendants *
*
***************************
ORDER
CONSIDERING THE MOTION of Defendant, St. Paul Fire and Marine Insurance
Company, to allow Mark E. Hanna and the law firm of Mouledoux, Bland, Legrand & Brackett,
L.L.C. to withdraw as counsel of record, and substituting William H. Howard, Alissa J. Allison,
and the law firm of Baker, Donelson, Bearman, Caldwell and Berkowitz, PC as counsel of record
for St. Paul in this civil action,
AND THE COURT FINDING that the Movant is entitled, as a matter of law, to the
relief sought,
IT IS ORDERED BY THE COURT that the Ex-Parte Motion to Substitute Counsel of
Record on Behalf of St. Paul Fire and Marine Insurance Company is hereby GRANTED.
Signed this _______ day of December, 2016, in New Orleans, Louisiana.
_____________________________
JUDGE
17-30519.1540

* Section: K
* Magistrate: 2
v. *
* Consolidated With
* No. 13-cv-06425
Defendants *
*
***************************
ORDER
CONSIDERING THE MOTION of Defendant, St. Paul Fire and Marine Insurance
Company, to allow Mark E. Hanna and the law firm of Mouledoux, Bland, Legrand & Brackett,
L.L.C. to withdraw as counsel of record, and substituting William H. Howard, Alissa J. Allison,
and the law firm of Baker, Donelson, Bearman, Caldwell and Berkowitz, PC as counsel of record
for St. Paul in this civil action,
AND THE COURT FINDING that the Movant is entitled, as a matter of law, to the
relief sought,
IT IS ORDERED BY THE COURT that the Ex-Parte Motion to Substitute Counsel of
Record on Behalf of St. Paul Fire and Marine Insurance Company is hereby GRANTED.
13thday of December, 2016, in New Orleans, Louisiana.

Signed this _______
_____________________________
JUDGE
17-30519.1541

VERSUS NO. 07-6983

C/W NO. 13-6425
ORDER
IT IS ORDERED that Oral Argument on the Joint Motion to Strike Opposition
Memorandum and Request for Expedited Consideration and Fees (Doc. 228) shall be held on
December 14, 2016 at 10:30 a.m.

17-30519.1542
MINUTE ENTRY
DUVAL, J.
DECEMBER 14, 2016
SHANE GATES CIVIL ACTION
VERSUS NO. 07-6983 c/w 13-6425
RODNEY JACK STRAIN, ET AL SECTION K (2)
BEFORE JUDGE STANWOOD R. DUVAL, JR.

Case Manager: Dean Oser
Court Recorder: Mary Thompson
Appearances: John Hollister, for Plaintiff

C h a d w i c k C o l l i n g s a n d T h o m as Schneidau for Defendants Jack Strain, St.
Tammany Parish Sheriff’s Office, Nathan Miller, Robert Gottardi, Brian
Williams, Kathy Sherwood
Richard Simmons, Jr. for Defendant Charles Hughes, Jr.
Emily Couvillon for Defendants Walter Reed, St. Tammany District Attorney’s
Office, Nicholas Noriea, Jr., Ronald Gracianette, Kathryn Landry
Ralph Whalen for Defendant Walter Reed in his individual capacity
Nancy Cundiff for Defendant Philip Duiett
William Howard, III for Defendant St. Paul Fire & Marine Insurance Company
David Sanders for Defendants Richard Swartz, James Caldwell
Stefini Salles for Defendant Marie-Elise Prieto
1. Motion of Defendants, James D. Caldwell, Philip Duiett, Robert Gottardi, Ronald Gracianette,
Charles M. Hughes, Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Office of the
Louisiana Attorney General, Marie-Elise Prieto, Walter P Reed, Walter P Reed, Captain
Sherwood, Kathy Sherwood, St. Tammany District Attorney's Office, St. Tammany Parish
District Attorney's Office, St. Tammany Parish Sheriff's Office, Rodney Strain, Rodney Jack
Strain, Richard Swartz, to Reopen Case. (211)
After argument – Motion was DENIED for reasons orally stated.
2. Joint Motion of Defendants, Philip Duiett, Robert Gottardi, Ronald Gracianette, Charles M.
Hughes, Jr, Kathryn Landry, Nathan Miller, Nicholas F. Noriea, Jr, Marie-Elise Prieto, Walter P
Reed, Kathy Sherwood, St. Tammany District Attorney's Office, Rodney Strain, Brian Williams,
to Strike Plaintiff’s Opposition to Motion, Rec. Doc. 225. (228)
After argument – Motion was DENIED for reasons orally stated.
JS10: :55
17-30519.1543

VERSUS NO. 07-6983

c/w NO. 13-6425
ORDER
Before the Court is a Motion to Reopen Case (Doc. 211) and a Joint Motion to Strike
(Doc. 228). Having had oral argument on same,
IT IS ORDERED that the Motion to Reopen Case (Doc. 211) and a Joint Motion to
Strike (Doc. 228) are DENIED.
IT IS FURTHER ORDERED that plaintiff shall file no later than January 23, 2017, the
motion discussed in open court concerning plaintiff's claim of double jeopardy and failure to
have a speedy trial and why with the Anti-Injunction Act, 28 U.S.C. § 2283 and Ex Parte Young,
28 S. Ct. 441 (1908) are not applicable. Failure to file such motion shall result in the dismissal
of this matter with prejudice pursuant to Fed. R. Civ. P. 41(b) for the reasons stated in open
court.
IT IS FURTHER ORDERED that in event such a motion is filed, the Clerk of Court is
ORDERED to re-allot this matter as the undersigned shall be retired as of January 31, 2017.

17-30519.1544

versus
PLAINTIFF’S MOTION FOR INJUNCTION AND TO LIFT STAY
who respectfully moves this Honorable Court to (a) enjoin the Defendants herein from continu-
ing to attempt to prosecute Shane M. Gates on the DWI and resisting arrest charges allegedly
still pending in the 22nd Judicial District Court, St. Tammany Parish, Louisiana, in State v. Gates,
Case Nos. 423508 and 423509, and (b) to lift the stay currently imposed on this instant § 1983
civil rights suit.
1.
The referenced cases have long expired under both Louisiana statutory law, La. Code
Crim. Proc. Art. 578, and under the federal jurisprudence construing U. S. Constitution, Amend-
ment VI with respect to Mr. Gates’ right to a speedy trial.
2.
The resisting arrest one of referenced cases was instigated in bad faith and for an im-
proper purpose, viz. to obtain an unlawful and unethical advantage in defending Mr. Gates’ in-
stant civil action.
SMG Mtn 4 Injunctn & 2 Lift Stay

1 of 4 17-30519.1545
3.
The evidence the State must introduce to attempt to prove both those pending charges
(alcoholic intoxication and resisting arrest) was previously introduced in the State’s felony
prosecution of Mr. Gates, a prosecution that resulted in a general jury verdict of acquittal.
Therefore, under the “evidentiary fact” branch of the constitutional double jeopardy principle,
the State is therefore barred by U.S. Constitution, Amendment V from reintroducing that same
evidence in any subsequent proceeding in which the State bears the burden of proof “beyond a
reasonable doubt”.
4.
The evidence the State must introduce to attempt to prove the pending DWI charge would
deny Mr. Gates his Sixth Amendment right to confront his accusers, inasmuch as during the
State’s long (10 year) delay in bringing that charge to trial, the only potential witness with actual
personal knowledge regarding the blood alcohol test that was allegedly performed has died and
his testimony was never preserved in any form.
5.
The State’s charges against Mr. Gates are fatally infected with incurable conflicts of in-
terest that present both actual improprieties and the appearance of improprieties, which, in turn,
violate Mr. Gates’ Fifth Amendment rights to due process.
6.
For the above reasons, the Defendants’ continued pursuit of the referenced charges
threatens Mr. Gates with irreparable harm.

2 of 4 17-30519.1546
7.
The Louisiana trial and appellate courts have refused to enforce Mr. Gates’ U.S. Consti-
tutional rights as set forth above and those refusals now form “the law of the case” in those state
proceedings, for which reason he has exhausted his state remedies and is now entitled to the
same forms of habeas corpus relief as is a criminal defendant whose criminal conviction has
been affirmed and who is, therefore, entitled to seek collateral post-conviction relief in the fed-
eral trial courts.
8.
Mr. Gates reiterates and incorporates by reference into this Motion (a) the Memorandum
in Support hereof that he is filing contemporaneously herewith and (b) all of the exhibits, physi-
cally attached and by reference incorporated into that Memorandum in Support.
WHEREFORE, Shane Gates respectfully requests this Honorable Court to grant this
Motion, to Lift Stay and for Injunction, enjoining and restraining the civil Defendants herein
from proceeding with the stale misdemeanor charges against Mr. Gates of DWI and resisting ar-
rest that those Defendants contend are still pending in the 22nd Judicial District Court, St. Tam-
many Parish, Louisiana, and lifting the stay presently imposed herein on Mr. Gates’ pending §
1983 action against those Defendants, on the grounds that the continued delay of and interfer-
ence with his § 1983 action is unjust and improper and that those Defendants’ attempts to main-
tain those long-time barred misdemeanor charges cause him irreparable harm by violating his
Fifth Amendment rights against double jeopardy and to due process and his Sixth Amendment
rights to a speedy trial and to the opportunity to confront his accusers.
/s/ J. A. Hollister

3 of 4 17-30519.1547

(985) 792-5353
with the Clerk of the United States District Court for the Eastern District of Louisiana on January
23, 2017, using that Court’s CM/ECF system, which system will send a notice of electronic fil-
ing to appearing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

4 of 4 17-30519.1548

versus
PLAINTIFF’S MEMORANDUM IN SUPPORT

OF MOTION FOR INJUNCTION AND TO LIFT STAY
The Plaintiff herein, Shane M. Gates, through his undersigned counsel, respectfully files
this Memorandum in Support of his contemporaneous Motion to Lift Stay and for Injunction.
I. Factual and Procedural History
This case arose on the evening of November 16, 2006, when Nathan Miller, an off-duty
St. Tammany Parish Sheriff’s Deputy, stopped a Pontiac GTO being driven by Shane Gates. Al-
though Deputy Miller later testified that he had observed that vehicle’s driving recklessly and at
high speed, the Sheriff’s Office dispatch tapes—which that department first hid from discovery
by the defense and then altered before producing them—when examined by an audio expert re-
vealed that Miller had been pursuing a dark four-door vehicle but eventually, and for reasons that
have never been explained, stopped a dark two-door one. Further, while Miller claimed he had
been pursuing that four-door for miles down Interstate 12, the evidence adduced at trial showed
he actually stopped Mr. Gates only 0.6 miles and one minute after he first called his dispatcher.
SMG Memo in Suppt of Mtn 4 Injunctn & 2 Lift Stay

1 of 22 17-30519.1549
(The undisputed testimony of several third-party witnesses was that until 19 minutes prior
to Deputy Miller’s stop,1 Mr. Gates had spent the entire afternoon at an auto dealership in Slidell,
completing the purchase of a new car, during which time he had nothing whatever to drink.
Thus, if the State’s later claims were true, that when Deputy Miller stopped him, he had a blood-
alcohol level of 0.273%, this would have required that during those 19 minutes he would not
only have had to have driven himself from Slidell to the site of the traffic stop in Lacombe,
something which was just barely possible within the time parameters, but in addition, during
those same 19 minutes would also have had to have consumed the incredible amount of between
10 to 20 beers or mixed drinks.)
After Deputy Miller stopped Mr. Gates, he handcuffed him and placed him in his cruiser.
Then two on-duty deputies, Roger Gottardi and Brian Williams, arrived on the scene, after which
Deputy Gottardi removed Mr. Gates from Deputy Miller’s car, smashed his face into the hot
hood of Deputy Gottardi’s vehicle, then threw Mr. Gates—still handcuffed—to the ground,
smashing his face into the roadway paving several times and causing massive injury to Mr.
Gates. Pictures of Mr. Gates’ injuries are attached hereto as Exhibit “A”.
A shift supervisor, then-Sheriff’s Lieutenant Randy Smith (now himself Sheriff of St.
Tammany Parish and therefore administrator of the department budget that is potentially liable
for the $500,000 insurance deductable on Mr. Gates’ civil claim) arrived on the scene and di-
rected that Mr. Gates be taken to the nearby Louisiana Heart Hospital in Lacombe, Louisiana, for
treatment of his injuries. There, Mr. Gates received preliminary treatment for his injuries and the
emergency room physician determined that his facial injuries were so extensive that he should be
transported to another facility where an on-call plastic surgeon would be available properly to
1
The time of Mr. Gates’ leaving the dealership was independently verified by the timestamp on the “Fuelman”
printout from a gas pump at which the dealership filled up Mr. Gates’ new car as he was leaving the dealer’s lot in
Slidell.

2 of 22 17-30519.1550
repair the damage Deputy Gottardi had inflicted. However, although the Louisiana Heart Hospi-
tal is located midway between Covington, Louisiana and the St. Tammany Parish Hospital, and
Slidell, Louisiana and Slidell Memorial and Ochsner Hospitals there, at any of which a plastic
surgeon could have been expected to be available, the E.R. nurse (who later testified against Mr.
Gates at the felony trial and whose testimony on many critical points was contradicted by that of
the E.R. physician on duty) arranged instead for him to be transported past those two Slidell hos-
pitals and on many, many miles further to a hospital in Hattiesburg, Mississippi where his own
wife worked.
There, in fact, no surgical specialist was available and Mr. Gates was eventually sewn up
by an ordinary emergency room physician, something that could have been done more quickly,
cheaply, and practically at the emergency room where he first landed. However, this absurd,
wasteful, and unnecessary transport did assure that Mr. Gates did not present himself at any of
the St. Tammany Parish hospitals, all of which had policies that required the local municipal po-
lice to be called when a patient arrived with injuries of the type Mr. Gates displayed. Further, Lt.
Smith also personally called off the Louisiana State Police officers who were en route to the La-
combe hospital to deliver the mandatory State-approved blood sampling kit that is required under
the Louisiana Administrative Code for the prosecution of any traffic offense involving alleged
alcohol intoxication. Thus no blood alcohol test certified as required by the Louisiana State Po-
lice Crime Lab was ever performed on Mr. Gates, meaning that the State has no objective evi-
dence of intoxication to support its charge of DWI.
What the State does allege occurred at the Lacombe hospital was an ordinary hospital
blood test for alcohol, ordered by the emergency room physician for purposes of medical treat-
ment, not by a law enforcement officer for purposes of prosecuting a traffic violation. However,

3 of 22 17-30519.1551
no witness has ever testified that any such test was, in fact, performed; the most the State was
able to show was the testimony of one E.R. nurse who stated that he drew a blood sample—
without Mr. Gates’ permission—and then left that ampoule on a desk in the emergency depart-
ment, which was the last he ever saw of it. That hospital has never produced that sample or any
chain of custody for it, or any evidence that any test was actually run on it, or any of the required
maintenance and calibration logs that are required by the Louisiana Administrative Code for test-
ing equipment that is to be used in traffic enforcement cases.
Nor did the technician who allegedly tested that sample—but who was indisputably not
certified to do so for law enforcement purposes, as required by La. Admin. Code 55:551-565—
never testified as to anything he might have done that night, because during the lengthy delays in
the State’s first bringing to trial any of the charges against Mr. Gates, that potential witness died.
The unavailability of the only person who had personal knowledge of whether a test—even
though, for the State’s purposes an unlawful, uncertified test—was or was not performed is one
of several irreparable harms Mr. Gates has suffered as direct results of the State’s nearly six-year
delay in first bringing him to trial on the events in question.
On the night he was stopped and beaten, Mr. Gates was issued ordinary traffic citations
for DWI, resisting arrest, and having an open container of alcohol in a vehicle, all of which did
not ripen into formal charges until the following month. At that time, Ronnie Gracianette, a St.
Tammany Parish Assistant District Attorney, “screened” the charges and signed an interoffice
form “accepting” a misdemeanor charge of DWI and a felony charge of unlawful flight to avoid
prosecution. That felony charge eventually went to a jury trial in July, 2012 but no misdemeanor
charge was ever set for trial, nor was ever the subject of any motion for a continuance or other
delay, until well after that felony trial concluded. This is significant for present purposes be-

4 of 22 17-30519.1552
cause throughout the proceedings below, Mr. Gates filed numerous motions asserting his speedy
trial claims, all of which were ignored by the state trial judge and never set for hearing, and by
statute Louisiana requires all misdemeanors to be tried within one year after of the institution of
charges, La. Code Crim. Proc. Art. 578. Thus that DWI charge was already stale and time-
barred more than four years prior to the commencement of the felony trial and the resisting arrest
charge was similarly stale and time-barred more than three years prior to the commencement of
that trial.
The State’s inattention to these misdemeanor charges was clearly explained by ADA
Ronnie Gracianette’s later testimony that, having billed Mr. Gates for one felony charge under
La. Rev. Stat. 14:108.1 that carried the heaviest potential sentence available, he had no real inter-
est in other misdemeanor charges, whether the original DWI charge he did “accept” or the resist-
ing arrest charge first suggested by Deputies Gottardi and Williams on the traffic ticket but
which he did not “accept”, and which he only later “accepted” at the behest of St. Paul Travelers’
and on the strength of the forged “victim letter” that St. Paul Travelers gave him but that had
purportedly been authored by Deputy Miller. (See Rec. Doc. 225-1, which is incorporated by
reference herein as this Memorandum’s Exhibit “B”.)
Daniel G. Abel, one of Mr. Gates’ defense counsel, testified that, subsequent to ADA
Gracianette’s billing Mr. Gates on the felony flight charge, Mr. Abel had several conversations
with Charles M. Hughes, Jr., one of the attorneys for St. Paul Travelers, the insurer for the St.
Tammany Parish Sheriff’s Office. Mr. Hughes told Mr. Abel that if Mr. Gates filed a “Rodney
King”-style § 1983 suit against the Sheriff’s Office over his beating, then Hughes would see to it
that further charges of resisting arrest were instituted, because under the then-prevailing interpre-
tation of federal case law, a conviction or plea on that charge would completely bar any recovery

5 of 22 17-30519.1553
for excessive force. When Mr. Abel did file the first of the instant § 1983 suits on Mr. Gates’
behalf, Mr. Hughes requested Mr. Gracianette to add or “accept” a new or additional misde-
meanor charge (depending on one’s view of the events of December, 2006) of resisting arrest in
an attempt to bar Mr. Gates’ civil recovery. (A copy of the relevant portions of Mr. Abel’s tes-
timony on May 10, 2010 is attached hereto and incorporated herein by reference as this Memo-
randum’s Exhibit “C”.)
Of course, Mr. Hughes’ threat to Mr. Abel to use a criminal prosecution to obtain an ad-
vantage in Mr. Gates’ civil suit was completely and utterly unethical, and itself constituted bad
faith in the institution and maintenance of that prosecution. Three further aspects of this transac-
tion, both at the time unknown to Mr. Gates’ defense, also bear directly on the issue of the
State’s bad faith in this same matter. One is that, at this time, Walter Reed, then the St. Tam-
many Parish District Attorney, was conducting his personal civil law practice through the New
Orleans firm of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch. A second is that, at
this same time but again unknown to the defense, McCranie, Sistrunk regularly represented St.
Paul Travelers, so that Walter Reed personally had a direct financial incentive to benefit St. Paul
Travelers by using his office as District Attorney to assist in St. Paul Travelers’ defense of Mr.
Gates’ suit. As a direct result of that, Walter Reed and his entire office also had an irreparable
conflict of interest in handling the charges against Mr. Gates, but he never recused himself or his
office from this case. This, too, is a further example of the bad faith that fatally infects these par-
ticular criminal charges; it is black-letter law that federal due process standards not only guaran-
tee a party against actual improprieties in the conduct of litigation but also against even the ap-
pearance of impropriety.

6 of 22 17-30519.1554
In this connection, this Court will be all too aware that, as this Memorandum is being
filed, Walter Reed has been convicted on eighteen felony counts of misconduct in office, is cur-
rently awaiting sentencing for those crimes, and several of those charges arose from his regular
practice of manipulating his public office as District Attorney to divert large sums in “legal fees”
to himself, using as a conduit therefore his allegedly “private” law practice.
The third fact relevant to Mr. Hughes’ procuring the resisting arrest charge that was then
unknown to the defense is that when he approached Mr. Gracianette, and told him St. Paul Trav-
elers wanted a resisting arrest charge to be lodged, Mr. Gracianette told him he would do so only
if one of the Sheriff’s Deputies involved in the case requested him to do so. Mr. Hughes, to in-
duce Mr. Gracianette to comply with St. Paul Travelers’ request, on the same day ADA Gra-
cianette informed him of the requirement for a “victim letter” before the resisting arrest charge
would be “accepted”, returned that same day and produced a letter conforming to Gracianette’s
specifications that purported to have been written and signed by Deputy Nathan Miller, the origi-
nal officer making the traffic stop. This was addressed to the DA’s Office and, on its face, re-
quested that a resisting arrest charge be filed. (See Rec. Doc. 225-4, a copy of this letter which is
incorporated by reference herein as this Memorandum’s Exhibit “D”. See also Rec. Doc. 225-6,
Mr. Hughes’ own testimony about this transaction, which is incorporated by reference herein as
this Memorandum’s Exhibit “E”.)
However, according to Deputy Miller’s own later testimony, he was never asked to pro-
vide any such letter and he never prepared or signed one. (See Rec. Doc. 225-5, which is incor-
porated by reference herein as this Memorandum’s Exhibit “F”.) No evidence has ever been ad-
duced to contradict Deputy Miller’s testimony on this point. Therefore, in plain English, the
“victim letter” that St. Paul Travelers, through its lawyer, presented to ADA Gracianette, in order

7 of 22 17-30519.1555
to obtain the institution of criminal charges to assist St. Paul Traveler‘s defense of Mr. Gates’
civil suit, was a forgery. This is a just one more clear and glaring instance of bad faith in the
State’s current attempt to bring up for prosecution the long-expired DWI and resisting arrest
misdemeanor charges against Mr. Gates.
After Mr. Hughes and St. Paul Travelers presented the forged Miller “victim letter” to get
the resisting arrest charge added to the DWI charge, both of those charges then languished with-
out any attempt by the State to move either toward trial. Neither was ever set for trial nor was
the subject of any hearing or action in the state trial court. Thus, by the time the felony trial
opened in July, 2012, that resisting arrest charge had already passed the state’s statutory one-year
deadline for a misdemeanor trial. It is undoubtedly for that reason that, when the felony charge
of unlawful flight to avoid prosecution finally went to trial, the State had nothing to lose by using
such evidence as it had on both of those charges for tactical purposes in what was, technically, an
unrelated matter; where by that time those two minor charges themselves could not lawfully be
brought to trial.
At the felony trial, the State apparently never expected Mr. Gates to take the stand in his
own defense. But after the State rested its case in chief, he did so, as well as presenting the wit-
nesses from the car dealership who showed that he had not been drinking that day and other evi-
dence that showed Deputy Miller’s account of the events leading to the traffic stop was a physi-
cal impossibility. Therefore, in order to rebut that defense, on the final day of trial the State
sought to bring forward the evidence on which the State relied both to establish its claim that Mr.
Gates was intoxicated and that, although already handcuffed and in Deputy Miller’s cruiser, he
had resisted Deputy Gottardi’s beating him to a pulp.

8 of 22 17-30519.1556
The defense objected to the introduction of any evidence regarding alleged intoxication,
which the trial court upheld. The State therefore took an overnight emergency writ to the state
Court of Appeal for the First Circuit, which ruled that the tainted evidence must be admitted.
Mr. Gates therefore filed his own overnight emergency writ application to the Louisiana Su-
preme Court, which denied his application. This is important because, under Louisiana’s “law of
the case” doctrine, the constitutional claims Mr. Gates raised in his trial court exception and in
his state supreme court writ application would not be reconsidered on any appeal from a criminal
conviction. Thus he has already exhausted his state remedies with respect to these issues and is,
therefore, in the same status as an applicant to this Court for post-conviction relief from viola-
tions of his federally-guaranteed constitutional rights.
On July 27, 2012, after notice of the Supreme Court’s denial of Mr. Gates’ writ applica-
tion, the trial resumed and the State put on its case in rebuttal of Mr. Gates’ defense. (See Rec.
Doc. 225-3, the transcript of that day’s evidence, which is incorporated by reference herein as
this Memorandum’s Exhibit “G”.) As that Exhibit shows, while the issues of alcoholic intoxica-
tion and resisting arrest are not among the essential elements of the felony crime of unlawful
flight, the State nevertheless put on all of its evidence on both those issues, i.e., everything it
would have offered in evidence had it ever timely set them for trial. The obvious purpose in in-
troducing this otherwise irrelevant evidence was to try to prejudice the jury against Mr. Gates by,
it hoped, painting him as a “bad actor”, a drunk and a fighter who would, therefore, seem more
likely to have fled from a police officer than would a more compliant citizen.
But despite the State’s best efforts, when the jury retired, it took less than a half hour to
return a general verdict of “not guilty”. (See Rec. Doc. 225-2, the jury verdict form, which is
incorporated by reference herein as this Memorandum’s Exhibit “H”.) Having thus submitted to

9 of 22 17-30519.1557
the jury all of its evidence on both issues of intoxication and resisting arrest, either inadvertently
or by calculation based on those issues’ lapse by time, and having had a general verdict of “not
guilty” returned thereon, the State triggered the “evidentiary fact” branch of the U.S. Supreme
Court’s Double Jeopardy jurisprudence.
It was only after the jury exonerated Mr. Gates that the State, for the very first time, gave
some thought to trying to set the stale DWI and resisting arrest misdemeanors for trial. Even
though by that time, of course, those charges were nearly six years old, having passed both the
state statutory and federal jurisprudential time limits, and even though during the felony proceed-
ings Mr. Gates had continuously resided in St. Tammany Parish and, moreover, had been per-
sonally present in court on more than 44 occasions, on any one of which he could have been
served with a notice of trial, the State never set a trial on the misdemeanor charges and never
issued a notice of trial regarding them until after August, 2013, long past the statutory deadline
for bringing misdemeanors to trial and, most significantly, until after the felony trial jury had al-
ready found Mr. Gates not guilty on the flight charge upon which the State had, for nearly six
years, been pinning its hopes.
After the State—for the first time—attempted to set those stale charges for trial, and
while it was making ineffectual efforts to serve Mr. Gates personally with notice thereof, his de-
fense counsel filed in the trial court a motion to quash those charges on the grounds of double
jeopardy and denial of due process. The 22nd Judicial District Court, the Louisiana Court of Ap-
peal for the First Circuit, and the Louisiana Supreme Court all declined to enforce Mr. Gates’
constitutional rights (the two appellate courts without giving any written reasons for their non-
feasance), for which reason he is, again, standing before this Court in the same essential situation

10 of 22 17-30519.1558
as would a defendant who has been convicted in the state courts, had that conviction affirmed,
and is now seeking collateral post-conviction vindication of his violated constitutional rights.
Subsequently former Supreme Chief Justice Pascal Calogero and co-counsel filed a mo-
tion to quash concerning the double jeopardy and speedy trial violations in the 22nd JDC which
was denied by the trial court, took writs to the 1st Circuit Court of Appeal, and the Louisiana Su-
preme Court, each of which were denied without any written reasons. Mr. Gates has sought relief
from these violations of his constitutional rights in the state courts, which did not give him such
under the state or federal constitution.
Mr. Gates filed his initial § 1983 civil lawsuit against the Sheriff and the other Defen-
dants in 2007, while the felony prosecution was pending; as noted above, it was the filing of this
suit that led St. Paul Travelers to procure the resisting arrest charge against him. Then in 2008
the State moved to stay the civil case until it finished its prosecution of Mr. Gates on all charges.
This Court noted at the hearing on that motion that it was granting a stay of the case but only for
a limited period of time because it was obvious that Mr. Gates was handcuffed when he was
beaten.
After the May 10, 2010 state court hearing, at which the fact of St. Paul Travelers’ role in
instituting the resisting arrest charge was revealed, Mr. Gates filed in 2011 his own motion in
this Court to lift the stay and proceed with his civil suit. At that time, this Court denied his mo-
tion because the felony case had not yet gone to trial.
In August, 2013, Mr. Gates filed the second § 1983 suit here, based on additional acts of
fraud that had come to light in the interim, such as the forged “victim letter” purporting to have
been signed by Deputy Nathan Miller that St. Paul Travelers obtained and presented to ADA
Ronnie Gracianette to get the resisting arrest charge “accepted”. The Defendants were served

11 of 22 17-30519.1559
with that second suit but did not answer it, so Mr. Gates took default judgments against them.
The Defendants then moved to set those defaults aside and to reimpose the stay while they at-
tempted to proceed with the now seven-year-old misdemeanors that they hoped would serve as
bars to the “Rodney King” § 1983 civil actions.
On October 20, 2016, the Defendants filed in this Court a new and utterly unprecedented
motion (Rec. Doc. 211), seeking a partial lifting of the stay combined with an order (for which
bizarre relief no possible authority or precedent was ever cited), directing Mr. Gates to surrender
himself to the same St. Tammany Parish Sheriff’s Office that had already beaten him unmerci-
fully and which had never disciplined the rogue officer who did so, in default of which they re-
quested this Court to dismiss his civil actions. The face of this motion and its supporting memo-
randa reveal beyond any reasonable doubt that the motion was filed, and the unprecedented relief
requested was planned, not out of any legitimate motive of enforcing the State’s interest in a c-
riminal prosecution—and especially in a criminal prosecution that the State itself had abandoned
many years before—but, instead, out of purely mercenary motives, in order to give an unlawful,
unfair, and utterly unethical advantage to the St. Tammany Parish authorities in their defense of a
civil suit, in blatant bad faith as well as in violation of Rule 8.4(g), R. Prof. Cond., which forbids
threatening or maintaining a criminal prosecution for the purpose of obtaining an advantage in a
civil suit. And this unethical genesis of the misdemeanor charge of resisting arrest, at least, goes
all the way back to Charles Hughes’ admission that St. Paul Travelers procured that charge for
precisely that purpose. And, being incurably unethical and infected with fatal conflicts of inter-
est, the continuation of those misdemeanor charges is likewise in objective bad faith.

12 of 22 17-30519.1560
After a hearing on December 14, 2016 on the Defendants’ most recent motion, this Court
ordered that Mr. Gates file, by January 23, 2017, this instant motion to enjoin the state criminal
prosecution and to lift the stay (Rec. Doc. 237).
II. Law and Argument.
A. While considerations of federal-state comity under the Eleventh Amendment usu-

ally lead the federal courts to decline to enjoin state-court criminal proceedings,
there is a narrow list of recognized exceptions to that policy. Shane Gates’ case fits
squarely within those exceptions, one of which is when the request for an injunction
arises out of an action to vindicate federally-guaranteed civil rights and the state
criminal proceedings violates the Fifth Amendment’s guarantee against being twice
placed in jeopardy on the same criminal matters.
Where state officials use, or threaten to use, state criminal proceedings, the maintenance
of which would violate fundamental U.S. Constitutional rights of the defendants, then despite the
Eleventh Amendment, the federal courts may protect those federally-guaranteed rights by enjoin-
ing and restraining those state officers from continuing with state-law enforcement actions:
“[J]urisdiction of this general character has, in fact, been exercised by

Federal courts from the time of Osborn v. Bank of United States up to the present;
the only difference in regard to the case of Osborn and the case in hand being that
in this case the injury complained of is the threatened commencement of suits,
civil or criminal, to enforce the act, instead of, as in the Osborn Case, an actual
and direct trespass upon or interference with tangible property. A bill filed to
prevent the commencement of suits to enforce an unconstitutional act, under the
circumstances already mentioned, is no new invention, as we have already seen.
The difference between an actual and direct interference with tangible property
and the enjoining of state officers from enforcing an unconstitutional act, is not of
a radical nature, and does not extend, in truth, the jurisdiction of the courts over
the subject-matter. In the case of the interference with property, the person en-
joined is assuming to act in his capacity as an official of the state, and justification
for his interference is claimed by reason of his position as a state official. Such
official cannot so justify when acting under an unconstitutional enactment of the
legislature. So, where the state official, instead of directly interfering with tangi-
ble property, is about to commence suits which have for their object the enforce-
ment of an act which violates the Federal Constitution, to the great and irreparable
injury of the complainants, he is seeking the same justification from the authority
of the state as in other cases. The sovereignty of the state is, in reality, no more
involved in one case than in the other. The state cannot, in either case, impart to

13 of 22 17-30519.1561
the official immunity from responsibility to the supreme authority of the United
States. See Re Ayers, 123 U. S. 507, 31 L. ed. 230, 8 Sup. Ct. Rep. 164.”
Ex parte Young, 209 U.S. 123, 167, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Aside from the Eleventh Amendment, one of the other principle obstacles to such federal
injunction suits is the Anti-Injunction Act, 28 U.S.C. § 2283 ff:
“The Anti–Injunction Act (“the Act”) states that ‘[a] court of the United
States may not grant an injunction to stay proceedings in a state court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdic-
tion, or to protect or effectuate its judgments.’ 28 U.S.C. § 2283 (2000). Conse-
quently, one of the limited exceptions to the Act is when a federal statute explic-
itly permits a federal court to enjoin a state proceeding. Mitchum v. Foster, 407
U.S. 225, 226, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).
“As Petitioner asserts, the federal habeas statute, 28 U.S.C. § 2251 (‘Sec-
tion 2251’), is one of the few statutes that authorizes a federal court to stay pro-
ceedings in state court. See e.g., McFarland v. Scott, 512 U.S. 849, 114 S.Ct.
2568, 129 L.Ed.2d 666 (1994).”
Schillaci v. Peyton, 328 F.Supp.2d 1103, 1104 (D. Hawaii 2004). Of particular importance is
that the U.S. Constitutional right that gave rise to the injunction issued in Schillaci was the Fifth
Amendment guarantee against double jeopardy, precisely the right that would be violated by the
instant Defendants’ proceeding against Mr. Gates on their misdemeanor charges in St. Tammany
Parish.
The other similar obstacle is the “Younger abstention doctrine”, which the Schillaci court
explained thusly:
“In addition [to the Eleventh Amendment], the court must consider
whether enjoining Petitioner’s state criminal proceedings would violate the
Younger abstention doctrine. The Younger doctrine arises from the Supreme
Court’s decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). In Younger, the Supreme Court reversed a federal court’s decision to en-
join a state criminal prosecution because the decision violated the ‘national policy
forbidding federal courts to stay or enjoin pending state court proceedings except
under special circumstances.’ Id. at 41, 91 S.Ct. 746. The Court based its deci-
sion on the established doctrine that a court of equity should not interfere with a
state criminal prosecution when the moving party has an adequate remedy avail-
able and would not suffer irreparable injury. Id. at 43-44, 91 S.Ct. 746. More-

14 of 22 17-30519.1562
over, the Court stated that it coupled this consideration with ‘an even more vital
consideration, the notion of “comity,” that is a proper respect for state functions.”
Id. at 44, 91 S.Ct. 746.
“Exceptions to the Younger doctrine are very limited, but several do exist.
In Younger, the Court identified three particular exceptions: 1) when there has
been a bad faith state prosecution; 2) when there is a patently unconstitutional
state law; or 3) when an adequate state forum does not exist in which to raise a
constitutional issue. Id. at 53-54, 91 S.Ct. 746. The Court also noted that ‘[t]here
may, of course, be extraordinary circumstances in which necessary irreparable in-
jury can be shown even in the absence of the usual prerequisites of bad faith and
harassment.’ Id. at 53, 91 S.Ct. 746.
“The Ninth Circuit has recognized that a successive prosecution in state
court would constitute the type of extraordinary circumstances which would per-
mit a federal court to enjoin a state proceeding, notwithstanding the Younger ab-
stention doctrine. In Mannes v. Gillespie, the Ninth Circuit stated that ‘[a] claim
that a state prosecution will violate the Double Jeopardy Clause presents an ex-
ception to the general rule of Younger....’ 967 F.2d 1310, 1312 (9th Cir. 1992)
(citations omitted). The court explained that this exception arises because the
Double Jeopardy clause does not seek to prevent an individual from being pun-
ished twice; it seeks to prohibit an individual from being placed in jeopardy twice.
“With regard to the instant case, the court agrees with Petitioner that if
Petitioner is convicted in the second state court proceeding, overturning the con-
viction would not be a complete remedy, as Petitioner would have already been
placed in jeopardy twice. In Hartley v. Neely, the Ninth Circuit made clear that ‘a
petitioner in state custody can only be assured freedom from double jeopardy by
giving him access to habeas review prior to a second trial.’ 701 F.2d 780, 781
(9th Cir. 1983). As a result, in the instant case, Petitioner will incur irreparable
injury if the state proceedings are not enjoined. Petitioner’s circumstances consti-
tute an exception to the Younger abstention doctrine.”
Schillaci, supra, at 1105. Accordingly, where Mr. Gates has exhausted his remedies in the state
courts and is threatened with irreparable injury to his Fifth Amendment double jeopardy rights, it
is both appropriate and necessary for this Court to protect those rights by enjoining the Defen-
dants from proceeding with the two pending misdemeanor prosecutions.

15 of 22 17-30519.1563
B. Were the St. Tammany officials to be permitted to proceed in the name of the State
of Louisiana to prosecute Mr. Gates on the pending DWI and resisting arrest mis-
demeanors, they would thereby compel him unconstitutionally to run the gantlet
they first made him run at the July, 2007 felony trial, where they attempted to
prejudice the jury against him by putting on all of their available evidence of both
his alleged alcoholic intoxication and of his alleged resisting arrest—evidence that
jury rejected by returning a general verdict of “not guilty”.
The U.S. Supreme Court has explained the “double jeopardy” guarantee in these terms:
“The ultimate question to be determined, then, in the light of Benton v.

Maryland, [395 U.S. 784, 89 S.Ct. 2056], is whether this established rule of fed-
eral law is embodied in the Fifth Amendment guarantee against double jeopardy.
We do not hesitate to hold that it is. For whatever else that constitutional guaran-
tee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, it surely protects a man who has been acquitted from having to ‘run the
gantlet’ a second time. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221,
225, 2 L.Ed.2d 199.
“…
“In this case the State … treated the first trial as no more than a dry run
for the second prosecution: ‘No doubt the prosecutor felt the state had a provable
case on the first charge and, when he lost, he did what every good attorney would
do he refined his presentation in light of the turn of events at the first trial.’ But
this is precisely what the constitutional guarantee forbids.”
Ashe v. Swenson, 397 U.S. 436, 445-447, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
There are two branches of the “double jeopardy” doctrine, the first and more familiar of
which deals with situations where a defendant has been tried, and either convicted or acquitted,
of one offense, and the government then attempts to prosecute him on a second charge—such as
a lesser-included offense—for which the essential elements of the first crime were included
among the essential elements of the second one. This was the situation confronted in, for exam-
ple, the leading case of Green v. United States, cited above in the extensive quotation from the
Ashe court.
There is, however, another, rather rarer branch of this doctrine, which deals with what the
courts have termed “evidentiary facts”. This is where the state has prosecuted a defendant on
one offense, that prosecution has ended in an acquittal by the trier of fact, and the government

16 of 22 17-30519.1564
then attempts to pursue a second action against him where, although the essential elements of the
second offense do not overlap with those of the first one, the evidence actually presented at each
of the trials does so.
This was the situation in Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107
L.Ed.2d 208 (1990), where the Government of the U.S. Virgin Islands prosecuted Dowling for
an armed robbery and, at trial, introduced evidence of an earlier, and separate robbery which it
contended he had committed—and for which he had been acquitted. Noting that the identity of
the robber in the first case was not an essential element required to be proven in the second one,
the Supreme Court upheld the admission of that evidence:
“Our decision is consistent with other cases where we have held that an
acquittal in a criminal case does not preclude the Government from relitigating
an issue when it is presented in a subsequent action governed by a lower stan-
dard of proof. In United States v. One Assortment of 89 Firearms, 465 U.S. 354,
104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), for example, we unanimously agreed that
a gun owner’s acquittal on a charge of dealing firearms without a license did not
preclude a subsequent in rem forfeiture proceeding against those firearms, even
though forfeiture was only appropriate if the jury in the forfeiture proceeding con-
cluded that the defendant had committed the underlying offense. Because the for-
feiture action was a civil proceeding, we rejected the defendant's contention that
the Government was estopped from relitigating the issue of the defendant’s al-
leged wrongdoing:
“‘[The acquittal did] not prove that the defendant is innocent; it merely
proves the existence of a reasonable doubt as to his guilt. . . . [T]he jury verdict in
the criminal action did not negate the possibility that a preponderance of the evi-
dence could show that [the defendant] was engaged in an unlicensed firearms
business. . . . It is clear that the difference in the relative burdens of proof in the
criminal and civil actions precludes the application of the doctrine of collateral es-
toppel.’ Id., at 361-362, 104 S.Ct., at 1104.
“In One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93
S.Ct. 489, 492, 34 L.Ed.2d 438 (1972), it was also held that the Double Jeopardy
Clause did not bar a forfeiture action subsequent to acquittal on the underlying of-
fense because ‘the difference in the burden of proof in criminal and civil cases
precludes application of the doctrine of collateral estoppel.’ Helvering v.
Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938), likewise ob-
served that ‘[t]he difference in degree in the burden of proof in criminal and civil
cases precludes application of the doctrine of res judicata.’”

17 of 22 17-30519.1565
Dowling, supra, at 349-350 (emphasis supplied).
Thus the dispositive test is whether the state’s proposed second use of the same evidence
that a jury previously rejected is itself governed by the higher, criminal standard of “proof be-
yond a reasonable doubt” or by the lower, civil standard of “proof by a preponderance of the evi-
dence”. Mr. Gates’ situation is the precise opposite of that presented in Dowling: here, while
the State did not need to present its evidence of intoxication and resisting arrest in order to dem-
onstrate the essential elements of aggravated flight to avoid prosecution, it nevertheless chose to
do so as a tactical advantage. Now, however, it seeks to use that same evidence which has al-
ready been submitted to a jury’s general verdict of acquittal to prove the essential elements of
DWI and resisting arrest, all of which are now required to be proven “beyond a reasonable
doubt”. Thus under the Dowling test, the State’s proposed reuse of that same evidence is now
barred by the “evidentiary fact” branch of the double jeopardy principle. Mr. Gates has pre-
sented these issues to the Louisiana courts, through a motion to quash in the trial court and writ
applications in the Court of Appeal and Supreme Court, and has been denied relief for his double
jeopardy rights. Thus he has exhausted his state remedies and is now entitled to federal habeas
protection against being again placed in jeopardy with respect to that same evidence.
C. The St. Tammany officials’ bad faith in seeking to proceed to trial against Mr. Gates
on the pending DWI and resisting arrest misdemeanors is shown not only by the
corrupt way the resisting arrest charge was procured by the Parish’s liability in-
surer but also by the fact that they know perfectly well that the misdemeanor
charges have long since passed the permissible delays for bringing them to trial,
both under Louisiana state statute and under federal constitutional due process
standards.


18 of 22 17-30519.1566
tion;
cution; and
prosecution.
[Emphasis supplied.] Mr. Gates was arrested on November 16, 2006 and the state court
felony trial concluded on July 27, 2012, more than five years and eight months after that
arrest. During that entire time, Mr. Gates was continuously resident in St. Tammany Par-
ish, his residence address was on file with the state trial court, and he was personally pre-
sent in court in connection with the felony case on at least forty-four (44) occasions, on
any one of which he could have been served with a notice of hearing or trial on those
misdemeanor charge, provided only that any such hearing or trial ever been set.
charges closed, at the latest, in December, 2007, long before his felony trial even commenced, let
alone concluded.

19 of 22 17-30519.1567
as guaranteed by U.S. Constitution, Amendments VI and XIV. The United States Court of Ap-
peals for the Fifth Circuit has defined the contours of the federally-guaranteed due-process right
to a speedy trial in Amos v. Thornton, 646 F.3d 199 (5th Cir. 2011), applying the rule laid down
in Barker v. Wingo, 407 U.S. 514, 521–22, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Thornton,
it held that after a one-year’s delay in bringing a criminal charge to trial, the federal courts must
analyze state criminal proceedings to see if they comply with federal due process standards. Af-
ter eighteen months’ delay, in the Barker analysis that delay is considered strongly to favor the
defendant and to weigh against the State.

20 of 22 17-30519.1568
against Mr. Gates.
WHEREFORE, Shane Gates respectfully requests this Honorable Court to grant his Mo-
tion to Lift Stay and for Injunction, freeing Mr. Gates to proceed with his pending § 1983 action
against the Defendants and enjoining and restraining those same civil Defendants from proceed-
ing with the misdemeanor charges against Mr. Gates of DWI and resisting arrest that those De-
fendants contend are still pending in the 22nd Judicial District Court, St. Tammany Parish, Lou-
isiana, on the grounds that the continued delay of and interference with his § 1983 action is un-
just and improper and that those Defendants’ attempts to maintain those long-time barred mis-
demeanor charges cause him irreparable harm by violating his Fifth Amendment rights against
double jeopardy and to due process and his Sixth Amendment rights to a speedy trial and to the
opportunity to confront his accusers.
/s/ J. A. Hollister
(985) 792-5353

21 of 22 17-30519.1569
/s/ J. A. Hollister
JOHN A. HOLLISTER

22 of 22 17-30519.1570

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17-30519.1598

versus
FIRST NOTICE OF SUBMISSION
PLEASE TAKE NOTICE that the Plaintiff herein, Shane M. Gates, through his under-
signed counsel, has filed herein his Motion to Enjoin and to Lift Stay, as directed on December
14, 2016 by the Hon. Stanwood R. Duvall, Jr. (Rec. Doc. 237) and, as soon as this matter is
transferred to a new trial judge pursuant to Judge Duvall’s aforesaid Order, the Plaintiff will set
this matter for hearing before that new judge and will file a commensurate notice of submission
of this matter.
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
JOHN A. HOLLISTER
SMG Opp 2 Mtn 2 Lift Stay

17-30519.1599

versus
PLAINTIFF’S MOTION FOR INJUNCTION AND TO LIFT STAY
who respectfully moves this Honorable Court to (a) enjoin the Defendants herein from continu-
ing to attempt to prosecute Shane M. Gates on the DWI and resisting arrest charges allegedly
still pending in the 22nd Judicial District Court, St. Tammany Parish, Louisiana, in State v. Gates,
Case Nos. 423508 and 423509, and (b) to lift the stay currently imposed on this instant § 1983
civil rights suit.
1.
The referenced cases have long expired under both Louisiana statutory law, La. Code
Crim. Proc. Art. 578, and under the federal jurisprudence construing U. S. Constitution, Amend-
ment VI with respect to Mr. Gates’ right to a speedy trial.
2.
The resisting arrest one of referenced cases was instigated in bad faith and for an im-
proper purpose, viz. to obtain an unlawful and unethical advantage in defending Mr. Gates’ in-
stant civil action.

1 of 4 17-30519.1600
3.
The evidence the State must introduce to attempt to prove both those pending charges
(alcoholic intoxication and resisting arrest) was previously introduced in the State’s felony
prosecution of Mr. Gates, a prosecution that resulted in a general jury verdict of acquittal.
Therefore, under the “evidentiary fact” branch of the constitutional double jeopardy principle,
the State is therefore barred by U.S. Constitution, Amendment V from reintroducing that same
evidence in any subsequent proceeding in which the State bears the burden of proof “beyond a
reasonable doubt”.
4.
The evidence the State must introduce to attempt to prove the pending DWI charge would
deny Mr. Gates his Sixth Amendment right to confront his accusers, inasmuch as during the
State’s long (10 year) delay in bringing that charge to trial, the only potential witness with actual
personal knowledge regarding the blood alcohol test that was allegedly performed has died and
his testimony was never preserved in any form.
5.
The State’s charges against Mr. Gates are fatally infected with incurable conflicts of in-
terest that present both actual improprieties and the appearance of improprieties, which, in turn,
violate Mr. Gates’ Fifth Amendment rights to due process.
6.
For the above reasons, the Defendants’ continued pursuit of the referenced charges
threatens Mr. Gates with irreparable harm.

2 of 4 17-30519.1601
7.
The Louisiana trial and appellate courts have refused to enforce Mr. Gates’ U.S. Consti-
tutional rights as set forth above and those refusals now form “the law of the case” in those state
proceedings, for which reason he has exhausted his state remedies and is now entitled to the
same forms of habeas corpus relief as is a criminal defendant whose criminal conviction has
been affirmed and who is, therefore, entitled to seek collateral post-conviction relief in the fed-
eral trial courts.
8.
Mr. Gates reiterates and incorporates by reference into this Motion (a) the Memorandum
in Support hereof that he is filing contemporaneously herewith and (b) all of the exhibits, physi-
cally attached and by reference incorporated into that Memorandum in Support.
WHEREFORE, Shane Gates respectfully requests this Honorable Court to grant this
Motion, to Lift Stay and for Injunction, enjoining and restraining the civil Defendants herein
from proceeding with the stale misdemeanor charges against Mr. Gates of DWI and resisting ar-
rest that those Defendants contend are still pending in the 22nd Judicial District Court, St. Tam-
many Parish, Louisiana, and lifting the stay presently imposed herein on Mr. Gates’ pending §
1983 action against those Defendants, on the grounds that the continued delay of and interfer-
ence with his § 1983 action is unjust and improper and that those Defendants’ attempts to main-
tain those long-time barred misdemeanor charges cause him irreparable harm by violating his
Fifth Amendment rights against double jeopardy and to due process and his Sixth Amendment
rights to a speedy trial and to the opportunity to confront his accusers.
/s/ J. A. Hollister

3 of 4 17-30519.1602

(985) 792-5353
23, 2017, and pursuant to the instructions of that Clerk is being re-filed on January 24, 2017, us-
ing that Court’s CM/ECF system, which system will send a notice of electronic filing to appear-
ing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

4 of 4 17-30519.1603

versus
PLAINTIFF’S MEMORANDUM IN SUPPORT

OF MOTION FOR INJUNCTION AND TO LIFT STAY
this Memorandum in Support of his contemporaneous Motion to Lift Stay and for Injunction.
I. Factual and Procedural History
This case arose on the evening of November 16, 2006, when Nathan Miller, an off-duty
St. Tammany Parish Sheriff’s Deputy, stopped a Pontiac GTO being driven by Shane Gates. Al-
though Deputy Miller later testified that he had observed that vehicle’s driving recklessly and at
high speed, the Sheriff’s Office dispatch tapes—which that department first hid from discovery
by the defense and then altered before producing them—when examined by an audio expert re-
vealed that Miller had been pursuing a dark four-door vehicle but eventually, and for reasons that
have never been explained, stopped a dark two-door one. Further, while Miller claimed he had
been pursuing that four-door for miles down Interstate 12, the evidence adduced at trial showed
he actually stopped Mr. Gates only 0.6 miles and one minute after he first called his dispatcher.

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(The undisputed testimony of several third-party witnesses was that until 19 minutes prior
to Deputy Miller’s stop,1 Mr. Gates had spent the entire afternoon at an auto dealership in Slidell,
completing the purchase of a new car, during which time he had nothing whatever to drink.
Thus, if the State’s later claims were true, that when Deputy Miller stopped him, he had a blood-
alcohol level of 0.273%, this would have required that during those 19 minutes he would not
only have had to have driven himself from Slidell to the site of the traffic stop in Lacombe,
something which was just barely possible within the time parameters, but in addition, during
those same 19 minutes would also have had to have consumed the incredible amount of between
10 to 20 beers or mixed drinks.)
After Deputy Miller stopped Mr. Gates, he handcuffed him and placed him in his cruiser.
Then two on-duty deputies, Roger Gottardi and Brian Williams, arrived on the scene, after which
Deputy Gottardi removed Mr. Gates from Deputy Miller’s car, smashed his face into the hot
hood of Deputy Gottardi’s vehicle, then threw Mr. Gates—still handcuffed—to the ground,
smashing his face into the roadway paving several times and causing massive injury to Mr.
Gates. Pictures of Mr. Gates’ injuries are attached hereto as Exhibit “A”.
A shift supervisor, then-Sheriff’s Lieutenant Randy Smith (now himself Sheriff of St.
Tammany Parish and therefore administrator of the department budget that is potentially liable
for the $500,000 insurance deductable on Mr. Gates’ civil claim) arrived on the scene and di-
rected that Mr. Gates be taken to the nearby Louisiana Heart Hospital in Lacombe, Louisiana, for
treatment of his injuries. There, Mr. Gates received preliminary treatment for his injuries and the
emergency room physician determined that his facial injuries were so extensive that he should be
transported to another facility where an on-call plastic surgeon would be available properly to
1
The time of Mr. Gates’ leaving the dealership was independently verified by the timestamp on the “Fuelman”
printout from a gas pump at which the dealership filled up Mr. Gates’ new car as he was leaving the dealer’s lot in
Slidell.

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repair the damage Deputy Gottardi had inflicted. However, although the Louisiana Heart Hospi-
tal is located midway between Covington, Louisiana and the St. Tammany Parish Hospital, and
Slidell, Louisiana and Slidell Memorial and Ochsner Hospitals there, at any of which a plastic
surgeon could have been expected to be available, the E.R. nurse (who later testified against Mr.
Gates at the felony trial and whose testimony on many critical points was contradicted by that of
the E.R. physician on duty) arranged instead for him to be transported past those two Slidell hos-
pitals and on many, many miles further to a hospital in Hattiesburg, Mississippi where his own
wife worked.
There, in fact, no surgical specialist was available and Mr. Gates was eventually sewn up
by an ordinary emergency room physician, something that could have been done more quickly,
cheaply, and practically at the emergency room where he first landed. However, this absurd,
wasteful, and unnecessary transport did assure that Mr. Gates did not present himself at any of
the St. Tammany Parish hospitals, all of which had policies that required the local municipal po-
lice to be called when a patient arrived with injuries of the type Mr. Gates displayed. Further, Lt.
Smith also personally called off the Louisiana State Police officers who were en route to the La-
combe hospital to deliver the mandatory State-approved blood sampling kit that is required under
the Louisiana Administrative Code for the prosecution of any traffic offense involving alleged
alcohol intoxication. Thus no blood alcohol test certified as required by the Louisiana State Po-
lice Crime Lab was ever performed on Mr. Gates, meaning that the State has no objective evi-
dence of intoxication to support its charge of DWI.
What the State does allege occurred at the Lacombe hospital was an ordinary hospital
blood test for alcohol, ordered by the emergency room physician for purposes of medical treat-
ment, not by a law enforcement officer for purposes of prosecuting a traffic violation. However,

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no witness has ever testified that any such test was, in fact, performed; the most the State was
able to show was the testimony of one E.R. nurse who stated that he drew a blood sample—
without Mr. Gates’ permission—and then left that ampoule on a desk in the emergency depart-
ment, which was the last he ever saw of it. That hospital has never produced that sample or any
chain of custody for it, or any evidence that any test was actually run on it, or any of the required
maintenance and calibration logs that are required by the Louisiana Administrative Code for test-
ing equipment that is to be used in traffic enforcement cases.
Nor did the technician who allegedly tested that sample—but who was indisputably not
certified to do so for law enforcement purposes, as required by La. Admin. Code 55:551-565—
never testified as to anything he might have done that night, because during the lengthy delays in
the State’s first bringing to trial any of the charges against Mr. Gates, that potential witness died.
The unavailability of the only person who had personal knowledge of whether a test—even
though, for the State’s purposes an unlawful, uncertified test—was or was not performed is one
of several irreparable harms Mr. Gates has suffered as direct results of the State’s nearly six-year
delay in first bringing him to trial on the events in question.
On the night he was stopped and beaten, Mr. Gates was issued ordinary traffic citations
for DWI, resisting arrest, and having an open container of alcohol in a vehicle, all of which did
not ripen into formal charges until the following month. At that time, Ronnie Gracianette, a St.
Tammany Parish Assistant District Attorney, “screened” the charges and signed an interoffice
form “accepting” a misdemeanor charge of DWI and a felony charge of unlawful flight to avoid
prosecution. That felony charge eventually went to a jury trial in July, 2012 but no misdemeanor
charge was ever set for trial, nor was ever the subject of any motion for a continuance or other
delay, until well after that felony trial concluded. This is significant for present purposes be-

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cause throughout the proceedings below, Mr. Gates filed numerous motions asserting his speedy
trial claims, all of which were ignored by the state trial judge and never set for hearing, and by
statute Louisiana requires all misdemeanors to be tried within one year after of the institution of
charges, La. Code Crim. Proc. Art. 578. Thus that DWI charge was already stale and time-
barred more than four years prior to the commencement of the felony trial and the resisting arrest
charge was similarly stale and time-barred more than three years prior to the commencement of
that trial.
The State’s inattention to these misdemeanor charges was clearly explained by ADA
Ronnie Gracianette’s later testimony that, having billed Mr. Gates for one felony charge under
La. Rev. Stat. 14:108.1 that carried the heaviest potential sentence available, he had no real inter-
est in other misdemeanor charges, whether the original DWI charge he did “accept” or the resist-
ing arrest charge first suggested by Deputies Gottardi and Williams on the traffic ticket but
which he did not “accept”, and which he only later “accepted” at the behest of St. Paul Travelers’
and on the strength of the forged “victim letter” that St. Paul Travelers gave him but that had
purportedly been authored by Deputy Miller. (See Rec. Doc. 225-1, which is incorporated by
reference herein as this Memorandum’s Exhibit “B”.)
Daniel G. Abel, one of Mr. Gates’ defense counsel, testified that, subsequent to ADA
Gracianette’s billing Mr. Gates on the felony flight charge, Mr. Abel had several conversations
with Charles M. Hughes, Jr., one of the attorneys for St. Paul Travelers, the insurer for the St.
Tammany Parish Sheriff’s Office. Mr. Hughes told Mr. Abel that if Mr. Gates filed a “Rodney
King”-style § 1983 suit against the Sheriff’s Office over his beating, then Hughes would see to it
that further charges of resisting arrest were instituted, because under the then-prevailing interpre-
tation of federal case law, a conviction or plea on that charge would completely bar any recovery

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for excessive force. When Mr. Abel did file the first of the instant § 1983 suits on Mr. Gates’
behalf, Mr. Hughes requested Mr. Gracianette to add or “accept” a new or additional misde-
meanor charge (depending on one’s view of the events of December, 2006) of resisting arrest in
an attempt to bar Mr. Gates’ civil recovery. (A copy of the relevant portions of Mr. Abel’s tes-
timony on May 10, 2010 is attached hereto and incorporated herein by reference as this Memo-
randum’s Exhibit “C”.)
Of course, Mr. Hughes’ threat to Mr. Abel to use a criminal prosecution to obtain an ad-
vantage in Mr. Gates’ civil suit was completely and utterly unethical, and itself constituted bad
faith in the institution and maintenance of that prosecution. Three further aspects of this transac-
tion, both at the time unknown to Mr. Gates’ defense, also bear directly on the issue of the
State’s bad faith in this same matter. One is that, at this time, Walter Reed, then the St. Tam-
many Parish District Attorney, was conducting his personal civil law practice through the New
Orleans firm of McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch. A second is that, at
this same time but again unknown to the defense, McCranie, Sistrunk regularly represented St.
Paul Travelers, so that Walter Reed personally had a direct financial incentive to benefit St. Paul
Travelers by using his office as District Attorney to assist in St. Paul Travelers’ defense of Mr.
Gates’ suit. As a direct result of that, Walter Reed and his entire office also had an irreparable
conflict of interest in handling the charges against Mr. Gates, but he never recused himself or his
office from this case. This, too, is a further example of the bad faith that fatally infects these par-
ticular criminal charges; it is black-letter law that federal due process standards not only guaran-
tee a party against actual improprieties in the conduct of litigation but also against even the ap-
pearance of impropriety.

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In this connection, this Court will be all too aware that, as this Memorandum is being
filed, Walter Reed has been convicted on eighteen felony counts of misconduct in office, is cur-
rently awaiting sentencing for those crimes, and several of those charges arose from his regular
practice of manipulating his public office as District Attorney to divert large sums in “legal fees”
to himself, using as a conduit therefore his allegedly “private” law practice.
The third fact relevant to Mr. Hughes’ procuring the resisting arrest charge that was then
unknown to the defense is that when he approached Mr. Gracianette, and told him St. Paul Trav-
elers wanted a resisting arrest charge to be lodged, Mr. Gracianette told him he would do so only
if one of the Sheriff’s Deputies involved in the case requested him to do so. Mr. Hughes, to in-
duce Mr. Gracianette to comply with St. Paul Travelers’ request, on the same day ADA Gra-
cianette informed him of the requirement for a “victim letter” before the resisting arrest charge
would be “accepted”, returned that same day and produced a letter conforming to Gracianette’s
specifications that purported to have been written and signed by Deputy Nathan Miller, the origi-
nal officer making the traffic stop. This was addressed to the DA’s Office and, on its face, re-
quested that a resisting arrest charge be filed. (See Rec. Doc. 225-4, a copy of this letter which is
incorporated by reference herein as this Memorandum’s Exhibit “D”. See also Rec. Doc. 225-6,
Mr. Hughes’ own testimony about this transaction, which is incorporated by reference herein as
this Memorandum’s Exhibit “E”.)
However, according to Deputy Miller’s own later testimony, he was never asked to pro-
vide any such letter and he never prepared or signed one. (See Rec. Doc. 225-5, which is incor-
porated by reference herein as this Memorandum’s Exhibit “F”.) No evidence has ever been ad-
duced to contradict Deputy Miller’s testimony on this point. Therefore, in plain English, the
“victim letter” that St. Paul Travelers, through its lawyer, presented to ADA Gracianette, in order

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to obtain the institution of criminal charges to assist St. Paul Traveler‘s defense of Mr. Gates’
civil suit, was a forgery. This is a just one more clear and glaring instance of bad faith in the
State’s current attempt to bring up for prosecution the long-expired DWI and resisting arrest
misdemeanor charges against Mr. Gates.
After Mr. Hughes and St. Paul Travelers presented the forged Miller “victim letter” to get
the resisting arrest charge added to the DWI charge, both of those charges then languished with-
out any attempt by the State to move either toward trial. Neither was ever set for trial nor was
the subject of any hearing or action in the state trial court. Thus, by the time the felony trial
opened in July, 2012, that resisting arrest charge had already passed the state’s statutory one-year
deadline for a misdemeanor trial. It is undoubtedly for that reason that, when the felony charge
of unlawful flight to avoid prosecution finally went to trial, the State had nothing to lose by using
such evidence as it had on both of those charges for tactical purposes in what was, technically, an
unrelated matter; where by that time those two minor charges themselves could not lawfully be
brought to trial.
At the felony trial, the State apparently never expected Mr. Gates to take the stand in his
own defense. But after the State rested its case in chief, he did so, as well as presenting the wit-
nesses from the car dealership who showed that he had not been drinking that day and other evi-
dence that showed Deputy Miller’s account of the events leading to the traffic stop was a physi-
cal impossibility. Therefore, in order to rebut that defense, on the final day of trial the State
sought to bring forward the evidence on which the State relied both to establish its claim that Mr.
Gates was intoxicated and that, although already handcuffed and in Deputy Miller’s cruiser, he
had resisted Deputy Gottardi’s beating him to a pulp.

8 of 22 17-30519.1611
The defense objected to the introduction of any evidence regarding alleged intoxication,
which the trial court upheld. The State therefore took an overnight emergency writ to the state
Court of Appeal for the First Circuit, which ruled that the tainted evidence must be admitted.
Mr. Gates therefore filed his own overnight emergency writ application to the Louisiana Su-
preme Court, which denied his application. This is important because, under Louisiana’s “law of
the case” doctrine, the constitutional claims Mr. Gates raised in his trial court exception and in
his state supreme court writ application would not be reconsidered on any appeal from a criminal
conviction. Thus he has already exhausted his state remedies with respect to these issues and is,
therefore, in the same status as an applicant to this Court for post-conviction relief from viola-
tions of his federally-guaranteed constitutional rights.
On July 27, 2012, after notice of the Supreme Court’s denial of Mr. Gates’ writ applica-
tion, the trial resumed and the State put on its case in rebuttal of Mr. Gates’ defense. (See Rec.
Doc. 225-3, the transcript of that day’s evidence, which is incorporated by reference herein as
this Memorandum’s Exhibit “G”.) As that Exhibit shows, while the issues of alcoholic intoxica-
tion and resisting arrest are not among the essential elements of the felony crime of unlawful
flight, the State nevertheless put on all of its evidence on both those issues, i.e., everything it
would have offered in evidence had it ever timely set them for trial. The obvious purpose in in-
troducing this otherwise irrelevant evidence was to try to prejudice the jury against Mr. Gates by,
it hoped, painting him as a “bad actor”, a drunk and a fighter who would, therefore, seem more
likely to have fled from a police officer than would a more compliant citizen.
But despite the State’s best efforts, when the jury retired, it took less than a half hour to
return a general verdict of “not guilty”. (See Rec. Doc. 225-2, the jury verdict form, which is
incorporated by reference herein as this Memorandum’s Exhibit “H”.) Having thus submitted to

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the jury all of its evidence on both issues of intoxication and resisting arrest, either inadvertently
or by calculation based on those issues’ lapse by time, and having had a general verdict of “not
guilty” returned thereon, the State triggered the “evidentiary fact” branch of the U.S. Supreme
Court’s Double Jeopardy jurisprudence.
It was only after the jury exonerated Mr. Gates that the State, for the very first time, gave
some thought to trying to set the stale DWI and resisting arrest misdemeanors for trial. Even
though by that time, of course, those charges were nearly six years old, having passed both the
state statutory and federal jurisprudential time limits, and even though during the felony proceed-
ings Mr. Gates had continuously resided in St. Tammany Parish and, moreover, had been per-
sonally present in court on more than 44 occasions, on any one of which he could have been
served with a notice of trial, the State never set a trial on the misdemeanor charges and never
issued a notice of trial regarding them until after August, 2013, long past the statutory deadline
for bringing misdemeanors to trial and, most significantly, until after the felony trial jury had al-
ready found Mr. Gates not guilty on the flight charge upon which the State had, for nearly six
years, been pinning its hopes.
After the State—for the first time—attempted to set those stale charges for trial, and
while it was making ineffectual efforts to serve Mr. Gates personally with notice thereof, his de-
fense counsel filed in the trial court a motion to quash those charges on the grounds of double
jeopardy and denial of due process. The 22nd Judicial District Court, the Louisiana Court of Ap-
peal for the First Circuit, and the Louisiana Supreme Court all declined to enforce Mr. Gates’
constitutional rights (the two appellate courts without giving any written reasons for their non-
feasance), for which reason he is, again, standing before this Court in the same essential situation

10 of 22 17-30519.1613
as would a defendant who has been convicted in the state courts, had that conviction affirmed,
and is now seeking collateral post-conviction vindication of his violated constitutional rights.
Subsequently former Supreme Chief Justice Pascal Calogero and co-counsel filed a mo-
tion to quash concerning the double jeopardy and speedy trial violations in the 22nd JDC which
was denied by the trial court, took writs to the 1st Circuit Court of Appeal, and the Louisiana Su-
preme Court, each of which were denied without any written reasons. Mr. Gates has sought relief
from these violations of his constitutional rights in the state courts, which did not give him such
under the state or federal constitution.
Mr. Gates filed his initial § 1983 civil lawsuit against the Sheriff and the other Defen-
dants in 2007, while the felony prosecution was pending; as noted above, it was the filing of this
suit that led St. Paul Travelers to procure the resisting arrest charge against him. Then in 2008
the State moved to stay the civil case until it finished its prosecution of Mr. Gates on all charges.
This Court noted at the hearing on that motion that it was granting a stay of the case but only for
a limited period of time because it was obvious that Mr. Gates was handcuffed when he was
beaten.
After the May 10, 2010 state court hearing, at which the fact of St. Paul Travelers’ role in
instituting the resisting arrest charge was revealed, Mr. Gates filed in 2011 his own motion in
this Court to lift the stay and proceed with his civil suit. At that time, this Court denied his mo-
tion because the felony case had not yet gone to trial.
In August, 2013, Mr. Gates filed the second § 1983 suit here, based on additional acts of
fraud that had come to light in the interim, such as the forged “victim letter” purporting to have
been signed by Deputy Nathan Miller that St. Paul Travelers obtained and presented to ADA
Ronnie Gracianette to get the resisting arrest charge “accepted”. The Defendants were served

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with that second suit but did not answer it, so Mr. Gates took default judgments against them.
The Defendants then moved to set those defaults aside and to reimpose the stay while they at-
tempted to proceed with the now seven-year-old misdemeanors that they hoped would serve as
bars to the “Rodney King” § 1983 civil actions.
On October 20, 2016, the Defendants filed in this Court a new and utterly unprecedented
motion (Rec. Doc. 211), seeking a partial lifting of the stay combined with an order (for which
bizarre relief no possible authority or precedent was ever cited), directing Mr. Gates to surrender
himself to the same St. Tammany Parish Sheriff’s Office that had already beaten him unmerci-
fully and which had never disciplined the rogue officer who did so, in default of which they re-
quested this Court to dismiss his civil actions. The face of this motion and its supporting memo-
randa reveal beyond any reasonable doubt that the motion was filed, and the unprecedented relief
requested was planned, not out of any legitimate motive of enforcing the State’s interest in a c-
riminal prosecution—and especially in a criminal prosecution that the State itself had abandoned
many years before—but, instead, out of purely mercenary motives, in order to give an unlawful,
unfair, and utterly unethical advantage to the St. Tammany Parish authorities in their defense of a
civil suit, in blatant bad faith as well as in violation of Rule 8.4(g), R. Prof. Cond., which forbids
threatening or maintaining a criminal prosecution for the purpose of obtaining an advantage in a
civil suit. And this unethical genesis of the misdemeanor charge of resisting arrest, at least, goes
all the way back to Charles Hughes’ admission that St. Paul Travelers procured that charge for
precisely that purpose. And, being incurably unethical and infected with fatal conflicts of inter-
est, the continuation of those misdemeanor charges is likewise in objective bad faith.

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After a hearing on December 14, 2016 on the Defendants’ most recent motion, this Court
ordered that Mr. Gates file, by January 23, 2017, this instant motion to enjoin the state criminal
prosecution and to lift the stay (Rec. Doc. 237).
II. Law and Argument.
A. While considerations of federal-state comity under the Eleventh Amendment usu-

ally lead the federal courts to decline to enjoin state-court criminal proceedings,
there is a narrow list of recognized exceptions to that policy. Shane Gates’ case fits
squarely within those exceptions, one of which is when the request for an injunction
arises out of an action to vindicate federally-guaranteed civil rights and the state
criminal proceedings violates the Fifth Amendment’s guarantee against being twice
placed in jeopardy on the same criminal matters.
Where state officials use, or threaten to use, state criminal proceedings, the maintenance
of which would violate fundamental U.S. Constitutional rights of the defendants, then despite the
Eleventh Amendment, the federal courts may protect those federally-guaranteed rights by enjoin-
ing and restraining those state officers from continuing with state-law enforcement actions:
“[J]urisdiction of this general character has, in fact, been exercised by

Federal courts from the time of Osborn v. Bank of United States up to the present;
the only difference in regard to the case of Osborn and the case in hand being that
in this case the injury complained of is the threatened commencement of suits,
civil or criminal, to enforce the act, instead of, as in the Osborn Case, an actual
and direct trespass upon or interference with tangible property. A bill filed to
prevent the commencement of suits to enforce an unconstitutional act, under the
circumstances already mentioned, is no new invention, as we have already seen.
The difference between an actual and direct interference with tangible property
and the enjoining of state officers from enforcing an unconstitutional act, is not of
a radical nature, and does not extend, in truth, the jurisdiction of the courts over
the subject-matter. In the case of the interference with property, the person en-
joined is assuming to act in his capacity as an official of the state, and justification
for his interference is claimed by reason of his position as a state official. Such
official cannot so justify when acting under an unconstitutional enactment of the
legislature. So, where the state official, instead of directly interfering with tangi-
ble property, is about to commence suits which have for their object the enforce-
ment of an act which violates the Federal Constitution, to the great and irreparable
injury of the complainants, he is seeking the same justification from the authority
of the state as in other cases. The sovereignty of the state is, in reality, no more
involved in one case than in the other. The state cannot, in either case, impart to

13 of 22 17-30519.1616
the official immunity from responsibility to the supreme authority of the United
States. See Re Ayers, 123 U. S. 507, 31 L. ed. 230, 8 Sup. Ct. Rep. 164.”
Ex parte Young, 209 U.S. 123, 167, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Aside from the Eleventh Amendment, one of the other principle obstacles to such federal
injunction suits is the Anti-Injunction Act, 28 U.S.C. § 2283 ff:
“The Anti–Injunction Act (“the Act”) states that ‘[a] court of the United
States may not grant an injunction to stay proceedings in a state court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdic-
tion, or to protect or effectuate its judgments.’ 28 U.S.C. § 2283 (2000). Conse-
quently, one of the limited exceptions to the Act is when a federal statute explic-
itly permits a federal court to enjoin a state proceeding. Mitchum v. Foster, 407
U.S. 225, 226, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).
“As Petitioner asserts, the federal habeas statute, 28 U.S.C. § 2251 (‘Sec-
tion 2251’), is one of the few statutes that authorizes a federal court to stay pro-
ceedings in state court. See e.g., McFarland v. Scott, 512 U.S. 849, 114 S.Ct.
2568, 129 L.Ed.2d 666 (1994).”
Schillaci v. Peyton, 328 F.Supp.2d 1103, 1104 (D. Hawaii 2004). Of particular importance is
that the U.S. Constitutional right that gave rise to the injunction issued in Schillaci was the Fifth
Amendment guarantee against double jeopardy, precisely the right that would be violated by the
instant Defendants’ proceeding against Mr. Gates on their misdemeanor charges in St. Tammany
Parish.
The other similar obstacle is the “Younger abstention doctrine”, which the Schillaci court
explained thusly:
“In addition [to the Eleventh Amendment], the court must consider
whether enjoining Petitioner’s state criminal proceedings would violate the
Younger abstention doctrine. The Younger doctrine arises from the Supreme
Court’s decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
(1971). In Younger, the Supreme Court reversed a federal court’s decision to en-
join a state criminal prosecution because the decision violated the ‘national policy
forbidding federal courts to stay or enjoin pending state court proceedings except
under special circumstances.’ Id. at 41, 91 S.Ct. 746. The Court based its deci-
sion on the established doctrine that a court of equity should not interfere with a
state criminal prosecution when the moving party has an adequate remedy avail-
able and would not suffer irreparable injury. Id. at 43-44, 91 S.Ct. 746. More-

14 of 22 17-30519.1617
over, the Court stated that it coupled this consideration with ‘an even more vital
consideration, the notion of “comity,” that is a proper respect for state functions.”
Id. at 44, 91 S.Ct. 746.
“Exceptions to the Younger doctrine are very limited, but several do exist.
In Younger, the Court identified three particular exceptions: 1) when there has
been a bad faith state prosecution; 2) when there is a patently unconstitutional
state law; or 3) when an adequate state forum does not exist in which to raise a
constitutional issue. Id. at 53-54, 91 S.Ct. 746. The Court also noted that ‘[t]here
may, of course, be extraordinary circumstances in which necessary irreparable in-
jury can be shown even in the absence of the usual prerequisites of bad faith and
harassment.’ Id. at 53, 91 S.Ct. 746.
“The Ninth Circuit has recognized that a successive prosecution in state
court would constitute the type of extraordinary circumstances which would per-
mit a federal court to enjoin a state proceeding, notwithstanding the Younger ab-
stention doctrine. In Mannes v. Gillespie, the Ninth Circuit stated that ‘[a] claim
that a state prosecution will violate the Double Jeopardy Clause presents an ex-
ception to the general rule of Younger....’ 967 F.2d 1310, 1312 (9th Cir. 1992)
(citations omitted). The court explained that this exception arises because the
Double Jeopardy clause does not seek to prevent an individual from being pun-
ished twice; it seeks to prohibit an individual from being placed in jeopardy twice.
“With regard to the instant case, the court agrees with Petitioner that if
Petitioner is convicted in the second state court proceeding, overturning the con-
viction would not be a complete remedy, as Petitioner would have already been
placed in jeopardy twice. In Hartley v. Neely, the Ninth Circuit made clear that ‘a
petitioner in state custody can only be assured freedom from double jeopardy by
giving him access to habeas review prior to a second trial.’ 701 F.2d 780, 781
(9th Cir. 1983). As a result, in the instant case, Petitioner will incur irreparable
injury if the state proceedings are not enjoined. Petitioner’s circumstances consti-
tute an exception to the Younger abstention doctrine.”
Schillaci, supra, at 1105. Accordingly, where Mr. Gates has exhausted his remedies in the state
courts and is threatened with irreparable injury to his Fifth Amendment double jeopardy rights, it
is both appropriate and necessary for this Court to protect those rights by enjoining the Defen-
dants from proceeding with the two pending misdemeanor prosecutions.

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B. Were the St. Tammany officials to be permitted to proceed in the name of the State
of Louisiana to prosecute Mr. Gates on the pending DWI and resisting arrest mis-
demeanors, they would thereby compel him unconstitutionally to run the gantlet
they first made him run at the July, 2007 felony trial, where they attempted to
prejudice the jury against him by putting on all of their available evidence of both
his alleged alcoholic intoxication and of his alleged resisting arrest—evidence that
jury rejected by returning a general verdict of “not guilty”.
The U.S. Supreme Court has explained the “double jeopardy” guarantee in these terms:
“The ultimate question to be determined, then, in the light of Benton v.

Maryland, [395 U.S. 784, 89 S.Ct. 2056], is whether this established rule of fed-
eral law is embodied in the Fifth Amendment guarantee against double jeopardy.
We do not hesitate to hold that it is. For whatever else that constitutional guaran-
tee may embrace, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, it surely protects a man who has been acquitted from having to ‘run the
gantlet’ a second time. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221,
225, 2 L.Ed.2d 199.
“…
“In this case the State … treated the first trial as no more than a dry run
for the second prosecution: ‘No doubt the prosecutor felt the state had a provable
case on the first charge and, when he lost, he did what every good attorney would
do he refined his presentation in light of the turn of events at the first trial.’ But
this is precisely what the constitutional guarantee forbids.”
Ashe v. Swenson, 397 U.S. 436, 445-447, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
There are two branches of the “double jeopardy” doctrine, the first and more familiar of
which deals with situations where a defendant has been tried, and either convicted or acquitted,
of one offense, and the government then attempts to prosecute him on a second charge—such as
a lesser-included offense—for which the essential elements of the first crime were included
among the essential elements of the second one. This was the situation confronted in, for exam-
ple, the leading case of Green v. United States, cited above in the extensive quotation from the
Ashe court.
There is, however, another, rather rarer branch of this doctrine, which deals with what the
courts have termed “evidentiary facts”. This is where the state has prosecuted a defendant on
one offense, that prosecution has ended in an acquittal by the trier of fact, and the government

16 of 22 17-30519.1619
then attempts to pursue a second action against him where, although the essential elements of the
second offense do not overlap with those of the first one, the evidence actually presented at each
of the trials does so.
This was the situation in Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107
L.Ed.2d 208 (1990), where the Government of the U.S. Virgin Islands prosecuted Dowling for
an armed robbery and, at trial, introduced evidence of an earlier, and separate robbery which it
contended he had committed—and for which he had been acquitted. Noting that the identity of
the robber in the first case was not an essential element required to be proven in the second one,
the Supreme Court upheld the admission of that evidence:
“Our decision is consistent with other cases where we have held that an
acquittal in a criminal case does not preclude the Government from relitigating
an issue when it is presented in a subsequent action governed by a lower stan-
dard of proof. In United States v. One Assortment of 89 Firearms, 465 U.S. 354,
104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), for example, we unanimously agreed that
a gun owner’s acquittal on a charge of dealing firearms without a license did not
preclude a subsequent in rem forfeiture proceeding against those firearms, even
though forfeiture was only appropriate if the jury in the forfeiture proceeding con-
cluded that the defendant had committed the underlying offense. Because the for-
feiture action was a civil proceeding, we rejected the defendant's contention that
the Government was estopped from relitigating the issue of the defendant’s al-
leged wrongdoing:
“‘[The acquittal did] not prove that the defendant is innocent; it merely
proves the existence of a reasonable doubt as to his guilt. . . . [T]he jury verdict in
the criminal action did not negate the possibility that a preponderance of the evi-
dence could show that [the defendant] was engaged in an unlicensed firearms
business. . . . It is clear that the difference in the relative burdens of proof in the
criminal and civil actions precludes the application of the doctrine of collateral es-
toppel.’ Id., at 361-362, 104 S.Ct., at 1104.
“In One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93
S.Ct. 489, 492, 34 L.Ed.2d 438 (1972), it was also held that the Double Jeopardy
Clause did not bar a forfeiture action subsequent to acquittal on the underlying of-
fense because ‘the difference in the burden of proof in criminal and civil cases
precludes application of the doctrine of collateral estoppel.’ Helvering v.
Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 632, 82 L.Ed. 917 (1938), likewise ob-
served that ‘[t]he difference in degree in the burden of proof in criminal and civil
cases precludes application of the doctrine of res judicata.’”

17 of 22 17-30519.1620
Dowling, supra, at 349-350 (emphasis supplied).
Thus the dispositive test is whether the state’s proposed second use of the same evidence
that a jury previously rejected is itself governed by the higher, criminal standard of “proof be-
yond a reasonable doubt” or by the lower, civil standard of “proof by a preponderance of the evi-
dence”. Mr. Gates’ situation is the precise opposite of that presented in Dowling: here, while
the State did not need to present its evidence of intoxication and resisting arrest in order to dem-
onstrate the essential elements of aggravated flight to avoid prosecution, it nevertheless chose to
do so as a tactical advantage. Now, however, it seeks to use that same evidence which has al-
ready been submitted to a jury’s general verdict of acquittal to prove the essential elements of
DWI and resisting arrest, all of which are now required to be proven “beyond a reasonable
doubt”. Thus under the Dowling test, the State’s proposed reuse of that same evidence is now
barred by the “evidentiary fact” branch of the double jeopardy principle. Mr. Gates has pre-
sented these issues to the Louisiana courts, through a motion to quash in the trial court and writ
applications in the Court of Appeal and Supreme Court, and has been denied relief for his double
jeopardy rights. Thus he has exhausted his state remedies and is now entitled to federal habeas
protection against being again placed in jeopardy with respect to that same evidence.
C. The St. Tammany officials’ bad faith in seeking to proceed to trial against Mr. Gates
on the pending DWI and resisting arrest misdemeanors is shown not only by the
corrupt way the resisting arrest charge was procured by the Parish’s liability in-
surer but also by the fact that they know perfectly well that the misdemeanor
charges have long since passed the permissible delays for bringing them to trial,
both under Louisiana state statute and under federal constitutional due process
standards.


18 of 22 17-30519.1621
tion;
cution; and
prosecution.
[Emphasis supplied.] Mr. Gates was arrested on November 16, 2006 and the state court
felony trial concluded on July 27, 2012, more than five years and eight months after that
arrest. During that entire time, Mr. Gates was continuously resident in St. Tammany Par-
ish, his residence address was on file with the state trial court, and he was personally pre-
sent in court in connection with the felony case on at least forty-four (44) occasions, on
any one of which he could have been served with a notice of hearing or trial on those
misdemeanor charge, provided only that any such hearing or trial ever been set.
charges closed, at the latest, in December, 2007, long before his felony trial even commenced, let
alone concluded.

19 of 22 17-30519.1622
as guaranteed by U.S. Constitution, Amendments VI and XIV. The United States Court of Ap-
peals for the Fifth Circuit has defined the contours of the federally-guaranteed due-process right
to a speedy trial in Amos v. Thornton, 646 F.3d 199 (5th Cir. 2011), applying the rule laid down
in Barker v. Wingo, 407 U.S. 514, 521–22, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Thornton,
it held that after a one-year’s delay in bringing a criminal charge to trial, the federal courts must
analyze state criminal proceedings to see if they comply with federal due process standards. Af-
ter eighteen months’ delay, in the Barker analysis that delay is considered strongly to favor the
defendant and to weigh against the State.

20 of 22 17-30519.1623
against Mr. Gates.
WHEREFORE, Shane Gates respectfully requests this Honorable Court to grant his Mo-
tion to Lift Stay and for Injunction, freeing Mr. Gates to proceed with his pending § 1983 action
against the Defendants and enjoining and restraining those same civil Defendants from proceed-
ing with the misdemeanor charges against Mr. Gates of DWI and resisting arrest that those De-
fendants contend are still pending in the 22nd Judicial District Court, St. Tammany Parish, Lou-
isiana, on the grounds that the continued delay of and interference with his § 1983 action is un-
just and improper and that those Defendants’ attempts to maintain those long-time barred mis-
demeanor charges cause him irreparable harm by violating his Fifth Amendment rights against
double jeopardy and to due process and his Sixth Amendment rights to a speedy trial and to the
opportunity to confront his accusers.
/s/ J. A. Hollister
(985) 792-5353

21 of 22 17-30519.1624
23, 2017, and pursuant to the instructions of that Clerk is being re-filed on January 24, 2017, us-
ing that Court’s CM/ECF system, which system will send a notice of electronic filing to appear-
ing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

22 of 22 17-30519.1625

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17-30519.1653

versus
PLEASE TAKE NOTICE that the Plaintiff herein, Shane M. Gates, through his under-
signed counsel, respectfully submits his Motion to Enjoin and to Lift Stay, as directed on De-
cember 14, 2016 by the Hon. Stanwood R. Duvall, Jr. (Rec. Doc. 237), before whichever of the
Honorable Judges of the United States District Court for the Eastern District of Louisiana to
whom this case may be allotted, on the 8th day of February, 2017, at 9:30 AM.
Shane Gates also hereby requests that this Motion be set for oral argument and for an
evidentiary hearing.
/s/ J. A. Hollister
(985) 792-5353
I HEREBY CERTIFY that, pursuant to the instructions of the Clerk’s Office of the
United States District Court for the Eastern District of Louisiana, the above and foregoing plead-
ing was filed electronically with the said Clerk on January 24, 2017, using that Court’s CM/ECF
SMG Notice of Submission

Page 1 of 2 pages
17-30519.1654
system, which system will send a notice of electronic filing to appearing parties in accordance
with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER
SMG First Notice of Submission

2 of 2 17-30519.1655

Plaintiff * 07-6983 and 13-6425
*
VERSUS * JUDGE CARL J. BARBIER
*
Defendants *
*
******************************************************************************
MEMORANDUM IN OPPOSITION TO PLAINTIFF'S

MOTION FOR INJUNCTION AND TO LIFT STAY
NOW COME defendants, Rodney J. "Jack" Strain, Jr., in both his individual capacity
Parish of St. Tammany, and Charles M. Hughes, Jr., (hereinafter, "Defendants"), each and all
appearing herein through undersigned counsel, to respectfully submit this memorandum in
opposition to plaintiff's motion for injunction and to lift stay (R. Docs. 239 and 240), and they
respectfully aver as follows:
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Page 1 of 17
17-30519.1656
This Honorable Court has summarized the general background to this action in its July
11, 2011, Order and Reasons (R. Doc. 121), which is incorporated herein by reference. In short,
plaintiff, Shane Gates ("Mr. Gates"), was arrested by deputies of the St. Tammany Parish
Sheriff's Office on November 16, 2006, for: (1) obstruction of a highway; (2) driving while
intoxicated; (3) having an open container; (4) reckless operation; and (5) resisting arrest.
wrongfully injured by deputies in conjunction with his 2006 arrest. He seeks relief under 42
U.S.C. § 1983, among other statutory provisions and theories of recovery. In 2013, Mr. Gates
filed a related action in the United States District Court for the Middle District of Louisiana.
That action was transferred to this Honorable Court and consolidated with the present action.
night of November 16, 2006" and represent a "chronological extension" of the 2007 suit. R.
Doc. 200, p. 4.
Tammany, State of Louisiana. See R. Doc. 81. A motion to re-open the case was denied in July
2011, while all state charges against Mr. Gates were still pending. See R. Doc. 121. This Court
See R. Docs. 136, 143. However, when the Court became aware there remained pending against
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Page 2 of 17
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officer, the stay was reinstituted. See R. Doc. 196. When the 2013 action was consolidated with
judge after Mr. Gates failed to appear by November 22, 2013, as ordered, to be served for his
misdemeanor trial. See R. Docs. 211-3 and 211-4. Since the issuance of the attachment, Mr.
Gates has not presented to the state court to receive service and stand trial for the still pending
misdemeanor charges, despite the knowledge of Mr. Gates and his counsel as to the existence of
the attachment for Mr. Gates' arrest.
On October 20, 2016, Defendants filed a motion requesting that the stay in this matter be
lifted for the limited purpose of allowing Mr. Gates to appear for service for his misdemeanor
trial, failing which this action should be dismissed under FRCP 41(b) for failure to prosecute. R.
Doc. 211. On December 14, 2016, that motion came before the Court for oral argument. While
the Court denied the motion at that time, it stated that Mr. Gates' action would be dismissed
under FRCP 41(b) unless he filed, no later than January 23, 2017, a motion concerning the
alleged grounds for the inapplicability of the Anti-Injunction Act, 28 U.S.C. § 2283 and Ex Parte
Young, 28 S. Ct. 441 (1908),1 in view of Mr. Gates' continued claims of double jeopardy and
failure to have a speedy trial. R. Doc. 237.
Mr. Gates filed his "motion for injunction and to lift stay" (R. Doc. 239) on the evening
of January 23, 2017.2 In view of the imminent retirement of the Honorable Stanwood R. Duval,
1
Defendants presume the latter reference was intended to be to the case of Younger v. Harris, 401 U.S. 37
(1971) (providing the contours for abstention) and not Ex Parte Young.
2
R. Doc. 240, apparently identical in all respects to R. Doc. 239 save for the inclusion of a specific
submission date, was filed on January 24, 2017.
89240/441174
Page 3 of 17
17-30519.1658
Jr., who had handled this consolidated action out of Section K, the case was then transferred to
the Honorable Carl J. Barbier of Section J. R. Doc. 241.
The arguments set forth in Mr. Gates' motion for injunction and to lift stay fail to
establish any new and viable grounds on which this Honorable Court may enjoin his underlying
state court proceeding. Indeed, what Mr. Gates argues is largely what has been rejected multiple
times by the Court, and the new cases cited by Mr. Gates are wholly inapplicable to the facts and
circumstances of his underlying state court proceeding. For these reasons and those more fully
discussed hereinafter, Mr. Gates' motion should be denied and, consistent with Defendant's
forthcoming re-urging of their motion related to the limited lifting of the stay and dismissal of
Mr. Gates' action, this action should be dismissed, with prejudice.3
A. A History of Delay and Disregard
On November 13, 2013, Mr. Gates was ordered by Judge Walter Rothschild, sitting ad
hoc at the Twenty-Second Judicial District Court of Louisiana, to appear at the Clerk of Court's
office to be served with his misdemeanor trial date on two counts of resisting arrest one count of
DWI. R. Doc. 211-3. That trial was to be held on January 16, 2014, a date determined by the
state court after discussion with the prosecution and Mr. Gates' defense attorney. Id. As this
Court is well aware, Mr. Gates never appeared to be served for his misdemeanor trial as ordered
by the state court, even after an attachment for his arrest was issued. See R. Doc. 211-4 and
Exhibit A hereto.
The gravity of the knowing and dilatory absence of Mr. Gates is compounded by his
willingness to simply ignore the authority and validity of orders given by both the state court and
3
Defendants plan to file this motion as soon as possible and suggest that it and Mr. Gates' motion be
considered by the Court at the same time.
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17-30519.1659
this Honorable Court. More specifically, it is clear from the foregoing that Mr. Gates has
violated the order of Judge Rothschild to appear in state court, but it is also beyond dispute that
Mr. Gates has no regard for the rulings of this Court which he deems adverse to his interests. In
this respect, Defendants refer this Honorable Court to its Order and Reasons of August 20,
2014given nine (9) months after Judge Rothschild's November 13, 2013 order to appear for
servicein pertinent part:

in this case. Gates v. Strain, 2011 WL 2690607 (E.D.La. July 11, 2011). The
Court found then that under the provisions of the Anti-Injunction Act, 28 U.S.C. §
2283, Younger v. Harris, 401 U.S. 37 (1971) and Shaw v. Garrison, 467 F. 2d
113, 114 (5th Cir. 1972), that the facts in the 2007 case did not meet the requisite
threshold to allow this Court to enjoin the state court proceeding. The
[misdemeanor] suit sought to be enjoined herein is the self-same suit; any "new"
evidence of "bad-faith," "manufacturing," and "altering" can be presented in
Gates' defense and will speak directly to a jury's decision as to guilt or innocence
on the charges brought.
R. Doc. 200, pp. 4–5.4
Fast forward a little over two years. When Defendants bring a motion asking that Mr.
Gates be given sixty (60) days more to act or face a Rule 41(b) dismissal for failure to prosecute
(see R. Doc. 211), what does he do? First, new counsel appears on his behalf. R. Doc 213.
Then, at the hearing on Defendants' motion, a representation is made by Mr. Gates' counsel that
the cases of Dowling v. United States and Ashe v. Swensonthe former, a SCOTUS case from
1990, and the latter, a SCOTUS case from 1970somehow impact the prior rulings of this
Honorable Court because of what is described as the "evidentiary fact" branch of double
4
It is important to note that, at the December 14, 2016 oral argument in this matter, counsel for Mr. Gates'
represented that ". . . this Court last ruled in this matter on October 10, 2012, and at that time said -- said at that time
it did not find occasion to apply the rule of double jeopardy to the misdemeanor prosecution." See Ex. B., p. 18,
lines 18–21. Of course, the date given was a clear misstatement of the record. This court last denied an injunction
as recently as August 20, 2014. R. Doc. 200.
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jeopardy. However, when those decades-old cases are evaluated, it quickly becomes clear why
they were not relied upon by Mr. Gates in the past: they are completely irrelevant to his case. In
fact, they support the right of the State of Louisiana to proceed against Mr. Gates on the
misdemeanor charges.
Tellingly, Mr. Gates spends approximately 2.5 pages of his 22 page memorandum in
support of his motion discussing those decisions. Moreover, it is impossible to decipher from his
citations of the cases how they support his novel statements on the application of double
jeopardy or why the Anti-Injunction Act, 28 U.S.C. § 2283, and Younger v. Harris do not apply
to his request for this Court to issue an injunction. Of course, Ashe and Dowling were already
decades-old jurisprudence when this Court stated, in its October 10, 2012 opinion:
Plaintiff asserts that having been acquitted of the aggravated flight charge, "the
district Attorney cannot now bring these old charges offering the same evidence
again." Doc. 163, p. 1. Plaintiff's contention lacks merit. The jury acquitted Mr.
Gates after concluding that the evidence presented by the prosecution failed to
satisfy the prosecution's burden of proving the elements of aggravated flight and
its lesser included offenses beyond a reasonable doubt. No jury has yet evaluated
the prosecution's evidence to determine whether it establishes beyond a
reasonable doubt the elements of the offense of resisting an officer.
R. Doc. 196, p. 3.
Before discussing Ashe and Dowling in detail, Defendants are compelled to note, once
again, that Mr. Gates' actions and inaction are the impediment to progress on this case. His
unwillingness to respect the orders of the state court or the prior decisions of this Honorable
Court should no longer be tolerated. In this respect, reference is made to the following exchange
at the December 14, 2016 hearing in this matter:
MR. HOLLISTER: . . . The suggestion . . . that Mr. Gates should simply waltz
in to Covington and put himself in the tender mercies of the St. Tammany Parish
system is ridiculous considering --
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THE COURT: Then this case will never be tried. And it will be dismissed
ultimately for failure to prosecute.
MR. HOLLISTER: Well --
THE COURT: I mean, we're not going to sit here forever . . . .
Ex. B, p. 17, lines 11–19.
B. Ashe v. Swenson is Irrelevant to the Current Matter
In Ashe v. Swenson, 397 U.S. 436, 437 (1970), the United States Supreme Court was
called upon to consider whether or not the Fifth Amendment guarantee against double
jeopardyapplicable to the states through the Fourteenth Amendmentwas violated when the
State of Missouri prosecuted the petitioner for a second time for armed robbery. The record in
the case established that 3 or 4 armed intruders robbed 6 men playing poker in a basement. Id.
The petitioner was apprehended and tried for the armed robbery of one of the poker participants.
Id. at 438. The Court said that proof that the robbery had occurred and that property had been
taken from each of the victims was "unassailable." Id. Nonetheless, the petitioner was acquitted,
and the jury expressly stated there was "insufficient evidence" to convict him. Id. at 439.
Notably, four of the poker players who were robbed were called to testify at that trial, and none
of them could offer any definitive identification of the petitioner as one of the robbers. Id. at
438.
Six weeks after petitioner's first trial, the state brought him to trial again for the armed
robbery of another one of the poker players from the same incident. Id. at 439. The petitioner's
claim of double jeopardy was rejected by the trial court, and he was convicted of the robbery. Id.
at 439–440. Significantly, the identification testimony of the witnesses was much stronger at this
second trial, and the state declined to call one of the poker players who gave unhelpful
identification testimony at the first trial. After the petitioner's conviction was upheld by the
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Missouri state courts, he sought habeas relief in the federal courts. His request for relief was
denied in the district court and in the Eight Circuit. Id. at 440–441.
The United States Supreme Court granted a writ and reversed. Id. at 441, 447. The
Court examined the application of the federal rule of collateral estoppel in criminal cases and
said, after an acquittal based upon a general verdict, a court must examine the record of the first
case "and conclude whether a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from consideration [in the second case]." Id. at
444 (citation omitted). The Court went on:
Straightforward application of the federal rule to the present case can lead to but
one conclusion. For the record is utterly devoid of any indication that the first
jury could rationally have found that an armed robbery had not occurred, or that
Knight [the victim whose robbery was at issue in the first trial] had not been
a victim of that robbery. The single rationally conceivable issue in dispute
before the jury was whether the petitioner had been one of the robbers. And
the jury by its verdict found that he had not. The federal rule of law, therefore,
would make a second prosecution for the robbery of [another victim] wholly
impermissible.
Id. at 445 (Emphasis added). The Court then explained the crux of the issue in a different way:
The question is not whether Missouri could validly charge the petitioner with six
separate offenses for the robbery of the six poker players. It is not whether he
could have received a total of six punishments if he had been convicted in a single
trial of robbing the six victims. It is simply whether, after a jury determined
by its verdict that the petitioner was not one of the robbers, the State could
constitutionally hale him before a new jury to litigate that issue.
Id. at 446 (Emphasis added).
Clearly, then, the ruling in Ashe has absolutely nothing to do with the case at bar. Mr.
Gates has not been charged with multiple counts of aggravated flight from an officer for which
he is being consecutively tried. Further, his acquittal on the single charge of aggravated flight
did not involve a determination by the jury (1) that he did not resist an officer (which would have
occurred post-vehicle flight); or (2) that he was not operating a vehicle while intoxicated (the
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determination of which would have occurred post-vehicle flight). Thus, the claim of an
"evidentiary fact" bar to Mr. Gates' misdemeanor prosecution based on Ashe is unsupportable.
Indeed, that term is nowhere even to be found in the Ashe case.
C. Dowling v. United States Supports Defendants' Position
Dowling v. United States, 493 U.S. 342, 343 (1990), also fails to provide any support to
Mr. Gates' claims on double jeopardy. In fact, it shows them to be completely without merit. In
this respect, the Dowling Court began:
At petitioner's trial for various offenses arising out of a bank robbery, testimony
was admitted under Rule 404(b) of the Federal Rules of Evidence, relating to an
alleged crime that the defendant had previously been acquitted of committing.
We conclude that neither the Double Jeopardy nor the Due Process Clause barred
the use of this testimony.
Id. at 343–344.
As background, in Dowling, the petitioner had been arrested and charged with federal
crimes of bank robbery and armed robbery, as well as various crimes under Virgin Islands law.
Id. at 344. Witnesses identified him as having robbed a bank with a small pistol and a ski mask
(which he later removed such that he was visible to the witnesses). Id. at 344. At his third trial
on the federal charges related to the bank robbery (the first trial ended with a hung jury and the
second with a subsequently reversed conviction), the federal government sought to offer
testimonial evidence of a woman, Vena Henry, who claimed she was robbed by the petitioner
and another man two weeks after the subject bank robbery. Id. at 344. Ms. Henry claimed the
petitioner had carried a small handgun and wore a knitted mask with cutout eyes (which she
pulled off) during her alleged encounter with him. She also claimed her other alleged assailant
was Delroy Christian, a man who law enforcement believed intended to drive the getaway
vehicle in the bank robbery. Id. at 344–345.
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Significantly, prior to the petitioner's third trial on the bank robbery charge, he had
actually been acquitted of the attempted robbery of Ms. Henry (and of related charges in
connection therewith). Id. at 345. However, the district court in the bank robbery case allowed
Ms. Henry's testimony regarding the incident to come in as evidence of another crime, wrong or
act for purposes other than character evidence under Federal Rule of Evidence 404(b). Id. at
345. The district court instructed the jury multiple times that the petitioner had been acquitted of
the attempted robbery of Ms. Henry and emphasized the reasons the testimony was being
offered. Thereafter, the petitioner was convicted of the bank robbery, and the Third Circuit
affirmed. Id. at 346.
The United States Supreme Court granted a writ and affirmed. Id. at 347, 354. It
explained, in the first instance, "There is no claim here that the acquittal in the [first case] barred
further prosecution in the present case. The issue is the inadmissibility of [the witnesses]
testimony." Id. at 347. The Court later noted:
[The petitioner] . . . contends that . . . his prior acquittal precluded the

Government from introducing into evidence Henry's testimony at the third trial in
the bank robbery case. We disagree because, unlike the situation in Ashe v.
Swenson, the prior acquittal did not determine an ultimate issue in the present
case. This much [petitioner] concedes, and we decline to extend Ashe v. Swenson
and the collateral-estoppel component of the Double Jeopardy Clause to exclude
in all circumstances . . . relevant and probative evidence that is otherwise
admissible under the Rules of Evidence simply because it relates to alleged
criminal conduct from which a defendant has been acquitted.
*****
. . . in Huddleston v. United States, 485 U.S., at 681, we held that "in the Rule
404(b) context, similar act evidence is relevant only if the jury can reasonably
conclude that the act occurred and that the defendant was the actor." Because a
jury might reasonably conclude that [petitioner] was the masked man who entered
Henry's home, even if it did not believe beyond a reasonable doubt that
[petitioner] committed the crimes charged at the first trial, the collateral-estoppel
component of the Double Jeopardy Clause is inapposite.
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*****
Even if we agreed with petitioner that the lower burden of proof at the second
proceeding does not serve to avoid the collateral-estoppel component of the
Double Jeopardy Clause, we agree with the Government that the challenged
evidence was nevertheless admissible because [petitioner] did not demonstrate
that his acquittal in his first trial represented a jury determination that he was not
one of the men who entered Ms. Henry's home.
*****
The Courts of Appeals have unanimously placed the burden on the defendant to
demonstrate that the issue whose relitigation he seeks to foreclose was actually
decided in the first proceeding.
*****
We . . . do not find any inconsistency between [petitioner's] conviction for the
First Pennsylvania Bank robbery and his acquittal on the charge of robbing Ms.
Henry for the obvious reason that the jury's verdict in his second trial did not
entail any judgment with respect to the offenses charged in his first.
*****
We decline to use the Due Process Clause as a device for extending the double
jeopardy protection to cases where it otherwise would not extend.
348–350.
So, to be clear, the Dowling Court expressly stated:
1. its opinion does not concern whether a prior acquittal bars a subsequent prosecution;
2. the government can relitigate even an ultimate issue of fact in a proceeding in which the
consideration of that issue of fact is governed by a lower standard of proof, and Ashe v.
Swenson was not being extended to say otherwise. [Note: this is not very different from,
and can be likened to, a defendant acquitted of murder who is subsequently found civilly
liable for the decedent's wrongful death. In the Dowling case, because the subsequent
proceeding was a criminal proceeding, evidence of the ultimate issue of fact was still
allowed in because the issue of admissibility was governed by a lower standard than was
the issue of guilt/innocence.];
3. the burden is on a defendant to show an ultimate issue of fact has already been litigated to
a judgment if he seeks to preclude its subsequent litigation; and
4. the Due Process Clause does not extend double jeopardy protection.
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Not surprisingly, then, Mr. Gates' promise of dispositive case law that would change this
Court's longstanding analysis amounts to smoke and mirrors litigation. Delay, delay, and more
delay is the strategy. For no serious argument can be made that the jury in Mr. Gates' aggravated
flight trial determined the ultimate issue of Mr. Gates' alleged intoxication while driving, or his
alleged resisting arrest after being pulled over. Under Mr. Gates' distortion of the case law, any
matter discussed at any trial in which a criminal defendant is acquitted cannot be offered in any
subsequent criminal proceeding.5 That is not the law and it is not even a debatable issue. Telling
the Court and all counsel that they missed decades-old case law that says otherwise was simply
wrong.
D. The Anti-Injunction Act and Younger Abstention Have Continued Application
As stated supra, on August 14, 2014, this Court ruled as follows:

threshold to allow this Court to enjoin the state court proceeding.
R. Doc. 200, pp. 4–5. Defendants have taken no action whatsoever since that ruling that would
nullify or change the continued application of the ruling. Rather, the only "development" in this
caseif it can be called that since that ruling is that Mr. Gates continues as a fugitive from his
state court criminal proceeding.
After intentionally evading service for three years in state court, Mr. Gates would have
this Court believe that the interim delay on his misdemeanor trial is something other than a
5
The only mention in Dowling of "evidentiary fact"the purported branch of double jeopardy heralded by
Mr. Gates—is in a footnote . . . by the dissent. Even then, the reference is made to "facts previously determined in
the defendant's favor", which is not at all at issue in the present matter. Dowling, supra at 357.
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product of his own bad acts. The theory appears to go something like this: I can stay on the run,
evade service, claim prejudice from the delay and then attempt to relitigate the same issues the
federal court has already decided. Of course, no case law or statutory law is provided by Mr.
Gates which lend any support to such a theory. And, not surprisingly, the Anti-Injunction Act
and the Younger abstention doctrine are not even mentioned in Ashe or Dowling, as discussed
supra.
Indeed, the only case Mr. Gates cites with regard to the alleged non-application of the
Anti-Injunction Act and the Younger abstention doctrine in this matter is a 2004 case out of a
district court in Hawaii: Schillaci v. Peyton, 328 F. Supp. 2d 1103, 1104 (D. Hawaii 2004). It
should go without saying that the decision is not controlling in this district, but the decision has
no application to this matter, regardless. The issue in Schillaci was whether the petitioner could
be twice tried for the same alleged offenses i.e. second degree murder and a related firearm
charge. Id. The federal district court merely stayed the petitioner's state court retrial (but not the
state court pretrial litigation), so that it could consider the petitioner's habeas petition based on
this question, since it opined consideration after a trial could not cure the situation if it was truly
double jeopardy. Id. at 1105-1106.6
Here, as conclusively stated in this Court's October 10, 2012 opinion (R. Doc. 196; i.e. as
considered and ruled upon already) and as further expounded upon above, double jeopardy is
simply not at issue in this matter. It is not even a close question.
E. No Exhaustion of State Court Remedies
Additionally, Mr. Gates' continued assertion that he has "exhausted his remedies in state
court" defies belief. Mr. Gates has every right to assert his defenses and contest the allegations
6
There is no indication in Schillaci that the retrial in state court was permanently enjoined.
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made against him in the state court proceeding. There is no impediment to him doing so.
Notably, Mr. Gates' asserts that he has raised certain defenses to the misdemeanor proceeding in
pre-trial motion practice and that that those motions were denied. See R. Doc. 239-1, p. 10 and
Exhibit C (referencing the denial of Motion to Dismiss Misdemeanors for Failure to Prosecute
Timely & Non-Compliance with Speedy Trial Act and a Motion to Quash Subsequent
Misdemeanor Charges Not Brought to Trial). He further asserts that he took a writ application
on the motions to the Louisiana First Circuit, which was denied, and to the Louisiana Supreme
Court, which also was denied. However, in Louisiana, the "law of the case" doctrine does not
apply to writ denials. See Tolis v. Board of Supervisors, 95-1529 (La. 10/13/95); 660 So. 2d
1206 (denial of writs does not prevent court of appeal from considering issue later on appeal);
Bezou v. Bezou, 15-1879 (La. App. 1 Cir. 09/16/16); 203 So. 3d 488 ("law of case" does not
prevent an appellate court from reviewing its previous writ denials); Sattar v. Aetna Life Ins. Co.,
95-1108 (La. App. 4 Cir. 3/20/96); 671 So. 2d 550 (writ denial does not bar reconsideration of,
or a different conclusion on, the same question on appeal). Thus, Mr. Gates can continue to
contest the charges brought against him in the state court process.
Further, the mere denial of certain of Mr. Gates' pre-trial motions by the state court is not
grounds upon which federal courts are authorized to enjoin a state court proceeding. Similarly, it
is not grounds for any habeas-type relief which Mr. Gates apparently now seeks, particularly
because he is not in custody. See Fisher v. Texas, 169 F. 3d 295, 302 (5th Cir. 1999) (applicant
seeking habeas relief must exhaust all claims in state court).
Finally, it is odd, to say the least, that Mr. Gates apparently brought his referenced pre-
trial motions in state court in January of 2013, but then waited more than three years after denial
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to raise the issues (again) with this Honorable Court.7 It was only when Defendants sought the
Court's assistance to compel resolution to these matters that these arguments reappeared. That is
because Mr. Gates has operated as a man on the run from the state court proceedings, and he
clearly has no intention of complying with the orders of any court of competent jurisdiction
unless he deems those orders favorable to himself.
Mr. Gates is his own worst enemy when it comes to the delay of these matters. A cursory
review of the record in this action and in the state court proceeding, not to mention reference to
Mr. Gates' continued refusal to even present to state court, proves the point. Amos v. Thornton,
646 F. 3d 199, 204 (5th Cir. 2011) reminds us that a federal court's review of a state court's
speedy trial decision utilizes a highly deferential standard which must show an objectively
unreasonable decision, a showing "[v]ery few petitioners can make . . . . " Not only has Mr.
Gates failed to exhaust his state court remedies on this issue, but he cannot establish how the
state court's decisions on this question to date have been objectively unreasonable, particularly in
light of his knowing and dilatory tactics. To bring us back to where we started:
Ex. B, p. 17, lines 11–19.
7
Recall that this Honorable Court reaffirmed its position against injunctive relief on August 14, 2014, well
after the referenced state court writs would have been taken. Thus, it is appropriate to say that the time for argument
on these points of law has ended.
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III. CONCLUSION
For the reasons expressed herein and as stated by this Court in its prior rulings,
particularly in R. Docs. 121, 196 and 200, plaintiff's motion for injunction and to lift stay should
be denied. Further, Defendants respectfully re-urge their request that the stay in this matter be
lifted for the sole purpose of dismissing plaintiff's action, with prejudice, for failure to prosecute
under FRCP 41(b), both for the reasons expressed herein and those to accompany a forthcoming
motion.


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/441174
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s/ Thomas H. Huval___________________ s/ Ralph S. Whalen___________________

Thomas H. Huval (#21725) Ralph S. Whalen , Jr. (#8319)
Huval, Veazey, Felder & Renegar, LLC Ralph S. Whalen, Jr., Attorney at Law
532 E. Boston St. Energy Centre
thuval@hvfr-law.com Telephone: (504) 525-1600
Counsel for the former Clerk of Court for ralphswhalen@ralphswhalen.com
the Parish of St. Tammany, Marie-Elise Counsel for Walter P. Reed, in his
Prieto, in her individual and her official individual capacity
capacity
Court of the United States District Court for the Eastern District of Louisiana on January 31,
s/ Chadwick W. Collings
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Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MOTION TO LIFT STAY AND DISMISS
NOW INTO COURT, come defendants, Rodney J. "Jack" Strain, Jr., in both his
Walter P. Reed, in both his individual and his official capacity as former District Attorney for the
22nd Judicial District Court, Assistant District Attorney Ronald Gracianette, Assistant District
Caldwell, Office of the Louisiana Attorney General, Judge Richard Schwartz of the 22nd
Judicial District Court, Marie-Elise Prieto, in her individual and her official capacity as former
Clerk of Court for the Parish of St. Tammany, Charles M. Hughes, Jr., and Philip Duiett
(hereinafter, "Defendants"), each and all appearing herein through undersigned counsel, to move
this Honorable Court to lift the stay for the limited purpose of dismissing this action, with
prejudice, for failure to prosecute.
The grounds for this motion are more fully set forth in the attached exhibits and
accompanying memorandum in support.
89240/441250
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WHEREFORE, Defendants pray that the stay be lifted for the limited purpose of
dismissing this action, with prejudice.

s/ Emily G. Couvillon_________________ s/ Richard T. Simmons_________________

Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/441250
Page 2 of 3
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s/ Thomas H. Huval___________________ s/ Ralph S. Whalen___________________

Thomas H. Huval (#21725) Ralph S. Whalen , Jr. (#8319)
Huval, Veazey, Felder & Renegar, LLC Ralph S. Whalen, Jr., Attorney at Law
532 E. Boston St. Energy Centre
Telephone: (985) 809-3800 Energy Centre
thuval@hvfr-law.com 1100 Poydras St., Suite 2950
Counsel for the former Clerk of Court for New Orleans, LA 70163
the Parish of St. Tammany, Marie-Elise Telephone: (504) 525-1600
Prieto, in her individual and her official ralphswhalen@ralphswhalen.com
capacity Counsel for Walter P. Reed, in his
individual capacity
s/ Nancy A. Cundiff________________
Byron D. Kitchens, T.A. (#25129)
Nancy A. Cundiff (#27974)
650 Poydras Street
Suite 2810
Telephone: (504) 568-9393
ncundiff@csa-lawfirm.com
Counsel for Philip Duiett

89240/441250
Page 3 of 3
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Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
Parish of St. Tammany, Charles M. Hughes, Jr., and Philip Duiett (hereinafter, "Defendants"),
each and all appearing herein through undersigned counsel, to respectfully submit their
memorandum in support of their motion to lift stay and dismiss, averring as follows:
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This Honorable Court has summarized the general background to this action in its July
11, 2011, Order and Reasons (R. Doc. 121), which is incorporated herein by reference. In short,
plaintiff, Shane Gates ("Mr. Gates"), was arrested by deputies of the St. Tammany Parish
Sheriff's Office on November 16, 2006, for: (1) obstruction of a highway; (2) driving while
intoxicated; (3) having an open container; (4) reckless operation; and (5) resisting arrest.
wrongfully injured by deputies in conjunction with his 2006 arrest. He seeks relief under 42
U.S.C. § 1983, among other statutory provisions and theories of recovery. In 2013, Mr. Gates
filed a related action in the United States District Court for the Middle District of Louisiana.
That action was transferred to this Honorable Court and consolidated with the present action.
night of November 16, 2006" and represent a "chronological extension" of the 2007 suit. R.
Doc. 200, p. 4.
Tammany, State of Louisiana. See R. Doc. 81. A motion to re-open the case was denied in July
2011, while all state charges against Mr. Gates were still pending. See R. Doc. 121. This Court
See R. Docs. 136, 143. However, when the Court became aware there remained pending against
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officer, the stay was reinstituted. See R. Doc. 196. When the 2013 action was consolidated with
judge after Mr. Gates failed to appear by November 22, 2013, as ordered, to be served for his
misdemeanor trial. See R. Docs. 211-3 and 211-4. Since the issuance of the attachment, Mr.
Gates has not presented to the state court to receive service and stand trial for the still pending
misdemeanor charges, despite the knowledge of Mr. Gates and his counsel as to the existence of
the attachment for Mr. Gates' arrest.
On October 20, 2016, Defendants filed a motion requesting that the stay in this matter be
lifted for the limited purpose of allowing Mr. Gates to appear for service for his misdemeanor
trial, failing which this action should be dismissed under FRCP 41(b) for failure to prosecute. R.
Doc. 211. On December 14, 2016, that motion came before the Court for oral argument. While
the Court denied the motion at that time, it stated that Mr. Gates' action would be dismissed
under FRCP 41(b) unless he filed, no later than January 23, 2017, a motion concerning the
alleged grounds for the inapplicability of the Anti-Injunction Act, 28 U.S.C. § 2283 and Ex Parte
Young, 28 S. Ct. 441 (1908),1 in view of Mr. Gates' continued claims of double jeopardy and
failure to have a speedy trial. R. Doc. 237.
Mr. Gates filed his "motion for injunction and to lift stay" (R. Doc. 239) on the evening
of January 23, 2017.2 In view of the imminent retirement of the Honorable Stanwood R. Duval,
1
2
R. Doc. 240, apparently identical in all respects to R. Doc. 239 save for the inclusion of a specific
submission date, was filed on January 24, 2017.
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Jr., who had handled this consolidated action out of Section K, the case was then transferred to
the Honorable Carl J. Barbier of Section J. R. Doc. 241.
As set forth in Defendants' opposition to Mr. Gates' motion for injunction and to lift stay,
Mr. Gates' has failed to establish any new and viable grounds on which this Honorable Court
may enjoin his underlying state court proceeding. Rather, Mr. Gates' purposefully dilatory
tactics in attempting to relitigate, as nauseam, ancillary state court matters already addressed by
this Court, coupled with his continued refusal to comply with state court orders, is clear evidence
that he has no interest in prosecuting the merits of this case by addressing the condition
precedent to the case proceeding: resolution of the underlying state court matter. In this respect,
reference is made to the following exchange at the December 14, 2016 hearing in this matter:
Exhibit A, p. 17, lines 11–19. Federal Rule of Civil Procedure 41(b) and the inherent authority
of this Honorable Court provide an appropriate remedy for such calculated inaction by Mr.
Gatesdismissal of his action.
FRCP 41(b) provides:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
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dismissal not under this rule—except one for lack of jurisdiction, improper venue,
or failure to join a party under Rule 19—operates as an adjudication on the merits.
Similarly, Local Rule 41.3 provides, in pertinent part: "Unless good cause is shown in response
to the court's show cause order why issue has not been joined, the case may be dismissed for
failure to prosecute pursuant to FRCP 41(b)." Further, "In addition to the authority granted by
Rule 41(b), a federal district court possesses the inherent authority to dismiss an action for want
of prosecution, which it may exercise on its own motion when necessary to maintain the orderly
administration of justice." Gonzales v. Firestone Tire & Rubber Co., 610 F. 2d 241, 247 (5th
Cir. 1980) (citations omitted).
While this Honorable Court may be unable to compel Mr. Gates' actual physical
appearance in state court, it has been made very clear since April of 2008, when this matter was
first stayed, that resolution of Mr. Gates' state court criminal charges was a prerequisite to
proceeding with his federal case. See R. Doc. 81. For instance, in July 2011, the Court restated
its position in this regard, denied Mr. Gates his requested injunctive relief, and found that
moving forward with the federal court action would be "untenable" while the state court criminal
action is pending. See R. Doc. 121, p. 10. Similarly, in October 2012, this Court stated, "Upon
charges, plaintiff may file a motion to reopen this matter." R. Doc. 196, p. 4. Likewise, in
August of 2014, this Court again denied a request for injunctive relief aimed to stopping the state
court proceeding, and ruled that Mr. Gates' recently transferred and consolidated 2013 federal
court action should be stayed with his already stayed 2007 action. See R. Doc. 200. Even more,
during oral arguments at a hearing on December 14, 2016, this Court said, "[T]his case will
never be tried" if Mr. Gates does not resolve his state court action in St. Tammany Parish, noting,
"[W]e're not going to sit here forever." Ex. A, p. 17, lines 11–19.
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As the Court well knows, Mr. Gates has operated as a fugitive from his state court
criminal proceeding for several years now. More specifically, on November 13, 2013, Mr. Gates
was ordered by Judge Walter Rothschild, sitting ad hoc at the Twenty-Second Judicial District
Court of Louisiana, to appear at the Clerk of Court's office to be served with his misdemeanor
trial date on two counts of resisting arrest one count of DWI. R. Doc. 211-3. That trial was to be
held on January 16, 2014, a date determined by the state court after discussion with the
prosecution and Mr. Gates' defense attorney. Id. Mr. Gates never appeared to be served for his
misdemeanor trial as ordered by the state court, even after an attachment for his arrest was issued
on or about December 27, 2013. See R. Doc. 211-4 and Exhibit B hereto.
Significantly, on August 20, 2014nine (9) months after Judge Rothschild's November
13, 2013 order to appear for servicethis Honorable Court issued an Order and Reasons, which
stated, in pertinent part:

threshold to allow this Court to enjoin the state court proceeding. The
[misdemeanor] suit sought to be enjoined herein is the self-same suit; any "new"
evidence of "bad-faith," "manufacturing," and "altering" can be presented in
Gates' defense and will speak directly to a jury's decision as to guilt or innocence
on the charges brought.
R. Doc. 200, pp. 4–5.3 Since the issuance of this Court's August 2014 Order and Reasons, the
inaction of Mr. Gates has been the only impediment to this case moving forward. It is now
3
It is important to note that, at the December 14, 2016 oral argument in this matter, counsel for Mr. Gates'
represented that ". . . this Court last ruled in this matter on October 10, 2012, and at that time said -- said at that time
it did not find occasion to apply the rule of double jeopardy to the misdemeanor prosecution." See Ex. A., p. 18,
lines 18–21. Of course, the date given was a clear misstatement of the record. This court last denied an injunction
as recently as August 20, 2014. R. Doc. 200.
89240/441308
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beyond clear that he has no intention of resolving his state court matter. As such, this action
should be dismissed, with prejudice, for failure to prosecute under Federal Rule of Civil
Procedure 41(b) and the inherent authority of this Court to maintain the orderly administration of
justice.
Defendants direct this Honorable Court to the case of Shaw v. Estelle, 542 F. 2d 954, 955
(5th Cir. 1976). In Shaw, the Fifth Circuit issued a per curiam opinion in which it affirmed the
dismissal of a civil rights complaint related to prison disciplinary procedures. While the suit was
pending, the prisoner plaintiff to the suit, Thomas Shaw, escaped from custody. Three months
and two hearing dates later, the action was dismissed for failure to prosecute under Rule 41(b).
The Fifth Circuit found that such a dismissal was "well within the discretion" of the trial court.
Id.
The Fifth Circuit's opinion in Shaw is consistent with the opinion of the United States
Supreme Court in Link v. Wabash R. Co., 370 U.S. 626, 627 (1962). In Link, the Supreme Court
affirmed a decision by the district court dismissing a plaintiff's action with prejudice for failure
to prosecute. Id. at 636. The district court issued its dismissal after reviewing the long history of
the case and following plaintiff's counsel's failure to appear at a pretrial conference. Id. at 628–
629. The case was noted to have been "the oldest civil case on the court docket" for the district
courtmore than six years old at the time of dismissal. Id. at 627, 635. The Supreme Court
noted that, "The authority of a federal trial court to dismiss a plaintiff's action with prejudice
because of his failure to prosecute cannot seriously be doubted." Id. at 629. The Court went on
to state that, "...[T]he permissive language of [ ] Rule 41 -- which merely authorizes a motion by
the defendant -- nor its policy requires us to conclude that it was the purpose of the Rule to
abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that
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have remained dormant because of the inaction or dilatoriness of the parties seeking relief." Id.
at 630.
Likewise, in Tankersley v. Univ. Health Sys., 2010 U.S. Dist. LEXIS 67477 (W.D.Tx.
7/7/10), Stephen Tankersley's civil rights suit was dismissed for failure to prosecute after
repeated attempts were made, to no avail, to have him participate in his suit. See in globo
Exhibit C.4 Plaintiff's federal suit was related to an incident in which he was charged in state
court with assault of a public servant. The magistrate judge handling the federal civil rights case
noted she confirmed with the state criminal court clerk that the underlying charges were still
pending against Mr. Tankersley, that the state court considered him to be a fugitive, and that "he
failed to communicate his whereabouts to the criminal district court." Id. at *4. Circumstances
are not much different in the present matter.
The Fifth Circuit has stated it affirms dismissals with prejudice for failure to prosecute
upon a:
'clear record of delay or contumacious conduct by the plaintiff, . . ., and when

lesser sanctions would not serve the best interests of justice.' Moreover, we noted
that most of the cases affirming dismissals with prejudice have involved the
presence of one or more of three "aggravating factors": (1) delay attributable
directly to the plaintiff, rather than his attorney; (2) actual prejudice to the
defendant; and (3) delay caused by intentional conduct.
Callip v. Harris County Child Welfare Dep't, 757 F. 2d 1513, 1519 (5th Cir. 1985) (internal
citations omitted).
All of the above factors outlined by the Fifth Circuit are clearly present in the instant
action. Since 2008, this matter has been stayed (and re-opened and stayed again) in order that
plaintiff should resolve his underlying state court criminal proceedings. Since 2013, Mr. Gates
has purposefully evaded the state court system, even after an attachment for his arrest was issued
4
The in globo exhibit contains both the magistrate judge's recommendation and reasons, and the district
judge's approval/adoption of same.
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and a 2014 opinion of this Court told him, once again, that he had no grounds for an injunction.
His latest delay tactics have been to request briefing on the same issues that have already been
litigated by promising new grounds for an injunction based on reference to decades-old,
inapplicable case law. See R. Doc. 242, Defendants' Opposition to Motion for Injunction and to
Lift Stay.
Mr. Gates' dilatory tactics as a fugitive have clearly been intentional. Further, we have
now a nearly ten-year-old case (consolidated from actions filed by Mr. Gates in two districts)
with almost 250 docket entries that, procedurally, is still in its preliminary stages. Late last year,
in an effort to address this impasse, Defendants suggested that Mr. Gates be given sixty days to
be served in state court or face dismissal of his federal court action. That suggestion was met
with mud-slinging by Mr. Gates toward all defense counsel and a new round of motion practice
based on irrelevant case law cited by Mr. Gates. This must stop. The law affords Defendants
relief by way of dismissal of Mr. Gates' action with prejudice.
Defendants also suggest that the present action is subject to dismissal for reasons similar
to the grounds for dismissal inherent in the "fugitive disentitlement doctrine." That doctrine is an
equitable doctrine which "limits a criminal defendant's access to the judicial system whose
authority he evades." Bagwell v. Dretke, 376 F. 3d 408, 410, 413 (5th Cir. 2004). As noted by
the Bagwell court:
The Supreme Court has recognized a number of different rationales justifying the
use of the doctrine. First, if a defendant is a fugitive when the court considers his
case, it may be impossible for the court to enforce any judgment that it renders.
Second, courts have advanced a waiver or abandonment theory: by fleeing
custody, the defendant is thought to have waived or abandoned his right to an
appeal. Third, allowing a court to dismiss a fugitive's case is thought to
"'discourage[] the felony of escape and encourage[] voluntary
surrenders.'" Fourth, because a litigant's escape impedes the ability of a court to
adjudicate the proceedings before it, dismissal of the case furthers the court's
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"interest in efficient practice." Finally, the criminal defendant's escape is thought

to represent an affront to the dignity and authority of the court.
Id. at 411 (internal citations omitted).
The doctrine was expanded to cover claims in civil forfeiture proceedings by the Civil
Asset Forfeiture Reform Act of 2000, which provides, in pertinent part:
(a) A judicial officer may disallow a person from using the resources of the
courts of the United States in furtherance of a claim in any related civil forfeiture
action or a claim in third party proceedings in any related criminal forfeiture
action upon a finding that such person—
(1) after notice or knowledge of the fact that a warrant or process has been
issued for his apprehension, in order to avoid criminal prosecution—
(A) purposely leaves the jurisdiction of the United States;
(B) declines to enter or reenter the United States to submit to its

jurisdiction; or
(C) otherwise evades the jurisdiction of the court in which a criminal case
is pending against the person; and
(2) is not confined or held in custody in any other jurisdiction for commission
of criminal conduct in that jurisdiction.
28 USC § 2466(a). Mr. Gates, as a knowing fugitive from the state court criminal proceeding,
should not enjoy unfettered and unending recourse in federal court in a related civil matter. The
delay of which he now again complains is of his own making.
III. CONCLUSION
For the reasons expressed herein, the stay in this matter should be lifted for the limited
purpose of dismissing this matter, with prejudice. It is simply no longer tenable to allow Mr.
Gates to disregard the authority and validity of the state and federal court actions of which he is a
part.
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Telephone: (985) 809-8374 Suite 2810
Landry
s/ Richard T. Simmons________________ s/ Ralph S. Whalen___________________

Richard T. Simmons, Jr., T.A. (#12089) Ralph S. Whalen , Jr. (#8319)
Hailey, McNamara, Hall, Larmann Ralph S. Whalen, Jr., Attorney at Law
& Papale Energy Centre
One Galleria Blvd., Suite 1400 1100 Poydras St., Suite 2950
P. O. Box 8288 New Orleans, LA 70163
Metairie, LA 70011-8288 Telephone: (504) 525-1600
rsimmons@hmhlp.com Counsel for Walter P. Reed, in his
Counsel for Charles M. Hughes, Jr. individual capacity
89240/441308
Page 11 of 12
17-30519.1729
s/ Thomas H. Huval___________________
532 E. Boston St.
Covington, LA 70433
Telephone: (985) 809-3800
thuval@hvfr-law.com
Prieto, in her individual and official
capacity
89240/441308
Page 12 of 12
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17-30519.1774
17-30519.1775

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
Walter P. Reed, in both his individual and his official capacity as former District Attorney for the
22nd Judicial District Court, Assistant District Attorney Ronald Gracianette, Assistant District
(hereinafter, "Defendants"), each and all appearing herein through undersigned counsel,
respectfully submit their Motion to Lift Stay and Dismiss before the Honorable Carl J. Barbier of
the United States District Court for the Eastern District of Louisiana, on the 15th day of February,
2017 at 9:30 a.m.
89240/441311
Page 1 of 3
17-30519.1776


Landry
s/ Nancy A. Cundiff________________ s/ Richard T. Simmons________________

Byron D. Kitchens, T.A. (#25129) Richard T. Simmons, Jr., T.A. (#12089)
Nancy A. Cundiff (#27974) Hailey, McNamara, Hall, Larmann
Cotten, Schmidt & Abbott, LLP & Papale
650 Poydras Street One Galleria Blvd., Suite 1400
New Orleans, LA 70130 Metairie, LA 70011-8288
ncundiff@csa-lawfirm.com rsimmons@hmhlp.com
Counsel for Philip Duiett Counsel for Charles M. Hughes, Jr.
89240/441311
Page 2 of 3
17-30519.1777
s/ Thomas H. Huval___________________
532 E. Boston St.
Covington, LA 70433
Telephone: (985) 809-3800
thuval@hvfr-law.com
capacity
89240/441311
Page 1 of 3
17-30519.1778

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MOTION TO CONTINUE SUBMISSION DATE
each and all appearing herein through undersigned counsel, to move this Honorable Court to set
the submission date for plaintiff's motion for injunction and to lift stay (R. Docs. 239 and 240) to
February 15, 2017 at 9:30 a.m., the same date/time for which Defendant's recently filed motion
to lift stay and dismiss (R. Doc. 243) has been set. The grounds for this motion are more fully
set forth in the accompanying memorandum in support. Plaintiff's counsel was contacted about
89240/441291
Page 1 of 3
17-30519.1779
this motion on January 31, 2017, and confirmed that his client has no objection to this Motion to
Continue.
WHEREFORE, Defendants pray that the submission date for plaintiff's motion for
injunction and to lift stay (R. Docs. 239 and 240) be set to February 15, 2017 at 9:30 a.m.


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/441291
Page 2 of 3
17-30519.1780

Suite 2810 Telephone: (985) 809-3800
capacity
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity

89240/441250
Page 3 of 3
17-30519.1781

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MOTION TO CONTINUE SUBMISSION DATE
each and all appearing herein through undersigned counsel, to respectfully move this Honorable
Court to set the submission date for plaintiff's motion for injunction and to lift stay (R. Docs. 239
and 240) to February 15, 2017 at 9:30 a.m., the same date/time for which Defendant's recently
filed motion to lift stay and dismiss (R. Doc. 243) has been set, for the following reasons:
89240/441319
Page 1 of 4
17-30519.1782
1.
Plaintiff, Shane Gates, in response to the December 14, 2016 Order of this Honorable
Court (R. Doc. 237), filed a motion for injunction and to lift stay on January 23, 2017 (R. Doc.
239). An identical motion noticing the motion for submission on February 8, 2017 was filed the
next day (R. Doc. 240 and 240–4).
2.
Defendants have recently filed an opposition to Mr. Gates' motion (see R. Doc. 242)
along with their own motion to lift stay and dismiss. (see R. Doc. 243). The earliest available
submission date for Defendants' motion was February 15, 2017, the date on which it was noticed
(see R. Doc. 243). Defendants prepared their opposition and separate motion within 8 days of
receiving Mr. Gates' motion.
3.
The motions of plaintiff and Defendants, respectively, request relief that is mutually
exclusive, i.e. an injunction versus a dismissal. Therefore, it is important that the Court consider
the two motions together and not in isolation. Setting the submission date for both motions on
February 15, 2017 will facilitate this and will not prejudice either party.
4.
On January 31, 2017, plaintiff's counsel was contacted about this motion to set a uniform
submission date and confirmed that his client had no objection to this motion to continue
submission date.
5.
There are no reasons counseling against setting a uniform submission date for the
motions in light of the circumstances and posture of this currently stayed case.
89240/441319
Page 2 of 4
17-30519.1783
WHEREFORE, Defendants pray that the submission date for plaintiff's motion for
injunction and to lift stay (R. Docs. 239 and 240) be set to February 15, 2017 at 9:30 a.m.


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/441319
Page 3 of 4
17-30519.1784

Suite 2810 Telephone: (985) 809-3800
capacity
s/ Ralph S. Whalen___________________
Energy Centre
Telephone: (504) 525-1600
individual capacity
89240/441319
Page 4 of 4
17-30519.1785

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
Considering the motion to continue submission date filed by various defendants;
IT IS HEREBY ORDERED that the submission date for plaintiff's motion for
injunction and to lift stay (R. Docs. 239 and 240) is set on February 15, 2017 at 9:30 a.m.
New Orleans, Louisiana, this __ day of __________________, 2017.
_______________________________________________
Carl J. Barbier
United States District Court Judge
89240/441318
17-30519.1786

VERSUS No.: 7-6983

c/w 13-6425
SHERIFF RODNEY JACK STRAIN, SECTION: “J”(2)

ET AL.
ORDER
Considering the parties’ Ex Parte Consent Motion to Continue
Submission Date (R. Doc. 244),
IT IS HEREBY ORDERED that the motion is GRANTED. Shane Gates’
Motion for Injunction and to Lift Stay (R. Doc. 240) is RESET for
submission on Thursday, March 16, 2017 at 9:30 a.m. with oral
argument.
New Orleans, Louisiana this 3rd day of February, 2017.
CARL J. BARBIER
17-30519.1787

SHANE GATES CIVIL ACTION
VERSUS No.: 07-6983

ET AL.
ORDER
On February 3, 2017, the Court issued an Order (R. Doc. 246)
granting the parties’ Ex Parte Consent Motion to Continue
Submission Date (R. Doc. 244). The Court now seeks to clarify its
previous Order. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Injunction
and to Lift Stay (R. Doc. 240) and Defendants’ Motion to Lift Stay
and Dismiss for Lack of Prosecution (R. Doc. 243) shall be set for
submission on Thursday, March 16, 2017 at 9:30 a.m. with oral
argument.
New Orleans, Louisiana this 7th day of February, 2017.
CARL J. BARBIER
17-30519.1788
SHANE M. GATES CIVIL ACTION NUMBERS:

07-6983 and 13-6425
VERSUS JUDGE CARL J. BARBIER
SHERIFF RODNEY JACK STRAIN, MAGSTRATE JUDGE

ET AL. JOSEPH C. WILKINSON, JR.
MOTION TO WITHDRAW AND

SUBSTITUTE COUNSEL OF RECORD
NOW INTO COURT, through undersigned counsel, come defendants Walter P. Reed,
in his official capacity as former District Attorney of the 22nd Judicial District, State of
Louisiana, Assistant District Attorney Ronald Gracianette, former Assistant District Attorney
Nicholas F. Noriea, Jr., and former District Attorney Kathryn Landry, who move that Emily
Couvillon be permitted to withdraw as counsel of record for the above named defendants, and
that Cary J. Menard, Assistant District Attorney (Bar #09426) be substituted as counsel of
record on their behalf in the above captioned matter.
s/ Emily Couvillon
EMILY COUVILLON (31114)
701 N. Columbia Street
Telephone: (985) 809-8383
Facsimile: (985) 809-8365
ecouvillon@22da.com
Attorney for Walter P. Reed, in his
official capacity, Ronald
Gracianette, Nicholas F. Noriea, Jr.,
and Kathryn Landry
17-30519.1789
I do hereby certify that on March 6, 2017 a copy of the foregoing Motion was filed
electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will
be sent to all counsel of record by operation of the court’s electronic filing system.
s/ Emily Couvillon
EMILY COUVILLON (31114)
701 N. Columbia Street
Telephone: (985) 809-8383
Facsimile: (985) 809-8365
ecouvillon@22da.com
Attorney for Walter P. Reed, in his
official capacity, Ronald Gracianette,
Landry
17-30519.1790

07-6983 and 13-6425

ORDER
Considering the foregoing Motion to Withdraw and Substitute Counsel of Record,
IT IS ORDERED that Emily Couvillon is hereby withdrawn as counsel of record for
defendants Walter P. Reed, in his official capacity as former District Attorney for the 22nd
Judicial District, State of Louisiana, Assistant District Attorney Ronald Gracianette, former
Assistant District Attorney Nicholas F. Noriea, Jr., and former District Attorney Kathryn
Landry.
IT IS FURTHER ORDERED that Cary J. Menard, Assistant District Attorney (Bar
#09426) is hereby substituted as counsel of record on behalf of the above named defendants.
New Orleans, Louisiana this ______ day of March, 2017.
_______________________________
CARL J. BARBIER
17-30519.1791

versus
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION

TO LIFT STAY AND DISMISS CIVIL ACTION
this Opposition to the Defendants’ pending Motion to Lift Stay and Dismiss (Rec. Doc. 243).
The said Motion fundamentally misrepresents the history and status of this case, was filed with-
out adequate legal or factual basis, was filed in objective bad faith, and was interposed solely for
the purpose of harassing, delaying, and obstructing Shane Gates in his pursuit of his meritorious
§ 1983 civil claims against various persons and institutions in St. Tammany Parish, Louisiana,
claims which arose solely as a result of Mr. Gates’ vicious beating—while he was restrained and
in handcuffs—by Deputies to the St. Tammany Parish Sheriff.
I. There is no single one of the current Movants who has an actual, subsisting, and le-
gitimate reason for promoting the long-expired misdemeanor charges upon which
their Motion is premised, that is, all the current Movants actually lack standing to
assert the claims they are making here.
As an inspection of the Movants’ pleading shows, not one of the signatories to the pend-
ing Motion as any legitimate interest in attempting to manipulate this Court into using its super-
vision over the pending civil case to ride roughshod over Shane Gates’ Fourteenth Amendment
SMG Opposn 2 Defts Mtn 2 Lift Stay & Dismiss

Page 1 of 9. 17-30519.1792
guaranteed due process rights in an unconstitutional misdemeanor prosecution so as to extort an
advantage in that civil rights case. Yet that is precisely what the Defendants/Movants have done
at every stage of these proceedings: to use the alleged pendency of bogus minor criminal
charges in St. Tammany Parish as a tool to obtain dismissal of the very serious civil rights suit
Mr. Gates filed here to obtain redress for his unlawful and unjustified torture at the hands of the
St. Tammany Parish Sheriff’s Office.
The first-named among those Movants is Rodney J. “Jack” Strain, Jr., as former Sheriff
of St. Tammany Parish. Even when he was Sheriff, Rodney Strain had no legitimate, justiciable
interest in whether any particular misdemeanor case went forward or not; the lawful functions of
his office extended solely to the gathering of evidence for presentation to the District Attorney
for the latter’s consideration. It was never part of his official duties to seek to have a particular
charge brought to trial; that was the District Attorney’s job, not his. Now, however, since Mr.
Strain was compelled to withdraw himself from seeking re-election, he does not even possess
that merely supporting role in the misdemeanor cases he here seeks to push forward. Thus his
only possible reason for trying to do so is to advantage himself, in violation of Rule 11, Fed. R.
Civ. Proc. and (on the part of his counsel) Rule 8.4(g), R. Prof. Cond., in defending Shane Gates’
civil suit. Thus Rodney Strain has no legitimate reason whatever for joining in this instant Mo-
tion.
The second-named Movant is Nathan Miller, formerly a St. Tammany Parish Sheriff’s
Deputy who was forced out of that employment on various disciplinary charges including lying
to his superiors. Even when Mr. Miller was a Deputy Sheriff, he was subordinate to Rodney
Strain and thus could not possibly have had any greater official interest in promoting a particular
misdemeanor charge than did his employer and now that he has lost that employment, he has

Page 2 of 9. 17-30519.1793
even less. Thus Miller, like Strain, has no reason for the current Motion other than to bolster his
defense to the beating that Deputy Roger Gottardi administered to Shane Gates in Miller’s pres-
ence after Miller had handcuffed the victim. Thus, too, his participation in this Motion violates
Rule 11 and, on the part of his attorneys at least, Rule 8.4(g) as well.
The third-named Movant is Deputy Roger Gottardi, the Deputy Sheriff who was the prin-
cipal actor in Mr. Gates’ beating. As a subordinate Deputy Sheriff, he has no legitimate role to
play in policy determinations such as which criminal charges go forward and which ones fall by
the wayside. Thus his situation is precisely the same as Strain and Miller’s: his participation in
this Motion violates Rule 11 and, on the part of his attorneys at least, Rule 8.4(g) as well. The
same arguments apply with equal force to Captain Kathy Sherwood and Deputy Brian Williams,
the fourth- and fifth-named Movants, the latter of whom stood by during, and may well have as-
sisted, Gottardi’s beating of Mr. Gates.
Walter Reed, the sixth-named Movant, was formerly District Attorney of St. Tammany
Parish and, as such, was the only one among these Movants whose public office ever had a le-
gitimate policy-making role in determining whether a particular criminal charge should actually
be prosecuted or not. However, as of the time this Motion was filed, he no longer retained any
such official functions, having, like Strain, been compelled to refrain from seeking re-election.
And the cloud under which his former official functions stand has now thickened to the point
where he is at this moment fighting to stay out of jail, on bond, pending his appeal from the
eighteen felony convictions on which he is due to be sentenced next week. Thus not only does
his participation in this instant Motion violate Rule 11 but, where he is a suspended member of
the bar, he is in violation of Disciplinary Rule 8.4(g) as well—as, of course, is his counsel who
filed this Motion on his behalf.

Page 3 of 9. 17-30519.1794
Ronald Gracianette, the seventh-named Movant, is an Assistant District Attorney in St.
Tammany Parish, which means he is, at most, a subordinate ministerial officer to Warren Mont-
gomery, the current St. Tammany District Attorney. Mr. Montgomery is the only individual or
official in St. Tammany properly to have a voice in the maintenance vel non of the misdemeanor
charges now at issue but he is noticeably absent from these proceedings. Presumably he feels he
has nothing to gain by associating himself with past misconduct by his predecessor Reed—
fourteen of whose eighteen felony convictions involve misfeasance in office—or by Mr. Gra-
cianette when the latter worked for and under that felon. Thus the only person who can even be
argued to have standing to support the continuance of the two charges concerned, more than ten
years after the expiration of the state speedy-trial statute, is neither present as a party to these
proceedings nor is taking any action here to support the suggestion those unconstitutional
charges should still be tried. So the only possible conclusion is that both Mr. Gracianette and his
counsel are simply trying to obtain an improper advantage in defense of the civil suit and so are
both in violation of Rules 11 and 8.4(g).
Nicholas Noriea, the eighth-named Movant, and his present counsel are both in precisely
the same position as are Mr. Gracianette and his counsel, with the added proviso that Mr. Noriea
is no longer an Assistant District Attorney in St. Tammany Parish. Thus he was formerly with-
out independent policy-making authority, but only exercised only such functions as were dele-
gated to him by the disgraced Walter Reed, but now he does not possess even those. Kathryn
Landry, the ninth-named Movant, as a former St. Tammany Parish Assistant District Attorney, is
in precisely the same situation as is Nicholas Noriea.
James D. Caldwell, the tenth-named Movant, is the former Louisiana Attorney General.
Even when he was in office, he had no legitimate voice or role in maintaining criminal charges

Page 4 of 9. 17-30519.1795
against Shane Gates because the disgraced Walter Reed never recused himself from Mr. Gates’
cases. Thus Mr. Caldwell’s participation in this instant Motion violates both Rule 11 and Rule
8.4(g).
Judge Richard Schwartz, the eleventh-named Movant, certainly never should have had
any role in promoting a particular charge inasmuch as his constitutional duty was limited to ad-
judicating such motions, exceptions, and hearings as might be brought before him. Thus for him
to be appearing here and now before this Court, attempting to further the prosecution of a case
that was formerly pending before him, is a gross impropriety and a breach of every possible
canon of judicial impartiality.
Marie-Elise Prieto, the twelfth-named Movant, is another former St. Tammany official
who did not find it prudent to run for re-election. However, even when she was an office-holder,
her functions as Clerk of Court did not properly or lawfully include any role in determining
whether particular criminal charges went forward to trial. Thus her participation in this instant
Motion is another violation of Rule 11 and, on the part of her counsel at least, of Rule 8.4(g) as
well.
Charles M. Hughes, Jr., the thirteenth-named Movant, is the civil attorney for the Parish’s
liability insurance carrier. As such, he had no legitimate role to play in determining whether any
particular criminal charge be instituted or be brought to trial. However, despite the fact that his
lawful functions were limited to defending this civil suit, it has been established that (a) he is the
person who obtained the misdemeanor charge of resisting arrest; (b) he did so strictly in order to
obtain an advantage for his client insurance company in its defense of Mr. Gates’ tort claims; and
(c) he was so adamant about having that charge filed that he obtained and provided his co-
Defendant Ronald Gracianette with a forged letter purporting to come from co-Defendant Nathan

Page 5 of 9. 17-30519.1796
Miller that further purported to request the institution of that charge. (Rec. Docs. 240 & 240-1.)
The bad faith and procedural and ethical violations inherent in those actions needs no further ex-
position here.
Philip Duiett, the last and fourteenth-named Movant was the emergency room nurse at
Louisiana Heart Hospital who testified at Shane Gates’ felony trial on the charge of aggravated
flight. Mr. Duiett’s role was to bolster the prosecution’s case by papering over the severe and
inescapable evidentiary problems inherent in attempting to introduce unverified and almost cer-
tainly forged medical records so, as a fact witness for the prosecution in one case, he has no le-
gitimate standing to promote the prosecution of separate misdemeanor charges that the State had
made the tactical decision not to bring to trial along with the felony charge in which it was most
interested (Rec. Docs. 240 & 240-1.) Thus, as with all the preceding Movants, Mr. Duiett’s par-
ticipation in this pending Motion violates Rule 11 and his counsel’s bringing it on his behalf vio-
lates both Rule 11 and Rule 8.4(g).
II. It is not Shane Gates who has failed to prosecute his civil rights action here, it is the
current Movants who have, at every turn, obstructed and delayed his prosecution of
that suit. Now those same Movants seek to take advantage of their own misconduct
by claiming it was not they who are but he who is responsible for the delays that are
attributable solely to the successive stays they themselves have sought.
The instant Motion is predicated upon Rule 41(b), Fed. R. Civ. Proc. (Rec. Doc. 243-1, p.
4). As the text of that Rule shows—and it is quoted by these Movants—it applies to a plaintiff’s
failure to prosecute an action. In the instant case, however, all of the delays and interruptions in
prosecution of Shane Gates’ § 1983 suit have been created and fostered not by him, as Plaintiff
but by the Defendants. They are the ones who have requested each of the successive stays and
they are the ones who have, in clear and facial violation of Mr. Gates’ Fourteenth Amendment

Page 6 of 9. 17-30519.1797
due process rights, have attempted to resurrect the long-expired misdemeanor charges upon
which their requests for those stays were predicated.
Their attempt now to use their own misconduct to his disadvantage is a perfect example
of the Yiddish term chutzpah, which the late Leo Rosten illustrated by citing a man who, when
convicted of murdering his parents, threw himself on the mercy of the court on the ground that
he was an orphan.
These Defendants/Movants have engineered a fallacious impasse which they now argue
requires the dismissal of Mr. Gates’ suit for redress from his “Rodney King”-like beating. In
that, they have the matter precisely backward: what is required is for them to cease and desist
from continuing to pretend that there is a live and triable criminal case pending and for this Court
to pierce their smoke screen by staying those now-bogus, because long-outdated, charges.
None of the cases cited by these Movants is actually apposite to the instant situation be-
cause none of them dealt with facts where it was the defendants, not the plaintiffs, who were ma-
nipulating the proceedings to retard those cases’ going to trial. Nor is their argument helped by
their repeated false descriptions of Mr. Gates as a “fugitive”. On the day the felony trial jury re-
turned a verdict of “not guilty” in Mr. Gates’ favor, the DUI and resisting arrest charges about
which these Movants are so concerned—even though the only one with a legitimate official role
regarding them was the felon Walter Reed—were already four years past their “sell by date” un-
der Article 578, La. Code Crim. Proc., and were already past the five-year limitation imposed by
the Federal constitutional jurisprudence under the speedy trial branch of Fourteenth Amendment
due process—to say nothing of their fatal infirmity arising from the “evidentiary fact” bar of the
double jeopardy guarantee.

Page 7 of 9. 17-30519.1798
Thus when Mr. Gates was released from that felony charge, there were no remaining
valid criminal charges remaining against him. Despite that, he continued for some time to reside
in St. Tammany Parish, during which time his whereabouts were well known to the St. Tammany
Parish authorities. It was only months later—undoubtedly at the instigation of their insurance
carrier—that they attempted to resurrect those already-dead misdemeanor charges.
Thus it is grossly inappropriate for them now to try to slander Mr. Gates as a “fugitive”; it
was not his absenting himself from their parish that caused those charges to lapse, any more than
it was his decision to have them shoot their wad with respect to the DUI and resisting arrest
charges by putting on that evidence to try to salvage their felony flight trial. The fault lies upon
several of these Movants, whose tactical decisions, if not outright sloth and incompetence,
caused them to lose any further chance to pursue him lawfully and constitutionally.
This Court is charged with vindicating his Federal constitutional rights, not with tram-
pling them down to save money for a gaggle of former elected officials, which is what these
Movants are asking it to do. Mr. Gates has exhausted his available opportunities to have the
Louisiana state trial and appellate courts uphold those rights but they all—without ever giving
one single reason for their nonfeasance—have refused to do so. Thus he has no place now to
turn except to this Court, asking it to stay the improper prosecution below, to lift its stay of his
too-long-delayed § 1983 suit, and to proceed to give him the opportunity to make his case for
civil redress for wild and unrestrained police misconduct.

Page 8 of 9. 17-30519.1799
WHEREFORE, Shane Gates respectfully requests this Honorable Court to deny the
Movants’ pending Motion to Lift Stay and Dismiss.
/s/ J. A. Hollister
(985) 792-5353
with the Clerk of the United States District Court for the Eastern District of Louisiana on March
8, 2017, using that Court’s CM/ECF system, which system will send a notice of electronic filing
to appearing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER

Page 9 of 9. 17-30519.1800

07-6983 and 13-6425

ORDER
Considering the foregoing Motion to Withdraw and Substitute Counsel of Record (R. Doc. 248),
IT IS ORDERED that Emily Couvillon is hereby withdrawn as counsel of record for
defendants Walter P. Reed, in his official capacity as former District Attorney for the 22nd
Judicial District, State of Louisiana, Assistant District Attorney Ronald Gracianette, former
Assistant District Attorney Nicholas F. Noriea, Jr., and former District Attorney Kathryn
Landry.
IT IS FURTHER ORDERED that Cary J. Menard, Assistant District Attorney (Bar
#09426) is hereby substituted as counsel of record on behalf of the above-named defendants.
10th day of March, 2017.

New Orleans, Louisiana this ______
_______________________________
CARL J. BARBIER
17-30519.1801

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
Gracianette, former Assistant District Attorneys Nicholas F. Noriea, Jr., and Kathryn Landry,
former Louisiana Attorney General James D. Caldwell, Office of the Louisiana Attorney
General, Judge Richard Schwartz of the 22nd Judicial District Court, Marie-Elise Prieto, in her
individual and her official capacity as former Clerk of Court for the Parish of St. Tammany,
Charles M. Hughes, Jr., and Philip Duiett, to respectfully move this Honorable Court for leave to
file the attached reply memorandum in support of their Joint Motion to Lift Stay [see R. Doc.
243]. Defendants request such leave because they believe it is necessary to address several of
the representations and arguments made by Shane Gates in his opposition memorandum.
Defendants believe that their reply memorandum will benefit the Court in its consideration of
their Joint Motion to Lift Stay.
89240/442168
Page 1 of 3
17-30519.1802
WHEREFORE, Movers pray that they be granted leave to file the attached reply
memorandum into the record and that the same be deemed filed into the record.

s/ Carey J. Menard__________________ s/ Richard T. Simmons_________________

Carey J. Menard, T.A (#9426) Richard T. Simmons, Jr., T.A. (#12089)
Telephone: (985) 809-8374 P. O. Box 8288
cmenard@22da.com Metairie, LA 70011-8288
former Assistant District Attorneys
Landry
89240/442168
Page 2 of 3
17-30519.1803

Byron D. Kitchens, T.A. (#25129) Thomas H. Huval, T.A. (#21725)
Nancy A. Cundiff (#27974) Jones Fussell LLP
Cotten, Schmidt & Abbott, LLP P.O. Box 1810
650 Poydras Street Northlake Corporate Park, Suite 103
Suite 2810 1001 Service Rd East, US Hwy 190
New Orleans, LA 70130 Covington, La 70433
ncundiff@csa-lawfirm.com Facsimile: (985) 259-8003
Counsel for Philip Duiett thuval@jonesfussell.com
s/ Ralph S. Whalen___________________ Prieto, in her individual and official
Ralph S. Whalen, Jr. T.A. (#8319) capacity
Energy Centre
Telephone: (504) 525-1600
individual capacity
Court of the United States District Court for the Eastern District of Louisiana on March 14, 2017,
by using the CM/ECF system, which system will send a notice of electronic filing to appearing
parties in accordance with the procedures established.
89240/442168
Page 3 of 3
17-30519.1804

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
____________________________________
JUDGE
89240/442169
17-30519.1805

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************

Defendants, Rodney J. "Jack" Strain, Jr., in both his individual capacity and his official
capacity as former Sheriff of St. Tammany Parish, Deputy Nathan Miller, Deputy Roger
Gottardi, Captain Kathy Sherwood, Deputy Brian Williams, Walter P. Reed, in both his
Court, Assistant District Attorney Ronald Gracianette, former Assistant District Attorneys
Nicholas F. Noriea, Jr., and Kathryn Landry, former Louisiana Attorney General James D.
(hereinafter, "movants"), respectfully submit this reply memorandum in support of their motion
to lift stay and dismiss (R. Doc. 243), and they aver as follows:
89240/442167
Page 1 of 6
17-30519.1806
WHEN NEITHER THE LAW NOR THE FACTS ARE IN YOUR FAVOR . . .
In the February/March 2017 edition of the Louisiana Bar Journal, Vol. 64. No. 5,
attorney Scotty E. Chabert, Jr., chair of the Young Lawyers Division of the Louisiana State Bar
Association, writes, in pertinent part, as follows:
A long time ago, an older attorney told me: "When the facts aren't in your favor,
argue the law. When the law isn't in your favor, argue the facts." Recently, I was,
unfortunately, taught the last part of that saying: "When neither the law nor facts
are in your favor, personally attack your opponent attorney!"
In a 9 page opposition memorandum which is noticeably devoid of citation to even a single case,
the last part of the above saying comes alive in vivid color. See LR 7.5 (an opposition
memorandum must contain citation of authorities).
Instead of actually addressing any of the numerous authorities cited by movants in their
memorandum in support of motion to lift stay and dismiss (R. Doc. 243-1), Shane Gates ("Mr.
Gates"), curiously states that the motion "was filed without adequate legal or factual, basis, was
filed in objective bad faith, and was interposed solely for the purpose of harassing, delaying, and
obstructing [him] in the pursuit of his meritorious § 1983 civil claims . . . ." R. Doc. 249, p. 1.
Then, Mr. Gates unleashes his argument du jouralso without citation to any authoritythat
movants do not have "standing" to move to lift the stay so as to have the case against them
dismissed. Id. Interspersed within this argument are claims of Rule 11 and professional conduct
violations by movants' respective counsel. In a similar manner, Mr. Gates asserts that, in joining
in the present motion, Judge Richard Schwartz has breached "every possible canon of judicial
impartiality." Id. at p. 5. When neither the law nor the facts are in your favor . . . .
89240/442167
Page 2 of 6
17-30519.1807
It should go without saying that Mr. Gates instituted this action, not the movants.
Similarly, Mr. Gates named each of the movants as a defendant in this action; they did not insert
themselves into the pleadings. Under FRCP 41(b), "If the plaintiff [i.e. Mr. Gates] fails to
prosecute or to comply with these rules or a court order, a defendant [i.e. each of the movants]
may move to dismiss the action or any claim against it." Defendants'/Movants' right to seek a
lifting of the stay for purposes of dismissing the action for failure to prosecute is memorialized in
the Federal Rules of Civil Procedure. It is just that simple. Moreover, this Honorable Court has
the inherent power to dismiss a case for lack of prosecution, sua sponte. Link v. Wabash R. Co.,
370 U.S. 626, 630–632 (1962).
As a reminder, on April 17, 2008, this matter was stayed for the express purpose of
allowing for the resolution of the criminal charges against Mr. Gates in the Twenty-Second
Judicial District Court for the Parish of St. Tammany, State of Louisiana. See R. Doc. 81. On
July 11, 2011, the stay was reaffirmed, as the state charges were still pending. See R. Doc. 121.
On October 10, 2012, the stay, after briefly being lifted following Mr. Gates's state felony trial,
was reinstituted once the Court became aware the misdemeanor charges against Mr. Gates
remained pending. See R. Doc. 196. When Mr. Gates's 2013 action was consolidated with his
2007 action on August 20, 2014, it also was stayed pending resolution the state court charges.
See R. Doc. 200.
On November 13, 2013, more than 9 months before the last stay order in this case, Mr.
Gates was ordered by Judge Walter Rothschild, sitting ad hoc at the Twenty-Second Judicial
District Court of Louisiana, to appear at the Clerk of Court's office to be served with his
misdemeanor trial date on two counts of resisting arrest one count of DWI. R. Doc. 211-3. That
trial was to be held on January 16, 2014, a date determined by the state court after discussion
89240/442167
Page 3 of 6
17-30519.1808
with the prosecution and Mr. Gates' defense attorney. Id. Mr. Gates never appeared to be served
for his misdemeanor trial as ordered by the state court, even after an attachment for his arrest was
issued on or about December 27, 2013. See R. Doc. 211-4 and 243-3.
Notwithstanding the facts, Mr. Gatesstill nowhere to be found more than 3 years later
except through the knowledge of his counselnow claims movants have made "repeated false
descriptions" of him as a fugitive, a label which he says is "grossly inappropriate" and constitutes
"slander." R. Doc. 249, pp.7–8. In case there was any doubt, a "fugitive" as defined, in pertinent
part, by one of the most trusted legal dictionaries, is: "A criminal suspect . . . who flees, evades,
or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, esp.
by fleeing the jurisdiction or by hiding." BLACK'S LAW DICTIONARY 694–95 (8th ed. 2004).
Recently retired Judge Stanwood Duval endorsed that label for Mr. Gates when, at the December
14, 2016 hearing in this matter, he remarked, "[W]e do have a fugitive, whatever his reasons are
for it or however valid or invalid they are." R. Doc. 243-2, p. 38, l. 5–7.
Truth be told, since the issuance of this Court's August 20, 2014 Order and Reasons
related to the stay (and even well before dating to at least the time the attachment for Mr. Gates's
arrest was issued), the inaction of Mr. Gates has been the only impediment to this case moving
forward. Individuals cannot act as fugitives from one court of competent jurisdiction to gain an
advantage in another.1
In light of the foregoing, and for all those reasons fully briefed by movants in their
original memorandum in support of motion to lift stay and dismiss (R. Doc. 243-1) and in their
related memorandum in opposition to plaintiff's motion for injunction and to lift stay (R. Doc.
1
Wherever Mr. Gates has hidden himself for the past 3 + years, access to reliable news must be limited. He
mistakenly claims that former Sheriff Strain was "compelled to withdraw himself from seeking re-election." R.
Doc. 249, p. 2.
89240/442167
Page 4 of 6
17-30519.1809
242), each incorporated herein by reference, the stay in this matter should be lifted for the limited
purpose of dismissing this matter, with prejudice.


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/442167
Page 5 of 6
17-30519.1810

Ralph S. Whalen, Jr., T.A. (#8319) capacity
Energy Centre
Telephone: (504) 525-1600
individual capacity
89240/442167
Page 6 of 6
17-30519.1811

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
New Orleans, Louisiana, this _____ March

15th day of _____________, 2017.
____________________________
CARL J. BARBIER
17-30519.1812

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************

(hereinafter, "movants"), respectfully submit this reply memorandum in support of their motion
to lift stay and dismiss (R. Doc. 243), and they aver as follows:
89240/442167
Page 1 of 6
17-30519.1813
WHEN NEITHER THE LAW NOR THE FACTS ARE IN YOUR FAVOR . . .
In the February/March 2017 edition of the Louisiana Bar Journal, Vol. 64. No. 5,
attorney Scotty E. Chabert, Jr., chair of the Young Lawyers Division of the Louisiana State Bar
Association, writes, in pertinent part, as follows:
A long time ago, an older attorney told me: "When the facts aren't in your favor,
argue the law. When the law isn't in your favor, argue the facts." Recently, I was,
unfortunately, taught the last part of that saying: "When neither the law nor facts
are in your favor, personally attack your opponent attorney!"
In a 9 page opposition memorandum which is noticeably devoid of citation to even a single case,
the last part of the above saying comes alive in vivid color. See LR 7.5 (an opposition
memorandum must contain citation of authorities).
Instead of actually addressing any of the numerous authorities cited by movants in their
memorandum in support of motion to lift stay and dismiss (R. Doc. 243-1), Shane Gates ("Mr.
Gates"), curiously states that the motion "was filed without adequate legal or factual, basis, was
filed in objective bad faith, and was interposed solely for the purpose of harassing, delaying, and
obstructing [him] in the pursuit of his meritorious § 1983 civil claims . . . ." R. Doc. 249, p. 1.
Then, Mr. Gates unleashes his argument du jouralso without citation to any authoritythat
movants do not have "standing" to move to lift the stay so as to have the case against them
dismissed. Id. Interspersed within this argument are claims of Rule 11 and professional conduct
violations by movants' respective counsel. In a similar manner, Mr. Gates asserts that, in joining
in the present motion, Judge Richard Schwartz has breached "every possible canon of judicial
impartiality." Id. at p. 5. When neither the law nor the facts are in your favor . . . .
89240/442167
Page 2 of 6
17-30519.1814
It should go without saying that Mr. Gates instituted this action, not the movants.
Similarly, Mr. Gates named each of the movants as a defendant in this action; they did not insert
themselves into the pleadings. Under FRCP 41(b), "If the plaintiff [i.e. Mr. Gates] fails to
prosecute or to comply with these rules or a court order, a defendant [i.e. each of the movants]
may move to dismiss the action or any claim against it." Defendants'/Movants' right to seek a
lifting of the stay for purposes of dismissing the action for failure to prosecute is memorialized in
the Federal Rules of Civil Procedure. It is just that simple. Moreover, this Honorable Court has
the inherent power to dismiss a case for lack of prosecution, sua sponte. Link v. Wabash R. Co.,
370 U.S. 626, 630–632 (1962).
As a reminder, on April 17, 2008, this matter was stayed for the express purpose of
allowing for the resolution of the criminal charges against Mr. Gates in the Twenty-Second
Judicial District Court for the Parish of St. Tammany, State of Louisiana. See R. Doc. 81. On
July 11, 2011, the stay was reaffirmed, as the state charges were still pending. See R. Doc. 121.
On October 10, 2012, the stay, after briefly being lifted following Mr. Gates's state felony trial,
was reinstituted once the Court became aware the misdemeanor charges against Mr. Gates
remained pending. See R. Doc. 196. When Mr. Gates's 2013 action was consolidated with his
2007 action on August 20, 2014, it also was stayed pending resolution the state court charges.
See R. Doc. 200.
On November 13, 2013, more than 9 months before the last stay order in this case, Mr.
Gates was ordered by Judge Walter Rothschild, sitting ad hoc at the Twenty-Second Judicial
District Court of Louisiana, to appear at the Clerk of Court's office to be served with his
misdemeanor trial date on two counts of resisting arrest one count of DWI. R. Doc. 211-3. That
trial was to be held on January 16, 2014, a date determined by the state court after discussion
89240/442167
Page 3 of 6
17-30519.1815
with the prosecution and Mr. Gates' defense attorney. Id. Mr. Gates never appeared to be served
for his misdemeanor trial as ordered by the state court, even after an attachment for his arrest was
issued on or about December 27, 2013. See R. Doc. 211-4 and 243-3.
Notwithstanding the facts, Mr. Gatesstill nowhere to be found more than 3 years later
except through the knowledge of his counselnow claims movants have made "repeated false
descriptions" of him as a fugitive, a label which he says is "grossly inappropriate" and constitutes
"slander." R. Doc. 249, pp.7–8. In case there was any doubt, a "fugitive" as defined, in pertinent
part, by one of the most trusted legal dictionaries, is: "A criminal suspect . . . who flees, evades,
or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, esp.
by fleeing the jurisdiction or by hiding." BLACK'S LAW DICTIONARY 694–95 (8th ed. 2004).
Recently retired Judge Stanwood Duval endorsed that label for Mr. Gates when, at the December
14, 2016 hearing in this matter, he remarked, "[W]e do have a fugitive, whatever his reasons are
for it or however valid or invalid they are." R. Doc. 243-2, p. 38, l. 5–7.
Truth be told, since the issuance of this Court's August 20, 2014 Order and Reasons
related to the stay (and even well before dating to at least the time the attachment for Mr. Gates's
arrest was issued), the inaction of Mr. Gates has been the only impediment to this case moving
forward. Individuals cannot act as fugitives from one court of competent jurisdiction to gain an
advantage in another.1
In light of the foregoing, and for all those reasons fully briefed by movants in their
original memorandum in support of motion to lift stay and dismiss (R. Doc. 243-1) and in their
related memorandum in opposition to plaintiff's motion for injunction and to lift stay (R. Doc.
1
Wherever Mr. Gates has hidden himself for the past 3 + years, access to reliable news must be limited. He
mistakenly claims that former Sheriff Strain was "compelled to withdraw himself from seeking re-election." R.
Doc. 249, p. 2.
89240/442167
Page 4 of 6
17-30519.1816
242), each incorporated herein by reference, the stay in this matter should be lifted for the limited
purpose of dismissing this matter, with prejudice.


Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/442167
Page 5 of 6
17-30519.1817

Ralph S. Whalen, Jr., T.A. (#8319) capacity
Energy Centre
Telephone: (504) 525-1600
individual capacity
89240/442167
Page 6 of 6
17-30519.1818
MINUTE ENTRY
BARBIER, J.
MARCH 16, 2017
JS-10: 1:15

VERSUS NUMBER: 07-6983 c/w 13-6425
RODNEY JACK STRAIN, ET AL SECTION: "J"(2)
COURTROOM DEPUTY: COURT REPORTER:

Stephanie Kall/Gail Chauvin Cathy Pepper
THURSDAY, MARCH 16, 2017 AT 9:30 AM

JUDGE CARL J. BARBIER PRESIDING
MOTION HEARING
MOTION for Injunction and to Lift Stay by Shane M. Gates. [240]; Argued.
ORDERED that motion is DENIED for reasons orally stated on the record.
MOTION to Lift Stay and Dismiss for Lack of Prosecution by defendants. [243];
Argued. ORDERED that motion to lift stay is GRANTED solely for the purpose of
addressing defendants' motion to dismiss plaintiff's 1983 complaint with
prejudice pursuant to 41(b). FURTHER ORDERED that defendants' motion to
dismiss is GRANTED and plaintiff's 1983 complaint is DISMISSED with prejudice
pursuant to 41(b) for reasons orally stated on the record.
ATTORNEYS: (See attached.)
17-30519.1819
17-30519.1820

VERSUS NO: 07-6983

c/w 13-6425
RODNEY JACK STRAIN, ET SECTION: “J”(2)
AL.
ORDER & REASONS
Before the Court are two motions. First is Plaintiff, Shane
Gate’s (“Plaintiff”) Motion for Injunction and to Lift Stay (Rec.
Doc. 240) and an opposition (Rec. Doc. 242) thereto filed by
Defendants. 1 Second is Defendants’ Motion to Lift Stay and Dismiss
(Rec. Doc. 243), an opposition (Rec. Doc. 249) thereto filed by
Plaintiff, and a reply (Rec. Doc. 254) filed by Defendants. Having
considered the motions and legal memoranda, the record, and the
applicable law, the Court finds that Plaintiff’s Motion for
Injunction and to Lift Stay (Rec. Doc. 240) should be DENIED.
Further, the Court finds that Defendants’ Motion to Lift Stay and
1 Defendants include: Rodney J. “Jack” Strain, Jr., in both his individual
capacity and official capacity as former Sheriff of St. Tammany Parish, Deputy
Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, Deputy Brian
Williams, Walter P. Reed, in both his individual and official capacity as former
District Attorney for the 22nd Judicial District Court, Assistant District
Attorney Ronald Gracianette, Assistant District Attorney Nicholas F. Noriea,
Jr., Kathryn Landry, former Louisiana Attorney General James D. Caldwell,
Officer of the Louisiana Attorney General, Judge Richard Schwartz of the 22nd
Judicial District Court, Marie-Elise Prieto, in her individual and official
capacity as former Clerk of Court for the Parish of St. Tammany, and Charles M.
Hughes, Jr., collectively referred to as “Defendants.”
17-30519.1821
Dismiss (Rec. Doc. 243) should be GRANTED, and Plaintiff’s lawsuit
should be DISMISSED WITH PREJUDICE.
FACTS AND PROCEDURAL BACKGROUND
On November 16, 2006, Plaintiff was arrested for (1)
obstruction of a highway, (2) driving while intoxicated, (3) having
an open alcohol container in his vehicle, (4) reckless operation,
and (5) resisting arrest. (R. Doc. 121 at 1.) The facts surrounding
Plaintiff’s arrest are disputed between the parties, which forms
the basis of this § 1983 lawsuit brought by Plaintiff. In short,
Plaintiff contends that he was beaten by St. Tammany Parish
deputies during his arrest. The facts preceding this supposed
beating are alleged by Plaintiff as follows: Plaintiff had just
left a car dealership in Slidell, Louisiana and was traveling on
Interstate Highway 12 to Covington, Louisiana. Plaintiff noticed
a police car behind him and he pulled to the side of the road.
Plaintiff claims to have gotten out of his vehicle where he was
then thrown on the hood of the police car. Plaintiff contends that
because the hood of the police car was hot, he attempted to free
himself from the hood of the car, which caused the arresting deputy
to use his pepper spray on Plaintiff. Plaintiff alleges that he
was then handcuffed, forced against the hood of the police car
once again, and then thrown onto the pavement and beaten until he
became unconscious.
17-30519.1822
Plaintiff contends that he then awoke in the emergency room
with extensive lacerations and injuries to his eye, face, neck,
and mouth. At some point during his time at the hospital, a blood
alcohol test was conducted, which resulted in a reading of
approximately .280—over three times the legal limit in Louisiana.
Similarly, Plaintiff contests the circumstances surrounding the
blood alcohol test. Plaintiff apparently alleges that the nurse
who conducted the test used an alcohol swab on the area where
Plaintiff’s blood was drawn prior to drawing his blood which caused
the elevated results. As a result of these incidents, Plaintiff
filed a § 1983 lawsuit against Defendants in this Court.
Plaintiff maintains that over the next several months the
deputies fabricated a story to cover up these events. Plaintiff
alleges, inter alia, that Charles Hughes, the attorney for the
sheriff’s office and the deputies involved, threatened and
persuaded the District Attorney, on the eve of trial, to file new
charges of resisting arrest in an attempt to defeat Plaintiff’s §
1983 lawsuit. Plaintiff contends that he was then offered only
$10,000 for a release of his claims.
Plaintiff’s § 1983 lawsuit was stayed in April of 2008,
pending resolution of the criminal charges against him in the
Twenty-Second Judicial District Court for the Parish of St.
Tammany, Louisiana. In August of 2012, Plaintiff advised the Court
that he was found not guilty of the crime of aggravated flight in
17-30519.1823
the state court proceedings, and the stay of Plaintiff § 1983 case
was lifted. However, when the Court discovered that Plaintiff still
had at least two misdemeanor charges pending, including resisting
an officer, the Court reinstituted the stay until the remaining
charges were resolved.
In November of 2013, a state court judge issued an attachment
for Plaintiff’s arrest for failing to appear to be served for his
misdemeanor trial. To date, Plaintiff has not presented to the
state court to receive service and stand trial for the pending
misdemeanor charges. On October 20, 2016, Defendants filed a motion
requesting that the stay in Plaintiff’s § 1983 case be lifted for
the limited purpose of allowing Mr. Gates to appear for service
for his misdemeanor trial, and if he failed to appear, that this
lawsuit be dismissed under Federal Rule of Civil Procedure 41(b)
for failure to prosecute. On December 14, 2016, Judge Stanwood
Duval Jr. held oral argument on the motion. While Judge Duval
denied the motion at oral argument, he stated that Plaintiff’s §
1983 lawsuit would be dismissed pursuant to Rule 41(b) if Plaintiff
did not file a motion concerning the alleged inapplicability of
the Anti-Injunction Act, 28 U.S.C. § 2283, and Younger v. Harris,
401 U.S. 37 (1971), in light of Plaintiff’s speedy trial and double
jeopardy arguments. On January 23, 2017, Plaintiff filed the
present Motion for Injunction and to Lift Stay. Plaintiff’s lawsuit
17-30519.1824
was then transferred to this Court in light of Judge Duval’s
retirement.
In short, Plaintiff argues that trial of the pending resisting
an officer and driving while intoxicated misdemeanors would
violate the “evidentiary fact branch” of double jeopardy. (Rec.
Doc. 240-1, at 16.) Further, Plaintiff argues that the time period
within which to commence a misdemeanor trial has long passed, and
that prosecution on these charges violates his right to a speedy
trial. Thus, Plaintiff asks this Court to enjoin the state court
from proceeding with the misdemeanor charges against him, and to
lift the stay on his pending § 1983 lawsuit. In response,
Defendants argue that Plaintiff is not entitled to an injunction,
and that his § 1983 lawsuit should be dismissed for failure to
prosecute. On March 16, 2017, the Court held oral argument on the
parties’ motions. In open court, the Court ruled that Plaintiff’s
Motion for Injunction and to Lift Stay (Rec. Doc. 240) was DENIED
and that that Defendants’ Motion to Lift Stay and Dismiss (Rec.
Doc. 243) was GRANTED. In addition to the reasons stated at oral
argument, the Court issues these written reasons.
PARTIES’ ARGUMENTS
1. Plaintiff’s Arguments
Plaintiff raises two main arguments in support of his motion.
First, Plaintiff argues that this Court is not barred by the Anti-
Injunction Act from enjoining the state court from pursuing the
17-30519.1825
pending misdemeanor charges. Specifically, he argues that if he is
subject to such prosecution it would violate the Fifth Amendment’s
guarantee against double jeopardy, which is an exception to the
Anti-Injunction Act and the Younger abstention doctrine. Plaintiff
contends that because he was found not guilty in state court for
the aggravated flight charge, and in that trial the state presented
evidence of his alleged intoxication, that the “evidentiary fact
branch” of double jeopardy prevents the state from now pursuing
the driving while intoxicated misdemeanor. Second, Plaintiff
argues that under the Louisiana Code of Criminal Procedure “no
trial shall be commenced . . . [i]n misdemeanor cases after one
year from the date of institution of the prosecution.” La. Code
Crim. Proc. 578. Therefore, because Plaintiff was arrested on
November 16, 2006, and the state court felony trial concluded on
July 27, 2012, more than five years passed since Plaintiff’s
arrest. Accordingly, Plaintiff argues that prosecution of the
misdemeanor charges is time barred, and if he is subject to
prosecution on the pending misdemeanors it would violate his right
to a speedy trial. For these reasons, Plaintiff asks this Court to
prevent the Louisiana state court from trying him on the pending
misdemeanor charges.
2. Defendants’ Arguments
Defendants argue that due to Plaintiff’s inaction,
Plaintiff’s § 1983 lawsuit should be dismissed, with prejudice,
17-30519.1826
for failure to prosecute under Federal Rule of Civil Procedure
41(b). Defendants contend that this case has not progressed solely
because of plaintiff’s deliberate delay. In response to
Plaintiff’s request for an injunction, Defendants contend that
this Court is not permitted to enjoin the state court misdemeanor
proceedings pursuant to the Anti-Injunction Act and the Younger
abstention doctrine. Defendants further argue that double jeopardy
is inapplicable to Plaintiff’s pending misdemeanor charges, the
cases cited by Plaintiff in his request for an injunction provide
no support for his request, and that Plaintiff may assert his
speedy trial defense at trial on the misdemeanor charges.
DISCUSSION
The main issue this Court must decide is whether it has the
authority to enjoin Plaintiff’s state court misdemeanor
prosecution. It is well-settled that a federal court should not
interfere in pending state court criminal proceedings absent the
threat of “irreparable injury” that is “both great and immediate.”
Savoy v. Gusman, No. 15-4906, 2016 WL 1411310, at *3 (E.D. La.
Mar. 1, 2016) (quoting Younger v. Harris, 401 U.S. 37, 46 (1971)).
In situations such as this, where a petitioner seeks to enjoin
state court prosecution through the federal system, the Federal
Anti-Injunction Act, 28 U.S.C. § 2283, prohibits this Court from
enjoining state criminal proceedings except where expressly
authorized by Congress or where necessary in aid of this Court’s
17-30519.1827
jurisdiction. Id. (citing Younger, 401 U.S. at 41, 53-54; Walck v.
Edmondson, 472 F.3d 1227 (10th Cir. 2007); Harmon v. City of Kansas
City, Mo., 197 F.3d 321, 325 (8th Cir. 1999)). Thus, pursuant to
Younger, a federal court must abstain from interfering with state
court criminal proceedings when (1) the federal proceeding would
interfere with an “ongoing state judicial proceeding”, (2) the
state has an important interest in regulating the subject matter
of the claim, and (3) the plaintiff has “an adequate opportunity
in the state proceedings to raise constitutional challenges.” Bice
v. La. Pub. Defender Bd., 677 F.3d 712, 716 (5th Cir. 2012)
(quoting Middesex Cnty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 432 (1982)). If these prerequisites are satisfied,
then a federal court can assert jurisdiction only if “certain
narrowly delimited exceptions to the abstention doctrine apply.”
Id. (citing Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518 (5th
Cir. 2004)). Exceptions to Younger abstention include:
(1) if the state court proceeding was brought in bad faith

or with purpose of harassing the federal plaintiff;
(2) if the state statute is flagrantly and patently

violative of express constitutional prohibitions in every
clause, sentence, and paragraph, and in whatever manner and
against whomever an effort might be made to apply it; or
(3) application of the doctrine is waived.
Id. at 716 n.3.
17-30519.1828
The ongoing state proceeding here is Plaintiff’s criminal
prosecution in the Twenty-Second Judicial District Court for the
Parish of St. Tammany, Louisiana. Specifically, Plaintiff has at
least two misdemeanor charges pending—operating a vehicle while
intoxicated and resisting an officer. 2 Plaintiff asks this Court
to enjoin and restrain Defendants from proceeding with these
pending misdemeanor charges which would directly interfere with an
“ongoing state judicial proceeding.” See Bice, 677 F.3d at 717.
The next issue is whether the state court can provide an
adequate remedy for the violation of federal rights. Id. at 718.
“All that is required in order for Younger . . . to apply is an
opportunity to fairly pursue the constitutional claims in the
ongoing state proceeding, the failure to avail oneself of such
opportunity does not mean that the state proceedings are
inadequate.” DeSpain v. Johnston, 731 F.2d 1171, 1180 (5th Cir.
1984) (emphasis added) (internal quotations and alterations
omitted). In late 2013, or early 2014, Plaintiff filed a motion to
quash the pending misdemeanor charges on the grounds of double
jeopardy and denial of due process in the Twenty-Second Judicial
District Court, the Louisiana Court of Appeal for the First
Circuit, and the Louisiana Supreme Court, all of which denied
2 At oral argument, Plaintiff’s counsel argued that there are only two pending
misdemeanor charges—one count of driving while intoxicated and the other for
resisting an officer. Defendants contend that there are three pending
misdemeanors—one count of driving while intoxicated and two counts of resisting
an officer.
17-30519.1829
Plaintiff’s request. (Rec. Doc. 240-1, at 10.) However, Plaintiff
has never asserted his speedy trial or double jeopardy defenses in
the ongoing state proceeding. See id. In fact, Plaintiff has
refused to even receive service for the pending charges, and his
misdemeanor trial date has not been set. Thus, the appropriate
venue to raise the current arguments are in the state court in
Plaintiff’s misdemeanor trial. Accordingly, Plaintiff has an
available process for pretrial review of his constitutional
challenges, and may preserve these challenges for appeal after
trial, should he be convicted. See Savoy, 2016 WL 1411310, at *3.
Finally, the criminal proceedings against Plaintiff involve a
matter of state criminal law and state interests. Id. Thus, each
of the factors favor abstention in this case. Plaintiff must
demonstrate that one of the narrow exceptions to Younger applies
in order for the Court to consider interfering with the state court
criminal proceedings.
Plaintiff argues that two exceptions to Younger apply in this
case. First, Plaintiff argues that if he is subjected to the
pending misdemeanor charges in state court it would violate his
double jeopardy rights. Second, Plaintiff argues that if he was
subject to the pending misdemeanor charges it would violate his
right to a speedy trial. Plaintiff raised his first argument almost
five years ago in this Court. See (Rec. Doc. 196.) Specifically,
Plaintiff argued that having been acquitted of the aggravated
10
17-30519.1830
flight charge, “the district Attorney cannot now bring these old
charges offering the same evidence again.” (Rec. Doc. 163, at 1.)
As this Court held then, “Plaintiff’s contention lacks merit.”
(Rec. Doc. 196, at 3.) This Court explained:
The jury acquitted Mr. Gates after concluding that

the evidence presented by the prosecution failed to
satisfy the prosecution’s burden of proving the elements
of aggravated flight and its lesser included offenses
beyond a reasonable doubt. No jury has yet evaluated the
prosecution’s evidence to determine whether it
establishes beyond a reasonable doubt the elements of
resisting an officer. Because the elements of the
aggravated flight and resisting an officer are not
identical, plaintiff’s acquittal does not negate the
possibility of a conviction for resisting an officer. .
. .
Id. Accordingly, Plaintiff’s argument that he would be subject to
double jeopardy if this Court does not enjoin the state court
proceeding on the misdemeanor resisting an officer charge is
unconvincing and is not an exception to the Younger abstention
doctrine.
However, for the first time, Plaintiff argues that if he is
subject to trial on the misdemeanor charges it would violate the
“evidentiary fact branch” of double jeopardy. 3 (Rec. Doc. 240-1,
at 16.) Plaintiff argues that while the State did not need to
present evidence of Plaintiff’s alleged intoxication and resisting
arrest in order to demonstrate the essential elements of aggravated
flight, it nevertheless chose to do so as a tactical advantage.
3See Stringer v. Williams, 161 F.3d 259 (5th Cir. 1999) (noting that a violation
of double jeopardy clause is an exception to Younger abstention).
11
17-30519.1831
Plaintiff argues that the State now seeks to use this same evidence
to prove the essential elements of the driving while intoxicated
and resisting arrest misdemeanors. Once again, however,
Plaintiff’s contention lacks merit. In essence, Plaintiff argues
that because he was acquitted of aggravated flight, the jury
necessarily determined an ultimate issue of fact that he was not
intoxicated and did not resist arrest.
“The Supreme Court has established that issue preclusion,
also called collateral estoppel, is ‘embodied in the Fifth
Amendment guarantee against double jeopardy.’” United States v.
Sarabia, 661 F.3d 225, 229 (5th Cir. 2011) (quoting Ashe v.
Swenson, 397 U.S. 436, 443 (1970)). The Fifth Circuit has applied
issue preclusion to criminal proceedings in two ways: 1) to “bar
a subsequent prosecution if one of the facts necessarily determined
in the former trial is an essential element of the subsequent
prosecution”; and (2) if the fact is not an essential element of
the subsequent prosecution, to “bar the introduction or
argumentation of facts necessarily decided in the prior
proceeding.” Id. (quoting United States v. Brackett, 113 F.3d 1396,
1398 (5th Cir. 1997)). Plaintiff bears the burden of proving that
the issue he seeks to foreclose was necessarily decided in the
first trial. Id. at 229-30. To determine what the jury in the first
trial necessarily decided, the Court must examine “the record of
[the] prior proceeding, taking into account the pleadings,
12
17-30519.1832
evidence, charge, and other relevant matter, and conclude whether
a rational jury could have grounded its verdict upon an issue other
than that which the defendant seeks to foreclose from
consideration.” Id. at 230 (quoting Yeager v. United States, 557
U.S. 110 (2009)).
A review of the trial transcript in Plaintiff’s state court
trial reveals that evidence of Plaintiff’s alleged intoxication
was presented to the jury. However, driving while intoxicated and
resisting arrest are not among the essential elements of the felony
crime of aggravated flight. Compare La. Rev. Stat. § 14:108.1 with
La. Rev. Stat. § 14:98 and La. Rev. Stat. § 40:1390. Further,
Plaintiff admits that “the issues of alcoholic intoxication and
resisting arrest are not among the essential elements of the felony
crime of unlawful flight.” (Rec. Doc. 240-1 at 9.) Moreover,
Plaintiff has not satisfied his burden of proving that the jury
necessarily decided that Plaintiff was not driving while
intoxicated and did not resist an officer. The jury was only asked
to determine whether Plaintiff was guilty of aggravated flight.
Consequently, double jeopardy does not bar subsequent prosecution
of Plaintiff’s misdemeanor charges and is not an exception to the
Younger abstention doctrine. 4
4 To the extent that Plaintiff seeks to re-litigate his “bad-faith prosecution”
arguments the Court refuses to consider such arguments. This litigation spans
a decade, and this Court has on at least two other occasions determined that
Plaintiff is not entitled to injunctive relief for alleged bad-faith prosecution
as to the misdemeanor claims. See Gates v. Strain, No. 07-6983, 2011 WL 2690607
13
17-30519.1833
Plaintiff’s second argument, that prosecution of the misdemeanors
would violate his right to a speedy trial, also lacks merit. In
essence, Plaintiff seeks federal habeas relief. 5 See (Rec. Doc.
240-1, at 10-11.) However, Petitioner is clearly not “in custody”
as defined by 28 U.S.C. § 2254 or 28 U.S.C. § 2241. 6 Although
individuals may be “in custody” despite not being physically
confined, “in custody” means that the petitioner be in custody
under the conviction or sentence under attack at the time the
habeas petition is filed. Robertson v. Brown, No. 113-023, 2013 WL
5723934, at *2 (S.D. Ga. Oct. 21, 2013) (citing Maleng v. Cook,
490 U.S. 488, 490-91 (1989)). Plaintiff has not yet been tried,
let alone convicted, on the pending misdemeanor charges.
Nevertheless, Plaintiff’s argument lacks merit for additional
reasons. Plaintiff asks this Court to enjoin the state court from
prosecuting him on the misdemeanor offenses; he does not request
(E.D. La. July 11, 2011); Rec. Doc. 196, at 3; Rec. Doc. 200, at 4. As previously
noted by this Court, “any ‘new’ evidence of ‘bad-faith,’ ‘manufacturing,’ and
‘altering’ can be presented in [Plaintiff’s] defense and will speak directly to
a jury’s decision as to guilt or innocence on the charges brought.” (Rec. Doc.
200, at 5.)
5 At least twice in his motion Plaintiff requests habeas-type relief. Plaintiff
specifically argues that “he is, again, standing before this Court in the same
essential situation as would a defendant who has been convicted in the state
courts, had that conviction affirmed, and is now seeking collateral post-
conviction vindication of his violated constitutional rights.”
6 It also appears that Plaintiff failed to exhaust his state court remedies
prior to filing for such “habeas” relief, as there has not been a trial on the
merits of the underlying misdemeanor charges, and Plaintiff has not raised his
speedy trial defense. Thus, assuming Plaintiff was convicted of the misdemeanor
offenses, he has yet to appeal the conviction to Louisiana’s highest court,
which means that his claims are unexhausted and barred from habeas review.
14
17-30519.1834
that the state bring him to trial on the misdemeanor offenses. As
noted by the Fifth Circuit in Brown v. Estelle, there is a
distinction between petitioners who seek to dismiss an indictment
or prevent prosecution and those who wish to force the state to go
to trial. 530 F.2d 1280 (5th Cir. 1976). Dismissing an indictment
or preventing prosecution is normally not attainable by way of
pretrial habeas corpus. Id. at 1283. Even assuming this case was
in the proper procedural posture for federal habeas relief, which
it is not, when a federal habeas petitioner asserts a speedy trial
defense, the petitioner is not permitted to derail “a pending state
proceeding by [attempting] to litigate constitutional defenses
prematurely in federal court.” Braden v. 30th Jud. Cir. Ct. of
Ky., 410 U.S. 584, 493 (1973). Rather, “the claimed violation may
be remedied by [a] decision on the merits so that the right is not
irreparably lost if review is postponed until final judgment is
rendered on the merits.” Savoy, 2016 WL 1411310, at *4 (quoting
Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981)).
Accordingly, the requested relief is unwarranted, and Plaintiff’s
speedy trial argument is not an exception to Younger abstention in
this case.
The Court must now determine whether it should dismiss
Plaintiff’s § 1983 lawsuit with prejudice pursuant to Federal Rule
of Civil Procedure 41(b) for failure to prosecute. Rule 41(b) of
the Federal Rules of Civil Procedure provides that a court may, in
15
17-30519.1835
its discretion, dismiss any action based on the failure of the
plaintiff to prosecute or comply with any order of the court. Diaz
v. Guynes, No. 13-4958, 2017 WL 86135, at *2 (E.D. La. Jan. 10,
2017) (citing cases). In determining whether dismissal with
prejudice is warranted for failure to prosecute, courts consider
whether one or more of three “aggravating factors” are present:
(1) delay attributable directly to the plaintiff, rather than his
attorney; (2) actual prejudice to the defendant; and (3) delay
caused by intentional conduct. Callip v. Harris Cnty. Child Welfare
Dept., 757 F.2d 1513, 1519 (5th Cir. 1985). However, the Fifth
Circuit cautions that dismissal with prejudice is reserved for
“the most egregious circumstances.” Id. (quoting Rogers v. Kroger
Co., 669 F.2d 317, 320 (5th Cir. 1982)).
Defendants argue that all of the above-outlined factors are
satisfied in this case. Specifically, Defendants assert that since
2013, Plaintiff has “purposefully evaded the state court system,
even after an attachment for his arrest was issued” and after this
Court ruled that Plaintiff had no grounds to enjoin the state court
proceedings. In response, Plaintiff argues that Defendants “have,
at every turn, obstructed and delayed [Plaintiff’s] prosecution.
. . .” In essence, Plaintiff argues that he has not resolved the
underlying criminal proceedings because they are unlawful and
unconstitutional.
16
17-30519.1836
Dismissal with prejudice is appropriate in this case. As the Court
stated at oral argument, all three “aggravating factors” are
present here. Plaintiff is the sole cause of the delay attributable
to this matter by failing and refusing to respond to a state court
issued warrant for his arrest, and failing to appear for those
state court charges and present any defenses he may have.
Plaintiff’s own attorney admitted to the Court in oral argument
that he does not know if Plaintiff still resides in the United
States, that he does not have an address for Plaintiff’s residence,
and does not know Plaintiff’s telephone number. Thus, it is
apparent that the delay in this case has been caused solely by
Plaintiff’s actions or lack thereof. Second, Defendants have
suffered obvious and actual prejudice as a result of Plaintiff’s
delay. Defendants have had to spend extensive time and money over
the last ten years in defending and responding to this litigation.
Finally, the delay was caused by Plaintiff’s intentional conduct,
there is no other way to explain Plaintiff’s actions. This is
clearly an example of the most egregious of circumstances.
Accordingly, dismissal with prejudice is appropriate.
17
17-30519.1837
CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Injunction and to
Lift Stay (Rec. Doc. 240) is DENIED. Further, the Court finds that
Defendants’ Motion to Lift Stay and Dismiss (Rec. Doc. 243) is
GRANTED, and Plaintiff’s lawsuit is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 24th day of March, 2017.
CARL J. BARBIER
18
17-30519.1838

VERSUS NO. 07-6983, 13-6425
RODNEY JACK STRAIN, ET AL SECTION "J" (2)
JUDGMENT
Considering the court's Order and Reasons dated March 24, 2017 and the court's
Order dated April 17, 2008, and previous court orders filed herein,
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of
defendants, Rodney J. "Jack" Strain, Jr., in both his individual capacity and his official
capacity as former Sheriff of St. Tammany Parish, Deputy Rodney J. "Jack" Strain, Jr., in
both his individual capacity and his official capacity as former Sheriff of St. Tammany
Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, Deputy
Brian Williams, Walter P. Reed, in both his individual and his official capacity as former
Louisiana Attorney General James D. Caldwell, Office of the Louisiana Attorney General,
Judge Richard Schwartz of the 22nd Judicial District Court, Marie-Elise Prieto, in her
Charles M. Hughes, Jr., Philip Duiett, Louisiana Medical Center and Heart Hospital, LLC,
St. Paul Insurance Company, St. Paul Fire and Marine Insurance Company, and against
Plaintiff, Shane M. Gates, dismissing the plaintiff's suit, with prejudice.
17-30519.1839
New Orleans, Louisiana, this 27th day of MARCH, 2017.
17-30519.1840

Shane M. Gates * No. 07-cv-06983

Complainant * Civil Action: §1983
* Section: K
v. * Magistrate: 2
*
Defendants * Consolidated With
* No.13-cv-06425
***************************
RULE 60 MOTION
NOW COMES the Plaintiff, Shane M. Gates, through his undersigned counsel, hereby
moves this Honorable Court pursuant to Rule 60(b)(1), Fed. R. Civ. Proc., to vacate its Judgment
(Rec. Doc. 256) dismissing his Motion to Lift Stay, etc. (Rec. Doc. 239 & 240).
This Court’s Order and Reasons (Rec. Doc. 255) contain errors of both fact and law, as
more fully set forth in the Memorandum in Support of this Motion which is filed contemporane-
ously herewith.
Among the matters to which insufficient attention has been paid, but by no means the
only such matters, are the Hobbs Act1 violations that arose when Walter Reed, the former District
Attorney who has recently been convicted and sentenced for numerous felonies involving
misfeasance in office and whose Office instituted the criminal prosecutions that have been at
issue herein, routinely used his public office for his private profit, such as by using his private
civil law firm to represent the St. Paul Travelers, the insurer for the Sheriff’s Office and other
Defendants herein, all as more specifically set forth in the aforesaid attached Memorandum.
These violations appear to continue because the current District Attorney, Reed’s succes-
Page 1 of 2
17-30519.1841
sor Warren Montgomery, continues officially to represent St Paul Travelers.
Conclusion.
For the reasons set forth in that Memorandum, Shane Gates’ Rule 60 Motion should be
granted, this Court’s Judgment (Rec. Doc. 256) dismissing his civil rights cases should be
vacated, and his prior Motion to Lift Stay, etc. (Rec. Doc. 239 & 240) should be granted.
/s/ J. A. Hollister
JOHN A. HOLLISTER, La. Bar No. 6963
(985) 792-5353
Attorney for Shane M. Gates, Plaintiff
I HEREBY CERTIFY that a copy of the above and foregoing filing will be sent to each
counsel of record herein via the Court’s Electronic Filing System. To the best of the undersigned
counsel’s knowledge, there are no unrepresented parties herein.
/s/ J. A. Hollister
1
18 U.S.C. § 1951, et seq.
Page 2 of 2
17-30519.1842


Complainant * Civil Action
* Section: K
v. * Magistrate: 2
*
* No.13-cv-06425
**************************
MEMORANDUM IN SUPPORT OF RULE 60 MOTION
I. Preliminary Statement.
The civil rights action which is the subject of this instant case arose in the context of a
corrupt District Attorney’s Office in St. Tammany Parish, Louisiana. Not only has the former
District Attorney, Walter Reed, been convicted of 18 Federal felonies, most of them involving
misfeasance in office, but his close associate, Harry Morel, former District Attorney of St.
Charles Parish, has likewise been convicted and sentenced for crimes involving abuse of office
and corruption. So, too, has Peter Galvan, the former Coroner of St. Tammany Parish, another
associate of Reed’s and an elected official who, in typical Reed fashion, Reed attempted to assist
in defending at least one civil suit by initiating a criminal prosecution of Galvan’s plaintiffs.
Woven in and out of these events has been St. Paul Travelers Insurance companies, which
insured many of the elected officials and agencies in St. Tammany Parish. But not only is St.
Paul Travelers the underwriter that would have to pay much of any judgment rendered in favor of
Shane Gates (or almost any other plaintiff against these agencies), throughout the history of this
case St. Paul Travelers has been represented by that same Walter Reed. Indeed, as Reed’s own
Page 1 of 17
17-30519.1843
testimony at his recent criminal trial showed, he derived substantial income from his private (and
undisclosed) representation of this insurer, thus putting that insurer in the constitutionally
intolerable position of having initiated a significant portion of the criminal charges which have
been at issue in these instant proceedings and which have been a major portion of the defendants’
defense strategy herein.
Not only did Walter Reed represent St. Paul Travelers in his private capacity, creating an
irreconcilable conflict of interest, but the current District Attorney, Warren Montgomery, actually
represents St. Paul Travelers in his official capacity. Thus, although Reed is now on his way to
prison, the fact of his replacement as District Attorney cannot be relied upon to assure fair or
impartial handling of the criminal cases Reed instigated for St. Paul Travelers’ benefit.
This manipulation of public officers for the profit of a private corporation is simply unac-
ceptable and constitutes a gross deprivation of substantive due process. These uses of public
office for private profit also constitute criminal violations of the Hobbs Act, 18 U.S.C. § 1951, et
seq.
These conflicted and unconstitutional representations, both by Reed and by Montgomery,
are among the facts that Shane Gates was prepared to place upon the record at the May 16, 2017
hearing upon Shane Gates’ Motion to Lift Stay [Rec. Docs. 239 & 240]. Therefore, of course,
these same facts are among those he was deprived of the opportunity to place on that record.
Indeed, since this action was filed in 2007, for a decade this Court has permitted no discovery,
has examined not one shred of actual evidence, and has heard not one word of testimony
regarding the arrant violations of Shane Gates’ civil rights.
Page 2 of 17
17-30519.1844
II. The Dismissal Of Shane Gates’ Two Civil Suits Was Based On Errors Of Fact.
This Court’s Order and Reasons issued after that May 16, 2017 hearing [Rec. Doc. 255]
contain errors of fact, some of which this Court has incorrectly attributed to Mr. Gates. One of
the most significant of these is the Court’s statement that, after Mr. Gates’ felony trial in St.
Tammany Parish, he disappeared and avoided any contact with the District Attorney’s Office or
the state court. In truth, a number of lawyers, including several representing Mr. Gates, as well
as concerned citizens groups have met with the new District Attorney, Warren Montgomery,
repeatedly about the alleged Gates misdemeanors since Mr. Montgomery took office in January,
2015. However, it took Mr. Gates’ attorneys eighteen (18) months to arrange their first meeting
with Mr. Montgomery himself, which did not occur until November, 2016.
This incorrect statement was the basis for this Court’s decision to dismiss Mr. Gates’ two
civil rights cases, which have been languishing in this Court for ten years because of the actions
of other individuals, not of Mr. Gates himself.
One of the facts that Mr. Gates sought to put on the record on May 16, 2017 is the pattern
and practice in St. Tammany Parish of prosecuting citizens on criminal charges in order to
bolster the Parish’s defense of civil suits against it and its elected officials. (See Affidavits of
Mr. Terry King, Dr. Laura King, and Daniel G. Abel, attached as Exhibits hereto.) Related to
that abuse of the power of criminal prosecution is another pattern and practice of manipulating
the courts and Sheriff’s Office to keep such civil plaintiffs in jail, without bond or without
feasible bonds, in order to compel them to dismiss their civil suits. (See Affidavits of Mr. Terry
King and Daniel G. Abel, attached as Exhibits hereto.) In the instant action, the defendants’
intention to employ the same tactics against Mr. Gates was shown by their ultra vires request to
Page 3 of 17
17-30519.1845
Judge Duvall to compel Mr. Gates to appear in St. Tammany Parish, where he could be arrested
on the misdemeanor charges which, as Mr. Gates has shown, have not only long become
unconstitutionally stale, but which have also been shown to have been instituted and maintained
at the behest of St. Paul Travelers. This intention is clearly in violation of Mr. Gates’ Six
Amendment rights.
Others among the misstatements in the Order and Reasons [Rec. Doc. 255] include:
Page 3: “a blood alcohol test was conducted which resulted in a reading of 0.280—over
three times the legal limit in Louisiana”. In fact, no blood alcohol test was ever proven to have
been conducted nor were any actual blood test results ever produced at the felony trial. No
evidence was ever offered that would have shown the hospital lab’s testing machine was run that
night, nor were any machine logs or other calibration or maintenance documentation produced.
The lab technician who was on duty the night Mr. Gates was stopped, and who was the only
person who could have run any such test, died during the long pretrial delay and so did not
appear at trial. Prior to his death, he never gave any testimony that he had, in fact, run any such
test.
The emergency room nurse who drew the blood sample testified that he drew the blood
but then placed it on a desk in the E.R., never saw it thereafter, and had no knowledge either that
was actually delivered to the hospital laboratory or what might have happened to it thereafter.
The State attempted to circumvent the complete lack of evidence either of an actual blood
test or of any chain of custody of the blood sample by producing an unverified printout that
purported to repeat the results of a blood test but, as Mr. Gates was prepared to show on May 16,
2017, that printout—which was never attested to by any records custodian from the hospital—
Page 4 of 17
17-30519.1846
was not a normal laboratory test report but was merely a word processing document that could
have been generated by any hospital employee who had access to any nurses’ station computer in
the hospital. (See Affidavit of Keely Crozat Anglin, attached as an Exhibit hereto.) Among
others, the wife of Jack Strain, at the time the St. Tammany Parish Sheriff, was one of the
hospital’s employees who would have had such access. (See Affidavit of Daniel G. Abel,
attached as an Exhibit hereto.)
Not only was the alleged blood alcohol printout highly suspicious in and of itself, but the
State’s own witness—the Toxicologist for the St. Tammany Parish Coroner’s Office—testified
that if Mr. Gates had had a blood alcohol concentration of 0.273, as the State alleged, then (a) he
could neither have driven a car nor even spoken intelligibly, as the arresting officers testified he
did, and (b) when the doctors at Forest General in Hattiesburg, Mississippi, operated on Mr.
Gates that night, and gave him Demerol prior to sewing him up, the Demerol would have killed
him. Where Mr. Gates is still very much alive, the State’s own witness thus established that it
was a physical and biological impossibility for him to have had a blood alcohol level of 0.273 as
the State claimed.
Page 3: The Court stated that St. Paul Travelers’ attorney defending the Sheriff’s Office,
Charles Hughes, may have called the District Attorney’s Office and used the fabricated Nathan
Miller letter to obtain the additional Resisting Arrest charge to invoke the Heck vs. Humphries
doctrine to block Mr. Gates’ §1983 Excessive Force claim from going forward against the Sheriff
and St. Paul Travelers. In fact, evidence already in the record of the state court proceedings—
including the sworn testimony of both Charles Hughes and Ronald Gracianette—has established
that ADA Ronald Gracianette unquestionably filed that charge at the request of Charles Hughes
Page 5 of 17
17-30519.1847
and that to induce him to do so, Hughes furnished him with the forged Nathan Miller letter.
Similar evidence below also established that Nathan Miller had nothing to do with the confection
of the letter that purported to have been authored by him and that Hughes delivered to Gra-
cianette. (See Daniel Abel Affidavit, attached as an Exhibit hereto.)
Pages 4 & 5: This Court states that at some unspecified time Mr. Gates was served with
notice of a Misdemeanor Trial (which in fact the State never even attempted to schedule until
2012, six years after his initial traffic stop). In fact, between 2006 and 2012, Mr. Gates appeared
in court in St. Tammany on over 50 occasions, each time solely in connection with the felony
case against him, and on several of which the state trial judge asked the Assistant District
Attorney about the status of the misdemeanor charges, only to be told that the State had no
interest in those charges. Mr. Gates was never served with any notice in any misdemeanor case
and the State never even attempted to generate any such notice until six years after he was first
stopped and given a traffic ticket.
Even after Mr. Gates was found not guilty at his felony trial, he continued to reside in St.
Tammany Parish and his address remained on file with the St. Tammany Parish authorities, but
those authorities never attempted to serve him at his residence. (See Daniel Abel Affidavit,
attached as an Exhibit hereto.)
Pages 6 & 7: This Court stated that due to Mr. Gates “inaction in this lawsuit” it should
be dismissed. The fact is that since Mr. Gates filed his first 42 U.S.C. § 1983 suit in 2007, this
Federal Court, not Mr. Gates, has stayed any action in those cases and has done so at the request
of the defendants, not Mr. Gates. He has repeatedly asked this Court to open these cases and let
them go forward to discovery and trial.
Page 6 of 17
17-30519.1848
Pages 8, 9, & 10: This Court stated that Mr. Gates had adequate opportunity to raise con-
stitution issues but denies that he did so. This Court also said the State can provide an adequate
remedy for his constitutional claims. The fact is that Mr. Gates filed his first motion for Speedy
Trial in 2008 and subsequently filed others. However, the state court refused ever to set any of
his Speedy Trial or Double Jeopardy motions for trial until after he was discharged at his felony
trial. When the state court took up and denied those motions, Mr. Gates took writ applications to
the Louisiana Court of Appeal for the First Circuit and to the Louisiana Supreme Court. (See
Daniel Abel Affidavit, attached as an Exhibit hereto.) The essence of “double jeopardy” is, of
course, that a criminal defendant should not be brought twice to trial upon the same operative
evidence, it is not that he can be tried for a second time and then, only if he is convicted at that
second trial, seek to assert his double jeopardy rights by way of an appeal on the merits. That
suggestion would render the whole “double jeopardy” principle meaningless.
Pages 12 & 13: This Court stated that the constitutional protection against double jeop-
ardy only applies only to the title of the charges urged by the State and not to the evidence
actually presented by the State in its attempt to prove those charges. This is contrary to the
United States Supreme Court’s case law, as cited in Mr. Gates’ prior pleadings, and among the
facts Mr. Gates expected to establish at the evidentiary hearing he was denied was the manner in
which the State used its alleged evidence of intoxication and resisting arrest at his felony trial,
thus invoking the “evidentiary use” branch of the double jeopardy rule.
Page 17: This Court stated that Mr. Gates was at fault because he caused the defendants
(including effectively St. Paul Travelers) to lose time and money. This appears to be the result of
an incident during the oral argument, when this Court asked the Assistant District Attorney
Page 7 of 17
17-30519.1849
representing the District Attorney’s office: “Who will have to pay Mr. Gates if he prevails? The
ADA replied: “Our Office”. This creates the unfortunate appearance that the Court’s primary
concern was protecting the financial interests of St. Paul Travelers, the DA’s Office, and other
defendants, rather than Mr. Gates’ Federal and state constitutional and due process rights of Mr.
Gates.
III. This Court’s Refusal To Hear Shane Gates’ Civil Rights Suits On Their Merits Has
Frustrated His Attempts To Vindicate His Constitutional Rights.
For more than ten years, this Court has refused to hear any witnesses and consider any
evidence regarding the Defendants’ fabrication of evidence and the Hobbs Act crimes which
violate Mr. Gates’ constitutional rights, and which form the basis of Shane Gates’ second §1983
suit. This Court has never examined one piece of the evidence of fraud which is the basis
underlying the Rule 60 motion. That evidence and the witnesses’ affidavits are cited in this
Memorandum in Support herein and attached as Exhibits hereto.
This Court has failed to appreciate the significance of the fact that now-convicted former
District Attorney Walter Reed and his private firm McCrainie Sistruck represented the Sheriff’s
officers who beat up Mr. Gates and whose office was intimately implicated in fabricating some
of the evidence requested by St. Paul Travelers who insured the Sheriff’s Office and the District
Attorneys and Parish as well. St. Paul Travelers insurance also insured the Lacombe Heart
Hospital which was previously a named party in this action previously (and during the pendency
of the St. Tammany Parish proceedings, 22nd JDC Judge Richard Swartz failed to disclose that
prior to taking the bench, he represented one of the physician owners of the defendant Heart
Hospital and that even subsequent to that, that same doctor was Judge Swartz and his wife’s the
Page 8 of 17
17-30519.1850
treating physician, including for the purposes of an automobile accident case in which they were
involved.
On March 16, 2017, Shane Gates, through his counsel, was prepared to put on testimony
by Daniel Abel, who has given an Affidavit setting forth the facts he would then have testified to.
(This Affidavit is an Exhibit hereto.)
Similarly, Terry King was prepared to testify on March 16, 2017 and has likewise given
an Affidavit setting forth the facts he would have testified to. (This Affidadvit is also an Exhibit
hereto.)
IV. Law And Argument.
Mr. Gates and counsel filed this Rule 60 motion under the Federal Rules of Civil Proce-
dure Rule 60, which states that the grounds for relief include “(b) (1) mistake, inadvertence,
surprise, or excusable neglect [including by The Trial Court]; (3) fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; and (6) any
other reason that justifies relief.”
This Court dismissed Mr. Gates’ two civil suits, holding that Mr. Gates refused to prose-
cute his case by failing to appear for the continuing fraudulent prosecution in St. Tammany,
although he had appeared in the St. Tammany courts over 50 times in the last ten years and the
St. Tammany jury found him not guilty of all the charges brought by the District Attorney, more
than four years ago. Mr. Gates was never served with notice of the misdemeanor trial, although
the time for any misdemeanor trial had passed years before and would be prevented by the
principle of speedy trial and double jeopardy as well—all evidence of which is cited and attached
in this Memorandum in Support.
Page 9 of 17
17-30519.1851
The Order and Reasons (Rec. Doc. 255) contain Errors of Fact on which was based the
Judgment dismissing Mr. Gates 42 U.S.C. § 1983 civil rights case with pendent Louisiana law
claim, which judgment was issued on 27 March 2017 [Rec. Doc. 256].
As Mr. Gates was unable directly to present his evidence of the fraud and Hobbs Act
crimes underlying his prosecution in St. Tammany, those documents and that testimony are
attached to this Rule 60 Motion by way of Exhibits.
Former District Attorney Walter Reed prosecuted Mr. Gates for Aggravated Flight over
six years, but at the end of a week-long trial, the twelve-person St. Tammany Parish Jury found
Mr. Gates not guilty of the Aggravated Flight charge that was brought to trial. Resisting Arrest
charge was a lesser charge which was not brought to trial by Reed’s Office although it was
initially requested by Sheriff’s Attorney Chuck Hughes and was instituted in response to his
request after he furnished the DA’s Office with the fabricated Nathan Miller “deputy as victim”.
V. Chronology Of Facts.
1. Mr. Gates’ automobile was mistakenly identified and stopped on I-12 at

the Bayou Lacombe Bridge on November 16, 2006.
2. Mr. Gates was handcuffed and beaten up by St. Tammany Parish Dep-
uty Roger Gottardi.
3. Mr. Gates was charged with Obstruction of a Highway of Commerce

that night.
4. Mr. Gates was subsequently billed with Aggravated Flight and Resist-
ing Arrest at the request of Sheriff’s Attorney Chuck Hughes, using and introduc-
ing into evidence a fabricated letter which Deputy Nathan Miller subsequently
under oath, testified that he had never seen, never written, and never authorized.
5. ADA Ronnie Gracionette testified that Walter Reed’s office did not
need to charge Gates with Resisting Arrest as they have already charged him with
the great charge of Aggravated Flight; but that they did so at the request of Sher-
iff’s attorney Chuck Hughes, after Hughes provided the District Attorney with the
Page 10 of 17
17-30519.1852
forged Nathan Miller letter, which the Court subsequently confirmed, though the
sworn testimony of Nathan Miller himself, was forged.
6. The Hughes and Grancianette testimony was presented during the hear-
ing to recuse the District Attorney which Judge William Crain, the later-
acknowledged, life-long, best friend of Chuck Hughes (a relationship never dis-
closed but discovered in campaign materials where Hughes endorsed Judge Crain
for a position with the Louisiana First Circuit Court of Appeal), presided over and
denied.
7. Over a period of six years, District Attorney Walter Reed prosecuted

Mr. Gates for Aggravated Flight but on July 27, 2012, at the end of a week-long
trial, the twelve-person St. Tammany Parish Jury found Mr. Gates not guilty of all
the charges brought to trial, and decided. The Resisting Arrest charge was a lesser
charge but was not brought by Mr. Reed to trial—but was initially requested by
Sheriff’s Attorney Chuck Hughes—and instituted by the introduction into evi-
dence of the fabricated Nathan Miller “Deputy as Victim” letter.
8. Mr. Gates filed a federal 42 U.S.C. §1983 action against Deputy Got-
tardi, the Sheriff, and others before prescription in 2007.
9. District Attorney Walter Reed’s private law firm McCranie Sistrunk

enrolled and represented defendants Gottardi, the Sheriff, the Sheriff’s Insurance
Carries and other related defendants; Counsel Mark Hanna of McCranie Sistrunk
appeared as lead counsel from McCranie Sistrunk for these defendants.
10. District Attorney Walter Reed’s private law firm McCranie Sistrunk
represented the defendants in the federal matter while District Attorney Reed’s
public office prosecuted Mr. Gates in the criminal matter in the 22nd Judicial Dis-
trict Court for the Parish of St. Tammany.
11. Having lost the felony trial, the District Attorney and the Court at-
tempted to bring the “Resisting Arrest” charges to trial, to be heard at a judge trial,
conducted by Judge Richard A. Swartz, a former assistant district attorney for
Walter Reed, endorsed, supported, and unopposed for election through Walter
Reed’s support.
12. District Attorney Reed’s continued prosecution of Mr. Gates was done
in order to secure a Heck v Humphries “Resisting Arrest Conviction” which, at the
time, would have precluded Mr. Gates from going forward with his “excessive
force” claims under 42 U.S.C. § 1983. (The Defendants claim that the “excessive
force” claim was the only one brought by Mr. Gates; it was actually one of 6 or 8
claims averred in his Complaint]. The consolidated action against Judge Swartz
and others, has nothing to do with the excessive force claims—those barred by
Page 11 of 17
17-30519.1853
Heck v. Humphries—and Gates has not been allowed to introduce any evidence or
call any witnesses to establish this contradiction. Gates is again being barred and
has been barred from a evidentiary hearing for over 4 years.
13. Although Mr. Gates gave the clerk of court a current address for ser-
vice, the Sheriff did not serve Mr. Gates at that address and the trial set for August
8, 2013, did not go forward. (The records of all service attempts, which prove
that he was not in fact served and that the Sheriff never attempted service at Mr.
Gates’ actual address which he had provided to the state court, have been obtained
from the state court’s files.)
14. Over the last eight years, Mr. Gates has uncovered the relationship be-
tween District Attorney Walter Reed and his “Of Counsel” status with the
McCranie Sistrunk firm which confirms and is probative of the fact that Mr. Reed
has used his public office to secure a “stream of benefits” for himself, his private
law firm, their clients, and their insurance carriers such as violate 18 U.S.C. 1951,
et al. under the Hobbs Act.
15. District Attorney Walter Reed’s continued false prosecution of Mr.

Gates has been paid for by the St. Tammany Parish Taxpayers and with federal
funds which expenditures also accrue to the benefit of Reed, the McCranie Sis-
trunk firm, their clients the named defendants in this matter, and insurance carri-
ers.
In 2007, when Shane Gates’ first suit was filed, he did not possess evidence of the myriad
ways Reed’s benefitted personally and financially from his civil firm’s representation of Gottardi
and the St Paul Travelers insurance companies. Only recently, and in particular from Reed’s own
testimony at his felony trial, did Gates discover that DA Reed’s “Of Counsel” status with
McCranie Sistrunk (which represented Gottardi and the insurance carriers) was a specific conduit
for large money payments from that firm to Reed. When Reed joined the McCranie Sistrunk
firm, he announced that “… he found no conflict of interest associating with the firm, especially
because it takes no criminal cases”. He did not disclose that his firm McCranie Sistrunk
represents insurance companies that underwrite the Sheriff, as in the Gates case, and that Reed’s
continued prosecution after the jury found Gates not guilty was for his personal advantage and
Page 12 of 17
17-30519.1854
that of his firm and its clients, including St. Paul Travelers.
Throughout these two cases there have been clearly-demonstrable Hobbs Act violations,
which, in turn, mean that Mr. Gates could never have a fair and impartial trial in St. Tammany
Parish. This evidence includes, but is not limited to, the sworn testimony (see Daniel Abel
Affidadvit, attached as an Exhibit hereto) that Sheriff’s Attorney Chuck Hughes told Gates’
counsel directly that if Gates filed a §1983 action in Federal court, Hughes would call the DA’s
Office and have the “Resisting Arrest” charge added so as to block Gates’ recovery on that civil
rights suit. It also includes Hughes’ own testimony that he did, in fact, have that charge added,
and in order to obtain it presented the DA’s Office with the forged Nathan Miller letter.
Nine years ago, on April 16, 2008, this Court first stayed these proceedings but stated that
Shane Gates could ask that the stay to be lifted in six months if the underlying matters had not
been resolved [Rec. Doc. 81]. Since that time, Shane Gates, in good faith, went through a felony
trial in St. Tammany Parish, in connection with which the State not only compelled him to run
the gantlet of its “evidence” of his alleged driving while intoxicated and of his alleged resisting
arrest, but repeatedly assured the state trial court it had no intention of moving forward with any
misdemeanor prosecution. At that trial, by the way it introduced that “evidence”, the State shot
its bolt with respect to those evidentiary facts and is now barred from ever again introducing that
same evidence in order to prove the elements of any alleged crime.
Thus Mr. Gates complied with Judge Duvall’s 2008 directive and these matters should
now be moved forward to trial on their merits.
Until January, 2009, Sheriff’s Attorney Charles Hughes had reasonable grounds for his
belief that Shane Gates’ conviction of Resisting Arrest that conviction would bar any subsequent
Page 13 of 17
17-30519.1855
excessive force claim under 42 U.S.C. §§ 1983, et seq. Hughes and his co-counsel had a similar
excessive-force claim dismissed in the Holly Bush v. Strain case—where St. Tammany Sheriff‘s
Deputies had slammed Miss Bush into the windshield of a car after they handcuffed her. In the
trial court, her excessive force claim was dismissed under the interpretation of Heck v. Humphery
which prevailed in the United States Fifth Circuit until January of 2009.
On January 14, 2009, the U. S. Fifth Circuit overturned the trial court’s dismissal, rein-
stated Holly Bush’s claim, and the Sheriff’s Office paid her for her injuries. But, the United
States Fifth Circuit overturned the district court’s ruling and distinguished the temporal and
conceptual distinction between the facts and ruling in Bush and Heck. In this instant case,
therefore, Hughes, in concert with the District Attorney, attempted to do to Gates what they also
attempted to do to Holly Bush, only their intention to bar her civil action was frustrated by the
Fifth Circuit’s more nuanced application of Heck.
This Court should determine whose interests are at stake. To do so, it should know who
is paying the District Attorney’s and the Sheriff’s attorney fees—the taxpayers or insurance
company—and who could be liable for the civil judgment. If insurance companies pay the legal
fees for either or both the District Attorney or the Sheriff and counsel for one can ask the other to
press resisting arrest charges that would benefit the carrier financially, then this conflict of
interest is a material consideration the Courts should take into account.
While certain of the defendants may not be recipients of the benefits of the extortion
visited upon Gates, the corpus of the corrupt benefits certainly accrued to some of the parties
including the defendant public agencies and St. Paul’s insurance—who would have otherwise
been obligated to compensate Gates and other persons similarly situated for the injuries and
Page 14 of 17
17-30519.1856
damages done. Evans v. United States, 504. U.S. 255 (1992) and United States v. Margiotta, 688
F.2d 108, 130.
The Defendants’ clear violations of the Hobbs Act are in evidence of their bad-faith
prosecution of Shane Gates, which is itself sufficient reason for this Court to enjoin the state
court misdemeanor prosecution. Counsel for the DA have implied that the actions of the DA’s
Office, and of the Assistant Ds as well, are never subject to review. Nothing could be farther
from the truth. District Attorneys and their assistants, as quasi-judicial officials, must be held to
the same standards as other public officials associated with the judiciary. The Code of Judicial
Conduct applies to them and a breach of that Code calls for removal. The District Attorney’s
complicity in these matters and his and his Assistants’ involvement in the Sheriff’s Office’s
fabricating the purported Nathan Miller “Deputies as Victims” letter, strongly suggests violation
of that Code of Judicial Conduct and the Hobbs Act, was clearly done for the purpose of personal
gain for the Sheriff, his deputies and their insurance carrier, and creates an insurmountable
appearance of impropriety:
Canon 1: [They] must … personally observe, high standards of conduct

so that the integrity and independence of the judiciary may be preserved.
Canon 2 (A): [They] … shall act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary.
As used in this Code, “impartiality” or “impartial” denotes absence of
bias or prejudice in favor of, or against, particular parties or classes of parties….
Canon 2 (B): [They] shall not convey or permit others to convey the im-
pression that they are in a special position to influence…..
Canon 3 (A)(1): [They] shall be unswayed by partisan interests….
The clearly-documented actions of the Assistant District Attorneys and the Sheriff dis-
courage public confidence in the integrity and impartiality of the judicial system. Their actions
confirm what the public already widely suspects—prosecutors file charges to cover up the abuses
Page 15 of 17
17-30519.1857
that police visit on citizens and to protect those officers from the ramifications of the own actions
and now to protect the insurance companies who provide coverage for their actions.
The facts underlying Shane Gates’ claims are undisputed:
(1) Two Sheriff’s deputies beat up Gates after he was handcuffed, causing
his doctors to take 287 CT Facial scans and 34 CT Brain scans and diagnose that
he has permanent nerve damage and the prognosis of four (4) corrective surgeries.
(2) “Cover charges” were filed to obstruct Gates’ right to redress of the
deputies’ violation of his constitutional rights.
(3) Ten months after the incident the Sheriff’s attorney had the District
Attorney charge Gates additionally with resisting arrest. Sheriff’s attorney
Charles M. Hughes told Abel that they were going to do so specifically to block
the constitutional rights and 42 U.S.C. § 1983 claims Gates might advance.
(4) ADA Ronald Gracianette told Gates’ Attorney, August J. Hand, that
he would dismiss the charges if Gates would release the sheriff deputies from li-
ability for his injuries and their violations of his constitutional and civil rights.
(6) Counsel for the District Attorney now argues that Mr. Gates filed suit
to broker a better deal from the District Attorney. But the District Attorney could
offer no better deal than the one already offered by Gracianette.
(7) Attorney Daniel Abel met with Attorney Hughes at Hughes Office in
Mandeville at 1:30 P.M. on 24 July 2007.
(8) Sheriff’s attorney Charles M. Hughes, Jr. told Abel that he would call
the DA and have Gates charged with resisting arrest, expressly for the purpose of
obstructing or preventing any redress of the violation of Gates’ civil rights, which
on the Friday before the Monday morning trial—Hughes did just that.
(9) Hughes called ADA Bruce Dearing the afternoon of Friday before the
Monday trial. Dearing called Gates’ attorney August Hand immediately after he
had spoken with Mr. Hughes—on that same day. Hand called Abel as soon as he
got off the phone with Dearing.
(10) Three (3) days later, on the Monday of trial the DA’s Office re-
charged Gates with the exact charges threatened by Hughes, expressly for the pur-
pose of obstructing or preventing Gates from seeking redress for his injuries and
from the violations of his constitutional and civil rights.
Page 16 of 17
17-30519.1858
While it is not unknown for prosecutors and sheriffs file cover charges of this type, this
instance is unique as every step in the cover-up was documented and discovered before trial took
place. The concerted actions between the DA’s Office and the Sheriff’s counsel for the Sheriff
violate the Canons of Judicial Conduct and Gates’ constitutional rights. When the DA’s Office
argued that every time a defendant wants to challenge a prosecution, he will file a motion to
recuse the District Attorney, Judge DiMiceli replied that “no one would see facts like these again
in years.”1
VI. Conclusion.
For the foregoing reasons, Shane Gates’ Rule 60 Motion should be granted, this Court’s
Judgment dismissing his civil rights cases should be vacated, and his prior Motion to Lift Stay,
etc. (Rec. Doc. 239 & 240) should be granted.
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
1
Transcript of Hearing, page 40.
Page 17 of 17
17-30519.1859


* Section: K
v. * Magistrate: 2
*
Sheriff Rodney Jack Strain, et al. * Consolidated With
Defendants * No. 13-cv-06425
*
**************************
EXHIBITS TO MOTION
PLEASE TAKE NOTICE that, pursuant to customary Electronic Case Filing practice,
and due to the inability of the Electronic Case Filing system to process the volume of data and
metadata involved in the numerous and lengthy Exhibits to this Motion, undersigned counsel for
the Movant will separately provide the Clerk of this Court and counsel for all opposing parties
with those Exhibits, burned onto standard computer-readable compact disks (CDs).
These CDs will be delivered to the Clerk of Court and to counsel for all parties, by hand
or by U.S. Mail, during the week of April 24, 2017.
/s/ J. A. Hollister
(985) 792-5353
17-30519.1860


* Section: K
v. * Magistrate: 2
*
* No. 13-cv-06425
**************************
OF RULE 60 MOTION
PLEASE TAKE NOTICE that on August 2, 2017, at 9:30 A.M., the pending Rule 60
Motion of Shane M. Gates, Complainant herein, will be submitted to this Honorable Court.
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
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SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

his official capacity; ST. TAMMANY DISTRICT CARL J. BARBIER
ATTORNEY’S OFFICE; ATTORNEY CHARLES * SECTION “J”
LLC/and previously as LOUISIANA HEART * * Consolidated With
HOSPITAL, LLC; LACOMBE NURSE PHILIP * No.13-cv-06425
*
Defendants.
MOTION AND ORDER TO WITHDRAW COUNSEL
Hospital, L.L.C.) and Mr. Philip Dueitt, who respectfully move to withdraw Byron D. Kitchens
as counsel of record on their behalf.
17-30519.2484
(“LHH”) and Mr. Philip Dueitt pray that Byron D. Kitchens be withdrawn as counsel of record
for Louisiana Medical Center and Heart Hospital, L.L.C. and Mr. Philip Dueitt.
/s/Nancy A. Cundiff _________________

NANCY A. CUNDIFF (#27974)
COTTEN SCHMIDT & ABBOTT, LLP
650 Poydras Street, Suite. 2810
Telephone: (504) 568-9393
Attorneys for Louisiana Medical Center
and Heart Hospital, L.L.C. and Mr. Philip
Dueitt
/s/Nancy A. Cundiff_______
NANCY A. CUNDIFF
2
17-30519.2485
SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
ORDER
IT IS HEREBY ORDERED that the Motion to Withdraw Counsel submitted by the
defendants, Louisiana Medical Center and Heart Hospital, L.L.C. (“LHH”) (formerly known as
Louisiana Heart Hospital, L.L.C.) and Mr. Philip Dueitt, be granted in the above-entitled and
numbered cause.
___________________________________
JUDGE
17-30519.2486

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MOTION TO RE-SET SUBMISSION DATE
Deputy Brian Williams, Walter P. Reed, in his official capacity as former District Attorney for
the 22nd Judicial District Court, Assistant District Attorney Ronald Gracianette, former Assistant
District Attorneys Nicholas F. Noriea, Jr., and Kathryn Landry, Marie-Elise Prieto, in her
individual and her official capacity as former Clerk of Court for the Parish of St. Tammany, and
Charles M. Hughes, Jr., to respectfully move this Honorable Court to re-set the submission date
for the Plaintiff’s recently filed Rule 60 Motion (R. Doc. 258) from August 2, 20171 to May 24,
2017. Undersigned counsel for former Sheriff Rodney J. “Jack” Strain, Jr., called counsel for
Plaintiff on April 25, 2017, to inquire as to whether plaintiff had any opposition to the filing of
this motion, and as of the time of this filing, plaintiff’s counsel has not returned undersigned
counsel’s call.
1
See R. Doc. 258-3
89240/443011
Page 1 of 3
17-30519.2487
WHEREFORE, Movers pray that the submission date for plaintiff’s recently filed Rule
60 Motion be re-set for May 24, 2017.

Thomas S. Schneidau (#33359) Louisiana Department of Justice
MILLING BENSON WOODWARD L.L.P. Litigation Division
68031 Capital Trace Row P.O. Box 94005
Mandeville, Louisiana 70471 1885 North 3rd St.
Telephone: (985) 292-2000 Baton Rouge, LA 70804-9005
Facsimile: (985) 292-2001 Telephone: (225) 326-6300
ccollings@millinglaw.com Facsimile: (225) 326-6192
Counsel for Rodney J. "Jack" Strain, Jr., sandersd@ag.louisiana.gov.
in both his individual capacity and his Counsel for the Louisiana Attorney
official capacity as former Sheriff of St. General, former Attorney General James
Tammany Parish, Deputy Nathan Miller, D. Caldwell, and Judge Richard Schwartz
Deputy Roger Gottardi, Captain Kathy of the 22nd Judicial District Court
s/ Cary J. Menard__________________ s/ Richard T. Simmons_________________

Cary J. Menard, T.A (#9426) Richard T. Simmons, Jr., T.A. (#12089)
Telephone: (985) 809-8374 P. O. Box 8288
Landry
89240/443011
Page 2 of 3
17-30519.2488
s/ Thomas H. Huval___________________
Thomas H. Huval, T.A. (#21725)
Jones Fussell LLP
P.O. Box 1810
Northlake Corporate Park, Suite 103
1001 Service Rd East, US Hwy 190
Covington, La 70433
Telephone: (985) 892-4801
Facsimile: (985) 259-8003
thuval@jonesfussell.com
Prieto, in her individual and official
capacity
Court of the United States District Court for the Eastern District of Louisiana on April 26, 2017,
89240/443011
Page 3 of 3
17-30519.2489

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MOTION TO RE-SET SUBMISSION DATE
Roger Gottardi, Captain Kathy Sherwood, Deputy Brian Williams, Walter P. Reed, in his official
capacity as former District Attorney for the 22nd Judicial District Court, Assistant District
Attorney Ronald Gracianette, former Assistant District Attorneys Nicholas F. Noriea, Jr., and
Kathryn Landry, former Louisiana Attorney General James D. Caldwell, Office of the Louisiana
Attorney General, Judge Richard Schwartz of the 22nd Judicial District Court, Marie-Elise
Tammany, and Charles M. Hughes, Jr. (hereinafter, "Defendants"), each and all appearing herein
through undersigned counsel, to respectfully move this Honorable Court to re-set the submission
date for plaintiff's Rule 60 Motion (R. Doc. 258) to May 24, 2017 at 9:30 a.m., for the following
reasons:
89240/443013
Page 1 of 4
17-30519.2490
1.
Plaintiff, Shane Gates, in response to this Honorable Court’s granting of the Defendants’
Motion to Dismiss filed a Rule 60 Motion on April 24, 2017 (R. Doc. 258).
2.
Plaintiff filed a Notice of Submission on the Rule 60 Motion setting the date for August
2, 2017 (R. Doc. 258-3).
3.
Defendants do not believe such a delay is warranted and would request that this
Honorable Court re-set the submission date to May 24, 2017, without oral argument.
4.
Undersigned counsel for former Sheriff Rodney J. “Jack” Strain, Jr., called counsel for
Plaintiff on April 25, 2017, to inquire as to whether plaintiff had any opposition to the filing of
this motion, and as of the time of this filing, plaintiff’s counsel has not returned undersigned
counsel’s call.
WHEREFORE, Defendants pray that the submission date for plaintiff's Rule 60 Motion
be re-set to May 24, 2017 at 9:30 a.m.
89240/443013
Page 2 of 4
17-30519.2491

Thomas S. Schneidau (#33359) Louisiana Department of Justice
MILLING BENSON WOODWARD L.L.P. Litigation Division
68031 Capital Trace Row P.O. Box 94005
Mandeville, Louisiana 70471 1885 North 3rd St.
Telephone: (985) 292-2000 Baton Rouge, LA 70804-9005
ccollings@millinglaw.com Facsimile: (225) 326-6192
Counsel for Rodney J. "Jack" Strain, Jr., sandersd@ag.louisiana.gov.
in both his individual capacity and his Counsel for the Louisiana Attorney
official capacity as former Sheriff of St. General, former Attorney General James
Tammany Parish, Deputy Nathan Miller, D. Caldwell, and Judge Richard Schwartz
Deputy Roger Gottardi, Captain Kathy of the 22nd Judicial District Court
s/ Cary J. Menard__________________ s/ Thomas H. Huval___________________

Cary J. Menard, T.A (#9426) Thomas H. Huval, T.A. (#21725)
22nd Judicial D.A.'s Office Jones Fussell LLP
701 N Columbia Street P.O. Box 1810
Covington, LA 70433 Northlake Corporate Park, Suite 103
Telephone: (985) 809-8374 1001 Service Rd East, US Hwy 190
cmenard@22da.com Covington, La 70433
capacity as former District Attorney for the Facsimile: (985) 259-8003
22nd Judicial District Court, Assistant thuval@jonesfussell.com
District Attorneys Ronald Gracianette and Counsel for the former Clerk of Court for
former Assistant District Attorneys the Parish of St. Tammany, Marie-Elise
Nicholas F. Noriea, Jr., and Kathryn Prieto, in her individual and official
Landry capacity
s/ Richard T. Simmons_________________
& Papale
P. O. Box 8288
Telephone: (504) 836-6500
rsimmons@hmhlp.com
89240/443013
Page 3 of 4
17-30519.2492
Court of the United States District Court for the Eastern District of Louisiana on April 26, 2017,
89240/443013
Page 4 of 4
17-30519.2493

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
ORDER
Considering the Motion to Re-Set Submission Date filed by various Defendants;
IT IS HEREBY ORDERED that the submission date for plaintiff's Rule 60 Motion (R.
Doc. 258) is re-set for May 24, 2017, at 9:30 a.m., without oral argument.
New Orleans, Louisiana, this __ day of __________________, 2017.
_______________________________________________
Carl J. Barbier
United States District Court Judge
89240/443012
17-30519.2494

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
MOTION TO WITHDRAW AND

SUBSTITUTE COUNSEL OF RECORD
Hospital, L.L.C.) and Mr. Philip Dueitt, who respectfully requests that this Honorable Court
issue an Order substituting Nancy A. Cundiff as counsel of record for Louisiana Medical Center
and Heart Hospital, L.L.C. (“LHH”) (formerly known as Louisiana Heart Hospital, L.L.C.) and
17-30519.2495
Mr. Philip Dueitt and, further, withdrawing Byron D. Kitchens as counsel of record on their
behalf as he is no longer with the firm of Cotten Schmidt & Abbott.
(“LHH”) and Mr. Philip Dueitt pray that Nancy A. Cundiff be substituted for Byron D. Kitchens
and that he be withdrawn as counsel of record for Louisiana Medical Center and Heart Hospital,
L.L.C. and Mr. Philip Dueitt.
/s/Nancy A. Cundiff _________________

NANCY A. CUNDIFF (#27974)
COTTEN SCHMIDT & ABBOTT, LLP
650 Poydras Street, Suite. 2810
Telephone: (504) 568-9393
Attorneys for Louisiana Medical Center
and Heart Hospital, L.L.C. and Mr. Philip
Dueitt
/s/Nancy A. Cundiff_______
NANCY A. CUNDIFF
2
17-30519.2496
SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
ORDER
IT IS HEREBY ORDERED that this Motion to Withdraw and Substitute Counsel of
Record be granted in the above-entitled and numbered cause.
IT IS FURTHER ORDERED Byron D. Kitchens be withdrawn as counsel of record for
Louisiana Medical Center and Heart Hospital, L.L.C. (formerly known as Louisiana Heart
Hospital, L.L.C.) and Mr. Philip Dueitt as he is no longer with the law firm of Cotten Schmidt &
Abbott.
17-30519.2497
IT IS FURTHER ORDERED that Nancy A. Cundiff of the law firm of Cotten Schmidt
& Abbott be substituted for Byron D. Kitchens as counsel of record for Louisiana Medical
Center and Heart Hospital, L.L.C. and Mr. Philip Dueitt.
___________________________________
JUDGE
4
17-30519.2498

SHANE M. GATES, *
Complainant, *
vs. * NO. 2:07-cv-06983

*
Defendants.
ORDER
Considering the foregoing Motion to Substitue and Withdraw (R. Doc. 263),
IT IS HEREBY ORDERED that the motion is GRANTED.
IT IS FURTHER ORDERED Byron D. Kitchens be withdrawn as counsel of record for
Louisiana Medical Center and Heart Hospital, L.L.C. (formerly known as Louisiana Heart
Hospital, L.L.C.) and Mr. Philip Dueitt as he is no longer with the law firm of Cotten Schmidt &
Abbott.
17-30519.2499
IT IS FURTHER ORDERED that Nancy A. Cundiff of the law firm of Cotten Schmidt
& Abbott be substituted for Byron D. Kitchens as counsel of record for Louisiana Medical
Center and Heart Hospital, L.L.C. and Mr. Philip Dueitt.
New Orleans, Louisiana this ____ May

1st day of ________________, 2017.
____________________________
CARL J. BARBIER
17-30519.2500

VERSUS No. 7-6983

C/W 13-6425
RODNEY JACK STRAIN SECTION: “J”(2)
ORDER
On April 26, 2017, several Defendants filed a Motion to
Expedite (R. Doc. 261) the submission date on Plaintiff’s Motion
for Reconsideration (R. Doc. 258). Plaintiff’s Motion for
Reconsideration asked for a submission date of August 2, 2017,
nearly three months away. See (R. Doc. 258-3.) Defendants’ Motion
to Expedite merely asks that the submission on Plaintiff’s Motion
for Reconsideration date be reset for May 24, 2017, without oral
argument. Plaintiff’s counsel has not filed an objection to
Defendants’ motion. Accordingly, having considered the Defendants’
Motion to Expedite (R. Doc. 261) and the lack of opposition
thereto,
IT IS HEREBY ORDERED that Defendants’ motion (R. Doc. 261) is
GRANTED, and Plaintiff’s Motion for Reconsideration (R. Doc. 258)
is hereby RESET for submission on May 24, 2017, without oral
argument. Any opposition to Plaintiff’s Motion for Reconsideration
17-30519.2501
(R. Doc. 258) must be filed in accordance with the Court’s local
rules.
New Orleans, Louisiana this 5th day of May, 2017.
CARL J. BARBIER
17-30519.2502

Plaintiff * 07-6983 and 13-6425
*
*
Defendants *
*
******************************************************************************
MEMORANDUM IN OPPOSITION TO RULE 60 MOTION
Clerk of Court for the Parish of St. Tammany, Charles M. Hughes, Jr., St. Paul Fire & Marine
Insurance Company and Philip Duiett (hereinafter, "defendants"), respectfully submit this
memorandum in opposition to the Rule 60 Motion (R. Doc. 258) filed by plaintiff, Shane Gates
("Mr. Gates"), and they aver as follows:
89240/443354
Page 1 of 13
17-30519.2503
I. Recent History of Case and Local Rule Application
On December 14, 2016, this Honorable Court issued an order allowing Mr. Gates to file a
motion concerning his "claim of double jeopardy and failure to have a speedy trial and why…the
Anti-Injunction Act, 28 U.S.C. § 2283 and Ex Parte Young, 28 S. Ct. 441 (1908)1 are not
applicable." R. Doc. 237. The Court further ordered that the motion should be filed no later than
January 23, 2017, failing which the matter would be dismissed with prejudice. Id.
On January 23, 2017, Mr. Gates filed his Motion for Injunction and to Lift Stay. R. Doc.
239.2 Since the motion was a contested motion, Mr. Gates was bound to comply with Local Rule
7.4, which states:
All contested motions must be accompanied by separate memoranda which must

contain a concise statement of reasons supporting the motion and citations of
authorities. If the motion requires consideration of facts not in the record, the
movant must also file and serve upon opposing counsel a copy of all evidence
supporting the motion. Memoranda may not be supplemented, except with leave
of court.
(Emphasis added).
Mr. Gates indeed filed a memorandum in support of his Motion for Injunction and to Lift
Stay (R. Doc. 239-1), along with eight exhibits he wanted the Court to consider, specifically:
(i) Exhibit A: alleged pictures of Mr. Gates' injuries from the November 16,
2006, encounter at issue in this matter (R. Doc. 239-2);
(ii) Exhibit B: R. Doc. 225-1, incorporated by reference, which appears to be a

copy of one (1) page of the transcript of the testimony of Ronald R. Gracianette
taken during Mr. Gates's state court proceedings;
1
2
The next day, Mr. Gates filed an identical motion and accompanying documents, except with a set
submission date. See R. Docs. 240–240-4.
89240/443354
Page 2 of 13
17-30519.2504
(iii) Exhibit C: what appears to be a copy of twenty-one (21) pages of the

transcript of the testimony of Daniel G. Abel taken during Mr. Gates's state court
proceedings (R. Doc. 239-3);
(iv) Exhibit D: R. Doc. 225-4, incorporated by reference, which is a copy of

letter addressed to Mr. Walter Reed, District Attorney, and stated to be from
Deputy Nathan Miller;
(v) Exhibit E: R. Doc. 225-6, incorporated by reference, which appears to be a

copy of one (1) page of the transcript of the testimony of Charles M. Hughes
taken during Mr. Gates's state court proceedings;
(vi) Exhibit F: R. Doc 225-5, incorporated by reference, which appears to be a

copy of approximately four (4) pages of the transcript of the testimony of Nathan
Miller taken during Mr. Gates's state court proceedings;
(vii) Exhibit G: R. Doc. 225-3, incorporated by reference, which appears to be

a copy of the transcript Mr. Gates's July 27, 2012, state court proceedings;
(viii) Exhibit H: R. Doc. 225-2, incorporated by reference, which appears to be

a copy of the jury verdict form from Mr. Gates's felony trial in his state court
proceedings.
Mr. Gates also filed an opposition to defendants' Motion to Lift Stay and Dismiss. R. Doc. 249.
No exhibits were attached or incorporated by reference to that filing and no cases were cited in
support of his opposition (See LR 7.5). Mr. Gates made no further filings in connection with the
motions to be taken up by the Court on March 16, 2017.
Local Rule 43.1 clearly states, in pertinent part: "No oral testimony may be offered at a
motion hearing without prior authorization from the court." (Emphasis added). On February
7, 2017, the Court entered a clear order setting the submission date on Mr. Gates's Motion for
Injunction and to Lift Stay and defendants' Motion to Lift Stay and Dismiss for March 16, 2017,
with oral argument. R. Doc. 247 (clarifying R. Doc. 246). There simply is no indication in the
record that the Court authorized the offering of oral testimony, as would be required under Local
89240/443354
Page 3 of 13
17-30519.2505
Rule 43.1 for such testimony to be given at a hearing.3 Further, thirty-seven (37) days passed
from the time of the Court's order setting the motions for oral argument until the hearing on
same. During that time, Mr. Gates filed no additional "evidence supporting the motion", as
required by Local Rule 7.4 if he wanted to submit additional items. As outlined supra, Mr.
Gates had already submitted eight (8) exhibits of "evidence" when he filed his motion.
The parties' motions having been fully briefed with the information they wanted
considered, and the Court having allotted the parties substantial time to argue their opposing
motions at the March 16, 2017 hearing, the Court granted defendants' Motion to Lift Stay and
Dismiss and denied Mr. Gates's Motion for Injunction and to Lift Stay. R. Docs. 254, 255, 256.
II. Rule 60 Relief is Unwarranted in this Matter
Mr. Gates now brings a Rule 60 Motion for Reconsideration. Rule 60(b) provides that
the Court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an

earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
3
Interestingly, at the March 16, 2017 hearing, counsel for Mr. Gates stated, "[W]e contacted the Court staff,
and we were informed that [an evidentiary hearing] would be considered normally to have been granted." Ex. A., p.
8, lines 15–17 (emphasis added). He did not claim an evidentiary hearing was actually granted in this case, as
would be required by LR 43.1. The Court itself confirmed this at the hearing, replying: "I don't know who you
contacted or who told you that, but there is no evidentiary hearing. This is an oral argument on the motions. Id. at
lines 18–20.
89240/443354
Page 4 of 13
17-30519.2506
As the Fifth Circuit long ago stated, a Rule 60 motion
has been most liberally applied to default judgments; its main application is to
those cases in which the true merits of a case might never be considered because
of technical error, or fraud or concealment by the opposing party, or the court's
inability to consider fresh evidence. The purpose of the motion is to permit the
trial judge to reconsider such matters so that he can correct obvious errors or
injustices and so perhaps obviate the laborious process of appeal. Weighing
against the grant of a 60(b) motion is the desirability of finality in judgments.
This is particularly true where the reopening of a judgment could unfairly
prejudice the opposing party. But even without such prejudice, the desirability of
orderliness and predictability in the judicial process speaks for caution in the
reopening of judgments.
Fackelman v. Bell, 564 F.2d 734, 735–736 (5th Cir. 1977) (citations omitted); see In re Ginther,
791 F.2d 1151 (5th Cir. 1986) (Rule 60 relief based on fraud must establish the judgment was
obtained through fraud, having prevented aggrieved party from fully and fairly presenting his
claim or defense).
Mr. Gates fails to submit any viable grounds for relief under Rule 60. Rather, he
repackages and repeats the same arguments he has submitted multiple times to the Court. He
also attempts to dump voluminous documents into the record.4 There is nothing new here. Not
one of Mr. Gates's stale arguments changes the fact that he has been a fugitive from his state
court criminal proceeding since late 2013. See R. Doc. 211-3, 211-4, 243-3. Similarly, not one
of his stale arguments changes the fact that not even his own counsel has a contact number for
him or knows if he even still resides in the United States. See R. Doc. 255, p. 17; Ex. A, pp. 26–
28.
Apparently, this Rule 60 motion is just the "next step" in the plan of Mr. Gates:
4
Indeed, counsel for Mr. Gates advised "the volume of data and metadata involved in the numerous and
lengthy Exhibits to the motion" required delivery by a CD. R. Doc. 258-2. Defendants object to this "data dump"
and request that the court strike all Mr. Gates's exhibits to his Rule 60 Motion. Defendants note that, all of the
exhibits filed by Mr. Gates in connection with his Rule 60 Motion represent documents he was free to try and file in
advance of the March 16, 2017 hearing in this matter. Mr. Gates should not be allowed to further clutter the record
with late-filed, redundant, conclusory, unauthenticated, and/or incomplete documents that will only confuse matters
on any appeal.
89240/443354
Page 5 of 13
17-30519.2507
Screenshot from the publicly accessible Facebook page listed as "Shane Gates", formerly
available at https://www.facebook.com/shane.gates.54?fref=ts (last accessed May 9, 2017).5
Truly, there is nothing surprising about raising the same stale arguments. For instance,
the Hobbs Act, which Mr. Gates references in multiple instances in his memorandum, is a federal
5
As of the date of this filing, it appears the link to the publicly available "Shane Gates" Facebook page
referenced has been disabled. However, the image above is an accurate copy of a shared post placed on that page
and last accessed by counsel on May 9, 2017.
89240/443354
Page 6 of 13
17-30519.2508
criminal law. See 18 U.S.C. § 1951. Of course, this is a federal civil proceeding. Back in 2008,
this Court entered an Order in which it noted "that plaintiff's counsel acknowledged on the record
that he is not alleging any claims for violations of the Hobbs Act, 18 U.S.C. § 1951." R. Doc.
81. Then, back in July of 2011, this Court noted as follows in denying Mr. Gates's Motion to Re-
Open 42 U.S.C. § 1983 Action and Stay Unconstitutional Prosecution in the 22nd Judicial
District Court for the Parish of St. Tammany (R.Doc. 84):
[Mr. Gates] maintains that he does not seek or base his civil claims on the Hobbs
Act, but that it is proof that the federal court must step in to prevent further
violation of Gates' constitutional rights and enjoin the criminal prosecution.
*****
Gates' contention that the Hobbs Act violations (the alleged "extortion" of forcing
Gates to settle for $10,000 with a full release in order for the charges to be
dropped) is proof of bad faith necessary to enjoin the prosecution of the crimes
with which Gates is charged, is simply not correct.
R. Doc. 121, pp. 3, 7–8.
Even more, when Mr. Gates filed his Motion for Injunction and to Lift Stay, his
memorandum discussed his allegations regarding the legal representation of Travelers Insurance
by former district attorney Walter Reed and a firm with which Walter Reed affiliated. See e.g.
R. Doc. 239-1 (or 240-1), p. 6. This Court had all of these allegations before it, and it
appropriately stated in its Order and Reasons:
To the extent that Plaintiff seeks to re-litigate his "bad-faith prosecution"

arguments the Court refuses to consider such arguments. This litigation spans a
decade, and this Court has on at least two other occasions determined that
Plaintiff is not entitled to injunctive relief for alleged bad-faith prosecution as to
the misdemeanor claims.
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R. Doc. 255, p. 13, n. 4. (See R. Doc. 121 and R. Doc. 200 for the Court's previous rulings in this
respect). Raising well-worn arguments is not an avenue for Rule 60 relief.6
Mr. Gates also submits the largely conclusory affidavits of three persons as part his Rule
60 submission:7 (1) the affidavit of Daniel Abel, Mr. Gates's former counsel who is currently
suspended from the practice of law by the Louisiana Supreme Court (Ex. 1 to Rule 60
Memorandum; Ex. C); (2) the affidavit of Terry King, an individual who has no personal
knowledge of the facts relevant to this suit but who claims to have spoken with St. Tammany
Parish District Attorney Warren Montgomery about Mr. Gates's prosecution (Ex. 2 to Rule 60
Memorandum); and (3) the affidavit of Dr. Laura M. King, an individual who has no personal
knowledge of the facts relevant to this suit (Id.). As with the memorandum itself, all of the
matters raised in the affidavits and the documents they reference are restatements of issues Mr.
Gates's has previously raised and which this Court has rejected as a basis to enjoin the state court
proceedings.
Noticeably absent from Mr. Gates's filing is an affidavit from Mr. Gates himself, though
it would be to no avail. In a consolidated suit that is over ten (10) years old, with over 260
docket entries, the Court can be confident that everything that needed to be said, presented and
considered was said, presented and considered prior to the Court's judgment.
Even more, Mr. Gates's memorandum in support of his Rule 60 motion offers almost
nothing in the way of case law which he argues supports his claim for relief. For instance, Mr.
Gates referenceswithout placing a citationthe case of Bush v. Strain (also referenced without
6
Part of Mr. Gates's "bad-faith" claims is the curious statement, without any support, that Louisiana's Code
of Judicial Conduct applies to district attorneys and their assistants. Undersigned counsel is unaware of any case in
which Louisiana's Code of Judicial Conduct has been applied against a prosecutor. Rather, defendants note that the
Louisiana Rules of Professional Conductgoverning Louisiana lawyershas a rule specific to prosecutors (Rule
3.8).
7
It is curious why a copy of the manually-signed affidavits of these individuals was not provided.
89240/443354
Page 8 of 13
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citation at the March 16, 2017 hearing in this case).8 The relevant holding in Bush was this:
"We hold that Bush's excessive force claim is conceptually distinct from the facts underlying her
criminal conviction and, thus, is not barred by Heck." 513 F. 3d 492, 502 (5th Cir. 2008). All
that court did was simply say Heck v. Humphrey, 512 U.S. 477 (1994), did not apply on the facts.
Importantly, in Bush, the § 1983 plaintiff was already tried and convicted of a resisting arrest
claim. Thus, the Fifth Circuit was already able to decipher whether or not plaintiff's § 1983 case
impugned the validity of her underlying conviction. In the present action, however, since Mr.
Gates is nowhere to be found, he has not gone to trial on his misdemeanor charges. The stay in
this matter, to the extent premised on Heck, was put in place "[b]ecause a conviction on the
resisting arrest charges could bar plaintiff's § 1983 claim. . . ." R. Doc. 196, p. 4 (emphasis
added).
Additionally, this Court has heard Mr. Gates's argument on the claimed application of the
Bush case on multiple occasions. In fact, the Bush case was discussed at the April 16, 2008
hearing in this matter, where the precise point about what could bar plaintiff's § 1983 claim was
discussed by counsel:
But if you look at the decision in Bush, because Bush has produced evidence that
the alleged excessive force occurred after she stopped resisting arrest; that is
unknown right now in this case, in Gates.
*****
The claims that are being made in this proceeding might be inherently at odds
with the criminal conviction, and that's what Heck is designed to prevent.
Ex. B, p. 28, lines 20–23, p. 29, lines 3–5. Similarly, this Court has cited to Bush on at least two
occasions when discussing the potential application of Heck. See R. Doc. 121, p. 4, n. 3; R. Doc.
200, p. 3, n. 2. It clearly has not viewed Bush as adverse to defendants' position.
8
The correct citation to the case is 513 F. 3d 492 (5th Cir. 2008).
89240/443354
Page 9 of 13
17-30519.2511
The only other cases cited by Mr. Gates in support of his Rule 60 motion are Evans v.
United States, 504 U.S. 255 (1992) and United States v. Margiotta, 688 F.2d 108 (2nd Cir.
1982). Mr. Gates offers no explanation of why these cases are applicable to his claim for Rule
60 relief. To the contrary, he merely inserts their respective citations. The Evans Court, which
upheld a petitioner's Hobbs Act conviction, merely held that, for an extortion conviction under
the Hobbs Act, "the Government need only show that a public official has obtained a payment to
which he was not entitled, knowing that the payment was made in return for official acts."
Evans, 504 U.S. at 256, 268. Margiotta, for its part, is a Second Circuit case which affirmed the
Hobbs Act conviction of the head of a local political party who caused public officials to take
actions which induced payment from an insurance agency. 688 F.2d at 188. Neither case
provides Mr. Gates any basis for Rule 60 relief.
Mr. Gates is a fugitive. He has been a fugitive for years. It is astonishing that someone
in hiding for such an extended period of time, having no interest in submitting to the state court
proceeding to which he is bound, continues to fight dismissal of this federal lawsuit.
Significantly, before defendants took action to try and resolve this stale lawsuit in October 2016,
there were no substantive filings in the suit for over two (2) years. During that time, why had
Mr. Gates failed to make any filings to move the suit along? Now, he simply attempts to pass
blame for his own inaction. This Court will recall that when defendants first took action to re-
open this case in October 2016, they proposed that Mr. Gates be given sixty days (60) days to
appear for service in his state court criminal proceeding, failing which the action should be
dismissed. See R. Doc. 211. But Mr. Gates had (and has) no intention of ever appearing to
resolve his state court proceeding. Instead, he litigates whenever it suits his purposes via
apparently stealthy communications with his counsel. Again, quite amazingly, counsel for Mr.
89240/443354
Page 10 of 13
17-30519.2512
Gates claims he does not even have a telephone number or address for his client. Ex. A, pp. 26–
28.
Defendants re-urge the cases of Shaw v. Estelle, 542 F.2d 954, 955 (5th Cir. 1976), Link
v. Wabash R. Co., 370 U.S. 626, 627 (1962); Tankersley v. Univ. Health Sys., 2010 U.S. Dist.
LEXIS 67477 (W.D.Tx. 7/7/10); Callip v. Harris County Child Welfare Dep't, 757 F.2d 1513,
1519 (5th Cir. 1985) and the "fugitive disentitlement doctrine", as set forth and argued in
defendants' Memorandum in Support of Motion to Lift Stay and Dismiss, incorporated herein by
reference. See R. Doc. 243-1. That case law and doctrine establish the clear basisapplicable
hereunder which Rule 41(b) is applied as against fugitives and other litigants who fail to
participate in court proceedings. Further, defendants re-urge and incorporate herein by
reference, those arguments set forth in defendants' Memorandum in Opposition to Plaintiff's
Motion for Injunction and to Lift Stay. See R. Doc. 242.
III. Rule 60 Relief Should Be Denied
For those reasons stated supra, the Rule 60 Motion for Reconsideration filed by plaintiff,
Shane Gates, should be denied and the exhibits attached thereto should be stricken from the
record. In its Order and Reasons preceding the formal judgment of dismissal in this case, this
Court correctly stated that Mr. Gates' action is "clearly an example of the most egregious of
circumstances." R. Doc. 255, p. 17. Nothing Mr. Gates now merely re-asserts in his Rule 60
motion alters that conclusion. Defendants should not suffer continued prejudice in this case by
further delay. If Mr. Gates had any true interest in pursuing this matter, he would have appeared
years ago. Responsibility for the appropriately granted dismissal of this action at this stage rests
on Mr. Gates alone.
89240/443354
Page 11 of 13
17-30519.2513

s/ Cary J. Menard__________________ s/ Nancy A. Cundiff________________

Cary J. Menard, T.A (#9426) Lawrence E. Abbott, T.A. (#2276)
Telephone: (985) 809-8374 Suite 2810
cmenard@22da.com New Orleans, LA 70130
Landry
s/ Richard T. Simmons________________ s/ Ralph S. Whalen___________________

Richard T. Simmons, Jr., T.A. (#12089) Ralph S. Whalen , Jr. (#8319)
Hailey, McNamara, Hall, Larmann Ralph S. Whalen, Jr., Attorney at Law
& Papale Energy Centre
One Galleria Blvd., Suite 1400 1100 Poydras St., Suite 2950
P. O. Box 8288 New Orleans, LA 70163
Metairie, LA 70011-8288 Telephone: (504) 525-1600
rsimmons@hmhlp.com Counsel for Walter P. Reed, in his
Counsel for Charles M. Hughes, Jr. individual capacity
89240/443354
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17-30519.2514
s/ Thomas H. Huval___________________ s/ William H. Howard_________________

Thomas H. Huval, T.A. (#21725) William H. Howard, III, T.A. (#7025)
Jones Fussell LLP Alissa J. Allison (#17880)
P.O. Box 1810 Baker, Donaldson, Bearman, Caldwell
Northlake Corporate Park, Suite 103 & Berkowitz, PC
1001 Service Rd East, US Hwy 190 201 St. Charles Avenue, Suite 3600
Covington, La 70433 New Orleans, LA 70170
thuval@jonesfussell.com bhoward@bakerdonaelson.com
Counsel for the former Clerk of Court for Counsel for St. Paul Fire &
the Parish of St. Tammany, Marie-Elise Marine Insurance Company
Prieto in her individual and official
capacity
Court of the United States District Court for the Eastern District of Louisiana on May 16, 2017,
89240/443354
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17-30519.2528

SHANE M. GATES, * CIVIL ACTION: § 1983

Complainant, *
* NO. 07-cv-06983, c/w
versus * No. 13-cv-06425
*
SHERIFF RODNEY JACK STRAIN, et al., * SECTION “J”
Defendants. * Mag. Div. (2)
*
*****************************
COMPLAINANT’S REPLY MEMORANDUM

TO DEFENDANTS’ OPPOSITION TO COMPLAINANT’S
RULE 60 MOTION AND MEMORANDUM IN SUPPORT THEREOF
NOW COMES the Complainant, Shane M. Gates, through his undersigned counsel,
who respectfully files this Reply Memorandum to the Opposition filed by the Defendants herein
[Rec. Doc. 267] in response to Mr. Gates’ Rule 60 Motion [Rec. Doc. 258].
I. FACTUAL BACKGROUND.
This matter consists of two consolidated cases, one filed in 2007 (No. 07-cv-06983) and a
separate and distinct one filed in 2013 (No. 13-cv-06425). In neither of these cases has the
District Court ever considered any facts, testimony, or evidence. It is for that reason the
Defendants now seek to have stricken from the record the affidavits and other exhibits attached
to Mr. Gates’ pending Motion because those exhibits detail the various types of fraud, fabrication
of evidence, and alteration of public records that the Defendants perpetrated in the original state
court proceedings out of which these civil actions arose.
The Defendants’ strategy has depended upon fostering twin illusions. The first is that Mr.
SMG Reply Memo re R 60 Mtn Page 1 of 7
17-30519.2529
Gates has delayed the hearing of these federal civil rights actions, when in fact he filed several
motions to open these federal actions so that they can proceed; each of these motions has been
opposed by these Defendants and, in fact, it is those same Defendants who sought originally to
delay these cases’ progress to trial. Similarly, they have fostered the illusion that it was Mr.
Gates who was responsible for the failure of the 2006 and 2007 misdemeanor charges to proceed
to trial in the state 22nd Judicial District Court, when in fact it was the choice of the 22nd
Judicial District Attorney to refrain from setting those misdemeanors for trial and, instead, to
concentrate on attempting to obtain a conviction on the fabricated felony aggravated flight charge
which the trial jury summarily threw out.
It was only long after those dormant misdemeanor charges had become irreparably stale
under both Louisiana statutory law and federal case law, and after all of the State’s evidence that
could be used to prove the misdemeanor charges had already been fruitlessly placed before the
trial jury in the felony case, that the State ever paid any attention to those overlooked charges.
The Defendants have indulged in an ad hominem argument to support their collateral at-
tack on Mr. Gates’ exhibits. They suggest that those exhibits should be disregarded by this Court
because among them there is an affidavit by one of Mr. Gates’ state court trial attorneys, Daniel
G. Abel. The ad hominem part is that they suggest that Mr. Abel’s affidavit is somehow untrue
because he has been subjected to an interim suspension order by the Louisiana Supreme Court
[Rec. Doc. 267-3]. And further, in a massive non sequitur, they seem to suggest, if Mr. Abel’s
affidavit is for some reason deemed not to be credible, then every other exhibit Mr. Gates has
attached to his pleadings is likewise not worthy of credence.
17-30519.2530
But quite apart from the logical fallacies inherent in the Defendants’ argument, they have
signally failed to reveal to this Court several material facts relating to that matter. The first is
that the purported disciplinary proceeding that eventuated in Rec. Doc. 267-3 was filed by the
then-District Attorney of the 22nd Judicial District, the now-convicted multiple felon, Walter
Reed, who is one of the named Defendants in these instant actions. Another is that Reed’s
complaint against Mr. Abel was just another example of Reed’s pattern and practice of seeking to
obtain improper advantages in civil actions brought against elected officials and governmental
entities, in this instance by depriving Shane Gates of his counsel of record in these instant civil
rights actions. Another is that Reed’s complaint alleged no actual acts of misconduct, nor did the
Louisiana Disciplinary Board ever formulate any actual charges against Mr. Abel, nor was Mr.
Abel ever afforded any opportunity of a hearing on those non-existent charges. Instead, the
proceedings against him were both summary and, effectively, ex parte.
Thus the interim suspension to which the Defendants now refer was imposed in complete
facial violation of Mr. Abel’s constitutional due process rights. The fact of these blatant
violations was implicitly recognized by the United States Court of Appeal for the Fifth Circuit
(see Exhibit “A” hereto) when it considered Mr. Abel’s submission to it regarding its inquiry
about possible reciprocal disciplinary action against him based on the Louisiana Supreme Court’s
suspension (see Exhibit “B” hereto).
Nor was Mr. Gates’ case the only one in which Walter Reed sought, by means of this fic-
titious disciplinary complaint, to deprive affected citizens of Mr. Abel’s representation. One of
the matters involved a politically-prominent1 attorney in St. Tammany Parish whose massive
1
The connections of the attorney concerned, William Magee, are illustrated by one of Sheriff Jack Strain’s first
actions on assuming office, which was to appoint Mr. Magee as attorney for the Sheriff’s Office. Further, in some of
17-30519.2531
the federal court litigation over fraudulent land titles, Mr. Magee and his company were represented by the current
District Attorney, Warren Montgomery.
scheme of real property theft and forging of real estate titles defrauded numerous people out of
hundreds of thousands of dollars (see Exhibits “C” and “D” hereto). This scheme was the
subject of a successful civil suit brought by Mr. Abel in this District Court, Martin v. Fidelity
National Title Insurance Co., E.D.La. No. 09-cv-04195. (At the time of this writing, a discipli-
nary proceeding against that attorney is pending, including an evidentiary hearing before the
Louisiana Disciplinary Board’s hearing panel that concluded as long ago as September 29, 2016,
but the matter seems now to be languishing in some sort of bureaucratic limbo.)
A quick perusal of these Exhibits shows why the Defendants have been so anxious to si-
lence Mr. Abel, although they do not explain why the Louisiana Supreme Court lent them its aid
in doing so.
II. HOBBS ACT VIOLATIONS.
The Defendants attempt to gloss over the numerous Hobbs Act violations that Mr. Gates
has cited by referring to an earlier incident in these cases when Mr. Gates’ counsel stated that he
was not pursuing Hobbs Act remedies. This is deliberately confusing apples and oranges. While
Mr. Gates has not framed his § 1983 civil rights cases so as to seek relief under the Hobbs Act,
the fact that the Defendants have committed a multitude of violations of that statute is material to
these actions. That is because Hobbs Act violations are, ipso facto, evidence of corruption and,
therefore, of denials of due process and other constitutional guarantees.
These highly-indicative crimes against Mr. Gates, which thus illustrate how his constitu-
tional rights have been persistently violated, were committed, inter alia, by the former St.
Tammany Parish DA Walter Reed, who on May 2, 2016 was convicted of a number of federal
17-30519.2532
public corruption (i.e., Hobbs Act) crimes. The beneficiaries of the acts of public corruption
(Hobbs Act crimes) committed in Mr. Gates’ cases were St. Paul Travelers, Walter Reed himself,
and many of the other Defendants in these consolidated cases. These Hobbs Act crimes include,
by way of illustration but not limitation:
(1) the fabrication of evidence such as the purported Nathan Miller “victim
letter” and the dispatch tapes that were first hidden from the defense and
then altered prior to their production;
(2) the destruction of evidence, such as Deputy Sheriff Roger Gottardi’s per-
sonnel records, which bear directly upon this key witness’s credibility;
(3) the fabrication and alteration of public records, including docket sheets
and minute entries in the felony criminal prosecution, which the State has
used to attempt to claim that the misdemeanor charges had been set for tri-
al before they expired; and, among others,
(4) the fabrication of evidence used to initiate the resisting arrest proceedings.
III. THE DISTRICT COURT’S DENIAL OF MR. GATES’S REQUEST

FOR AN EVIDENTIARY HEARING.
On two separate occasions, Mr. Gates’ counsel asked the staff of Section “J” of this Court
about his requests for oral argument and an evidentiary hearing and on both those occasions that
staff informed Mr. Gates’ counsel that it was the standard policy of this Section that whenever a
party requested oral argument and/or an evidentiary hearing, those requests were automatically
granted unless the parties were affirmatively notified to the contrary. Thus when Mr. Gates’
counsel appeared for the March 16, 2017 hearing on Mr. Gates’ motion to lift the stay herein, his
counsel, in reliance upon that staff’s representations regarding the Court’s standard operating
procedures, came prepared to offer a number of witnesses and a mass of documentary evidence.
Only this Court’s refusal to permit the introduction of that evidence prevented its being entered
17-30519.2533
into the record at that hearing.
Thus it is nonsense for the Defendents to suggest, as they do in their Memorandum in
Opposition [Rec. Doc. 267] – but not in any motion to strike or other pleading upon which relief
could properly be granted – that Mr. Gates cannot now submit those materials as Exhibits to his
pleadings. According to those Defendants, he could have filed them prior to that March 16
hearing. But that contention would create an impossible “heads you win, tails you lose”-style
trap. He could not have known he would need to file those evidentiary items in advance because
he had been assured that there would be a hearing at which they could be introduced; the first he
knew to the contrary was during the hearing itself, when the trial judge refused to receive
evidence (see Transcript of Hearing on March 16, 2017, p. 3).
IV. THE RULE 60 MOTION AND LEGAL STANDARD.
At the March 16, 2017, Judge Barbier asked counsel for the District Attorney’s Office, “If
Mr. Gates prevails, who will have to pay for it?” This raises issues never previously raised in the
federal courts. What legitimate interest is there in who must respond in damages in a successful
civil rights suit? Much more relevant and legitimate are the civil rights violations committed by
the Defendants and it is to conceal these that the Defendants suggest in their memorandum—but,
notably, do not include in any motion or other proper mode of requesting relief—that Mr. Gates’
Exhibits should be stricken.
Rule 60, Fed. R. Civ. Proc., provides for relief from judgments and proceeding as fol-
lows:
“Rule 60. Relief from a Judgment or Order

“(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a
17-30519.2534
final judgment, order, or proceeding for the following reasons:

“(1) mistake, inadvertence, surprise, or excusable neglect [by The Trial
Court];
“….
“(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
“….
“(6) any other reason that justifies relief.”
These factors clearly exist in the instant situation.
VI. CONCLUSION.
For the reasons set forth in Shane Gates’ original Rule 60 Motion and Memorandum in
Support of that Motion, and in this Reply Memorandum, his Rule 60 Motion should be granted,
this Court’s Judgment (Rec. Doc. 256) dismissing his civil rights cases should be vacated, and
his prior Motion to Lift Stay, etc. (Rec. Doc. 239 & 240) should be granted.
RESPECTFULLY SUBMITTED,
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
17-30519.2535
United States Coart of Appeals

F'IFTH CIRCUIT
OFFICE OF TIIE CLERK
LYLE W, CAYCE TEL. 504-310-7799

CLERK 600 S. MAESTRI PLACE
NEWORLEANS. LA 70130
Februarv 19.2015
Daniel G. Abel
2421 Clearview Pkwv. Ste 106
Metairie, LA 70001
bv pvtRrr AND REGULAR MArL

Dear Mr. Abel:
Further to your recent response to this Court's order to show cause why your right to practice
before this Court should not be suspended, please be advised that Chief Judge Stewart has
decided to hold this Court's reciprocal disciplinary proceedings against you in abeyance pending
final resolution of the Supreme Court of Louisiana discipline proceeding.
Please keep this court advised of the status of the state proceeding. You are directed to provide
this Court, within fifteen days of issuance, with a copy of any judgment or order entered by
Supreme Court of Louisiana. Failure to keep this Court informed of the status of the proceeding
may result in the imposition of reciprocal discipline without further notice.
Very truly yours,
LYLE W. CAYCE, Clerk
Shelleytr. Saltzman
Deputy Clerk
17-30519.2536
No. 14-30929
UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT
BELVA WEBB; FAITH WEBB

PLAINTIFFS-APPELLANTS
V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA
NO. 6:10-CV-1557
COMPLIANCE WITH ORDER GRANTING PLAINTIFFS-APPELLANTS’

COUNSEL DANIEL G. ABEL LEAVE TO EXPLAIN INTERIM
SUSPENSION BY THE LOUISIANA SUPREME COURT
_______________________________________________________
Daniel G. Abel
Metairie, LA 70001
Telephone No: 504.208.9610
Facsimile:888.577.8815
Counsel for Belva and Faith Webb
17-30519.2537
No.14-30929

FIFTH CIRCUIT

V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
_______________________________________________________
SIGNATURES AND CONTACT INFORMATION OF COUNSEL

FOR PLAINTIFFS-APPELLANTS WEBB
_______________________________________________________
This brief is submitted by counsel for plaintiffs-
appellants Bishop Belva Webb and Mrs. Faith Webb.
Respectfully
s/ Daniel G. Abel
Daniel G. Abel
Metairie, LA 70001
Page 2
17-30519.2538
No.14-30929

FIFTH CIRCUIT

V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
_______________________________________________________
CERTIFICATE OF INTERESTED PERSONS

_______________________________________________________
In compliance with Rule 28.2.1 undersigned counsel
of record certifies that these persons have an interest
in the outcome of this case.
1. Bishop Belva Webb

Plaintiff-Appellant
2. Mrs. Faith Webb

Plaintiff- Appellant
3. Mr. Joseph P. Morella

Defendant-Appellee
4. Mr. James L. Pate, Attorney

Mr. James Huey Gibson, Attorney
Ms. Sara Beth Rodrigue, Attorney
Counsel for Joseph P. Morella
Page 3
17-30519.2539
Respectfully
s/ Daniel G. Abel
D ANIEL G. A BEL [L A #8348]

Metairie, LA 70001
Page 4
17-30519.2540
______________________________________________________________________
COMPLIANCE WITH ORDER GRANTING COUNSEL

LEAVE TO ADDRESS HIS INTERIM SUSPENSION
_______________________________________________________
On 19 November 2014, counsel for plaintiffs-
appellants put this Honorable Court on notice that the
Louisiana Supreme Court had issued an order of interim
suspension against him on 6 November 2014.
In a complete denial of Mr. Abel’s due process
rights, the Louisiana Supreme Court gave Mr. Abel no
notice of time to file a response to the Office of
Disciplinary Counsel’s petition for interim suspension,
completely denied him any discovery, never provided a
hearing and gave no reasons for the suspension in Its
one-page order.
In summary, the Louisiana Supreme Court never
afforded Mr. Abel any of the protections guaranteed by
the United States Constitution or the Louisiana
Constitution. As such, Mr. Abel should be allowed to
continue to represent the clients Belva and Faith Webb,
as their chosen attorney, in this matter.
Page 5
17-30519.2541
The interim suspension has nothing to do with Mr.
Abel committing a crime, endangering his clients, or
posing a threat to the public. Instead, this is old
fashioned, good-ole-boy politics at its worst: the
Louisiana Supreme Court’s Office of Disciplinary
Counsel, its chief counsel, Charles Plattsmier, and
their cronies are attempting to silence Mr. Abel from
continuing to reveal the illegal and corrupt practices
of Mr. Plattsmier’s friends and associates. At issue
also is certain information and evidence as to who
benefits from numerous contracts awarded by the Office
of Disciplinary Counsel.
Why else would no discovery and no hearing be
granted to Mr. Abel before a one-page order without
reasons suspending him from the practice of law was
issued?
Worse yet, the interim suspension affects the
rights of Mr. Abel’s clients, who have chosen him to
represent him (in fact, his zealous representation of
some of those clients is the reason behind the interim
Page 6
17-30519.2542
suspension) and who want him to continue to represent
them in the matters pending before the Louisiana state
and federal courts. Mr. Abel will challenge the
interim suspension in due course in an appropriate
forum. In the meantime, Mr. Abel should be allowed to
practice before this Court.
I. T HE I NTERIM S USPENSION IS A C OVER-U P - U NDERLYING F ACTS
The Office of Disciplinary Counsel, through Mr.
Charles Plattsmier and Mr. Robert Kennedy petitioned
the Louisiana Supreme Court to issue an order to
protect Mr. Plattsmier’s and Mr. Kennedy’s cronies from
Mr. Abel’s revelation of the crimes those cronies
perpetrated. The interim suspension has nothing to do
with any misconduct involving Mr. Abel: he has not
been charged or convicted of any misconduct involving
crimes, endangering his clients, or endangering the
public.
Specifically, Mr. Abel represents several criminal
defendants in cases pending in the 22nd Judicial strict
the Parish of St. Tammany. The Office of Disciplinary
Page 7
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Counsel subpoenaed Mr. Abel to give a sworn statement
on 30 September 2014, about each criminal defendant’s
case pending in the 22nd Judicial District Court for
the Parish of St. Tammany and issued a subpoena duces
tecum for Mr. Abel to produce each criminal defendant’s
files. As the criminal cases were ongoing Mr. Abel
informed the Office of Disciplinary Counsel and Mr.
Kennedy that he would not produce the criminal
defendants’ files.
Mr. Abel appeared on 30 September 2014 and
presented the Office of Disciplinary Counsel with a
motion to quash both subpoenas, but neither the Office
of Disciplinary Counsel, Mr. Plattsmier, nor Mr.
Kennedy ever filed the motion to quash into the record
of the Louisiana Supreme Court. It is not in the
record of the suspension proceedings. Instead of
presenting the Louisiana Supreme Court with the motion
to quash, Mr. Plattsmier, Mr. Kennedy, and the Office
of Disciplinary Counsel filed their petition for
interim suspension.
Page 8
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Mr. Plattsmier, Mr. Kennedy, and the Office of
Disciplinary Counsel did so to cover-up severe state
and federal crimes committed by public officials who
are the targets of federal agency investigations with
whom Mr. Abel and others have been cooperating since
2008.
Mr. Plattsmier and Mr. Kennedy have personal and
professional relations with the persons for whom their
petition would provide cover. By way of example, Mr.
Abel has exposed, and reported to the pertinent
authorities, the following criminal acts involving Mr.
Plattsmier’s and Mr. Kennedy’s cronies and associates:
1. William Magee. Complaints have been filed against
William Magee with the Office of Disciplinary
Counsel and in the United States District Court.
(Mr. Magee also filed a complaint against Mr. Abel
but no action was taken arising from the Magee
complaint). Mr. Magee is accused of running a
quitclaim deed enterprise in which he stole
property owners’ homes. Mr. Plattsmier and Mr.
Page 9
17-30519.2545
Magee were classmates at law school and Mr. Kennedy
has personally asked the homeowners who filed the
complaints against Mr. Magee, if they would testify
against Mr. Abel, instead. The interim suspension
of Mr. Abel was sought in part to cover up his
reporting of Mr. Magee and his quit claim
enterprise to state and federal law enforcement
agencies and to protect Mr. Plattsmier’s and Mr.
Kennedy’s crony Mr. Magee from repercussions for
his criminal enterprise. Incredibly, even after
Mr. Magee admitted forging signatures, it is Mr.
Abel whom Mr. Plattsmier and Mr. Kennedy are
prosecuting before the Louisiana Supreme Court, not
their friend Mr. Magee. The interim suspension is
an obvious cover up.
2. Belva and Faith Webb. In a meeting with Patterson
Town Court Judge Joseph P. Morella at his law
office, when he was questioned about a real estate
matter by the Webbs, became enraged, cursing the
Webbs, calling them: “you son-of-a-bitchen
Page 10
17-30519.2546
niggers,” “you black Mother Fuckers,” and “you
black-assed niggers.” While they were trying to
get out of his private law office, Morella
physically threatened the Webbs, causing Mrs. Webb
to fall down the front stairs. Although this took
place in Judge Morella’s private law office, his
actions call into question his fitness as judge.
The Webbs filed a disciplinary complaint. The
Webbs and counsel challenged the Office of
Disciplinary Counsel’s position, have stated
repeatedly, and believe, “that a person who is a
racist and acts on that racist conduct is morally
unfit to be an officer of the courts. Before
filing this suit in the United States District, the
Office of Disciplinary Counsel refused to even
respond to the Webbs’ complaint. It was evident
from the outset that the Office of Disciplinary
Counsel was intent on quashing this matter. Mr.
Plattsmier formerly of Morgan City has protected
the defendants in this matter and by doing so the
Page 11
17-30519.2547
Office of Disciplinary Counsel has created a racist
policy as to permissible conduct.
Then subsequently, at the insistence of Patterson
Police Chief Patrick LaSalle, Mr. Webb was
instructed by his employer the St. Mary Parish
School Board to go to The Bourgeois Medical Center
in Morgan City for drug screen testing. As Webb
does not take drugs and had not done so, he agreed
to go for the testing. Unknown to the police and
the Bourgeois doctors Mr.Webb took three (3) drug
screens on 17 February 2012, not only the drug
screen the police set up with The Bourgeois Medical
Clinic in Morgan City but two privately arranged
tests as well. Webb tested negative on the test
immediately before and the test immediately after
the police drug screen, on which he tested—not
surprisingly—positive. The police drug screen was
fabricated and as such not only constitutes
obstruction of justice but also violates federal
and state criminal law. Mr. Abel was in contact
Page 12
17-30519.2548
personally with the Department of Justice during
the day and reported the fabricated drug screen.
II. L AW AND A RGUMENT: N O B ASIS F OR S USPENDING M R. A BEL FROM
P RACTICING IN T HIS C OURT
The order of the Louisiana Supreme Court against
Mr. Abel is contrary to the rules requisite for interim
suspension which require that the actions of the lawyer
must pose a threat of harm to the public. But no client
or defendant has filed a complaint against Mr. Abel,
only public officials whose actions Mr. Abel had
reported in public pleadings and in cooperation to the
federal and state agencies. There is no misconduct
justifying the interim suspension, and there was no due
process afforded Mr. Abel in the “proceedings” against
him.
That is clear from the most recent examples of
interim suspensions ordered by the Louisiana Supreme
Court which have involved attorneys who have been
involved in the drug trade, taken money unlawfully from
clients, been convicted of crimes including bank fraud,
Page 13
17-30519.2549
or had prohibited sexual relationships with clients. In
each instance the Louisiana Supreme Court has given
reasons why such attorneys pose a threat of harm to the
public. Mr. Abel has done no such things as caused the
other attorneys to be suspended. Not surprisingly, with
no discovery, no hearing, and no due process, the
Louisiana Supreme Court could not [and did not] give
any reason for the suspension in Its one-page order.
It is telling that in almost each instant
complained of by Mr. Plattsmier, Mr. Kennedy, and the
Office of Disciplinary Counsel, Mr. Abel has gone to
state and federal law enforcement agencies and has
reported the conduct and crimes uncovered by him and
others.
As noted above, a number of those public officials
and several attorneys are professional and personal
friends of Mr. Plattsmier, Mr. Kennedy, and have been
given cover by the Office of Disciplinary Court, which
is a agency of the Louisiana Supreme Court itself. The
Page 14
17-30519.2550
language of the rule for interim suspension is clear
and has not application against Mr. Abel here.
Section 19.2. Interim Suspension for Threat of
Harm. A. Transmittal of Evidence. Upon receipt of
sufficient evidence demonstrating that a lawyer subject
to the disciplinary jurisdiction of this court has
committed a violation of the Rules of Professional
Conduct or is under a disability as herein defined and
poses a substantial threat of serious harm to the
public, [the Louisiana Supreme Court can issue an order
of immediate suspension (Emphasis Added).
III. D UE P ROCESS J URISPRUDENCE—R IGHT T O K NOW C HARGES, R IGHT
TO D ISCOVERY, R IGHT TO H EARING, R IGHTS TO R EASONS FOR
I NTERIM S USPENSION, P ROTECTION OF P RIVILEGE IN C ASE OF
C RIMINAL C LIENTS’ I NFORMATION AND F ILES.
The United States Supreme Court has long
established that due process requires, at a minimum,
that absent a countervailing state interest of
overriding significance, persons forced to settle their
Page 15
17-30519.2551
claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard.
Early in our jurisprudence, this Court voiced the
doctrine that "[w]herever one is assailed in his person
or his property, there he may defend," Windsor v.
McVeigh, 93 U.S. 274, 277 (1876). See Baldwin v. Hale,
1 Wall. 223 (1864); Hovey v. Elliott, 167 U.S. 409
(1897).
The theme that "due process of law signifies a
right to be heard in one's defense," Hovey v. Elliott,
supra, at 417, has continually recurred in the years
since Baldwin, Windsor, and Hovey. Although "[m]any
controversies [401 U.S. 371, 378] have raged about
the cryptic and abstract words of the Due Process
Clause," as Mr. Justice Jackson wrote for the Court in
Mullane v. Central Hanover Tr. Co., 339 U.S. 306
(1950), "there can be no doubt that at a minimum they
require that deprivation of life, liberty or property
by adjudication be preceded by notice and opportunity
Page 16
17-30519.2552
for hearing appropriate to the nature of the case."
Id., at 313.
Due process does not, of course, require that the
defendant in every civil case actually have a hearing
on the merits. A State, can, for example, enter a
default judgment against a defendant who, after
adequate notice, fails to make a timely appearance, see
Windsor, supra, at 278, or who, without justifiable
excuse, violates a procedural rule requiring the
production of evidence necessary for orderly
adjudication, Hammond Packing Co. v. Arkansas, 212 U.S.
322, 351 (1909).
What the Constitution does require is "an
opportunity . . . granted at a meaningful time and in a
meaningful manner," Armstrong v. Manzo, 380 U.S. 545,
552 (1965) (emphasis added), "for [a] hearing
appropriate to the nature of the case," Mullane v.
Central Hanover Tr. Co., supra, at 313. The formality
and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved
Page 17
17-30519.2553
and the nature of the subsequent proceedings. That the
hearing required by due process [401 U.S. 371, 379] is
subject to waiver, and is not fixed in form does not
affect its root requirement that an individual be given
an opportunity for a hearing before he is deprived of
any significant property interest, except for
extraordinary situations where some valid governmental
interest is at stake that justifies postponing the
hearing until after the event. 6 In short, "within the
limits of practicability," id., at 318, a State must
afford to all individuals a meaningful opportunity to
be heard if it is to fulfill the promise of the Due
Process Clause.
The requirements of procedural due process apply
only to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and
property. When protected interests are implicated, the
right [Board of Regents v. Roth, 408 U.S. 564, 570;
1972] to some kind of prior hearing is paramount. But
Page 18
17-30519.2554
the range of interests protected by procedural due
process is not infinite.
But the rights of privilege and protection of the
attorney-client information in cases such as those at
issue from the 22 nd Judicial District Court of St
Tammany Parish, are solidly within the protections of
due process.
The Roth Court went on to hold: We must look to see
if the interest is within the Fourteenth Amendment's
protection of liberty and property.
"Liberty" and "property" are broad and majestic
terms. They are among the "[g]reat [constitutional]
concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain of
social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society
remains unchanged." National Ins. Co. v. Tidewater Co.,
337 U.S. 582, 646 (Frankfurter, J., dissenting). For
that reason, the Court has fully and finally rejected
the wooden distinction between "rights" and
Page 19
17-30519.2555
"privileges" that once seemed to govern the
applicability of procedural due process rights. The
Court has also made clear that the property interests
protected by [408 U.S. 564, 572] procedural due
process extend well beyond actual ownership of real
estate, chattels, or money. By the same token, the
Court has required due process protection for
deprivations of liberty beyond the sort of formal
constraints imposed by the criminal process.
Yet, while the Court has eschewed rigid or
formalistic limitations on the protection of procedural
due process, it has at the same time observed certain
boundaries. For the words "liberty" and "property" in
the Due Process Clause of the Fourteenth Amendment must
be given some meaning.
"While this Court has not attempted to define with
exactness the liberty . . . guaranteed [by the
Fourteenth Amendment], the term has received much
consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely
Page 20
17-30519.2556
freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges
long recognized . . . as essential to the orderly
pursuit of happiness by free men." Meyer v. Nebraska,
262 U.S. 390, 399 . In a Constitution for a free
people, there can be no doubt that the meaning of
"liberty" must be broad indeed. See, e. g., Bolling v.
Sharpe, 347 U.S. 497, 499 -500; Stanley v. Illinois,
405 U.S. 645 . [408 U.S. 564, 573].
That meaning also includes an attorney’s obligation
to defend the constitutional and due process rights of
his clients.
Mr. Plattsmier and Mr. Kennedy wanted the files of
each criminal defendant and wanted Mr. Abel to give a
sworn statement about each defendant and his case.
Page 21
17-30519.2557
interim suspension.
The point was proven; the purpose of filing the
petition and suspending Mr. Abel is and was to cover-up
the illegal activities and crimes of the friends and
associates of Mr. Plattsmier and Mr. Kennedy, and not
to protect the public from any harm imagined.
C ONCLUSION
No evidence of substantial harm to the public has
been alleged or proved. As such, there were no grounds
for suspension. This Court should conduct Its own
Page 22
17-30519.2558
investigation of these matters and crimes underlying
these matters. Mr. Abel should be allowed to continue
practicing in the Fifth Circuit Court of Appeal.
Respectfully submitted, 23 DECEMBER 2014
s/ Daniel G. Abel
Daniel G. Abel [La #8348]

Metairie, LA 70001
Counsel for the Webbs
Page 23
17-30519.2559
Certificate of Compliance with
Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements
This Compliance of Appellants complies with the
type-volume limitation of Fed. R. App. P. 32 a(7)(B)
because it is fewer than thirty (30) pages in length
and contains 2,829 words, fewer than 14,000 words
excluding the parts of the brief exempted by Fed. R.
App. P. 32a(7)(B)(iii).
Respectfully,
S/ Daniel G. Abel
_________________
Daniel G. Abel
Page 24
17-30519.2560
DANIEL ABEL
Telephone: 504.284.8521 / 888.577.8815 [F]
15 September 2016
Governor John Bel Edwards Louisiana Attorney General Jeff Landry

Office of the Governor Louisiana Department of Justice
PO Box 94004 1885 North Third Street
Baton Rouge, LA 70804 Baton Rouge, LA 70802
Attn: Chief Legal Counsel Executive@ag.louisiana.gov
matthew.block@la.gov CriminalInfo@ag.louisiana.gov
InvestigationInfo@ag.louisiana.gov
Re: Attorney William Magee / Real Property Adjudicated to the State of Louisiana & Stolen
by Attorney William Magee & Hickory Glade, Inc. / Conflict with former District
Attorney Walter Reed, AG Buddy Caldwell & District Attorney Warren Montgomery
Dear Governor Edwards and Attorney General Landry:
The Louisiana Land Office has been investigating the theft of real property adjudicated to the State
of Louisiana in St. Tammany Parish for a number of years. Because of the connection between
former, now convicted District Attorney Walter P. Reed and former Attorney General Buddy
Caldwell, nothing was done and no one was prosecuted. This failure to take action includes taking
action against Covington Attorney William Magee and Hickory Glade, Inc., the company he used
to create the fraudulent interest in those properties which were already adjudicated to the State of
Louisiana.
We have cooperated with the state and federal law enforcement agencies in these matters since 2008.
We have provided the FBI and DOJ with the thousands of documents probative of these crimes and
theft of properties already adjudicated to the State of Louisiana and some to the federal government.
The administration and legislature should consider and enact more specific laws to prevent the future
theft of the real property such as has been done by Mr. Magee and his enterprise over the last twenty
years. There are experts at the L.S.U. law school who have studied this matter and are conversant
with what provisions in such statutes might prevent similar quitclaim theft in the future.
The United States District Court for the Eastern District of Louisiana has already found that Mr.
Magee created Hickory Glade, Inc. for the purpose of claiming and transferring interests in property
to Mr. Magee that it [Hickory Glade, Inc.] had no interest in [Case No. 09-04195 / Judgment No. 214
- Rec. Doc. 214. Will Provide Upon Request Exhibits Re: Chief Judge Sarah Vance’s Order and
Judgment, See: Pages 11-13]. The federal court issued a judgment against Mr. Magee in the Martin
vs. Fidelity case finding that he committed the acts which one of his co-defendants accused him of
Page 1 of 4
17-30519.2561
and subsequently proved to the court. Magee paid Fidelity fees and all costs ordered by the Court.
The Louisiana Office of Disciplinary Counsel formally charged William Magee [15-DB-016 / In re:
Magee] for these crimes including Hickory Glade’s fraudulent quitclaim scheme to transfer
properties it did not own and William Magee’s forgery of Tim Dunaway’s signature [and false
notarization] of the quitclaim deeds used in the theft of numerous properties. The ODC has held
three public hearings before the appointed panel, all briefs have been submitted and the panel
returned its original finding and the Disciplinary Board hearing is set for 29 September 2016, at its
office in Metairie [Louisiana Attorney Disciplinary Board / 2800 Veterans Memorial Blvd., Suite
310 / Metairie, Louisiana 70002 / Tel: (504) 834-1488 or (800) 489-8411. The Office of Disciplinary
Counsel filed its formal charges against attorney William M. Magee on 21 April, 2015. After the 29
September 2016 Disciplinary Board Hearing, the matter with go for final judgment to the Louisiana
Supreme Court.
Among the crimes committed by William Magee and his partners in the enterprise, were those listed
in the RICO action with reference to the public documents and instruments used to fraudulently
obtain the real properties owned by the State of Louisiana [Will Provide Upon Request Exhibits Re:
Federal & State Crimes With Reference of Instruments and Evidence in the Records of the 22nd JDC
for St. Tammany Parish].
I also presented these facts to the Ethics Counsel for the Louisiana Bar Association, which reviewed
my letter to the Banks and Financial Institutions and approved of my sending it to 45 financial
institutions in St. Tammany Parish to warn them of the fraud and theft of real properties which
mortgages were already called into question. [Will Provide Upon Request Exhibits Re: Abel Letter
to St. Tammany Banks]
1. The ODC has formally charged Mr. William Magee in April of 2015, with fraud and forgery
and theft of three properties in St. Tammany; the ODC and concluded its third hearing on
Friday, 19 February 2016. The panel’s findings will be heard at the Disciplinary Board
Meeting on 29 September 2016 in its Metairie Office.
2. The homeowners whose property and titles were effected, have all testified and proven what
the ODC through Mr. Kennedy has alleged in the formal charges against Mr. Magee.
3. Over the course of 20 years attorney William Magee and Hickory Glade have stolen through
fraudulent motions for summary judgment and quitclaim deeds, more that 100 real
properties, whose rightful owners including the State of Louisiana, have never been able to
repossess their ownership. The Louisiana Land Office can confirm these facts as they have
been involved in the investigation of this theft of these properties for a number of years.
4. The formal charges filed by the ODC against William Magee present a concise summary of
the crimes committed by Magee and his enterprise in their theft of property from the State
of Louisiana and the other rightful, legal heirs and owners. However, we shall provide the
Page 2 of 4
17-30519.2562
State with all documents and evidence probative of these crimes and this fraud.
5. It is important to note that the judgments signed by certain 22nd JDC judges were those with
personal and financial relationships with William Magee, although not one of the cases were
randomly allotted to the judge or was the duty judge on the days when Mr. Magee brought
the judgment to them for their signature. Mr. Magee was the campaign finance chairman for
several of the judges who signed his fabricated judgments.
In addition to the personal relationships which prevented former District Attorney Walter Reed and
Attorney General Buddy Caldwell from prosecuting Mr. Magee, current District Attorney Warren
Montgomery has a personal conflict such that under Louisiana law and the Judicial Canons, he
cannot now prosecute this fraud and property theft case because of his professional and personal
relationship with Mr. Magee and his family, although the property theft took place in St. Tammany
Parish.
District Attorney Mr. Montgomery cannot and has not prosecuted Mr. Magee, as Mr. Montgomery
himself, was the only attorney of record who represented Mr. Magee’s company Hickory Glade and
his wife and co-defendant Ms. Karen Magee. They were both defendants in the federal RICO action
filed in the Eastern District of Louisiana [Will Provide Upon Request Exhibits Re: Martin vs.
Magee / Case No. 10-2786 / See: Rec. Doc. 5 - RICO Statement]. The facts and evidence uncovered
during the investigation in the federal case is what the ODC used [in part] to formally charge Mr.
Magee. Although I cannot speak for the federal or state law enforcement agencies, based on my
continuing interaction with these agencies, I presume the state and federal investigations are ongoing.
The ODC did not and could not consider all the crimes committed by Mr. Magee, but those crimes
were identified and the instrument numbers cited which are probative of those crimes and which are
in the record of the office of the Clerk of Court for the 22nd Judicial District for St Tammany Parish
[Will Provide Upon Request Exhibits Re: Federal & State Crimes With Reference of Instruments
and Evidence in the Records of the 22nd JDC for St. Tammany].
I will be happy to cooperate with you in any investigation and prosecution associated with your
rectifying this continuing theft of property from the State of Louisiana and the rightful heirs and
owners of these properties. I suspect that our experts who have worked for years on this fraud, will
be happy to cooperate with your offices as well as title insurance experts working with the ODC.
The Louisiana Land Office can confirm these facts as they have been involved in the investigation
of this theft of these properties for a number of years. Your offices should contact the Louisiana
Land Office for additional information.
Sincerely yours,
/s/ Daniel G. Abel
Daniel G. Abel
Page 3 of 4
17-30519.2563
Nota Bene:
I was informed yesterday, that one of the experts involved in the investigation of the Magee
enterprise, who also worked in cooperation with the FBI and DOJ in their investigation of Mr.
Magee, filed a complaint against Mr. Magee recently. I did not know that he had filed a complaint
until he called me on September 6, 2016. The attorney now representing Mr. Magee filed a response
to his complaint.
It is of serious concern that Mr. Magee is now represented by Mr. Damon S. Manning, who was one
of the attorneys for the Louisiana Attorney Disciplinary Board at the time that the homeowners’s
complaints were filed against Mr. Magee. He now represents Mr. Magee in the matter of the newly
filed complaint against him. The Attorney General should investigate the evident conflict of interest,
seemingly an ethical violation if not in fact a Hobbs Act crime. As the Louisiana Supreme Court is
the Constitutional Branch of Government which has as one of its agencies, the Louisiana Attorney
Disciplinary Board, I have reported this conflict to them as well. It is of note, that Mr. Damon S.
Manning was sued in his official capacity as a member of the Disciplinary Board in Atkins v.
Louisiana Attorney Disciplinary Board et al, No. 2:2009cv06471 - Document 21 (E.D. La. 2010).
Mr. Atkins offered proof of Mr. Manning’s bad faith, but the Court dismissed the matter noting that
it could not go forward since the appeals to the Louisiana Supreme Court and other courts were not
final.
I am on “interim suspension” as the result of a bar complaint filed by now convicted former District
Attorney Walter P. Reed and some of his former ADAs who had become judges. Mr. Damon S.
Manning handled the Walter Reed complaint against me when he was at the Disciplinary Board.
Walter Reed and his former ADA judges asked Mr. Manning to monitor me and prevent me from
making allegations in pleadings against Reed and certain judges in the 22nd Judicial District Courts,
which exposed their fraud and failure to protect the constitutional rights of the citizens of St.
Tammany who appeared before them. Many of those pubic officials are now targets of the ongoing
federal and state investigations into their crimes and misconduct. Reed asked Manning to shut me
up, but that was before Reed and others were indicted and Reed was convicted on 2 May 2016. The
investigations against Walter Reed and now a number of judges and public officers is ongoing. The
recently convened federal grand jury proceedings are going beyond the indictments are ready charged
which I understand are to be released shortly. Now, Damon Manning represents Mr. William Magee
in disciplinary complaint formally filed against him by the ODC. How is the possible?
It is important to note that I brought the Louisiana Supreme Court’s “interim suspension” to the
United States Fifth Circuit Court of Appeal, which Honorable Court ruled in my favor holding the
Louisiana Supreme Court’s “interim suspension” of me “in abeyance”, thereby allowing me to
continue to practice federal law in their Court. /s/ dga
Page 4 of 4
17-30519.2564
Daniel G. Abel
Attorney at Law
Metairie, LA 70001
504.208.9610 [O]
888.577.8815 [F]
4 April 2011 Notice: ST. TAMMANY PROPERTY FRAUD

Please Notify Your Legal Department
We Will Answer Their Questions
We Cannot Represent Your Institution
Dear Financial Institutions & Title Companies:
We represent two families who discovered defects in the titles to their properties when they tried to
sell those properties. A thorough examination of their titles revealed that St Tammany attorney
William M. Magee and a RICO enterprise fabricated ownership interests in the properties and had
local judges sign orders declaring him and his companies, the owners of the properties, contrary to
Louisiana law and related civil procedures. Subsequently, forensic experts confirmed that the
signatures on the documents used by Magee were forged and those forged signatures were notarized
by another attorney in his office. The person whose name was forged has now testified under oath,
that (1) the signatures on the legal documents in question were not his, and (2) that the company who
gave Magee its interest in these properties, never owned any interest in the properties whatsoever.
Since that time, investigators have identified over sixty (60) other St. Tammany properties that were
effected by the racketeering [RICO] enterprise; RICO actions are pending in federal court [See:
Martins v. Fidelity, EDLA Case No. 09-9145 and Martin-Robinson v. William Magee RICO Action
No. 10-2786]. An Index of the institutions and title companies that were damaged by the enterprise’s
activities, as well as the names of the families and heirs damaged, is attached [See: Exhibit B].
The Index also includes the financial institutions and title companies identified in the Original
Complaint and the Racketeering Case Statement [See: Martin-Robinson v. William Magee /
Racketeering Action / No. 10-2786, at Document Nos. 1, 2, and 6 in the record of that matter].
Your attorneys can access these documents electronically through federal court PACER service.
Attached also is the Chart provided to the federal court for use in identifying each transaction and
the parties involved as well as those injured [See: Exhibit A].
The matter of this notice was presented to the Hon. Karen Roby, Magistrate Judge in the United
States District Court for the Eastern District of Louisiana, on Wednesday, 29 March 2011, and to
ethics counsel—requisite to sending it to your institution or title company.
Sincerely,
Daniel G. Abel
La. Bar No. 8348
17-30519.2565


Complainant, *
* NO. 07-cv-06983, c/w
*
*
*****************************

IN RESPONSE TO DEFENDANTS’ OPPOSITION [R. DOC. 267]
NOW COMES the Complainant herein, Shane M. Gates, through his undersigned coun-
sel, who respectfully moves this Honorable Court to grant him leave to file the attached Reply
Memorandum in response to the Opposition filed by the Defendants herein [Rec. Doc. 267],
which itself was in response to Mr. Gates’ Rule 60 Motion [Rec. Doc. 258].
That Opposition contains factual misstatements which Mr. Gates desires, and is entitled
to, bring to this Court’s notice and to rebut, as is outlined in the proposed Reply Memorandum.
WHEREFORE, Shane M. Gates respectfully requests that he be granted leave to file his
attached Reply Memorandum to the Defendants’ Opposition.
/s/ J. A. Hollister
(985) 792-5353
SMG Mtn for Leave to File Reply Memo Page 1 of 2
17-30519.2566
/s/ J. A. Hollister
SMG Mtn for Leave to File Reply Memo Page 2 of 2
17-30519.2567


Complainant, *
* NO. 07-cv-06983, c/w
*
*
*****************************
COMPLAINANT’S MEMORANDUM IN SUPPORT

OF MOTION FOR LEAVE TO FILE REPLY MEMORANDUM
who respectfully files this Memorandum in Support of his Motion for Leave to file a Reply
Memorandum in response to the Opposition filed by the Defendants herein [Rec. Doc. 267],
which itself was in response to Mr. Gates’ Rule 60 Motion [Rec. Doc. 258].
The Defendants’ Opposition [Rec. Doc. 267] makes a number of factual misstatements
which, in the context of Mr. Gates’ original Motion [Rec. Doc. 258] and his Memorandum in
Support thereof [Rec. Doc. 258-1], constitute new matter, to which he desires, and is entitled, to
respond. Further, because, throughout the entire history of these two consolidated cases, there
has never been any evidentiary hearing or trial held, there has never been any factual record
made, for which reason it is necessary in the interests of justice that Mr. Gates be given every
opportunity to spread on the record as fully as possible both his arguments and the evidence that
supports those arguments.
SMG Memo in Suppt of Mtn for Leave Page 1 of 2
17-30519.2568
WHEREFORE, in the interests of justice, Shane Gates respectfully requests this Honor-
able Court to grant him leave to file the attached Reply Memorandum in response to the
Defendants’ Opposition to his Rule 60 Motion.
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
SMG Memo in Suppt of Mtn for Reply Memo Page 2 of 2
17-30519.2569

Complainant, *
* NO. 07-cv-06983, c/w
*
*
*****************************
ORDER FOR LEAVE TO FILE

RULE 60 MOTION (REC. DOC. 267)
CONSIDERING the Motion for Leave to File Reply Memorandum (Rec. Doc. _____)
filed herein by the Complainant, Shane M. Gates, and the Court finding good cause therefor,
IT IS ORDERED by the Court that Shane M. Gates be, and he hereby is, granted leave
to file his aforesaid Reply Memorandum.
New Orleans, Louisiana, this ______ day of June, 2017.
___________________________________
CARL J. BARBIER,
U.S. DISTRICT JUDGE
Order for Leave to File Reply Memo re R 60 Mtn Page 1 of 1
17-30519.2570


Complainant, *
* NO. 07-cv-06983, c/w
*
*
*****************************

RULE 60 MOTION AND MEMORANDUM IN SUPPORT THEREOF
who respectfully files this Reply Memorandum to the Opposition filed by the Defendants herein
[Rec. Doc. 267] in response to Mr. Gates’ Rule 60 Motion [Rec. Doc. 258].
I. FACTUAL BACKGROUND.
This matter consists of two consolidated cases, one filed in 2007 (No. 07-cv-06983) and a
separate and distinct one filed in 2013 (No. 13-cv-06425). In neither of these cases has the
District Court ever considered any facts, testimony, or evidence. It is for that reason the
Defendants now seek to have stricken from the record the affidavits and other exhibits attached
to Mr. Gates’ pending Motion because those exhibits detail the various types of fraud, fabrication
of evidence, and alteration of public records that the Defendants perpetrated in the original state
court proceedings out of which these civil actions arose.
The Defendants’ strategy has depended upon fostering twin illusions. The first is that Mr.
17-30519.2571
Gates has delayed the hearing of these federal civil rights actions, when in fact he filed several
motions to open these federal actions so that they can proceed; each of these motions has been
opposed by these Defendants and, in fact, it is those same Defendants who sought originally to
delay these cases’ progress to trial. Similarly, they have fostered the illusion that it was Mr.
Gates who was responsible for the failure of the 2006 and 2007 misdemeanor charges to proceed
to trial in the state 22nd Judicial District Court, when in fact it was the choice of the 22nd
Judicial District Attorney to refrain from setting those misdemeanors for trial and, instead, to
concentrate on attempting to obtain a conviction on the fabricated felony aggravated flight charge
which the trial jury summarily threw out.
It was only long after those dormant misdemeanor charges had become irreparably stale
under both Louisiana statutory law and federal case law, and after all of the State’s evidence that
could be used to prove the misdemeanor charges had already been fruitlessly placed before the
trial jury in the felony case, that the State ever paid any attention to those overlooked charges.
The Defendants have indulged in an ad hominem argument to support their collateral at-
tack on Mr. Gates’ exhibits. They suggest that those exhibits should be disregarded by this Court
because among them there is an affidavit by one of Mr. Gates’ state court trial attorneys, Daniel
G. Abel. The ad hominem part is that they suggest that Mr. Abel’s affidavit is somehow untrue
because he has been subjected to an interim suspension order by the Louisiana Supreme Court
[Rec. Doc. 267-3]. And further, in a massive non sequitur, they seem to suggest, if Mr. Abel’s
affidavit is for some reason deemed not to be credible, then every other exhibit Mr. Gates has
attached to his pleadings is likewise not worthy of credence.
17-30519.2572
But quite apart from the logical fallacies inherent in the Defendants’ argument, they have
signally failed to reveal to this Court several material facts relating to that matter. The first is
that the purported disciplinary proceeding that eventuated in Rec. Doc. 267-3 was filed by the
then-District Attorney of the 22nd Judicial District, the now-convicted multiple felon, Walter
Reed, who is one of the named Defendants in these instant actions. Another is that Reed’s
complaint against Mr. Abel was just another example of Reed’s pattern and practice of seeking to
obtain improper advantages in civil actions brought against elected officials and governmental
entities, in this instance by depriving Shane Gates of his counsel of record in these instant civil
rights actions. Another is that Reed’s complaint alleged no actual acts of misconduct, nor did the
Louisiana Disciplinary Board ever formulate any actual charges against Mr. Abel, nor was Mr.
Abel ever afforded any opportunity of a hearing on those non-existent charges. Instead, the
proceedings against him were both summary and, effectively, ex parte.
Thus the interim suspension to which the Defendants now refer was imposed in complete
facial violation of Mr. Abel’s constitutional due process rights. The fact of these blatant
violations was implicitly recognized by the United States Court of Appeal for the Fifth Circuit
(see Exhibit “A” hereto) when it considered Mr. Abel’s submission to it regarding its inquiry
about possible reciprocal disciplinary action against him based on the Louisiana Supreme Court’s
suspension (see Exhibit “B” hereto).
Nor was Mr. Gates’ case the only one in which Walter Reed sought, by means of this fic-
titious disciplinary complaint, to deprive affected citizens of Mr. Abel’s representation. One of
the matters involved a politically-prominent1 attorney in St. Tammany Parish whose massive
1
The connections of the attorney concerned, William Magee, are illustrated by one of Sheriff Jack Strain’s first
actions on assuming office, which was to appoint Mr. Magee as attorney for the Sheriff’s Office. Further, in some of
17-30519.2573
the federal court litigation over fraudulent land titles, Mr. Magee and his company were represented by the current
District Attorney, Warren Montgomery.
scheme of real property theft and forging of real estate titles defrauded numerous people out of
hundreds of thousands of dollars (see Exhibits “C” and “D” hereto). This scheme was the
subject of a successful civil suit brought by Mr. Abel in this District Court, Martin v. Fidelity
National Title Insurance Co., E.D.La. No. 09-cv-04195. (At the time of this writing, a discipli-
nary proceeding against that attorney is pending, including an evidentiary hearing before the
Louisiana Disciplinary Board’s hearing panel that concluded as long ago as September 29, 2016,
but the matter seems now to be languishing in some sort of bureaucratic limbo.)
A quick perusal of these Exhibits shows why the Defendants have been so anxious to si-
lence Mr. Abel, although they do not explain why the Louisiana Supreme Court lent them its aid
in doing so.
II. HOBBS ACT VIOLATIONS.
The Defendants attempt to gloss over the numerous Hobbs Act violations that Mr. Gates
has cited by referring to an earlier incident in these cases when Mr. Gates’ counsel stated that he
was not pursuing Hobbs Act remedies. This is deliberately confusing apples and oranges. While
Mr. Gates has not framed his § 1983 civil rights cases so as to seek relief under the Hobbs Act,
the fact that the Defendants have committed a multitude of violations of that statute is material to
these actions. That is because Hobbs Act violations are, ipso facto, evidence of corruption and,
therefore, of denials of due process and other constitutional guarantees.
These highly-indicative crimes against Mr. Gates, which thus illustrate how his constitu-
tional rights have been persistently violated, were committed, inter alia, by the former St.
Tammany Parish DA Walter Reed, who on May 2, 2016 was convicted of a number of federal
17-30519.2574
public corruption (i.e., Hobbs Act) crimes. The beneficiaries of the acts of public corruption
(Hobbs Act crimes) committed in Mr. Gates’ cases were St. Paul Travelers, Walter Reed himself,
and many of the other Defendants in these consolidated cases. These Hobbs Act crimes include,
by way of illustration but not limitation:
(1) the fabrication of evidence such as the purported Nathan Miller “victim
letter” and the dispatch tapes that were first hidden from the defense and
then altered prior to their production;
(2) the destruction of evidence, such as Deputy Sheriff Roger Gottardi’s per-
sonnel records, which bear directly upon this key witness’s credibility;
(3) the fabrication and alteration of public records, including docket sheets
and minute entries in the felony criminal prosecution, which the State has
used to attempt to claim that the misdemeanor charges had been set for tri-
al before they expired; and, among others,
(4) the fabrication of evidence used to initiate the resisting arrest proceedings.
III. THE DISTRICT COURT’S DENIAL OF MR. GATES’S REQUEST

FOR AN EVIDENTIARY HEARING.
On two separate occasions, Mr. Gates’ counsel asked the staff of Section “J” of this Court
about his requests for oral argument and an evidentiary hearing and on both those occasions that
staff informed Mr. Gates’ counsel that it was the standard policy of this Section that whenever a
party requested oral argument and/or an evidentiary hearing, those requests were automatically
granted unless the parties were affirmatively notified to the contrary. Thus when Mr. Gates’
counsel appeared for the March 16, 2017 hearing on Mr. Gates’ motion to lift the stay herein, his
counsel, in reliance upon that staff’s representations regarding the Court’s standard operating
procedures, came prepared to offer a number of witnesses and a mass of documentary evidence.
Only this Court’s refusal to permit the introduction of that evidence prevented its being entered
17-30519.2575
into the record at that hearing.
Thus it is nonsense for the Defendents to suggest, as they do in their Memorandum in
Opposition [Rec. Doc. 267] – but not in any motion to strike or other pleading upon which relief
could properly be granted – that Mr. Gates cannot now submit those materials as Exhibits to his
pleadings. According to those Defendants, he could have filed them prior to that March 16
hearing. But that contention would create an impossible “heads you win, tails you lose”-style
trap. He could not have known he would need to file those evidentiary items in advance because
he had been assured that there would be a hearing at which they could be introduced; the first he
knew to the contrary was during the hearing itself, when the trial judge refused to receive
evidence (see Transcript of Hearing on March 16, 2017, p. 3).
IV. THE RULE 60 MOTION AND LEGAL STANDARD.
At the March 16, 2017, Judge Barbier asked counsel for the District Attorney’s Office, “If
Mr. Gates prevails, who will have to pay for it?” This raises issues never previously raised in the
federal courts. What legitimate interest is there in who must respond in damages in a successful
civil rights suit? Much more relevant and legitimate are the civil rights violations committed by
the Defendants and it is to conceal these that the Defendants suggest in their memorandum—but,
notably, do not include in any motion or other proper mode of requesting relief—that Mr. Gates’
Exhibits should be stricken.
Rule 60, Fed. R. Civ. Proc., provides for relief from judgments and proceeding as fol-
lows:
“Rule 60. Relief from a Judgment or Order

“(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a
17-30519.2576
final judgment, order, or proceeding for the following reasons:

“(1) mistake, inadvertence, surprise, or excusable neglect [by The Trial
Court];
“….
“(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
“….
“(6) any other reason that justifies relief.”
These factors clearly exist in the instant situation.
VI. CONCLUSION.
For the reasons set forth in Shane Gates’ original Rule 60 Motion and Memorandum in
Support of that Motion, and in this Reply Memorandum, his Rule 60 Motion should be granted,
this Court’s Judgment (Rec. Doc. 256) dismissing his civil rights cases should be vacated, and
his prior Motion to Lift Stay, etc. (Rec. Doc. 239 & 240) should be granted.
/s/ J. A. Hollister
(985) 792-5353
/s/ J. A. Hollister
17-30519.2577
United States Coart of Appeals

F'IFTH CIRCUIT
OFFICE OF TIIE CLERK
LYLE W, CAYCE TEL. 504-310-7799

CLERK 600 S. MAESTRI PLACE
NEWORLEANS. LA 70130
Februarv 19.2015
Daniel G. Abel
2421 Clearview Pkwv. Ste 106
Metairie, LA 70001
bv pvtRrr AND REGULAR MArL

Dear Mr. Abel:
Further to your recent response to this Court's order to show cause why your right to practice
before this Court should not be suspended, please be advised that Chief Judge Stewart has
decided to hold this Court's reciprocal disciplinary proceedings against you in abeyance pending
final resolution of the Supreme Court of Louisiana discipline proceeding.
Please keep this court advised of the status of the state proceeding. You are directed to provide
this Court, within fifteen days of issuance, with a copy of any judgment or order entered by
Supreme Court of Louisiana. Failure to keep this Court informed of the status of the proceeding
may result in the imposition of reciprocal discipline without further notice.
Very truly yours,
LYLE W. CAYCE, Clerk
Shelleytr. Saltzman
Deputy Clerk
17-30519.2578
No. 14-30929

FIFTH CIRCUIT

V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA
NO. 6:10-CV-1557
COMPLIANCE WITH ORDER GRANTING PLAINTIFFS-APPELLANTS’

COUNSEL DANIEL G. ABEL LEAVE TO EXPLAIN INTERIM
SUSPENSION BY THE LOUISIANA SUPREME COURT
_______________________________________________________
Daniel G. Abel
Metairie, LA 70001
17-30519.2579
No.14-30929

FIFTH CIRCUIT

V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
_______________________________________________________
SIGNATURES AND CONTACT INFORMATION OF COUNSEL

FOR PLAINTIFFS-APPELLANTS WEBB
_______________________________________________________
This brief is submitted by counsel for plaintiffs-
appellants Bishop Belva Webb and Mrs. Faith Webb.
Respectfully
s/ Daniel G. Abel
Daniel G. Abel
Metairie, LA 70001
Page 2
17-30519.2580
No.14-30929

FIFTH CIRCUIT

V.
JOSEPH P. MORELLA
DEFENDANT-APPELLEE
_______________________________________________________
CERTIFICATE OF INTERESTED PERSONS

_______________________________________________________
In compliance with Rule 28.2.1 undersigned counsel
of record certifies that these persons have an interest
in the outcome of this case.
1. Bishop Belva Webb

Plaintiff-Appellant
2. Mrs. Faith Webb

Plaintiff- Appellant
3. Mr. Joseph P. Morella

Defendant-Appellee
4. Mr. James L. Pate, Attorney

Mr. James Huey Gibson, Attorney
Ms. Sara Beth Rodrigue, Attorney
Counsel for Joseph P. Morella
Page 3
17-30519.2581
Respectfully
s/ Daniel G. Abel
D ANIEL G. A BEL [L A #8348]

Metairie, LA 70001
Page 4
17-30519.2582
______________________________________________________________________
COMPLIANCE WITH ORDER GRANTING COUNSEL

LEAVE TO ADDRESS HIS INTERIM SUSPENSION
_______________________________________________________
On 19 November 2014, counsel for plaintiffs-
appellants put this Honorable Court on notice that the
Louisiana Supreme Court had issued an order of interim
suspension against him on 6 November 2014.
In a complete denial of Mr. Abel’s due process
rights, the Louisiana Supreme Court gave Mr. Abel no
notice of time to file a response to the Office of
Disciplinary Counsel’s petition for interim suspension,
completely denied him any discovery, never provided a
hearing and gave no reasons for the suspension in Its
one-page order.
In summary, the Louisiana Supreme Court never
afforded Mr. Abel any of the protections guaranteed by
the United States Constitution or the Louisiana
Constitution. As such, Mr. Abel should be allowed to
continue to represent the clients Belva and Faith Webb,
as their chosen attorney, in this matter.
Page 5
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The interim suspension has nothing to do with Mr.
Abel committing a crime, endangering his clients, or
posing a threat to the public. Instead, this is old
fashioned, good-ole-boy politics at its worst: the
Louisiana Supreme Court’s Office of Disciplinary
Counsel, its chief counsel, Charles Plattsmier, and
their cronies are attempting to silence Mr. Abel from
continuing to reveal the illegal and corrupt practices
of Mr. Plattsmier’s friends and associates. At issue
also is certain information and evidence as to who
benefits from numerous contracts awarded by the Office
of Disciplinary Counsel.
Why else would no discovery and no hearing be
granted to Mr. Abel before a one-page order without
reasons suspending him from the practice of law was
issued?
Worse yet, the interim suspension affects the
rights of Mr. Abel’s clients, who have chosen him to
represent him (in fact, his zealous representation of
some of those clients is the reason behind the interim
Page 6
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suspension) and who want him to continue to represent
them in the matters pending before the Louisiana state
and federal courts. Mr. Abel will challenge the
interim suspension in due course in an appropriate
forum. In the meantime, Mr. Abel should be allowed to
practice before this Court.
I. T HE I NTERIM S USPENSION IS A C OVER-U P - U NDERLYING F ACTS
The Office of Disciplinary Counsel, through Mr.
Charles Plattsmier and Mr. Robert Kennedy petitioned
the Louisiana Supreme Court to issue an order to
protect Mr. Plattsmier’s and Mr. Kennedy’s cronies from
Mr. Abel’s revelation of the crimes those cronies
perpetrated. The interim suspension has nothing to do
with any misconduct involving Mr. Abel: he has not
been charged or convicted of any misconduct involving
crimes, endangering his clients, or endangering the
public.
Specifically, Mr. Abel represents several criminal
defendants in cases pending in the 22nd Judicial strict
the Parish of St. Tammany. The Office of Disciplinary
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Counsel subpoenaed Mr. Abel to give a sworn statement
on 30 September 2014, about each criminal defendant’s
case pending in the 22nd Judicial District Court for
the Parish of St. Tammany and issued a subpoena duces
tecum for Mr. Abel to produce each criminal defendant’s
files. As the criminal cases were ongoing Mr. Abel
informed the Office of Disciplinary Counsel and Mr.
Kennedy that he would not produce the criminal
defendants’ files.
interim suspension.
Page 8
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Mr. Plattsmier, Mr. Kennedy, and the Office of
Disciplinary Counsel did so to cover-up severe state
and federal crimes committed by public officials who
are the targets of federal agency investigations with
whom Mr. Abel and others have been cooperating since
2008.
Mr. Plattsmier and Mr. Kennedy have personal and
professional relations with the persons for whom their
petition would provide cover. By way of example, Mr.
Abel has exposed, and reported to the pertinent
authorities, the following criminal acts involving Mr.
Plattsmier’s and Mr. Kennedy’s cronies and associates:
1. William Magee. Complaints have been filed against
William Magee with the Office of Disciplinary
Counsel and in the United States District Court.
(Mr. Magee also filed a complaint against Mr. Abel
but no action was taken arising from the Magee
complaint). Mr. Magee is accused of running a
quitclaim deed enterprise in which he stole
property owners’ homes. Mr. Plattsmier and Mr.
Page 9
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Magee were classmates at law school and Mr. Kennedy
has personally asked the homeowners who filed the
complaints against Mr. Magee, if they would testify
against Mr. Abel, instead. The interim suspension
of Mr. Abel was sought in part to cover up his
reporting of Mr. Magee and his quit claim
enterprise to state and federal law enforcement
agencies and to protect Mr. Plattsmier’s and Mr.
Kennedy’s crony Mr. Magee from repercussions for
his criminal enterprise. Incredibly, even after
Mr. Magee admitted forging signatures, it is Mr.
Abel whom Mr. Plattsmier and Mr. Kennedy are
prosecuting before the Louisiana Supreme Court, not
their friend Mr. Magee. The interim suspension is
an obvious cover up.
2. Belva and Faith Webb. In a meeting with Patterson
Town Court Judge Joseph P. Morella at his law
office, when he was questioned about a real estate
matter by the Webbs, became enraged, cursing the
Webbs, calling them: “you son-of-a-bitchen
Page 10
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niggers,” “you black Mother Fuckers,” and “you
black-assed niggers.” While they were trying to
get out of his private law office, Morella
physically threatened the Webbs, causing Mrs. Webb
to fall down the front stairs. Although this took
place in Judge Morella’s private law office, his
actions call into question his fitness as judge.
The Webbs filed a disciplinary complaint. The
Webbs and counsel challenged the Office of
Disciplinary Counsel’s position, have stated
repeatedly, and believe, “that a person who is a
racist and acts on that racist conduct is morally
unfit to be an officer of the courts. Before
filing this suit in the United States District, the
Office of Disciplinary Counsel refused to even
respond to the Webbs’ complaint. It was evident
from the outset that the Office of Disciplinary
Counsel was intent on quashing this matter. Mr.
Plattsmier formerly of Morgan City has protected
the defendants in this matter and by doing so the
Page 11
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Office of Disciplinary Counsel has created a racist
policy as to permissible conduct.
Then subsequently, at the insistence of Patterson
Police Chief Patrick LaSalle, Mr. Webb was
instructed by his employer the St. Mary Parish
School Board to go to The Bourgeois Medical Center
in Morgan City for drug screen testing. As Webb
does not take drugs and had not done so, he agreed
to go for the testing. Unknown to the police and
the Bourgeois doctors Mr.Webb took three (3) drug
screens on 17 February 2012, not only the drug
screen the police set up with The Bourgeois Medical
Clinic in Morgan City but two privately arranged
tests as well. Webb tested negative on the test
immediately before and the test immediately after
the police drug screen, on which he tested—not
surprisingly—positive. The police drug screen was
fabricated and as such not only constitutes
obstruction of justice but also violates federal
and state criminal law. Mr. Abel was in contact
Page 12
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personally with the Department of Justice during
the day and reported the fabricated drug screen.
II. L AW AND A RGUMENT: N O B ASIS F OR S USPENDING M R. A BEL FROM
P RACTICING IN T HIS C OURT
The order of the Louisiana Supreme Court against
Mr. Abel is contrary to the rules requisite for interim
suspension which require that the actions of the lawyer
must pose a threat of harm to the public. But no client
or defendant has filed a complaint against Mr. Abel,
only public officials whose actions Mr. Abel had
reported in public pleadings and in cooperation to the
federal and state agencies. There is no misconduct
justifying the interim suspension, and there was no due
process afforded Mr. Abel in the “proceedings” against
him.
That is clear from the most recent examples of
interim suspensions ordered by the Louisiana Supreme
Court which have involved attorneys who have been
involved in the drug trade, taken money unlawfully from
clients, been convicted of crimes including bank fraud,
Page 13
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or had prohibited sexual relationships with clients. In
each instance the Louisiana Supreme Court has given
reasons why such attorneys pose a threat of harm to the
public. Mr. Abel has done no such things as caused the
other attorneys to be suspended. Not surprisingly, with
no discovery, no hearing, and no due process, the
Louisiana Supreme Court could not [and did not] give
any reason for the suspension in Its one-page order.
It is telling that in almost each instant
complained of by Mr. Plattsmier, Mr. Kennedy, and the
Office of Disciplinary Counsel, Mr. Abel has gone to
state and federal law enforcement agencies and has
reported the conduct and crimes uncovered by him and
others.
As noted above, a number of those public officials
and several attorneys are professional and personal
friends of Mr. Plattsmier, Mr. Kennedy, and have been
given cover by the Office of Disciplinary Court, which
is a agency of the Louisiana Supreme Court itself. The
Page 14
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language of the rule for interim suspension is clear
and has not application against Mr. Abel here.
Section 19.2. Interim Suspension for Threat of
Harm. A. Transmittal of Evidence. Upon receipt of
sufficient evidence demonstrating that a lawyer subject
to the disciplinary jurisdiction of this court has
committed a violation of the Rules of Professional
Conduct or is under a disability as herein defined and
poses a substantial threat of serious harm to the
public, [the Louisiana Supreme Court can issue an order
of immediate suspension (Emphasis Added).
III. D UE P ROCESS J URISPRUDENCE—R IGHT T O K NOW C HARGES, R IGHT
TO D ISCOVERY, R IGHT TO H EARING, R IGHTS TO R EASONS FOR
I NTERIM S USPENSION, P ROTECTION OF P RIVILEGE IN C ASE OF
C RIMINAL C LIENTS’ I NFORMATION AND F ILES.
The United States Supreme Court has long
established that due process requires, at a minimum,
that absent a countervailing state interest of
overriding significance, persons forced to settle their
Page 15
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claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard.
Early in our jurisprudence, this Court voiced the
doctrine that "[w]herever one is assailed in his person
or his property, there he may defend," Windsor v.
McVeigh, 93 U.S. 274, 277 (1876). See Baldwin v. Hale,
1 Wall. 223 (1864); Hovey v. Elliott, 167 U.S. 409
(1897).
The theme that "due process of law signifies a
right to be heard in one's defense," Hovey v. Elliott,
supra, at 417, has continually recurred in the years
since Baldwin, Windsor, and Hovey. Although "[m]any
controversies [401 U.S. 371, 378] have raged about
the cryptic and abstract words of the Due Process
Clause," as Mr. Justice Jackson wrote for the Court in
Mullane v. Central Hanover Tr. Co., 339 U.S. 306
(1950), "there can be no doubt that at a minimum they
require that deprivation of life, liberty or property
by adjudication be preceded by notice and opportunity
Page 16
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for hearing appropriate to the nature of the case."
Id., at 313.
Due process does not, of course, require that the
defendant in every civil case actually have a hearing
on the merits. A State, can, for example, enter a
default judgment against a defendant who, after
adequate notice, fails to make a timely appearance, see
Windsor, supra, at 278, or who, without justifiable
excuse, violates a procedural rule requiring the
production of evidence necessary for orderly
adjudication, Hammond Packing Co. v. Arkansas, 212 U.S.
322, 351 (1909).
What the Constitution does require is "an
opportunity . . . granted at a meaningful time and in a
meaningful manner," Armstrong v. Manzo, 380 U.S. 545,
552 (1965) (emphasis added), "for [a] hearing
appropriate to the nature of the case," Mullane v.
Central Hanover Tr. Co., supra, at 313. The formality
and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved
Page 17
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and the nature of the subsequent proceedings. That the
hearing required by due process [401 U.S. 371, 379] is
subject to waiver, and is not fixed in form does not
affect its root requirement that an individual be given
an opportunity for a hearing before he is deprived of
any significant property interest, except for
extraordinary situations where some valid governmental
interest is at stake that justifies postponing the
hearing until after the event. 6 In short, "within the
limits of practicability," id., at 318, a State must
afford to all individuals a meaningful opportunity to
be heard if it is to fulfill the promise of the Due
Process Clause.
The requirements of procedural due process apply
only to the deprivation of interests encompassed by the
Fourteenth Amendment's protection of liberty and
property. When protected interests are implicated, the
right [Board of Regents v. Roth, 408 U.S. 564, 570;
1972] to some kind of prior hearing is paramount. But
Page 18
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the range of interests protected by procedural due
process is not infinite.
But the rights of privilege and protection of the
attorney-client information in cases such as those at
issue from the 22 nd Judicial District Court of St
Tammany Parish, are solidly within the protections of
due process.
The Roth Court went on to hold: We must look to see
if the interest is within the Fourteenth Amendment's
protection of liberty and property.
"Liberty" and "property" are broad and majestic
terms. They are among the "[g]reat [constitutional]
concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain of
social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society
remains unchanged." National Ins. Co. v. Tidewater Co.,
337 U.S. 582, 646 (Frankfurter, J., dissenting). For
that reason, the Court has fully and finally rejected
the wooden distinction between "rights" and
Page 19
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"privileges" that once seemed to govern the
applicability of procedural due process rights. The
Court has also made clear that the property interests
protected by [408 U.S. 564, 572] procedural due
process extend well beyond actual ownership of real
estate, chattels, or money. By the same token, the
Court has required due process protection for
deprivations of liberty beyond the sort of formal
constraints imposed by the criminal process.
Yet, while the Court has eschewed rigid or
formalistic limitations on the protection of procedural
due process, it has at the same time observed certain
boundaries. For the words "liberty" and "property" in
the Due Process Clause of the Fourteenth Amendment must
be given some meaning.
"While this Court has not attempted to define with
exactness the liberty . . . guaranteed [by the
Fourteenth Amendment], the term has received much
consideration and some of the included things have been
definitely stated. Without doubt, it denotes not merely
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freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to
worship God according to the dictates of his own
conscience, and generally to enjoy those privileges
long recognized . . . as essential to the orderly
pursuit of happiness by free men." Meyer v. Nebraska,
262 U.S. 390, 399 . In a Constitution for a free
people, there can be no doubt that the meaning of
"liberty" must be broad indeed. See, e. g., Bolling v.
Sharpe, 347 U.S. 497, 499 -500; Stanley v. Illinois,
405 U.S. 645 . [408 U.S. 564, 573].
That meaning also includes an attorney’s obligation
to defend the constitutional and due process rights of
his clients.
Mr. Plattsmier and Mr. Kennedy wanted the files of
each criminal defendant and wanted Mr. Abel to give a
sworn statement about each defendant and his case.
Page 21
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interim suspension.
The point was proven; the purpose of filing the
petition and suspending Mr. Abel is and was to cover-up
the illegal activities and crimes of the friends and
associates of Mr. Plattsmier and Mr. Kennedy, and not
to protect the public from any harm imagined.
C ONCLUSION
No evidence of substantial harm to the public has
been alleged or proved. As such, there were no grounds
for suspension. This Court should conduct Its own
Page 22
17-30519.2600
investigation of these matters and crimes underlying
these matters. Mr. Abel should be allowed to continue
practicing in the Fifth Circuit Court of Appeal.
Respectfully submitted, 23 DECEMBER 2014
s/ Daniel G. Abel
Daniel G. Abel [La #8348]

Metairie, LA 70001
Counsel for the Webbs
Page 23
17-30519.2601
Certificate of Compliance with
Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements
This Compliance of Appellants complies with the
type-volume limitation of Fed. R. App. P. 32 a(7)(B)
because it is fewer than thirty (30) pages in length
and contains 2,829 words, fewer than 14,000 words
excluding the parts of the brief exempted by Fed. R.
App. P. 32a(7)(B)(iii).
Respectfully,
S/ Daniel G. Abel
_________________
Daniel G. Abel
Page 24
17-30519.2602
DANIEL ABEL
Telephone: 504.284.8521 / 888.577.8815 [F]
15 September 2016
Governor John Bel Edwards Louisiana Attorney General Jeff Landry

Office of the Governor Louisiana Department of Justice
PO Box 94004 1885 North Third Street
Baton Rouge, LA 70804 Baton Rouge, LA 70802
Attn: Chief Legal Counsel Executive@ag.louisiana.gov
matthew.block@la.gov CriminalInfo@ag.louisiana.gov
InvestigationInfo@ag.louisiana.gov
Re: Attorney William Magee / Real Property Adjudicated to the State of Louisiana & Stolen
by Attorney William Magee & Hickory Glade, Inc. / Conflict with former District
Attorney Walter Reed, AG Buddy Caldwell & District Attorney Warren Montgomery
Dear Governor Edwards and Attorney General Landry:
The Louisiana Land Office has been investigating the theft of real property adjudicated to the State
of Louisiana in St. Tammany Parish for a number of years. Because of the connection between
former, now convicted District Attorney Walter P. Reed and former Attorney General Buddy
Caldwell, nothing was done and no one was prosecuted. This failure to take action includes taking
action against Covington Attorney William Magee and Hickory Glade, Inc., the company he used
to create the fraudulent interest in those properties which were already adjudicated to the State of
Louisiana.
We have cooperated with the state and federal law enforcement agencies in these matters since 2008.
We have provided the FBI and DOJ with the thousands of documents probative of these crimes and
theft of properties already adjudicated to the State of Louisiana and some to the federal government.
The administration and legislature should consider and enact more specific laws to prevent the future
theft of the real property such as has been done by Mr. Magee and his enterprise over the last twenty
years. There are experts at the L.S.U. law school who have studied this matter and are conversant
with what provisions in such statutes might prevent similar quitclaim theft in the future.
The United States District Court for the Eastern District of Louisiana has already found that Mr.
Magee created Hickory Glade, Inc. for the purpose of claiming and transferring interests in property
to Mr. Magee that it [Hickory Glade, Inc.] had no interest in [Case No. 09-04195 / Judgment No. 214
- Rec. Doc. 214. Will Provide Upon Request Exhibits Re: Chief Judge Sarah Vance’s Order and
Judgment, See: Pages 11-13]. The federal court issued a judgment against Mr. Magee in the Martin
vs. Fidelity case finding that he committed the acts which one of his co-defendants accused him of
Page 1 of 4
17-30519.2603
and subsequently proved to the court. Magee paid Fidelity fees and all costs ordered by the Court.
The Louisiana Office of Disciplinary Counsel formally charged William Magee [15-DB-016 / In re:
Magee] for these crimes including Hickory Glade’s fraudulent quitclaim scheme to transfer
properties it did not own and William Magee’s forgery of Tim Dunaway’s signature [and false
notarization] of the quitclaim deeds used in the theft of numerous properties. The ODC has held
three public hearings before the appointed panel, all briefs have been submitted and the panel
returned its original finding and the Disciplinary Board hearing is set for 29 September 2016, at its
office in Metairie [Louisiana Attorney Disciplinary Board / 2800 Veterans Memorial Blvd., Suite
310 / Metairie, Louisiana 70002 / Tel: (504) 834-1488 or (800) 489-8411. The Office of Disciplinary
Counsel filed its formal charges against attorney William M. Magee on 21 April, 2015. After the 29
September 2016 Disciplinary Board Hearing, the matter with go for final judgment to the Louisiana
Supreme Court.
Among the crimes committed by William Magee and his partners in the enterprise, were those listed
in the RICO action with reference to the public documents and instruments used to fraudulently
obtain the real properties owned by the State of Louisiana [Will Provide Upon Request Exhibits Re:
Federal & State Crimes With Reference of Instruments and Evidence in the Records of the 22nd JDC
for St. Tammany Parish].
I also presented these facts to the Ethics Counsel for the Louisiana Bar Association, which reviewed
my letter to the Banks and Financial Institutions and approved of my sending it to 45 financial
institutions in St. Tammany Parish to warn them of the fraud and theft of real properties which
mortgages were already called into question. [Will Provide Upon Request Exhibits Re: Abel Letter
to St. Tammany Banks]
1. The ODC has formally charged Mr. William Magee in April of 2015, with fraud and forgery
and theft of three properties in St. Tammany; the ODC and concluded its third hearing on
Friday, 19 February 2016. The panel’s findings will be heard at the Disciplinary Board
Meeting on 29 September 2016 in its Metairie Office.
2. The homeowners whose property and titles were effected, have all testified and proven what
the ODC through Mr. Kennedy has alleged in the formal charges against Mr. Magee.
3. Over the course of 20 years attorney William Magee and Hickory Glade have stolen through
fraudulent motions for summary judgment and quitclaim deeds, more that 100 real
properties, whose rightful owners including the State of Louisiana, have never been able to
repossess their ownership. The Louisiana Land Office can confirm these facts as they have
been involved in the investigation of this theft of these properties for a number of years.
4. The formal charges filed by the ODC against William Magee present a concise summary of
the crimes committed by Magee and his enterprise in their theft of property from the State
of Louisiana and the other rightful, legal heirs and owners. However, we shall provide the
Page 2 of 4
17-30519.2604
State with all documents and evidence probative of these crimes and this fraud.
5. It is important to note that the judgments signed by certain 22nd JDC judges were those with
personal and financial relationships with William Magee, although not one of the cases were
randomly allotted to the judge or was the duty judge on the days when Mr. Magee brought
the judgment to them for their signature. Mr. Magee was the campaign finance chairman for
several of the judges who signed his fabricated judgments.
In addition to the personal relationships which prevented former District Attorney Walter Reed and
Attorney General Buddy Caldwell from prosecuting Mr. Magee, current District Attorney Warren
Montgomery has a personal conflict such that under Louisiana law and the Judicial Canons, he
cannot now prosecute this fraud and property theft case because of his professional and personal
relationship with Mr. Magee and his family, although the property theft took place in St. Tammany
Parish.
District Attorney Mr. Montgomery cannot and has not prosecuted Mr. Magee, as Mr. Montgomery
himself, was the only attorney of record who represented Mr. Magee’s company Hickory Glade and
his wife and co-defendant Ms. Karen Magee. They were both defendants in the federal RICO action
filed in the Eastern District of Louisiana [Will Provide Upon Request Exhibits Re: Martin vs.
Magee / Case No. 10-2786 / See: Rec. Doc. 5 - RICO Statement]. The facts and evidence uncovered
during the investigation in the federal case is what the ODC used [in part] to formally charge Mr.
Magee. Although I cannot speak for the federal or state law enforcement agencies, based on my
continuing interaction with these agencies, I presume the state and federal investigations are ongoing.
The ODC did not and could not consider all the crimes committed by Mr. Magee, but those crimes
were identified and the instrument numbers cited which are probative of those crimes and which are
in the record of the office of the Clerk of Court for the 22nd Judicial District for St Tammany Parish
[Will Provide Upon Request Exhibits Re: Federal & State Crimes With Reference of Instruments
and Evidence in the Records of the 22nd JDC for St. Tammany].
I will be happy to cooperate with you in any investigation and prosecution associated with your
rectifying this continuing theft of property from the State of Louisiana and the rightful heirs and
owners of these properties. I suspect that our experts who have worked for years on this fraud, will
be happy to cooperate with your offices as well as title insurance experts working with the ODC.
The Louisiana Land Office can confirm these facts as they have been involved in the investigation
of this theft of these properties for a number of years. Your offices should contact the Louisiana
Land Office for additional information.
Sincerely yours,
/s/ Daniel G. Abel
Daniel G. Abel
Page 3 of 4
17-30519.2605
Nota Bene:
I was informed yesterday, that one of the experts involved in the investigation of the Magee
enterprise, who also worked in cooperation with the FBI and DOJ in their investigation of Mr.
Magee, filed a complaint against Mr. Magee recently. I did not know that he had filed a complaint
until he called me on September 6, 2016. The attorney now representing Mr. Magee filed a response
to his complaint.
It is of serious concern that Mr. Magee is now represented by Mr. Damon S. Manning, who was one
of the attorneys for the Louisiana Attorney Disciplinary Board at the time that the homeowners’s
complaints were filed against Mr. Magee. He now represents Mr. Magee in the matter of the newly
filed complaint against him. The Attorney General should investigate the evident conflict of interest,
seemingly an ethical violation if not in fact a Hobbs Act crime. As the Louisiana Supreme Court is
the Constitutional Branch of Government which has as one of its agencies, the Louisiana Attorney
Disciplinary Board, I have reported this conflict to them as well. It is of note, that Mr. Damon S.
Manning was sued in his official capacity as a member of the Disciplinary Board in Atkins v.
Louisiana Attorney Disciplinary Board et al, No. 2:2009cv06471 - Document 21 (E.D. La. 2010).
Mr. Atkins offered proof of Mr. Manning’s bad faith, but the Court dismissed the matter noting that
it could not go forward since the appeals to the Louisiana Supreme Court and other courts were not
final.
I am on “interim suspension” as the result of a bar complaint filed by now convicted former District
Attorney Walter P. Reed and some of his former ADAs who had become judges. Mr. Damon S.
Manning handled the Walter Reed complaint against me when he was at the Disciplinary Board.
Walter Reed and his former ADA judges asked Mr. Manning to monitor me and prevent me from
making allegations in pleadings against Reed and certain judges in the 22nd Judicial District Courts,
which exposed their fraud and failure to protect the constitutional rights of the citizens of St.
Tammany who appeared before them. Many of those pubic officials are now targets of the ongoing
federal and state investigations into their crimes and misconduct. Reed asked Manning to shut me
up, but that was before Reed and others were indicted and Reed was convicted on 2 May 2016. The
investigations against Walter Reed and now a number of judges and public officers is ongoing. The
recently convened federal grand jury proceedings are going beyond the indictments are ready charged
which I understand are to be released shortly. Now, Damon Manning represents Mr. William Magee
in disciplinary complaint formally filed against him by the ODC. How is the possible?
It is important to note that I brought the Louisiana Supreme Court’s “interim suspension” to the
United States Fifth Circuit Court of Appeal, which Honorable Court ruled in my favor holding the
Louisiana Supreme Court’s “interim suspension” of me “in abeyance”, thereby allowing me to
continue to practice federal law in their Court. /s/ dga
Page 4 of 4
17-30519.2606
Daniel G. Abel
Attorney at Law
Metairie, LA 70001
504.208.9610 [O]
888.577.8815 [F]
4 April 2011 Notice: ST. TAMMANY PROPERTY FRAUD

Please Notify Your Legal Department
We Will Answer Their Questions
We Cannot Represent Your Institution
Dear Financial Institutions & Title Companies:
We represent two families who discovered defects in the titles to their properties when they tried to
sell those properties. A thorough examination of their titles revealed that St Tammany attorney
William M. Magee and a RICO enterprise fabricated ownership interests in the properties and had
local judges sign orders declaring him and his companies, the owners of the properties, contrary to
Louisiana law and related civil procedures. Subsequently, forensic experts confirmed that the
signatures on the documents used by Magee were forged and those forged signatures were notarized
by another attorney in his office. The person whose name was forged has now testified under oath,
that (1) the signatures on the legal documents in question were not his, and (2) that the company who
gave Magee its interest in these properties, never owned any interest in the properties whatsoever.
Since that time, investigators have identified over sixty (60) other St. Tammany properties that were
effected by the racketeering [RICO] enterprise; RICO actions are pending in federal court [See:
Martins v. Fidelity, EDLA Case No. 09-9145 and Martin-Robinson v. William Magee RICO Action
No. 10-2786]. An Index of the institutions and title companies that were damaged by the enterprise’s
activities, as well as the names of the families and heirs damaged, is attached [See: Exhibit B].
The Index also includes the financial institutions and title companies identified in the Original
Complaint and the Racketeering Case Statement [See: Martin-Robinson v. William Magee /
Racketeering Action / No. 10-2786, at Document Nos. 1, 2, and 6 in the record of that matter].
Your attorneys can access these documents electronically through federal court PACER service.
Attached also is the Chart provided to the federal court for use in identifying each transaction and
the parties involved as well as those injured [See: Exhibit A].
The matter of this notice was presented to the Hon. Karen Roby, Magistrate Judge in the United
States District Court for the Eastern District of Louisiana, on Wednesday, 29 March 2011, and to
ethics counsel—requisite to sending it to your institution or title company.
Sincerely,
Daniel G. Abel
La. Bar No. 8348
17-30519.2607

VERSUS No. 07-6983

c/w 13-6425

ET AL.
ORDER
Before the Court is a Motion for Reconsideration pursuant to
Federal Rule of Civil Procedure 60(b) (R. Doc. 258) filed by
Plaintiff Shane Gates. Mr. Gates urges the Court to reconsider its
Order and Reasons (R. Doc. 255) denying Plaintiff’s Motion for
Injunction and to Lift Stay (R. Doc. 240) and granting Defendants’
Motion to Lift Stay and Dismiss (R. Doc. 243). Defendants oppose
Plaintiff’s motion. (R. Doc. 267).
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S. Dep’t of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). However, the Fifth
Circuit has consistently recognized that parties may challenge a
judgment or order under Federal Rules of Civil Procedure 59(e) or
60(b). See Templet v. HydroChem, Inc., 367 F.3d 473, 483 (5th Cir.
2004). The difference between a Rule 60(b) and 59(e) motion is
based on timing. If the motion is filed within twenty-eight days
of the final judgment, then it falls under Rule 59(e). In re FEMA
17-30519.2608
Formaldehyde Prods. Liab. Litig., No. 07-1873, 2012 WL 458821, at
*2 (E.D. La. Feb. 13, 2012). However, if the motion is filed more
than twenty-eight days after the final judgment it is governed by
Rule 60(b). See id.
Plaintiff’s motion for reconsideration was filed on April 24,
2017. Plaintiff seeks reconsideration of this Court’s March 24,
2017 Order and Reasons. Accordingly, Plaintiff’s motion was filed
more than twenty-eight days from the Court’s Order and Reasons and
will be analyzed pursuant to Rule 60(b).
To prevail on a motion under Rule 60(b), the movant must
clearly establish one of six factors: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence
that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud,
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharge; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief. Fed. R.
Civ. P. 60(b). However, motions to reconsider or amend a final
judgment are “extraordinary remedies” and are “not the proper
vehicle for rehashing evidence, legal theories, or arguments that
could have been offered or raised before entry of judgment.”
Templet, 367 F.3d at 478-79. Also, such motions should not be used
17-30519.2609
to “re-litigate prior matters that . . . simply have been resolved
to the movant’s dissatisfaction.” See Voisin v. Tetra Techs., Inc.,
No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).
Plaintiff asserts his motion under Rule 60(b)(1), (3), and
(6). Nevertheless, the motion merely rehashes arguments previously
raised ad nauseam. After reviewing the record, the parties’
memoranda, and the applicable law, the Court finds that Plaintiff
has not demonstrated that the Court made a material mistake of
fact or law, that judgment was unfairly obtained by Defendants’
fraudulent acts, or that extraordinary circumstances are present
that would warrant relief. The dismissal of Plaintiff’s lawsuit
was a direct result of him purposefully evading the state court
system for years. This Court has permitted Plaintiff to fully and
fairly present his arguments over the last nine years. His
dissatisfaction with the result is not grounds for granting the
relief requested.
17-30519.2610
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for
Reconsideration (R. Doc. 255) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to
File Reply (R. Doc. 269) is DENIED AS MOOT.
New Orleans, Louisiana this 1st day of June, 2017.
CARL J. BARBIER
17-30519.2611

versus
JUDGE CARL J. BARBIER “J”
Defendants. JOSEPH C. WILKINSON, JR. (2)
APPELLATE FORM 5. NOTICE OF APPEAL

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Shane M. Gates, the plaintiff herein, hereby appeals as of right, pursuant to Rules 3 and
4, Fed. R. App. Proc., to the United States Court of Appeals for the Fifth Circuit from the final
judgment of the district court for the Eastern District of Louisiana, entered in this case on March
27, 2017 as Record Document No. 256 in Case No. 07-6983 and its related judgment filed May
11, 2017 as Record Document No. 64 in consolidated Case No. 13-6425, dismissing those
aforesaid cases.
This appeal is timely under Rule 4(a)(4)(A)(vi), Fed. R. App. Proc., because, on April 24,
2017, that is, within twenty-eight (28) days of the entry of that Judgment, Mr. Gates filed a
Motion for Reconsideration under Rule 60(b)(1), Fed. R. Civ. Proc. (Rec. Doc. 258).1
On June 1, 2017, the trial court signed and filed an Order (Rec. Doc. 270) denying Mr.
Gates’ Rule 60(b) motion. Therefore, in compliance with Rule 4(a)(1), Fed. R. Civ. Proc., this
Notice of Appeal is being filed within thirty (30) days after the entry of that latter Order and thus
is timely:
1
The trial court’s Order denying this Rule 60 Motion (Rec. Doc. 270) states, incorrectly, that the Motion sought
reconsideration of the court’s Order and Reasons (Rec. Doc. 255) entered March 24, 2017. However, the Rule 60
Motion itself states expressly that it seeks reconsideration of the trial court’s Judgment (Rec. Doc. 256) that was
signed and filed on March 27, 2017, that is, within 28 days prior to the filing of that Rule 60 Motion.
Notice of Appeal
-1-
17-30519.2612
“Rule 4. Appeal as of Right—When Taken.

“a. Appeal in a Civil Case.
“(1) Time for Filing a Notice of Appeal.
“(A) In a civil case, except as provided in Rules 4(a)(1)(B),
4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be
filed with the district clerk within 30 days after entry of the
judgment or order appealed from.”
The parties to the judgment appealed from and the names and addresses of their
respective attorneys are as follows:
Lawrence E. Abbott, Esq.

Nancy A. Cundiff, Esq.
New Orleans LA 70130
Counsel for Philip Duiett
Chadwick W. Collings, Esq.

Mandeville LA 70471
Counsel for Rodney J. Strain, Nathan Miller, Roger Gottardi, Kathy Sherwood, and
Brian Williams
William H. Howard, III, Esq.

201 St. Charles Ave., Suite 3600
Counsel for St. Paul Fire & Marine Ins. Co.
Thomas H. Huval, Esq.

PO Box 1810
Covington LA 70433
Counsel for Marie-Elise Prieto
Cary J. Menard, Esq.

701 North Columbia Street
Covington LA 70433
Counsel for Walter P. Reed, Ronald Gracianette, Nicholas F. Noriea, and Kathryn
Landry
David Glen Sanders, Esq.

Louisiana Dept. of Justice, Litigation Div.
PO Box 94005
Baton Rouge LA 70804-9005
Notice of Appeal
-2-
17-30519.2613
Counsel for Louisiana Attorney General, James D. Caldwell, and Richard Swartz
Richard T. Simmons, Esq.

PO Box 8288
Metairie LA 70011-8288
Ralph S. Whalen, Jr., Esq.

Counsel for Walter P. Reed
Dated: June 19, 2017.
/s/ J. A. Hollister
(985) 792-5353
with the Clerk of the United States District Court for the Eastern District of Louisiana on June
19, 2017, using that Court’s CM/ECF system, which system will send a notice of electronic
filing to appearing parties in accordance with the Court’s established policies and procedures.
/s/ J. A. Hollister
JOHN A. HOLLISTER
Notice of Appeal
-3-
17-30519.2614
READ INSTRUCTIONS ON LAST PAGE B E F O R E C O M P L E T I N G
TRANSCRIPT ORDER FORM
District Court: Eastern District of Louisiana District Court Docket No. 2:07-cv-6983. 2:13-CV-6425
Short Case Title: Shane Gates V . Rodney Strain, at al. Court Reporter:
ONLY ONE COURT R E P O R T E R P E R F O R M
Date Notice of Appeal Filed by Clerk of District Court: 6-19-2017 . Court of Appeals No.: 17-30519
P A R T 1 . (To be completed by p a r t y o r d e r i n g t r a n s c r i p t . D o not complete t h i s form u n l e s s f i n a n c i a l a r r a n g e m e n t s h a v e b e e n m a d e . )
A . Complete the Following:

• No Hearings • Transcript is unnecessary for appeal purposes M T r a n s c r i p t is already on file i n the Clerk's Office
or /
C h e c k A l l of the F o l l o w i n g that Apply, E n t e r the date of the p r o c e e d i n g i n the b l a n k line.
T h i s is to Order a Transcript of the following proceedings: D B a i l Hearing: D V o i r Dire:
• Opening Statement of Plaintiff: •Opening Statement of Defendant:
• Closing Argument of Plaintiff: • Closing Argument of Defendant:
• Opinion of court: • J u r y Instructions: •Sentencing:
Hearing Date(s) Proceeding Judge/Magistrate
F a i l u r e to specify i n adequate detail those proceedings to be t r a n s c r i b e d , or failure to m a k e prompt satisfactory

financial arrangements for t r a n s c r i p t , are grounds for D I S M I S S A L O F A P P E A L .
B . T h i s is to certify that satisfactory financial a r r a n g e m e n t s have been completed w i t h the court r e p o r t e r for
payment of the t r a n s c r i p t . T h e method of payment w i l l be:
• Private Funds; • C r i m i n a l Justice Act Funds ( E n t e r Authorization-24 to U S D C eVoucher);
• Other I F P Funds; •Advance Payment waived by reporter; • U . S . Government Funds
• Other
Signature
ture //Tn^^y . Date Transcript Ordered N/A
PrinTi NarngJohn A. Hollister . Phone: (985) 792-5353

Counsel for Shane M. Gates, Petitioner
Address 613 Bon Temps Roule'. Mandeville LA 70471
P A R T I I . C O U R T R E P O R T E R A C K N O W L E D G E M E N T (To be completed by the Court Reporter and filed w i t h the Court
Date Transcript Order I f arrangements not yet made, date Estimated Completion Date Estimated number of
Received contact made w/ ordering party Pages
• Satisfactory Arrangements for payment were made on

• Payment Arrangements have N O T been made. Reason: •Deposit not received • U n a b l e to contact ordering party
• Other (Specify)
Date: . Signature of Reporter:, Tel.

Address of Reporter:,
Part I I I . N O T I F I C A T I O N T H A T T R A N S C R I P T H A S B E E N F I L E D I N T H E D I S T R I C T C O U R T (To be completed by court
reporter on date of filing transcript i n the District Court and this completed form e-filed w i t h the Court of Appeals.)
This is to certify that the transcript has been completed and filed at the District Court today.
Actual Number of Pages: Actual Number of Volumes:
Date: Signature of Reporter:.

17-30519.2615
1
SHANE M. GATES, * Civil Action

* No. 07-6983
Plaintiff, *
* Section “K”(2)
v. *
* New Orleans, Louisiana
RODNEY JACK STRAIN, * April 16, 2008
ET AL, *
*
Defendants. *
* * * * * * * * * * * * * * * *
MOTION HEARING,
BEFORE THE HONORABLE STANWOOD R. DUVAL, JR.,
APPEARANCES:
For the Plaintiff: Daniel G. Abel, Inc.

By: DANIEL G. ABEL, ESQ.
Suite 106
For the Defendants, Mouledoux, Bland, Legrand &

Rodney Jack Strain and Brackett, LLC
Various Officers of the By: MARK E. HANNA, ESQ.
St. Tammany Parish Sheriff’s One Shell Square
Office: 701 Poydras Street
Suite 4250
For the Defendants, Kathryn W. Landry, LLC

Walter P. Reed and By: KATHRYN W. LANDRY, ESQ.
St. Tammany District Post Office Box 82659
Attorney’s Office: Baton Rouge, Louisiana 70884
17-30519.2616
2
APPEARANCES (CONT’D.):
For the Defendant, Hailey, McNamara, Hall, Larmann

Charles M. Hughes, Jr.: & Papale
By: RICHARD SIMMONS, JR., ESQ.
One Galleria Boulevard
Suite 1400
For the Defendants, Cotton, Schmidt & Abbott, LLP

Louisiana Heart Hospital, By: NANCY BRECHTEL, ESQ.
LLC and Philip Duiett: 650 Poydras Street
Suite 2810
Court Audio Operator: Cynthia L. Usner
Transcriptionist: Sherryl Robinson

c/o U.S. District Court
500 Poydras Street, Room B-275
(504) 589-7724
Proceedings recorded by electronic sound recording,
transcript produced by transcription service.
17-30519.2617
3
1 P R O C E E D I N G S
2 (Wednesday, April 16, 2008)
3 (Call to Order of the Court)
4 THE COURT: You may proceed.
5 THE CLERK: This is Civil Action 07-6983, Section
6 “K”, Shane M. Gates v. Sheriff Rodney Jack Strain, et al,
7 here on a motion.
8 THE COURT: Okay. Do you want to make your
9 appearances?
10 MS. BRECHTEL: Good morning Your Honor, Nancy
11 Brechtel here on behalf of Louisiana Heart Hospital and
12 Philip Duiett.
13 MR. ABEL: Good morning Your Honor, Daniel Abel on
14 behalf of Shane Gates.
15 THE COURT: Thank you.
16 MR. HANNA: Mark Hanna, Your Honor, on behalf of
17 Sheriff Strain and the Various Officers of the St. Tammany
18 Parish Sheriff’s Office.
19 MR. SIMMONS: Rick Simmons on behalf of Attorney
20 Charles Hughes.
21 MS. LANDRY: And Kathryn Landry on behalf of Walter
22 Reed and the St. Tammany District Attorney’s Office.
23 THE COURT: Okay. Why don’t we take the Motion to
24 Dismiss first and then the Motion to Stay second?
25 MS. BRECHTEL: Yes, Your Honor.
17-30519.2618
4
1 The facts as they relate to the Louisiana Heart
2 Hospital are pretty limited. Mr. Gates was brought in to the
3 emergency room on November 16th, 2006.
4 THE COURT: Insofar as the Louisiana Heart Hospital,
5 insofar as the 1983 claim; it appears that there is agreement
6 that you are not amenable to a suit under 1983 either by
7 virtue of being a person, which Counsel has conceded or --
8 and therefore respondeat superior would not apply in the 1983
9 context.
10 So I’m going to grant your Motion as to the 1983
11 claim.
12 MS. BRECHTEL: As to the Louisiana Heart Hospital,
13 and as to Mr. Duiett as well?
14 THE COURT: Not as to Mr. Duiett.
15 MS. BRECHTEL: Okay.
16 THE COURT: I want to hear argument on Mr. Duiett.
17 MS. BRECHTEL: Well, my issue with the 1983 --
18 THE COURT: I’m just disclosing the --
20 THE COURT: I’m telling you what is apparently
21 conceded.
22 MS. BRECHTEL: Do you want to talk about Mr. Duiett
23 next?
24 THE COURT: Okay.
25 MS. BRECHTEL: The 1983?
17-30519.2619
5
1 THE COURT: Whatever you want. Go ahead.
2 MS. BRECHTEL: My issue with the 1983 claim as to
3 Mr. Duiett is that Plaintiffs have failed to sufficiently
4 allege a conspiracy. They simply say in general: There was
5 a conspiracy or an agreement with state actors.
6 In the Fifth Circuit that’s not sufficient. The
7 Fifth Circuit calls for specific facts, and I don’t believe
8 that the Plaintiff’s complaints sustain that.
9 THE COURT: Okay.
10 MS. BRECHTEL: Now the simple fact of the matter is
11 the claims as to Louisiana Heart Hospital and as to Mr. Duiett
12 are truly medical malpractice complaints that should not be
13 before this Court right now.
14 THE COURT: I’m just going to ask you about that. I
15 read your cases but from the civil rights context, 1983 is not
16 dependent upon a Medical Review Panel.
17 MS. BRECHTEL: Well --
18 THE COURT: Now, as to the state law claims,
19 perhaps, but 1983 is not.
20 Two: Under medical malpractice, the only action
21 for medical malpractice reference consent is a negligent
22 action, so a negligence action. And this is clearly not a
23 negligence action against -- if apparently it’s that they
24 intentionally did this. It appears to be so.
25 So one, from a 1983 standpoint; you’re not going to
17-30519.2620
6
1 have a determination of medical malpractice. It’s did they
2 intentionally violate a Constitutional right, in essence.
3 From the state law claims it’s a little more
4 provocative, but I’m curious as to how a Medical Review Panel
5 evaluates a claim -- one, the only claim under -- the only
6 claim for medical malpractice is based on negligence under
7 the statute.
8 So this claim is apparently not for medical
9 malpractice, but for battery separate and apart from that.
10 And so I’m not sure that -- in the cases you’ve cited
11 everybody was going in and they weren’t informed enough, or
12 weren’t informed correctly.
13 It wasn’t about somebody: We’re going to take your
14 blood or we’re going to take your urine.
15 So I’m really -- but my concerns are: Is this in
16 fact a medical malpractice claim? Just a 44:1299.40(b) --
17 just let me say that might not be -- (E)(b) -- excuse me,
18 little two “A”. I’m reading just in part the last sentence,
19 not to belabor this.
20 “The only theory on which recovery may be obtained
21 is that negligence in failing to disclose the risk or hazards
22 that could have influenced a reasonable person in making the
23 decision.”
24 So only a medical malpractice claim that exists is
25 one based on negligence. So I don’t consider this a medical
17-30519.2621
7
1 malpractice claim under the statute, since it does not appear
2 to be based on negligence.
3 But now you can, with that said, you can have --
4 MS. BRECHTEL: Well --
5 THE COURT: -- have at it.
6 MS. BRECHTEL: And actually, it appears to me the
7 Plaintiff’s claims as to battery arise from non-consent to
8 have his blood taken, which the Louisiana Supreme Court in
9 the Lugenbuhl v. Dowling case, which was cited in our reply
10 brief, specifically found that non-consent cases are included
11 under the Medical Malpractice Act.
12 THE COURT: Those are non-consent cases based on
13 negligence, not if somebody intentionally said: I’m just
14 going to do this to you.
15 In other words --
16 MS. BRECHTEL: Well, there’s the issue as well,
17 Your Honor, that Mr. Duiett (sic) was extremely intoxicated
18 when he came into the emergency room.
19 THE COURT: Oh I understand that. Those are factual
20 issues and I’m not talking about the merits. But are you
21 saying to me that if a doctor just comes up to me in the
22 street and takes my blood; that I have got to go through a
23 Medical Review Panel?
24 MS. BRECHTEL: Well Your Honor, this was not a
25 street case. This was he came into the emergency room. He
17-30519.2622
8
1 was --
2 THE COURT: Well, I understand that. But to
3 illustrate a principle you give an extreme example and then
4 you try to get closer to the norm.
5 I’m concerned that this is not a medical malpractice
6 case, period. And if there is no cause of action other than
7 medical malpractice against the doctor, then the motion would
8 be dismissed on that basis, rather than a Medical Review
9 Panel.
10 MS. BRECHTEL: And Your Honor, I’m not saying that
11 once he filed suit he can’t claim these other causes of
12 action, but it needs to go before the Medical Malpractice
13 Panel first.
14 What these other causes of action actually are
15 alternative theories of liability for the same acts.
16 THE COURT: And what’s the Medical Malpractice Panel
17 going to do? Make a factual determination whether he was
18 drunk or not, which the malpractice alleged. They didn’t say
19 he took the blood wrong.
20 As I said, the law specifically provides that the
21 only claim under medical malpractice involving consent is
22 negligence. So there either is no claim at all. That is that
23 somehow the legislature has taken away the state law claim of
24 battery, or intentional battery.
25 Or two: There is a cause of action and it’s not
17-30519.2623
9
1 medical malpractice. There’s no need for a Panel as I see
2 it.
3 MS. BRECHTEL: Well the Panel is going to rule on
4 the issue of -- determine whether there was a deviation from
5 the standard of care in obtaining consent.
6 THE COURT: The Panel is not going to probably rule,
7 at least by virtue of this Court’s decision.
8 MS. BRECHTEL: Or they will give an opinion on
9 whether there was a deviation from the standard of care,
10 including whether consent was properly obtained or not.
11 That’s something that the Panel can, you know, would
12 consider.
13 THE COURT: Well I mean, is there any issue that
14 the -- the issue here is: Do you mean the standard of care;
15 what do you do with a real drunk patient?
16 Can you take the blood from anybody whether they --
17 if they can’t give their consent? I know there’s provisions
18 where you can, when there’s an infectious disease. But is
19 there any law that says you can take somebody’s blood without
20 their consent?
21 MS. BRECHTEL: There’s a law saying that you could
22 provide emergency medical treatment without consent.
23 THE COURT: Oh so you’re trying to say this was
24 emergency medical treatment; taking his blood to get his
25 alcohol?
17-30519.2624
10
1 MS. BRECHTEL: Well, I --
2 THE COURT: Counsel, that’s a stretch to me.
3 MS. BRECHTEL: For the physicians to even evaluate
4 him, Your Honor, they have to take his blood.
5 THE COURT: The bottom line: The 1983 case is going
6 to go on. But the Medical Review Panel has nothing to do with
7 the United States Law on 1983 if I don’t dismiss it or stay
8 it.
9 But I’ve heard enough on the Medical Review Panel.
10 You want to go on to something else.
11 MS. BRECHTEL: Well in addition to conceding his
12 Section 1983 in federal claims as to the Louisiana Heart
13 Hospital, the Plaintiff’s opposition also apparently concedes
14 a number of his state law claims as well.
15 His original complaint, he listed a bevy of state
16 law claims.
17 THE COURT: Do you want to go through those to make
18 sure we have an understanding of that? Would you mind --
20 THE COURT: -- itemizing those?
21 MS. BRECHTEL: Of what the state law claims were:
22 In his opposition the Plaintiff states that he’s making
23 claims under Article 1, Section 3, right to individual
24 dignity;
25 Article 1, Section 5 -- this is under the Louisiana
17-30519.2625
11
1 Constitution -- right to privacy;
2 Article 1, Section 20, right to human treatment;
3 And then assault, battery and kidnapping.
4 He does not list claims which have been listed
5 previously in his complaints as follows:
6 The Article 1, Section 2, due process of law;
7 Article 1, Section 19, right to judicial review;
8 And Article 1, Section 22, access to courts.
9 He also does not list intimidating by officers,
10 false imprisonment and extortion.
11 THE COURT: Counsel, without arguing --
12 MR. ABEL: Sure.
13 THE COURT: First, do you concede what Counsel just
14 stated?
15 MR. ABEL: I don’t concede them all, Your Honor.
16 THE COURT: Okay.
17 MR. ABEL: But --
18 THE COURT: That’s why I wanted you to listen and I
19 do thank you for doing so.
20 MR. ABEL: If I may, I can make it relatively
21 straightforward.
22 THE COURT: Well why don’t we do that in your --
23 when it’s your turn?
24 MR. ABEL: Yes, Your Honor.
25 THE COURT: Okay. If you don’t concede them all,
17-30519.2626
12
1 then we’re not going to -- it’s not straightforward enough.
2 Go ahead.
3 MS. BRECHTEL: Okay. Those are the -- the ones I
4 listed are the ones that are remaining in his opposition.
5 THE COURT: Right.
6 MS. BRECHTEL: So we do need some clarification on
7 that.
8 We also contend that the Plaintiff’s Counsel has
9 failed to state on the allegations of his complaints a cause
10 of action for kidnapping. He simply alleges that he was
11 detained -- his transfer was delayed until they got a urine
12 sample.
13 He never says that he wasn’t allowed to leave the
14 hospital, that he could not be discharged; simply that the
15 transfer was delayed. The transfer was actually delayed
16 because they were waiting for an ambulance. And then Forest
17 General Hospital is the hospital that requested the urine
18 sample.
19 At that point, the Louisiana Heart Hospital had
20 already -- in their mind he was already transferred. They
21 were -- Forest General Hospital requested a urine sample
22 before they would allow the transfer to occur. And Louisiana
23 Heart Hospital took the urine sample and faxed those results
24 to Forest General Hospital.
25 So we believe there’s a failure to state a claim
17-30519.2627
13
1 for kidnapping in this case.
2 THE COURT: Just briefly, on the medical
3 malpractice: I haven’t had argument yet, and I’m not saying
4 you can’t file a motion that this cause does not exist. In
5 other words, I’m not sure if it does or doesn’t, what the
6 legislature intended, but that’s not really before me.
7 In other words, the only cause -- the law says the
8 only cause for -- under the Medical Malpractice cause for
9 negligence. So I’m not ruling directly yet what that means,
10 and it really wasn’t briefed to me in that way.
11 I simply -- I don’t need a panel for that, I need
12 to know is that the intent to abolish then an intentional --
13 we’re not even pretending to ask for consent; an intentional
14 battery upon someone.
15 MS. BRECHTEL: Uh-huh.
16 THE COURT: Does that -- does it eliminate that?
17 I’m just saying it’s not totally closed by this -- by any
18 ruling that I’m going to make here.
20 And we also raised the issue of insufficient
21 service out of an abundance of caution. We’re actually
22 willing to waive that today. We have been unable to get --
23 THE COURT: I appreciate that.
25 THE COURT: Because it makes sense.
17-30519.2628
14
1 MS. BRECHTEL: Well, we’re unable to reach our
2 client very easily. Mr. Duiett is actually now a truck
3 driver. So we raised it just to have it on there, but we’re
4 waiving it.
5 THE COURT: And I do appreciate that.
6 MS. BRECHTEL: And I believe that’s all of my
7 arguments today, Your Honor.
8 THE COURT: Okay. Do you want to take up --
9 MS. BRECHTEL: Oh, I’m sorry. One more thing as
10 well.
11 MR. ABEL: Okay.
12 MS. BRECHTEL: I apologize, Your Honor.
13 THE COURT: Well you’ve won your federal claim.
14 Now as to the -- in the 1983 claim against
15 Mr. Duiett -- how do you pronounce that?
16 MS. BRECHTEL: Mr. Duiett.
17 THE COURT: “Mr. Duiett.”
18 You’re simply saying the allegations are conclusory
19 and not specific enough?
20 MS. BRECHTEL: Right. There’s not sufficient fact
21 to support --
22 THE COURT: Okay.
23 MS. BRECHTEL: -- a conspiracy allegation.
24 THE COURT: To fold him in as a state actor, which
25 is of course a requirement under 1983?
17-30519.2629
15
2 THE COURT: I understand.
3 MS. BRECHTEL: And the other thing is: In
4 Plaintiff’s amended complaint he stated that he was not
5 making a HIPAA claim. I think this may just be a little bit
6 of confusion. In his opposition he then brings up the HIPAA
7 issue again.
8 There’s no private right of action for a claim under
9 HIPAA. So I would just like some clarification on that, as
10 well today, Your Honor.
11 THE COURT: That’s fair enough.
12 MS. BRECHTEL: Okay. Thank you.
13 THE COURT: And I’ll give you a couple of minutes
14 since I disrupted your argument a bit, after Counsel talks.
15 Go ahead.
16 MR. ABEL: Thank you Your Honor. Daniel Abel on
17 behalf of Mr. Gates.
18 THE COURT: Do you want to clear up what is and what
19 isn’t extant, at least in your mind in your complaint?
21 All of the acts -- we have alleged specifically by
22 names, place and specific action, in individual single
23 sentence paragraphs, what Mr. Duiett has done.
24 We agree with Counsel that the Heart Hospital is
25 not responsible for any of the acts which are intentional
17-30519.2630
16
1 acts, as an employer even under state law is not.
2 However, Nurse Duiett -- well former employee of
3 the hospital Nurse Duiett -- is liable and responsible for
4 those specific intentional acts.
5 And not to belabor this, we certainly agree with
6 the Court that the Medical Malpractice Act uses the specific
7 language unintentional torts -- or unintentional acts. I’m
8 sorry.
9 THE COURT: It does.
10 MR. ABEL: And therefore, any act which is
11 intentional is excluded; which is why we agreed that the
12 Heart Hospital is not involved and have any liability for
13 anything which is an intentional act, including those acts
14 that Counsel had just identified.
15 THE COURT: Is there anything that the Heart
16 Hospital would be liable for if it’s not liable vicariously
17 under state law for intentional acts?
19 THE COURT: And what is that?
20 MR. ABEL: Well, of the ones that Counsel named, I
21 would say most of those. But I would -- since that happened
22 quickly, I would like to have an opportunity you know, to
23 confer with Counsel and maybe submit a note on that.
24 But I would say most of those that were just
25 mentioned would arise from the intentional acts of Duiett,
17-30519.2631
17
1 and not be the responsibility of the hospital itself.
2 THE COURT: Are there any -- I guess I’m asking you
3 because you know your case hopefully better than anyone else:
4 Are there any non-intentional acts by Duiett that would render
5 the LHH liable?
6 In other words, do you have any claim against LHH
7 left?
8 MR. ABEL: We have a -- we would have a claim for
9 their failure to supervise their employees. We have no
10 claim for anything that’s an intentional act of the nurse,
11 himself.
12 THE COURT: Okay. But the failure to supervise --
13 you mean a state law claim for failure --
14 MR. ABEL: A state law claim under -- a 2315 claim.
15 However, that starts to you know, get into the area
16 as to whether that falls under medical malpractice or not.
17 So that may be one which is not mature yet. Counsel
18 may be correct on that.
19 THE COURT: And I didn’t remember reading a lot
20 about the failure to supervise, frankly.
21 MR. ABEL: That’s largely been addressed in the
22 medical -- before the Patient’s Compensation Fund.
23 So I would say, honestly, I think none of those
24 claims would be attributable to the Heart Hospital, that
25 arise -- all of those that Counsel has --
17-30519.2632
18
1 THE COURT: So are you willing to dismiss the Heart
2 Hospital? That’s my question.
3 MR. ABEL: I can’t honestly say, Your Honor that I
4 can argue against that.
5 THE COURT: Okay, thank you.
6 Move on to the next one.
7 MR. ABEL: Okay. In regard to Mr. Duiett.
8 THE COURT: Okay.
9 MR. ABEL: They’ve complained that Mr. Duiett has
10 been accused only of very conclusory things. But if you
11 start at Paragraph 38 in the original petition, and it
12 repeats itself: Defendant Nurse Duiett joined the Sheriff’s
13 deputies in threatening and assaulting Mr. Gates while he was
14 in the custody and care of the hospital.
15 Nurse Duiett in the presence of the deputies and
16 others accused Gates of multiple crimes and offenses which
17 could have only been suggested to him by the Sheriff’s
18 deputies.
19 A distinction in Number 40: Defendant deputies
20 asked -- the deputies asked Mr. Gates for permission to draw
21 his blood. And then Mr. Duiett, Nurse Duiett asked Mr. Gates
22 for permission to draw his blood.
23 And this is not a matter of no consent. This is a
24 matter of refusal. He refused for them to draw his blood,
25 and that is a significant distinction in the cases that have
17-30519.2633
19
1 been cited in this matter.
3 MR. ABEL: So there are 40 something paragraphs
4 that deal with Nurse Duiett. It’s obviously our position
5 that time, place, occurrence, statement of what transpired
6 are clearly alleged. And of course, I don’t need to tell the
7 Court the law that well pled facts must be presumed to be
8 true.
9 So in regard to that, I think that’s all I need to
10 say about the actions of Nurse Duiett.
11 And then finally, we have made those citations as
12 to HIPAA and as to the Hobbs Act for specific purpose. There
13 is no right of action that arises under the Hobbs Act. There
14 is no right of action that arises under HIPAA, independently
15 from the enactment of that legislation by Congress.
16 However, it’s as with the DOTD regulations; if you
17 have a licensed commercial driver and that person -- and that
18 becomes the standard of the industry if the driver is smoking
19 marijuana or something like that and gets tested; then even
20 in your tort claims and even in your civil claims, you can
21 look to the government established standard for activities
22 within a particular profession to make a determination as to
23 whether or not that person should be held, you know, held
24 responsible under statutory state law.
25 And that’s why we cited HIPAA. We agree there is
17-30519.2634
20
1 no independent arising of that under HIPAA. But when
2 Mr. Duiett gave the medical information to the officers on
3 the scene, he violated those regulations.
4 And when they walked out the door knowing what his
5 blood alcohol was, and when they walked out the door knowing
6 what his injuries were, and when they walked out the door
7 knowing how many 230 something CAT scans that he had had to
8 his face from the injuries that had been inflicted upon him;
9 that was a violation of HIPAA.
10 The right to have that redress --
11 THE COURT: What did you say about the number of CAT
12 scans? I didn’t understand you.
13 MR. ABEL: I’m sorry?
14 THE COURT: What did you say about the number of CAT
15 scans? I didn’t quite understand you.
16 MR. ABEL: Okay. He had 237 -- let me get the exact
17 number, Your Honor, since we’re on the record.
18 He had 237 CAT scans to his face.
19 THE COURT: He had 237 separate CAT scans?
20 MR. ABEL: That’s what their records suggest.
21 THE COURT: That would be a phenomenal charge.
22 MR. ABEL: The injury -- the injuries are
23 phenomenal. The injuries are phenomenal.
24 THE COURT: Well, I’m just saying if they charged
25 237 CAT scans, it would be -- well, we’re talking about
17-30519.2635
21
1 millions.
2 MR. ABEL: Well, I --
3 THE COURT: At least by my experience with CAT
4 scans. But anyway, I may not understand it.
5 MR. ABEL: Well, and I’m not a doctor, obviously.
6 THE COURT: That’s true.
7 MR. ABEL: That is what came back from the hospital,
8 itself.
9 THE COURT: All right.
10 MR. ABEL: So we’re quoting --
12 MR. ABEL: We’re quoting them.
13 THE COURT: Okay.
14 MR. ABEL: And absent that --
15 THE COURT: Not that it’s relevant to this; that
16 just caught me. The number caught me. I found it
17 interesting.
18 MR. ABEL: It caught me too, Your Honor --
20 MR. ABEL: -- when we got it from the hospital.
21 THE COURT: Thank you, sir.
22 MR. ABEL: Thank you, Your Honor.
23 THE COURT: Counsel, anything you’d like to wrap up
24 on?
25 MS. BRECHTEL: No, Your Honor.
17-30519.2636
22
1 THE COURT: All right. I’m going to -- on the Rule
2 12 Motion filed by the hospital, I’m calling --
3 Is LHH sufficient?
4 MS. BRECHTEL: Yes.
5 THE COURT: I’m going to dismiss -- I’m going to
6 grant the motion insofar as LHH is dismissed from the 1983
7 and the state law claims. In essence there will be a -- I’m
8 ruling that there is no claim, state or federal, against the
9 hospital.
10 On vis-à-vis the 1983 and the state law claims
11 against Mr. Duiett or Nurse Duiett, I’m going to find that
12 the Medical Review Panel is not appropriate because this is
13 an alleged intentional act, which does not invoke a Medical
14 Review Panel; therefore it’s distinguished from the cases
15 cited by Mr. Duiett’s able attorney, and I do not find it
16 premature in that regard.
17 I find that there were sufficient allegations made.
18 A non-state actor may be liable under 1983 if the private
19 citizen was a willful participant in joint activity with the
20 state or its agents.
21 So now the Connick -- that’s C-I-N-E-L -- Cinel v.
22 Connick, 15 F.3d 1338 at 1343, Fifth Circuit 1994: The
23 plaintiff must allege an agreement between the private and
24 public defendants to commit an illegal act in the deprivation
25 of Constitutional rights. The Court’s conclusory allegations
17-30519.2637
23
1 will not suffice.
2 I think, looking at the allegations of Paragraph 38,
3 39 and 47 for the purposes of Rule 12; that that is
4 sufficient under the facts and circumstances alleged here,
5 for the purposes of Rule 12.
6 Obviously, we’re going to have Rule 56; but for the
7 purposes of Rule 12, I find that it is sufficient to state a
8 cause of action against Duiett.
9 So I think that to make sure I cover everything
10 here, the 1983 claim; the motion is denied as to the 1983
11 claim and the state law claim.
12 With respect to Duiett, I know there’s a more
13 definite statement pending Judge Wilkinson, and frankly, I’m
14 going to deny your motion. And if there’s an appeal from
15 Judge Wilkinson’s motion, I can take it up in that aspect of
16 it, since we don’t want to have duplicative decisions out
17 there.
18 Is there anything I haven’t covered on the Rule 12
19 Motion?
20 MS. BRECHTEL: Your Honor, the HIPAA and the Hobbs
21 Act claims.
22 THE COURT: Well, there are no claims.
24 THE COURT: They’re simply mentioned in the -- it’s
25 my clear understanding there are no claims and there are no
17-30519.2638
24
1 private right of actions under either. And the Plaintiff is
2 claiming none, he’s simply placing them in the complaint for
3 -- to persuade the Court to use certain standards that may be
4 implicated from those acts.
5 But so there is no claim urged. So that, I assume,
6 is nothing to dismiss since the Plaintiff has acknowledged on
7 the record there is no claim urged under those acts.
8 Anything else?
9 (No response from Counsel.)
10 THE COURT: All right. Let’s take up the stay.
11 MR. HANNA: May it please the Court, Mark Hanna on
12 behalf of Sheriff Strain and the Various Officers.
13 Your Honor, we’ve brought before you a Motion to
14 Stay this Proceeding pending the outcome of the criminal case
15 in state court.
16 THE COURT: And I realize Heck v. Humphrey is sort
17 of the linchpin for your motion.
18 MR. HANNA: Correct.
19 THE COURT: And that at least some of these -- some
20 of the causes of action relate to or could relate to whether
21 he’s acquitted or not in the criminal charge.
22 MR. HANNA: And anytime there’s an aggravated
23 situation, aggravated flight, resisting arrest that is
24 temporally related, you know, that has to be fleshed out.
25 That has to be decided in a state court criminal proceeding
17-30519.2639
25
1 to determine whether qualified immunity will apply, and to
2 determine whether or not any civil rights action under 1983
3 might impugn the integrity of those convictions.
4 THE COURT: Well, aren’t there actions for malicious
5 prosecution here as well? Isn’t there an action for malicious
6 prosecution?
7 MR. HANNA: Within the civil rights action?
8 THE COURT: Within the complaint. Hasn’t he
9 alleged malicious prosecution?
10 MR. HANNA: I believe so.
11 THE COURT: And in order for me to determine
12 malicious prosecution --
13 MR. HANNA: I’ll defer to Counsel for the DA --
14 THE COURT: And isn’t, although the very -- whether
15 malicious prosecution exists in federal law anymore, under the
16 Fourth or Fourteenth Amendment is a very intriguing issue, if
17 you read Castellano v. Fragozo.
18 MR. HANNA: But that is only --
19 THE COURT: I’m just saying --
20 MR. HANNA: That’s only a small part of the
21 complaint that’s before --
22 THE COURT: Yes but Counsel, that’s a question that
23 helps you because you see, if you’re convicted, there’s no
24 malicious prosecution. So it’s a question that’s helping
25 you.
17-30519.2640
26
1 MR. HANNA: Granted. Granted. And --
2 THE COURT: Well, it didn’t seem to be -- shall we
3 say that my transmission didn’t seem to be received?
4 MR. HANNA: Well, I’m more focused on the resisting
5 arrest aspects --
6 THE COURT: All right. So how do you distinguish
7 if you are -- then how do you distinguish Bush v. Trane?
8 MR. HANNA: Well, Bush makes very clear that you
9 know, I think Counsel tries to interpret it as a
10 reinterpretation of Heck, and that’s not what Judge Elling
11 said in Bush.
12 What she made clear is that -- and I quote from the
13 decision: This validly illustrates the 1983 claim would not
14 necessarily imply the invalidity of a resisting arrest
15 conviction, and therefore would not be barred by Heck, if the
16 factual basis for the conviction is temporally and
17 conceptually distinct from the excessive force claim.
18 That is the big unknown at this point. He has
19 pending before a state court, charges of aggravated flight
20 from an officer, DWI and two counts of resisting arrest.
21 THE COURT: So you mean --
22 MR. HANNA: If his injury --
23 THE COURT: Wait, let me ask you, Counsel: You
24 mean that if I’m resisting arrest then excessive force is
25 okay?
17-30519.2641
27
1 MR. HANNA: No.
2 THE COURT: Excessive force?
3 MR. HANNA: No. If he’s convicted of resisting
4 arrest and it is determined at the trial court in the
5 criminal proceeding that the injuries sustained were part and
6 parcel of that resisting action and not conceptually or
7 temporally separate.
8 In other words, they didn’t happen fifteen minutes
9 later when they put him in the car and then took him to the
10 station to be booked. But they were conceptually and
11 temporally connected with the active resisting, then they’re
12 barred under Heck.
13 THE COURT: Well, I --
14 MR. HANNA: And that is the important thing --
15 THE COURT: So what is this sentence --
16 MR. HANNA: -- that we don’t know at this point.
17 THE COURT: And I really don’t want to get into
18 this too much. I was trying to say, I guess in the beginning,
19 we can argue about this a while. I was trying to say in the
20 beginning there are certain claims that are elegantly tied in
21 to -- unequivocally tied in to the conviction. So, this isn’t
22 something that I would want to bifurcate and try the part that
23 isn’t and the part that is.
24 So once we find one that’s clear, because -- and let
25 me just say from an excessive force standpoint, the Court
17-30519.2642
28
1 noted that a 1983 claim in Bush stated: Would not
2 necessarily imply the invalidity of a resisting arrest
3 conviction and therefore not be barred by Heck if the factual
4 basis for the conviction is distinct from this excessive
5 force claim.
6 You’re saying it’s temporally tied into it, as well,
7 is what you’re saying?
8 MR. HANNA: It has to be temporally and conceptually
9 related -- or unrelated, I’m sorry -- in order to be --
10 THE COURT: Right.
11 MR. HANNA: -- a valid claim to go forward.
12 I think the most telling quote from the opinion in
13 Bush is found on Page 500 and it encapsulizes the whole
14 problem that we have before us.
15 I mean Judge, you’ve got to keep in mind we are
16 nowhere close to a criminal finding. The trial has not
17 occurred, it’s not even set at this point. We don’t know what
18 the trier of fact in that criminal proceeding will ultimately
19 decide.
20 But if you look at the decision in Bush, because
21 Bush has produced evidence that the alleged excessive force
22 occurred after she stopped resisting arrest; that is unknown
23 right now in this case, in Gates. We don’t know that that
24 occurred or didn’t occur.
25 ”And the fact findings essential to her criminal
17-30519.2643
29
1 conviction are not inherently at odds with this claim.” We
2 don’t know that.
3 The claims that are being made in this proceeding
4 might be inherently at odds with the criminal conviction, and
5 that’s what Heck is designed to prevent. A finding that
6 attempts to impugn or does impugn the criminal conviction is
7 what Heck is designed to avoid; to have a civil rights
8 proceeding that arrives at a different conclusion than the
9 criminal proceeding that underlies the entirety of the facts
10 of this matter.
11 So, and then they went on to say --
12 THE COURT: Now the criminal proceeding is
13 resisting arrest is the primary charge you’re referring to?
14 MR. HANNA: Well, the two counts of resisting
15 arrest. There’s also a felony aggravated flight from an
16 officer that --
17 THE COURT: So tell me just that if he’s convicted
18 of those charges, why would his excessive force claims go
19 away?
20 MR. HANNA: If the trier of fact in the criminal
21 proceeding finds that the injuries were temporally and
22 conceptually connected to that active resisting, to that
23 moment of resisting --
24 THE COURT: But even if it was temporally --
25 MR. HANNA: -- to the effort --
17-30519.2644
30
1 THE COURT: Let’s say: Well, it happened at the
2 same time but I hit him over the head with an anvil. So what
3 that it’s temporally related?
4 MR. HANNA: Well, that would be conceptually
5 different, you know. That would be temporally connected but
6 conceptually, it would fly in the face of what Heck was
7 intended to do.
8 It has to be both temporally and conceptually.
9 THE COURT: Right.
10 MR. HANNA: So I agree with Your Honor. If they
11 took an anvil out, as you just --
12 THE COURT: But of course --
13 MR. HANNA: Right.
14 THE COURT: -- again, another extreme example --
16 THE COURT: -- we realize.
17 MR. HANNA: Right. And even though it occurred at
18 the moment of resisting, that would be problematic and would
19 not impugn the conviction or you know, it would allow such
20 proceedings to go forward.
21 THE COURT: Well, what I’m saying is it looks like
22 we’re going to have whatever the criminal -- happens in the
23 criminal court; we’re probably still going to have a trial
24 here unless you prevail on Rule 56.
17-30519.2645
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1 THE COURT: Because there are going to be --
2 MR. HANNA: And we have done that --
3 THE COURT: -- factual disputes as to the extent of
4 the force used.
5 MR. HANNA: Right. And we have done that before,
6 in federal court --
7 THE COURT: But I guess what I’m saying is there
8 are a couple of claims -- I guess what I’m saying, as I said
9 in the beginning, there are a couple of claims that cannot
10 be, under any circumstances, resolved until after the criminal
11 trial.
12 For instance, malicious prosecution. But they’re
13 not --
14 MR. HANNA: That’s correct, Your Honor.
15 THE COURT: And so I’m wondering about the judicial
16 economy of even if I didn’t agree with you vis-à-vis the
17 excessive force claims, and you make a good argument. But
18 even if I didn’t, what would be the point of trying this thing
19 and piecing it?
20 MR. HANNA: Exactly. It just doesn’t make any sense
21 to jump --
22 THE COURT: That’s really kind of my point.
23 MR. HANNA: -- to jump the civil proceeding ahead
24 of the criminal proceeding, when the criminal proceeding is
25 really -- it sets forth the parameters under which we will
17-30519.2646
32
1 operate in the civil proceeding, insofar as findings of fact
2 that are essential to this action.
3 THE COURT: Well, the findings of fact are he’s
4 going to be guilty or not guilty. That’s about all I’m going
5 to be concerned about.
6 MR. HANNA: Well, the testimony will come out -- the
7 testimony will come out in that criminal proceeding as to what
8 happened at the moment that he was stopped, arrested, taken
9 into custody.
11 MR. HANNA: And all of those are essential to --
12 THE COURT: It will not resolve the excessive force
13 claim in this Court, however.
14 MR. HANNA: That’s correct. The excessive force
15 claim is the province of 1983 in the federal courts.
16 THE COURT: But my --
17 MR. HANNA: Absolutely.
18 THE COURT: Again, I get back to -- I’m inclined not
19 to bifurcate this case and try it -- try the different claims
20 separately. And there’s a couple that clearly depend on --
21 I’ll say it again.
22 So why don’t we see what --
23 MR. HANNA: Yes, my colleagues may have something
24 else --
25 THE COURT: Okay.
17-30519.2647
33
1 MR. HANNA: -- that they wish to add, Your Honor.
2 THE COURT: All right, thank you.
3 MS. LANDRY: Just briefly, Your Honor. Kathryn
4 Landry on behalf of the District Attorney’s Office.
5 And something struck me when Your Honor mentioned
6 malicious prosecution, because as I read the allegations in
7 the complaint against the District Attorney’s Office, they
8 tried to stay away from utilizing that terminology, but
9 basically, that’s what the claim is.
10 They’re claiming that the DA added a charge
11 maliciously to interfere with his rights, which I think is
12 basically a malicious prosecution claim. And anyway,
13 something came to my mind that --
14 THE COURT: Whatever it is, it’s certainly -- well,
15 however we name it, it seems to be relevant to the criminal
16 proceedings.
17 MS. LANDRY: Exactly. Because if he’s convicted of
18 all of these crimes --
19 THE COURT: No question.
20 MS. LANDRY: And one thing I just wanted to
21 mention: The state court litigation is obviously still
22 ongoing. There is a writ application pending at the First
23 Circuit. When Mr. Abel filed the opposition to our writ
24 application in the First Circuit, on Page 14 of his
25 opposition, he acknowledges that malicious prosecution claims
17-30519.2648
34
1 must be held in abeyance until the underlying prosecution is
2 concluded.
3 THE COURT: Well, what are we fighting about here,
4 sir?
5 MR. ABEL: Which is why I didn’t file it here, Your
6 Honor. I didn’t make a claim for malicious prosecution
7 intentionally, because it was premature. It’s not in the
8 complaint.
9 THE COURT: Okay.
10 MR. ABEL: I didn’t make it.
11 THE COURT: Okay.
12 MR. ABEL: I tried to sort out all of those claims
13 you’re talking about.
14 THE COURT: All right. So just -- I’m going to have
15 a little -- I’m going to let you stand right there. Tell me
16 what claims you have against the District Attorney now? What
17 are the claims?
18 MR. ABEL: Um --
19 THE COURT: Whatever we call them?
20 MR. ABEL: They’re claims that arise -- they are
21 claims that arise under the Louisiana Constitution that
22 are --
23 THE COURT: But what are the claims? I mean, what
24 did he do?
25 MR. ABEL: What did he do?
17-30519.2649
35
1 THE COURT: His actions?
2 MR. ABEL: Your Honor, that’s going to take a
3 minute or two. Do you want me to do it right -- yes, Your
4 Honor.
5 THE COURT: Well, just tell me in a nutshell. You
6 don’t have to give me a --
7 MR. ABEL: This is what happened, Your Honor. I
8 personally --
9 THE COURT: -- a Tolstoyan explanation.
11 We questioned the entire legitimacy of the resisting
12 arrest charges, because Chuck Hughes, who is a Defendant in
13 this case --
14 THE COURT: Okay. Well, you’ve lost your argument
15 on the stay.
16 How is that -- you can sit down and then I’ll let
17 you come back up. You tell me how that -- how I can
18 adjudicate that without the -- under Heck v. Humphrey?
19 MR. ABEL: Now, the interesting thing about Bush,
20 Your Honor is that --
21 THE COURT: Just tell me -- just answer my question.
22 My question -- whatever Bush says, whatever -- tell me how
23 the criminal charge would not enlighten -- the resolution of
24 the trumped up charge or whatever you’re saying wouldn’t
25 enlighten the Court if he were found guilty or innocent
17-30519.2650
36
1 thereof?
2 MR. ABEL: Well Your Honor, because the charges --
3 THE COURT: If he’s found guilty, the claim is
4 gone.
5 MR. ABEL: Because there are facts in the record
6 here and facts in the record in the criminal matter which
7 specifically states from Mr. Hughes to me, personally, why
8 the charges were being filed.
9 He said to me, personally, on July 24th --
10 THE COURT: But if he’s convicted of those, what
11 happens to your claim?
12 MR. ABEL: But Your Honor, he should -- he has
13 violated his Constitutional mandate by even bringing those
14 for the -- because he said he was bringing them for the
15 specific purpose to defeat any civil rights action that
16 Mr. Gates might allege.
17 THE COURT: So you’re saying under Heck v. Humphrey,
18 if he is convicted of those, you still have a claim?
20 THE COURT: Okay.
22 Because what happened in that meeting is that he
23 amazingly told me --
24 THE COURT: So in other words, if I say I’m going
25 to charge you with something just because I’m mad at you, and
17-30519.2651
37
1 you’re convicted of it, or because I’m piqued at you, or
2 because I want to get leverage; you’re saying that that’s
3 actionable, even if you’re convicted of the charge under Heck
4 v. Humphrey?
5 MR. ABEL: No, Your Honor. But what the Court
6 should determine first: Very rarely is there any situation
7 where in fact someone who has the ability -- Mr. Hughes
8 represents the insurance company that represents the Sheriff.
9 Mr. Hughes also represents the Sheriff. He’s got a conflict
10 of interest there alone.
11 When we were told by the District Attorney to go
12 and speak to Mr. Hughes about this matter, he told me: File
13 a civil rights claim. I will call the District Attorney and
14 have him charge Mr. Gates -- Mr. Gates was not originally
15 charged with resisting arrest.
16 I will call the District Attorney --
17 THE COURT: But you’re suing the District Attorney,
18 correct?
19 MR. ABEL: I’m sorry?
20 THE COURT: You’re suing the District Attorney?
21 MR. ABEL: We’re suing the District Attorney, as
22 well.
23 Because Mr. Hughes said: I will -- to stop
24 Mr. Gates’ civil rights claim, I will call the District
25 Attorney and have the District Attorney charge Mr. Gates with
17-30519.2652
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1 resisting arrest.
2 And do you know what happened? On the Friday
3 before his trial date -- this didn’t happen contemporaneously
4 with everything else. This happened ten months later, Your
5 Honor. This happened ten months later.
6 THE COURT: But how is the District -- under what
7 theory is a District Attorney liable in the event your client
8 is convicted of resisting arrest?
9 MR. ABEL: For -- for knowingly participating with
10 Mr. Hughes in that activity, and that activity for that
11 purpose, Your Honor. Because the activity was not designed
12 to protect the interest of the government or the interest of
13 law enforcement. The activity was specifically designed and
14 communicated by Mr. Hughes to stop any civil rights claim,
15 because at that time Mr. Hughes had already been involved in
16 the Holly Bush case.
17 And it was specifically designed for that purpose.
18 On Friday before the trial Mr. Hughes called --
19 THE COURT: Do you have any case law which you
20 think answers that question, that whatever the motivation of
21 the prosecutor, that if there’s a conviction of the charge
22 that the prosecutor brought -- and I’m not even talking about
23 (inaudible case cite), but we’re talking about Heck v.
24 Humphrey; if there is an acquittal -- excuse me, a guilty
25 verdict of the charge brought by the prosecutor, whatever his
17-30519.2653
39
1 motivation, that Heck v. Humphrey is not implicated?
2 MR. ABEL: I have not researched that particular
3 issue, you know --
4 THE COURT: All right. Thank you, sir.
5 MR. ABEL: -- for the stay.
7 MR. ABEL: Yes, sir.
8 THE COURT: All right. And I’ll let you get back
9 up, but you can sit down now and --
10 MR. ABEL: Thank you.
11 THE COURT: Anything else anybody wants to say?
12 MR. SIMMONS: Rick Simmons, Your Honor, and I
13 represent Chuck Hughes, the Attorney for the Sheriff’s
14 Office.
15 Quite frankly, Your Honor, I think the comments you
16 have would -- I probably wouldn’t rise except for the comments
17 from the podium here about Mr. Hughes.
18 We resisted the temptation to start into the tit for
19 tat factual issues, because the stay is really not contingent
20 on these factual issues. Yet, this man keeps coming to the
21 podium. There’s mischaracterizations in the record, in the
22 pleadings, and we certainly intend to contest those at the
23 appropriate time.
24 But I felt like I should say that. I mean if this
25 gentleman is going to be a witness then I don’t know how he
17-30519.2654
40
1 can be here as an attorney also, if the issue is what my
2 client, Mr. Hughes, said to him.
3 But be that as it may, Your Honor, this is a case
4 where when the First Circuit rules, it may go to the Attorney
5 General. The Attorney General may have the case. There’s all
6 kind of possibilities where this case could go.
7 And the biggest problem you would have by
8 bifurcating it is the discovery, because --
9 THE COURT: I’m not going to bifurcate it.
10 MR. SIMMONS: Okay. Well then basically, that’s
11 the reason for the stay, Your Honor, because we will be -- a
12 subpoena will be put on my client. He is the attorney for
13 the potential victims in the resisting arrest. So I mean he
14 has the ability to participate in the process, and all of that
15 will be sorted out later.
16 But Your Honor, as a criminal defense attorney, if
17 you allow the Civil Rights Statute and petition to be used,
18 it will be a discovery mechanism and we will be here sorting
19 out depositions, trying to stop it. You just have to sit and
20 wait for the process to go, and at that point in time, we
21 will --
22 In fact, some of these comments if they continue,
23 Your Honor, we may have other motion practice about the
24 pleadings. Because I just feel like I had to come up and say
25 these are inaccurate.
17-30519.2655
41
1 Thank you.
3 Anyone else from this side?
4 MS. LANDRY: Your Honor, just briefly.
5 As I started saying earlier, I think that they
6 tried to word the complaint in such a way as to get around the
7 malicious prosecution. But if you look at their allegations,
8 that’s basically what it is, and I just don’t think there’s
9 any way this can proceed until we know.
10 If he’s convicted on all the charges or even some of
11 the charges, I think the claim certainly against the District
12 Attorney’s Office goes away. And he doesn’t have any
13 authority for that.
14 He admitted in state court that malicious
15 prosecution was premature pending the outcome of the criminal
16 proceeding, and I still think that that’s true.
17 Thank you, Your Honor.
18 THE COURT: Anything else you have to say, Counsel?
20 THE COURT: Okay, just don’t repeat yourself. I
21 mean my ears hurt when I hear --
23 The distinction -- well, let me respond to what
24 Counsel said regarding the comments that I made about
25 Mr. Hughes. What I’ve told the Court and what I’ve said in
17-30519.2656
42
1 an affidavit and what I’ve said under certified pleadings is
2 absolutely, factually true.
3 And what happened in St. Tammany and what they did
4 in this prosecution is an affront to the Constitution and it’s
5 an affront to Mr. Gates’ rights. And at some point,
6 somewhere, we will get into the bottom of that, too.
7 And as Your Honor knows, I have also used the Hobbs
8 Act standard in this pleading to assert those rights, and I
9 will continue to use the Hobbs Act, because he’s correct. I
10 was involved, what I have said and what they did; I have said
11 truthfully, and that is the truth.
12 THE COURT: All right, sir.
13 MR. ABEL: In regard to the Owens matter -- in
14 regard to the Bush matter; temporally and conceptually
15 distinct. The significance of that is what Judge Owens said
16 in the Bush v. Strain case.
17 What Judge Owens said is that you’re not limited to
18 what you learn in the criminal proceedings. And I understand
19 the Court’s concern that we would bifurcate this for the
20 purposes of trial, and that would be problematic.
21 But that does not keep the Court, as Judge Owens
22 suggests, from letting discovery go forward. And that is an
23 option that’s available to the Court. If the Court is
24 convinced that a trial cannot take place until the criminal
25 trial takes place, or unless it’s resolved by dispositive
17-30519.2657
43
1 motions before the First Circuit or the Supreme Court; if
2 that’s the case, then the real crux of the Holly Bush case is
3 that facts determine an excessive force claim, and facts
4 determine qualified immunity claims.
5 And therefore, to restrict our ability to do
6 discovery gives us only one forum to learn any facts, and no
7 other forum. Mr. Gates is completely restricted to the forum
8 of the criminal proceeding, which we question the whole
9 validity of at this point anyway, considering what Mr. Hughes
10 did, you know.
11 But even the initiation of the resisting arrest
12 charges ten months later --
13 THE COURT: Has that case been set for trial at all,
14 other than --
15 MR. ABEL: No, Your Honor. No, Your Honor. We’re
16 years away from that, because we have dispositive motions,
17 some of which have already been filed and selective
18 prosecution motions and things like that, which are going to
19 be filed.
20 Judge DiMiceli ordered Mr. Hughes and ordered the
21 District Attorney to testify; and they refused to testify.
22 Mr. Hughes didn’t even show up in response to the subpoena.
23 I was there. Mr. Hand was there. We were ready to
24 testify if the judge wanted us. But there are so many
25 problems with the legitimacy of this case that even Judge
17-30519.2658
44
1 DiMiceli said: We’ll never see another one like this.
2 Because at what point does the attorney for the
3 Sheriff tell someone: I’m going to call the District
4 Attorney and I’m going to have these charges filed ten months
5 after the thing happened, to prevent any civil rights action
6 under Heck v. Humphrey.
7 And that’s exactly what he did on Friday before the
8 trial, and on Monday morning when the trial took off, guess
9 what happened? He recharged it. And we have all of the
10 information as to when the call was made. The call was made
11 from Mr. Hughes to Mr. Dearing, from Mr. Dearing to Mr. Hand;
12 and Monday morning, exactly what Mr. Hughes threatened to do,
13 was done.
14 THE COURT: Well --
15 MR. ABEL: It’s in the record.
16 THE COURT: Something that does concern me; if for
17 some reason these criminal proceedings were interminable,
18 then I feel as a federal court -- and I’m not talking about
19 the merits of the claim -- but assuming as a federal court, I
20 can’t just sit here in limbo, and won’t let everybody --
21 You know, I’m not sure what I’m going to do with
22 this, at this second. But I will not do it for an
23 interminable -- if I do grant a stay, it will not be
24 interminable. In other words, if these criminal proceedings
25 go on too long, I am concerned that the -- are you telling me
17-30519.2659
45
1 that the charge was made ten months after the incident? The
2 police did not make the charge of resisting arrest?
3 MR. ABEL: The police made a number of charges,
4 most of which the District Attorney disregarded completely,
5 on that night, including obstructing the highway of commerce.
6 They didn’t even charge him with aggravated flight, initially.
7 Only after --
8 THE COURT: So the District Attorney did not accept
9 the charge of resisting arrest, you’re telling me?
10 MR. ABEL: No. They did not accept the charge of
11 resisting arrest. Only after, ten months; only after I had
12 the meeting with Chuck Hughes and Chuck Hughes said: I’m
13 going to stop that civil rights case. I’m going to call the
14 District Attorney and I’m going to have him charged with
16 And that’s exactly what they did, for exactly that
17 purpose.
18 THE COURT: All right. I understand your argument,
19 sir.
20 MR. ABEL: And there’s no reason, Your Honor -- and
21 of course I’m not suggesting to the Court what its authority
22 is; but in my opinion the Court has the authority to either
23 allow limited discovery to go forward at this time.
24 THE COURT: I do.
25 MR. ABEL: Discovery as to certain issues;
17-30519.2660
46
1 discovery up to a point; and we would ask the Court to
2 consider defining categories of discovery which would address
3 these elemental problems, because it’s a Constitutional
4 problem. It’s a Hobbs Act problem. And it’s totally
5 illegitimate and totally in violation of the District
6 Attorney and the Sheriff’s attorneys’ Constitutional
7 mandates.
10 THE COURT: I’m going to give you a last word here,
11 a short last word.
12 MS. LANDRY: I will be short, Your Honor.
13 First of all, under the Louisiana Code of Criminal
14 Procedure, Article 61, the District Attorney has the sole
15 discretion on how to prosecute a case.
16 The Supreme Court has held in the State v. Johnson
17 case, that’s 637 So.2d 1033, that the District Attorney can
18 amend a bill of information to add new charges --
19 THE COURT: No question.
20 MS. LANDRY: -- up until the time --
21 THE COURT: I’m aware of that. I’m aware of all of
22 that.
23 MS. LANDRY: -- that the prospective juror is sworn
24 in.
25 With respect to the discovery issues, I did come
17-30519.2661
47
1 across a case last night. It was -- I think it just came out
2 a couple of months ago, in January of ’08. It’s actually out
3 of the Southern District of Texas. It’s Dominguez v.
4 Hartford, and the cite is 530 F.2d 902.
5 And the reason it’s interesting is -- and I didn’t
6 think that the Plaintiff had ever urged this that we should
7 do portions of discovery as opposed to staying the proceeding.
8 I still submit that the whole proceeding should be stayed.
9 The reason the criminal proceeding is still pending
10 is because Mr. Gates filed a Motion to Recuse the District
11 Attorney. In connection with that under the Code of Criminal
12 Procedure, he had to file a motion to get the subpoenas
13 issued.
14 While he claims in his brief to this Court that the
15 Assistant District Attorneys refuse to testify, that is not
16 what happened. In early December a hearing was set on his
17 motion to issue the subpoenas and the Motion to Recuse.
18 It went before the Judge. She ruled and granted
19 the subpoena requests, although there was some wording in
20 there that left some open possibilities. But nevertheless,
21 she never got to the Motion to Recuse because the District
22 Attorney’s Office asked for permission to take a writ to the
23 First Circuit, which we did within our 30 day period.
24 It has been pending at the First Circuit since I
25 believe I filed it on January 2nd or 3rd of this year. I did
17-30519.2662
48
1 call yesterday just to check, they said it’s still pending.
2 So part of the reason there was still an abeyance in the
3 criminal proceeding has to do with Mr. Gates’ own Motion to
4 Recuse and issues dealing with that.
5 The District Attorney, just as Mr. Gates would have
6 been entitled, has the right to seek review by an appellate
7 court of that decision. And basically, that’s what we’re
8 waiting on at this point, is for that process.
9 Your Honor knows that sometimes the appellate
10 process moves awfully slowly. And I find that you know,
11 particularly in Baton Rouge which is the capital seat, you
12 know, the First Circuit has a lot of cases coming through
13 it.
14 But nevertheless, this federal court case out of
15 Houston involved a criminal defendant who then filed a civil
16 action in federal court. And the Court said that the civil
17 action should also be stayed because they said a criminal
18 defendant such as the Plaintiff here, who files a civil suit
19 should not be allowed to obtain discovery pertinent to the
20 criminal matter.
21 For example, they said you know, in criminal cases
22 they may not be allowed to depose certain witnesses, but yet
23 they might be in the civil case. And they said: We’re not
24 going to allow this Plaintiff to back door the system and get
25 through our court, what he couldn’t get through the state
17-30519.2663
49
1 court system.
2 I submit the case needs to be stayed pending the
3 outcome of the criminal proceeding. The District Attorney’s
4 Office is not interested in delaying it; however, we do
5 believe -- and just as I think Mr. Gates would follow his
6 rights to file with the appellate court; you know, we’re just
7 doing what we have the right to do.
8 We did it in a timely manner. We’ve just been
9 waiting on the appellate court system, and I think that this
10 case has got to be stayed pending the outcome of the criminal
11 prosecution in this matter.
12 Thank you.
13 THE COURT: Yes, sir.
14 MR. SIMMONS: Your Honor, once again I rise because
15 if my client was here he would be asking me to do this. The
16 continued comments from the podium, the mischaracterizations
17 of --
18 THE COURT: Of course, all of that you know, I mean
19 if he believes it and you believe the other way --
20 MR. SIMMONS: Well --
21 THE COURT: -- the only way to determine it is a
22 hearing.
23 MR. SIMMONS: And that’s the way we took in our
24 pleadings.
25 THE COURT: And we may not have a hearing here for
17-30519.2664
50
1 a while.
2 MR. SIMMONS: But after you keep hearing it and
3 hearing it and hearing it, I mean for example --
4 THE COURT: I understand, but I’m assuming --
5 MR. SIMMONS: Yes.
6 THE COURT: -- that each of you is in good faith in
7 what you say until otherwise proven.
8 MR. SIMMONS: Yes.
9 THE COURT: You say it’s wrong, he says it isn’t.
10 MR. SIMMONS: Right.
11 THE COURT: It’s really not before me.
12 MR. SIMMONS: And that’s what -- that’s the reason
13 we didn’t put it all in the pleadings, but --
14 THE COURT: I mean let’s hope I’m not impressionable
15 to find as a fact, that, without having a hearing.
16 MR. SIMMONS: All right. I thank you.
17 I just knew my client would want me to say this.
18 THE COURT: All right. Your client should be
19 assuaged.
20 Okay. I think some of my -- one of my options is,
21 looking at Bush, I mean I understand your discovery
22 standpoint. One of my options is -- and I’m not going to
23 exercise it now, just your hearts don’t have to flutter --
24 would be to hold my own hearing, and I find whether it’s
25 temporally or conceptually connected.
17-30519.2665
51
1 That, you know, I guess what I’m saying is: All of
2 you are zealously defending your clients as is the Plaintiff.
3 If somebody was egregiously mishandled by the state system;
4 I’m not going to sit here for an interminable period of time
5 and do nothing. I can just tell you that.
6 I’m going to stay the matter now. Either of you --
7 any of you may seek to open the stay for some compelling
8 reason, at any time. And the stay is not -- it’s not going
9 to be necessarily dependent on the resolution of the criminal
10 proceedings. I’m issuing a stay, based on what I consider to
11 be the appropriate thing to do, and the law as I see it.
12 I think that some of the matters are inextricably
13 intertwined. I think Heck is implicated. I think discovery
14 is implicated. I think your arguments are well taken and I’m
15 going to grant a stay.
16 However, what I’m saying is this federal court will
17 not sit idly by. First, if in six months nothing has happened
18 referencing the criminal proceeding, I’m going to be concerned
19 about his rights preserving discovery, and we may have to come
20 back here again.
21 I used six months illustratively, not as -- so I am
22 concerned in discharging my responsibility as an Article 3
23 Judge, that I’m not going to just sit here forever and do
24 nothing, just to let everybody know that.
25 But right now I’m going to grant the stay.
17-30519.2666
52
1 Okay, thank you.
3 THE COURT: This matter is concluded.
4 MS. BRECHTEL: Thank you, Your Honor.
5 MR. HANNA: Thank you, Your Honor.
6 MS. LANDRY: Thank you.
8 * * * * *
9 (Hearing is Concluded)
10
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15
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18
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17-30519.2667
53
C E R T I F I C A T E
I certify that the foregoing is a correct transcript
from the electronic sound recording of the proceeding in the
above-entitled matter.
S/Sherryl P. Robinson _5/4/17_

Sherryl P. Robinson Date
17-30519.2668
1

SHANE M. GATES, * Docket No. 07-6983

* c/w No. 13-6425
*
Plaintiffs, *
*
VS * December 14, 2016
*
*
RODNEY JACK STRAIN, ET AL, *
*
Defendants. * Section K
*****************************************************************
REPORTER'S OFFICIAL TRANSCRIPT OF THE MOTIONS HEARING
BEFORE THE HONORABLE STANWOOD R. DUVAL,
UNITED STATES DISTRICT JUDGE.
*****************************************************************
APPEARANCES:
For the Plaintiff: Hollister Law Office
BY: JOHN A. ALLISTER
613 Bon Temps Roule
For St. Tammany Parish

Sheriff's Department: Milling Benson Woodward
BY: CHADWICK COLLINGS
BY: THOMAS S. SCHNEIDAU
For the St. Tammany Parish

District Attorney's Office: 22nd Judicial D.A.'s Office
BY: EMILY COUVILLON
Antonio LE MON
701 N. COLUMBIA STREET
COVINGTON, LA 70433
FINAL TRANSCRIPT
17-30519.2669
2
APPEARANCES CONTINUED:
Appearing for Charles Hughes: Hailey, McNamara, Hall,

Larmann & Papale
BY: RICHARD T. SIMMONS, JR.
One Galleria Blvd.
Suite 1400
Metairie, LA 70011
Appearing for Philip Duiett: Cotten, Schmidt & Abbott

BY: NANCY CUNDIFF
650 Poydras St.
Suite 2810
Appearing for St. Paul Insurance: Baker Donelson Bearman
Caldwell & Berkowitz
BY: WILLIAM H. HOWARD, III
Suite 3600
Appearing for Richard Swartz

and James D. Caldwell: Louisiana Dept. of Justice
BY: DAVID G. SANDERS
1885 North 3rd St.
Appearing for Marie-Elise Prieto: Huval, Veazey, Felder &
Renegar
BY: STEFINI W. SALLES
532 E. Boston St.
Covington, LA 70433
Appearing for Walter Reed in
His Individual Capacity: Whalen Law Offices
BY: RALPH S. WHALEN, JR.
1100 Poydras St.
Suite 2950
REPORTED BY: Mary Thompson, RMR, FCRR

500 Poydras Street, Room B-275
(504)589-7783
FINAL TRANSCRIPT
17-30519.2670
3
1 P R O C E E D I N G S
2 (Call to order of the court.)
3 THE CASE MANAGER: Counsel, make your appearances,
4 please.
10:33:19 5 MR. COLLINGS: Good morning, Your Honor.
6 Chadwick Collings on behalf of the movers, St. Tammany Parish
7 Sheriff's Department and employees.
9 MR. SIMMONS: Your Honor, Rick Simmons from Hailey
10:33:29 10 McNamara. I'm here for Chuck Hughes, an attorney for the
11 Sheriff's office.
13 MS. CUNDIFF: Nancy Cundiff of Cotten, Schmidt & Abbott
14 here on behalf of Philip Duiett.
10:33:37 15 THE COURT: Thank you.
16 MS. COUVILLON: Good morning, Your Honor.
17 Emily Couvillon here on behalf of Walter Reed in his official
18 capacity and Assistant District Attorneys Ronald Gracianette,
19 Nicholas Noriea, and Kathryn Landry.
21 MR. LE MON: Good morning, Your Honor. Antonio Le Mon
22 here with Emily Couvillon representing those same defendants.
24 MR. SANDERS: Good morning, Your Honor. David Sanders,
10:33:59 25 Department of Justice Special Litigation Counsel, representing
FINAL TRANSCRIPT
17-30519.2671
4
1 former Attorney General Caldwell and Judge Swartz.

2 THE COURT: Thank you very much.
3 MR. WHALEN: Morning, Your Honor. Ralph Whalen
4 representing Walter Reed in his individual capacity.
10:34:12 5 MR. HOWARD: Morning, Judge. Bill Howard representing
6 St. Paul Fire & Marine Insurance Company.
8 MR. SCHNEIDAU: Good morning, Your Honor.
9 Thomas Schneidau also on behalf of the Sheriff's office.
11 MR. HOLLISTER: Good morning, Your Honor.
12 John Hollister representing the plaintiff, Shane Gates.
14 MS. SALLES: Good morning. I'm Stefini Salles with
10:34:38 15 Huval, Veazey, Felder & Renegar on behalf of the former Clerk of
16 Court for the Parish of St. Tammany Marie-Elise Prieto in her
17 individual and official capacity.
19 Please be seated. I'm going to talk first.
10:34:52 20 MR. COLLINGS: Okay.
21 THE CASE MANAGER: I'll call the case for the record.
22 THE COURT: That would be a good idea. Let's call the
23 case for the record.
24 THE CASE MANAGER: Civil Action No. 07-6983
10:34:59 25 consolidated with 13-6425, Shane Gates versus Rodney Strain,
FINAL TRANSCRIPT
17-30519.2672
5
1 Et Al.
2 THE COURT: Okay. I'm going to go over, briefly, what
3 we have before us.
4 Document 211, a joint motion to lift stay for the
10:35:13 5 limited purpose of compelling plaintiff to appear in his
6 underlying state court criminal proceeding, failing which this
7 matter should be dismissed for prejudice.
8 Document 212, the request for oral argument.
9 Document 216, there was an order for an extension of
10:35:31 10 time and to continue responses due December 6th. Submission date
11 was December 14, 2016.
12 Document 222, an order granting request for oral
13 argument on the motion to reopen the case. That's Document 211.
14 Document 225 is plaintiff's opposition to the
10:35:49 15 defendants' joint motion to lift stay.
16 We have Document 231, which was the reply memorandum by
17 the defendants.
18 Document 228, which is the joint motion to strike
19 plaintiff's opposition to the motion.
10:36:02 20 Document 229 was the request for oral argument to
21 expedite hearing.
22 And Document 235, the order granting oral argument on
23 the joint motion to strike for today.
24 Let me give you a brief synopsis of where the Court is
10:36:20 25 on this matter.
FINAL TRANSCRIPT
17-30519.2673
6
1 It's been here a long time, and I think the Supreme

2 Court case of Heck v Humphrey, which all of you are familiar
3 with, in order to adjudicate a 1983 case which has an underlying
4 criminal aspect to it that relates to the 1983 case, the criminal
10:36:43 5 matter must be disposed generally in order for the civil matter
6 to be heard, because the criminal matter relates to the
7 allegations in the 1983 pleading.
8 As we know, there's also been a case filed in the
9 Middle District which has been transferred here. The Court is
10:37:05 10 certainly familiar with the tortured history of this case since
11 I've been the judge throughout.
12 Just to let you know, after today the case will be
13 transferred, since I'm retiring -- not because of this case but
14 because -- well, in a lifetime appointment, one has to make a
10:37:27 15 decision whether you die, you become infirm, or you leave on your
16 own terms, which I've decided to leave on my own terms. So it's
17 just to let everybody know that.
18 There are some questions I have for you, and I'm
19 certainly going to let you get what you have to say on the
10:37:46 20 record.
21 I'm very -- I'm not -- looking at the papers, I see no
22 authority at this time for me to order the plaintiff to go be
23 criminally prosecuted and do what's necessary to do so.
24 At the same time -- and I understand that the
10:38:15 25 defendants desire to bring this thing to some type of conclusion.
FINAL TRANSCRIPT
17-30519.2674
7
1 It's been long and expensive, I'm sure, for all.

2 I do understand that the underlying injuries alleged by
3 the plaintiff, and as seen at least in photographs by the Court,
4 seem serious and the Court understands that as well.
10:38:41 5 However, we could be at this -- this case could be at
6 this impasse forever. And there is a mechanism to resolve the
7 impasse, and that's Rule 41(b). I can, on my own motion -- or
8 the judge who's fortunate enough to get this case can, on his or
9 her own motion or on a motion of the defendant, find that the
10:39:09 10 plaintiff has failed to prosecute.
11 Now, the plaintiff can argue, Well, wait, I can't
12 prosecute, Judge, you've stayed the case pending these
13 proceedings. I don't know all the nuances and the ins and outs
14 and the nuts and bolts of the pending criminal prosecution on the
10:39:33 15 misdemeanor charge.
16 I do note in plaintiff's papers that I think plaintiff
17 has a mind they have defenses to those charges, legal and
18 factual.
19 But if plaintiff never seeks to resolve those charges,
10:39:51 20 it is tantamount -- and this is for you to be able to repose to
21 the Court -- to failure to prosecute. In other words, if -- it
22 can only be -- those charges, certainly under Ex Parte Young, can
23 only be adjudicated in state court. And if you have defenses by
24 virtue of the other prosecution and other things, you can file
10:40:16 25 them, you can move for a change of venue. Whatever you have to
FINAL TRANSCRIPT
17-30519.2675
8
1 do, you have to confront those charges. I can't make them go

2 away.
3 And I am very -- I don't think that I can make the
4 plaintiff -- as I understand it, and you can answer all these
10:40:30 5 questions -- say anything you want and answer some of the
6 questions I'm posing.
7 One, the plaintiff has not been summoned to the court
8 yet or appeared -- made an appearance that is necessary. And
9 what's the limit of the compulsory proceedings in the state
10:40:55 10 criminal court to compel him to do so by a warrant or something
11 else? And what are the limitations of that? Is the plaintiff
12 intentionally avoiding any such action? And has any such action
13 been taken?
14 And that's the quandary that I see that we're in.
10:41:20 15 Insofar as the ethical charges and the charges that
16 perhaps the defendants regard as false, I'm not going to
17 adjudicate those. I'm not looking at this -- any attempt at
18 demonization right now falls on deaf ears in this court. Right
19 now, I'm interested in facts and law referencing this case
10:41:50 20 getting resolved. And if somebody has a true ethical complaint,
21 we have an apparatus to do that if you really want to make it and
22 stand by it.
23 So any venting, make it short. Say it's completely
24 false, et cetera.
10:42:20 25 I don't know if a Rule 11 motion has been made.
FINAL TRANSCRIPT
17-30519.2676
9
1 Rule 11 is invoked in the pleading.

2 I'll rule on anything I need to rule on today.
3 So I guess, at this point, we'll talk to the mover
4 first.
10:42:39 5 MR. COLLINGS: Thank you, Your Honor.
6 Again my name is Chadwick Collings, Milling Benson
7 Woodward, on behalf of the St. Tammany Parish Sheriff's office
8 and its employees.
9 Gathering from the Court's comments, I know well enough
10:42:52 10 not to say too much when it looks like I'm ahead, so I'll just go
11 ahead and just reiterate, Judge, I think you're getting to the
12 same place that we had suggested to you in our pleadings you
13 needed to get to, which is Rule 41.
14 Rule 41 gets you to the point where we're not asking
10:43:05 15 you to get involved in the state court proceedings. We're not
16 asking you to order the state court to do anything at all, which
17 we would agree that's not the role of this Court.
18 We believe it is the plaintiff's responsibility to
19 ultimately appear and present himself to the state court and
10:43:21 20 resolve that case one way or the other. He has refused to do so
21 for now two years. An attachment has been outstanding.
22 So we would suggest that you're right on point, Judge.
23 Make an order that he has failed to prosecute by virtue of his
24 continuing the one impediment to this case going forward, which
10:43:41 25 is his remaining a fugitive. That proceeding can't proceed until
FINAL TRANSCRIPT
17-30519.2677
10
1 he appears.
2 THE COURT: Is there a compulsory proceeding? There
3 should be, I'm sure, in order to get him to appear in the state
4 court? Or is he beyond the limits of it?
10:43:54 5 You might explain that to me, if you are able to. And
6 it may not be your bailiwick.
7 MR. COLLINGS: I'm going to have to defer to the DA's
8 office on that, Your Honor, because that's not really my area.
9 I'm defending the sheriff in a civil case only.
10:44:05 10 THE COURT: All right. I understand.
11 MR. COLLINGS: So with that said, Your Honor, I don't
12 have a lot of more to add to sort of the underlying motion. We
13 would agree, it is Rule 41 which gives you the remedy to provide
14 for us a disposition of this case. And whatever happens in the
10:44:18 15 state court criminal proceedings, we'll leave to the state court
16 and DA's office to resolve.
17 So thank you, Your Honor.
18 You also do have our motion to strike, which we
19 briefed. I think it's very clear that the plaintiff and his
10:44:32 20 counsel made some pretty significant allegations against all the
21 defense attorneys in this matter with no basis in fact, and we
22 would suggest, Your Honor, you should strike his pleading and
23 award fees.
24 But I don't want to waste too much of your time arguing
10:44:44 25 that. I realize you've indicated you didn't want to talk about
FINAL TRANSCRIPT
17-30519.2678
11
1 it much.
2 THE COURT: But certainly you have a right to direct
3 yourself to it. Thank you very much.
4 MS. COUVILLON: Good morning, Your Honor. I will be
10:44:59 5 brief as well. Emily Couvillon on behalf of Walter Reed in his
6 official capacity, and Assistant District Attorneys
7 Ronald Gracianette, Nicholas Noriea, and Kathryn Landry.
8 Your Honor, this really is a simple matter of the
9 plaintiff coming to appear in the criminal court. It's as simple
10:45:15 10 as going to the Clerk of Court's office for the 22nd Judicial
11 District in Covington and receiving a subpoena to appear.
12 I've talked to Linda Foreman, who is the minute clerk
13 who has been assigned to the case. She has a subpoena prepared.
14 I've also spoken to the court administrator for the
10:45:35 15 22nd Judicial District. She has received all of
16 Judge Rothschild's available dates for 2017. And if the
17 plaintiff in this case were to go and receive a subpoena, he
18 would be set for a status conference.
19 THE COURT: Why does he have to go? Most people who --
10:45:49 20 can't he be served with it?
21 MS. COUVILLON: Your Honor, from my understanding, the
22 plaintiff is outside of the jurisdiction of St. Tammany Parish
23 and Tangipahoa Parish. There is a warrant for arrest for his two
24 failures to appear, but, as I said, he is outside of the
10:46:04 25 jurisdiction.
FINAL TRANSCRIPT
17-30519.2679
12
1 He has had six attorneys enroll as counsel of record in

2 the criminal matter so he's well aware that there is an
3 attachment for his arrest for his failures to appear. The only
4 attorney enrolled to date that we're aware of is Mr. Hollister.
10:46:17 5 So this really is a simple matter of the plaintiff
6 appearing to receive a subpoena, and the warrant for his arrest
7 would be addressed at a status conference with Judge Rothschild,
8 who's been appointed ad hoc judge in that jurisdiction.
9 THE COURT: It's your understanding, and I'm sure
10:46:31 10 someone else will speak to it, if a misdemeanor charge is lodged,
11 it's lodged by the district attorney of St. Tammany Parish?
12 MS. COUVILLON: Of the 22nd Judicial District in
13 St. Tammany Parish, yes, Your Honor.
14 THE COURT: So if I commit a crime -- I'm not sure if
10:46:51 15 there's any difference between misdemeanor or felony -- and a
16 warrant is issued that -- I failed to appear and a warrant is
17 issued, you mean I could just stay like in LaFourche Parish --
18 and I've committed a serious crime -- and everything is
19 hunky-dory? Why should I go over there? Assuming I don't have a
10:47:15 20 1983 case.
21 I'm just -- forgive me naiveté about the limitations
22 there for executing a warrant of arrest, but I need to be
23 edified. I did not get into the weeds and look at that in this
24 proceeding so -- okay.
10:47:32 25 So my basic understanding is it's your understanding
FINAL TRANSCRIPT
17-30519.2680
13
1 that he is beyond the reach of the power of the 22nd Judicial

2 District to haul him into court?
3 MS. COUVILLON: He has kept himself, yes, Your Honor,
4 outside of the jurisdiction and our ability to prosecute the
10:47:49 5 criminal case.
6 THE COURT: Okay. Thank you.
7 MS. COUVILLON: Thank you.
8 MR. SIMMONS: Your Honor, Rick Simmons on behalf of
9 Chuck Hughes, who is the attorney for the sheriff's office.
10:48:03 10 Your Honor, I'd like to raise a threshold issue of the
11 representation. I thought long and hard about the situations
12 where an attorney comes representing a fugitive. I think there's
13 even an ethical obligation that you're supposed to tell them to
14 try to surrender, et cetera.
10:48:22 15 In my career I've had two instances where we've dealt
16 with attorneys for fugitives. One, I was chief of the criminal
17 division of the U.S. Attorney's office. There was no extradition
18 with Greece. There was an indictment against the individual.
19 His attorneys came forward, we dealt with him, and he finally
10:48:35 20 agreed to surrender. And you can deal with an attorney who
21 represents -- that represents a fugitive.
22 The other time, I was a defense lawyer and the
23 prosecution brought a fugitive to testify in this courtroom. It
24 was very bizarre circumstances, but, once again, the attorney
10:48:50 25 representing that individual was dealing with the United States
FINAL TRANSCRIPT
17-30519.2681
14
1 Department of Justice and the State Department allowing him to

2 come back.
3 But in those representations, the attorney is dealing
4 with a fugitive status. We're not in that situation right now.
10:49:03 5 We're talking about a gentleman who's a fugitive who's now trying
6 to seek within this court some type of remedy. So it's a
7 different situation.
8 So my threshold issue, I guess, for counsel -- and I
9 even raised these issues in pleadings -- is what is his authority
10:49:19 10 to represent this individual right now?
11 We have gone through -- and all of us know the history
12 of this case. First they tried to recuse the DA's office. Then
13 they tried to recuse every single judge. Then they took the
14 flanking motion to the Middle District and it comes back here.
10:49:35 15 If you rule in our favor, what's to say Mr. Gates can't
16 say, That's not my attorney? What's his authority? I didn't
17 authorize him to do this.
18 So I think the threshold issue is what's his
19 representation? Is he here with some authority? Has he had
10:49:50 20 contact with the fugitive? Has he offered him to surrender?
21 I think those are the threshold issues that he can
22 address. We have not put that in our pleadings, but, to me, I
23 don't want to go through this whole thing and find out, That's
24 not my attorney. So that's the threshold issue I think we need
10:50:04 25 to raise.
FINAL TRANSCRIPT
17-30519.2682
15
1 Judge, there's been a long history in this case. I

2 don't want to leave Mr. Collings out. He and I were sitting on a
3 bench in another case a couple months ago, and this case is just
4 languishing. And I have a client who I'm representing through a
10:50:18 5 CNA policy and every year, when he renews his malpractice, the
6 question is, Is there a pending case? Yes. For '07, '08, '09,
7 '10, '11, '12. So you have litigants here who are affected by
8 this just being in limbo.
9 I think the Court has jurisdiction to take action for
10:50:35 10 failure to prosecute. And I think if he comes forward, then that
11 would moot it. If he doesn't, then I think the consequences are
12 very simple. You cannot at one time be a fugitive, and at the
13 same time send an attorney in to pursue, under the sanctions of
14 the Court, some type of remedy against defendants who have to sit
10:50:53 15 in limbo for years.
16 As a criminal defense lawyer, I know that when cases
17 languish, witnesses get lost --
18 THE COURT: This is true.
19 MR. SIMMONS: -- memories fade, evidence is misplaced,
10:51:06 20 and then the jury doesn't see the significance of why somebody is
21 doing something ten years later.
22 So he's using the system -- gaming the system, if you
23 will, through changes of attorneys, recusals, et cetera.
24 It's just a time -- we sat there on the bench and said,
10:51:21 25 How can this keep going on? So, Your Honor, we implore you to
FINAL TRANSCRIPT
17-30519.2683
16
1 take some type of action to bring this case to its conclusion.

3 Anybody else on the mover side?
4 MR. SIMMONS: Your Honor, I guess I would be remiss --
10:51:37 5 I've been practicing four decades now. I've never had a Rule 11
6 complaint or a bar complaint. I would not take it very kindly.
7 But I hope that counsel reconsiders the situation with regard to
8 the allegations of ethical violations by all these lawyers.
10:51:53 10 Anyone else?
11 (No response.)
12 THE COURT: I'll assume all of the attorneys, to whom
13 the Rule 11 and/or the ethical violations were made, adopt your
14 remarks and the remarks previously made.
10:52:06 15 Yes, sir.
16 MR. HOLLISTER: Your Honor, John Hollister for the
17 plaintiff, Shane Gates.
18 If I may, let me address that last point first, since
19 it's the one fresh in everybody's mind.
10:52:18 20 Contrary to what was stated in the motion to strike, we
21 have not filed -- as the Court has, I believe, identified, we
22 have not filed a Rule 11 motion. We have, in our opposition
23 memorandum, put the other parties on notice that we believe they
24 are in violation, and that a proper and ethical response to that
10:52:37 25 would be to withdraw the offending pleadings. So far there's no
FINAL TRANSCRIPT
17-30519.2684
17
1 indication that they seem to be minded to do that.

2 Oddly enough, in their motion to strike, they turn
3 around and ask for Rule 12 and Rule 11 sanctions against us
4 without their having gone through the very same predicates and
10:52:56 5 preliminaries they complain we didn't go through.
6 We filed a memorandum. It's not a motion. It does not
7 request affirmative relief at this stage.
9 MR. HOLLISTER: We reserve our right to seek that
10:53:06 10 relief and other relief later.
11 The suggestion -- again, going to the most recent by
12 Mr. Simmons -- and I believe it was also made by Mr. Collings --
13 that Mr. Gates should simply waltz in to Covington and put
14 himself in the tender mercies of the St. Tammany Parish system is
10:53:28 15 ridiculous considering --
16 THE COURT: Then this case will never be tried. And it
17 will be dismissed ultimately for failure to prosecute.
18 MR. HOLLISTER: Well --
19 THE COURT: I mean, we're not going to sit here forever
10:53:38 20 while Mr. Gates --
21 MR. HOLLISTER: I believe there is a remedy to get a
22 resolution.
24 MR. HOLLISTER: But it's not the one they're
10:53:45 25 suggesting.
FINAL TRANSCRIPT
17-30519.2685
18
1 THE COURT: Well, what is that?

2 MR. HOLLISTER: Because what they're suggesting is a
3 man, who was beaten to a pulp by the St. Tammany Parish Sheriff's
4 office by a deputy who is still on duty and has never been
10:53:56 5 disciplined for that act --
6 THE COURT: Tell me what the remedy is. I know what
7 happened. And I know it's not -- if the allegations are as pled,
8 it's horrendous.
9 MR. HOLLISTER: Yeah. Why should he put himself at
10:54:08 10 that risk again?
11 THE COURT: Well, for the same reason that in the
12 jurisdiction here, for police brutalities or killings, the case
13 is tried here, the civil rights case is tried here. That's
14 why -- unless there is a change of venue.
10:54:21 15 MR. HOLLISTER: Well, the --
16 THE COURT: So what's the remedy? Tell me what the
17 remedy is.
18 MR. HOLLISTER: The remedy, I suggest -- this Court
19 last ruled in this matter on October 10, 2012, and at that time
10:54:36 20 said -- said at that time it did not find occasion to apply the
21 rule of double jeopardy to the misdemeanor prosecution.
22 That ruling -- I think it's Document No. 196 -- does
23 not, as far as I can tell -- it seems to be focused on the
24 classic, most common form of double jeopardy, which is offense,
10:55:01 25 lesser included offense, or duplicate offense.
FINAL TRANSCRIPT
17-30519.2686
19
1 But there is a second branch of the double jeopardy/

2 collateral estoppel problem.
3 THE COURT: So you think this Court has jurisdiction --
4 you're saying you think this federal court has jurisdiction to
10:55:20 5 make a double jeopardy ruling in a state court criminal
6 proceeding?
7 MR. HOLLISTER: I believe that, as was suggested in
8 implication in your ruling from 2011, that the proper resolution
9 here is to lift the stay, but not on the terms suggested by the
10:55:40 10 movants, and to enjoin the state court proceeding because one of
11 the exceptions to the anti-injunction statute is whether there is
12 irreparable harm.
13 Now, where we stand at the moment --
14 THE COURT: I'm concerned about Ex Parte Young as well.
10:55:57 15 MR. HOLLISTER: Well, in 2013 Mr. Gates brought a
16 motion to quash in those state proceedings based on double
17 jeopardy slash collateral estoppel and the Fourteenth Amendment
18 guarantee of due process and speedy trial, and cited the federal
19 standards that say at one year you start doing the Barker
10:56:23 20 analysis, at 18 months you take that time delay very seriously,
21 and at five years you presume harm to the defendant.
22 The state court denied that motion, the trial court.
23 Mr. Gates took a writ to the First Circuit. It denied
24 the writ.
10:56:43 25 We took a writ application to the Louisiana Supreme
FINAL TRANSCRIPT
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20
1 Court. It denied the application.

2 So Mr. Gates has now exhausted his remedies in the
3 state court to vindicate those federally protected rights against
4 evidentiary-fact double jeopardy under Dowling v United States
10:57:10 5 separate from the lesser included offense classic form, the much
6 rarer form, and his right to a speedy trial.
7 Now, the reason a speedy trial is so significant is he
8 was arrested in November of 2006. He finally goes to trial on
9 the felony charge in July of 2012, almost six years later -- five
10:57:36 10 years, eight months later. The state statute in the Louisiana
11 Code of Criminal Procedure Article 578 requires a misdemeanor
12 trial to be within one year. That never happened. In those five
13 years and eight months, the misdemeanors were never set for
14 trial.
10:57:54 15 He was in court in Covington on 44 occasions, on any
16 one of which he could have been served with a notice of trial.
17 His address -- he was a resident in the parish and his address
18 was on file with the Clerk of Court.
19 It was only after the felony jury returned a verdict of
10:58:16 20 not guilty that they tried to start setting the misdemeanors for
21 trial. And on those they -- when they talk about his failure to
22 appear, he can't fail to appear if he's never been served with a
23 notice. And he has never been served with a notice of a
24 misdemeanor hearing.
10:58:34 25 Now, we get into this evidentiary fact double jeopardy
FINAL TRANSCRIPT
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21
1 under Dowling v United States. And I apologize, I don't have

2 this in writing, but I only got their motion to strike and the
3 Court's -- on Monday and the Court's order for oral argument
4 yesterday so I was busy reading cases and looking through the
10:58:57 5 record and didn't have time to write anything.
6 Dowling says, construing and extending Ashe v Swenson,
7 that when the state has put on, in a criminal case, evidence of a
8 fact, and a jury, in a general verdict, has declared the
9 defendant not guilty, that the state may only relitigate that
10:59:28 10 fact in a matter in limine or some other proceeding where the
11 standard of proof is the lower civil standard of preponderance of
12 the evidence.
13 THE COURT: Counsel, I do understand what you're saying
14 and -- however, I don't have that squarely put before me to rule
10:59:47 15 upon.
16 MR. HOLLISTER: Well, I'm getting to that.
17 So --
18 THE COURT: And so it -- and you understand that I'm
19 going to transfer the case only because I'm leaving the bench in
10:59:57 20 January?
21 MR. HOLLISTER: And this is where we're getting to the
22 resolution.
23 THE COURT: Right.
24 MR. HOLLISTER: It has been my intention, since I took
11:00:02 25 over this case -- I just didn't have time to do it since I was
FINAL TRANSCRIPT
17-30519.2689
22
1 responding to their motion. It is our intention to file a new

2 motion to lift the stay based on the things that have happened
3 since your October 10, 2012, ruling.
4 THE COURT: Okay.
11:00:22 5 MR. HOLLISTER: And in conjunction with that, bring a
6 new motion for an injunction based on the irreparable harm to
7 Mr. Gates that would -- that he would incur if he were forced to
8 go to trial for a second time on the evidentiary facts of his
9 alleged state of intoxication, which was clearly put in evidence
11:00:44 10 during the felony trial on its fourth day, and the facts that
11 they allege show resisting arrest, the other misdemeanor, which
12 were also put into evidence on that last day of the felony trial.
13 THE COURT: So the remaining -- the misdemeanor charges
14 that are pending are? If you could articulate them for the
11:01:08 15 record.
16 MR. HOLLISTER: The one charge is DWI.
17 At the felony trial in their rebuttal case, the state
18 brought in, over Mr. Gates' strenuous objection -- and it
19 required two writ applications, one to the First Circuit and one
11:01:25 20 to the Supreme Court, overnight writs, because the trial judge
21 ruled they could not put on evidence of intoxication. The state
22 took a writ to the First Circuit. The First Circuit said, Yes,
23 you can put it on. Mr. Gates' then attorneys took a writ to the
24 Supreme Court the next day. The Supreme Court said, We won't
11:01:40 25 reverse the First Circuit.
FINAL TRANSCRIPT
17-30519.2690
23
1 So the evidence of the -- the alleged evidence of

2 intoxication went in before the jury over his objection. He was
3 required to run that gauntlet, to use the Supreme Court's phrase
4 in Greene v United States and Ashe v Swenson and again in
11:02:00 5 Dowling v United States, to defend himself against it, and that
6 finding is subsumed in the general jury verdict.
7 Secondly, on that same fourth day of trial --
8 THE COURT: You mean the finding that -- what finding?
9 I mean, how was the intoxication charge -- even though
11:02:20 10 it was used in evidence to show, perhaps, his condition at the
11 time all this was occurring, what were the felony charges?
12 MR. HOLLISTER: The felony charge was aggravated
13 flight.
14 THE COURT: Okay. So you're saying an acquittal of
11:02:38 15 aggravated flight, because the state utilized the intoxication of
16 the -- alleged intoxication of the defendant in that case, your
17 client, Mr. Gates, would be subsumed in the acquittal?
18 MR. HOLLISTER: And the other evidence they put in
19 which was specifically --
11:02:57 20 THE COURT: Resisting arrest.
21 MR. HOLLISTER: -- the alleged evidence of resisting
22 Deputy Gottardi who had him handcuffed and was beating him.
23 Now, if the state had simply gone to trial on the
24 alleged aggravated flight and put on only that evidence, except
11:03:15 25 for the time bar problem, which is still a substantial problem,
FINAL TRANSCRIPT
17-30519.2691
24
1 they wouldn't have a double jeopardy problem in trying to proceed

2 with a DWI or resisting arrest charge.
3 They chose to put that evidence in, and Mr. Gates was
4 forced to defend against it. Their reason, one assumes, was to
11:03:35 5 convince the jury that it was more likely that he would have been
6 fleeing --
7 THE COURT: Right.
8 MR. HOLLISTER: -- because of his --
9 THE COURT: That would be the --
11:03:43 10 MR. HOLLISTER: -- hostility and condition.
11 THE COURT: -- ostensible probative value of those
12 events.
13 MR. HOLLISTER: Yeah.
14 But that was put in evidence and he had to defend
11:03:50 15 against it. And as the Supreme Court said, he was made to run
16 that gauntlet.
17 THE COURT: Okay. I understand what you're saying.
18 MR. HOLLISTER: So under Dowling, he cannot be made
19 once again to run those same two gauntlets for the purpose of
11:04:03 20 proving a criminal offense only where the question has to do with
21 admission of evidence or some other matter in limine where the
22 lower standard of proof applies. That's what Dowling says.
23 THE COURT: So it's your intent to file a pleading in
24 this court seeking for this court, some judge in this -- in the
11:04:26 25 Eastern District, to find, as per your legal argument and the
FINAL TRANSCRIPT
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25
1 facts, that those charges -- that those charges would constitute

2 double jeopardy under the United States Constitution?
3 MR. HOLLISTER: The double jeopardy and speedy trial
4 due process. That those misdemeanor prosecutions cannot at this
11:04:47 5 point go forward without irreparably damaging his federally
6 guaranteed constitutional rights.
7 THE COURT: All right. I understand.
8 MR. HOLLISTER: And that's the resolution we propose.
9 THE COURT: Okay. All right. Thank you, sir.
11:05:04 10 MR. COLLINGS: Very briefly, Your Honor?
11 THE COURT: Absolutely. Take your time now.
12 MR. COLLINGS: With all due respect to Mr. Hollister,
13 you've been here before. You've already been here before. And
14 let me quote to you. This is your words, Your Honor.
11:05:15 15 "In this case at bar, the gravamen of plaintiff's
16 claims is that of prosecutorial bad faith -- the late addition of
17 a resisting arrest charge on the eve of trial to potentially bar
18 Gates' 1983 claim as well as allegations that the evidence
19 surrounding the charges have been manufactured and altered. All
11:05:33 20 of these "facts" clearly can be presented in Gates' defense and
21 will speak directly to the jury's decision as to guilt or
22 innocence on the charges brought."
23 Later you also quote -- I'm quoting you, Your Honor.
24 (As read): Moreover, the plaintiff's claims that he's
11:05:50 25 entitled to injunctive relief to prevent bad-faith prosecution as
FINAL TRANSCRIPT
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26
1 to the misdemeanor claim has been previously rejected by this

2 Court and that analysis remains valid and is hereby reiterated
3 and adopted in full.
4 That was from 2014. That was on that consolidation
11:06:10 5 issue. And the first thing I read to you was back in 2011.
6 So we're just hearing more of the same stuff,
7 everything that's going on in state court is bad and you can fix
8 it. You've rejected that argument twice. We're asking you to
9 reject it once again for the third time, and do what Your Honor
11:06:29 10 indicated you previously believed you should, which is Rule 41 --
11 THE COURT: Or could.
12 MR. COLLINGS: Or could.
13 -- a Rule 41 dismissal of this case, because the
14 plaintiff, and only the plaintiff, has created this impediment to
11:06:44 15 this case going forward. Had he resolved his misdemeanor charges
16 one way or the other -- he could have appeared, been acquitted,
17 convicted, appealed, then had that appeal reversed at several
18 levels of the state court, come after that here and gotten a
19 habeas petition because he was incarcerated on this misdemeanor
11:07:02 20 charge.
21 And it's improper -- there are so many avenues for
22 relief other than what he's doing now, which is, okay,
23 October 20th, the defendants -- and I represent a new sheriff who
24 looked at me and said, Why do we have a 10-year-old case? I
11:07:19 25 said, Well, Sheriff, you know what I'm going to do? I'm going to
FINAL TRANSCRIPT
17-30519.2694
27
1 try to get it out of here, and we're going to get this

2 10-year-old case resolved one way or the other. That's what we
3 did.
4 So October 20th I filed this motion on behalf of all
11:07:28 5 the defendants to move this case along. Now here we are
6 December 14th and we're hearing about some future pleading on a
7 case that's been pending now almost 10 years.
8 THE COURT: Let me say, counsel, I don't like cases to
9 be pending 10 years. All the Katrina cases I tried, which were
11:07:47 10 some intensely complex, are done in that period of time.
11 So Heck v Humphrey, there it is, and everybody has
12 certain rights and this -- sometimes cases are tangled and we
13 have barbed wire, and eventually they have to be resolved, you're
14 correct. But I understand your argument.
16 MR. SIMMONS: Your Honor, I don't believe I got an
17 answer to my preliminary question, and that is what is the basis
18 for the representation here?
19 It seems to me counsel needs to say, I have written
11:08:29 20 authority from my client, Mr. Gates.
21 If he was prior counsel on the original case, that
22 would be one thing, because he would have an ethical obligation
23 to go forward. We're talking about new retention by Mr. Gates of
24 new counsel in a case where all the other counsel are now either
11:08:45 25 unable to continue by bar association rules or they have
FINAL TRANSCRIPT
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28
1 withdrawn.
2 So what is the basis for his representation?
3 Because why should we go -- I guarantee you that if
4 there's an adverse result, Mr. Gates will hire a new attorney --
11:09:03 5 and Mr. Abel will be back by then -- but to come in here and say,
6 Well, he didn't have authority?
7 What's the authority for this counsel to go forward?
8 I think that needs to be represented to the Court.
9 THE COURT: I'm hoping, as an officer of the court, he
11:09:13 10 has authority to appear for Mr. Gates. I'm assuming that he
11 does.
12 Counsel, do you wish to respond to that?
13 MR. SIMMONS: I do have a comment after that, though.
14 THE COURT: Oh, sure. We're not going to cut anybody
11:09:26 15 off.
16 MR. HOLLISTER: Your Honor, I represent to the Court
17 that I have Mr. Gates' authority to be here today representing
18 him.
19 I would remind Mr. Simmons that it is also the law, as
11:09:35 20 I appreciated it when I took professional responsibility and for
21 the five years I taught it, that the details of an attorney's
22 contract and relationship with the client are not the business of
23 anybody else, and I rather resent Mr. Simmons attempting to
24 inquire into that.
11:09:54 25 THE COURT: Are you telling the Court you have
FINAL TRANSCRIPT
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29
1 authority?
2 MR. HOLLISTER: Yes.
3 THE COURT: There it is on the record.
4 MR. SIMMONS: Your Honor, I was not inquiring into the
11:10:02 5 retention grounds or anything else. I wanted the representation
6 that he has the authority of that client.
8 MR. SIMMONS: The second thing, when I read through his
9 brief, I immediately thought the first thing he should do is take
11:10:14 10 that piece of paper, the eight to ten pages, and caption it
11 State of Louisiana v Gates and go argue double jeopardy.
12 This Court is not in the position to argue those -- or
13 even have a submission for those issues, Judge. The preliminary
14 issue has to be decided at the state court. You have to go back
11:10:33 15 there. That's the vehicle by which he can raise double jeopardy
16 and all the issues that -- 90 percent of his motion. That's a
17 state court issue.
18 The anti-injunction does not allow this court,
19 especially in a civil proceeding, to suddenly have jurisdiction
11:10:48 20 on a new case. If he's going to file another pleading, it's
21 going to have to be randomly allotted. This Court doesn't have
22 authority to jump in and start having anti-injunction issues --
23 THE COURT: Well, it would be related to the -- in the
24 event he's alleging there's an exception to the Anti-Injunction
11:11:04 25 Act, which is difficult, and that this court can, under federal
FINAL TRANSCRIPT
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30
1 constitutional grounds, find double jeopardy in a state court

2 proceeding -- look, of all the many questions that have been put
3 to me, it is that specific double jeopardy question I don't think
4 heads.
11:11:27 5 But really I'm not prepared to hear that anyhow. We're
6 here on one motion to make him -- frankly, make him appear in
7 state court. And I guess we all -- I'm talking about 41(b)
8 obviously. This case can't have this impasse forever.
9 At the same time, if he files a pleading, it's hard for
11:11:56 10 me to rule on it until I see what he has to say.
11 I'm always suspicious -- it's very rare that you can --
12 it's very rare, and I've done it once, that you can interfere
13 with a state court criminal proceeding.
14 MR. SIMMONS: Yes, Your Honor. I think the cases on
11:12:14 15 the anti-injunction make it pretty clear that the state court
16 proceedings should go first before the federal courts intervene.
17 THE COURT: It's an extraordinary remedy.
18 MR. SIMMONS: It is. There are very few cases that
19 allow a federal judge to do that.
11:12:27 20 THE COURT: That's true.
21 MR. SIMMONS: Your Honor, I guess when I raise the
22 issue of making it adjunct to these pleadings, if he's required
23 to come in and file, you're right, it would be related back and
24 maybe reassigned.
11:12:37 25 But a new pleading would be subject to additional
FINAL TRANSCRIPT
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31
1 motion practice by us --
2 THE COURT: Absolutely.
3 MR. SIMMONS: -- as to dilatory actions by him,
4 et cetera. So it's not adjunct to a motion practice here. He'd
11:12:49 5 have to file new pleadings, come in --
6 THE COURT: No question. Absolutely correct.
7 MR. SIMMONS: But to file a motion here and ask this
8 Court to hear it -- or the Court that it gets re-allotted to --
9 is not the appropriate remedy, Your Honor. I just think this
11:13:01 10 case has been languishing long enough.
11 He keeps talking about the double jeopardy issues and
12 the resisting arrest was something new. Mr. Gates was arrested
13 and charged with five different violations, and one of them was
14 resisting arrest. So that's -- that's from the inception.
11:13:16 15 That's not something that's retaliatory or whatever.
16 But those are state court issues and I think the Court
17 needs to just defer to the state court's ruling on these matters
18 and not interfere with those type of decisions.
19 THE COURT: Again, the papers don't really get into
11:13:34 20 this specific issue. I'm letting you argue it, but --
21 MR. SIMMONS: Right.
22 All we're asking, Your Honor, is you can have the
23 relief of saying, You have not properly pursued this case because
24 you have not submitted to the jurisdiction of the state to raise
11:13:47 25 those issues, and, therefore, your case is dismissed in federal
FINAL TRANSCRIPT
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32
1 court.
2 THE COURT: That is true.
3 MR. SIMMONS: That's our position.
4 THE COURT: Anything else?
11:13:57 5 MS. COUVILLON: Your Honor, if I may briefly address
6 some of the arguments made by Mr. Hollister.
7 Mr. Hollister has indicated that he's exhausted his
8 state court remedies to some of these arguments he's made in
9 state criminal court proceedings. He may have some habeas relief
11:14:13 10 proceedings in federal court, but this is not the appropriate
11 time or place to make those arguments. Those are to be addressed
12 in the state criminal court proceeding.
13 And also any probative evidence the state introduced in
14 the aggravated flight case as to the intoxication has no bearing
11:14:28 15 on the state's ability to proceed with the DWI case. That --
16 THE COURT: Again, I'm certainly not prepared to rule
17 on that, am I? Because that certainly wasn't presented to me in
18 these papers. And I'd have been delighted to rule on it,
19 perhaps, but it's not. It's not been presented to me squarely in
11:14:43 20 a motion.
21 So that's -- that puts me at a disadvantage.
22 MS. COUVILLON: Yes.
23 THE COURT: Nor was Rule 41(b) prominently mentioned.
24 I mentioned it here. It was to make him go to -- to order him to
11:14:57 25 go to receive the summons. So that's what was squarely before me
FINAL TRANSCRIPT
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33
1 in the original joint motion.

2 So a lot of this is, shall we say, an expansion of
3 pleadings, but I'm letting you talk about it.
4 MS. COUVILLON: Your Honor, I --
11:15:15 5 THE COURT: I clearly understand the nuances and the
6 ramifications and the difficulty of the Anti-Injunction Act,
7 Ex Parte Young, et cetera. I clearly understand it. It is not
8 before me, though.
9 MS. COUVILLON: Your Honor, on Page 3 of the joint
11:15:28 10 motion, the defendants did mention Rule 41 -- cite Rule 41 and
11 make those arguments before the Court.
12 But I would just like to state that the reason we're at
13 the roadblock --
14 THE COURT: Let me make sure I'm -- joint motion.
11:15:44 15 MR. COLLINGS: It's Page 3 of the memorandum in support
16 of the original motion to lift the stay, Your Honor.
17 THE COURT: Okay. I'm looking at it.
18 MS. COUVILLON: On the bottom of Page 3.
19 THE COURT: Yep, you do.
11:16:03 20 Then you cite the Billiot case, which is really when
21 you stay and when you don't.
22 Then you ask -- say the Court should allow plaintiff
23 60 days to appear and be served for his trial under -- in his
24 underlying state court criminal proceeding and to resolve his
11:16:23 25 attachment issue, failing which the action should be dismissed
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34
1 with prejudice.
2 MS. COUVILLON: Yes, Your Honor.
3 And the reason that we're at the roadblock we are now
4 is because the plaintiff has chosen not to participate in the
11:16:37 5 state court criminal proceeding. And if every criminal defendant
6 was allowed to elect when they choose to participate, we'd have a
7 broken system of justice.
9 MR. COLLINGS: Your Honor, could I just say one more
11:16:50 10 thing?
11 THE COURT: Sure.
12 MR. COLLINGS: I think this has already been implied in
13 all of our arguments, but I just want to make sure it's clear on
14 the record.
11:16:56 15 Based on the comments of the Court, we would be
16 perfectly amenable to the Court converting our motion to lift the
17 stay for a limited purpose to simply a Rule 41 motion to dismiss.
18 And if the Court were to give us that remedy, convert
19 it to a Rule 41 motion to dismiss, we can certainly then continue
11:17:15 20 this odyssey up to the Fifth Circuit at our next stage.
21 Thank you.
23 MR. HOLLISTER: Your Honor, again Mr. Simmons has
24 suggested that Mr. Gates ought to go to the state court to assert
11:17:35 25 these constitutional claims. As I said earlier, he did do that
FINAL TRANSCRIPT
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35
1 in 2013. Retired Chief Justice Pascal Calogero filed for him a

2 motion to quash the misdemeanor charges based on these federal
3 constitutional claims. He has now exhausted his remedies in the
4 state system. The state courts have refused to vindicate federal
11:18:01 5 constitutional interests leaving him no place to go to protect
6 those interests except to the federal courts.
7 If double jeopardy means anything, it means that you
8 cannot be twice compelled to go to trial on something in
9 violation of Ashe v Swenson and Dowling v United States.
11:18:21 10 So that -- you know, that argument is simply --
11 THE COURT: When do you anticipate filing your motion?
12 MR. HOLLISTER: As quickly as I can get it together,
13 Your Honor, but I've been preoccupied with this other extraneous
14 paperwork --
11:18:33 15 THE COURT: I'm transferring this out --
16 MR. HOLLISTER: Right.
17 THE COURT: -- probably today. So depending on what I
18 do here -- and I'm likely to transfer it out, sadly, because I
19 don't do things -- I like to do these expeditiously, but not
11:18:54 20 precipitously.
21 So give me a date by which you can file it.
22 MR. HOLLISTER: Given the fact that we're heading into
23 the holiday season, and I have holiday obligations beyond those
24 normally that encumber a lawyer, and the length of the record I
11:19:15 25 need to plow through, which I was not involved, as people have
FINAL TRANSCRIPT
17-30519.2703
36
1 noted, at the early stages of it, I would like to have 60 days to

2 do that.
3 THE COURT: All right. I'm going to rule on this.
4 You can sit down, sir.
11:19:33 5 I'm going to, at this time, deny the joint motion to
6 lift the stay, which is Document 211.
7 But in my minute entry transferring it, I'm going to --
8 and to the extent it's converted to a motion under Rule 41(b),
9 which I have the sui sponte ability to do -- I'm going to let the
11:20:05 10 judge -- the poor judge who has got this case I've had for
11 10 years, which is not a good thing -- let that judge know
12 that -- and I'm going to cite a case under 41(b), and let that be
13 squarely argued to that judge.
14 Because there is really no -- my ability to make him
11:20:43 15 appear is -- as they say, some federal judges have lots of
16 authority, but it's not unlimited.
17 I do have the authority to dismiss this case. I'm
18 reluctant to do so right at this time.
19 However, the 60 days is a -- you asked for 60 days to
11:21:00 20 file. I haven't seen counsel's motion yet. It may likely -- it
21 may likely be without merit, but I can't rule on it without
22 seeing it, as much as I'm sure all the defendants who have been
23 in this case for a long time would like me to do.
24 So in the minute entry I'm going to say that the
11:21:24 25 defendant has failed to appear and it could constitute failure to
FINAL TRANSCRIPT
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37
1 prosecute.
2 And I'm going to say that counsel for Mr. Gates has
3 said he's going to file a motion, and generally describe what
4 that motion ostensibly is.
11:21:44 5 It's going to be -- it has to say that he can
6 adjudicate his constitutional rights as he's exhausted his
7 remedies and the Anti-Injunction Act doesn't apply. I'll try to
8 pithily say that.
9 I'm going to give a time period for him to file that.
11:22:03 10 In fact, I'm going to be on the bench, so I'm not going
11 to give you 60 days, Counsel. It shouldn't take 60 days to file
12 the motion. I know you're busy. I'm going to give you until
13 January -- I'll still be here until January 31st, at least in
14 spirit and legally. I don't retire until January 31st. So I
11:22:41 15 don't want to unduly pressure you, but this case has gone on too
16 doggone long. So I'll go -- but let -- it's going to be
17 something like that.
18 Dean, what day is January 21st?
19 THE CASE MANAGER: That's a Saturday.
11:23:12 20 THE COURT: Okay.
21 THE CASE MANAGER: The 23rd is a Monday.
22 THE COURT: Is that Martin Luther King Day by any
23 chance?
24 THE CASE MANAGER: No.
11:23:24 25 THE COURT: The Court is going to deny the motion to
FINAL TRANSCRIPT
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38
1 lift the stay. But in the event the motion described by counsel
2 for plaintiff is not filed on or before January 23rd, the order
3 will -- the minute entry will state a dismissal will be
4 forthcoming under Rule 41(b) sui sponte by the Court or by virtue
11:24:01 5 of the movers who converted it to a Rule 41(b) motion, because we
6 do have a fugitive, whatever his reasons are for it or however
7 valid or invalid they are. I understand this whole situation and
8 have been -- and you certainly can't judge the merits of it. I'm
9 just stuck with Heck v Humphrey, as is everyone else.
11:24:31 10 But you can't stand behind Heck v Humphrey if you don't
11 tend to your own prosecution, and that's what counsel is going to
12 try to do in this court. So that's why I'm giving that time to
13 file the motion. I'm going to then, on January 24th, transfer
14 the case out.
11:24:55 15 In other words, if the motion is filed, I'm
16 transferring it out. If the motion isn't filed, I'll issue a
17 dismissal.
18 The motion will be transferred out with a description
19 from me, to some extent, to the judge who is getting it, and I'll
11:25:13 20 give them some history at well.
21 That's about all I can do at this point.
22 And I can't give you 60 days, but that's more than
23 30 days. You've got -- you've got -- certainly the way you have
24 argued it, you certainly know what you want to do. You can
11:25:31 25 always amend it.
FINAL TRANSCRIPT
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1 MR. HOLLISTER: Thank you, Your Honor.

2 THE COURT: And I'm going to deny the -- there is no
3 motion for Rule 11. There is no motion. So I'm going to deny
4 the motion to strike and let that pleading stay on the record
11:25:42 5 since it's not asking for anything, it's alleging something.
6 I'm sure I covered everything.
7 With that, I know -- I can only imagine how, having
8 been a lawyer for 28 years before I became a federal judge, and
9 having tried a lot of cases, I know how agonizing it is not to be
11:26:03 10 able to get something resolved. And you have your clients
11 wondering, Why isn't this resolved, why am I still paying legal
12 fees on this?
13 So I'm very conscious of that. It needs to be get
14 resolved. And that's why I put a time limit on this motion. The
11:26:22 15 motion is going to be decided by somebody else, because I will
16 not be here to decide it. But that motion, at least you can --
17 and then you can reurge your Rule 41(b) motion if that motion is
18 denied.
19 That's as good as we can do right now. I'm sorry I
11:26:41 20 can't resolve all of this now with a trial, but we can't.
21 So with that, thank you for your appearance and have a
22 good holiday season. And we are adjourned.
23 (Proceedings adjourned.)
24
25 * * * * *
FINAL TRANSCRIPT
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40
1 CERTIFICATE
2
3 I hereby certify this 20th day of December, 2016, that
4 the foregoing is, to the best of my ability and understanding, a
5 true and correct transcript of the proceedings in the
6 above-entitled matter.
7
8 /s/ Mary V. Thompson
_______________________________
9 Official Court Reporter
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FINAL TRANSCRIPT
17-30519.2708
1
1 UNITED STATES DISTRICT COURT

2
3 ***************************************************************
4 SHANE M. GATES
5 CIVIL ACTION NO. 07-6983 "J"
C/W 13-6425
6 VERSUS NEW ORLEANS, LOUISIANA
THURSDAY, MARCH 16, 2017, 9:30 A.M.
7
RODNEY JACK STRAIN, ET AL
8
***************************************************************
9
10 TRANSCRIPT OF MOTION HEARING PROCEEDINGS
HEARD BEFORE THE HONORABLE CARL J. BARBIER
11 UNITED STATES DISTRICT JUDGE
12
13 APPEARANCES:
14
FOR THE PLAINTIFF: JOHN A. HOLLISTER
15 ATTORNEY AT LAW
613 BON TEMPS ROULE'
16 MANDEVILLE, LA 70471
17
18 FOR THE DEFENDANTS: MILLING BENSON WOODWARD
BY: CHADWICK W. COLLINGS, ESQUIRE
19 THOMAS S. SCHNEIDAU, ESQUIRE
68031 CAPITAL TRACE ROW
20 MANDEVILLE, LA 70471
21
22 DISTRICT ATTORNEY'S OFFICE
BY: CARY J. MENARD, ESQUIRE
23 ANTONIO LEMON, ESQUIRE
701 N. COLUMBIA STREET
24 COVINGTON, LA 70433
25
OFFICIAL TRANSCRIPT
17-30519.2709
2
1 APPEARANCES CONTINUED:
2
3 LOUISIANA DEPARTMENT OF JUSTICE
LITIGATION DIVISION
4 BY: DAVID G. SANDERS, ESQUIRE
P.O. BOX 94005
5 1885 NORTH 3RD STREET
BATON ROUGE, LA 70804
6
7
COTTEN, SCHMIDT & ABBOTT
8 BY: BYRON D. KITCHENS, ESQUIRE
650 POYDRAS STREET
9 SUITE 2810
NEW ORLEANS, LA 70130
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JONES FUSSELL
12 BY: THOMAS H. HUVAL, ESQUIRE
NORTHLAKE CORPORATE PARK
13 1001 HWY 190 SERVICE ROAD EAST
SUITE 103
14 COVINGTON, LA 70434
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16 RALPH S. WHALEN, JR.
ATTORNEY AT LAW
17 ENERGY CENTRE
1100 POYDRAS STREET
18 SUITE 2950
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HAILEY MCNAMARA HALL LARMANN
21 & PAPALE
BY: RICHARD T. SIMMONS, ESQUIRE
22 ONE GALLERIA BOULEVARD, SUITE 1400
POST OFFICE BOX 8288
23 METAIRIE, LA 70011
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OFFICIAL TRANSCRIPT
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1 APPEARANCES CONTINUED:
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3 BAKER DONELSON BEARMAN
CALDWELL & BERKOWITZ
4 BY: ALISSA J. ALLISON, ESQUIRE
201 ST. CHARLES AVENUE
5 SUITE 3600
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8 OFFICIAL COURT REPORTER: CATHY PEPPER, CRR, RMR, CCR
CERTIFIED REALTIME REPORTER
9 REGISTERED MERIT REPORTER
500 POYDRAS STREET, ROOM B-275
10 NEW ORLEANS, LA 70130
(504) 589-7779
11 Cathy_Pepper@laed.uscourts.gov
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PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY. TRANSCRIPT
13 PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.
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OFFICIAL TRANSCRIPT
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1 I N D E X
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5 MR. HOLLISTER........................................ 6
6 MR. COLLINGS......................................... 25
7 MR. HOLLISTER........................................ 26
8 MR. COLLINGS......................................... 28
9 MR. MENARD........................................... 36
10 MR. SIMMONS.......................................... 40
11 MR. COLLINGS......................................... 42
12 MR. HOLLISTER........................................ 48
13 RULING BY THE COURT.................................. 51
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OFFICIAL TRANSCRIPT
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1 P-R-O-C-E-E-D-I-N-G-S
2 M O R N I N G S E S S I O N
3 THURSDAY, MARCH 16, 2017
4 (COURT CALLED TO ORDER)
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09:23:04 6
09:40:47 7 THE DEPUTY CLERK: All rise.
09:40:50 8 THE COURT: Please be seated. Gail, you can call the
09:41:07 9 case.
09:41:07 10 THE DEPUTY CLERK: Civil Action 07-6983, consolidated
09:41:10 11 with 13-6425, Shane Gates versus Rodney Jack Strain, et al.
09:41:18 12 THE COURT: All right. Has everyone signed in that
09:41:21 13 needed to sign in this morning on the sign-in sheet?
09:41:24 14 Who is going to be making the arguments this
09:41:26 15 morning? I suppose not everybody who is here intends to orally
09:41:33 16 argue. I hope not.
09:41:34 17 MR. COLLINGS: Your Honor, Chadwick Collings on behalf
09:41:38 18 of the sheriff. It's my understanding I'm going to be making
09:41:41 19 most of the argument, but I'll defer to my colleagues if they
09:41:44 20 have points they want to make.
09:41:45 21 MR. SIMMONS: Rick Simmons on behalf of Chuck Hughes.
09:41:50 22 It will be very brief comments, Your Honor.
09:41:52 23 THE COURT: Anybody else from that side?
09:41:53 24 MR. HOLLISTER: Your Honor, John Hollister. I'm the
09:41:56 25 only attorney arguing for Mr. Gates.
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09:41:58 1 THE COURT: Okay. I think you're outnumbered here this

09:42:00 2 morning, Mr. Hollister.
09:42:01 3 MR. HOLLISTER: Yes.
09:42:07 4 THE COURT: Okay. This matter is before the Court this
09:42:10 5 morning on two different but related motions. There is the
09:42:18 6 motion by the plaintiff, Shane Gates, to lift the stay. This
09:42:28 7 case has been stayed for some time by the previous judge,
09:42:31 8 Judge Duval, and I have made an effort to get up to speed on
09:42:37 9 this case as to the past history and where things stand now.
09:42:47 10 Anyway, it's the plaintiff's motion to lift the stay and then
09:42:50 11 for an injunction asking the Court to enjoin the state court
09:42:55 12 criminal proceedings that are still pending.
09:42:59 13 The second motion before the Court this morning
09:43:03 14 is the defendants' motion to also lift the stay but, instead,
09:43:10 15 to dismiss the case pursuant to Rule 41(b) for failure to
09:43:17 16 prosecute.
09:43:18 17 That's where we are. Mr. Hollister, I'll let you
09:43:21 18 go first.
09:43:24 19 MR. HOLLISTER: Your Honor --
09:43:26 20 THE COURT: You have to come up to the podium, sir.
09:43:47 21 Before you begin, I have a couple of questions.
09:43:49 22 I just want to make sure what the status of things is right
09:43:56 23 now.
09:43:56 24 First of all, what criminal charges are still
09:44:01 25 pending against Mr. Gates in state court?
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09:44:04 1 MR. HOLLISTER: Well, it's our contention that there

09:44:06 2 are no charges pending.
09:44:08 3 THE COURT: Well, I don't want your contention. I want
09:44:10 4 to know what charges are still pending there. It's a fact. It
09:44:14 5 can't be a matter of argument. They are either pending or they
09:44:17 6 are not.
09:44:17 7 You may have an argument that they should be
09:44:19 8 dismissed for some basis, but I just want to know a straight
09:44:22 9 answer. What charges are still pending against your client?
09:44:26 10 MR. HOLLISTER: There is a state misdemeanor charge of
09:44:30 11 DWI and a state misdemeanor charge of resisting arrest, both
09:44:35 12 dating from 2006.
09:44:36 13 THE COURT: So it's two charges or three? I thought I
09:44:38 14 had read something there were three charges -- a DWI, two
09:44:42 15 different, perhaps related, but two separate resisting charges.
09:44:48 16 Am I wrong about that?
09:44:49 17 MR. HOLLISTER: No. No.
09:44:53 18 THE COURT: I'm just asking if that's right or wrong,
09:44:56 19 sir.
09:44:56 20 MR. HOLLISTER: There is one misdemeanor charge of
09:44:59 21 resisting arrest. The State has previously tried Mr. Gates on
09:45:02 22 a felony charge of aggravated flight.
09:45:05 23 THE COURT: I'm aware of that and he was acquitted of
09:45:07 24 that by a jury. I'm well aware of that. I'm just trying to
09:45:10 25 figure exactly out what's still pending.
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09:45:12 1 So you say there is one DWI charge still pending

09:45:15 2 and one resisting arrest charge still pending.
09:45:20 4 THE COURT: Okay. All right. What's the status of
09:45:23 5 the -- I read that there was a pending or an outstanding arrest
09:45:28 6 warrant in St. Tammany for your client. Is that still the
09:45:32 7 case?
09:45:32 8 MR. HOLLISTER: So far as we know, the warrant that was
09:45:35 9 signed in December of 2013 is still there. He has never been
09:45:41 10 served, and there has never been any notice of hearing served.
09:45:44 11 THE COURT: Go ahead. Okay. Go ahead and make your
09:45:47 12 arguments, sir.
09:45:48 13 MR. HOLLISTER: Your Honor, when we -- after -- when we
09:45:55 14 filed the papers to set this matter for hearing, we requested
09:45:58 15 an evidentiary hearing, and we contacted the Court staff, and
09:46:01 16 we were informed that that would be considered normally to have
09:46:07 17 been granted.
09:46:07 18 THE COURT: I don't know who you contacted or who told
09:46:10 19 you that, but there is no evidentiary hearing. This is an oral
09:46:13 20 argument on the motions.
09:46:14 21 MR. HOLLISTER: All right. The -- there are three
09:46:23 22 issues related to the request for an injunction, and in order
09:46:29 23 to get that injunction --
09:46:31 24 THE COURT: Well, before you get there, you've got
09:46:36 25 to -- I've got to decide whether to lift the stay based on your
OFFICIAL TRANSCRIPT
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09:46:40 1 motion.
09:46:40 2 MR. HOLLISTER: That's correct. The preliminary matter
09:46:42 3 is the stay has to be lifted in order for an injunction of the
09:46:47 4 state proceedings to be entered.
09:46:49 5 THE COURT: Right. The question is how do you get
09:46:57 6 around the Heck versus Humphrey issue, which generally says
09:47:03 7 that if you have a civil matter that arises or is related to a
09:47:10 8 pending criminal charge which is then unresolved and the facts
09:47:16 9 are related, that that criminal charge has to be resolved one
09:47:20 10 way or the other before the civil case can go forward? That's
09:47:26 11 the basis that Judge Duval has stayed this thing for a number
09:47:29 12 of years.
09:47:30 13 MR. HOLLISTER: That was the law at the time he entered
09:47:33 14 those stays, and that was the law at the time Travelers
09:47:39 15 Insurance Company obtained the instigation of the resisting
09:47:42 16 arrest charge.
09:47:43 17 However, subsequent to that, the Fifth Circuit,
09:47:49 18 in a case also arising from the St. Tammany Parish Sheriff's
09:47:53 19 Office, Holly versus Bush (verbatim), has modified that.
09:47:58 20 THE COURT: Holly versus Bush? Was that cited in your
09:48:01 21 brief, sir?
09:48:02 22 MR. HOLLISTER: I'm not sure if it is. If it isn't,
09:48:04 23 we'll get the citation for the Court.
09:48:06 24 THE COURT: Well, that's why we require briefing in
09:48:11 25 advance so that we can have an intelligent argument, you know,
OFFICIAL TRANSCRIPT
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09:48:16 1 when you get here. If you're going to start citing me the
09:48:19 2 cases that you haven't cited and we haven't read, it's kind of
09:48:26 3 hard to have an argument here, you know. But go ahead.
09:48:30 4 MR. HOLLISTER: The Heck position --
09:48:34 5 THE COURT: Give me the citation for that case.
09:48:37 6 MR. HOLLISTER: I'll have to get the volume and page,
09:48:39 7 but I will get it for the Court.
09:48:40 8 THE COURT: Wait, so now you're telling me you want to
09:48:44 9 cite a case by name, but you can't even give the Court a
09:48:47 10 citation to it?
09:48:48 11 MR. HOLLISTER: I didn't realize that it wasn't in the
09:48:50 12 motion, Your Honor. I apologize. I didn't know.
09:48:56 13 But the Heck --
09:48:57 14 THE COURT: Did you ever practice in federal court
09:49:01 15 before?
09:49:01 16 MR. HOLLISTER: Very seldom, Your Honor.
09:49:04 17 THE COURT: Go ahead, sir.
09:49:05 18 MR. HOLLISTER: The Heck rule, as it existed at the
09:49:10 19 time the resisting arrest charge was instituted, has been
09:49:16 20 modified and is no longer an absolute bar to a civil rights
09:49:21 21 case for excessive force.
09:49:28 22 THE COURT: So this is Holly versus Bush, you said is
09:49:31 23 the name of the case?
09:49:32 25 THE COURT: Fifth Circuit. What year was that decided?
OFFICIAL TRANSCRIPT
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09:49:34 1 MR. HOLLISTER: I believe it was either -- I think it

09:49:36 2 was last year.
09:49:40 3 THE COURT: You do realize the Fifth Circuit can't
09:49:43 4 modify a Supreme Court rule.
09:49:44 5 MR. HOLLISTER: But it can construe.
09:49:46 6 THE COURT: It can certainly do that, but you said it
09:49:50 7 modified it. You can't modify Heck versus Humphrey.
09:49:54 8 MR. HOLLISTER: It can explain it and interpret it.
09:49:57 9 THE COURT: Go ahead.
09:49:58 10 MR. HOLLISTER: The reason -- I don't believe that Heck
09:50:15 11 versus Humphrey states that any specific method of resolution
09:50:18 12 of a state court criminal procedure -- proceeding is required.
09:50:22 13 What we're suggesting to this court is that given the
09:50:28 14 unconstitutional infirmities in the State's now trying to
09:50:33 15 proceed with these misdemeanors that they ignored for almost
09:50:37 16 six years, five years and eight months, that the appropriate
09:50:39 17 resolution is for this court to stay the prosecution of those
09:50:48 18 misdemeanors.
09:50:48 19 We attached or mentioned in our motion --
09:50:52 20 THE COURT: That's another issue. That's two different
09:50:56 21 issues. Because even if I agreed with you on the Heck versus
09:51:03 22 Humphrey issue, that would simply mean that I would vacate the
09:51:08 23 stay of this case, and we would go forward in this court with
09:51:13 24 your civil rights case, your civil case. It doesn't mean I
09:51:18 25 would have authority to enjoin a state court prosecution.
OFFICIAL TRANSCRIPT
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09:51:21 1 In fact, I think this has all been decided before

09:51:25 2 by the previous judge, Judge Duval. It sounds like you're
09:51:28 3 rehashing what Judge Duval has already decided.
09:51:32 4 MR. HOLLISTER: The first of Judge Duval's ruling to
09:51:35 5 which the defendants referred in their pleadings was issued
09:51:40 6 before --
09:51:41 7 THE COURT: He refused to and said he had no authority
09:51:46 8 to enjoin the state court proceeding. Did he not say that?
09:51:49 9 MR. HOLLISTER: He said it first before the felony
09:51:52 10 trial. Then the felony trial changed the factual basis. When
09:51:57 11 the matter came back before him on their motion to reinstitute
09:52:01 12 the stay --
09:52:04 13 THE COURT: He said the same thing again. Did he not
09:52:07 14 say the same thing again?
09:52:09 15 MR. HOLLISTER: He did but he only was considering the
09:52:12 16 issue of double jeopardy in the form of recharging the same
09:52:18 17 offense or a lesser included offense. He was not presented
09:52:22 18 with and he did not consider the evidentiary fact aspect of
09:52:28 19 double jeopardy. That was not raised with the Court and it
09:52:31 20 wasn't considered by the Court.
09:52:34 21 So there are two serious procedural
09:52:38 22 constitutional issues that we believe mandate that Mr. Gates
09:52:44 23 should not be required to even go into court to deal with these
09:52:50 24 misdemeanors.
09:52:51 25 THE COURT: What are those two issues?
OFFICIAL TRANSCRIPT
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09:52:52 1 MR. HOLLISTER: The first one is the double jeopardy

09:52:55 2 issue.
09:52:55 3 THE COURT: Now, that, for sure, Judge Duval ruled on,
09:52:59 4 right?
09:52:59 5 MR. HOLLISTER: He ruled on, from the standpoint that
09:53:02 6 it was not -- the DWI and the resisting arrest were not the
09:53:08 7 re-prosecution of felony flight.
09:53:12 8 THE COURT: Right.
09:53:12 9 MR. HOLLISTER: He did not rule on the question of
09:53:15 10 whether the State's choosing, which it wasn't required to do
09:53:19 11 but it's deliberate choice, to put on the DWI evidence and
09:53:24 12 resisting arrest evidence at the flight trial, whether that
09:53:28 13 then barred the State from reusing that evidence in order to
09:53:34 14 prove an ultimate evidentiary fact in another prosecution.
09:53:37 15 That is something that requires proof beyond a reasonable
09:53:40 16 doubt.
09:53:41 17 THE COURT: You admit, I think, that the fact of his
09:53:48 18 alleged resisting arrest and DWI were not part of the elements
09:53:57 19 of the charge of aggravated flight, correct?
09:54:01 20 MR. HOLLISTER: They are not part of the elements of
09:54:02 21 that offense, but the State chose to litigate all of those
09:54:06 22 facts.
09:54:07 23 THE COURT: Isn't the test whether the jury had to have
09:54:15 24 decided those facts adversely to the State for double jeopardy
09:54:22 25 to apply? In other words, was it necessary for the jury in the
OFFICIAL TRANSCRIPT
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09:54:27 1 aggravated flight trial to have decided that Mr. Gates, for
09:54:34 2 example, was not guilty of DWI or was not guilty of resisting
09:54:38 3 arrest in order to acquit him on the aggravated flight charge?
09:54:43 4 MR. HOLLISTER: Given the way that the State used those
09:54:46 5 items of evidence, I believe that it is clear that the jury did
09:54:53 6 decide those adverse to the State.
09:54:55 7 THE COURT: What makes you so sure of that?
09:54:58 8 MR. HOLLISTER: First, the way --
09:55:01 9 THE COURT: Would that be shown in the transcript of
09:55:03 10 that trial?
09:55:04 11 MR. HOLLISTER: Yes. If you look at the transcript of
09:55:08 12 July 27, 2012, which is Record Document 225-3, Exhibit G to our
09:55:18 13 motion, Mr. Gates had testified during -- the State put on its
09:55:28 14 initial case in chief, and Mr. Gates testified and put on his
09:55:32 15 case on defense the first two days of trial. This was the
09:55:35 16 third day of trial.
09:55:37 17 The State put on the DWI and resisting arrest
09:55:42 18 evidence in its rebuttal case. Initially, Mr. Gates objected
09:55:51 19 to the introduction of that evidence on a variety of technical
09:55:54 20 and evidentiary basis.
09:55:55 21 THE COURT: I read that. The trial court agreed with
09:55:58 22 you.
09:55:58 23 MR. HOLLISTER: The trial court agreed with Mr. Gates.
09:56:01 24 THE COURT: The State took writs to the Fifth Circuit,
09:56:05 25 which overruled the trial court, and the Supreme Court denied
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09:56:10 1 cert. I'm familiar with that.

09:56:11 2 MR. HOLLISTER: So the State obviously felt that it was
09:56:15 3 critical to its case in chief to rehabilitate that on rebuttal
09:56:21 4 to bring in this evidence of DWI and resisting arrest.
09:56:26 5 The obvious relevance of that to the flight case
09:56:33 6 is twofold: If the jury could be convinced that Mr. Gates was
09:56:36 7 drunk and fighting obstreperously, it would make it more likely
09:56:41 8 the jury would believe he would also have been prone to flee.
09:56:44 9 Secondly, it would reduce his credibility and,
09:56:47 10 therefore, damage his testimony that he put on in his case in
09:56:52 11 defense of the charge.
09:56:54 12 THE COURT: Did you defend him in that trial?
09:56:57 13 MR. HOLLISTER: No.
09:57:01 14 Since I believed we were going to have an
09:57:03 15 evidentiary hearing, I have the attorney -- one of the
09:57:07 16 attorneys from that trial available to testify, but the
09:57:10 17 transcript is there of that day. We did not put in the first
09:57:13 18 days of the trial in the record.
09:57:15 19 So, the State, in order to try to convict him of
09:57:21 20 flight, felt it was necessary to put him through all the hoops
09:57:28 21 or, as the U.S. Supreme Court said in the Green case, run the
09:57:33 22 gauntlet on drunkenness and resisting arrest.
09:57:36 23 There were a great many evidentiary problems
09:57:39 24 related to evidence they put on. They never put on a chain of
09:57:42 25 custody for the alleged blood test they used. They never
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09:57:46 1 produced the blood test. They never explained its

09:57:50 2 disappearance.
09:57:51 3 They never produced certification records that
09:57:54 4 the testing machine was authorized for use in traffic offenses.
09:57:59 5 They never produced calibration records on the testing machine.
09:58:03 6 They never produced training or certification records for the
09:58:06 7 alleged operator of the machine.
09:58:09 8 The operator never testified because he was dead,
09:58:12 9 which goes to the speedy trial thing, the delay in bringing the
09:58:17 10 matter to trial caused the loss of that witness to his
09:58:20 11 prejudice. There was never any evidence put on that a test was
09:58:24 12 actually ever run.
09:58:27 13 There was evidence put on that the State could
09:58:30 14 have obtained a proper blood sample test to the Louisiana State
09:58:37 15 Police and that the sheriff shift supervisor called the
09:58:41 16 State Police, who were en route with a collection kit to take
09:58:44 17 to the state lab, and told them not to bother to come. Turn
09:58:48 18 around and go home. So the Sheriff's Office prevented a proper
09:58:53 19 blood sample test from being run.
09:58:54 20 In spite of all these evidentiary problems, which
09:58:58 21 were to the prejudice of Mr. Gates, the jury found in his
09:59:03 22 favor. So he was not only put in jeopardy on all the issues of
09:59:08 23 drunken driving and resisting arrest, he was actually put in
09:59:13 24 more jeopardy than usual because of the evidentiary problems,
09:59:19 25 for example.
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09:59:19 1 The only piece of evidence the State had, other

09:59:24 2 than testimony of witnesses testifying to his demeanor, was
09:59:29 3 what alleged to be a laboratory report from the hospital. That
09:59:34 4 report was never authenticated. No one from the hospital ever
09:59:40 5 testified that that is, in fact, a lab report taken out of the
09:59:44 6 hospital records. Again, we have someone who is prepared to
09:59:50 7 testify as to --
09:59:50 8 THE COURT: No, we're not going to retry that here.
09:59:54 9 There is no evidence that needs to be taken here or going to be
09:59:57 10 taken here, sir.
09:59:58 11 MR. HOLLISTER: The relevance of those things,
10:00:01 12 Your Honor, is that it's the degree of jeopardy in which
10:00:03 13 Mr. Gates was put. He had to confront these items. He had to
10:00:07 14 defend against them. He was successful in that. The jury
10:00:12 15 determined that the State's representations to the jury were
10:00:15 16 not established beyond a reasonable doubt.
10:00:18 17 THE COURT: Let me ask you this: Was the double
10:00:25 18 jeopardy issue raised as a defense in state court?
10:00:28 19 MR. HOLLISTER: It has been raised.
10:00:29 20 THE COURT: To the still pending charges?
10:00:33 21 MR. HOLLISTER: Yes, a motion to quash was filed. It
10:00:37 22 was denied by the state trial judge without reasons.
10:00:39 23 THE COURT: When was that filed? Did you file that or
10:00:44 24 previous attorneys?
10:00:45 25 MR. HOLLISTER: Previous counsel filed it.
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10:00:54 1 THE COURT: When was it filed? What year? Just give
10:00:57 2 me a year.
10:00:59 3 MR. HOLLISTER: I believe it was 2013.
10:01:02 4 THE COURT: The trial court denied it?
10:01:04 5 MR. HOLLISTER: The trial court denied it. A writ was
10:01:07 6 taken to the State First Circuit. They denied the writ without
10:01:12 7 reasons. A writ was taken to the Louisiana Supreme Court.
10:01:14 8 They denied it without reasons.
10:01:16 9 THE COURT: When that motion was filed in the trial
10:01:19 10 court, did they make the same arguments that you're making here
10:01:23 11 today?
10:01:23 12 MR. HOLLISTER: They made the same argument, but it was
10:01:25 13 based on state statutes -- state case law, which virtually
10:01:31 14 duplicates the federal case law we've cited. So it was the
10:01:36 15 same issue that was presented to the same court -- to the state
10:01:39 16 courts. It's just that the supporting jurisprudence was state
10:01:45 17 jurisprudence as opposed to federal.
10:01:48 18 So that issue of evidentiary fact double jeopardy
10:01:51 19 was presented to the state court, and they declined to
10:01:56 20 vindicate Mr. Gates' rights with respect to that.
10:01:58 21 The second problem has to do with the speedy
10:02:01 22 trial matter.
10:02:03 23 THE COURT: Was that issue raised in state court?
10:02:05 24 MR. HOLLISTER: Yes. The first speedy trial motion was
10:02:07 25 filed in 2008. It was raised numerous times after that. Not
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10:02:14 1 one of those motions was ever set for hearing. The defense
10:02:18 2 kept trying to get the trial court to hear this. The trial
10:02:21 3 court kept refusing to hear those motions.
10:02:23 4 The factual problem with the speedy trial,
10:02:33 5 Mr. Gates was stopped and issued traffic tickets in November of
10:02:37 6 2006. The charges were instituted by the district attorney in
10:02:47 7 St. Tammany in January of 2007.
10:02:57 8 So, under Article 578 of the Louisiana Code of
10:03:03 9 Criminal Procedure, they had one year, whether you calculate
10:03:06 10 from the November stop and ticket or from the January Bill of
10:03:10 11 Information, one year to bring those to trial. The January
10:03:15 12 bill was DWI.
10:03:18 13 The resisting arrest charge was billed in
10:03:22 14 September of 2007 after -- and as we've cited in our motion,
10:03:33 15 according to the sworn testimony of the attorney for the
10:03:36 16 insurance company, it was instituted at his request by his
10:03:40 17 giving a letter to the District Attorney's Office, and as other
10:03:47 18 sworn testimony established, that letter was forged.
10:03:49 19 So the insurance company got the resisting arrest
10:03:54 20 charge instituted again. It was the subject of a ticket in
10:04:01 21 November of 2006; it became the subject of a Bill of
10:04:05 22 Information in September of 2007.
10:04:09 23 THE COURT: I'm not sure I need all of that history,
10:04:12 24 sir. It's interesting but my question simply is: Did
10:04:16 25 Mr. Gates raise the -- and I guess the question would be, after
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10:04:22 1 he was acquitted of the aggravated flight charge, which I think

10:04:28 2 occurred in 2012?
10:04:29 3 MR. HOLLISTER: That's included in the motion to quash
10:04:31 4 that was filed in 2013.
10:04:36 5 THE COURT: The Speedy Trial Act, the speedy trial
10:04:40 6 issue was raised at that time again?
10:04:41 7 MR. HOLLISTER: That's my understanding.
10:04:43 8 THE COURT: That's your understanding.
10:04:45 9 MR. HOLLISTER: That and the double jeopardy.
10:04:46 10 THE COURT: Why hadn't that ever been set for hearing?
10:04:46 11 MR. HOLLISTER: Both. Those were in (speaking
10:04:46 12 simultaneously) --
10:04:50 13 THE COURT: I don't know the procedure -- wait. Let me
10:04:55 14 finish my question. I don't know the procedure over there in
10:04:57 15 St. Tammany. I pretty much no longer know the procedure any
10:05:04 16 more in state court because I've been away from it so long, but
10:05:07 17 wouldn't a lawyer file a motion to set it for hearing and a
10:05:10 18 judge at some point in due course set a hearing date? Why has
10:05:15 19 that not been ruled on?
10:05:16 20 MR. HOLLISTER: The motion to quash was set for
10:05:18 21 hearing, was heard in 2013, was denied without reasons by the
10:05:25 22 state trial judge.
10:05:26 23 THE COURT: I thought you said that was on the double
10:05:28 24 jeopardy issue. I'm talking now about the speedy trial issue.
10:05:31 25 MR. HOLLISTER: Both of those issues, is my
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10:05:36 1 understanding, were included in the motion to quash. The

10:05:39 2 bifurcation is between the billing of the DWI charge on one
10:05:45 3 date and the billing of the resisting arrest charge almost nine
10:05:50 4 months later. But then thereafter, the misdemeanor cases were
10:05:55 5 treated together, the two charges, under case number --
10:06:01 6 THE COURT: Let me ask you this then: Why hasn't
10:06:10 7 Mr. Gates -- he's obviously aware. You're aware. You're his
10:06:14 8 lawyer. His previous lawyers were aware obviously that he has
10:06:17 9 an outstanding arrest warrant for him in St. Tammany Parish,
10:06:20 10 why wouldn't you, or any lawyer, take your client there,
10:06:25 11 surrender him, and get that matter resolved? What's the
10:06:32 12 obstacle to that?
10:06:33 13 MR. HOLLISTER: Two different things. One is the fact
10:06:36 14 that --
10:06:38 15 THE COURT: Whether you agree the prosecution is right
10:06:42 16 or wrong or the cases should be dismissed over there for the
10:06:48 17 various reasons you said, I don't understand why you, as his
10:06:52 18 lawyer, and his previous lawyers, and Mr. Gates wouldn't have
10:06:57 19 simply gone to the Clerk's Office over there, to the sheriff,
10:07:02 20 whoever you have to surrender to, I'm sure he would have got a
10:07:06 21 bond, he would have surrendered, and the hearing date could
10:07:09 22 have been set, and those matters would have been long resolved
10:07:12 23 by now.
10:07:13 24 MR. HOLLISTER: There are two reasons for that,
10:07:15 25 Your Honor. One of them, if you look at Document 242, which is
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10:07:18 1 the defendants' memorandum in opposition to our motion for

10:07:23 2 lift, stay, and injunction, and you look at Exhibit A to that
10:07:30 3 memorandum in opposition, which is Document Number 242-1, that
10:07:37 4 is the order for attachment, bench warrant, that the State had
10:07:47 5 a district judge sign in December of 2013.
10:07:52 6 Now, the first time the State ever moved to set
10:07:57 7 those misdemeanor charges for hearing was August of 2013, a
10:08:03 8 month after the felony trial concluded with a not guilty
10:08:09 9 verdict, five years and nine months after Mr. Gates was
10:08:13 10 initially stopped. So under the state statute, they had one
10:08:18 11 year to bring him to trial.
10:08:20 12 THE COURT: That's all well and good, and maybe that's
10:08:22 13 a legitimate argument that you can make and your client can
10:08:26 14 make in state court, but if you've got an attachment or an
10:08:32 15 arrest warrant outstanding, you can't just ignore it and say,
10:08:35 16 "I don't think it's a valid warrant." You have to come in and
10:08:38 17 contest it, appear and contest it; otherwise, you're a fugitive
10:08:43 18 until you do.
10:08:43 19 Why hasn't he done that? It seems like any
10:08:46 20 lawyer, certainly I would counsel my client, "Look, we've got
10:08:49 21 to go take care of this whether we think it's legitimate or
10:08:53 22 not." You can't just ignore it.
10:08:55 23 MR. HOLLISTER: If you look at that attachment,
10:08:57 24 Your Honor, as they have attachments as an exhibit to their
10:09:00 25 pleading, first it contains on it a Code 6 notation and a
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10:09:08 1 direction that there will be no bond.

10:09:12 2 Secondly, if you look at the --
10:09:14 3 THE COURT: That's an issue that you can raise, again,
10:09:16 4 when you surrender. Again, that doesn't give you the right to
10:09:20 5 ignore it.
10:09:20 6 MR. HOLLISTER: I'm not finished, Your Honor, okay?
10:09:22 7 THE COURT: Go ahead.
10:09:23 8 MR. HOLLISTER: The second thing, if you look at that
10:09:25 9 form, you will see that although it was signed in 2013, it was
10:09:31 10 originally prepared in 2006. The judge had to strike out the
10:09:38 11 year and write in a new year.
10:09:40 12 THE COURT: So what? What does that tell me? What
10:09:42 13 does that mean? What's the difference?
10:09:44 14 MR. HOLLISTER: So from the very beginning of the case,
10:09:49 15 the State, through the District Attorney's Office, was
10:09:53 16 preparing, if they decided to go forward with the
10:09:56 17 misdemeanors -- which up until the conclusion of the felony
10:09:59 18 they had no interest in doing it, and they told the trial court
10:10:02 19 they had no interest in doing -- they were preparing to have
10:10:04 20 him seized and held without bond.
10:10:07 21 This is the part that doesn't appear here. In
10:10:11 22 St. Tammany Parish, there is a regular history and practice of
10:10:17 23 holding people in jail for prolonged periods while trying to
10:10:24 24 extort from them releases in civil claims they have against the
10:10:28 25 parish and its officers.
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10:10:29 1 THE COURT: Okay. We're getting far, far afield here
10:10:34 2 now, and none of that gives you or your client the right to
10:10:37 3 ignore a bench warrant signed by a judge. You would have to
10:10:43 4 respond to it, you have to appear, and then you could file any
10:10:47 5 objections and contest it anyway you want, but you can't just
10:10:50 6 ignore it because you think it was wrongly issued, you think
10:10:55 7 it's invalid, or you don't like what the consequences might be
10:10:59 8 when you turn yourself in. You can't just ignore it.
10:11:02 9 Your client has been avoiding that, evading that
10:11:06 10 since 2013. You've just admitted he has, and you've stated
10:11:12 11 why, but I don't think any of that is a legitimate reason.
10:11:15 12 MR. HOLLISTER: Well, we're here trying to deal with it
10:11:18 13 by asking this court, as the Schillaci court decided in the
10:11:22 14 case we attached to our or cited in our motion, to enjoin that
10:11:30 15 misdemeanor prosecution because, Number 1, under the State's
10:11:33 16 own statute, they are over five years too late to bring these
10:11:38 17 things forward, and under the federal speedy trial
10:11:41 18 jurisprudence, when they hit five years, which they did with
10:11:44 19 the conclusion of the felony trial -- they were past five
10:11:47 20 years -- it is presumed that his constitutional rights have
10:11:50 21 been violated.
10:11:51 22 So, the State has known all along, once it put
10:11:58 23 all of its eggs in the felony trial basket and ignored for five
10:12:04 24 years the misdemeanor case, never tried to set it for trial,
10:12:08 25 the misdemeanors, until they lost the felony case, they've
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10:12:13 1 known that that was a stale case, but, as they've shown by
10:12:18 2 taking out of their file the 2006 form and getting a judge to
10:12:22 3 sign it in 2013, they are trying to set Mr. Gates up for the
10:12:30 4 same thing they've pulled on several other people.
10:12:34 5 Again, I have somebody here to testify to the
10:12:36 6 names of trying to extort a civil (speaking simultaneously) --
10:12:39 7 THE COURT: I'm going to stop you right there because
10:12:41 8 we're not going to talk about what somebody did for somebody
10:12:45 9 else. We're talking about Mr. Gates' case.
10:12:46 10 Thank you. Please have a seat. I'm going to
10:12:49 11 hear from Mr. Collings.
10:12:53 12 MR. COLLINGS: Good morning again, Your Honor.
10:12:54 13 Chadwick Collings on behalf of the sheriff and his deputies.
10:12:58 14 THE COURT: Good morning. Why hasn't the State just
10:13:00 15 followed through on the prosecution? Do you know where this
10:13:03 16 man lives?
10:13:04 17 MR. COLLINGS: We have no idea, Your Honor, nor does,
10:13:06 18 as I appreciate it, anyone else in this room except for his
10:13:10 19 own -- he could be in Quebec, Puerto Rico.
10:13:12 20 THE COURT: How does it work when you have a warrant
10:13:15 21 issued that's pending? Do you send somebody out to look for
10:13:20 22 him, or do you just have it on a computer where if he's picked
10:13:24 23 up for something else it's going to be noted?
10:13:26 24 MR. COLLINGS: Admittedly this is not my area, but my
10:13:30 25 understanding is that on a misdemeanor warrant we're not going
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10:13:33 1 to marshal the resources of some sort of taskforce to go pick

10:13:36 2 someone up.
10:13:37 3 Generally the warrant stays outstanding. If
10:13:40 4 Mr. Gates runs a red light, gets pulled over and they run it,
10:13:43 5 they'll see he has got a warrant. They would then take him
10:13:45 6 into custody then. That's my appreciation of the process.
10:13:47 7 It's my further appreciation, Mr. Gates has not
10:13:52 8 popped up on the radar anywhere in the last almost four years.
10:13:57 9 THE COURT: There is a bunch of people in the
10:13:59 10 courtroom. I don't know who they are. None of them are him,
10:14:02 11 are they?
10:14:04 12 MR. COLLINGS: I've never laid eyes on him.
10:14:07 13 THE COURT: Mr. Hollister, is your client here?
10:14:08 14 MR. HOLLISTER: No, Your Honor.
10:14:09 15 THE COURT: He's not here. Where does he live,
10:14:09 16 Mr. Hollister?
10:14:12 17 MR. HOLLISTER: I don't actually know, Your Honor.
10:14:12 18 THE COURT: You don't know where your own client lives?
10:14:16 19 MR. HOLLISTER: I don't have an address for him.
10:14:18 20 THE COURT: That hard for me to believe, sir.
10:14:20 21 MR. HOLLISTER: Well, that was one of expressed term of
10:14:21 22 my retention in his case.
10:14:22 23 THE COURT: So you're representing a fugitive from
10:14:24 24 justice who refuses to give you his address? Is that what
10:14:29 25 you're representing to this court?
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10:14:30 1 MR. HOLLISTER: I would contest the description of him

10:14:32 2 as a fugitive.
10:14:34 3 THE COURT: Well, if he has an arrest warrant and he
10:14:37 4 hasn't surrendered, he's a fugitive. It's as simple as that.
10:14:37 5 MR. HOLLISTER: Your Honor --
10:14:42 6 THE COURT: I'm going to ask you one more time. You're
10:14:45 7 an officer of the court, sir, and I truly hope you don't get
10:14:51 8 yourself in trouble by misrepresenting something to this court.
10:14:55 9 Do you know where Mr. Gates resides?
10:15:00 10 MR. HOLLISTER: No.
10:15:00 11 THE COURT: How do you get in touch with him?
10:15:02 12 MR. HOLLISTER: By telephone or e-mail.
10:15:03 13 THE COURT: What's his telephone number?
10:15:05 14 MR. HOLLISTER: He calls me. I don't have a number to
10:15:07 15 call him.
10:15:08 16 THE COURT: So you don't have an address. You don't
10:15:09 17 have a phone number. He only calls you.
10:15:11 18 MR. HOLLISTER: I communicate with him by e-mail or he
10:15:15 19 telephones me.
10:15:15 20 THE COURT: What's his e-mail address?
10:15:17 21 MR. HOLLISTER: shanemgates@msn.com.
10:15:28 22 THE COURT: Does he reside in St. Tammany Parish?
10:15:31 23 MR. HOLLISTER: It's my belief that he did up until
10:15:34 24 late 2012. I believe he does not reside there now, but for
10:15:42 25 over six -- for six years his address was known to the DA and
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10:15:46 1 the Sheriff's Office in St. Tammany Parish.

10:15:48 2 THE COURT: Does he reside in the State of Louisiana?
10:15:50 3 MR. HOLLISTER: I don't know. I don't think so but I
10:15:52 4 don't know.
10:15:53 5 THE COURT: Does he reside in the United States?
10:15:56 6 MR. HOLLISTER: Since, when I've gotten a telephone
10:16:01 7 call, I've had no indications it was an international call, I
10:16:06 8 would think he does, but I don't know that for certain.
10:16:08 9 THE COURT: I have to tell you, Mr. Hollister, I don't
10:16:09 10 know you at all, sir, but I don't think you're being honest
10:16:12 11 with the Court here, and I have a big problem with that.
10:16:14 12 Let me hear from Mr. Collings, okay?
10:16:17 13 MR. COLLINGS: All right, Your Honor. I just want to
10:16:19 14 address his motion and then we can perhaps get to ours.
10:16:22 15 THE COURT: Yes.
10:16:22 16 MR. COLLINGS: Let me start by saying the irony is not
10:16:26 17 lost on me that we have someone who has been a fugitive from
10:16:30 18 justice coming up on four years who is arguing speedy trial. I
10:16:35 19 don't see how one can do that with a straight face, to sit
10:16:38 20 there and say that we want a speedy trial at the same time
10:16:41 21 they've avoided trial deliberately for years. For years,
10:16:46 22 Your Honor.
10:16:47 23 You pointed out correctly that Judge Duval has
10:16:51 24 rejected the very same arguments they've made twice already.
10:16:56 25 So they just took out the playbook and rolled it out and gave
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10:17:00 1 it to you and said, "Hey, maybe three times is the charm."
10:17:03 2 I would ask the Court to do exactly what
10:17:06 3 Judge Duval has already done twice, and I'll give you the
10:17:11 4 record cites in case you didn't have that handy.
10:17:15 5 Record Document 121 and Record Document 200 specifically on
10:17:20 6 point rejected the very thing they are asking for you to do
10:17:25 7 today, which is enjoin the state court proceedings.
10:17:28 8 THE COURT: Let me ask you this: I think he puts a
10:17:32 9 slightly different twist on his double jeopardy argument now.
10:17:41 10 As I recall, in front of Judge Duval it was a straightforward,
10:17:46 11 this is a different offense, resisting an officer versus
10:17:50 12 aggravated flight. The elements are different; and, therefore,
10:17:54 13 there is no double jeopardy.
10:17:56 14 Now Mr. Hollister is arguing, I think he calls it
10:18:04 15 evidentiary fact branch, the evidentiary fact branch of double
10:18:09 16 jeopardy where because even though it wasn't an element of the
10:18:16 17 felony offense he was being charged for, that the State chose
10:18:19 18 to interject in that trial his DWI conduct and his resisting
10:18:28 19 conduct; and, therefore, double jeopardy should apply.
10:18:33 20 MR. COLLINGS: That's just simply -- that's not the
10:18:35 21 law. He cites in his -- he cites in his -- back up. In
10:18:40 22 December --
10:18:40 23 THE COURT: Before you get to the law let me ask you:
10:18:41 24 Factually, is that what happened? What happened at that trial?
10:18:44 25 I know you weren't there.
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10:18:46 1 MR. COLLINGS: If you get deep in the weeds on that,

10:18:49 2 I'm going to defer to the DA's office, Your Honor. I wasn't
10:18:53 3 even the Sheriff's lawyer --
10:18:55 4 THE COURT: Okay. Then talk about the law and we'll
10:18:55 5 get to the facts later.
10:18:56 6 MR. COLLINGS: Fair enough.
10:18:57 7 To back up, in December we kind of saw the same
10:19:01 8 thing we just saw this morning, which is, we have a motion and
10:19:03 9 we have an opposition. Then at the hearing, new cases are
10:19:07 10 thrown out.
10:19:08 11 Judge, there is these cases that no one has seen
10:19:11 12 or heard of in the last decade. Everybody has missed it, but I
10:19:15 13 got the answer for you. So the judge said, "Okay, look" --
10:19:18 14 this is Judge Duval, now retired -- said, "tell you what, I'm
10:19:22 15 going to give you until the end of January to throw your
10:19:25 16 Hail Mary motion and try once again to convince the next
10:19:29 17 judge," Your Honor, "to grant this relief that you've now had
10:19:34 18 rejected by me twice."
10:19:35 19 Because we're told there are these cases, Dowling
10:19:39 20 and Ashe, and I'm probably butchering the pronunciation,
10:19:46 21 Schillaci or something like that, but they are cited in his
10:19:46 22 memorandum at this time.
10:19:50 23 If you go back and actually read -- because we
10:19:52 24 didn't know about them when we argued in December but we saw
10:19:55 25 them, we heard it, we found them, we read them -- they don't
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10:19:58 1 stand for the proposition that's being argued today. Any
10:20:02 2 person with any knowledge of the law reading those cases and
10:20:07 3 knowing just a rudimentary version of the facts in this case
10:20:13 4 can easily ascertain that they do not apply.
10:20:16 5 Dowling dealt with the admissibility of evidence
10:20:19 6 of a prior acquittal. There is a footnote, I believe, in that
10:20:24 7 case by the dissent that talks about this evidentiary fact bar
10:20:29 8 and says that doesn't really apply. So, nowhere in Dowling do
10:20:34 9 we have a rule of law that would require this court to do
10:20:38 10 anything with respect to this argument that's being pronounced
10:20:41 11 today by the plaintiff.
10:20:42 12 If you look at the Ashe case, that was the case
10:20:45 13 where we had some people who apparently robbed a poker game.
10:20:51 14 The State tried that case against one of the defendants and
10:20:54 15 then came back and re -- wanted to retry another robbery
10:20:58 16 charge, same charge -- same charge, same defendant.
10:21:01 17 What they did is they said, "Well, you may have
10:21:04 18 robbed these three individuals, but we didn't really get into
10:21:07 19 the fact that you robbed this fourth guy who also may have had
10:21:11 20 chips on the table."
10:21:12 21 So the Supreme Court said, "Well, you have to" --
10:21:14 22 you mentioned the elements. The Supreme Court there said that
10:21:18 23 when they considered all the elements in the first trial on the
10:21:21 24 robbery charge, you can't come back and have the same elements
10:21:25 25 tried by a different jury against the same defendant.
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10:21:29 1 That would, in our view -- we would admit, if

10:21:33 2 that were the case here, we were trying another aggravated
10:21:37 3 flight charge against Mr. Gates for the events of November 16,
10:21:40 4 2006, we were doing that, then I think Ashe would probably
10:21:44 5 apply but it doesn't. Ashe in this case are completely
10:21:48 6 opposite.
10:21:49 7 Let's think about just the operative facts here.
10:21:52 8 You have an individual who is on the Interstate in November of
10:21:55 9 2006. Deputies see something that sparks their interest. They
10:22:01 10 initiate a traffic stop. Mr. Gates doesn't comply and
10:22:04 11 continues to go down the road at high speeds. Ultimately he's
10:22:08 12 pulled over.
10:22:09 13 THE COURT: That's considered a flight.
10:22:13 14 MR. COLLINGS: That's the aggravated flight. So from
10:22:15 15 the moment they initiate the traffic stop to the moment he
10:22:20 16 stops, that's the aggravated flight.
10:22:21 17 Now, when they get him out of the vehicle and
10:22:24 18 they try to put handcuffs on him and he starts fighting, that's
10:22:28 19 resisting arrest. Two separate events, temporally disconnected
10:22:32 20 from one another, two separate charges.
10:22:35 21 THE COURT: Under what theory was the State allowed to
10:22:38 22 introduce that evidence, the last part of that, at his
10:22:42 23 aggravated flight trial?
10:22:45 24 MR. COLLINGS: Again, I'm going to have to bring my
10:22:47 25 colleague up. I just wasn't there, Your Honor. It's really
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10:22:51 1 not my issue.

10:22:51 2 THE COURT: Okay.
10:22:52 3 MR. COLLINGS: But I did want to point out to the Court
10:22:54 4 that we're talking about separate charges, separate elements.
10:22:57 5 You mentioned it already in your question. You understand it,
10:23:00 6 that just because someone gets up on the stand and said says,
10:23:04 7 "My name is Chad Collings. It was a Monday night," and then
10:23:09 8 bum, bum, bum, you can't ever get into the fact that your name
10:23:12 9 was Chad Collings and it was Monday night again? No, it's what
10:23:18 10 the jury has to consider. That's the issue. What did they
10:23:19 11 consider to either acquit or convict Mr. Gates? What was he
10:23:20 12 charged with at that time? The aggravated flight.
10:23:24 13 There is nothing in the evidence, there is
10:23:26 14 nothing in any of the motions, memoranda, or supporting
10:23:30 15 exhibits which gives me, you, or anyone else any reason to say
10:23:37 16 that those charges that are still pending -- resisting arrest
10:23:40 17 and DWI -- are now foreclosed once and for all.
10:23:44 18 As the Court has correctly pointed out and what
10:23:47 19 the plaintiff even puts in his motion, which jumped off the
10:23:52 20 page at me, if you look at page 15 of his own memoranda in
10:23:57 21 support, quote, "Where Mr. Gates has exhausted his remedies in
10:24:01 22 state court, then injunction is appropriate." Well, guess
10:24:07 23 what, we are a far ways away from having exhausted all remedies
10:24:11 24 in state court.
10:24:12 25 You got to go to trial first. You got to go to
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10:24:15 1 the Court of Appeal. You got to go to the Supreme Court. He

10:24:18 2 has done none of that. So how can we just throw away all that
10:24:22 3 and say, "Okay. We don't want to go through that trouble. We
10:24:26 4 would rather the federal court save us."
10:24:27 5 THE COURT: Well, he did say that he filed a motion to
10:24:31 6 quash, as I appreciate what Mr. Hollister said, that he filed a
10:24:35 7 motion to quash, and he lost and it went to the First Circuit
10:24:43 8 and then went to the Supreme Court and lost, so he claims he
10:24:47 9 exhausted that issue.
10:24:49 10 MR. COLLINGS: Those aren't dispositive rulings. He
10:24:53 11 could raise those on appeal. He could raise that again during
10:24:56 12 the trial. The idea -- exhaustion of remedies means exactly
10:25:01 13 that. There are no avenues to ask for something in state
10:25:04 14 court, and he has multiple opportunities still to come if he
10:25:07 15 ever surrenders himself to the state authorities and goes
10:25:11 16 forward with that trial.
10:25:13 17 He can ask again to quash the misdemeanor. He
10:25:19 18 can go to the Court of Appeal once he's convicted, assuming
10:25:21 19 he's convicted, which, again, they are so convinced all the
10:25:25 20 evidence is so weak, then go to trial. Go to trial.
10:25:29 21 If they didn't do a proper bloodwork, if they
10:25:32 22 lost this, if they didn't have the certification when they took
10:25:35 23 his whatever, then go to trial. You don't come to federal
10:25:38 24 court and say, "Well, they don't have enough to convict me, but
10:25:41 25 I don't want to go through the trouble. Just go ahead and tell
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10:25:44 1 them not to, not to try to try me."

10:25:46 2 That's not the law, Your Honor. And, you know,
10:25:49 3 plaintiff dances around and tell us, you know, that I've got
10:25:52 4 all these cases that tell you one thing, and then when you
10:25:55 5 actually read them, that's not what they say.
10:25:58 6 THE COURT: Let me ask you this: You represent the
10:26:00 7 current sheriff or the previous sheriff or both? Is the
10:26:05 8 current sheriff a defendant or just the Sheriff's Office? Who
10:26:07 9 is the defendant here?
10:26:09 10 MR. COLLINGS: There is no juridical entity of the
10:26:12 11 Sheriff's Office.
10:26:12 12 THE COURT: I didn't think so. The sheriff is the
10:26:13 13 office.
10:26:13 14 MR. COLLINGS: You're exactly right, Your Honor.
10:26:14 15 In his official capacity the current sheriff,
10:26:18 16 even if they haven't amended the suit, would be the defendant.
10:26:22 17 All right. It's just like if you sue the City of New Orleans,
10:26:23 18 it doesn't matter who the mayor is, right?
10:26:25 19 THE COURT: But the previous sheriff is still in the
10:26:28 20 case as, I guess, an individual defendant.
10:26:28 21 MR. COLLINGS: There are still claims against him in
10:26:31 22 his individual capacity and along with the deputies.
10:26:35 23 THE COURT: Okay. All right. Anything else you need
10:26:37 24 to add, Mr. Collings?
10:26:40 25 MR. COLLINGS: On his motion to enjoin, Your Honor, I
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10:26:43 1 would again reiterate, these issues have been tried and have
10:26:46 2 been heard twice, rejected twice. They were rejected even
10:26:50 3 after, and I think this is important to know, the argument
10:26:54 4 that's being asserted here was urged months after the
10:27:01 5 attachment was issued back in '13. This was heard in August of
10:27:05 6 2014, as I recall, and the Court rejected it.
10:27:11 7 THE COURT: Raised in this court, you mean.
10:27:13 8 MR. COLLINGS: Correct. In this building.
10:27:14 9 THE COURT: He says, because I asked Mr. Hollister
10:27:19 10 whether -- it's not clear to me that he's ever actually -- he,
10:27:26 11 meaning the defendant, Mr. Gates -- in state court has ever
10:27:29 12 actually raised an issue of the speedy trial issue in state
10:27:37 13 court. Do you know if that's the case or not?
10:27:38 14 MR. COLLINGS: I'm going to defer to the DA's office.
10:27:42 15 THE COURT: Who represents the DA's office here?
10:27:44 16 MR. MENARD: I do, Your Honor.
10:27:45 17 THE COURT: Why don't you let him come up. I have a
10:27:48 18 few questions he can answer.
10:27:51 19 Was the speedy issue -- I'm sorry, identify
10:27:54 20 yourself for the record.
10:27:55 21 MR. MENARD: Good morning, Your Honor. Cary Menard. I
10:28:00 22 am an assistant district attorney, 22nd Judicial District. I
10:28:03 23 represent the current district attorney as the office because
10:28:06 24 the prior district attorney was sued in his official capacity,
10:28:10 25 as well as an existing assistant district attorney,
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10:28:14 1 Mr. Gracianette, and two former district attorneys who are also
10:28:20 2 named as defendants in the case.
10:28:22 3 THE COURT: What can you tell me about -- I'm trying to
10:28:24 4 understand, first of all, what happened at the trial, the case
10:28:27 5 that did go to trial in terms of the prosecution apparently
10:28:35 6 allegedly made a concerted effort successfully, eventually, to
10:28:41 7 introduce all of this other evidence at the trial? What was
10:28:44 8 that about?
10:28:45 9 MR. MENARD: Your Honor, preliminarily I would echo
10:28:47 10 what Mr. Collings said and what the Court alluded to that any
10:28:52 11 of these issues having to do with double jeopardy, speedy
10:28:56 12 trial, are properly raised in the forum of the state criminal
10:29:01 13 court. As a matter of fact, they were raised, as you heard the
10:29:03 14 testimony or the argument today by Mr. Hollister, they were, in
10:29:07 15 fact, raised at the state court level.
10:29:09 16 As Mr. Collings properly pointed out --
10:29:11 17 THE COURT: Both double jeopardy and the speedy trial
10:29:15 18 issue?
10:29:15 19 MR. MENARD: Your Honor, I don't have independent
10:29:17 20 knowledge of that, but taking what Mr. Hollister says as true
10:29:20 21 and that they were raised and that the writs were denied, I do
10:29:25 22 want to point out and reiterate what Mr. Collings said, his
10:29:30 23 state remedies, Mr. Gates' state remedies have not in any way
10:29:35 24 been exhausted, that they can be reurged and can be brought up
10:29:39 25 on appeal through the various state courts, as Mr. Collings
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10:29:44 1 pointed out.

10:29:45 2 I was not present at the trial, Your Honor, but
10:29:50 3 taking what Mr. Hollister said as true, that this evidence,
10:29:50 4 some type of evidence of intoxication was brought up not in the
10:29:56 5 case in chief but assuming it was brought up in rebuttal, as
10:30:01 6 the Court properly pointed out, the test is not --
10:30:02 7 THE COURT: I don't know what that would be rebuttal to
10:30:05 8 but I wasn't there.
10:30:06 9 MR. MENARD: I could only speculate that maybe an issue
10:30:09 10 of nonintoxication was brought up.
10:30:12 11 THE COURT: Apparently the trial judge didn't think it
10:30:13 12 was rebuttal because he said it doesn't come in, and it got
10:30:18 13 reversed by the First Circuit, right?
10:30:19 14 MR. MENARD: Yes, Your Honor.
10:30:21 15 But as Your Honor pointed out, that's not the
10:30:23 16 test. The test is whether or not the jury necessarily had to
10:30:27 17 consider that evidence in order to either convict or acquit on
10:30:31 18 the charge of aggravated flight.
10:30:35 19 As Mr. Collings pointed out, at the time that the
10:30:39 20 offense was being committed, there is no way that the officers
10:30:42 21 could have known or not known that Mr. Gates was intoxicated or
10:30:45 22 not intoxicated, so it is not an element, and as far as I know
10:30:50 23 the jury was never polled on that issue.
10:30:51 24 THE COURT: So you represent the current
10:30:55 25 district attorney, Mr. Montgomery, right?
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10:30:57 1 MR. MENARD: Actually, Your Honor, Mr. Montgomery was

10:31:02 2 never named in an amended suit.
10:31:04 3 THE COURT: I understand but he's the office.
10:31:06 4 MR. MENARD: He's the office.
10:31:08 5 THE COURT: Just like the sheriff is the office.
10:31:08 6 MR. MENARD: Just like the sheriff. Yes, sir.
10:31:09 7 THE COURT: So if there would be a judgment against the
10:31:13 8 district attorney, his office would have to pay it.
10:31:15 9 MR. MENARD: That is correct.
10:31:16 10 THE COURT: Yeah. So, Mr. Montgomery apparently still
10:31:23 11 intends to pursue these misdemeanor charges against Mr. Gates
10:31:28 12 in state court?
10:31:29 13 MR. MENARD: Yes, Your Honor.
10:31:30 14 As has been pointed out over and over again, the
10:31:32 15 only reason in the last three plus years that the case has not
10:31:36 16 moved forward is because we do not know the whereabouts of
10:31:40 17 Mr. Gates, and he has refused to surrender himself.
10:31:43 18 The offer was made at a prior hearing by the
10:31:46 19 District Attorney's Office to welcome Mr. Gates in without
10:31:50 20 putting him under arrest, to bring him to the Clerk's Office.
10:31:54 21 Ms. Foreman at the Clerk's Office is prepared to give a notice
10:31:58 22 for a preliminary hearing and a trial date, and we would have
10:32:02 23 the bench warrant recalled, but Mr. Gates --
10:32:06 24 THE COURT: So the District Attorney wouldn't insist on
10:32:09 25 holding this man without bond for some period of time on a
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10:32:13 1 misdemeanor charge?

10:32:14 2 MR. MENARD: Absolutely not, Your Honor, but we have no
10:32:16 3 way of communicating with Mr. Gates.
10:32:19 4 THE COURT: Well, apparently neither does his lawyer.
10:32:21 5 MR. MENARD: Yes, sir.
10:32:22 6 THE COURT: I'll ask you directly, you don't know his
10:32:25 7 whereabouts right?
10:32:26 8 MR. MENARD: No, sir, I do not, and no one in our
10:32:28 9 office knows his whereabouts.
10:32:29 10 THE COURT: Okay. Anything else?
10:32:31 11 MR. MENARD: That's all I have, Your Honor.
10:32:33 12 THE COURT: Okay. Thank you, sir.
10:32:37 13 I think there is someone else. Mr. Simmons.
10:32:39 14 MR. SIMMONS: Your Honor, Rick Simmons of Hailey
10:32:46 15 McNamara representing Chick Hughes.
10:32:49 16 THE COURT: Tell me again, who is Chuck Hughes?
10:32:52 17 MR. SIMMONS: Chuck Hughes is the Sheriff's attorney.
10:32:54 18 I've been representing Mr. Hughes for eight years, so I'm not
10:32:58 19 representing Mr. Reed, as I've represented in other capacities,
10:33:01 20 but this case has been in existence for eight years. I started
10:33:04 21 representing Chuck Hughes. Chuck Hughes is an attorney for the
10:33:08 22 Sheriff's Department.
10:33:08 23 THE COURT: What's the allegation against him in this
10:33:10 24 case?
10:33:10 25 MR. SIMMONS: The allegation basically is -- he has
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10:33:13 1 nothing to do with the arrest. Afterwards there were five

10:33:15 2 charges, and he urged on behalf of the Sheriff, in view of the
10:33:21 3 Humphrey case, that they pursue the resisting arrest. So as an
10:33:25 4 advocate for the Sheriff's Office he's asking the DA's office
10:33:27 5 to pursue the charges. That's it.
10:33:30 6 I mean, there is an allegation in the most recent
10:33:32 7 pleadings that Mr. Hughes also represents the insurance
10:33:35 8 company. Well, Your Honor, I'm here for the last ten years
10:33:39 9 through CNA. That's the malpractice carrier. I represent
10:33:42 10 lawyers for the last 25 years in the State of Louisiana through
10:33:45 11 CNA or whatever the carrier is, so am I representing the
10:33:49 12 insurance company? No, I'm representing the individual
10:33:51 13 insured.
10:33:52 14 So that allegation --
10:33:53 15 THE COURT: The office's insurer pays your bills.
10:33:55 16 MR. SIMMONS: That's correct.
10:33:57 17 Your Honor, when we get to the issue of prejudice
10:33:59 18 in these things, for the last eight years every time your
10:34:02 19 malpractice policy is renewed, "Is there an existing open
10:34:07 20 claim?" "Yes," for eight years. So sitting here, there is
10:34:10 21 effect on these individuals, all of them over here, with this
10:34:12 22 case just being open.
10:34:14 23 I raised the ethics issue in oral argument last
10:34:17 24 time, Your Honor. There is nothing wrong, improper with
10:34:20 25 representing a fugitive per se. A lot of times it will occur
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10:34:23 1 because you're counsel of record, and they seek fugitive status
10:34:26 2 afterwards. You still represent them.
10:34:28 3 This is a unique situation. I think the
10:34:30 4 obligation of an attorney, upon realizing the situation, you
10:34:36 5 have to urge your client to surrender. That's what -- that's
10:34:39 6 the first thing you should do. You still represent him. The
10:34:42 7 client may not listen but that's your obligation.
10:34:44 8 We, on this side, object to Mr. Gates gaming the
10:34:50 9 system for the last three years through counsel trying to seek
10:34:54 10 jurisdiction over here to override jurisdiction in the state
10:34:57 11 court.
10:34:57 12 He has a simple remedy. You show up in state
10:35:00 13 court and raise all these issues. There are issues that may
10:35:04 14 have some validity, but this isn't the jurisdiction.
10:35:06 15 So Your Honor, we would urge you to lift the stay
10:35:11 16 for the purposes that we've outlined and put an end to this
10:35:14 17 case.
10:35:17 18 THE COURT: Thank you. Anyone else on this side?
10:35:19 19 MR. COLLINGS: Just, are we going to move to the motion
10:35:22 20 to dismiss or, I mean, we kind of did a lot of issues together.
10:35:26 21 THE COURT: They are kind of overlapping, yeah.
10:35:28 22 Okay. Let me let you talk about the motion to
10:35:33 23 dismiss, and then I'll let Mr. Hollister respond to anything
10:35:35 24 that's being said by anybody.
10:35:37 25 Did anybody else on this side wish to speak?
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10:35:40 1 Need to speak?

10:35:41 2 Okay. Go ahead, Mr. Collings.
10:35:44 3 MR. COLLINGS: The case law and the law and argument on
10:35:47 4 our side with respect to the motion to dismiss is obviously
10:35:51 5 different. The remedy we're asking for is different. They are
10:35:54 6 asking for an injunction. We've addressed that. We think
10:35:57 7 there is no support for it in the law. We would ask the Court
10:36:00 8 to deny that motion.
10:36:01 9 Now we turn now to the relief we're asking for,
10:36:05 10 which is, Judge, this event occurred in November, November 16,
10:36:13 11 2006. Let's think about that. That's over ten years ago.
10:36:16 12 Since that time, this building has adjudicated and resolved
10:36:23 13 Hurricane Katrina claims by the thousands, billions of dollars.
10:36:27 14 THE COURT: I did thousands of them myself, I think.
10:36:30 15 MR. COLLINGS: You did. You also, to your credit,
10:36:33 16 handled the BP claim since this event.
10:36:37 17 THE COURT: Tens of thousands of those.
10:36:40 18 MR. COLLINGS: Billions of dollars. Thousands and
10:36:43 19 thousands of people were impacted and received their remedies.
10:36:46 20 You handled all of that. This building has.
10:36:48 21 THE COURT: I didn't handle all of that. The Court
10:36:51 22 handled all of that.
10:36:51 23 MR. COLLINGS: This building was able to resolve
10:36:55 24 billions and billions of dollars in claims, thousands of
10:36:58 25 people's lives were affected, and they got through it all.
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10:37:01 1 Yet, here we are, a decade plus later, and we're still sitting
10:37:07 2 here talking about Mr. Gates' misdemeanor charges for which
10:37:11 3 he's a fugitive a decade later.
10:37:14 4 What we're asking for is just put an end to it.
10:37:16 5 He has had every opportunity under the sun to move this 1983
10:37:24 6 claim, if he has one, forward. He's refused.
10:37:27 7 Heck versus Humphrey, with all due respect to
10:37:31 8 counsel, Holly versus Bush -- I don't think that's the name of
10:37:34 9 the case. While we're sitting there I'm pulling it up. There
10:37:36 10 is a case called Holly Bush versus Jack Strain. I found that.
10:37:40 11 I started reading it while he was talking.
10:37:42 12 That doesn't modify Heck. Heck is still the law
10:37:45 13 of the land, and Heck says you cannot do what they want to do,
10:37:48 14 which is let's move forward with this 1983 claim while there is
10:37:52 15 pending state charges. That's still the law. It has been the
10:37:54 16 law for a long time. There is nothing out there that I'm aware
10:37:57 17 of, and Holly Bush, with all due respect, doesn't change that.
10:38:01 18 So he has created the very impediment to this case moving
10:38:05 19 forward. We' haven't.
10:38:06 20 All right. When you look at our motion, there
10:38:09 21 are -- there is good case law that gives this court the
10:38:15 22 ability, in addition to Rule 41, which is probably all you
10:38:18 23 really need, read the rule, look at the facts here and apply
10:38:22 24 it, and you can dismiss it on your own.
10:38:23 25 More importantly, there is a great case called
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10:38:28 1 Shaw versus Estelle where the Fifth Circuit affirmed a

10:38:31 2 dismissal of a civil rights suit where the plaintiff became a
10:38:35 3 fugitive. It's cited in our brief. We discuss it, and,
10:38:38 4 Your Honor, it was never addressed in their opposition. Not
10:38:41 5 one word about it. Not a single word.
10:38:45 6 The fact is that case gives this court clear
10:38:49 7 guidance on what is appropriate in this case, which is a
10:38:53 8 plaintiff who wants a remedy in the courthouse but yet is a
10:38:57 9 fugitive from justice. The remedy is dismissal. You can't do
10:39:01 10 that. You can't play games with this system.
10:39:03 11 Link versus Wabash, U.S. Supreme Court, cited in
10:39:08 12 our brief, discussed in our brief, same proposition,
10:39:12 13 Your Honor.
10:39:12 14 Tankersley, once again, cited in our brief,
10:39:16 15 discussed. Same proposition.
10:39:18 16 There is a case in our brief called Kallip,
10:39:22 17 K-A-L-L-I-P -- I hope I'm pronouncing that correctly -- cited
10:39:25 18 in our brief sets forth the three factors that this court
10:39:27 19 should consider when considering this relief, which is a
10:39:31 20 dismissal.
10:39:32 21 The three factors: Delay directly attributable
10:39:36 22 to the plaintiff and not his lawyer. I think everyone in this
10:39:41 23 room can agree the delay is attributable to Mr. Gates, not
10:39:47 24 Mr. Hollister, who only arrived on the scene about the same
10:39:49 25 time I did, which was last fall.
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10:39:51 1 Actual prejudice to the defendant. There is lots

10:39:55 2 of prejudice to all of these defendants. Justice delayed is
10:40:01 3 justice denied and that goes both ways.
10:40:04 4 Delay is not always a defendant's best friend
10:40:07 5 because what happens? People die, people retire, they move
10:40:10 6 away, evidence gets lost. Ten years later, we got -- if we had
10:40:15 7 to go try this case tomorrow, we got to go start trying to find
10:40:18 8 these people. I know at least one witness is now deceased.
10:40:21 9 So it's definitely a hindrance and it is
10:40:25 10 prejudicial to us to let this case continue to just linger out
10:40:28 11 there forever and ever until someday some DA will say, "Well,
10:40:33 12 you know, we're going to nolle pros these misdemeanors," and
10:40:37 13 Mr. Gates comes in here years later and says, "I'm ready to go.
10:40:39 14 Let's have my 1983 case. I remember everything that night.
10:40:42 15 Even though everybody is gone, I remember." That's prejudicial
10:40:46 16 to us.
10:40:46 17 Third factor: Delay caused by intentional
10:40:49 18 conduct. I don't know how more intentional you can get. The
10:40:53 19 state district court says, "Show up, get your subpoena, and
10:40:56 20 when you don't, I'm going to issue a warrant for your arrest."
10:41:00 21 Four years ago that happened. Mr. Gates says, "I
10:41:05 22 don't have to listen to you. You're wrong. That doesn't --
10:41:08 23 that warrant that supposedly out there is really just no good.
10:41:12 24 It doesn't matter." That's intentional.
10:41:14 25 Those are the three factors. They are all
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10:41:16 1 present here, Your Honor.

10:41:17 2 Again, Mr. Gates has given you nothing in any way
10:41:21 3 to rebut the case law and these factors to consider. Read his
10:41:26 4 memo in opposition. What is the memo in opposition? Six
10:41:31 5 pages, six pages. He goes through every single defendant.
10:41:33 6 THE COURT: I've read it.
10:41:34 7 MR. COLLINGS: "Sheriff, you have no standing. You're
10:41:37 8 unethical. You violated Rule 11." "DA, you have no standing.
10:41:42 9 Rule 11. Unethical." Every single defendant. Clerk of Court.
10:41:45 10 That's it? We, as a defendant, we have no
10:41:47 11 standing? You sued us. We have standing. If you don't sue us
10:41:50 12 we don't have standing but we're a defendant now. I think
10:41:53 13 Rule 12, we get the benefit of that. We need to dismiss this
10:41:57 14 case.
10:41:57 15 Then finally, Your Honor, the fugitive
10:42:00 16 disentitlement doctrine, and there is a case -- I think Bagwell
10:42:06 17 versus Dretke -- again, same issue. We briefed it. It's in
10:42:11 18 there. I don't want to go through every single fact pattern in
10:42:15 19 all of the cases.
10:42:15 20 The point is, Your Honor, the law is clear. The
10:42:17 21 remedy we're asking for is provided in the law. Mr. Gates has
10:42:21 22 given you nothing, absolutely nothing to say we're wrong. Here
10:42:28 23 is another case; they are wrong. That case was overruled; they
10:42:31 24 are wrong. Nothing.
10:42:32 25 All he's given you is these lawyers are
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10:42:34 1 unethical. These clients -- these defendants have no standing.

10:42:38 2 That's it. That's all he's given you. That's not an argument.
10:42:41 3 With all due respect, Your Honor, we would ask
10:42:43 4 that the Court exercise its discretion and dismiss this case.
10:42:46 5 It's been here way too long already.
10:42:50 6 THE COURT: All right. Thank you.
10:42:52 7 MR. COLLINGS: Thank you.
10:42:53 8 THE COURT: All right. Mr. Hollister, I'll give you
10:42:55 9 about three minutes.
10:42:57 10 MR. HOLLISTER: Your Honor, Mr. Collings suggested to
10:43:04 11 you one thing that's factually incorrect. He was -- he
10:43:07 12 described the resisting arrest charge as being -- arising in a
10:43:13 13 situation where at a traffic stop officers were struggling with
10:43:17 14 the man trying to handcuff him.
10:43:19 15 The testimony on the first day of the felony
10:43:21 16 trial established that Deputy Miller stopped Mr. Gates,
10:43:26 17 handcuffed him, put him in his car. Deputies Gottardi and
10:43:31 18 Williams arrived on the scene, took him out of Deputy Miller's
10:43:37 19 car. He was still handcuffed and he was smashed into the
10:43:41 20 ground and beaten while handcuffed.
10:43:44 21 So the resisting issue has nothing to do with his
10:43:47 22 fighting them to avoid being handcuffed. They are trying to
10:43:52 23 create a misimpression in the Court's mind.
10:43:55 24 THE COURT: Well, we're not going to resolve the merits
10:43:59 25 that case here.
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10:44:01 1 MR. HOLLISTER: He suggested that any time you make a

10:44:02 2 casual reference to something during a trial, then you're not
10:44:08 3 foreclosed from bringing that up in a subsequent trial. This
10:44:11 4 wasn't a casual mention. This was an entire day of trial which
10:44:16 5 was put on solely for the purpose of putting on the State's
10:44:21 6 entire case on DWI and resisting arrest. That was the only
10:44:25 7 subject of that trial date.
10:44:27 8 The transcript is in the record. It's -- anybody
10:44:31 9 can read it and see that all that July 27, 2012, was devoted to
10:44:41 10 was trying to prove that Mr. Gates was drunk and trying to
10:44:44 11 prove that he resisted arrest.
10:44:49 12 The Green case from the Supreme Court defines the
10:44:55 13 basic concept of double jeopardy as having to run the gauntlet
10:44:59 14 of a certain evidentiary package of certain issues a second
10:45:04 15 time.
10:45:06 16 The Schillaci case that we cited in our motion,
10:45:14 17 memo, from the District of Hawaii is simply an example of when
10:45:20 18 a district court does have the authority to enjoin a state
10:45:28 19 prosecution because the very notion of jeopardy is going to
10:45:34 20 trial.
10:45:36 21 It does not vindicate the double jeopardy
10:45:40 22 protection to say, "Oh, you can go to be subjected to a second
10:45:44 23 trial on those issues, and then maybe you'll get someplace on
10:45:48 24 appeal." Double jeopardy is I don't have to go through that a
10:45:53 25 second time.
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10:45:54 1 That's what the Schillaci court determined when

10:45:56 2 it issued the injunction. That's why we mentioned it in our
10:46:02 3 memo, but that is an example of this very unusual kind of
10:46:05 4 situation.
10:46:05 5 They keep talking about the delays in the last
10:46:11 6 three years. They are very careful not to talk about the
10:46:15 7 delays from November of 2007 through August of 2012, when
10:46:25 8 Mr. Gates was in court on over fifty occasions, on any one of
10:46:33 9 which he could have been served with a notice of a hearing for
10:46:35 10 a misdemeanor.
10:46:37 11 During many of those occasions, the trial judge
10:46:39 12 asked the DA, "Well, what about these misdemeanors? We're here
10:46:44 13 on a felony hearing. What's going to happen with the
10:46:47 14 misdemeanors?" The assistant district attorney in charge of
10:46:50 15 the case told the judge, "Oh, we aren't interested in those.
10:46:52 16 We aren't interested in those." Well, after five years of
10:46:57 17 declaring no interest in that, the state statute is invoked one
10:47:02 18 year, the federal speedy trial provisions, which are a maximum
10:47:08 19 of five years, kick in, and at that point the charges are dead
10:47:20 20 under the 14th Amendment due process concept.
10:47:23 21 Now, it's the State which is responsible for
10:47:30 22 those delays because they never set the misdemeanors for
10:47:36 23 hearing until almost six years after the original events.
10:47:41 24 There never were any continuances in the misdemeanor case
10:47:45 25 requested because you can't continue something that hasn't been
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10:47:49 1 set.
10:47:50 2 During all that time Mr. Gates was present in
10:47:52 3 St. Tammany Parish, his address was known to the
10:47:56 4 district attorney and the Sheriff's Office. When they finally
10:47:59 5 did, after his felony not guilty verdict, try to set the
10:48:07 6 misdemeanors for hearing the first time, they didn't even try
10:48:11 7 to serve with him a notice at his known address. They used
10:48:20 8 something out of the woodwork or something, but they never
10:48:23 9 achieved service, when his address was known to and had been
10:48:27 10 reported to them.
10:48:28 11 So, the bad faith, the cause of the delays are
10:48:33 12 not Mr. Gates' causation; it's the State's.
10:48:38 13 THE COURT: All right. Sir, your time is up. Thank
10:48:41 14 you.
10:48:42 15 RULING BY THE COURT
10:48:42 16 THE COURT: Okay. I'm going to issue a written ruling,
10:48:51 17 but I'm going to state now that I'm going to deny the
10:48:54 18 plaintiff's motion, which is Record Document 240, the
10:48:57 19 plaintiff's motion for injunction and to lift stay, essentially
10:49:04 20 for the same reasons that Judge Duval had stated previously,
10:49:10 21 that the fact that the status of the case is still the same,
10:49:24 22 essentially, as when Judge Duval dealt with this earlier, in
10:49:29 23 that there are pending state charges, including DWI and, in
10:49:35 24 particular, the resisting arrest charge against Mr. Gates in
10:49:41 25 state court that preclude this court from going forward with
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10:49:51 1 the civil trial, the civil matter as long as those state
10:49:57 2 charges have not been finally resolved one way or another under
10:50:02 3 the Heck versus Humphrey doctrine, which I think is directly
10:50:07 4 applicable here.
10:50:09 5 Secondly -- that's Record Document 240.
10:50:14 6 Record Document 243 is the defendants' motion to lift the stay
10:50:16 7 for the purpose of dismissing the case. I'm going to grant
10:50:20 8 that motion. So I'm lifting the stay solely for the purpose of
10:50:27 9 entertaining the defendants' motion to dismiss this action
10:50:34 10 essentially for plaintiff's failure to prosecute.
10:50:40 11 I do note that the plaintiff's opposition to this
10:50:44 12 motion, which is Record Document 249, is essentially eight
10:50:58 13 pages plus a signature page, eight pages long, does not cite to
10:51:03 14 a single case, not a single authority, and does not respond in
10:51:10 15 any way to any of the defendants' legal arguments as to why
10:51:14 16 this case should be dismissed based on the plaintiff's conduct
10:51:19 17 in this matter.
10:51:21 18 In determining whether the court should dismiss
10:51:41 19 the plaintiff's 1983 suit with prejudice pursuant to
10:51:45 20 Federal Rule of Civil Procedure 41(b) for failure to prosecute,
10:51:49 21 the Court may, in its discretion, dismiss any action based on
10:51:54 22 the failure of the plaintiff to prosecute or to comply with any
10:51:58 23 order of the court. In determining whether dismissal with
10:52:03 24 prejudice is warranted for failure to prosecute, courts should
10:52:09 25 consider one or more of three so-called aggravating factors and
OFFICIAL TRANSCRIPT
17-30519.2760
53
10:52:14 1 whether any of those factors are present.

10:52:16 2 The first factor is whether there has been delay
10:52:18 3 attributable directly to the plaintiff rather than his
10:52:24 4 attorney. In this case, for the reasons that have been stated
10:52:28 5 here today, it's clear to the Court that Mr. Gates, for
10:52:34 6 whatever reason, has been the sole cause of the delay
10:52:40 7 attributable to this matter by failing and refusing to respond
10:52:47 8 to a state court-issued warrant for his arrest, failing to
10:52:52 9 appear to answer to those pending state court charges, and
10:52:59 10 presenting any defenses he may have to those charges.
10:53:04 11 In fact, being, obviously, a fugitive here as of
10:53:09 12 today, a state court fugitive, I was pretty taken aback by the
10:53:19 13 fact that Mr. Hollister says he doesn't even know where his
10:53:22 14 client resides or is at the present time. He may not even be
10:53:27 15 in the state or in the United States or maybe not even in this
10:53:31 16 country. He claims not to have an address for him or even a
10:53:35 17 phone number for his own client. So the delay is directly
10:53:41 18 attributable to the plaintiff, Mr. Gates, not his attorneys or
10:53:45 19 anyone else.
10:53:45 20 Secondly, there has been obvious and actual
10:53:48 21 prejudice to all of these defendants in this case by having to
10:53:53 22 contend with or pay attorneys, spend time and money over some
10:54:00 23 number of years here now in defending and responding to this
10:54:05 24 litigation.
10:54:06 25 Thirdly, it's pretty obvious to the Court that
OFFICIAL TRANSCRIPT
17-30519.2761
54
10:54:14 1 the delay, the conduct of Mr. Gates was intentional. There is
10:54:20 2 no other way to explain his conduct here.
10:54:25 3 The Fifth Circuit has cautioned that dismissal
10:54:29 4 with prejudice is reserved for the most egregious
10:54:34 5 circumstances. I think that certainly fits the description of
10:54:37 6 what's going on in this case.
10:54:41 7 The plaintiff's underlying 1983 suit has been
10:54:47 8 pending since 2007, 2008 solely because the plaintiff has
10:54:53 9 failed to resolve his underlying state court proceedings. So
10:55:03 10 for those reasons, I'm going to grant the defendants' motion
10:55:10 11 to -- after reopening the case or lifting the stay, I'm
10:55:16 12 dismissing the case pursuant to Rule 41(b).
10:55:18 13 All right. I said I'm going to issue a written
10:55:21 14 ruling and I probably will, but I've essentially stated my
10:55:24 15 reasons on the record, so I may or may not issue written
10:55:28 16 reasons.
10:55:30 18 THE COURT: Thank you. Court stands adjourned.
10:55:33 19 THE DEPUTY CLERK: All rise.
20 (WHEREUPON, at 10:55 a.m., the proceedings were
21 concluded.)
22 * * *
23
24
25
OFFICIAL TRANSCRIPT
17-30519.2762
55
1 REPORTER'S CERTIFICATE
2
3 I, Cathy Pepper, Certified Realtime Reporter, Registered
4 Merit Reporter, Certified Court Reporter in and for the State
5 of Louisiana, Official Court Reporter for the United States
6 District Court, Eastern District of Louisiana, do hereby
7 certify that the foregoing is a true and correct transcript to
8 the best of my ability and understanding from the record of the
9 proceedings in the above-entitled and numbered matter.
10
11
12 s/Cathy Pepper
13 Cathy Pepper, CRR, RMR, CCR
Certified Realtime Reporter
14 Registered Merit Reporter
Official Court Reporter
15 United States District Court
Cathy_Pepper@laed.uscourts.gov
16
17
18
19
20
21
22
23
24
25
OFFICIAL TRANSCRIPT
17-30519.2763
1
28 [1] - 4:8 agree [2] - 21:15, 48:2

' A
2810 [1] - 2:9 45:23 arguments [5] - 5:14,
2950 [1] - 2:18 agreed [3] - 11:21, 8:12, 18:10, 28:24,
'13 [1] - 36:5 a.m [1] - 54:20 14:21, 14:23 52:15
A.M [1] - 1:6
3 ahead [8] - 8:11, 10:3, arises [1] - 9:7
0 aback [1] - 53:12 10:17, 11:9, 23:7, arising [2] - 9:18,
ABBOTT [1] - 2:7 34:25, 43:2 48:12
36 [1] - 4:9 ability [2] - 44:22, 55:8 AIDED [1] - 3:13 arrest [31] - 7:11,
07-6983 [2] - 1:5, 5:10 3600 [1] - 3:5 able [1] - 43:23 AL [1] - 1:7 7:21, 8:2, 8:5, 9:16,
3RD [1] - 2:5 above-entitled [1] - al [1] - 5:11 10:19, 13:6, 13:12,
1 55:9 ALISSA [1] - 3:4 13:18, 14:3, 14:17,
4 absolute [1] - 10:20 allegation [4] - 40:23, 15:4, 15:22, 16:23,
1 [1] - 24:15 absolutely [2] - 40:2, 40:25, 41:6, 41:14 19:13, 19:19, 21:3,
1001 [1] - 2:13 47:22 alleged [4] - 13:18, 21:9, 22:15, 27:3,
40 [1] - 4:10
103 [1] - 2:13 according [1] - 19:15 15:25, 16:7, 17:3 32:19, 33:16, 39:20,
41 [1] - 44:22
10:55 [1] - 54:20 achieved [1] - 51:9 allegedly [1] - 37:6 41:1, 41:3, 46:20,
41(b [2] - 6:15, 52:20
11 [2] - 47:8, 47:9 acquit [3] - 14:3, ALLISON [1] - 3:4 48:12, 49:6, 49:11,
41(b) [1] - 54:12
1100 [1] - 2:17 33:11, 38:17 allowed [1] - 32:21 51:24, 53:8
42 [1] - 4:11
12 [1] - 47:13 acquittal [1] - 31:6 alluded [1] - 37:10 arrived [2] - 45:24,
43 [1] - 4:12
121 [1] - 29:5 acquitted [2] - 7:23, almost [4] - 11:15, 48:18
48 [1] - 4:13
13-6425 [2] - 1:5, 5:11 20:1 21:3, 26:8, 50:23 Article [1] - 19:8
1400 [1] - 2:22 Act [1] - 20:5 amended [2] - 35:16, ascertain [1] - 31:4
5 Action [1] - 5:10 39:2 Ashe [4] - 30:20,
14th [1] - 50:20
15 [1] - 33:20 action [2] - 52:9, Amendment [1] - 31:12, 32:4, 32:5
16 [4] - 1:6, 5:3, 32:3, 500 [1] - 3:9 52:21 50:20 aspect [1] - 12:18
43:10 504 [1] - 3:10 ACTION [1] - 1:5 answer [4] - 7:9, asserted [1] - 36:4
1885 [1] - 2:5 51 [1] - 4:14 actual [2] - 46:1, 53:20 30:13, 36:18, 53:9 assistant [3] - 36:22,
190 [1] - 2:13 578 [1] - 19:8 add [1] - 35:24 ANTONIO [1] - 1:23 36:25, 50:14
1983 [5] - 44:5, 44:14, 589-7779 [1] - 3:10 addition [1] - 44:22 anyway [2] - 6:10, assuming [2] - 34:18,
46:14, 52:19, 54:7 address [10] - 26:19, 24:5 38:5
6 26:24, 27:16, 27:20, apologize [1] - 10:12 AT [2] - 1:15, 2:16
27:25, 28:14, 51:3, attached [2] - 11:19,
2 Appeal [2] - 34:1,
24:14
51:7, 51:9, 53:16 34:18
6 [2] - 4:5, 22:25 addressed [2] - 43:6, attachment [4] - 22:4,
appeal [3] - 34:11,
200 [1] - 29:5 613 [1] - 1:15 45:4 22:14, 22:23, 36:5
37:25, 49:24
2006 [8] - 7:12, 19:6, 650 [1] - 2:8 adjourned [1] - 54:18 attachments [1] -
appear [4] - 22:17,
19:21, 23:10, 25:2, 68031 [1] - 1:19 adjudicated [1] - 23:21, 24:4, 53:9 22:24
32:4, 32:9, 43:11 43:12 APPEARANCES [3] - Attorney [1] - 39:24
2007 [5] - 19:7, 19:14, 7 admissibility [1] - 1:13, 2:1, 3:1 ATTORNEY [2] - 1:15,
19:22, 50:7, 54:8 31:5 applicable [1] - 52:4 2:16
2008 [2] - 18:25, 54:8 admit [2] - 13:17, 32:1 apply [6] - 13:25, attorney [16] - 5:25,
70011 [1] - 2:23
201 [1] - 3:4 admitted [1] - 24:10 29:19, 31:4, 31:8, 15:15, 19:6, 19:15,
701 [1] - 1:23
2012 [5] - 14:12, 20:2, admittedly [1] - 25:24 32:5, 44:23 36:22, 36:23, 36:24,
70130 [2] - 2:9, 3:10
27:24, 49:9, 50:7 advance [1] - 9:25 appreciate [2] - 25:18, 36:25, 38:25, 39:8,
70163 [1] - 2:18
2013 [9] - 8:9, 18:3, adverse [1] - 14:6 34:6 40:17, 40:21, 42:4,
70170 [1] - 3:5
20:4, 20:21, 22:5, adversely [1] - 13:24 appreciation [2] - 50:14, 51:4, 53:4
70433 [1] - 1:24
22:7, 23:9, 24:10, advocate [1] - 41:4 26:6, 26:7 Attorney's [3] - 19:17,
70434 [1] - 2:14
25:3 affected [1] - 43:25 appropriate [3] - 23:15, 39:19
2014 [1] - 36:6 70471 [2] - 1:16, 1:20
affirmed [1] - 45:1 11:16, 33:22, 45:7 ATTORNEY'S [1] -
2017 [2] - 1:6, 5:3 70804 [1] - 2:5 1:22
afield [1] - 24:1 area [1] - 25:24
225-3 [1] - 14:12 afterwards [2] - 41:1, argue [1] - 5:16 attorneys [5] - 15:16,
22nd [1] - 36:22 8 42:2 argued [2] - 30:24, 17:24, 37:1, 53:18,
240 [2] - 51:18, 52:5 aggravated [12] - 31:1 53:22
242 [1] - 21:25 8288 [1] - 2:22 7:22, 13:19, 14:1, arguing [3] - 5:25, attributable [5] -
242-1 [1] - 22:3 14:3, 20:1, 29:12, 28:18, 29:14 45:21, 45:23, 53:3,
243 [1] - 52:6 53:7, 53:18
9 32:2, 32:14, 32:16, argument [15] - 5:19,
August [3] - 22:7,
249 [1] - 52:12 32:23, 33:12, 38:18 7:5, 7:7, 8:20, 9:25,
25 [2] - 4:6, 41:10 aggravating [1] - 10:3, 18:12, 22:13, 36:5, 50:7
26 [1] - 4:7 94005 [1] - 2:4 52:25 29:9, 31:10, 36:3, authenticated [1] -
27 [2] - 14:12, 49:9 9:30 [1] - 1:6 ago [2] - 43:11, 46:21 37:14, 41:23, 43:3, 17:4
OFFICIAL TRANSCRIPT
17-30519.2764
2
authorities [1] - 34:15 bloodwork [1] - 34:21 10:21, 10:23, 11:23, chain [1] - 15:24 43:24, 53:16
authority [4] - 11:25, BON [1] - 1:15 11:24, 14:14, 14:15, change [1] - 44:17 clear [5] - 14:5, 36:10,
12:7, 49:18, 52:14 bond [4] - 21:21, 23:1, 14:18, 15:3, 15:5, changed [1] - 12:10 45:6, 47:20, 53:5
authorized [1] - 16:4 23:20, 39:25 15:10, 15:21, 18:13, charge [28] - 7:10, CLERK [3] - 5:7, 5:10,
available [1] - 15:16 bother [1] - 16:17 18:14, 21:5, 23:14, 7:11, 7:20, 7:22, 8:1, 54:19
AVENUE [1] - 3:4 BOULEVARD [1] - 24:14, 24:24, 24:25, 8:2, 9:8, 9:9, 9:16, Clerk [1] - 47:9
avenues [1] - 34:13 2:22 25:1, 25:9, 26:22, 10:19, 13:19, 14:3, Clerk's [3] - 21:19,
avoid [1] - 48:22 BOX [2] - 2:4, 2:22 29:4, 31:3, 31:7, 15:11, 19:13, 19:20, 39:20, 39:21
avoided [1] - 28:21 BP [1] - 43:16 31:12, 31:14, 32:2, 20:1, 21:2, 21:3, client [13] - 7:9, 8:6,
avoiding [1] - 24:9 branch [2] - 29:15 32:5, 35:20, 36:13, 31:16, 31:24, 32:3, 21:10, 22:13, 22:20,
aware [6] - 7:23, 7:24, brief [8] - 5:22, 9:21, 37:2, 37:4, 38:5, 38:18, 40:1, 48:12, 24:2, 24:9, 26:13,
21:7, 21:8, 44:16 45:3, 45:12, 45:14, 39:15, 40:20, 40:24, 50:14, 51:24 26:18, 42:5, 42:7,
45:16, 45:18 41:3, 41:22, 42:17, charged [2] - 29:17, 53:14, 53:17
43:3, 44:9, 44:10, 33:12
B briefed [1] - 47:17
44:18, 44:21, 44:25,
clients [1] - 48:1
briefing [1] - 9:24 charges [24] - 6:24, CNA [2] - 41:9, 41:11
bring [6] - 15:4, 19:11, 45:6, 45:7, 45:16, 7:2, 7:4, 7:9, 7:13, Code [2] - 19:8, 22:25
B-275 [1] - 3:9 22:11, 24:16, 32:24, 46:7, 46:10, 46:14, 7:14, 7:15, 17:20, colleague [1] - 32:25
bad [1] - 51:11 39:20 47:3, 47:14, 47:16, 19:6, 21:5, 22:7, colleagues [1] - 5:19
Bagwell [1] - 47:16 bringing [2] - 16:9, 47:23, 48:4, 48:25, 32:20, 33:4, 33:16, collection [1] - 16:16
BAKER [1] - 3:3 49:3 49:6, 49:12, 49:16, 39:11, 41:2, 41:5, COLLINGS [29] - 1:18,
bar [2] - 10:20, 31:7 50:15, 50:24, 51:21, 44:2, 44:15, 50:19, 5:17, 25:12, 25:17,
brought [4] - 37:24,
BARBIER [1] - 1:10 52:7, 52:14, 52:16, 51:23, 52:2, 53:9, 25:24, 26:12, 28:13,
38:4, 38:5, 38:10
barred [1] - 13:13 53:4, 53:21, 54:6, 53:10 28:16, 29:20, 30:1,
building [4] - 36:8,
based [4] - 8:25, 54:11, 54:12 CHARLES [1] - 3:4 30:6, 32:14, 32:24,
43:12, 43:20, 43:23
18:13, 52:16, 52:21 cases [9] - 10:2, 21:4, charm [1] - 29:1 33:3, 34:10, 35:10,
bum [3] - 33:8
basic [1] - 49:13 21:16, 30:9, 30:11, Chick [1] - 40:15 35:14, 35:21, 35:25,
bunch [1] - 26:9
basis [4] - 7:8, 9:11, 30:19, 31:2, 35:4, chief [3] - 14:14, 15:3, 36:8, 36:14, 42:19,
Bush [6] - 9:19, 9:20,
12:10, 14:20 47:19 38:5 43:3, 43:15, 43:18,
10:22, 44:8, 44:10,
basket [1] - 24:23 casual [2] - 49:2, 49:4 chips [1] - 31:20 43:23, 47:7, 48:7,
44:17
BATON [1] - 2:5 CATHY [1] - 3:8 choice [1] - 13:11 54:17
butchering [1] - 30:20
BEARMAN [1] - 3:3 Cathy [2] - 55:3, 55:13 choosing [1] - 13:10 Collings [14] - 5:17,
BY [11] - 1:18, 1:22,
beaten [1] - 48:20 Cathy_Pepper@laed chose [2] - 13:21, 25:11, 25:13, 28:12,
2:4, 2:8, 2:12, 2:21,
became [2] - 19:21, .uscourts.gov [1] - 29:17 33:7, 33:9, 35:24,
3:4, 3:12, 3:13, 4:14,
45:2 55:15 Chuck [5] - 5:21, 37:10, 37:16, 37:22,
51:15
BEFORE [1] - 1:10 cathy_Pepper@laed. 40:16, 40:17, 40:21 37:25, 38:19, 43:2,
BYRON [1] - 2:8
begin [1] - 6:21 uscourts.gov [1] - Circuit [9] - 9:17, 48:10
beginning [1] - 23:14 3:11 10:25, 11:3, 14:24, COLLINGS................
C causation [1] - 51:12
behalf [4] - 5:17, 5:21, 18:6, 34:7, 38:13, ........................ [4] -
25:13, 41:2 caused [2] - 16:10, 45:1, 54:3 4:6, 4:8, 4:11, 4:12
belief [1] - 27:23 C/W [1] - 1:5 46:17 circumstances [1] - COLUMBIA [1] - 1:23
bench [3] - 22:4, 24:3, calculate [1] - 19:9 cautioned [1] - 54:3 54:5 coming [1] - 28:18
39:23 CALDWELL [1] - 3:3 CCR [2] - 3:8, 55:13 citation [3] - 9:23, comments [1] - 5:22
benefit [1] - 47:13 calibration [1] - 16:5 CENTRE [1] - 2:17 10:5, 10:10 committed [1] - 38:20
BENSON [1] - 1:18 CALLED [1] - 5:4 cert [1] - 15:1 cite [2] - 10:9, 52:13 communicate [1] -
BERKOWITZ [1] - 3:3 cannot [1] - 44:13 certain [3] - 28:8, cited [11] - 9:20, 10:2, 27:18
best [2] - 46:4, 55:8 capacities [1] - 40:19 49:14 18:14, 19:14, 24:14, communicating [1] -
between [1] - 21:2 capacity [3] - 35:15, certainly [3] - 11:6, 30:21, 45:3, 45:11, 40:3
beyond [2] - 13:15, 35:22, 36:24 22:20, 54:5 45:14, 45:17, 49:16 company [4] - 19:16,
17:16 CAPITAL [1] - 1:19 CERTIFICATE [1] - cites [3] - 29:4, 29:21 19:19, 41:8, 41:12
bifurcation [1] - 21:2 car [2] - 48:17, 48:19 55:1 citing [1] - 10:1 Company [1] - 9:15
big [1] - 28:11 care [1] - 22:21 certification [3] - 16:3, City [1] - 35:17 completely [1] - 32:5
Bill [2] - 19:10, 19:21 careful [1] - 50:6 16:6, 34:22 Civil [2] - 5:10, 52:20 comply [2] - 32:10,
bill [1] - 19:12 CARL [1] - 1:10 CERTIFIED [1] - 3:8 civil [10] - 9:7, 9:10, 52:22
billed [1] - 19:13 carrier [2] - 41:9, Certified [3] - 55:3, 10:20, 11:24, 23:24, computer [1] - 25:22
billing [2] - 21:2, 21:3 41:11 55:4, 55:13 25:6, 45:2, 52:1 COMPUTER [1] - 3:13
billions [4] - 43:13, CARY [1] - 1:22 certify [1] - 55:7 CIVIL [1] - 1:5 COMPUTER-AIDED
43:18, 43:24 Cary [1] - 36:21 Chad [2] - 33:7, 33:9 claim [4] - 41:20, [1] - 3:13
bills [1] - 41:15 case [83] - 5:9, 6:7, CHADWICK [1] - 1:18 43:16, 44:6, 44:14 concept [2] - 49:13,
blood [4] - 15:25, 6:9, 6:15, 8:7, 9:10, Chadwick [2] - 5:17, claims [6] - 23:24, 50:20
16:1, 16:14, 16:19 9:18, 10:5, 10:9, 25:13 34:8, 35:21, 43:13, concerted [1] - 37:6
OFFICIAL TRANSCRIPT
17-30519.2765
3
concluded [2] - 22:8, 10:7, 10:9, 11:4, 35:6, 35:12, 35:19, December [5] - 8:9, 5:10, 54:19
54:21 12:19, 12:20, 14:25, 35:23, 36:7, 36:9, 22:5, 29:22, 30:7, described [1] - 48:12
conclusion [2] - 15:21, 18:7, 28:11, 36:15, 36:17, 37:3, 30:24 description [2] - 27:1,
23:17, 24:19 29:2, 31:21, 31:22, 37:17, 38:7, 38:11, decide [2] - 8:25, 14:6 54:5
conduct [6] - 29:18, 33:3, 33:18, 34:1, 38:24, 39:3, 39:5, decided [7] - 10:25, determined [2] -
29:19, 46:18, 52:16, 34:8, 34:18, 36:6, 39:7, 39:10, 39:24, 12:1, 12:3, 13:24, 17:15, 50:1
54:1, 54:2 37:10, 38:6, 43:7, 40:4, 40:6, 40:10, 14:1, 23:16, 24:13 determining [2] -
confront [1] - 17:13 43:21, 45:11, 47:9, 40:12, 40:16, 40:23, declaring [1] - 50:17 52:18, 52:23
consequences [1] - 48:4, 49:12, 52:21, 41:15, 42:18, 42:21, declined [1] - 18:19 devoted [1] - 49:9
24:7 53:5, 53:25, 55:4, 43:14, 43:17, 43:21, deep [1] - 30:1 die [1] - 46:5
consider [7] - 12:18, 55:5, 55:6, 55:14, 47:6, 48:6, 48:8, defend [2] - 15:12, difference [1] - 23:13
33:10, 33:11, 38:17, 55:15 48:24, 51:13, 51:15, 17:14 different [10] - 6:5,
45:19, 47:3, 52:25 court [61] - 6:11, 6:25, 51:16, 54:18 defendant [12] - 7:15, 11:20, 21:13,
considered [4] - 8:16, 10:14, 11:12, 11:13, Court's [1] - 48:23 31:16, 31:25, 35:8, 29:9, 29:11, 29:12,
12:20, 31:23, 32:13 11:17, 11:23, 11:25, court-issued [1] - 35:9, 35:16, 35:20, 31:25, 43:5
considering [2] - 12:8, 12:23, 14:21, 53:8 36:11, 46:1, 47:5, direction [1] - 23:1
12:15, 45:19 14:23, 14:25, 17:18, COURT...................... 47:9, 47:10, 47:12 directly [5] - 40:6,
consolidated [1] - 18:4, 18:5, 18:10, ........... [1] - 4:14 defendant's [1] - 46:4 45:21, 52:3, 53:3,
5:10 18:15, 18:19, 18:23, courthouse [1] - 45:8 DEFENDANTS [1] - 53:17
constitutional [2] - 19:2, 19:3, 20:16, courtroom [1] - 26:10 1:18 disappearance [1] -
12:22, 24:20 22:14, 23:18, 24:13, courts [3] - 18:16, defendants [6] - 12:5, 16:2
construe [1] - 11:5 26:25, 27:7, 27:8, 37:25, 52:24 31:14, 37:2, 46:2, disconnected [1] -
contacted [2] - 8:15, 29:7, 31:9, 33:22, COVINGTON [2] - 48:1, 53:21 32:19
8:18 33:24, 34:4, 34:14, 1:24, 2:14 defendants' [6] - 6:14, discretion [2] - 48:4,
contains [1] - 22:25 34:24, 36:7, 36:11, create [1] - 48:23 22:1, 52:6, 52:9, 52:21
contend [1] - 53:22 36:13, 37:13, 37:15, created [1] - 44:18 52:15, 54:10 discuss [1] - 45:3
39:12, 42:11, 42:13, credibility [1] - 15:9 defending [1] - 53:23
contention [2] - 7:1, discussed [2] - 45:12,
44:21, 45:6, 45:18, credit [1] - 43:15 defense [4] - 14:15,
7:3 45:15
46:19, 49:18, 50:1, Criminal [1] - 19:9 15:11, 17:18, 19:1
contest [4] - 22:17, disentitlement [1] -
50:8, 51:25, 52:18, criminal [6] - 6:12,
24:5, 27:1 defenses [1] - 53:10 47:16
52:23, 53:8, 53:9, 6:24, 9:8, 9:9, 11:12,
continuances [1] - defer [3] - 5:19, 30:2, dismiss [10] - 6:15,
53:12, 54:9, 54:18 37:12
50:24 36:14 42:20, 42:23, 43:4,
COURT [128] - 1:1, critical [1] - 15:3
continue [2] - 46:10, defines [1] - 49:12 44:24, 47:13, 48:4,
3:8, 5:4, 5:8, 5:12,
50:25 CRR [2] - 3:8, 55:13 definitely [1] - 46:9 52:9, 52:18, 52:21
5:23, 6:1, 6:4, 6:20,
CONTINUED [2] - 2:1, current [5] - 35:7, degree [1] - 17:12 dismissal [5] - 45:2,
7:3, 7:13, 7:18, 7:23,
3:1 35:8, 35:15, 36:23, delay [9] - 16:9, 45:21, 45:9, 45:20, 52:23,
8:4, 8:11, 8:18, 8:24,
continues [1] - 32:11 38:24 45:23, 46:4, 46:17, 54:3
9:5, 9:20, 9:24, 10:5,
convict [4] - 15:19, custody [2] - 15:25, 53:2, 53:6, 53:17, dismissed [3] - 7:8,
10:8, 10:14, 10:17,
33:11, 34:24, 38:17 26:6 54:1 21:16, 52:16
10:22, 10:25, 11:3,
convicted [2] - 34:18, delayed [1] - 46:2 dismissing [2] - 52:7,
11:6, 11:9, 11:20,
34:19
12:7, 12:13, 12:25, D delays [4] - 50:5, 50:7, 54:12
convince [1] - 30:16 50:22, 51:11 dispositive [1] - 34:10
13:3, 13:8, 13:17,
convinced [2] - 15:6, deliberate [1] - 13:11 dissent [1] - 31:7
13:23, 14:7, 14:9, DA [4] - 27:25, 46:11,
34:19 deliberately [1] - District [9] - 19:17,
14:21, 14:24, 15:12, 47:8, 50:12
CORPORATE [1] - 28:21 23:15, 36:22, 39:19,
17:8, 17:17, 17:20, DA's [4] - 30:2, 36:14,
2:12 demeanor [1] - 17:2 39:24, 49:17, 55:6,
17:23, 18:1, 18:4, 36:15, 41:4
correct [6] - 9:2, denied [9] - 14:25, 55:15
18:9, 18:23, 19:23, damage [1] - 15:10
13:19, 36:8, 39:9, 17:22, 18:4, 18:5, DISTRICT [4] - 1:1,
20:5, 20:8, 20:10, dances [1] - 35:3
41:16, 55:7 18:6, 18:8, 20:21, 1:1, 1:11, 1:22
20:13, 20:23, 21:6, date [5] - 20:18, 21:3,
correctly [3] - 28:23, 21:15, 22:12, 23:3, 37:21, 46:3 district [13] - 19:6,
21:21, 39:22, 49:7
33:18, 45:17 23:7, 23:12, 24:1, deny [2] - 43:8, 51:17 22:5, 36:22, 36:23,
dating [1] - 7:12
COTTEN [1] - 2:7 25:7, 25:14, 25:20, Department [1] - 36:24, 36:25, 37:1,
DAVID [1] - 2:4 38:25, 39:8, 46:19,
counsel [5] - 17:25, 26:9, 26:13, 26:15, 40:22
days [2] - 14:15, 15:18 49:18, 50:14, 51:4
22:20, 42:1, 42:9, 26:18, 26:20, 26:23, DEPARTMENT [1] -
dead [2] - 16:8, 50:19 DIVISION [1] - 2:3
44:8 27:3, 27:6, 27:11, 2:3
deal [2] - 12:23, 24:12 doctrine [2] - 47:16,
country [1] - 53:16 27:13, 27:16, 27:20, deputies [4] - 25:13,
dealt [2] - 31:5, 51:22 32:9, 35:22, 48:17 52:3
couple [1] - 6:21 27:22, 28:2, 28:5,
decade [3] - 30:12, Deputy [2] - 48:16, Document [9] - 14:12,
course [1] - 20:18 28:9, 28:15, 29:8,
44:1, 44:3 48:18 21:25, 22:3, 29:5,
Court [40] - 6:4, 6:11, 29:23, 30:4, 32:13,
deceased [1] - 46:8 DEPUTY [3] - 5:7, 51:18, 52:5, 52:6,
6:13, 8:15, 9:23, 32:21, 33:2, 34:5,
OFFICIAL TRANSCRIPT
17-30519.2766
4
52:12 33:11, 38:17 22:2 54:3 fugitive [13] - 22:17,

dollars [3] - 43:13, element [2] - 29:16, exhibit [1] - 22:24 fifty [1] - 50:8 26:23, 27:2, 27:4,
43:18, 43:24 38:22 exhibits [1] - 33:15 fighting [3] - 15:7, 28:17, 41:25, 42:1,
done [3] - 22:19, 29:3, elements [7] - 13:18, existed [1] - 10:18 32:18, 48:22 44:3, 45:3, 45:9,
34:2 13:20, 29:12, 31:22, existence [1] - 40:20 figure [1] - 7:25 47:15, 53:11, 53:12
DONELSON [1] - 3:3 31:23, 31:24, 33:4 existing [2] - 36:25, file [4] - 17:23, 20:17, FUSSELL [1] - 2:11
double [17] - 12:16, en [1] - 16:16 41:19 24:4, 25:2
12:19, 13:1, 13:24, end [3] - 30:15, 42:16, explain [2] - 11:8, 54:2 filed [10] - 8:14, 17:21, G
17:17, 18:18, 20:9, 44:4 explained [1] - 16:1 17:23, 17:25, 18:1,
20:23, 29:9, 29:13, ENERGY [1] - 2:17 expressed [1] - 26:21 18:9, 18:25, 20:4,
29:15, 29:19, 37:11, Gail [1] - 5:8
enjoin [7] - 6:11, extort [2] - 23:24, 25:6 34:5, 34:6
37:17, 49:13, 49:21, GALLERIA [1] - 2:22
11:25, 12:8, 24:14, eyes [1] - 26:12 finally [3] - 47:15,
49:24 29:7, 35:25, 49:18 51:4, 52:2 game [1] - 31:13
doubt [2] - 13:16, games [1] - 45:10
entered [2] - 9:4, 9:13 F finish [1] - 20:14
gaming [1] - 42:8
17:16 entertaining [1] - 52:9 finished [1] - 23:6
Dowling [3] - 30:19, entire [2] - 49:4, 49:6 First [3] - 18:6, 34:7, Gates [47] - 5:11,
31:5, 31:8 face [1] - 28:19 38:13 5:25, 6:6, 6:25, 7:21,
entitled [1] - 55:9
down [1] - 32:11 fact [20] - 7:4, 12:1, first [18] - 6:18, 6:24, 12:22, 14:1, 14:13,
entity [1] - 35:10
Dretke [1] - 47:17 12:18, 13:14, 13:17, 14:14, 14:18, 14:23,
ESQUIRE [9] - 1:18, 12:4, 12:9, 13:1,
driving [1] - 16:23 17:5, 18:18, 21:13, 15:6, 16:21, 17:13,
1:19, 1:22, 1:23, 2:4, 14:8, 14:15, 15:17,
drunk [2] - 15:7, 49:10 29:15, 31:7, 31:19, 19:5, 19:25, 21:7,
2:8, 2:12, 2:21, 3:4 18:24, 22:6, 22:25,
33:8, 37:13, 37:15, 21:18, 22:9, 25:3,
drunken [1] - 16:23 essentially [5] - 51:19, 31:23, 33:25, 37:4,
45:6, 47:18, 51:21, 26:4, 26:7, 27:9,
drunkenness [1] - 51:22, 52:10, 52:12, 42:6, 48:15, 51:6,
53:11, 53:13 32:3, 32:10, 33:21,
15:22 54:14 53:2
factor [2] - 46:17, 53:2 36:11, 38:21, 39:11,
due [5] - 20:18, 44:7, established [3] - fits [1] - 54:5
factors [6] - 45:18, 39:17, 39:19, 39:23,
44:17, 48:3, 50:20 17:16, 19:18, 48:16 five [9] - 11:16, 22:9,
45:21, 46:25, 47:3, 40:3, 42:8, 45:23,
duplicates [1] - 18:14 Estelle [1] - 45:1 24:16, 24:18, 24:19,
52:25, 53:1 46:13, 46:21, 47:2,
during [5] - 14:13, ET [1] - 1:7 24:23, 41:1, 50:16,
facts [7] - 9:8, 13:22, 47:21, 48:16, 49:10,
34:11, 49:2, 50:11, et [1] - 5:11 50:19
13:24, 30:5, 31:3, 50:8, 51:2, 51:24,
51:2 ethics [1] - 41:23 flee [1] - 15:8
32:7, 44:23 53:5, 53:18, 54:1
Duval [11] - 6:8, 9:11, evading [1] - 24:9 flight [17] - 7:22, 13:7,
factual [2] - 12:10, gates [1] - 33:11
12:2, 12:3, 13:3, event [2] - 43:10, 13:12, 13:19, 14:1,
19:4 GATES [1] - 1:4
28:23, 29:3, 29:10, 43:16 14:3, 15:5, 15:20,
factually [2] - 29:24, Gates' [5] - 18:20,
30:14, 51:20, 51:22 events [3] - 32:3, 20:1, 29:12, 32:3,
48:11 25:9, 37:23, 44:2,
Duval's [1] - 12:4 32:19, 50:23 32:13, 32:14, 32:16,
failed [1] - 54:9 51:12
DWI [15] - 7:11, 7:14, eventually [1] - 37:6 32:23, 33:12, 38:18
failing [2] - 53:7, 53:8 gauntlet [2] - 15:22,
8:1, 13:6, 13:11, evidence [21] - 13:11, followed [1] - 25:15
failure [5] - 6:15, 49:13
13:18, 14:2, 14:17, 13:12, 13:13, 14:5, footnote [1] - 31:6
52:10, 52:20, 52:22, generally [2] - 9:6,
15:4, 19:12, 21:2, 14:18, 14:19, 15:4, FOR [2] - 1:14, 1:18
52:24 26:3
29:18, 33:17, 49:6, 15:24, 16:11, 16:13, force [1] - 10:21
fair [1] - 30:6 given [6] - 11:13, 14:4,
51:23 17:1, 17:9, 31:5, foreclosed [2] - 33:17,
faith [1] - 51:11 47:2, 47:22, 47:25,
32:22, 33:13, 34:20, 49:3
fall [1] - 45:25 48:2
E 37:7, 38:3, 38:4, foregoing [1] - 55:7
Gottardi [1] - 48:17
38:17, 46:6 familiar [1] - 15:1 foreman [1] - 39:21
far [5] - 8:8, 24:1, Gracianette [1] - 37:1
evidentiary [14] - 8:15, forever [1] - 46:11
e-mail [3] - 27:12, 33:23, 38:22 grant [3] - 30:17, 52:7,
8:19, 12:18, 13:14, forged [1] - 19:18
27:18, 27:20 favor [1] - 16:22 54:10
14:20, 15:15, 15:23, form [3] - 12:16, 23:9,
easily [1] - 31:4 Federal [1] - 52:20 granted [1] - 8:17
16:20, 16:24, 18:18, 25:2
EAST [1] - 2:13 federal [7] - 10:14, great [2] - 15:23,
29:15, 31:7, 49:14 former [1] - 37:1
Eastern [1] - 55:6 18:14, 18:17, 24:17, 44:25
exactly [4] - 7:25, forth [1] - 45:18
EASTERN [1] - 1:1 34:4, 34:23, 50:18 Green [2] - 15:21,
29:2, 34:12, 35:14 forum [1] - 37:12
echo [1] - 37:9 felony [13] - 7:22, 49:12
example [4] - 14:2, forward [10] - 9:10,
effect [1] - 41:21 12:9, 12:10, 13:7, ground [1] - 48:20
16:25, 49:17, 50:3 11:23, 23:16, 24:17,
effort [2] - 6:8, 37:6 22:8, 23:17, 24:19, guess [3] - 19:25,
except [1] - 25:18 34:16, 39:16, 44:6,
eggs [1] - 24:23 24:23, 24:25, 29:17, 33:22, 35:20
excessive [1] - 10:21 44:14, 44:19, 51:25
egregious [1] - 54:4 48:15, 50:13, 51:5 guidance [1] - 45:7
exercise [1] - 48:4 four [3] - 26:8, 28:18,
eight [7] - 11:16, felt [2] - 15:2, 15:20 guilty [4] - 14:2, 22:8,
exhausted [4] - 33:21, 46:21
40:18, 40:20, 41:18, few [1] - 36:18 51:5
33:23, 34:9, 37:24 fourth [1] - 31:19
41:20, 52:12, 52:13 Fifth [6] - 9:17, 10:25, guy [1] - 31:19
exhaustion [1] - 34:12 friend [1] - 46:4
either [4] - 7:5, 11:1, 11:3, 14:24, 45:1,
Exhibit [2] - 14:12, front [1] - 29:10
OFFICIAL TRANSCRIPT
17-30519.2767
5
11:5, 11:8, 11:10, 28:7 Judge [13] - 6:8, 9:11,

H I
12:4, 12:9, 12:15, interpret [1] - 11:8 12:2, 12:3, 12:4,
13:1, 13:5, 13:9, Interstate [1] - 32:8 13:3, 28:23, 29:3,
Hail [1] - 30:16 13:20, 14:4, 14:8, idea [2] - 25:17, 34:12 intoxicated [2] - 29:10, 30:14, 43:10,
HAILEY [1] - 2:20 14:11, 14:23, 15:2, identify [1] - 36:19 38:21, 38:22 51:20, 51:22
Hailey [1] - 40:14 15:13, 17:11, 17:19, ignore [6] - 22:15, intoxication [1] - 38:4 judgment [1] - 39:7
HALL [1] - 2:20 17:21, 17:25, 18:3, 22:22, 23:5, 24:3, introduce [2] - 32:22, Judicial [1] - 36:22
handcuff [1] - 48:14 18:5, 18:12, 18:24, 24:6, 24:8 37:7 July [2] - 14:12, 49:9
handcuffed [4] - 20:3, 20:7, 20:9, ignored [2] - 11:15, introduction [1] - jumped [1] - 33:19
48:17, 48:19, 48:20, 20:11, 20:20, 20:25, 24:23 14:19 juridical [1] - 35:10
48:22 21:13, 21:24, 22:23, impacted [1] - 43:19 invalid [1] - 24:7 jurisdiction [3] -
handcuffs [1] - 32:18 23:6, 23:8, 23:14, impediment [1] - invoked [1] - 50:17 42:10, 42:14
handle [1] - 43:21 24:12, 26:14, 26:17, 44:18 irony [1] - 28:16 jurisprudence [3] -
handled [3] - 43:16, 26:19, 26:21, 27:1, important [1] - 36:3 issue [30] - 9:6, 11:20, 18:16, 18:17, 24:18
43:20, 43:22 27:5, 27:10, 27:12, importantly [1] - 44:25 11:22, 12:16, 13:2, jury [13] - 7:24, 13:23,
handy [1] - 29:4 27:14, 27:18, 27:21, improper [1] - 41:24 17:18, 18:15, 18:18, 13:25, 14:5, 15:6,
hard [2] - 10:3, 26:20 27:23, 28:3, 28:6, included [3] - 12:17, 18:23, 20:6, 20:24, 15:8, 16:21, 17:14,
Hawaii [1] - 49:17 48:10, 49:1 20:3, 21:1 23:3, 33:1, 33:10, 17:15, 31:25, 33:10,
hear [4] - 19:2, 19:3, HOLLISTER............... including [1] - 51:23 34:9, 36:12, 36:19, 38:16, 38:23
25:11, 28:12 ........................ [3] - incorrect [1] - 48:11 37:18, 38:9, 38:23, justice [5] - 26:24,
heard [6] - 20:21, 4:5, 4:7, 4:13 independent [1] - 41:17, 41:23, 46:20, 28:18, 45:9, 46:2,
30:12, 30:25, 36:2, Holly [6] - 9:19, 9:20, 37:19 47:17, 48:21, 51:16, 46:3
36:5, 37:13 10:22, 44:8, 44:10, indications [1] - 28:7 54:13, 54:15 JUSTICE [1] - 2:3
HEARD [1] - 1:10 44:17 individual [4] - 32:8, issued [7] - 12:5, 19:5,
home [1] - 16:18
hearing [19] - 8:10, 35:20, 35:22, 41:12 24:6, 25:21, 36:5, K
8:14, 8:15, 8:19, honest [1] - 28:10 individuals [2] - 50:2, 53:8
15:15, 19:1, 20:10, Honor [48] - 5:17, 31:18, 41:21 issues [13] - 8:22,
20:17, 20:18, 20:21, 5:22, 5:24, 6:19, infirmities [1] - 11:14 11:21, 12:22, 12:25, Kallip [1] - 45:16
21:21, 22:7, 30:9, 8:13, 10:12, 10:16, Information [2] - 16:22, 20:25, 36:1, KALLIP [1] - 45:17
39:18, 39:22, 50:9, 17:12, 21:25, 22:24, 19:11, 19:22 37:11, 42:13, 42:20, Katrina [1] - 43:13
50:13, 50:23, 51:6 23:6, 25:12, 25:17, informed [1] - 8:16 49:14, 49:23 keep [1] - 50:5
HEARING [1] - 1:10 26:14, 26:17, 27:5, initial [1] - 14:14 items [2] - 14:5, 17:13 kept [2] - 19:2, 19:3
Heck [12] - 9:6, 10:4, 28:13, 28:22, 30:2, initiate [2] - 32:10, kick [1] - 50:19
30:17, 32:25, 35:2, kind [5] - 10:2, 30:7,
10:13, 10:18, 11:7, 32:15 J
11:10, 11:21, 44:7, 35:14, 35:25, 36:16, injunction [9] - 6:11, 42:20, 42:21, 50:3
44:12, 44:13, 52:3 36:21, 37:9, 37:19, 8:22, 8:23, 9:3, 22:2, kit [1] - 16:16
held [1] - 23:20 38:2, 38:14, 38:15, JACK [1] - 1:7 KITCHENS [1] - 2:8
33:22, 43:6, 50:2,
hereby [1] - 55:6 39:1, 39:13, 40:2, 51:19 Jack [2] - 5:11, 44:10 knowing [1] - 31:3
high [1] - 32:11 40:11, 40:14, 41:8, insist [1] - 39:24 jail [1] - 23:23 knowledge [2] - 31:2,
himself [2] - 34:15, 41:17, 41:24, 42:15, instead [1] - 6:14 January [4] - 19:7, 37:20
39:17 45:4, 45:13, 47:1, 19:10, 19:11, 30:15 known [8] - 24:22,
instigation [1] - 9:15
hindrance [1] - 46:9 47:15, 47:20, 48:3, jeopardy [21] - 12:16, 25:1, 27:25, 38:21,
instituted [4] - 10:19,
history [3] - 6:9, 48:10, 54:17 12:19, 13:1, 13:24, 51:3, 51:7, 51:9
19:6, 19:16, 19:20
19:23, 23:22 HONORABLE [1] - 16:22, 16:24, 17:12, knows [1] - 40:9
insurance [4] - 19:16,
hit [1] - 24:18 1:10 17:18, 18:18, 20:9,
19:19, 41:7, 41:12
hoops [1] - 15:20 20:24, 29:9, 29:13,
holding [2] - 23:23, Insurance [1] - 9:15 L
hope [3] - 5:16, 27:7, 29:16, 29:19, 37:11,
39:25 insured [1] - 41:13
45:17 37:17, 49:13, 49:19,
Hollister [16] - 5:24, insurer [1] - 41:15
hospital [3] - 17:3, 49:21, 49:24 LA [10] - 1:16, 1:20,
6:2, 6:17, 26:13, intelligent [1] - 9:25
17:4, 17:6 John [1] - 5:24 1:24, 2:5, 2:9, 2:14,
26:16, 28:9, 29:14, intends [2] - 5:15,
Hughes [8] - 5:21, JOHN [1] - 1:14 2:18, 2:23, 3:5, 3:10
34:6, 36:9, 37:14, 39:11
40:15, 40:16, 40:17, JONES [1] - 2:11 lab [2] - 16:17, 17:5
37:20, 38:3, 42:23, intentional [4] - 46:17,
40:18, 40:21, 41:7 JR [1] - 2:16 laboratory [1] - 17:3
45:24, 48:8, 53:13 46:18, 46:24, 54:1
Humphrey [7] - 9:6, JUDGE [1] - 1:11 laid [1] - 26:12
HOLLISTER [75] - interest [4] - 23:18,
11:7, 11:11, 11:22, judge [15] - 6:7, 12:2, land [1] - 44:13
1:14, 5:24, 6:3, 6:19, 23:19, 32:9, 50:17
41:3, 44:7, 52:3 17:22, 20:18, 20:22, LARMANN [1] - 2:20
7:1, 7:10, 7:17, 7:20, interested [2] - 50:15,
Hurricane [1] - 43:13 22:5, 23:10, 24:3, last [12] - 11:2, 26:8,
8:3, 8:8, 8:13, 8:21, 50:16
HUVAL [1] - 2:12 25:2, 30:11, 30:13, 30:12, 32:22, 39:15,
9:2, 9:13, 9:22, 10:4, interesting [1] - 19:24
HWY [1] - 2:13 30:17, 38:11, 50:11, 41:8, 41:10, 41:18,
10:6, 10:11, 10:16, interject [1] - 29:18
50:15 41:23, 42:9, 45:25,
10:18, 10:24, 11:1, international [1] -
OFFICIAL TRANSCRIPT
17-30519.2768
6
50:5 Miller [1] - 48:16 moved [2] - 22:6, 47:13

M
late [2] - 24:16, 27:24 Miller's [1] - 48:18 39:16 needed [1] - 5:13
LAW [2] - 1:15, 2:16 MILLING [1] - 1:18 moving [1] - 44:18 needs [1] - 17:9
law [20] - 9:13, 9:14, machine [3] - 16:4, mind [1] - 48:23 MR [131] - 4:5, 4:6, never [19] - 8:9, 8:10,
18:13, 18:14, 29:21, 16:5, 16:7 minutes [1] - 48:9 4:7, 4:8, 4:9, 4:10, 15:24, 15:25, 16:1,
29:23, 30:4, 31:2, mail [3] - 27:12, 27:18, misdemeanor [14] - 4:11, 4:12, 4:13, 16:3, 16:5, 16:6,
31:9, 35:2, 43:3, 27:20 7:10, 7:11, 7:20, 5:17, 5:21, 5:24, 6:3, 16:8, 16:11, 17:4,
43:7, 44:12, 44:15, malpractice [2] - 41:9, 21:4, 22:7, 24:15, 6:19, 7:1, 7:10, 7:17, 24:24, 26:12, 38:23,
44:16, 44:21, 47:3, 41:19 24:24, 25:25, 34:17, 7:20, 8:3, 8:8, 8:13, 39:2, 45:4, 50:22,
47:20, 47:21 man [3] - 25:16, 39:25, 39:11, 40:1, 44:2, 8:21, 9:2, 9:13, 9:22, 50:24, 51:8
lawyer [8] - 20:17, 48:14 50:10, 50:24 10:4, 10:6, 10:11, new [2] - 23:11, 30:9
21:8, 21:10, 21:18, mandate [1] - 12:22 misdemeanors [10] - 10:16, 10:18, 10:24, New [1] - 35:17
22:20, 30:3, 40:4, MANDEVILLE [2] - 11:15, 11:18, 12:24, 11:1, 11:5, 11:8, NEW [5] - 1:6, 2:9,
45:22 1:16, 1:20 23:17, 24:25, 46:12, 11:10, 12:4, 12:9, 2:18, 3:5, 3:10
lawyers [4] - 21:8, MARCH [2] - 1:6, 5:3 50:12, 50:14, 50:22, 12:15, 13:1, 13:5, next [1] - 30:16
21:18, 41:10, 47:25 marshal [1] - 26:1 51:6 13:9, 13:20, 14:4, night [3] - 33:7, 33:9,
least [1] - 46:8 Mary [1] - 30:16 misimpression [1] - 14:8, 14:11, 14:23, 46:14
legal [1] - 52:15 matter [16] - 6:4, 7:5, 48:23 15:2, 15:13, 17:11, nine [2] - 21:3, 22:9
legitimate [3] - 22:13, 8:14, 9:2, 9:7, 12:11, misrepresenting [1] - 17:19, 17:21, 17:25, NO [1] - 1:5
22:21, 24:11 16:10, 18:22, 21:11, 27:8 18:3, 18:5, 18:12, nolle [1] - 46:12
LEMON [1] - 1:23 35:18, 37:13, 46:24, missed [1] - 30:12 18:24, 20:3, 20:7, none [3] - 24:2, 26:10,
lesser [1] - 12:17 52:1, 52:17, 53:7, modified [3] - 9:19, 20:9, 20:11, 20:20, 34:2
letter [2] - 19:17, 55:9 10:20, 11:7 20:25, 21:13, 21:24, nonintoxication [1] -
19:18 matters [1] - 21:22 modify [3] - 11:4, 22:23, 23:6, 23:8, 38:10
level [1] - 37:15 maximum [1] - 50:18 11:7, 44:12 23:14, 24:12, 25:12, normally [1] - 8:16
lift [8] - 6:6, 6:10, 6:14, mayor [1] - 35:18 moment [2] - 32:15 25:17, 25:24, 26:12, NORTH [1] - 2:5
8:25, 22:2, 42:15, McNamara [1] - 40:15 Monday [2] - 33:7, 26:14, 26:17, 26:19, NORTHLAKE [1] -
51:19, 52:6 MCNAMARA [1] - 2:20 33:9 26:21, 27:1, 27:5, 2:12
lifted [1] - 9:3 mean [6] - 11:22, money [1] - 53:22 27:10, 27:12, 27:14,
notation [1] - 22:25
lifting [2] - 52:8, 54:11 11:24, 23:13, 36:7, Montgomery [3] - 27:18, 27:21, 27:23,
note [1] - 52:11
light [1] - 26:4 41:6, 42:20 38:25, 39:1, 39:10 28:3, 28:6, 28:13,
noted [1] - 25:23
meaning [1] - 36:11 28:16, 29:20, 30:1,
likely [1] - 15:7 month [1] - 22:8 nothing [10] - 33:13,
means [1] - 34:12 30:6, 32:14, 32:24,
linger [1] - 46:10 months [4] - 11:16, 33:14, 41:1, 41:24,
MECHANICAL [1] - 33:3, 34:10, 35:10,
Link [1] - 45:11 21:4, 22:9, 36:4 44:16, 47:2, 47:22,
3:12 35:14, 35:21, 35:25,
listen [2] - 42:7, 46:22 morning [9] - 5:13, 47:24, 48:21
memo [4] - 47:4, 36:8, 36:14, 36:16,
litigate [1] - 13:21 5:15, 6:2, 6:5, 6:13, notice [4] - 8:10,
49:17, 50:3 36:21, 37:9, 37:19,
LITIGATION [1] - 2:3 25:12, 25:14, 30:8, 39:21, 50:9, 51:7
memoranda [2] - 38:9, 38:14, 39:1,
litigation [1] - 53:24 36:21 notion [1] - 49:19
33:14, 33:20 39:4, 39:6, 39:9,
live [1] - 26:15 most [3] - 5:19, 41:6, November [8] - 19:5,
memorandum [3] - 39:13, 40:2, 40:5,
lives [3] - 25:16, 54:4 19:10, 19:21, 32:3,
22:1, 22:3, 30:22 40:8, 40:11, 40:14,
26:18, 43:25 motion [39] - 6:6, 6:10, 32:8, 43:10, 50:7
40:17, 40:25, 41:16,
Look [1] - 22:20 MENARD [16] - 1:22, 6:13, 6:14, 9:1, nowhere [1] - 31:8
42:19, 43:3, 43:15,
look [12] - 14:11, 36:16, 36:21, 37:9, 10:12, 11:19, 12:11, Number [2] - 22:3,
43:18, 43:23, 47:7,
21:25, 22:2, 22:23, 37:19, 38:9, 38:14, 14:13, 17:21, 18:9, 24:15
48:7, 48:10, 49:1,
23:2, 23:8, 25:21, 39:1, 39:4, 39:6, 18:24, 19:14, 20:3, number [7] - 9:11,
54:17
30:13, 31:12, 33:20, 39:9, 39:13, 40:2, 20:17, 20:20, 21:1, 21:5, 27:13, 27:14,
multiple [1] - 34:14
44:20, 44:23 40:5, 40:8, 40:11 22:1, 24:14, 28:14, 27:17, 53:17, 53:23
loss [1] - 16:10 Menard [1] - 36:21 30:8, 30:16, 33:19, numbered [1] - 55:9
lost [6] - 24:25, 28:17, MENARD................... 34:5, 34:7, 35:25, N numerous [1] - 18:25
34:7, 34:8, 34:22, ....................... [1] - 42:19, 42:22, 43:4,
4:9 43:8, 44:20, 49:16,
46:6 name [5] - 10:9, 10:23, O
LOUISIANA [3] - 1:1, mention [1] - 49:4 51:18, 51:19, 52:6, 33:7, 33:8, 44:8
1:6, 2:3 mentioned [4] - 11:19, 52:8, 52:9, 52:12, named [2] - 37:2, 39:2
31:22, 33:5, 50:2 54:10 object [1] - 42:8
Louisiana [7] - 16:14, names [1] - 25:6
MERIT [1] - 3:9 MOTION [1] - 1:10 objected [1] - 14:18
18:7, 19:8, 28:2, necessarily [1] -
41:10, 55:5, 55:6 Merit [2] - 55:4, 55:14 motions [5] - 6:5, 38:16 objections [1] - 24:5
merits [1] - 48:24 8:20, 19:1, 19:3, necessary [2] - 13:25, obligation [2] - 42:4,
METAIRIE [1] - 2:23 33:14 15:20 42:7
method [1] - 11:11 move [4] - 42:19, 44:5, need [5] - 19:23, obstacle [1] - 21:12
might [1] - 24:7 44:14, 46:5 35:23, 43:1, 44:23, obstreperously [1] -
OFFICIAL TRANSCRIPT
17-30519.2769
7
15:7 opportunities [1] - 25:21, 33:16, 44:15, 16:21, 41:17, 46:1, 16:18, 34:21
obtained [2] - 9:15, 34:14 51:23, 53:9, 54:8 46:2, 52:19, 52:24, properly [3] - 37:12,
16:14 opportunity [1] - 44:5 people [8] - 23:23, 53:21, 54:4 37:16, 38:6
obvious [3] - 15:5, opposed [1] - 18:17 25:4, 26:9, 31:13, prejudicial [2] - 46:10, proposition [3] - 31:1,
53:20, 53:25 opposite [1] - 32:6 43:19, 46:5, 46:8 46:15 45:12, 45:15
obviously [5] - 15:2, opposition [7] - 22:1, people's [1] - 43:25 preliminarily [1] - 37:9 pros [1] - 46:12
21:7, 21:8, 43:4, 22:3, 30:9, 45:4, PEPPER [1] - 3:8 preliminary [2] - 9:2, prosecute [5] - 6:16,
53:11 47:4, 52:11 Pepper [3] - 55:3, 39:22 52:10, 52:20, 52:22,
occasions [2] - 50:8, oral [2] - 8:19, 41:23 55:12, 55:13 prepared [3] - 17:6, 52:24
50:11 orally [1] - 5:15 per [1] - 41:25 23:10, 39:21 prosecution [9] -
occur [1] - 41:25 order [8] - 8:22, 9:3, perhaps [2] - 7:15, preparing [2] - 23:16, 11:17, 11:25, 13:7,
occurred [2] - 20:2, 13:13, 14:3, 15:19, 28:14 23:19 13:14, 21:15, 24:15,
43:10 22:4, 38:17, 52:23 period [1] - 39:25 present [5] - 38:2, 25:15, 37:5, 49:19
OF [3] - 1:1, 1:10, 2:3 ORDER [1] - 5:4 periods [1] - 23:23 47:1, 51:2, 53:1, protection [1] - 49:22
offense [6] - 12:17, original [1] - 50:23 person [1] - 31:2 53:14 prove [3] - 13:14,
13:21, 29:11, 29:17, originally [1] - 23:10 phone [2] - 27:17, presented [3] - 12:17, 49:10, 49:11
38:20 ORLEANS [5] - 1:6, 53:17 18:15, 18:19 provided [1] - 47:21
offenses [1] - 16:4 2:9, 2:18, 3:5, 3:10 pick [1] - 26:1 presenting [1] - 53:10 provisions [1] - 50:18
offer [1] - 39:18 Orleans [1] - 35:17 picked [1] - 25:22 presumed [1] - 24:20 Puerto [1] - 25:19
office [11] - 30:2, otherwise [1] - 22:17 piece [1] - 17:1 pretty [3] - 20:15, pulled [3] - 25:4, 26:4,
35:13, 36:14, 36:15, outlined [1] - 42:16 PLAINTIFF [1] - 1:14 53:12, 53:25 32:12
36:23, 39:3, 39:4, outnumbered [1] - 6:1 plaintiff [11] - 6:6, prevented [1] - 16:18 pulling [1] - 44:9
39:5, 39:8, 40:9, outstanding [4] - 8:5, 31:11, 33:19, 35:3, previous [8] - 6:7, purpose [3] - 49:5,
41:4 21:9, 22:15, 26:3 45:2, 45:8, 45:22, 12:2, 17:24, 17:25, 52:7, 52:8
OFFICE [2] - 1:22, overlapping [1] - 52:22, 53:3, 53:18, 21:8, 21:18, 35:7, purposes [1] - 42:16
2:22 42:21 54:8 35:19 pursuant [3] - 6:15,
Office [13] - 9:19, override [1] - 42:10 plaintiff's [8] - 6:10, previously [2] - 7:21, 52:19, 54:12
16:18, 19:17, 21:19, overruled [2] - 14:25, 51:18, 51:19, 52:10, 51:20 pursue [3] - 39:11,
23:15, 28:1, 35:8, 47:23 52:11, 52:16, 52:19, problem [3] - 18:21, 41:3, 41:5
35:11, 39:19, 39:20, own [6] - 24:16, 25:19, 54:7 19:4, 28:11 put [20] - 13:11, 14:13,
39:21, 41:4, 51:4 26:18, 33:20, 44:24, play [1] - 45:10 problems [3] - 15:23, 14:14, 14:17, 15:10,
office's [1] - 41:15 53:17 playbook [1] - 28:25 16:20, 16:24 15:17, 15:20, 15:24,
officer [2] - 27:7, pleading [1] - 22:25 procedural [1] - 12:21 16:11, 16:13, 16:22,
29:11 P pleadings [2] - 12:5, procedure [4] - 11:12, 16:23, 17:13, 24:22,
officers [3] - 23:25, 41:7 20:13, 20:14, 20:15 32:18, 42:16, 44:4,
38:20, 48:13 plus [3] - 39:15, 44:1, Procedure [2] - 19:9, 48:17, 49:5
Official [2] - 55:5, P.O [1] - 2:4 52:13 52:20 puts [2] - 29:8, 33:19
55:14 package [1] - 49:14 podium [1] - 6:20 proceed [1] - 11:15 putting [2] - 39:20,
OFFICIAL [1] - 3:8 page [4] - 10:6, 33:20, point [6] - 20:18, 29:6, proceeding [2] - 49:5
official [2] - 35:15, 52:13 33:3, 37:22, 47:20, 11:12, 12:8
PAGE [1] - 4:3
36:24 50:19 proceedings [6] - Q
once [5] - 24:22, pages [4] - 47:5, 52:13 pointed [8] - 28:23, 6:12, 9:4, 29:7, 54:9,
30:16, 33:17, 34:18, PAPALE [1] - 2:21 33:18, 37:16, 38:1, 54:20, 55:9
45:14 papers [1] - 8:14 quash [7] - 17:21,
38:6, 38:15, 38:19, PROCEEDINGS [3] -
one [30] - 7:20, 8:1, Parish [6] - 9:18, 21:9, 20:3, 20:20, 21:1,
39:14 1:10, 3:12, 5:1
8:2, 9:9, 13:1, 15:15, 23:22, 27:22, 28:1, 34:6, 34:7, 34:17
points [1] - 5:20 process [2] - 26:6,
17:4, 19:1, 19:9, 51:3 Quebec [1] - 25:19
poker [1] - 31:13 50:20
19:11, 21:2, 21:13, parish [1] - 23:25 questions [2] - 6:21,
Police [2] - 16:15, produced [4] - 16:1,
21:25, 22:10, 26:21, PARK [1] - 2:12 36:18
16:16 16:3, 16:5, 16:6
27:6, 28:19, 30:11, part [4] - 13:18, 13:20, quote [1] - 33:21
policy [1] - 41:19 PRODUCED [1] - 3:13
31:14, 32:20, 35:4, 23:21, 32:22 polled [1] - 38:23 prolonged [1] - 23:23
40:8, 44:6, 45:5, particular [1] - 51:24 popped [1] - 26:8 prone [1] - 15:8 R
46:8, 48:11, 50:8, past [2] - 6:9, 24:19 position [1] - 10:4 pronounced [1] -
50:17, 52:2, 52:25 pattern [1] - 47:18 POST [1] - 2:22 31:10 radar [1] - 26:8
ONE [1] - 2:22 pay [2] - 39:8, 53:22 POYDRAS [3] - 2:8, pronouncing [1] - raise [5] - 19:25, 23:3,
open [2] - 41:19, pays [1] - 41:15 2:17, 3:9 45:17 34:11, 42:13
41:22 pending [18] - 6:12, practice [2] - 10:14, pronunciation [1] - raised [13] - 12:19,
operative [1] - 32:7 6:25, 7:2, 7:4, 7:5, 23:22 30:20 17:18, 17:19, 18:23,
operator [2] - 16:7, 7:9, 7:25, 8:1, 8:2, preclude [1] - 51:25 proof [1] - 13:15 18:25, 20:6, 36:7,
16:8 8:5, 9:8, 17:20, prejudice [9] - 16:11, proper [3] - 16:14, 36:12, 37:12, 37:13,
OFFICIAL TRANSCRIPT
17-30519.2770
8
37:15, 37:21, 41:23 registered [1] - 55:14 27:24, 28:2, 28:5 ROW [1] - 1:19 24:24, 25:3, 50:22,
RALPH [1] - 2:16 regular [1] - 23:22 resides [2] - 27:9, rudimentary [1] - 31:3 51:1, 51:5
rather [2] - 34:4, 53:3 rehabilitate [1] - 15:3 53:14 Rule [7] - 6:15, 44:22, sets [1] - 45:18
re [2] - 13:7, 31:15 rehashing [1] - 12:3 resisted [1] - 49:11 47:8, 47:9, 47:13, several [1] - 25:4
re-prosecution [1] - reinstitute [1] - 12:11 resisting [26] - 7:11, 52:20, 54:12 Shane [2] - 5:11, 6:6
13:7 reiterate [2] - 36:1, 7:15, 7:21, 8:2, 9:15, rule [5] - 10:18, 11:4, SHANE [1] - 1:4
read [11] - 7:14, 8:5, 37:22 10:19, 13:6, 13:12, 13:9, 31:9, 44:23 shanemgates@msn.
10:2, 14:21, 30:23, rejected [6] - 28:24, 13:18, 14:2, 14:17, ruled [3] - 13:3, 13:5, com [1] - 27:21
30:25, 35:5, 44:23, 29:6, 30:18, 36:2, 15:4, 15:22, 16:23, 20:19 Shaw [1] - 45:1
47:3, 47:6, 49:9 36:6 19:13, 19:19, 21:3, RULING [2] - 4:14, sheet [1] - 5:13
reading [2] - 31:2, related [6] - 6:5, 7:15, 29:11, 29:18, 32:19, 51:15 Sheriff [1] - 41:2
44:11 8:22, 9:7, 9:9, 15:24 33:16, 41:3, 48:12, ruling [3] - 12:4, sheriff [13] - 5:18,
ready [1] - 46:13 releases [1] - 23:24 48:21, 49:6, 51:24 51:16, 54:14 16:15, 21:19, 25:13,
realize [2] - 10:11, relevance [2] - 15:5, resolution [2] - 11:11, rulings [1] - 34:10 35:7, 35:8, 35:12,
11:3 17:11 11:17 run [5] - 15:21, 16:12, 35:15, 35:19, 39:5,
realizing [1] - 42:4 relief [3] - 30:17, 43:9, resolve [3] - 43:23, 16:19, 26:4, 49:13 39:6, 47:7
really [5] - 31:8, 31:18, 45:19 48:24, 54:9 runs [1] - 26:4 Sheriff's [10] - 9:18,
32:25, 44:23, 46:23 remedies [6] - 33:21, resolved [5] - 9:9, 16:18, 28:1, 30:3,
Realtime [2] - 55:3, 33:23, 34:12, 37:23, 21:11, 21:22, 43:12, S 35:8, 35:11, 40:17,
55:13 43:19 52:2 40:22, 41:4, 51:4
REALTIME [1] - 3:8 remedy [5] - 42:12, resources [1] - 26:1 shift [1] - 16:15
respect [6] - 18:20, s/Cathy [1] - 55:12
reason [5] - 11:10, 43:5, 45:8, 45:9, Show [1] - 46:19
24:11, 33:15, 39:15, 47:21 31:10, 43:4, 44:7, sample [2] - 16:14,
show [1] - 42:12
53:6 remember [2] - 46:14, 44:17, 48:3 16:19
shown [2] - 14:9, 25:1
reasonable [2] - 46:15 respond [4] - 24:4, SANDERS [1] - 2:4
side [5] - 5:23, 42:8,
13:15, 17:16 renewed [1] - 41:19 42:23, 52:14, 53:7 save [1] - 34:4
42:18, 42:25, 43:4
reasons [11] - 17:22, reopening [1] - 54:11 responding [1] - saw [3] - 30:7, 30:8,
sign [4] - 5:13, 22:5,
18:7, 18:8, 20:21, report [3] - 17:3, 17:4, 53:23 30:24
25:3
21:17, 21:24, 51:20, 17:5 responsible [1] - scene [2] - 45:24,
sign-in [1] - 5:13
53:4, 54:10, 54:15, reported [1] - 51:10 50:21 48:18
signature [1] - 52:13
54:16 retention [1] - 26:22 Schillaci [4] - 24:13,
REPORTER [3] - 3:8, signed [4] - 5:12, 8:9,
rebut [1] - 47:3 retire [1] - 46:5 30:21, 49:16, 50:1
3:8, 3:9 23:9, 24:3
rebuttal [5] - 14:18, retired [1] - 30:14 SCHMIDT [1] - 2:7
Reporter [7] - 55:3, SIMMONS [6] - 2:21,
15:3, 38:5, 38:7, 55:4, 55:5, 55:13, retry [2] - 17:8, 31:15 SCHNEIDAU [1] - 1:19
5:21, 40:14, 40:17,
38:12 55:14, 55:14 reurged [1] - 37:24 se [1] - 41:25 40:25, 41:16
recalled [1] - 39:23 REPORTER'S [1] - reusing [1] - 13:13 seat [1] - 25:10 Simmons [3] - 5:21,
received [1] - 43:19 55:1 reversed [1] - 38:13 seated [1] - 5:8 40:13, 40:14
recent [1] - 41:6 represent [6] - 35:6, RICHARD [1] - 2:21 second [6] - 6:13, SIMMONS..................
recharging [1] - 12:16 36:23, 38:24, 41:9, Rick [2] - 5:21, 40:14 18:21, 23:8, 49:14, ....................... [1] -
record [7] - 15:18, 42:2, 42:6 Rico [1] - 25:19 49:22, 49:25 4:10
29:4, 36:20, 42:1, representations [1] - rights [5] - 10:20, secondly [4] - 15:9, simple [2] - 27:4,
49:8, 54:15, 55:8 17:15 11:24, 18:20, 24:20, 23:2, 52:5, 53:20 42:12
Record [7] - 14:12, represented [1] - 45:2 see [5] - 23:9, 26:5, simply [5] - 11:22,
29:5, 51:18, 52:5, 40:19 rise [2] - 5:7, 54:19 28:19, 32:9, 49:9 19:24, 21:19, 29:20,
52:6, 52:12 representing [9] - RMR [2] - 3:8, 55:13 seek [2] - 42:1, 42:9 49:17
RECORDED [1] - 3:12 26:23, 26:25, 40:15, ROAD [1] - 2:13 seized [1] - 23:20 simultaneously [2] -
records [4] - 16:3, 40:18, 40:19, 40:21, road [1] - 32:11 seldom [1] - 10:16 20:12, 25:6
16:5, 16:6, 17:6 41:11, 41:12, 41:25 robbed [3] - 31:13, send [1] - 25:21 single [6] - 45:5, 47:5,
red [1] - 26:4 represents [2] - 36:15, 31:18, 31:19 separate [5] - 7:15, 47:9, 47:18, 52:14
reduce [1] - 15:9 41:7 robbery [2] - 31:15, 32:19, 32:20, 33:4 sit [1] - 28:19
Reed [1] - 40:19 request [2] - 8:22, 31:24 September [2] - sitting [3] - 41:20,
reference [1] - 49:2 19:16 RODNEY [1] - 1:7 19:14, 19:22 44:1, 44:9
referred [1] - 12:5 requested [2] - 8:14, Rodney [1] - 5:11 serious [1] - 12:21 situation [4] - 42:3,
refused [3] - 12:7, 50:25 rolled [1] - 28:25 serve [1] - 51:7 42:4, 48:13, 50:4
39:17, 44:6 require [2] - 9:24, 31:9 ROOM [1] - 3:9 served [3] - 8:10, 50:9 six [6] - 11:16, 27:25,
refuses [1] - 26:24 required [3] - 11:12, room [2] - 25:18, SERVICE [1] - 2:13 47:4, 47:5, 50:23
refusing [2] - 19:3, 12:23, 13:10 45:23 service [1] - 51:9 slightly [1] - 29:9
53:7 requires [1] - 13:15 ROUGE [1] - 2:5 set [13] - 8:14, 19:1, smashed [1] - 48:19
Registered [1] - 55:3 reserved [1] - 54:4 ROULE' [1] - 1:15 20:10, 20:17, 20:18, so-called [1] - 52:25
REGISTERED [1] - 3:9 reside [4] - 27:22, route [1] - 16:16 20:20, 21:22, 22:6, sole [1] - 53:6
OFFICIAL TRANSCRIPT
17-30519.2771
9
solely [3] - 49:5, 52:8, 18:19, 18:23, 20:16, successful [1] - 17:14 16:19, 38:6, 38:16 third [2] - 14:16, 46:17
54:8 20:22, 22:10, 22:14, successfully [1] - testified [4] - 14:13, thirdly [1] - 53:25
someday [1] - 46:11 29:7, 33:22, 33:24, 37:6 14:14, 16:8, 17:5 THOMAS [2] - 1:19,
someone [5] - 17:6, 34:13, 34:15, 36:11, sue [2] - 35:17, 47:11 testify [3] - 15:16, 2:12
26:2, 28:17, 33:6, 36:12, 37:12, 37:15, sued [2] - 36:24, 47:11 17:7, 25:5 thousands [6] - 43:13,
40:13 37:23, 37:25, 39:12, suggested [2] - 48:10, testifying [1] - 17:2 43:14, 43:17, 43:18,
someplace [1] - 49:23 42:10, 42:12, 44:15, 49:1 testimony [6] - 15:10, 43:19, 43:24
sorry [1] - 36:19 46:19, 49:18, 50:17, suggesting [1] - 11:13 17:2, 19:15, 19:18, three [13] - 7:13, 7:14,
sort [1] - 26:1 51:17, 51:23, 51:25, suit [5] - 35:16, 39:2, 37:14, 48:15 8:21, 29:1, 31:18,
sounds [1] - 12:2 52:1, 53:8, 53:9, 45:2, 52:19, 54:7 testing [2] - 16:4, 16:5 39:15, 42:9, 45:18,
sparks [1] - 32:9 53:12, 53:15, 54:9 SUITE [5] - 2:9, 2:13, THE [132] - 1:10, 1:14, 45:21, 46:25, 48:9,
speaking [2] - 20:11, State's [6] - 11:14, 2:18, 2:22, 3:5 1:18, 4:14, 5:7, 5:8, 50:6, 52:25
25:6 13:10, 17:15, 24:15, sun [1] - 44:5 5:10, 5:12, 5:23, 6:1, throw [2] - 30:15, 34:2
specific [1] - 11:11 49:5, 51:12 supervisor [1] - 16:15 6:4, 6:20, 7:3, 7:13, thrown [1] - 30:10
specifically [1] - 29:5 States [4] - 28:5, support [2] - 33:21, 7:18, 7:23, 8:4, 8:11, THURSDAY [2] - 1:6,
speculate [1] - 38:9 53:15, 55:5, 55:15 43:7 8:18, 8:24, 9:5, 9:20, 5:3
speed [1] - 6:8 STATES [2] - 1:1, 1:11 supporting [2] - 9:24, 10:5, 10:8, ticket [2] - 19:10,
speeds [1] - 32:11 states [1] - 11:11 18:16, 33:14 10:14, 10:17, 10:22, 19:20
Speedy [1] - 20:5 status [4] - 6:22, 8:4, suppose [1] - 5:15 10:25, 11:3, 11:6, tickets [1] - 19:5
speedy [14] - 16:9, 42:1, 51:21 supposedly [1] - 11:9, 11:20, 12:7, TO [1] - 5:4
18:21, 18:24, 19:4, statute [3] - 22:10, 46:23 12:13, 12:25, 13:3, today [7] - 18:11,
20:5, 20:24, 24:17, 24:16, 50:17 Supreme [10] - 11:4, 13:8, 13:17, 13:23, 29:7, 31:1, 31:11,
28:18, 28:20, 36:12, statutes [1] - 18:13 14:25, 15:21, 18:7, 14:7, 14:9, 14:21, 37:14, 53:5, 53:12
36:19, 37:11, 37:17, stay [14] - 6:6, 6:10, 31:21, 31:22, 34:1, 14:24, 15:12, 17:8, together [2] - 21:5,
50:18 6:14, 8:25, 9:3, 34:8, 45:11, 49:12 17:17, 17:20, 17:23, 42:20
spend [1] - 53:22 11:17, 11:23, 12:12, surrender [5] - 21:11, 18:1, 18:4, 18:9, tomorrow [1] - 46:7
spite [1] - 16:20 22:2, 42:15, 51:19, 21:20, 23:4, 39:17, 18:23, 19:23, 20:5, took [4] - 14:24,
St [9] - 8:6, 9:18, 19:7, 52:6, 52:8, 54:11 42:5 20:8, 20:10, 20:13, 28:25, 34:22, 48:18
20:15, 21:9, 23:22, stayed [2] - 6:7, 9:11 surrendered [2] - 20:23, 21:6, 21:15, touch [1] - 27:11
27:22, 28:1, 51:3 stays [2] - 9:14, 26:3 21:21, 27:4 22:12, 23:3, 23:7, TRACE [1] - 1:19
STENOGRAPHY [1] - surrenders [1] - 34:15 23:12, 24:1, 25:7, traffic [5] - 16:4, 19:5,
ST [1] - 3:4
3:12 sworn [2] - 19:15, 25:14, 25:20, 26:9, 32:10, 32:15, 48:13
staff [1] - 8:15
still [22] - 6:12, 6:24, 19:18 26:13, 26:15, 26:18, training [1] - 16:6
stale [1] - 25:1
7:4, 7:9, 7:25, 8:1, 26:20, 26:23, 27:3,
stand [3] - 6:9, 31:1, system [2] - 42:9, TRANSCRIPT [2] -
8:2, 8:6, 8:9, 17:20, 27:6, 27:11, 27:13,
33:6 45:10 1:10, 3:12
33:16, 34:14, 35:19, 27:16, 27:20, 27:22,
standing [6] - 47:7, transcript [5] - 14:9,
35:21, 39:10, 42:2, 28:2, 28:5, 28:9,
47:8, 47:11, 47:12, T 28:15, 29:8, 29:23,
14:11, 15:17, 49:8,
48:1 42:6, 44:1, 44:12, 55:7
44:15, 48:19, 51:21 30:4, 32:13, 32:21,
standpoint [1] - 13:5 TRANSCRIPTION [1] -
stop [5] - 19:10, 25:7, table [1] - 31:20 33:2, 34:5, 35:6,
stands [1] - 54:18 3:13
32:10, 32:15, 48:13 talks [1] - 31:7 35:12, 35:19, 35:23,
start [3] - 10:1, 28:16, Travelers [1] - 9:14
stopped [3] - 19:5, Tammany [9] - 8:6, 36:7, 36:9, 36:15,
46:7 treated [1] - 21:5
22:10, 48:16 9:18, 19:7, 20:15, 36:17, 37:3, 37:17,
started [2] - 40:20, trial [67] - 12:10,
stops [1] - 32:16 21:9, 23:22, 27:22, 38:7, 38:11, 38:24,
44:11 13:12, 14:1, 14:10,
straight [2] - 7:8, 28:1, 51:3 39:3, 39:5, 39:7,
starts [1] - 32:18 14:15, 14:16, 14:21,
28:19 Tankersley [1] - 45:14 39:10, 39:24, 40:4,
State [28] - 7:21, 14:23, 14:25, 15:12,
straightforward [1] - taskforce [1] - 26:1 40:6, 40:10, 40:12,
13:13, 13:21, 13:24, 15:16, 15:18, 16:9,
29:10 technical [1] - 14:19 40:16, 40:23, 41:15,
14:4, 14:6, 14:13, 16:10, 17:22, 18:4,
Strain [2] - 5:11, 44:10 telephone [3] - 27:12, 42:18, 42:21, 43:14,
14:17, 14:24, 15:2, 18:5, 18:9, 18:22,
STRAIN [1] - 1:7 27:13, 28:6 43:17, 43:21, 47:6,
15:19, 16:13, 16:14, 18:24, 19:2, 19:4,
telephones [1] - 27:19 48:6, 48:8, 48:24,
16:16, 17:1, 18:6, STREET [5] - 1:23, 19:11, 20:5, 20:22,
temporally [1] - 32:19 51:13, 51:15, 51:16,
22:4, 22:6, 23:15, 2:5, 2:8, 2:17, 3:9 20:24, 22:8, 22:11,
TEMPS [1] - 1:15 54:18, 54:19
24:22, 25:14, 28:2, strike [1] - 23:10 23:18, 24:17, 24:19,
ten [3] - 41:8, 43:11, theory [1] - 32:21
29:17, 31:14, 32:21, struggling [1] - 48:13 24:23, 24:24, 28:18,
46:6 thereafter [1] - 21:4
41:10, 50:21, 55:4 subject [3] - 19:20, 28:20, 28:21, 29:18,
tens [1] - 43:17 therefore [3] - 15:10,
state [49] - 6:11, 6:25, 19:21, 49:7 29:24, 31:23, 32:23,
term [1] - 26:21 29:12, 29:19
7:10, 7:11, 9:4, subjected [1] - 49:22 33:25, 34:12, 34:16,
terms [1] - 37:5 they've [5] - 24:25,
11:12, 11:25, 12:8, subpoena [1] - 46:19 34:20, 34:23, 36:12,
test [9] - 13:23, 15:25, 25:1, 25:4, 28:21,
16:17, 17:18, 17:22, subsequent [2] - 9:17, 37:4, 37:5, 37:7,
16:1, 16:11, 16:14, 28:24
18:13, 18:15, 18:16, 49:3 37:12, 37:17, 38:2,
OFFICIAL TRANSCRIPT
17-30519.2772
10
38:11, 39:22, 48:16, 32:25, 33:6, 36:17, wish [1] - 42:25

49:2, 49:3, 49:4, 37:24, 38:4, 38:5, witness [2] - 16:10,
49:7, 49:20, 49:23, 38:10, 42:12, 44:9, 46:8
50:11, 50:18, 52:1 46:19, 49:3, 51:13 witnesses [1] - 17:2
Trial [1] - 20:5 urge [2] - 42:5, 42:15 WOODWARD [1] -
tried [5] - 7:21, 24:24, urged [2] - 36:4, 41:2 1:18
31:14, 31:25, 36:1 usual [1] - 16:24 woodwork [1] - 51:8
trouble [3] - 27:8, word [2] - 45:5
34:3, 34:25 V words [1] - 13:25
true [3] - 37:20, 38:3, writ [3] - 18:5, 18:6,
55:7 18:7
truly [1] - 27:7 vacate [1] - 11:22
write [1] - 23:11
try [8] - 15:19, 30:16, valid [1] - 22:16
writs [2] - 14:24, 37:21
32:18, 35:1, 46:7, validity [1] - 42:14
written [3] - 51:16,
51:5, 51:6 variety [1] - 14:19
54:13, 54:15
trying [15] - 7:24, various [2] - 21:17,
wrongly [1] - 24:6
11:14, 19:2, 23:23, 37:25
24:12, 25:3, 25:6, vehicle [1] - 32:17
verbatim [1] - 9:19
Y
32:2, 37:3, 42:9,
46:7, 48:14, 48:22, verdict [2] - 22:9, 51:5
49:10 version [1] - 31:3 year [10] - 10:25, 11:2,
turn [3] - 16:17, 24:8, VERSUS [1] - 1:6 18:1, 18:2, 19:9,
43:9 versus [16] - 5:11, 9:6, 19:11, 22:11, 23:11,
twice [5] - 28:24, 29:3, 9:19, 9:20, 10:22, 50:18
30:18, 36:2 11:7, 11:11, 11:21, years [30] - 9:12,
twist [1] - 29:9 29:11, 44:7, 44:8, 11:16, 22:9, 24:16,
two [14] - 6:5, 7:13, 44:10, 45:1, 45:11, 24:18, 24:20, 24:24,
7:14, 7:15, 11:20, 47:17, 52:3 26:8, 27:25, 28:18,
12:21, 12:25, 14:15, view [2] - 32:1, 41:2 28:21, 39:15, 40:18,
21:5, 21:13, 21:24, vindicate [2] - 18:20, 40:20, 41:8, 41:10,
32:19, 32:20, 37:1 49:21 41:18, 41:20, 42:9,
twofold [1] - 15:6 violated [2] - 24:21, 43:11, 46:6, 46:13,
type [1] - 38:4 47:8 46:21, 50:6, 50:16,
virtually [1] - 18:13 50:19, 50:23, 53:23
volume [1] - 10:6 yourself [3] - 24:8,
U 27:8, 36:20
W
U.S [2] - 15:21, 45:11
ultimate [1] - 13:14
ultimately [1] - 32:11 Wabash [1] - 45:11
unconstitutional [1] - wait [2] - 10:8, 20:13
11:14 wants [1] - 45:8
under [10] - 19:8, 21:5, warrant [16] - 8:6, 8:8,
22:10, 24:15, 24:17, 21:9, 22:4, 22:15,
32:21, 39:20, 44:5, 22:16, 24:3, 25:20,
50:20, 52:2 25:25, 26:3, 26:5,
underlying [2] - 54:7, 27:3, 39:23, 46:20,
54:9 46:23, 53:8
unethical [3] - 47:8, warranted [1] - 52:24
47:9, 48:1 ways [2] - 33:23, 46:3
unique [1] - 42:3 we' [1] - 44:19
United [4] - 28:5, weak [1] - 34:20
53:15, 55:5, 55:15 weeds [1] - 30:1
UNITED [2] - 1:1, 1:11 welcome [1] - 39:19
unresolved [1] - 9:8 WHALEN [1] - 2:16
unusual [1] - 50:3 whereabouts [3] -
up [23] - 6:8, 6:20, 39:16, 40:7, 40:9
23:17, 25:3, 25:23, WHEREUPON [1] -
26:2, 26:8, 27:23, 54:20
28:18, 29:21, 30:7, Williams [1] - 48:18
OFFICIAL TRANSCRIPT
17-30519.2773
CLOSED,CONSOL
U.S. District Court
Eastern District of Louisiana (New Orleans)
CIVIL DOCKET FOR CASE #: 2:13-cv-06425-CJB-JCW
Gates v. Swartz et al Date Filed: 11/18/2013

Assigned to: Judge Carl Barbier Date Terminated: 03/27/2017
Referred to: Magistrate Judge Joseph C. Wilkinson, Jr Jury Demand: Plaintiff
Lead case: 2:07-cv-06983-CJB-JCW Nature of Suit: 440 Civil Rights: Other
Member case: (View Member Case) Jurisdiction: Federal Question
Case in other court: Louisiana Middle, 3:13-cv-00505
Cause: 42:1983 Civil Rights Act
Plaintiff
Suite 106
Metairie, LA 70001
504-284-8521
LEAD ATTORNEY

John A. Hollister, Attorney at Law
613 Bon Temps Roule'
985-792-5353
Email: jahollister@yahoo.com
LEAD ATTORNEY
V.
Defendant
Richard Swartz represented by David Glen Sanders
Judge Louisiana Department of Justice
Litigation Division
P.O. Box 94005
1885 North 3rd St.
225-326-6300
Fax: 225-326-6192
Email: sandersd@ag.louisiana.gov
LEAD ATTORNEY

Louisiana Department of Justice (1885 N 3rd
17-30519.2826
St)
225-326-6361
Fax: 225-326-6192
Email: swensond@ag.louisiana.gov
Defendant
Nicholas F. Noriea, Jr. represented by Cary J. Menard
ADA District Attorney's Office (22nd JDC)
701 N. Columbia St.
Covington, LA 70433
985-809-8383
Fax: 985-809-8365
Email: cmenard@22DA.com
LEAD ATTORNEY
Kathryn W. Landry
P. O. Box 82659
225-766-0023
LEAD ATTORNEY

22nd Judicial D.A.'s Office (Covington)
701 N Columbia Street
Covington, LA 70433
985-809-8374
Email: ecouvillon@22da.com
Defendant
Marie-Elise Prieto represented by Thomas H. Huval
Clerk of Court - St. Tammany Jones Fussell, LLP
Northlake Corporate Park
1001 Hwy 190 Service Road East
Suite 103
P. O. Box 1810
Covington, LA 70434-1810
985-892-4801
Fax: 985-259-8003
Email: thuval@jonesfussell.com
LEAD ATTORNEY
17-30519.2827
Adams & Reese, LLP (New Orleans)
One Shell Square
701 Poydras St.
Suite 4500
504-581-3234
Email: stefini.salles@arlaw.com
Defendant
Louisiana Attorney General (See above for address)
Buddy Caldwell ATTORNEY TO BE NOTICED

Defendant
Ronald Gracianette represented by Cary J. Menard
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY

Defendant
Captain Sherwood represented by Mark Emerson Hanna
TERMINATED: 12/11/2013 Mouledoux, Bland, Legrand & Brackett, LLC
One Shell Square
701 Poydras St.
Suite 4250
504-595-3000
LEAD ATTORNEY

One Shell Square
701 Poydras St.
Suite 4250
17-30519.2828
504-595-3000
Defendant
Kathryn Landry represented by Cary J. Menard
LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY

Defendant
Rodney Strain represented by Chadwick William Collings
STPSO Sheriff Milling Benson Woodward, LLP
also known as (Mandeville)
Jack Strain 68031 Capital Trace Row
985-292-2000
Fax: 985-292-2001
Email: ccollings@millinglaw.com
LEAD ATTORNEY
Mark Emerson Hanna

LEAD ATTORNEY

Milling Benson Woodward, LLP
(Mandeville)
985-871-3924
Email: acapitelli@millinglaw.com
Thomas S. Schneidau
Milling Benson Woodward, LLP
(Mandeville)
17-30519.2829
985-871-3924
Fax: 985-871-6957
Email: tschneidau@millinglaw.com

Defendant
Office of the Clerk of Court of St. represented by Thomas H. Huval
Tammany (See above for address)
LEAD ATTORNEY

Defendant
St. Paul Fire and Marine Insurance represented by Mark Emerson Hanna
Company (See above for address)
improperly named as Travelers-St. Paul LEAD ATTORNEY
Insurance Companies ATTORNEY TO BE NOTICED

Defendant
John and Jane Does of the Parish and State
Offices Named
Defendant
St. Tammany Parish District Attorney's represented by Emily Gaunt Couvillon
Office (See above for address)
Walter P. Reed LEAD ATTORNEY
Kathryn W. Landry
LEAD ATTORNEY
Defendant
Kathy Sherwood represented by Chadwick William Collings
Captain; identified in complaint as Captain (See above for address)
Sherwood LEAD ATTORNEY
17-30519.2830
Mark Emerson Hanna

LEAD ATTORNEY

Thomas S. Schneidau

Defendant
Walter P Reed represented by Kathryn W. Landry
LEAD ATTORNEY
Ralph S. Whalen , Jr.

Energy Centre
1100 Poydras St.
Suite 2950
504-525-1600
LEAD ATTORNEY
Cary J. Menard

Defendant
Office of the Louisiana Attorney General represented by David Glen Sanders
LEAD ATTORNEY
17-30519.2831
Defendant
Travelers-St. Paul Insurance Companies represented by Mark Emerson Hanna
TERMINATED: 10/23/2013 (See above for address)
LEAD ATTORNEY

08/05/2013 1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number
(p.2839) 053N-977664.), filed by Shane M Gates.(Abel, Daniel) [Transferred from lamd on
11/18/2013.] (Entered: 08/05/2013)
08/06/2013 2 NOTICE of Filing of Civil Cover Sheet by Shane M. Gates (Abel, Daniel)
(p.2879) [Transferred from lamd on 11/18/2013.] (Entered: 08/06/2013)
09/13/2013 3 MOTION to Change Venue Pursuant TO 28 U.S.C. 1404 and alternatively,

(p.2880) MOTION to Dismiss for Insufficient Service of Process Pursuant to FRCP 12(b)(5)
by James D. Caldwell, Unknown Sherwood, Rodney Strain, The Office of the
Louisiana Attorney General, Travelers-St. Paul Insurance Companies, Rodney Jack
Strain. (Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879) Exhibit A,
# 3 (p.2880) Exhibit B, # 4 (p.3049) Exhibit C, # 5 (p.3050) Exhibit D, # 6 (p.3059)
Exhibit E, # 7 (p.3061) Exhibit F, # 8 (p.3062) Exhibit G, # 9 (p.3069) Exhibit
H)(Hanna, Mark). Added MOTION to Dismiss on 9/16/2013 (LLH). [Transferred
from lamd on 11/18/2013.] (Entered: 09/13/2013)
09/16/2013 4 NOTICE AND ORDER on 3 (p.2880) MOTION to Change Venue PURSUANT TO

(p.3049) 28 U.S.C. 1404 ) and Alternatively MOTION to Dismiss for Insufficient Service of
Process Pursuant to FRCP12(b) (5) : Opposition to the motion shall be filed within
21 days of the filing of the motion. Any reply brief shall be filed within 15 days of
the filing of the opposition. Signed by Judge James J. Brady on 9/16/2013. (LLH)
[Transferred from lamd on 11/18/2013.] (Entered: 09/16/2013)
09/17/2013 5 90-DAY CONFERENCE ORDER: Scheduling Conference set for 11/14/2013 at

(p.3050) 9:30 AM in chambers before Magistrate Judge Stephen C. Riedlinger. Status Report
due by 10/31/2013. Signed by Magistrate Judge Stephen C. Riedlinger on 9/17/13.
(BNW) [Transferred from lamd on 11/18/2013.] (Entered: 09/17/2013)
10/04/2013 6 Consent MOTION for Extension of Time Opposition to Motion for Change of
(p.3059) Venue by All Plaintiffs. (Attachments: # 1 (p.2839) Proposed Pleading; Proposed
Order)(Abel, Daniel) Modified on 10/8/2013 to edit motion type (LLH).
10/08/2013 7 ORDER granting 6 (p.3059) Motion for Extension of Time to File Response to 3
(p.3061) (p.2880) MOTION to Change Venue Pursuant TO 28 U.S.C. 1404 and alternatively,
Motion to Dismiss for Insufficient Service of Process Pursuant to FRCP 12(b)(5).
Gates and counsel must file their opposition on or before this Tuesday, October 8,
17-30519.2832
2013. Signed by Judge James J. Brady on 10/7/2013. (LLH) [Transferred from lamd
on 11/18/2013.] (Entered: 10/08/2013)
10/08/2013 8 First MEMORANDUM in Opposition to 3 (p.2880) MOTION to Change Venue

(p.3062) Pursuant TO 28 U.S.C. 1404 and alternatively, MOTION to Dismiss for Insufficient
Service of Process Pursuant to FRCP 12(b)(5) MOTION to Dismiss for Insufficient
Service of Process Pursuant to FRCP12(b) (5) filed by All Plaintiffs. (Abel, Daniel)
10/23/2013 9 REPLY to 8 (p.3062) Memorandum in Opposition to Motion, 3 (p.2880) MOTION

(p.3069) to Change Venue Pursuant TO 28 U.S.C. 1404 and alternatively, MOTION to
Dismiss for Insufficient Service of Process Pursuant to FRCP 12(b)(5) MOTION to
Dismiss for Insufficient Service of Process Pursuant to FRCP12(b) (5) filed by
James D. Caldwell, Unknown Sherwood, Rodney Jack Strain, The Office of the
Louisiana Attorney General, Travelers-St. Paul Insurance Companies. (Hanna,
Mark)[Transferred from lamd on 11/18/2013.] Modified docket text on 11/18/2013
(jtd). (Entered: 10/23/2013)
10/29/2013 10 Letter dated 10/29/20113 from Mark E. Hanna to Magistrate Riedlinger Re:
(p.3082) Continuation of Scheduling Conference. (NLT) [Transferred from lamd on
11/18/2013.] (Entered: 10/29/2013)
10/29/2013 11 ORDER: The scheduling conference set for 11/14/2013 is canceled, entry of a
(p.3083) scheduling order pursuant to Rule 16, FRCP, is deferred, and the parties are not
required to make the initial disclosures required by Rule 26, FRCP, at this time.
Signed by Magistrate Judge Stephen C. Riedlinger on 10/29/2013. (NLT)
11/15/2013 12 Summons Submitted (Attachments: # 1 (p.2839) District Attorney - Walter Reed -

(p.3085) Civil Summons, # 2 (p.2879) ADA Nicholas Norea - Civil Summons, # 3 (p.2880)
Marie-Elise - Civil Summons, # 4 (p.3049) Sheriff Jack Strain - Civil Summons, # 5
(p.3050) Captin Kathy Sherwood -Civil Summons, # 6 (p.3059) Kathryn Landry -
Civil Summons, # 7 (p.3061) St. Tammany Clerk of Court - Civil Summons, # 8
(p.3062) Attorney General James "Buddy" Caldwell, # 9 (p.3069) The Office of LA
Attorney General -Civil Summons, # 10 (p.3082) St. Tammany District Attorney's
Office - Civil Summons, # 11 (p.3083) ADA Ronnie Gracianette - Civil Summons, #
12 (p.3085) Travelers Insurance - Civil Summons, # 13 (p.3113) St. Paul Insurance
-Civil Summons)(Abel, Daniel) [Transferred from lamd on 11/18/2013.] (Entered:
11/15/2013)
11/15/2013 13 Summons Issued as to James D. Caldwell, Ronald Gracianette, Kathryn Landry,

(p.3113) Nicholas F. Noriea, Jr, Marie-Elise Prieto, Walter P. Reed, Unknown Sherwood,
Rodney Jack Strain, Richard Swartz, The Office of Walter P. Reed, The Office of
the Clerk of Court of St. Tammany, The Office of the Louisiana Attorney General,
Travelers-St. Paul Insurance Companies. (NOTICE: Counsel shall print and serve
both the summons and all attachments in accordance with Federal Rule of Civil
Procedure 4.) (NLT) [Transferred from lamd on 11/18/2013.] (Entered: 11/15/2013)
11/15/2013 14 RULING granting 3 (p.2880) Motion to Change Venue. This case is hereby
(p.3141) transferred to the United States District Court for the Eastern District of Louisiana,
pursuant to 28 U.S.C. § 1404(a). This Court will not rule on Defendants Motion
(doc. 3) to Dismiss for Insufficient Service of Process Pursuant to FRCP 12(b)(5), as
it is premature. Signed by Judge James J. Brady on 11/14/2013. (CGP) Modified on
11/15/2013 to edit text (CGP). [Transferred from lamd on 11/18/2013.] (Entered:
11/15/2013)
17-30519.2833
11/15/2013 15 Order Transferring Case to the Eastern District of Louisiana. Signed by Judge James
(p.3143) J. Brady on 11/14/2013. (CGP) [Transferred from lamd on 11/18/2013.] (Entered:
11/15/2013)
11/18/2013 16 Case transferred in from District of Louisiana Middle; Case Number 3:13-cv-00505.
(p.3144) Electronic file certified copy of transfer order and docket sheet received (jtd)
(Entered: 11/18/2013)
11/25/2013 17 SUMMONS Returned Executed; James D. Caldwell served on 11/25/2013, answer

(p.3149) due 12/16/2013. (Abel, Daniel) (Entered: 11/25/2013)
11/25/2013 18 SUMMONS Returned Executed; Office of the Louisiana Attorney General served
(p.3151) on 11/25/2013, answer due 12/16/2013. (Abel, Daniel) (Entered: 11/25/2013)
11/29/2013 19 SUMMONS Returned Executed; Kathryn Landry served on 11/29/2013, answer due

(p.3155) Complaint by Kathy Sherwood, Rodney Strain. (Attachments: # 1 (p.2839) Rule 7.8
Certificate, # 2 (p.2879) Proposed Order)(Hanna, Mark) Modified filers on
12/12/2013 (plh, ). (Entered: 12/11/2013)

(p.3160) Complaint by Office of the Clerk of Court of St. Tammany, Marie-Elise Prieto.
(Attachments: # 1 (p.2839) Rule 7.8 Certificate, # 2 (p.2879) Proposed
Order)Attorney Thomas H. Huval added to party Office of the Clerk of Court of St.
Tammany(pty:dft), Attorney Thomas H. Huval added to party Marie-Elise
Prieto(pty:dft).(Huval, Thomas) (Entered: 12/12/2013)
12/12/2013 22 ORDER granting 20 (p.3155) Motion for Extension of Time to Answer as to Kathy
(p.3165) Sherwood answer due 1/6/2014; Rodney Strain answer due 1/6/2014.. Signed by
Chief Judge Sarah S. Vance on 12/12/13. (jjs, ) (Entered: 12/12/2013)
12/13/2013 23 EXPARTE/CONSENT MOTION for Extension of Time to Answer by James D.

(p.3166) Caldwell, Office of the Louisiana Attorney General, Richard Swartz. (Attachments:
# 1 (p.2839) Certification, # 2 (p.2879) Proposed Order)Attorney Douglas Gist
Swenson added to party Richard Swartz(pty:dft).(Swenson, Douglas) (Entered:
12/13/2013)

(p.3171) Complaint by Ronald Gracianette, Kathryn Landry, Nicholas F. Noriea, Jr.
(Attachments: # 1 (p.2839) Exhibit Rule 7.8 certificate, # 2 (p.2879) Proposed
Order)Attorney Kathryn W. Landry added to party Ronald Gracianette(pty:dft),
Attorney Kathryn W. Landry added to party Kathryn Landry(pty:dft), Attorney
Kathryn W. Landry added to party Nicholas F. Noriea, Jr(pty:dft).(Landry, Kathryn)
(Entered: 12/16/2013)
12/20/2013 25 MOTION to Transfer Case by James D. Caldwell, Office of the Louisiana Attorney
(p.3178) General, Kathy Sherwood, St. Paul Fire and Marine Insurance Company, Rodney
Strain. Motion set for 1/15/2014 11:00 AM before Chief Judge Sarah S. Vance.
(Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879) Exhibit A, # 3
(p.2880) Exhibit B, # 4 (p.3049) Notice of Submission, # 5 (p.3050) Proposed
(p.3223) Complaint as to Office of the Clerk of Court of St. Tammany answer due 1/6/2014;
17-30519.2834
Marie-Elise Prieto answer due 1/6/2014. Signed by Chief Judge Sarah S. Vance on
12/30/2013. (mmm) (Entered: 12/30/2013)
12/30/2013 27 ORDER granting 23 (p.3166) MOTION for Extension of Time to Answer 1 (p.2839)
(p.3224) Complaint. Signed by Chief Judge Sarah S. Vance on 12/30/2013.(mmm) (Entered:
12/30/2013)
(p.3225) Complaint as to Ronald Gracianette answer due 1/6/2014; Kathryn Landry answer
due 1/13/2014; Nicholas F. Noriea, Jr answer due 1/6/2014. Signed by Chief Judge
Sarah S. Vance on 12/30/2013. (mmm) (Entered: 12/30/2013)
01/06/2014 29 MOTION to Stay by James D. Caldwell, Ronald Gracianette, Kathryn Landry,

(p.3227) Nicholas F. Noriea, Jr, Kathy Sherwood, St. Paul Fire and Marine Insurance
Company, Rodney Strain. Motion set for 1/29/2014 10:00 AM before Chief Judge
Sarah S. Vance. (Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879)
Exhibit A, # 3 (p.2880) Exhibit B, # 4 (p.3049) Exhibit C, # 5 (p.3050) Notice of
Submission, # 6 (p.3059) Proposed Order)(Hanna, Mark) (Entered: 01/06/2014)
01/06/2014 30 MOTION for More Definite Statement , MOTION to Strike 1 (p.2839) Complaint
(p.3261) by Office of the Clerk of Court of St. Tammany, Marie-Elise Prieto. Motion set for
2/26/2014 10:00 AM before Chief Judge Sarah S. Vance. (Attachments: # 1 (p.2839)
Memorandum in Support, # 2 (p.2879) Notice of Submission)(Huval, Thomas)
(Entered: 01/06/2014)
01/13/2014 31 EXPARTE/CONSENT MOTION for Extension of Time to File Response/Reply as

(p.3279) to 30 (p.3261) MOTION for More Definite Statement MOTION to Strike 1 (p.2839)
Complaint , 25 (p.3178) MOTION to Transfer Case , 29 (p.3227) MOTION to Stay
by Shane M. Gates. (Attachments: # 1 (p.2839) Memorandum in Support, # 2
(p.2879) Exhibit Dr Collins to Judge S. Vance)(Abel, Daniel) (Additional
attachment(s) added on 1/14/2014: # 3 (p.2880) Proposed Order) (mmm). (Entered:
01/13/2014)
(p.3284) to File Response/Reply as to 30 (p.3261) MOTION for More Definite Statement,
MOTION to Strike 1 (p.2839) Complaint, 25 (p.3178) MOTION to Transfer Case,
29 (p.3227) MOTION to Stay. Filing attorney did not include a proposed order.
Proposed Order subsequently provided to Clerk and has now been attached to the
motion. (mmm) (Entered: 01/14/2014)
01/15/2014 33 ORDER - the Court finds that a continuation of the submission date is warranted.
(p.3285) Accordingly, the Court sets R. Docs. 25 (p.3178) 29 (p.3227) and 30 (p.3261) for
submission on February 26, 2014. This will provide counsel with ample time to
enroll additional counsel and respond to defendants' motions. Signed by Chief Judge
Sarah S. Vance on 1/15/14.(jjs, ) (Entered: 01/15/2014)
02/18/2014 34 Ex Parte MOTION to Continue Submission Dates of 26 February 2014 on Motions

(p.3286) at Rec. Doc. Nos. 25, 29,30 by Shane M. Gates. (Attachments: # 1 (p.2839)
Memorandum in Support, # 2 (p.2879) Proposed Order)(Abel, Daniel)
Modified/removed submission on 2/19/2014 (mmm). (Entered: 02/18/2014)
02/19/2014 35 Correction of Docket Entry by Clerk re 34 (p.3286) Ex Parte MOTION to Continue

Submission Dates. Filing attorney should have selected 'Y' at the question 'Is this an
Exparte/Consent Motion Y/N?'. Exparte motions are not set for submission. Clerk
modified docket text to remove submission information. (mmm) (Entered:
02/19/2014)
17-30519.2835
02/25/2014 36 ORDER granting plaintiff's motion 34 (p.3286) to continue submission dates.
(p.3290) ORDERED MOTION 30 (p.3261) for More Definite Statement MOTION to Strike
1 (p.2839) Complaint , 25 (p.3178) MOTION to Transfer Case , 29 (p.3227)
MOTION to Stay are reset and submitted as of 4/9/2014. Signed by Chief Judge
Sarah S. Vance on 2/24/14.(jjs, ) (Entered: 02/25/2014)
02/28/2014 37 SUMMONS Returned Executed; St. Paul Fire and Marine Insurance Company
(p.3292) served on 2/24/2014, answer due 3/17/2014. (Abel, Daniel) (Entered: 02/28/2014)
02/28/2014 38 SUMMONS Returned Executed; Travelers-St. Paul Insurance Companies served on

(p.3296) 2/24/2014, answer due 3/17/2014. (Abel, Daniel) (Entered: 02/28/2014)
03/03/2014 39 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Michael

(p.3300) North for all further proceedings. Magistrate Judge Alma L. Chasez no longer
assigned to case. Signed by Clerk of Court.(jjs, ) (Entered: 03/03/2014)
04/01/2014 40 RESPONSE/MEMORANDUM in Support filed by All Plaintiffs re 25 (p.3178)

(p.3301) MOTION to Transfer Case . (Abel, Daniel) Modified event on 4/2/2014 (mmm).
(Entered: 04/01/2014)

(p.3302) MOTION for More Definite Statement MOTION to Strike 1 (p.2839) Complaint .
(Abel, Daniel) (Entered: 04/01/2014)

(p.3315) MOTION to Stay . (Abel, Daniel) (Entered: 04/01/2014)

Opposition to Motion. Filing attorney selected incorrect event. Correct event is
Response/Memorandum in Support. Document states there is no opposition. Clerk
took corrective action. (mmm) (Entered: 04/02/2014)
04/08/2014 44 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support

(p.3329) of Motion to Stay by James D. Caldwell, Ronald Gracianette, Kathryn Landry,
Nicholas F. Noriea, Jr, Office of the Louisiana Attorney General, Kathy Sherwood,
St. Paul Fire and Marine Insurance Company, Rodney Strain. (Attachments: # 1
(p.2839) Proposed Order, # 2 (p.2879) Proposed Pleading)(Hanna, Mark) Modified
text/referral on 4/9/2014 (mmm). (Entered: 04/08/2014)
04/09/2014 45 Correction of Docket Entry by Clerk re 44 (p.3329) MOTION for Leave to File
Reply Memorandum in Support of Motion to Stay. 1. Filing attorney incorrectly
changed 'N' to 'Y' at the question 'Is this motion to be decided by the Magistrate
Judge Y/N?'. This motion will be decided by the district judge. Clerk took corrective
action. 2. Document contains incorrect Magistrate Judge. All future pleadings must
reflect Magistrate Judge (5). (mmm) (Entered: 04/09/2014)
04/10/2014 46 ORDER TRANSFERRING CASE. Case transferred to Judge Stanwood R. Duval, Jr

(p.3340) and Magistrate Judge Joseph C. Wilkinson, Jr for all further proceedings. Chief
Judge Sarah S. Vance, Magistrate Judge Michael North no longer assigned to case.
Signed by Chief Judge Sarah S. Vance on 4/10/14.(jjs) (Entered: 04/10/2014)
04/22/2014 47 ORDER granting 44 (p.3329) Motion for Leave to File Reply Memorandum in re:
(p.3341) 29 (p.3227) Motion to Stay. Signed by Judge Stanwood R. Duval, Jr on 4/21/2014.
(swd) (Entered: 04/22/2014)
04/22/2014 48 REPLY to Response to Motion filed by Defendants, St. Tammany Parish Sheriff,
17-30519.2836
(p.3343) Rodney Jack Strain, in his official and individual capacity as Sheriff, St. Tammany
Parish Sheriff Captain Sherwood, St. Paul Fire & Marine Insurance Company
(improperly named as Travelers-St. Paul Insurance Companies), Louisiana Attorney
General James D. Buddy Caldwell, the office of the Louisiana Attorney General,
Kathryn Landry, ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter
Defendants) in re: 29 (p.3227) MOTION to Stay. (swd) (Entered: 04/22/2014)
07/11/2014 49 **DEFICIENT**First MOTION Default Judgment Against Defendant Walter P.

(p.3349) Reed by Shane M. Gates. Motion set for 8/6/2014 09:30 AM before Judge Stanwood
R. Duval Jr.. (Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879)
Proposed Order, # 3 (p.2880) Notice of Submission)(Abel, Daniel) Modified on
7/14/2014 (my). (Entered: 07/11/2014)
07/11/2014 50 **DEFICIENT**First MOTION for Default Judgment as to All Defendants by

(p.3356) Shane M. Gates. Motion set for 8/6/2014 09:30 AM before Judge Stanwood R.
Duval Jr.. (Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879)
Proposed Order, # 3 (p.2880) Notice of Submission)(Abel, Daniel) Modified on
7/14/2014 (my). (Entered: 07/11/2014)
07/21/2014 51 MOTION for Entry of Default as to Defendant Walter P. Reed by Shane M. Gates.
(p.3364) Motion set for 8/6/2014 09:30 AM before Judge Stanwood R. Duval Jr..
(Attachments: # 1 (p.2839) Memorandum in Support, # 2 (p.2879) Affidavit, # 3
(p.2880) Proposed Order, # 4 (p.3049) Notice of Submission)(Abel, Daniel)
Modified on 7/21/2014 (my). (Entered: 07/21/2014)
07/21/2014 52 MOTION for Entry of Default as to All Defendants by Shane M. Gates. Motion set
(p.3375) for 8/6/2014 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1
(p.2839) Memorandum in Support, # 2 (p.2879) Affidavit, # 3 (p.2880) Proposed
Order, # 4 (p.3049) Notice of Submission)(Abel, Daniel) Modified on 7/21/2014
(my). . (Entered: 07/21/2014)
07/21/2014 53 First MOTION for Entry of Default as to Defendant Richard A. Swartz Failure to
(p.3387) File Responsive Pleadings Since December 2013 by Shane M. Gates. Motion set for
8/6/2014 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1 (p.2839)
Memorandum in Support, # 2 (p.2879) Affidavit, # 3 (p.2880) Proposed Order, # 4
(p.3049) Notice of Submission)(Abel, Daniel) (Entered: 07/21/2014)
07/21/2014 54 Correction of Docket Entry by Clerk re 52 (p.3375) First MOTION to

Amend/Correct For Entry of Default MOTION for Entry of Default as to All
Defendants , 51 (p.3364) First MOTION to Amend/Correct Motion for Entry of
Default MOTION for Entry of Default as to Defendant Walter P. Reed . **Not
necessary to select relief Motion to Amend/Correct for these documents. Only the
relief Motion for Entry of Default is necessary. Clerk modified docket text. No
further action is necessary.** (my) (Entered: 07/21/2014)
07/23/2014 55 MOTION to Stay or in the alternative, MOTION to Dismiss for Lack of Jurisdiction
(p.3396) and, MOTION to Dismiss for Failure to State a Claim by Richard Swartz. Motion
set for 8/20/2014 09:30 AM before Judge Stanwood R. Duval Jr.. (Attachments: # 1
(p.2839) Memorandum in Support, # 2 (p.2879) Notice of Submission)(Swenson,
Douglas) Modified on 7/23/2014 (my). (Entered: 07/23/2014)
07/24/2014 56 RESPONSE/MEMORANDUM in Opposition filed by Richard Swartz re 53

(p.3408) (p.3387) First MOTION for Entry of Default as to Defendant Richard A. Swartz
Failure to File Responsive Pleadings Since December 2013 . (Swenson, Douglas)
(Entered: 07/24/2014)
17-30519.2837
07/29/2014 57 RESPONSE/MEMORANDUM in Opposition filed by Office of the Clerk of Court
(p.3413) of St. Tammany, Marie-Elise Prieto re 52 (p.3375) MOTION for Entry of Default as
to All Defendants Marie Elise Prieto and St Tammany Clerk of Court. (Huval,
Thomas) Modified on 7/29/2014 (my). (Entered: 07/29/2014)
07/29/2014 58 RESPONSE/MEMORANDUM in Opposition filed by Walter P Reed, St. Tammany

(p.3418) Parish District Attorney's Office re 51 (p.3364) MOTION for Entry of Default as to
Defendant Walter P. Reed . (Attachments: # 1 (p.2839) Exhibit)(Landry, Kathryn)
07/29/2014 59 RESPONSE/MEMORANDUM in Opposition filed by James D. Caldwell, Ronald

(p.3444) Gracianette, Kathryn Landry, Nicholas F. Noriea, Jr, Captain Sherwood, Office of
the Louisiana Attorney General, Walter P Reed, St. Paul Fire and Marine Insurance
Company, Rodney Strain, Richard Swartz re 52 (p.3375) MOTION for Entry of
Default as to All Defendants . (Attachments: # 1 (p.2839) Exhibit A)(Hanna, Mark)

(p.3470) (p.3396) MOTION to Stay or in the alternative MOTION to Dismiss for Lack of
Jurisdiction and MOTION to Dismiss for Failure to State a Claim . (Abel, Daniel)
(Entered: 08/12/2014)
08/20/2014 61 ORDER & REASONS that that this higher-numbered case, Gates v. Strain, C.A.
(p.3488) 13-6425 be CONSOLIDATED with the lower numbered case, Gates v. Strain, C.A.
No. 07-6983. This higher-numbered case is hereby CONSOLIDATED with the
lower numbered case and that lower numbered case is hereby designated as the "lead
case." IT IS FURTHER ORDERED that Motion to Stay 29 (p.3227) in C.A. No.
13-6425 is GRANTED. IT IS FURTHER ORDERED that the following motions
filed in C.A. No. 13-6425: Motion for More Definite Statement 30 (p.3261) ; Motion
for Entry of Default as to Defendant Walter P. Reed 51 (p.3364) ; Motion for Entry
of Default as to All Defendants 52 (p.3375) ; Motion for Entry of Default as to
Defendant Richard A. Swartz 53 (p.3387) ; Motion to Stay or in the Alternative
Motion to Dismiss 55 (p.3396) are DISMISSED as MOOT without prejudice to such
motions being re-filed upon the proper reopening of these matters. Signed by Judge
Stanwood R. Duval, Jr on 8/20/14. (dno) (Entered: 08/21/2014)
09/09/2016 62 ORDER GRANTING Withdraw and Substitution of Counsel. Chadwick William

(p.3494) Collings,Andrew Robert Capitelli, Thomas S. Schneidau enrolled. Attorney Mark
Emerson Hanna terminated. Signed by Judge Stanwood R. Duval, Jr on 9/9/16.(clc)
(Entered: 09/09/2016)
11/21/2016 63 ORDER granting Motion to Withdraw as Attorney. Attorney Martin E. Regan, Jr;
(p.3495) Daniel G. Abel and Alanah Odoms Hebert terminated. Signed by Judge Stanwood
R. Duval, Jr on 11/18/16.. Signed by Judge Stanwood R. Duval, Jr on
11/18/16.(Reference: 07-6983 and 13-6425) (clc) (Entered: 11/21/2016)
03/27/2017 64 JUDGMENT entered in favor of Office of the Louisiana Attorney General, St. Paul
(p.3496) Fire and Marine Insurance Company, James D. Caldwell, Kathryn Landry, Kathy
Sherwood, Marie-Elise Prieto, Nicholas F. Noriea, Jr, Richard Swartz, Rodney
Strain, Ronald Gracianette, Walter P Reed against Shane M. Gates. Signed by Judge
Carl Barbier.(gec) (Entered: 05/10/2017)
17-30519.2838

MIDDLE DISTRICT OF LOUISIANA
SHANE M. GATES * CIVIL RIGHTS: 42 U.S.C. § 1983

*
VERSUS * ACTION AS TO TREASON
*
JUDGE RICHARD SWARTZ, WALTER P. REED,* CASE NO.:
ADA NICHOLAS F. NORIEA, JR., CLERK OF *
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE:
STPSO SHERIFF RODNEY “JACK” STRAIN, *
CAPTAIN SHERWOOD, KATHRYN LANDRY, * MAG. JUDGE:
THE OFFICE OF THE CLERK OF COURT *
OF ST. TAMMANY, LOUISIANA ATTORNEY * JURY TRIAL
GENERAL JAMES D. “BUDDY” CALDWELL, *
THE OFFICE OF THE LOUISIANA ATTORNEY *
GENERAL, THE OFFICE OF WALTER P. REED *
DISTRICT ATTORNEY FOR THE PARISH OF *
ST TAMMANY, ADA RONNIE GRACIANETTE, *
JOHN AND JANE DOES OF THE PARISH AND *
STATE OFFICES NAMED, AND TRAVELERS - *
ST PAUL INSURANCE COMPANIES *
*****************************
ORIGINAL COMPLAINT
SHANE M. GATES and all citizens of the State of Louisiana now and at all times during
defendants’ violations of his and their state and federal constitutional rights, sets forth these facts and
violations of his rights under the Constitution of the United States and State of Louisiana. Gates’s
prosecution exemplifies the fraud and crimes committed against a number of other persons as well.
DA WALTER REED’S LAW FIRM REPRESENTS THE INSURANCE CARRIER

FOR THE SHERIFF AND THE SHERIFF’S COUNSEL AND HIS LAW FIRM
REPRESENTS THE 22ND JUDICIAL COURT BENCH AND ITS JUDGES
1.
District Attorney Walter P. Reed is “Of Counsel” with the law firm that represents the
Page 1 of 40
17-30519.2839
Sheriff’s insurance companies St Pauls-Travelers in the Gates matter and Reed’s continued
insistence on prosecuting Gates after the NOT GUILTY verdict works to the apparent benefit of their
clients and done to shield all from their liability for Gates’s permanent injuries and prognosed
surgeries. Reed used his official and private positions in violations of the Hobbs Act.
This is not the first instance of such a conflict on the part of District Attorney Reed, including
cases he has referred to other counsel, when the matters were being prosecuted by his office. In the
past, Sheriff’s Attorney Chuck Hughes has accused Reed of referring cases to attorneys for matters
being prosecuted by his office, the records for which will be presented to this Court.
The taxpayer monies spent by Walter Reed in this prosecution also accrues to the benefit of
the insurance carriers, who are represented by the law firm where Walter Reed is: “Of Counsel”.
When he joined the law firm Reed stated publically that “ . . . he found no conflict of interest
associating with the firm, especially because it takes no criminal cases”. He did not state that his new
firm represents companies that insure the sheriff as in the Gates case and that Reed’s continued
prosecution after the jury found Gates NOT GUILTY, works to the advantage of his firm’s clients,
in this instance St. Pauls and Travelers insurance companies.
2.
The sheriff’s attorney Charles M. Hughes, Jr. and his law firm has represented the judges of
the 22nd Judicial District Court individually but perhaps not surprising is that instances of his and his
firm’s representations have been removed from the public records of all courts which should contain
those records but proof of the representation will be presented manually to this Court.
3.
A case and conflict of first impression, Hughes and his firm represents and has represented
Page 2 of 40
17-30519.2840
the 22nd Judicial District Court Bench, the insurance company which insures the Sheriff and the
Sheriff’s Office itself. Of first impression, as such representation has not been uncovered elsewhere.
4.
The admitted ex parte contacts between the sheriff’s counsel and the judges gave reason for
the Louisiana Attorney to appear and represent the judges when those contacts were discovered and
admitted by at least two judges, although the Attorney General has already become involved in the
prosecution of Gates. Involving that office is impermissible conflicts by statute. The Attorney
General also presented redacted documents to Gates, during this matter which were public records
and which is in certain violation of Louisiana Sunshine law. These documents contained information
about the ex parte conversations between Caldwell’s office, the judges involved, and the DA.
The Louisiana Attorney General’s representation of the judges further demonstrates the
conflict and violation of Gates’s right as the AG’s office had been involved in the prosecution of
Gates, but had redacted the invoices and records of its involvement, which accidentally appeared in
other federal proceedings. All of these apparent and known conflict impugns the integrity of the
entire legal system, not only of the courts and the district attorney and the attorney general’s office
to such an extent that it constitutes TREASON and makes all prior actions of those courts and its
officers, void.
To the extent that the insurance companies know or have known of the actions of District
Attorney Reed, sheriff attorney Hughes, Prieto, Noriea, and others they are liable and complicitous
in this fraud and these violations as well.
Page 3 of 40
17-30519.2841
TREASON
5.
Defendants Swartz, Reed, Prieto, ADAs Noriea, Graicianette, and other’s joint actions and
conspiracy as judge and officers of these courts constitute treason under the laws of the Constitution
and the United States as established by the United States Supreme Court.
6.
Swartz as judge is an officer of the court, as well as are all attorneys including Reed, Noriea,
Gracianette, and other named defendants. Swartz as a state judge is a state judicial officer, paid by
the State to act impartially and lawfully whose actions are in clear violation of the United States and
Louisiana Constitution contrary to his sworn oath of office such as to constitute treason.
7.
State [and federal] attorneys including Reed, Caldwell, Noriea, Gracianette, and Hughes, fall
into the same general category and must meet the same requirements. A judge is not the court.
People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980). The District Attorney is not the law.
8.
Having committed and condoned the fraud and destruction of evidence proved, these named
defendants including Swartz, Reed, Noriea, and Gracianette, have committed such fraud established
by the United States Supreme Court such that: “Whenever any officer of the court commits fraud
during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United
States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which
is directed to the judicial machinery itself and is not fraud between the parties or fraudulent
documents, false statements or perjury. ...”
Page 4 of 40
17-30519.2842
9.
What the named defendants have done is "Fraud upon the court" as has been defined by the 7th
Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the
court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not
perform in the usual manner its impartial task of adjudging cases that are presented for adjudication."
Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. Swartz
knowing denied Gates the right to introduce the FuelMan credit card receipt which would have
proved when Gates left the dealership and disproved the state’s fraudulent statement that Gates left
the dealership at 7:00 PM—Gates left the dealership at approximately 8:40 PM and he was stopped
only twenty minutes later. Noriea in closing argument lied to the jury stating that Gates bought the
car during the day and had been drinking all day.
10.
Therefore, the decisions made by Judge Swartz is such as the 7th Circuit further stated "a
decision produced by fraud upon the court is not in essence a decision at all, and never becomes
final."
11.
From the decisions made by Judge Swartz for Reed and Strain to the benefit of their insurance
company, tt is also clear and well-settled law that any attempt to commit "fraud upon the court"
vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192
N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to
judgments as well as to contracts and other transactions."); Allen F. Moore v. Stanley F. Sievers, 336
Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters
Page 5 of 40
17-30519.2843
..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates
everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil
Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v.
The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
12.
Under state and Federal law, when any officer of the court has committed "fraud upon the
court", the orders and judgment of that court are void, of no legal force or effect, as has been done
repeatedly by Judge Swartz in all the instances identified including the fifteen or sixteen motions
denied by Swartz who cited no law and gave no basis for his denial of the motions. Nor has the Court
issued written orders concerning those denials.
13.
The Supreme Court has also held that if a judge wars against the Constitution, or if he acts
without jurisdiction, he has engaged in treason to the Constitution as Judge Swartz had done during
the various matters relating to Gates which acts are set forth below.
14.
Courts have repeatedly ruled that judges have no immunity for their criminal acts including
fraud. Since both treason and the interference with interstate commerce are criminal acts, no judge
has immunity to engage in such acts under the 11th Amendment to the United States Constitution.
15.
Judge Swartz, District Attorney Reed, ADA Noriea and other officers of the court have no
immunity for the consequences of their criminal acts including the consequences that effect the civil
and constitutional rights of the citizens of this or all other of these United States; those criminal acts
Page 6 of 40
17-30519.2844
are set forth below.
CRIMES AND ACTS WHICH CONSTITUTE TREASON
16.
These constitutional violations of the rights of Gates and numerous others in the Parish of
St. Tammany and the State of Louisiana are crimes. They are crimes committed and covered-up by
defendants who are named and otherwise identified herein. Their actions are ongoing now.
17.
Defendants Noreia, Prieto, Sherwood, Strain and Others have committed crimes documented
during the medical malpractice action, the felony prosecution, and the misdemeanor prosecution
including:
(1) the fabrication of evidence,
(2) the destruction of evidence,
(3) fabrication and alteration of public records,
(4) the fabrication and alteration of minutes from hearings in the criminal
prosecution,
(5) jury tampering by the sheriff observed and allowed by the trial judge,
(6) the fabrication of evidence used to initiate the resisting arrest proceedings,
(7) the complicity of Judge Swartz in covering-up and otherwise ignoring the
fraud and fabrication of evidence and jury tampering,
(8) ` the complicity of the trial court by denying Gates and experts access to the
court-reporter audio tapes which contain evidence probative of the alternation
of transcribed testimony as to the truthfulness of witnesses,
Page 7 of 40
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(9) the complicity of the Louisiana Attorney General’s Office by working in
matters involving the prosecution and then in representing the judges in the
22nd JDC when discovered that those judges had ex parte contacts with the
district attorney and counsel for the sheriff about various aspects of this
matter,
(10) the redaction /removal of public records by the Louisiana Attorney General
to removed evidence of their involvement in such prohibited dual capacities,
(11) Hobbs Act violations by Hughes and Reed whose firms acted on behalf of the
insurance company for the Sheriff and while simultaneously acting for the
Sheriff or the Office of the District Attorney,
(12) actions by Swartz, Reed, Noriea, Prieto, which constitute treason as
established by the United States Supreme Court and the United States
Constitution.
Summary of Event and Prosecutions
18.
Gates was severely injured while handcuffed and after he was placed under arrest, at a traffic
stop at the Bayou Lacombe bridge in St. Tammany Parish on November 16, 2006. Gates has had
several of the prognosed surgeries at a substantial expense.
19.
The prosecution of Shane M. Gates was undertaken by the District Attorney in concert with
the Sheriff to protect the Sheriff’s insurance carrier and his $500,000 deductible and subsequently
Page 8 of 40
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to cover-up federal and state crimes committed by the Sheriff and his attorneys, various persons with
the District Attorney’s office who acted in concert with the Clerk of Court Malise Prieto and certain
persons in the clerk’s office as well. The action against the deputies themselves was stayed when
after seven years the district attorney wished to bring forward misdemeanors after having lost the
felony trial.
20.
The twelve person St. Tammany Parish Jury found Shane M. Gates NOT GUILTY of all
charges brought by the District Attorney on 27 July 2012, after a five day trial. To protect the sheriff
and others including the district attorney from the liability arising from their fraud and the Trial
Court’s complicity in that fraud, the district attorney would now try Gates for misdemeanors not
brought forward since 2007.
21.
In order to get some sort of conviction to protect the insurance company and sheriff, the
district attorney would try Gates again and Judge Swartz will condone a trial with the identical
witnesses and identical evidence used at the trial where the twelve citizens of St. Tammany Parish
already found Gates NOT GUILTY. The misdemeanor matter would now be judge-tried before
former ADA, now judge Richard A. Swartz. The Gates matter was never presented to a grand jury.
22.
If Noriea, the Sheriff, and the District Attorney did not already know the outcome of the
judge trial, they would never have set the trial. And again ADA Noreia and the district attorney
would use evidence which has already been proven to be fabricated and other evidence altered and
destroyed.
Page 9 of 40
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JURISDICTION
FEDERAL LAW CLAIMES
23.
U.S.C. §§. 1983, 1985, 1986, and 1988.
INJUNCTIVE RELIEF TO PREVENT BAD-FAITH PROSECUTION
24.
Jurisdiction for injunctive relief by this Court is invoked pursuant to 28 U.S.C. §§ 1331,
1343, 2201; 42 U.S.C. §§ 1983, and 1988; and the Fourth, Fifth, Eight, and Fourteenth Amendments
of the United States Constitution. The Court should order a hearing for that relief immediately.
25.
This is a civil action to enjoin and redress Gates’s deprivation of rights, under color of state
law, by local authorities—as such authorities have been defined by the United States 5th Circuit
Court of Appeal in Holly Ray Bush v. Sheriff Jack Strain, et al. [5th Cir. No. 05-30837], and Burge
v. Parish of NOPD, 187 F.3d 452, citing Mairena, 816 F.2d at 1064 and Hudson, 174 F.3d 677—in
violation of his rights, privileges, and immunities under the United States Constitution and the
Louisiana State Constitution.
26.
PENDENT STATE LAW CLAIMS
Jurisdiction of this Court for pendent claims is authorized by 28 U.S.C. § 1367 with respect
to any state law claims, inasmuch as the amount in controversy exceeds $75,000.00, exclusive of
interest and costs, and under F.R.Civ.P.18(a) and arises under the doctrine of pendent jurisdiction
Page 10 of 40
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as set forth in United Mine Workers v. Gibbs, 383 U.S. 715.
27.
Pendent claims arise from violation of claimant’s right, as set forth in those claims and as the
rights violated are expressly guaranteed and protected under the Louisiana State Constitution,
particularly due process of law, right to individual dignity, right to privacy, right to judicial review,
right to human treatment, and access to legitimate courts and under the laws of the State of Louisiana
including but not limited to liability for any and all acts causing damages.
28.
Fraudulent acts, the alteration of public records and other crimes, having taken place in the
past have been discovered within the last year since the conclusion of the jury trial and as such acts
constitute fraud, no statute of limitation or exceptions of prescription are applicable to such fraud,
alteration of public records, and crimes set forth herein. The commission of these crimes, conflicts,
and acts of treason is ongoing.
VENUE
29.
Venue in the United States Courts for the Middle District of Louisiana is proper under 28
U.S.C. § 1391(b), as the violations and actions took place within the Parish of East Baton Rouge,
and St. Tammany, Louisiana as recently as in the months of May, June, July of 2013.
EVIDENCE REFERENCED - MANUAL DELIVERY
30.
Counsel shall manually deliver of all evidence to the Clerk of Court, that is referenced in this
original complaint. The evidence referenced and probative of the constitutional rights violations and
Page 11 of 40
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crimes is extensive, compiled over a span of six years, including such evidence as electronic tracking
of the clerk’s public records at the very times while those records were being altered. And again
altered are recently as within the last four months of this year.
PARTIES
Complainants
31.
A. Complainant SHANE M. GATES, is a person of the age of majority, who brings
this action in the parish of the domicile of certain defendants where the actions and
predicate acts of those defendants have also taken place.
. Defendants
32.
A. Defendant RICHARD A. SWARTZ, presiding judge of Division C of the 22nd
Judicial District Court, and former Assistant District Attorney employed by the
District Attorney Walter P. Reed who subsequently endorsed and arranged for Judge
Swartz to be elected to office with compliance of Sheriff Jack Strain, and who in
complicity with the district attorney and sheriff has covered-up their actions and the
actions of the clerk of court and reporters who have altered the public records in
certain violation of Louisiana law: La. R.S. 14: 132, 133, et seq.
B. Defendant MARIE-ELISE “MALISE” PRIETO, the Clerk of Court for the 22nd
Judicial District Court for the Parish of St. Tammany, State of Louisiana, in her
individual and official capacities which Public Office is a legal entity created by the
Constitution of the State of Louisiana; and which she, PRIETO is responsible for the
Page 12 of 40
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policies, procedures, and practices implemented by this office, through its various
agencies, agents, departments, and employees, and for injury and violation of United
States Constitutional and Louisiana Constitutional rights occasioned thereby.
PRIETO is the ultimate supervisor of the officers of the Clerk of Court’s Office,
including, but not only the co-defendant . She is sued in her official capacity such as
is required by law and in her individual capacity in consequence of the actions
against Gates which were one of the causes-in-fact of Gates’s damages.
C. Defendant OFFICE OF THE CLERK OF COURT, 22ND JUDICIAL DISTRICT
COURT FOR THE PARISH OF ST TAMMANY, which is a legal entity created
by the Constitution of the State of Louisiana thorough the Louisiana Legistature; and
is responsible for the policies, procedures, and practices implemented under its
authority through its various officers, agencies, agents, departments, and employees,
and for injury and violation of United States Constitutional and Louisiana
Constitutional rights occasioned thereby.
D. Defendants NICHOLAS F. NORIEA, JR. and RONNIE GRACIANETTE,
Assistant District Attorneys for the Parish of St. Tammany, in their individual and
official capacity, who in concert with co-defendants did destroy and alter the
“testamentary evidence”, did knowingly withhold evidence that could have been used
in Gates’s defense at the 23-27 July 2012 trial, did falsely charge Gates and otherwise
maliciously prosecute him in order to help the Sheriff and certain deputies escape
civil liability and certain violation of the Hobbs Acts, Treason, HIPAA and other
federal criminal statutes. The prosecution is ongoing and the fabricated evidence to
Page 13 of 40
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be used as trial.
E. Defendant WALTER P. REED , District Attorney for the Parish of St. Tammany,
in both his individual and official capacity, who in concert with co-defendants did
destroy and alter “testamentary evidence”, did knowingly withhold evidence that
could have been used in Gates’s defense at the 23-27 July 2012 trial, did falsely
charge Gates and otherwise maliciously prosecute him in order to help the Sheriff
and certain deputies to escape civil liability and certain violation of the Hobbs Acts
and other federal criminal statutes. The twelve person St. Tammany Parish jury
returned a verdict of NOT GUILTY on all counts one year ago which gave rise to all
probable cause for the vehicle stop. Despite the NOT GUILTY verdict, defendant
Walter Reed and others named herein have maliciously prosecuted Gates and
continue to do so at this time.
F. Defendant THE OFFICE OF THE DISTRICT ATTORNEY FOR THE
PARISH OF ST. TAMMANY and the District Attorney for the Parish of St.
Tammany, in both his individual and official capacity, who in concert with co-
defendants did destroy and alter “testamentary evidence”, did knowingly withhold
evidence that could have been used in Gates’s defense at the 23-27 July 2012 trial,
did falsely charge Gates and otherwise maliciously prosecute him in order to help the
Sheriff and certain deputies to escape civil liability and certain violation of the Hobbs
Acts and other federal criminal statutes. The twelve person St. Tammany Parish jury
returned a verdict of NOT GUILTY on all counts which gave rise to all probable
cause for the vehicle stop. Despite the NOT GUILTY verdict, defendant Walter Reed
Page 14 of 40
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and his office have maliciously prosecuted Gates and continue to do so.
G. Defendant SHERIFF RODNEY “JACK” STRAIN, in his official and individual
capacity as sheriff, who has committed the acts of jury tampering, perjured himself
in affidavits and in statements to the court, and allowed his officers including but not
only named defendant Capt. Sherwood to alter evidence in complicity with named
defendant Nicholas F. Noriea, Jr., including but not only the alteration of the dispatch
tapes used at the July 2012 trial and identified for use again in the misdemeanor trial.
Strain is also guilty of other crimes and acts which involve the alteration of testimony
evidence and public records in violation of La. R.S. 14: 132 and 133, et seq.
H. Defendant STPSO CAPTAIN SHERWOOD, altered evidence in complicity with
named defendant Nicholas F. Noriea, Jr.,and others from the sheriff’s office as well
as the office of Charles Hughes, including but not only the altered dispatch tapes used
at the July 2012 trial and identified for use again in the misdemeanor trial. Sherwood
is guilty of the crimes and acts which involve the alteration of testimony evidence
and public records in violation of La. R.S. 14: 132 and 133, et seq. Sherwood has
testified under oath and admitted her work with Noriea in the alteration of this
evidence, but has given perjured testimony regarding these matters as well.
I. Defendant LOUISIANA ATTORNEY GENERAL JAMES D. “BUDDY”
CALDWELL, & THE OFFICE OF THE LOUISIANA ATTORNEY
GENERAL, in his official capacity and certain John and Jane Does of his office in
their individual and official capacities and the complicity of the Louisiana Attorney
General’s Office by working in matters involving the prosecution and then in
Page 15 of 40
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representing the judges in the 22nd JDC when discovered that those judges had ex
parte contacts with the district attorney and counsel for the sheriff about various
aspects of this matter, and the alteration of public records by the Louisiana Attorney
General’s office to removed evidence of their involvement in such prohibited dual
capacities and knew that Hughes and his firm has represented the Judges and that
Reed was of counsel with the firm who represented the insurance company in this
very case involving Gates.
J. Defendant KATHRYN LANDRY, appeal counsel for Walter P. Reed, and the
Office of the District Attorney, has falsified facts in pleadings used to influence the
various courts and done so in complicity with the alteration of the public records
which the named defendant Clerk of Court Prieto and her employees and other Does
including but not only persons in the District Attorney’s office who have access to
the Clerk’s public records and have participated in and caused. Allegations made by
Landry in her pleadings are explicitly contradicted by the testimony of the officers
who she attributes such testimony to and used to fabricate a version of the facts that
Gates attacked the officers when in fact the officers have expressly denied such facts.
Landry’s knowledge of the use and alteration of the public records by the Clerk of
Court or the Does in the office of the District Attorney who made alterations to the
related public records, constitutes complicity in violation of the Louisiana public
record laws as well.
F. Defendant JOHN DOE[S] and JANE DOE[S], natural persons including judicial
officers of the court, the district attorney, the clerk of court, the sheriff’s office and
Page 16 of 40
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attorneys, who have not been identified by name, but who did conspire with co-
defendants variously, and were the persons who began the attack on Gates, such as
to violate his rights under the United States Constitution and the amendments thereto,
and his rights under federal laws, including but not limited to violations of 42 U.S.C.
§ 1983, et seq, and 18 U.S.C. 1961-1968 as well as his rights under the Constitutions
of the State of Louisiana.
32.
This seven-year prosecution has been characterized by the destruction of evidence, the
fabrication of evidence, the fabrication and perjury of testimony given by officers, attorneys, and
public officials while under oath and overlooked by the trial court judge.
FABRICATION, ALTERNATION, DESTRUCTION OF EVIDENCE

BY THE DISTRICT ATTORNEY AND SHERIFF’S OFFICE
33.
Evidence used by the District Attorney particularly ADA Nick Noriea was fabricated and
forensic expert Herbert Joe proved that both the internal contents of certain tracks and the number
of tracks themselves on the dispatch tape—had been both destroyed and altered. [Exhibit - Hebert
Joe Report & Transcript].
34.
When confronted with the forensic evidence, ADA Noriea admitted having the dispatch tape
altered but was allowed to use the altered version of the tape nonetheless. Defendant Capt.
Sherwood was involved in the alteration and testified as to her involvement.
35.
Page 17 of 40
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After the 23-27 July 2012 trial, investigators and counsel had uncovered and exposed the
fabrication of other evidence and testimony done by defendants ADA Noriea, Sheriff Strain and his
officers, Clerk of Court Prieto and Does with access to her public records, which have been ignored
and thereby covered-up by former ADA now Judge Richard Swartz and John and Jane Does within
the office of Louisiana Attorney General James D. Caldwell.
36.
ADA Nicholas Noriea—knowingly altered the dispatch tape, removed at least half of the
tracks from the tape and altered the content within certain tracks. He excluded the dispatch
statements of the fact that the sheriff’s deputies intentionally diverted the Louisiana State Police from
scene where Gates has been severely beaten, after having been arrested and handcuffed.
37.
When confronted with the missing and altered evidence that Noriea himself and others
altered, Noriea admitted doing so to the Court.
38.
Noriea told the Court, “I just took the parts that I wanted the jury to hear.”
39.
Despite requests and demands for action from the Court, former ADA now presiding judge
Richard Swartz, did nothing in response to Noriea’s admission of these crimes.
40.
Trial Judge Richard Swartz allowed Noriea to introduce and allowed the jury to hear the
dispatch tape that Noriea and Capt. Sherwood had altered.
41.
Page 18 of 40
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When it was discovered that several versions of the dispatch tape had been produced by the
sheriff and different ones by ADA Noriea, Gates and counsel hired forensic expert Herbert Joe who
examined the six versions of the tape which they produced over five years.
42.
Expert Herbert Joe sat while Captain Sherwood took out files that she thought were relevant
from the dispatch hard-drive. Joe was never given access to the hard-drive or allowed to examine
the contents of the hard-drive forensically.
The volumes of evidence and transcripts generated by the investigation and when expert Joe
testified—are being put into electronic formats and will be manually delivered to the clerk under
local rule .
43.
Expert Joe found that Noriea never produced more that half of the tracks and found that the
content within the tracks was altered.
44.
Again, though that evidence and testimony was produced and presented to the Court, Judge
Swartz did nothing.
45.
Noriea’s destruction and alteration of evidence are crimes in violation of both La. R.S. 14:
132 and La. R.S. 14:133.
46.
The evidence that Noriea knowingly committed these crimes, each of which carries a
Page 19 of 40
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maximum sentence of five years, is on the record and in the transcripts that are being prepared for
manual delivery to your office as exhibits for this original complaint.
47.
In addition to these actions of fraud, ADA Noriea also entered into the record of the
proceeding the medical records of Gates, which were only produced and identified during the week
of trial and which were taken from the HIPAA protected record of Mr. Gates’s medical
treatment—to which Noriea would not have had access except through the backdoor of the court or
the attorneys for the hospital. They got the medical record because James Blackwell who worked
for the district attorney went to the sheriff’s office and signed out those records as evidenced by the
signed receipt.
48.
Noriea’s possession and production of those records are crimes under HIPAA as none of
those records were subpoenaed [legally or illegally] but which Noriea or his assistants obtained from
sources at the Lacombe Heart Hospital, where Sheriff Jack Strain’s wife was a nurse. Dr. Bruce
Kerry testified that the medical records were not finished until January of 2007 but the medical
evidence allegedly obtained by deputy Gottardi and which Swartz allowed ADA Noriea to place in
the record were obtained only four days after the Novermber 16, 2006 incident.
49.
As well, forensic experts have concluded that the BAC print out is not evidenced by any lab
tests, or blood samples, or other recordations on the testing equipment but were manually entered
onto a computer program and for the use by the sheriff and the district attorney, simply printed out
from a nurses station.
Page 20 of 40
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50.
ADA Noriea and the district attorney has reported that these records were reports of blood
tests which blood tests in fact, do not and never did exist.
51.
ADA Noriea has not allowed Gates or counsel open file discovery but has used the Court
through Judge Richard Swartz as a censor to prevent open file discovery including but not only the
purged disciplinary files that contain or should contain the information regarding incidents which
caused deputy Gottardi to be demoted from the position of detective to an officer working at the jail.
Every thing requested in the Gottardi demotion is public record as the investigation and demotion
is already concluded.
All such records are the property of the public and Judge Swarz’s refusal to have the sheriff
and district attorney produce those records is another act by Swartz in violation of his oath of office
and Gates’s constitutional rights.
52.
This is yet another instance of the District Attorney and others covering up the evidence
known to exist and testified to by Gottardi at trial. The State and the Sheriff have again spoliated the
evidence to which Gates is entitled under the Louisiana and United States Constitutions.
53.
The files pertaining to Deputy Roger Gottardi’s demotion from the position of detective,
about which he testified to and confirmed at trial, appear have gone.
54.
The Trial Court has confirmed that these files were not produced and has done nothing to
Page 21 of 40
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order their production [Exhibit: Court Order of 24 July 2013] of these public records.
55.
The Court order simply says, that the Gottardi disciplinary files were not produced although
they are public records.
56.
Judge Swartz failed to enforce the rights guaranteed Gates under the Sixth Amendment
Confrontation and Compulsory Process clauses and the governing jurisprudence: Crawford v.
Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (June 25, 2009)
& Donald BullComing v. New Mexico, 131 S. Ct. 2705 (June 23, 2011).
57.
In June of 2011 the United States Supreme Court in BullComing v. New Mexico upheld
Crawford and Melendez-Diaz further made it clear that the Sixth Amendment’s Confrontation
Clause is absolute and applies to the information about which Gottardi has testified at this time.1
The facts decided by the St. Tammany Parish Jury and the facts about demotion testified to by
Deputy Roger Gottardi at trial, are such and must be introduced and disclosed.
SHERIFF STRAIN JURY TAMPERING AND SPOLIATION
58.
St. Tammany Parish Sherif Jack Strain stood waiting for the jury to come in and take their
seats in the jury box as they came into the courtroom, he greeted every juror and glad-handed the
ones closest to him. He took his place in the front row, to remind the jurors that he was watching
1
Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557
U.S. (June 25, 2009) BullComing v. New Mexico, 131 S. Ct. 2705 (June 23, 2011).
Page 22 of 40
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them.
59.
During the five days of the trial Sheriff Strain showed up Wednesday through Friday, and
was present when former deputy Nathan Miller testified and when deputy Roger Gottardi testified.
He was also present when defendant Shane Gates testified.
60.
When deputy Gottardi testified Sheriff Strain sat in the front row so that the jury knew he was
there and when Gottardi finished testifying he came from the witness box, into the front row next
to Sheriff Strain visibly gave Gottardi a hug around his shoulder and said out loud—so that the jury
could hear him—“good job, good job!”.
61.
When Gates testified Sheriff Strain looked at the jurors and laughed at Gates—in a loud
brutish manner—and shook his head, indicating that Gates’s testimony was not true, or comical.
62.
Despite this obvious attempt to influence the jury or remind them that he was watching them,
Judge Richard Swartz did nothing whatsoever.
63.
The failure of the Court to act against the Sheriff, his former employer the district attorney
and others even when presented with evidence of fraud, fabrication, and destruction of evidence is
characteristic of the manner in which this seven year prosecution has been conducted.
64.
Despite years of fraud, fabrication and alteration of evidence by the Sheriff, the District
Page 23 of 40
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Attorney, the Clerk of Court and covered up by the Court itself, the Twelve-Person St. Tammany
charges brought on Friday, 27 July 2012.
Now the district attorney could not bring a lesser charge under the same criminal statute
which Graciannette testifed was maxed out by charging him with the maximum felony under La.
R.S. 14:108.
65.
While the District Attorney did not bring the six-year old misdemeanor charges of DUI and
Resisting Arrest, they did call every witness and present every adjudicative fact about blood alcohol
and resisting arrest in an attempt to prejudice the Jury. Having brought those witnesses and that
evidence once, the District Attorney would now bring that evidence again. And over the
last six years the clerk of court has altered the minutes, the motions, and the record of this and the
related felony matter.
CLERK OF COURT PRIETO’S ALTERATION OF PUBLIC RECORDS

AND USE BY DA APPEAL COUNSEL Kathryn LANDRY
66.
As recently as June 2013, Gates and counsel discovered that the Clerk of Court had [again]
altered the public record in the felony and misdemeanor prosecution in order to make it consistent
with arguments the District Attorney through Appeals Counsel Kathryn Landry was making with the
appeals court, and having made those same arguments repeatedly, contrary to the evidence that was
in the record—before the record was altered—and in direct contradiction to the testimony given by
all witnesses at trial. Landry in her most recent brief continues contends that there was a flight or
aggravated flight from Miller although those facts have been rejected and decided by the jury. Landry
Page 24 of 40
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knowingly misrepresents facts that are established and res judicata—and as such she statements
constitute fraud.
67.
To argue against the District Attorney’s failure to satisfy the requirements of both the
felony and misdemeanor procedures and constitutional provisions, the Clerk of Court with the
assistance or input of the District Attorney altered the public records.
68.
Once put on notice that Gates and counsel had caught these alterations and had records of
the earlier original versions, defendants Prieto and others, corrected the alterations, only to place
the incorrect versions back online to provide fabricated evidence and support for the arguments
that the District Attorney through Appeals Counsel Kathryn Landry would make with both the state
and federal courts.
69.
District Attorney’s appeal attorney Kathryn Landry has continued to use the altered records
for purposes of advancing the false argument that Gates continued the misdemeanor and the felony
matter when in fact he had not.
70.
Again, it is not an coincidence that Appeals Attorney Kathryn Landry again made allegations
and false statements of fact regarding these very same records, in her pleadings against Gates to the
Louisiana Supreme Court.
71.
Landry’s argument to the courts relies in significant part of the altered records as those have
Page 25 of 40
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been used in support of Landry’s argument about the Gates arrest for the felony flight charge and the
District Attorney’s failure to comply with the guarantees of the Speedy Trial act.
72.
In fact, Gates was prosecuted and tried for Aggravated Flight, a charge he was not, ever
arrested for. Nor did Gates ever sign a ticket or was given a ticket for that charge and in fact the
investigators found that there are several versions of the tickets where the deputies or district attorney
have altered the color of the car and the number of doors on the car in order to match the description
of Mr. Gates’s vehicle, when the first versions of those tickets did not match. As of today there are
no tickets on record in the clerk of court’s office again in violation of La. R.S. 14: 132 and 133, the
public record act.
73.
Prieto altered the public record to state that he was arrested for aggravated flight and she
fabricated a date on which he was allegedly [but not actually] arrested.
74.
The alteration of Gates’s record is equally significant for purposes of writs, appeal, and for
any civil rights claims which might be pursued in federal courts.
75.
As Kathryn Landry was going to argue and did that Gates was arrested for that charge, Prieto
changed the record again to state that Gates was arrested for aggravated flight and that change was
made right at the time Landry’s brief went the the First Circuit and then to the Supreme Court.
76.
Page 26 of 40
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The repeated alterations of the record in this matter was not an accident or coincidence, as
was proved by the time frame and obvious purpose for which he was being altered. At issue also is
who in the District Attorney’s office has access to amend or alter these public records.
77.
Investigators who have monitored the Clerk’s record in this matter will present video-tapes
of the records being altered..
78.
Investigators who have monitored the Clerk’s record in this matter will show the court the
content that was being monitored, at which point the purpose of the alteration will become apparent.
JUDGE RICHARD SWARTZ INVOLVEMENT AND

COMPLICITY IN ACTIONS OF DISTRICT ATTORNEY
AND THE LOUISIANA ATTORNEY GENERAL’S OFFICE
79.
Former ADA Richard Swartz now Judge of Division “C” for the 22nd Judicial District Courts,
was assigned Gates’s (1) medical malpractice case which is still open, (2) felony case for which he
presided over the trial, and (3) this misdemeanor action brought after the jury found Gates NOT
GUILTY .
80.
Judge Swartz had heard evidence and ruled on matters in each of these cases and has
therefore acquired facts and evidence from each which informed decisions in others and now will
do so in a judge-trial.
81.
Gates’s medical records from the medical malpractice case, were introduced and used by
Page 27 of 40
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Noriea and the District Attorney, in clear criminal violation of HIPAA. Former DA Investigator
James Blackwell, took the records from the locked file of the Sheriff and those files like other
evidence in these matters.
82.
The trial court did nothing but allowed Noriea and the district attorney to introduce the
HIPAA protected documents at the felony trial.
83.
The HIPAA protected documents were used as the state did not have the right to subpoena
the records and in fact the records obtained and used by Noreia, were fabricated by the hospital or
persons with access to the hospital.
84
Gates was taken to the Lacombe Heart Hospital where he refused treatment but at which his
blood was illegally taken but never tested, although a dry-labbed result was produced from the
manual operation of a computer program at the nurses station.
85.
Despite repeated requests for the identity of the person who performed the [non-existent] lab
test, Gates only learned during the trial, that the lab tech the late Roger Loll, who was the only person
on duty the night the test would have been performed, died in June of 2007, shortly after Gates was
charged.
86.
Judge Swartz also was presented with and had to rule on matters arising from the medical
Page 28 of 40
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records which were a component of the district attorney’s fraudulent charging and fabricated
prosecution in the felony flight and now in the DUI trial.
87.
Defendant Swartz was also instrumental in denying Gates open file discovery acting as the
censor for public records which Gates and counsel were entitled to examine themselves.
88.
Recently Swartz did nothing when defendants Noriea and the Sheriff refused to produce
Deputy Roger Gottardi’s disciplinary files which contains the investigation of Gottardi and the
reasons he was demoted from the position of detective as he testified to at trial.
89.
Gottardi perjured himself at trial when he testified that he “does not know why he was fired”
and under pressure later said “it was because he failed to return a phone call”. Upon information and
belief, Gottardi was fired for failing to return a purse and the money in the purse to a victim during
an investigation. The Sheriff has refused to produce that file which are public records and the Court
has done nothing to compel the production of those public records in violation of his oath and duty
as a judge.
90.
Defendant Swartz also blocked Gates’s request to hear the audio-tape which recorded the
testimony of former Deputy Nathan Miller on January 5, 2012, when the accuracy of the Miller
transcription was questioned.
COUNT I – § 1983 CAUSES OF ACTION
91.
Page 29 of 40
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These defendants MALICIOUSLY PROSECUTED AND FALSELY charged plaintiff in
violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Under color of law, and having made a custodial arrest, defendants did inflict serious, permanent
injuries upon Gates and cause damages to and otherwise violate his federal constitutional and federal
civil rights.
92.
These defendants acted in combination and in concert to commit unlawful and
unconstitutional acts against plaintiff. Furthermore, the law under the Fourth, Fifth, Eighth, and
Fourteenth Amendments in this regard is clearly established so as to defeat any purported police
defendants’ qualified immunity for state law claims.
93.
Complainant Gates repeats and re-alleges and incorporates by reference the allegations in
paragraphs above with the same force and effect as if set forth herein.
94.
At all times relevant herein, the conduct of all defendants were subject to 42 U.S.C. § 1983,
1985, 1986, and 1988.
95.
Acting under the color of law, defendants worked a denial of Gates’s rights, privileges, and
immunities secured by the United States Constitution and by Federal law.
COUNT II - ENUMERATED § 1983 VIOLATIONS
96.
Complainant Gates repeats and re-alleges and incorporates by reference the allegations in
Page 30 of 40
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paragraphs above with the same force and effect as if set forth herein.
97.
At all times relevant herein, the conduct of all defendants were subject to 42 U.S.C. § 1983,
1985, 1986, and 1988.
98.
Acting under the color of law, defendants worked a denial of Gates’s rights, privileges, and
immunities secured by the United States Constitution and by Federal law, including but not limited
to the violations enumerated immediately below.
99.
VIOLATION OF 42 U.S.C. 1983 - Concerted Unlawful and Malicious Subsequent
Arrests and Charges which deprived Gates of both his liberty without due process of law and his
right to equal protection of the laws, due course of justice was impeded, in violation of the United
States Constitution and its Amendments.
100.
VIOLATION OF 42 U.S.C. 1983 - Concerted Unlawful and Malicious Sequential
Fabrication, Destruction of Evidence, and Alteration of Evidence, which deprived Gates of both
his liberty without due process of law and his right to equal protection of the laws, due course of
justice was impeded, in violation of the United States Constitution and its Amendments.
101.
VIOLATION OF 42 U.S.C. 1983 - Neglecting to Prevent defendant officers under this
control, from violating the rights, privileges, and immunities of Gates—as set forth in the facts at
paragraphs above or neglect in preventing deprived Gates of both his liberty without due process of
Page 31 of 40
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law and his right to equal protection of the laws, due course of justice was impeded, in violation of
the United States Constitution and its Amendments.
102.
VIOLATION OF 42 U.S.C. 1983 - Clerk of Court and District Attorney’s Malicious
Prosecution designed to shield and otherwise coverup the defendant officers under their
department’s control, who violated the rights, privileges, and immunities of Gates—as set forth in
the facts at paragraphs above, which deprived Gates of both his liberty without due process of law
and his right to equal protection of the laws, due course of justice was impeded, in violation of the
United States Constitution and its Amendments.
103.
VIOLATION OF 42 U.S.C. 1983 - District Attorney Noriea’s Malicious Prosecution
and his proven personal alteration, destruction, and fabrication of evidence designed to shield
and otherwise coverup for others including certain named co-defendants who violated the rights,
privileges, and immunities of Gates—as set forth in the facts at paragraphs above which deprived
Gates of both his liberty without due process of law and his right to equal protection of the laws, due
course of justice was impeded, in violation of the United States Constitution and its Amendments.
104.
COUNT III – § 1983 CONSPIRACY CAUSE OF ACTION
All defendants acted in combination and in concert, and in whose “deliberate indifference
in not preventing these acts,” combined with the willful acts of his deputies acting in concert and
conspiracy with the Clerk of Court, the District Attorney, and private counsel thereby allowing the
commission of these unlawful acts of illegally detaining, arresting, extorting, and violating Gates’s
Page 32 of 40
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various constitutional rights.
105.
COUNT IV – § 1983 LIABILITY OF Defendants, Clerk of Court, ADA Noriea, District
Attorney Walter P Reed, in their official capacities
106.
The named defendants through their public offices violated complainant rights as those rights
are expressly guaranteed and protected under Holly Ray Bush v. Sheriff Rodney Jack Strain, et al.
[No. 07-30837, 14 January 2008], Monell v. New York City Dept of Social Services, 436 U.S. 658,
City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520 U.S. 781, Bryan County
Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, State
v. Tate 171 So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
107.
The Clerk of Court and the District Attorney and their office are responsible for the acts and
omissions of the employees and are liable for the activities of its agents, who are not employees.
108.
At all times pertinent hereto, the defendants were acting under color of law, statutes, customs,
policies, ordinances and usages of the State of Louisiana, the Parish of St. Tammany Clerk of Court
and District Attorney’s Offices.
109.
Page 33 of 40
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At all times pertinent hereto, the Clerk of Court and District Attorney’s Offices failed to
adopt sufficient policies to deter or prevent the violating of Gates’s civil rights.
110.
At all times pertinent hereto, these defendants failed to develop and/or maintain a custom or
policy to identify, discipline, rehabilitate and/or retrain its police officers who violated Gates’s civil
rights.
111.
The illegal and unconstitutional policies and procedures of the department were the driving
force of the deprivation of Gates’s rights herein.
112.
Furthermore, through improper training, improper hiring, negligent retention and after
ineffective internal policies, ignoring patterns and practices of abuse, these defendants were
deliberately indifferent to said policies and procedures leading to Gates’s rights being violated.
113.
The District Attorney and their co-defendants used the policy and procedure to engage in
illegal activities to illegally secure charges—including but not limited to resisting an officer or
resisting arrest—against innocent persons, here in violation of Gates’s federal and state rights.
114.
As a result of their various violations, these defendants are liable to plaintiff pursuant to 42
U.S.C. §§1983, 1985, 1986, and 1988.
115.
Page 34 of 40
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At all times pertinent hereto, defendants acting under color of law, are responsible for the
actions and inactions of his subordinates as they relate to the violations of Gates’s civil rights, in the
following non-exhaustive particulars:
1. Failure to properly hire, train, discipline and/or supervise the officers under their
authority;
2. Failure to adopt and enforce reasonably appropriate policies, practices, and
procedures for the operation and administration of the internal affairs of the Clerk of
Court and the District Attorney’s Office;
3. Condoning a pattern, practice and/or custom of police officer intimidation and abuse,
and by failing to take appropriate and reasonable measures to ensure that the
members of the general public are protected from unlawful searches, seizures, and
extortion by members of the defendants offices and departments;
116.
All of the acts and omissions alleged herein are established customs, policies and practices,
which, among others, have the effect of depriving Gates of his right to due process of law, including
freedom from unreasonable searches and seizures, as well as other rights, privileges and immunities
secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United
States and the Constitution of the State of Louisiana, which directly and proximately caused the
damages complained of herein.
117.
At all times pertinent hereto, defendants were acting within the course and scope of their
employment and authority under the color of law, and were liable for the acts of said defendants
Page 35 of 40
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and/or vicarious liability for all causes and claims stated herein.
118.
As a result of their various violations, these defendants are liable to Gates pursuant to 42
U.S.C. §§1983, 1985, 1986, and 1988.
COUNT V – LIABILITY OF PUBLIC OFFICIALS AND OFFICES
119.
The Clerk of Court, ADA Nick Noriea and Gracianette, and the St. Tammany District
Attorney, his assistants, and his office violated complainant rights as those rights are expressly
guaranteed and protected under Monell v. New York City Dept of Social Services, 436 U.S. 658, City
of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520 U.S. 781, Bryan County
Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, and
Holly Ray Burns v. Sheriff Rodney Jack Strain, et al. [No. 07-30837, 14 January 2008].
120.
The Clerk of Court, ADA Noriea, the St. Tammany District Attorney, his assistants, and his
office have violated their mandate as set forth in the United States Constitution and the 1974
Louisiana Constitution, as articulated expressly in State v. Tate 171 So. 108, Perez, 454 So.2d 806,
Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903 and have violated that mandate as further defined
under Monell v. New York City Dept of Social Services, 436 U.S. 658, City of Canton v. Harris, 489
U.S. 387, McMillian v. Monroe County, 520 U.S. 781, Bryan County Comm’r v. Brown, 520 U.S.
397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, State v. Tate 171 So. 108, Perez,
454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
Page 36 of 40
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121.
By conspiring with the co-defendants to obstruct Mr. Gates’s redress of the violations of his
constitutional and civil rights, these defendants including but not only the St. Tammany District
Attorney, the Sheriff, the Clerk of Court, and Judge have violated their mandate as set forth in the
1974 Louisiana Constitution, and as articulated—specifically prohibiting a district attorney from
being involved or interested in any extrinsic matters, which might consciously or unconsciously
impair his power to conduct an accused’s trial impartially. State v. Tate, Sup.1936, 185 La. 1006,
171 So. 108. Their conduct also constitutes treason.
122.
In violating their constitutional mandate, the Clerk of Court and the St. Tammany District
Attorney, his assistants, and his office have also deprived and violated his constitutional and civil
rights as set forth in Monell v. New York City Dept of Social Services, 436 U.S. 658, City of Canton
v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520 U.S. 781, Bryan County Comm’r v.
Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5 (La.) 1999, State v. Tate 171
So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903.
COUNT VI – DUE PROCESS AND EQUAL PROTECTION VIOLATIONS
123.
By maliciously and illegally and sequentially arresting, falsely charging plaintiff, and denying
plaintiff a good faith prosecution, a right to a fair trial, all color of law officials and district-attorneys
defendants violated Gates’s rights to due process and equal protection as set forth by the United
States Constitution.
COUNT VIII – LOUISIANA LAW CLAIMS
Page 37 of 40
17-30519.2875
124.
Based on the facts stated above, plaintiff hereby asserts various claims under the Louisiana
Constitution and laws of the State of Louisiana and based on the facts stated above, Co-defendants
did knowingly and intentionally, or in the alternative negligently, violate Gates’s rights as those
rights are protected and guaranteed under the Constitutions of the United States, and that of the State
of Louisiana.
125.
incident, only now prosecuted against Gates—such that they can coexist with any fact-based aspect
of any element of any charge which has been created, made, and now advanced by the defendants
Clerk of Court and District Attorney.
DAMAGES
126.
Gates avers all damages arising from these violations of his rights under
the United States Constitution and that of the State of Louisiana.
REQUEST FOR JURY TRIAL
Shane M. Gates Requests a Trial by Jury
RELIEF
Based on the facts stated above, and against all defendants and award such damages as are
allowed under federal and state law, including all penalties and fees and costs for bringing this matter
Page 38 of 40
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and those fees and costs required to defend Gates in the fraudulent criminal matters.
s/ Daniel G. Abel
Daniel G. Abel, LSB # 8348

Telephone: 504.284.8521
Facsimile: 888.577.8815
Direct: danielpatrickegan@gmail.com
Verification of the Facts
I, Shane M. Gates have personal knowledge of the facts and statements made herein and
therefore verify that these facts are true to the best of my knowledge and belief. I have worked with
counsel to comply with the requirements needed to submit this complaint.
Verified on 5 August 2013
____________s/ Shane M. Gates_______________

Shane M. Gates,
Complainant
Rule 11 Verification of Investigation and Facts
I, Daniel G. Abel, attorney at law, have personal knowledge of the facts and statements made
herein and therefore verify that these facts are true to the best of my knowledge and belief under Rule
11. I have represented Gates since the outset of this malicious and fabricated prosecution and have
personal knowledge and evidence which proves that testamentary evidence was altered and destroyed
Page 39 of 40
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by the defendants named herein and shall provide that evidence including the work of forensic
experts who shall further prove the fraud underlying the malicious felony prosecution of Gates which
ended a twelve person verdict of NOT GUILTY, on 27 July 2012. I have also been involved in the
investigation of four or five other, similar prosecutions in the Parish of St. Tammany and shall
confirm the fraud and actions taken in the Gates matter as part of the habit and practice by the
District Attorney including but not only his referral of civil actions to other attorneys while the
underlying criminal actions are being prosecuted by Reed and the persons in his office. I may be
called as a witness at trial and shall testify accordingly.
Verified on 5 August 2013
___________s/ Daniel G. Abel_____________

Daniel G. Abel, LSB #8348
Attorney at Law
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SHANE M. GATES
CIVIL ACTION
VERSUS
NO. 13-505-JJB
JUDGE RICHARD SWARTZ,
ET AL.
NOTICE AND ORDER
A motion (doc. 3) for change of venue or to dismiss for insufficient service of process
was filed on September 13, 2013;
Any oppositions shall be filed within 21 days of the filing of the motion.
Any reply briefs shall be filed within 15 days of the filing of the opposition.
Baton Rouge, Louisiana, September 16, 2013.
JAMES J. BRADY, JUDGE

17-30519.3049

VERSUS 13-505-JJB-SCR
JUDGE RICHARD SWARTZ, ET AL
ORDER
IT IS ORDERED that a scheduling conference is hereby set before United States
Magistrate Judge Stephen C. Riedlinger for November 14, 2013 at 9:30 a.m.
IT IS FURTHER ORDERED that a status report shall be filed not later than
October 31, 2013. It shall be the duty of the attorney for plaintiff to provide the
defendant(s) with a copy of this order and attachment, and to prepare, sign, and file the
status report in accordance with Attachment A.
No party may submit a separate status report without first obtaining leave of court
for good cause shown. Mere disagreements among parties with respect to any of the
matters addressed in the report should be set forth in the appropriate section of the joint
status report.
The Court will review the report prepared and filed in accordance with Attachment
A in advance of the conference to determine whether or not the scheduling conference
should go forward as scheduled, be reset, or be cancelled and a scheduling order issued
based upon the report. In the event there are no reported problems requiring court
intervention and the parties have provided a timely report setting forth applicable deadlines,
Revised: 4/24/2012
17-30519.3050
the court will notify the parties that the conference will not be held and that a scheduling
order based on their submitted deadlines will be forthcoming. Unless the court issues an
order cancelling the conference, the conference will be held as scheduled.
Baton Rouge, Louisiana, September 17, 2013.
STEPHEN C. RIEDLINGER
Enc.: Attachment A
Consent Notice
Revised: 4/24/2012
17-30519.3051
ATTACHMENT A

STATUS REPORT
A. JURISDICTION
What is the basis for the jurisdiction of the Court?
B. BRIEF EXPLANATION OF THE CASE
1. Plaintiff claims:
2. Defendant claims:
C. PENDING MOTIONS
List any pending motion(s), the date filed, and the basis of the motion(s):
D. ISSUES
List the principal legal issues involved and indicate whether or not any of those
issues are in dispute:
E. DAMAGES
Separately, for each party who claims damages or an offset, set forth the
computation of damages or the offset:
1. Plaintiff's calculation of damages:
2. Defendant's calculation of offset and/or plaintiff's damages:
Revised: 4/24/2012 1
17-30519.3052
3. Counterclaimant/cross claimant/third party's calculation of damages:
F. SERVICE:
Identify any unresolved issues as to waiver or service of process, personal

jurisdiction, or venue:
G. DISCOVERY
1. Have the initial disclosures required under FRCP 26(a)(1) been completed?
[ ] YES [ ] NO
A. Do any parties object to initial disclosures?
[ ] YES [ ] NO
For any party who answered yes, please explain your reasons for objecting.
B. Please provide any stipulations reached by the parties with regard to

FRCP 26(a)(1) initial disclosures.
2. Briefly describe any discovery that has been completed or is in progress:
By plaintiff(s):
By defendant(s):
3. Please describe any protective orders or other limitations on discovery that

may be required/sought during the course of discovery. (For example: are
there any confidential business records or medical records that will be
sought? Will information that is otherwise privileged be at issue?)
4. Discovery from experts:
Identify the subject matter(s) as to which expert testimony will be offered:
By plaintiff(s):
By defendant(s):
H. PROPOSED SCHEDULING ORDER
1. Recommended deadlines for amending the complaint, or adding new parties,

claims, counterclaims or cross claims: .
2. Recommended deadlines for completion of fact discovery: ____________.
Revised: 4/24/2012 2
17-30519.3053
A. Exchanging initial disclosures required by FRCP 26(a)(1):
B. Filing all discovery motions and completing all discovery except

experts: .
3. Disclosure of identities and resumés of expert witnesses (if appropriate, you

may suggest different dates for disclosure of experts in different subject
matters):
Plaintiff(s): .
Defendant(s): .
4. Exchange of expert reports:
Plaintiff(s): .
Defendant(s): .
5. Completion of discovery from experts: .
6. Filing dispositive motions and Daubert motions: .
7. All remaining deadlines and the pre-trial conference and trial date will be
included in the initial scheduling order. The deadlines will be determined by
the magistrate judge based on the presiding judge's schedule, within the
following general parameters1:
a. Deadline to file pre-trial order (approximately 16 weeks after

dispositive motion deadline).
b. Deadline to file motions in limine (approximately 20-22 weeks after

c. Deadline to file responses to motions in limine (approximately 22-24

weeks after dispositive motion deadline).
1
The date ranges provided for the new deadlines, pre-trial conference, and trial date are a
general guideline only. The actual dates may vary depending on the complexity of a particular case.
All requests for subsequent changes to the deadlines set in the scheduling order under number 7
must be by motion directed to the presiding judge.
Revised: 4/24/2012 3
17-30519.3054
d. Deadline to file an affidavit of settlement efforts (approximately 22-24

weeks after dispositive motion deadline).
e. Deadline to submit joint jury instructions, voir dire, verdict forms, and
trial briefs to the presiding judge (approximately 25-27 weeks after
f. Pre-trial conference date (approximately 18-20 weeks after dispositive

motion deadline).
g. Trial date (approximately 27-29 weeks after dispositive motion

deadline).
8. If the general outline of proposed deadlines does not fit the circumstances of
your particular case, please provide a proposed joint schedule of deadlines
which is more appropriate for your case.
I. TRIAL
1. Has a demand for trial by jury been made?
[ ] YES [ ] NO
2. Estimate the number of days that trial will require.
J. OTHER MATTERS
Are there any specific problems the parties wish to address at the scheduling
conference?
[ ] YES [ ] NO
1. If the answer is yes, please explain:
2. If the answer is no, do the parties want the court to cancel the
scheduling conference and to enter a scheduling order based on the
deadlines set out in this report? CHECK “NO” IF YOU HAVE NOT
SUBMITTED PROPOSED DEADLINES.
[ ] YES [ ] NO
K. SETTLEMENT
1. Please set forth what efforts, if any, the parties have made to settle this case
to date.
Revised: 4/24/2012 4
17-30519.3055
2. Do the parties wish to have a settlement conference:
[ ] YES [ ] NO
If your answer is yes, at what stage of litigation would a settlement conference be

most beneficial?
L. CONSENT TO JURISDICTION BY A MAGISTRATE JUDGE
You have the right to waive your right to proceed before a United States District
Judge and may instead consent to proceed before a United States Magistrate
Judge.
Indicate whether, at this time, all parties will agree, pursuant to 28 U.S.C. § 636(c),
to have a Magistrate Judge handle all the remaining pretrial aspects of this case and
preside over a jury or bench trial, with appeal lying to the United States Court of
Appeals for the Fifth Circuit.
All parties agree to jurisdiction by a Magistrate Judge of this court:
[ ] YES [ ] NO
If your response was “yes” to the preceding question, all attorneys and
unrepresented parties should sign the attached form to indicate your consent.
Report dated:
Attorney(s) for Plaintiff(s) or Pro Se Plaintiff
Revised: 4/24/2012
17-30519.3056
NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF
CIVIL CASE BY A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of 28 U.S.C. 636(c), you are hereby notified that
all of the parties in this civil case may consent to allow a United States Magistrate Judge
of this district court to conduct any and all proceedings, including trial of the case and entry
of a final judgment.
You may consent by signing the form contained within the status report, or you may
use the attached form at any later stage of the proceedings should you decide at that time
to proceed before the United States Magistrate Judge. A copy of a consent form is
enclosed and is also available from the clerk of court. In the event all parties consent to
proceed before the Magistrate Judge, the signed consent form must be filed with the court,
either electronically or conventionally, but ONLY AFTER ALL PARTIES HAVE SIGNED
THE FORM.
You should be aware that your decision to consent, or not to consent, to the
disposition of your case before a United States Magistrate Judge is entirely voluntary.
Either the district judge or the magistrate judge may again advise the parties of the
availability of the magistrate judge, but in doing so, shall also advise the parties that they
are free to withhold consent without adverse consequences.
Please note that the parties may appeal the magistrate judge's decision directly to
the court of appeals in the same manner as an appeal from any other judgment of the
district court.
Revised: 4/24/2012
17-30519.3057

CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE
In accordance with the provisions of 28 U.S.C. 636(c), the parties to the above
captioned civil proceeding hereby waive their right to proceed before a United States
District Judge and consent to have a United States Magistrate Judge conduct any and all
further proceedings in the case, including but not limited to the trial of the case, and order
the entry of judgment in the case.
The parties are aware that in accordance with 28 U.S.C. 636(c)(3), any aggrieved
party may appeal from the judgment directly to the United States Court of Appeals for the
Fifth Circuit in the same manner as an appeal from any other judgment of the district court.
Date Party Represented Pro Se or Atty. Name Pro Se or Atty. Signature
Revised: 4/24/2012
17-30519.3058

SHANE M. GATES NO. 3:13-CV-00505
VERSUS JUDGE: JJB
RICHARD A. SWARTZ MAG JUDGE: SCR
**************************************************************
CONSENT MOTION FOR EXTENSION OF TIME
TO FILE OPPOSITION TO DEFENDANTS MOTION
TO CHANGE VENUE PURSUANT TO 28 U.S.C. 1404
AND ALTERNATIVELY, MOTION TO DISMISS
FOR INSUFFICIENT SERVICE OF PROCESS
PURSUANT TO FRCP 12(b)(5) [Rec. Doc. 3]
Gates and counsel move the Court for an extension of time on or before which to file
their opposition to defendants’ Motion for Change of Venue and Insufficient Service. The
opposition shall be filed on or before this coming Tuesday, 8 October 2013. This request is made
necessary by the need to prepare for Tropical Storm Karen which began in the early afternoon
and has compromised all other activities.
Counsel did speak with opposing counsel Mr. Mark Hanna. Mr. Hanna and his client
understand the situation and do not oppose the motion and request for an extension of time to file
their opposition, on or before this upcoming Tuesday, 8 October 2103.

Daniel G. Abel LSB#8348 Having filed this pleading with
2421 Clearview Parkway the Clerk of Court thru the CM/ECF
Legal Department Suite 106 system on 4 October 2013, I have
Metairie, Louisiana 70001 served all counsel.
Telephone: 504.284.8521
SFacsimile: 888.577.8815
17-30519.3059
SHANE M. GATES NO. 3:13-CV-00505
VERSUS JUDGE: JJB
RICHARD A. SWARTZ MAG JUDGE: SCR
**************************************************************
ORDER
For the reasons set forth in the motion and as the motion is unopposed,
Gates Motion for an Extension of Time to File His Opposition is GRANTED.
Gates and counsel must file their opposition on or before this Tuesday, 8 October
2013.
Ordered this ____ day of ____________, 2013. Baton Rouge, Louisiana.
_______________________________
JUDGE
17-30519.3060
17-30519.3061


*
*
JUDGE RICHARD SWARTZ, WALTER P. REED,* CASE NO.: 13-cv-505
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE: JJB
CAPTAIN SHERWOOD, KATHRYN LANDRY, * MAG. JUDGE: SCR
*****************************
OPPOSITION TO MOTION FOR CHANGE OF VENUE

AND AS TO INSUFFICIENCY OF SERVICE
Gates and counsel move the Court to deny defendants’ motion for change of venue and
deny their request to dismiss as not applicable under FRCP 4 Summons (m).
I. Complainants Have 120 Days To Summon Defendants under Rule 4(m)
Gates and counsel filed the original complaint on 5 August 2013; defendants must be
served by 5 December 2013. They shall be. Although counsel for the Sheriff has filed the motion
for change of venue, it may be premature as all parties have not joined his motion or been joined
by service and summons in the suit.
Be that as it may, service is not subject to contest until the 120 days have passed and
Page 1 of 7
17-30519.3062
Gates has failed to summon each defendant, which shall be 5 December 2013. The rule is clear.
Rule 4. Summons
(m) Time Limit for Service.

If service of the summons and complaint is not made upon a defendant within 120 days
after the filing of the complaint, the court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or
direct that service be effected within a specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend the time for service for an appropriate
period. This subdivision does not apply to service in a foreign country pursuant to
subdivision (f) or (j)(1).
The original complaint was filed on 5 August 2013. According to Rule 4 (m), service of
the summons and complaint on each defendant must be made within 120 days, by 5 December
2013.
As each of the parties know, the United States Department of Justice has convened
federal grand juries to review the actions of public officials in St. Tammany Parish including but
not only some of the party defendants named in this action. Understandably these persons would
like to have the issues raised in this lawsuit addressed before any actions are taken by the grand
juries.
However, their concern has no effect whatsoever on the application of Rule 4 (m). Gates
and counsel have 120 days within which to serve and summon all defendants and shall do so by 5
December 2013. Not all defendants are joined at this time.
II. What Is So Compelling About A Change of Venue
While defendant Walter Reed boasts that his influence extends over the United States
District Court for the Eastern District of Louisiana as it does over the 22nd Judicial District Courts
in St. Tammany, counsel knows enough persons including judges in the Eastern District to know
Page 2 of 7
17-30519.3063
that as a rule, his boast is what it appears to be, boastful.
However, a recently discovered ex parte communication between named defendant ADA
Nick Noriea of Walter Reed’s office and a particular division of the federal courts raises some
concern. Of greater concern is the fact that the federal RICO case involved several sitting judges
in St. Tammany Parish and the fraudulent acquisition of real property through forged quit claim
deeds.
III. Defendants’ Recently Discovered Ex Parte Contacts With the EDLA Court Mandates
That This Matter Remain in These Court of the Middle District - For Impartiality
In May 2013 certain persons investigating St. Tammany Parish and the 22nd Judicial
District Court for the Parish of St. Tammany, discovered that ADA Nick Noriea’s daughter, Mrs.
Stephanie Noriea Murphy—an attorney, law clerk for United States District Court Judge Jane T.
Milazzo—was the federal law clerk [even numbered cases] assigned to and the law clerk who
worked on the RICO action [United States District Court for the Eastern District of Louisiana
/Case No. 2:10-cv-02786] which had as RICO defendants—and additional wrongdoers—sitting
judges in the 22nd Judicial District Courts for the Parish of St. Tammany. St. Tammany. Her
father ADA Nick F. Noreia, Jr. was and still is the ADA assigned to one of the judges named in
the RICO action. These contacts have been reported to the proper federal authorities. Knowing
that this can happen and has happened recently, this matter should remain in the Middle District.
Ms. Noriea Murphy listed her [and her husband’s] residence at her father’s home in
Covington, Louisiana at the time she was assigned to and did work on the RICO suit. The
obvious fact is that she would have continuing communicating with her father ADA Noriea
about his 22nd JDC associates as well as with William Magee, his former law partner now Judge
Page 3 of 7
17-30519.3064
Mary Devereaux, Judge William Burris-for whom Magee worked as a campaign chairman and
fund-raiser replacing in fact Judge William Knight after Knight took the bench. Magee was a
formed ADA and counsel for both the Sheriff and District Attorney. Magee was city attorney for
Abita Springs when Sheriff Jack Stain was chief of police there.
Not surprisingly the Court dismissed all the RICO claims against all defendants including
the several sitting judges in the 22nd JDC. Upon information and belief, several of those same
individuals are persons of interest in the pending federal inquiries.
While such unethical conduct is not uncommon in the 22nd JDC, Noriea’s investment
scheme actions in Mississippi constitute fraud, for which he has been sued in Mississippi and the
result of which United States District Court Judge Helen G. Berrigan recently entered at
judgment against Noriea in the amount of $225,000 in attorney fees and $15,000 in costs.
Even a cursory review of the facts mandates that he be removed from his position of
authority with the District Attorney’s Office for the Parish of St. Tammany. Any District
Attorney other than Walter Reed would have removed [and probably prosecuted] him already.
The United States District Court issued a $225,000 judgment against Noriea on January 3, 2013.
United States District Court judgment was issued by the Honorable Judge Helen G. Berrigan on
January 3, 2013 / EDLA / No. 2:12-cv-02655-HGB-KWR.
This judgment arose from a lawsuit against ADA Noriea which alleged fraud as the
plaintiff in that suit gave Noriea over $150,000 for an investment in one of multiply investment
companies created and owned by Noriea through which he received millions of dollars and for
which the investors got [almost] nothing in return Ms. Broullette who verified a loss of almost
$200,000 investment, got back $74.00+ from the bankruptcy court.
Page 4 of 7
17-30519.3065
But at issue here is Noriea’s ex parte communications with federal courts in New Orleans
and that such contacts are possible, may confirm Walter Reed’s boasts. But of equal concern that
he has and has had ex parte communication with some of the Eastern District Courts.
More critically, such recent ex parte contacts raise the issue of impartiality and are
suggestive of why these defendants now wish to have this matter transferred from these Middle
District Courts. In itself, their request for a change of venue is a compliment to these Courts.
IV. The Impartiality of The Middle District Courts Mandates Denial of Defendants’ Request
As recently discovered Reed’s office has had ex parte contacts with at least one of the
federal courts in New Orleans. The Court which hears this matter will have to consider that
District Attorney Walter P. Reed is “Of Counsel” with the law firm that represents the Sheriff’s
insurance companies St Pauls-Travelers in the Gates matter and Reed’s continued insistence on
prosecuting Gates after the NOT GUILTY verdict works to the apparent benefit of their clients
and done to shield all from their liability for Gates’s permanent injuries and prognosed
surgeries. Reed used his official and private positions in violations of the Hobbs Act.
This is not the first instance of such a conflict on the part of District Attorney Reed,
including cases he has referred to other counsel, when the matters were being prosecuted by his
office. In the past, Sheriff’s Attorney Chuck Hughes has accused Reed of referring cases to
attorneys for matters being prosecuted by his office, the records for which will be presented to
this Court.
The taxpayer monies spent by Walter Reed in this prosecution also accrues to the benefit
of the insurance carriers, who are represented by the law firm where Walter Reed is: “Of
Counsel”.
Page 5 of 7
17-30519.3066
When he joined the law firm Reed stated publically that “ . . . he found no conflict of
interest associating with the firm, especially because it takes no criminal cases”. He did not state
that his new firm represents companies that insure the sheriff as in the Gates case and that Reed’s
continued prosecution after the jury found Gates NOT GUILTY, works to the advantage of his
firm’s clients, in this instance St. Pauls and Travelers insurance companies.
V. Defendants Argument for Change of Venue Lack Merit
Counsel has listed a number of reasons why this matter should be transferred to the
Eastern District: (1) more parties are domiciled or work there, (2) more convenient for travel, (3)
more of the facts occurred in the Eastern District, (4) counsel are located in New Orleans or
across the lake, and various other reasons. These reasons of themselves lack merit in the federal
court system where all actions are done electronically and few if any oral arguments are heard
before and in the Court itself.
To the extent that discovery and depositions are taken, they will not be taken in the Court
but at agreed upon locations in Baton Rouge, New Orleans, or St. Tammany.
Having been involved in this matter since 2006 and having uncovered the fraud,
destruction and fabrication of evidence by the named defendants and having reported the same to
all appropriate federal authorities, counsel avers that defendants request for a change of venue
belies their belief that they will gain some insider advantage by leaving these Middle District
Courts. Had counsel and investigators not discovered the ex parte communications between the
District Attorney’s office and the federal court in the recent RICO case, perhaps counsel’s
concern would not be so strong.
During the course of the last seven years counsel and investigators and others have
Page 6 of 7
17-30519.3067
discovered fraud, destruction of evidence and now the fact that District Attorney Walter P. Reed
is “Of Counsel” with the law firm that represents the Sheriff’s insurance companies St Pauls-
Travelers in the Gates matter and Reed’s continued insistence on prosecuting Gates after the
NOT GUILTY verdict works to the apparent benefit of their clients and done to shield all from
their liability for Gates’s permanent injuries and prognosed surgeries. Reed and these other
defendants have used their official and private positions in violations of the Hobbs Act.
Now they wish to take this matter to the Eastern District. Why? Not for the reasons they aver!
At a time when all branches of government are questioned, the integrity of the Courts is
as important as any matter before the people. Even the slightest suggestion of partiality calls into
question that integrity. Defendants’ motion for a change of venue does so as well. Their motion
for a change of venue should be denied.
Daniel G. Abel, LSB # 8348 I have filed this pleading with

2421 Clearview Parkway the Clerk using the CM/ECF
Legal Department - Suite 106 system and thereby served counsel.
Metairie, Louisiana 70001 8 October 2013
Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 7 of 7
17-30519.3068
SHANE M. GATES CIVIL RIGHTS: 42 U.S.C. § 1983

ACTION AS TO TREASON
VERSUS
CASE NO:
JUDGE RICHARD SWARTZ, 3:13-cv-00505
WALTER P. REED, ADA NICHOLAS
F. NORIEA, JR., CLERK OF COURT- JUDGE:
ST TAMMANY, MARIE-ELISE HONORABLE JAMES J. BRADY
PRIETO, STPSO SHERIFF RODNEY
"JACK" STRAIN, CAPTAIN MAG. JUDGE:
SHERWOOD, KATHRYN LANDRY, STEPHEN C. RIEDLINGER
THE OFFICE OF THE CLERK OF
COURT OF ST. TAMMANY,
LOUISIANA ATTORNEY GENERAL JURY TRIAL
JAMES D. "BUDDY" CALDWELL,
THE OFFICE OF THE LOUISIANA
ATTORNEY GENERAL, THE
OFFICE OF WALTER P. REED
DISTRICT ATTORNEY FOR THE
PARISH OF ST TAMMANY, ADA
RONNIE GRACIANETTE, JOHN
AND JANE DOES OF THE PARISH
AND STATE OFFICES NAMED, AND
TRAVELERS-ST PAUL INSURANCE
COMPANIES
REPLY TO OPPOSITION TO MOTION FOR CHANGE OF VENUE AND AS TO

INSUFFICIENCY OF SERVICE OF PROCESS PURSUANT TO FRCP 12(B)(5)
Pursuant to the Order of this Court dated September 16, 2013 (R. Doc. 4) Defendants, St.
Tammany Parish Sheriff Rodney “Jack” Strain, in his official and individual capacity as Sheriff,
St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire and Marine Insurance Company
(improperly named as “Travelers – St. Paul Insurance Companies”), Louisiana Attorney General
17-30519.3069
James D. “Buddy” Caldwell and the office of the Louisiana Attorney General (“Defendants”)
submit this reply to Plaintiff’s opposition memorandum.
I. PLAINTIFF HAS FAILED TO REBUT DEFENDANTS’ DEMONSTRATION

THAT A TRANSFER OF VENUE IS WARRANTED
A. Plaintiff does not contest that the Eastern District of Louisiana would be a
proper venue for the present lawsuit.
In his opposition, Mr. Gates only addresses whether transfer to the Eastern District of
Louisiana is appropriate and does not in any way argue that venue would be improper in the
Eastern District of Louisiana. Since Gates does not contest Defendants’ assertion that venue is
proper in the Eastern District of Louisiana, the threshold question of whether the lawsuit could
be brought in the Eastern District of Louisiana is not at issue. Saint-Gobain Calmar, Inc. v.
National Products Corp., 230 F. Supp. 2d 655, n.2 (E.D. Pa. 2002).
The United States Fifth Circuit has stated:
The underlying premise of §1404(a) is that courts should prevent plaintiffs from
abusing their privilege under § 1391 by subjecting defendants to venues that are
inconvenient under the terms of § 1404(a). Thus, while a plaintiff has the
privilege of filing his claims in any judicial division appropriate under the general
venue statute, § 1404(a) tempers the effects of the exercise of this privilege.
Pension Advisory Group Ltd. v. Country Life Ins. Co., 771 F. Supp. 2d 680, 709 (S.D. Tex. 2011)
(citing In Re: Volkswagen of America, Inc., 545 F.3d 304, 313 (5th Cir. 2008)) (internal citations
omitted).
B. Plaintiff’s cursory review of the public and private interest considerations is

not sufficient to rebut Defendants showing that the Eastern District of
Louisiana is a more appropriate venue for the convenience of the parties and
witnesses and in the interest of justice.
Although deference is generally given to the plaintiff’s choice of forum, it has long been
held that the burden of the mover on a motion to transfer venue is less when the plaintiff has not
sued in a district which is his “home turf”. Lee v. Ohio Cas. Ins. Co., 445 F. Supp. 189, 192 (D.
2
17-30519.3070
Del. 1978) (citing Morgan Guaranty Trust Co. of New York v. George Washington Corp. (D.
Del. 1977); General Instrument Corp. v. Mostek Corp., 417 F. Supp. 821, 822 (D. Del. 1976);
Burroughs Wellcome Co. v. Giant Food, Inc., 392 F. Supp. 761, 763 (D. Del. 1975). A
plaintiff’s choice of forum is entitled to less weight where the plaintiff chooses a forum which is
neither his home nor the situs of the occurrence upon which the suit is based. Saint-Gobain
Calmar, Inc., supra at 659 (citing Nat’l. Paintball Supply v. Cossio, 996 F. Supp. 459, 463 (E.D.
Pa. 1998)). In the present case, the events leading up to the arrest and subsequent prosecution
and the vast majority of the factual matter as set out in the Complaint, have all taken place in the
Eastern District of Louisiana.
Plaintiff’s arguments do not identify which of the eight public and private interest factors
that they apply to; it requires some deductive analysis:
(1) The Relative Ease of Access to Sources of Proof
Gates does not rebut Defendants’ arguments as to this factor. The closest that Gates
comes to addressing this factor is the statement that, “to the extent that discovery and depositions
are taken, they will be taken at agreed upon locations in Baton Rouge, New Orleans or St.
Tammany.” (See Plaintiff’s Opposition at p. 6, R. Doc. 8). Admittedly, this seems to address
sources of proof. However, there are certainly no specifics offered by Gates as to what sources
of proof are in Baton Rouge. Gates admits that such discovery will take place in New Orleans
and St. Tammany Parishes—both in the Eastern District of Louisiana. Defendants have set out
that the documents maintained by the District Attorney, the Sheriff, Judge Swartz, the Clerk of
Court and the medical records of Mr. Gates are all in the Eastern District of Louisiana. Although
Gates asserts “actions” will be done electronically, the United States Fifth Circuit Court of
Appeal has made clear that the actual location of books and records is “expressly stated as a
3
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venue factor in the special venue statute and should be weighed by a district court in evaluating
the ‘interest of justice’ aspect of the motion to transfer.” In re Horseshoe Entertainment, 337
F.3d 429, 434 (5th Cir. 2003). Plaintiff has presented nothing which would suggest that this
factor should not weigh significantly in favor of transfer.
(3) The Cost of Attendance for Willing Witnesses
Gates attempts to short-circuit this factor by stating that “. . . all actions are done
electronically and few if any oral arguments are heard before and in the Court itself.” (See
Plaintiff’s Opposition p. 6, R. Doc. 8). The reference to discovery and depositions not being
taken in the Court could also have some application to this factor. That said, Gates never
addresses the reality of a trial, which of necessity requires witness attendance, and the increased
time and mileage associated with most witnesses in having to travel to Baton Rouge as opposed
to New Orleans. Gates does not rebut Defendants’ contentions that the overwhelming majority
of witnesses in this case are in the Eastern District of Louisiana. This factor continues to weigh
in favor of transfer.
Although both this litigation and the matter before Judge Duval in the Eastern District of
Louisiana are in the very early stages, making a determination of exactly what witnesses are
likely to be called at trial somewhat speculative, Defendants can offer that the following are
reasonably anticipated to testify:
 Nathan Miller - based on information and belief he resides in St. Tammany
Parish.
It is anticipated that, as an officer involved in the chase and arrest of Mr. Gates, he would
testify regarding those events of November 16, 2006.
4
17-30519.3072
 Robert Gottardi – is still employed by the St. Tammany Parish Sheriff, residing in
St. Tammany Parish and can be served at 701 N. Columbia, Covington, Louisiana 70433.
 Brian Williams – is still employed by the St. Tammany Parish Sheriff, residing in
St. Tammany Parish and can be served at 701 N. Columbia, Covington, Louisiana 70433.
 Sheriff Rodney “Jack” Strain – can be served at 701 N. Columbia, Covington,
Louisiana 70433.
To the extent necessary, Sheriff Strain may testify as to the customs, policies and
practices of the St. Tammany Parish Sheriff’s Office. Sheriff Strain may also testify generally as
to the investigation of the events of November 16, 2006 and any other related matters.
 Walter Reed, St. Tammany Parish District Attorney – can be served at his office
located at 701 N. Columbia, Covington, Louisiana 70433.
It is anticipated that Mr. Reed may testify about the prosecution of Mr. Gates in the 22nd
Judicial District Court for the Parish of St. Tammany relative to the charges brought as a result of
the events of November 16, 2006..
 Chuck Hughes – can be served at his office located at 2250 7th Ave., Mandeville,
Louisiana, 70471.
Mr. Hughes may testify generally as counsel for Sheriff Strain as to non-privileged facts
relating to actions and communications following the events of November 16, 2006.
5
17-30519.3073
 Nurse Phillip Duitt – based on information and belief, Nurse Duitt resides outside
of the State of Louisiana.
Nurse Duitt may testify as to the medical care provided to Mr. Gates on or about
November 16, 2006 at the Heart Hospital in Lacombe, Louisiana.
 Randy Smith – upon information and belief, he resides in St. Tammany Parish.
 Scott Knight – is still employed by the St. Tammany Parish Sheriff, residing in St.
Tammany Parish and can be served at 701 N. Columbia, Covington, Louisiana 70433.
 Judge Richard Swartz – can be served at 701 N. Columbia, Covington, Louisiana
70433.
Judge Swartz may testify about the prosecution of Mr. Gates in the 22nd Judicial District
Court for the Parish of St. Tammany relative to the charges brought as a result of the events of
November 16, 2006.
 Assistant District Attorney Nicholas Noriea – can be served at his office 701 N.
Columbia, Covington, Louisiana 70433.
It is anticipated that Mr. Norriea may testify about the prosecution of Mr. Gates in the
22nd Judicial District Court for the Parish of St. Tammany relative to the charges brought as a
result of the events of November 16, 2006.
 Malise Prieto, St. Tammany Parish Clerk of Court – can be served at 701 N.
6
17-30519.3074
Ms. Prieto may testify as to the criminal record of Mr. Gates maintained by the St.
Tammany Parish Clerk’s office.
 Captain Sherwood, St. Tammany Parish Sheriff’s Office – is still employed by the
St. Tammany Parish Sheriff, residing in St. Tammany Parish and can be served at 701 N.
It is anticipated that Captain Sherwood may testify as to the records and other items in the
possession of the St. Tammany Parish Sheriff’s Office pertaining to Mr. Gates.
 Kathryn Landry – can be served at her law office at 8550 United Plaza Blvd.,
Suite 702, Baton Rouge, Louisiana.
It is anticipated that Ms. Landry may testify as to non-privileged facts pertaining to the
representation of the St. Tammany Parish District Attorney’s Office.
 A representative of the office of James D. “Buddy” Caldwell, Attorney General –
the attorney general’s office is located at 185 N. 3rd St., Baton Rouge, Louisiana.
It is anticipated that a representative of the attorney general’s office may testify as to
facts pertaining to Mr. Gates’ criminal prosecution and the representation of several judges of the
22nd Judicial District Court.
 Ronnie Gracianette – can be served at 701 N. Columbia, Covington, Louisiana
70433.
It is anticipated that Mr. Gracianette may testify about the prosecution of Mr. Gates in the
22nd Judicial District Court for the Parish of St. Tammany relative to the charges brought as a
result of the events of November 16, 2006.
7
17-30519.3075
Based on the above, the vast majority of the witnesses are located in the Eastern District
of Louisiana as well as the sources of proof and other evidence. As previously mentioned, this
factor weighs in favor of transfer.
(4) All Other Practical Problems that Make Trial of the Case Easy, Expeditious and
Inexpensive
As previously stated by Defendants, the factual predicate for the Complaint before this
Court is essentially the same as the 42 U.S.C. § 1983 case (No. 07-06983) pending since 2007
before Judge Stanwood Duval of the Eastern District of Louisiana. There is a risk of conflicting
decisions in allowing these parallel proceedings to go forward premised on essentially the same
facts and similar legal theories. About the only thing that Plaintiff states in this regard is his
suggestion that an “insider advantage” will be gained by Defendants in the Eastern District of
Louisiana. Such a statement is reckless as well as preposterous. Judge Duval has not been
involved in any referenced RICO case and Gates’ counsel’s attempt to create a web of
conspiracy against him in the Eastern District courthouse rings hollow.
The federal courts have held that a transfer may be “appropriate when there is an ongoing
related case in another jurisdiction.” Villa v. Salazar, 933 F. Supp. 2d 50 (D.D.C. 2013); Aftab v.
Gonzales, 597 F. Supp. 2d 76, 80 (D.D.C. 2009) (citing In re Scott, 709 F.2d 717, 721 & n.10
(D.C. Cir. 1983)); see also, Biochem Pharma, Inc. v. Emory Univ., 148 F. Supp. 2d 11, 13-14
(D.D.C. 2001). “When lawsuits involving the same controversy are filed in more than one
jurisdiction, the general rule is that the court that first acquired jurisdiction has priority.”
Biochem Pharma, Inc., 148 F. Supp. 2d at 13 (citing Columbia Plaza Corp. v. Sec. Nat’l Bank,
525 F.2d 620, 627 (D.C. Cir. 1975)). As was stated in Smiths Indus. Med. Sys., Inc. v. Ballard
Med. Prods., Inc., 728 F. Supp. 6, 7 (D.D.C. 1989), “it is pointless to keep separate two highly
related cases at this time.”
8
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Judge Duval has had pending before him since 2007 the underlying 42 U.S.C. § 1983
Complaint arising out of the arrest of November 16, 2006 alleging excessive force, unlawful
arrest, unlawful detention and confinement, malicious prosecution, malicious abuse of process
and allegations of conspiracy to commit such violations against the various Defendants. As
previously stated, Judge Duval is very familiar with the factual background of the underlying §
1983 action that has been pending before him for the last five years and, as the factual allegations
of the present Complaint have their foundation in the same arrest of November 16, 2006 and
subsequent prosecution (with additional allegations relating to alleged events since the original §
1983 suit was filed in the Eastern District of Louisiana), such a lawsuit involving the same
matters in controversy should be before Judge Duval as it would be pointless to keep separate
such highly related cases.
It would serve judicial economy, would avoid the possibility of inconsistent decisions
and reduce expenses for the parties to have both of these matters before Judge Duval. Gates
makes no real effort to rebut Defendants’ arguments that transfer of the present matter to the
Eastern District of Louisiana would make trial of the case easy, expeditious and inexpensive.
Arguments as to a RICO case before Judge Milazzo, who has nothing to do with the original
Gates § 1983 suit, have no bearing on the public and private interest factors analysis and do not
diminish the fact that, as a practical matter, the lawsuit before this Court should be transferred to
the Eastern District of Louisiana. Allegations of an “insider advantage” in the Eastern District
are simply specious.
(6) The Local Interest in Having Localized Interests Decided at Home
Gates makes no real effort to address this factor. About the closest thing is the statement
about an “insider advantage” as alleged and a suggestion that District Attorney Walter Reed is of
9
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counsel to the undersigned law firm. The former is simply ridiculous and the latter is false.
District Attorney Walter Reed is not now, nor has he ever been, of counsel to Mouledoux, Bland,
Legrand & Brackett, L.L.C. There is no allegation that Judge Duval’s impartiality in this matter
has been compromised in any way.1
Gates does not rebut that his arrest and subsequent prosecution have taken place entirely
in the Eastern District of Louisiana. Gates does not dispute that most of the Defendants named
in the lawsuit, as well as virtually all of the anticipated witnesses and evidence, are found in the
Eastern District of Louisiana. Gates undisputedly resides in the Eastern District of Louisiana.
Gates does not really dispute that there are no relevant factual connections to the Middle District.
Although Gates makes certain allegations pertaining to the impartiality of another Judge in the
Eastern District of Louisiana and her staff, Gates never suggests that Judge Duval is anything but
impartial. There is no relevant factual connection to the Middle District and this factor weighs in
favor of transfer.
Gates’ opposition lacks substance, both as to the facts and law and does not set out any
detailed analysis of the case specific private and public interest factors. Defendants, on the other
hand, have set out at least four factors that favor transfer with three neutral and one that is of no
bearing in the analysis.
II. THE MOTION TO TRANSFER VENUE IS NOT PREMATURE
In his opposition, Gates suggests that this Motion for Change of Venue “may be
premature as all parties have not joined his motion or have not been joined by service and
summons in the suit.” (See Plaintiff’s Opposition at p. 1, R. Doc. 8). Contrary to this
1
Gates, in his opposition, makes generalized references to the Hobbs Act. Gates asserts that the Defendants “have
used their official and private positions in violation of the Hobbs Act.” (See Plaintiff’s Opposition at p. 7). Such
conclusory statements relating to the Hobbs Act should not be considered as relevant by the Court as Gates has
previously stated on the record before Judge Duval that “he is not alleging any claims for violations of the Hobbs
Act, 18 U.S.C. 1951.” (See Order of April 17, 2008, R. Doc. 81 in Civil Action No. 07-6983, pending in the Eastern
District of Louisiana).
10
17-30519.3078
unsupported assertion, Defendants’ Motion to Transfer Venue was filed at an appropriate time.
The Federal Judiciary has stated for some time that in the orderly administration of justice, a
motion to transfer venue pursuant to 28 U.S.C. § 1404(a) “should be filed as early as possible.”
Lowry v. Chicago, R. I. and P. R. Co., 293 F. Supp. 867, 869 (W.D. Okla. 1968). Further, a
section 1404(a) transfer motion can technically be made at any time. Mohamed v. Mazda Motor
Corp., 90 F. Supp. 2d 757, 760 (E.D. Tex. 2000). In fact, a motion to transfer should be made
with “reasonable promptness.” Mohamed, supra at 760 (citing Henderson v. ATT Corp., 918
F.Supp. 1059, 1065 & n.6 (S.D. Tex 1996) (citing Peteet v. Dow Chemical Co., 868 F.2d 1428,
1436 (5th Cir. 1989)). In In re Horseshoe Entertainment, 337 F.3d 429 (5th Cir. 2003),
Horseshoe filed its motion to transfer pursuant to 28 U.S.C. § 1404(a) before it answered. The
United States Fifth Circuit Court of Appeals noted that such a filing was timely. In re Horseshoe
Entertainment, supra at 433.
Plaintiff’s arguments regarding any alleged prematurity in filing this motion are without
merit.
III. THE ALTERNATIVE MOTION TO DISMISS FOR INSUFFICIENCY OF

SERVICE OF PROCESS PUSUANT TO FRCP 12(B)(5) IS BEING PRESERVED
BY THESE DEFENDANTS
It is admittedly true that Plaintiff has additional time to request and serve summons on
each of the Defendants pursuant to Federal Rule of Civil Procedure 4(m). That said, in order to
preserve the defense pursuant to Federal Rule of Civil Procedure 12(h) and considering
Defendants’ desire to file the motion to transfer venue “as early as possible”, Defendants
respectfully suggest to the Court that it is appropriate to present this defense at this time as an
alternative argument. Presentation of a defense under Federal Rule of Civil Procedure 12(b)(5)
mandates that such a defense be presented contemporaneously with this motion to transfer venue
11
17-30519.3079
under 28 U.S.C. § 1404(a).2
CONCLUSION
Considering the above and foregoing, and the previously filed Motion and Memorandum
for Change of Venue, it is respectfully requested that this Court transfer this matter pursuant to
28 U.S.C. § 1404 to the Eastern District of Louisiana. Alternatively, Defendants re-aver their
request that an order of dismissal should be entered for insufficient service of process pursuant to
Federal Rule of Civil Procedure 12(b)(5).
s/ Mark E. Hanna
TREVOR M. CUTAIAR (#33082)
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneys for Defendants, St. Tammany Parish Sheriff,

Rodney “Jack” Strain, in his official and individual
capacity as Sheriff, St. Tammany Parish Sheriff
Captain Sherwood, and Travelers – St. Paul Insurance
Companies
AND
s/ David G. Sanders
DAVID G. SANDERS (#11696)
DOUGLAS SWENSON (#28773)
ASSITANT ATTORNEYS GENERAL
2
Gates makes reference to some alleged grand jury proceedings of which undersigned counsel has no knowledge.
As undersigned has no knowledge of these alleged grand jury proceedings, such proceedings have no bearing on
Defendants’ filing of this motion.
12
17-30519.3080

Litigation Division
P.O. Box 94005
Telephone: 225.326.6300
Facsimile: 225.326.6192
Attorneys for Defendant Louisiana Attorney General

James D. “Buddy” Caldwell and the office of the Louisiana
Attorney General
record via the Court’s CM/ECF system, this 23rd day of October, 2013.
s/ Mark E. Hanna
13
17-30519.3081
___________________________
File in record
w/o attachment
' October 29, 2013
___________________________
17-30519.3082
SHANE M. GATES
CIVIL ACTION
VERSUS
NUMBER 13-505-JJB-SCR
ORDER CANCELING SCHEDULING CONFERENCE
This case was assigned for a scheduling conference on November
14, 2013. Some of the defendants filed a Motion for Change of
Venue Pursuant to 28 U.S.C. § 1404 and Alternatively, Motion to
Dismiss for Insufficient Service of Process Pursuant to FRCP
12(b)(5),1 to which an opposition has been filed.2 The motion is
pending before the district judge. By letter dated October 29,
2013, counsel requested that the scheduling conference be continued
until the motion a ruling is issued on the motion.3 This is a
reasonable request.
Therefore;
IT IS ORDERED that the scheduling conference set for November
14, 2013 is canceled, entry of a scheduling order pursuant to Rule
16, Fed.R.Civ.P., is deferred, and the parties are not required to
make the initial disclosures required by Rule 26, Fed.R.Civ.P., at
1
Record document number 3.
2
3
17-30519.3083
this time.
Another scheduling conference will be set if necessary after
the court rules on the pending Motion for Change of Venue Pursuant
to 28 U.S.C. § 1404 and Alternatively, Motion to Dismiss for
Insufficient Service of Process Pursuant to FRCP 12(b)(5).
Baton Rouge, Louisiana, October 29, 2013.
STEPHEN C. RIEDLINGER
17-30519.3084
AO 440 (Rev. 06/12) Summons in a Civil Action

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
17-30519.3085
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
17-30519.3086

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3087
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3088

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3089
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3090

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3091
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3092

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3093
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3094

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3095
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3096

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3097
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3098

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3099
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3100

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3101
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3102

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3103
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3104

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3105
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3106

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3107
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3108

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3109
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3110

for the
__________ District of __________
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
CLERK OF COURT
Date:
17-30519.3111
Civil Action No.
PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address
17-30519.3112

for the
Middle District
__________ DistrictofofLouisiana
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
v. Civil Action No. 3:13-CV-00505-JJB-SCR
)
)
)
JUDGE RICHARD SWARTZ, ET AL )
)
Defendant(s) )
To: (Defendant’s name and address) Hon. Richard A. Swartz Jr.

701 N Columbia St Rm 2127
Covington LA 70433
whose name and address are: Daniel G. Abel (LSB# 08348)
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Email: danielpatriclegan@gmail.com
Nick J. Lorio
CLERK OF COURT
Date: 11/15/2013 9 Signature of Clerk or Deputy Clerk
17-30519.3113
Civil Action No. 3:13-CV-00505-JJB-SCR
PROOF OF SERVICE

u I personally served the summons on the individual at (place)

on (date) ; or
u I left the summons at the individual’s residence or usual place of abode with (name)
u I served the summons on (name of individual) , who is

on (date) ; or
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s address
17-30519.3114

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Walter P Reed, St. Tammany District Attorney
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3115
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3116

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Mr. Nicholas F Noriea Jr.

St. Tammany District Attorney's Office
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3117
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3118

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Marise-Elise Prieto

Clerk of Court - St. Tammany Parish
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3119
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3120

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Rodney "Jack" Strian

St. Tammany Parish Sheriff's Office
701 N. Columbia St.
Room B1010-2
Covington, LA 70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3121
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3122

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Capt. Kathy Sherwood

St. Tammany Parish Sheriff's Office
701 N. Columbia St.
Room B1010-2
Covington, LA 70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3123
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3124

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Ms. Kathryn W Landry

8550 United Plaza Blvd., Ste 702
Baton Rouge LA 70809
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3125
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3126

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) The Office of the Clerk of Court of St. Tammany
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3127
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3128

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) James D. "Buddy" Caldwell

Office of the Attorney of General - State of Louisiana
1885 N. Third Street
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3129
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3130

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Office of the Attorney of General - State of Louisiana
1885 N. Third Street
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3131
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3132

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) The Office of Walter P. Reed

District Attorney for the Parish of St. Tammany
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3133
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3134

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Ronald T. Gracianette, Assistant District Attorney
District Attorney's Office for the Parish of St. Tammany
701 N Columbia St
Covington,LA70433
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3135
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3136

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) The Travelers Indemnity Company

Thru The Louisiana Secretary of State
8585 Archives Ave.
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3137
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3138

for the
Middle District
__________
)
)
SHANE M. GATES )
)
Plaintiff(s) )
)
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) St. Paul Fire and Marine Insurace Company
Thru The Louisiana Secretary of State
8585 Archives Ave.
625 Celeste St
New Orleans,LA70130
Phone: (504) 208-9610
Fax: (888) 577-8815
Nick J. Lorio
CLERK OF COURT
17-30519.3139
PROOF OF SERVICE


on (date) ; or

on (date) ; or
u Other (specify):
.
Date:
Server’s address
17-30519.3140

SHANE M. GATES
CIVIL ACTION
VERSUS
NO. 13-505-JJB-SCR
ET AL.
RULING ON DEFENDANTS’ MOTION FOR CHANGE OF VENUE AND MOTION TO

DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
This matter is before the court on Defendants St. Tammany Parish Sheriff Rodney “Jack”
Strain, in his official and individual capacity as Sheriff; St. Tammany Parish Sheriff Captain
Sherwood; Travelers – St. Paul Insurance Companies; Louisiana Attorney General James D.
“Buddy” Caldwell; and the office of the Louisiana Attorney General’s (“Defendants”) Motion
(doc. 3) for Change of Venue Pursuant to 28 U.S.C. § 1404 and Alternatively, Motion to Dismiss
for Insufficient Service of Process. Plaintiff Shane Gates filed a Memorandum (doc. 8) in
Opposition, to which the Defendants filed a Reply Memorandum (doc. 9). Jurisdiction is based
on 28 U.S.C. § 1331. Oral argument is not necessary.
As acknowledged in the Defendants’ Reply Memorandum, the Plaintiff has additional
time to request and serve summons on each of the named defendants, as the 120 day period
required for service under Federal Rule of Civil Procedure 4(m) has not expired at this time. The
Defendants filed their Motion to Dismiss for Insufficient Service of Process in order to preserve
the defense pursuant to Federal Rule of Civil Procedure 12(h). (Doc. 9, p. 11). Accordingly, the
court will not rule on this motion, as a ruling is premature.
Nevertheless, for the reasons provided in the Defendants’ Motion (doc. 3) and Reply
Memorandum (doc. 9), this Court finds that a change of venue is appropriate in the present
matter, and thereby, will transfer this case to the United States District Court for the Eastern
17-30519.3141
District of Louisiana, pursuant to 28 U.S.C. § 1404(a). First, it is apparent that virtually all of the
relevant actions, events, and prosecutions occurred in St. Tammany Parish, or at the very least, in
the Eastern District of Louisiana. Moreover, the Plaintiff presently resides in the Eastern District
of Louisiana. Further, it appears that virtually all of the potential witnesses in this matter can be
found in the Eastern District of Louisiana, and the bulk of the evidence and other sources of
proof are found in the Eastern District. Furthermore, a closely-related case is currently pending
in the Eastern District, which involves 42 U.S.C. § 1983 claims asserted against many of the
same defendants in the present matter and arising out of events that are relevant to this matter
before the court. Plaintiff has failed to convince this Court that a transfer is inappropriate.
Accordingly, the Defendants’ Motion (doc. 3) for Change of Venue is GRANTED, and
the case is hereby transferred to the United States District Court for the Eastern District of
Louisiana, pursuant to 28 U.S.C. § 1404(a). This Court will not rule on Defendants’ Motion
(doc. 3) to Dismiss for Insufficient Service of Process Pursuant to FRCP 12(b)(5), as it is
premature.
Signed in Baton Rouge, Louisiana, on November 14, 2013.

JUDGE JAMES J. BRADY


17-30519.3142

SHANE M. GATES
CIVIL ACTION
VERSUS
NO. 13-505-JJB-SCR
ET AL.
CASE TRANSFER ORDER
For written reasons assigned:
It is hereby ORDERED that this case be TRANSFERRED to the United States District
Court for the Eastern District of Louisiana, pursuant to 28 U.S.C. § 1404(a).
Signed in Baton Rouge, Louisiana, on November 14, 2013.

JUDGE JAMES J. BRADY


17-30519.3143
CLOSED
U.S. District Court
Middle District of Louisiana (Baton Rouge)
CIVIL DOCKET FOR CASE #: 3:13−cv−00505−JJB−SCR
Gates v. Swartz et al Date Filed: 08/05/2013

Assigned to: Judge James J. Brady Date Terminated: 11/15/2013
Referred to: Magistrate Judge Stephen C. Riedlinger Jury Demand: Plaintiff
Cause: 42:1983 Civil Rights Act Nature of Suit: 440 Civil Rights: Other
Jurisdiction: Federal Question
Plaintiff
Law Office of Daniel G. Abel
Suite 106
Metairie, LA 70001
(504) 284−8521
LEAD ATTORNEY
V.
Defendant
Richard Swartz represented by Mark E. Hanna
Judge Mouledoux, Bland, Legrand &Brackett
701 Poydras Street Suite 4250
504−595−3000
Fax: 504−522−2121
Defendant
Nicholas F. Noriea, Jr.
ADA
Defendant
Marie−Elise Prieto
Clerk of Court − St. Tammany
Defendant
Louisiana Attorney General Louisiana Department of Justice − B.R.
also known as P.O. Box 94005
Buddy Caldwell 1885 North Third Street
Baton Rouge, LA 70804−9005
225−326−6300
Fax: 225−326−6192
17-30519.3144
Email: sandersd@ag.state.la.us
LEAD ATTORNEY

Office of the Attorney General
Department of Justice
1885 North Third St., 4th Floor
Baton Rouge, LA 70804−9005
225−326−6408
Fax: 225−326−6495
Email: swensond@ag.state.la.us
Mark E. Hanna
Defendant
Ronald Gracianette
ADA
Defendant
Unknown Sherwood represented by Mark E. Hanna
Captain (See above for address)
LEAD ATTORNEY
Trevor M. Cutaiar
Mouledoux Brand Legrand and Brackett
701 Poydras Street
Suite 4250
504−595−3000
Fax: 504−522−2121
LEAD ATTORNEY
Defendant
Kathryn Landry
Defendant
The Office of Walter P. Reed
District Attorney for the Parish of St. Tammany
Defendant
John Doe
Of the Parish and State Offices Named
17-30519.3145
Defendant
Jane Doe
Of the Parish and State Offices Named
Defendant
Rodney Jack Strain represented by Mark E. Hanna
STPSO Sheriff (See above for address)
LEAD ATTORNEY
Trevor M. Cutaiar
LEAD ATTORNEY
Defendant
Walter P. Reed
Defendant
The Office of the Clerk of Court of St.
Tammany
Defendant
The Office of the Louisiana Attorney represented by David Glen Sanders
General (See above for address)
LEAD ATTORNEY

Mark E. Hanna
Defendant
Travelers−St. Paul Insurance Companies represented by Mark E. Hanna
LEAD ATTORNEY
Trevor M. Cutaiar
LEAD ATTORNEY
08/05/2013 Ï1
17-30519.3146
COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 053N−977664.), filed by
Shane M Gates.(Abel, Daniel) (Entered: 08/05/2013)
08/06/2013 Ï2 NOTICE of Filing of Civil Cover Sheet by Shane M. Gates (Abel, Daniel) (Entered: 08/06/2013)
09/13/2013 Ï3 MOTION to Change Venue Pursuant TO 28 U.S.C. 1404 and alternatively, MOTION to Dismiss
for Insufficient Service of Process Pursuant to FRCP 12(b)(5) by James D. Caldwell, Unknown
Sherwood, Rodney Strain, The Office of the Louisiana Attorney General, Travelers−St. Paul
Insurance Companies, Rodney Jack Strain. (Attachments: # 1 Memorandum in Support, # 2
Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G,
# 9 Exhibit H)(Hanna, Mark). Added MOTION to Dismiss on 9/16/2013 (LLH). (Entered:
09/13/2013)
09/16/2013 Ï4 NOTICE AND ORDER on 3 MOTION to Change Venue PURSUANT TO 28 U.S.C. 1404 ) and
Alternatively MOTION to Dismiss for Insufficient Service of Process Pursuant to FRCP12(b) (5)
: Opposition to the motion shall be filed within 21 days of the filing of the motion. Any reply
brief shall be filed within 15 days of the filing of the opposition. Signed by Judge James J. Brady
on 9/16/2013. (LLH) (Entered: 09/16/2013)
09/17/2013 Ï5 90−DAY CONFERENCE ORDER: Scheduling Conference set for 11/14/2013 at 9:30 AM in
chambers before Magistrate Judge Stephen C. Riedlinger. Status Report due by 10/31/2013.
Signed by Magistrate Judge Stephen C. Riedlinger on 9/17/13. (BNW) (Entered: 09/17/2013)
10/04/2013 Ï6 Consent MOTION for Extension of Time Opposition to Motion for Change of Venue by All
Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order)(Abel, Daniel) Modified on
10/8/2013 to edit motion type (LLH). (Entered: 10/04/2013)
10/08/2013 Ï7 ORDER granting 6 Motion for Extension of Time to File Response to 3 MOTION to Change
Venue Pursuant TO 28 U.S.C. 1404 and alternatively, Motion to Dismiss for Insufficient Service
of Process Pursuant to FRCP 12(b)(5). Gates and counsel must file their opposition on or before
this Tuesday, October 8, 2013. Signed by Judge James J. Brady on 10/7/2013. (LLH) (Entered:
10/08/2013)
10/08/2013 Ï8 First MEMORANDUM in Opposition to 3 MOTION to Change Venue Pursuant TO 28 U.S.C.

1404 and alternatively, MOTION to Dismiss for Insufficient Service of Process Pursuant to
FRCP 12(b)(5) MOTION to Dismiss for Insufficient Service of Process Pursuant to FRCP12(b)
(5) filed by All Plaintiffs. (Abel, Daniel) (Entered: 10/08/2013)
10/23/2013 Ï9 REPLY to 8 Memorandum in Opposition to Motion, 3 MOTION to Change Venue Pursuant TO

28 U.S.C. 1404 and alternatively, MOTION to Dismiss for Insufficient Service of Process
Pursuant to FRCP 12(b)(5) MOTION to Dismiss for Insufficient Service of Process Pursuant to
FRCP12(b) (5) filed by James D. Caldwell, Unknown Sherwood, Rodney Jack Strain, Richard
Swartz, The Office of the Louisiana Attorney General, Travelers−St. Paul Insurance Companies.
(Hanna, Mark) (Entered: 10/23/2013)
10/29/2013 Ï 10 Letter dated 10/29/20113 from Mark E. Hanna to Magistrate Riedlinger Re: Continuation of
Scheduling Conference. (NLT) (Entered: 10/29/2013)
10/29/2013 Ï 11 ORDER: The scheduling conference set for 11/14/2013 is canceled, entry of a scheduling order
pursuant to Rule 16, FRCP, is deferred, and the parties are not required to make the initial
disclosures required by Rule 26, FRCP, at this time. Signed by Magistrate Judge Stephen C.
Riedlinger on 10/29/2013. (NLT) (Entered: 10/29/2013)
11/15/2013 Ï 12 Summons Submitted (Attachments: # 1 District Attorney − Walter Reed − Civil Summons, # 2
ADA Nicholas Norea − Civil Summons, # 3 Marie−Elise − Civil Summons, # 4 Sheriff Jack
Strain − Civil Summons, # 5 Captin Kathy Sherwood −Civil Summons, # 6 Kathryn Landry −
Civil Summons, # 7 St. Tammany Clerk of Court − Civil Summons, # 8 Attorney General James
17-30519.3147
"Buddy" Caldwell, # 9 The Office of LA Attorney General −Civil Summons, # 10 St. Tammany
District Attorney's Office − Civil Summons, # 11 ADA Ronnie Gracianette − Civil Summons, #
12 Travelers Insurance − Civil Summons, # 13 St. Paul Insurance −Civil Summons)(Abel,
Daniel) (Entered: 11/15/2013)
11/15/2013 Ï 13 Summons Issued as to James D. Caldwell, Ronald Gracianette, Kathryn Landry, Nicholas F.
Noriea, Jr, Marie−Elise Prieto, Walter P. Reed, Unknown Sherwood, Rodney Jack Strain, Richard
Swartz, The Office of Walter P. Reed, The Office of the Clerk of Court of St. Tammany, The
Office of the Louisiana Attorney General, Travelers−St. Paul Insurance Companies. (NOTICE:
Counsel shall print and serve both the summons and all attachments in accordance with Federal
Rule of Civil Procedure 4.) (NLT) (Entered: 11/15/2013)
11/15/2013 Ï 14 RULING granting 3 Motion to Change Venue. This case is hereby transferred to the United
States District Court for the Eastern District of Louisiana, pursuant to 28 U.S.C. § 1404(a). This
Court will not rule on Defendants Motion (doc. 3) to Dismiss for Insufficient Service of Process
Pursuant to FRCP 12(b)(5), as it is premature. Signed by Judge James J. Brady on 11/14/2013.
(CGP) Modified on 11/15/2013 to edit text (CGP). (Entered: 11/15/2013)
11/15/2013 Ï 15 Order Transferring Case to the Eastern District of Louisiana. Signed by Judge James J. Brady on
11/14/2013. (CGP) (Entered: 11/15/2013)
Case #: 3:13−cv−00505−JJB−SCR
17-30519.3148
17-30519.3149
17-30519.3150
17-30519.3151
17-30519.3152
17-30519.3153
17-30519.3154

VERSUS
JUDGE RICHARD SWARTZ, WALTER P. CASE NO.:

REED, ADA NICHOLAS F. NORIEA, JR., 2:13-cv-06425
CLERK OF COURT-ST TAMMANY,
MARIE-ELISE PRIETO, STPSO SHERIFF JUDGE:
RODNEY "JACK" STRAIN, CAPTAIN HONORABLE SARAH S. VANCE
SHERWOOD, KATHRYN LANDRY, THE
OFFICE OF THE CLERK OF COURT OF MAG. JUDGE:
ST. TAMMANY, LOUISIANA ALMA L. CHASEZ
ATTORNEY GENERAL JAMES D.
"BUDDY" CALDWELL, THE OFFICE OF
THE LOUISIANA ATTORNEY JURY TRIAL
GENERAL, THE OFFICE OF WALTER P.
REED DISTRICT ATTORNEY FOR THE
PARISH OF ST TAMMANY, ADA
RONNIE GRACIANETTE, JOHN AND
JANE DOES OF THE PARISH AND
STATE OFFICES NAMED, AND
TRAVELERS-ST PAUL INSURANCE
COMPANIES
EX PARTE MOTION FOR EXTENSION OF TIME
NOW INTO COURT, through undersigned counsel, come Defendants, Captain Kathy
Sherwood and Sheriff Rodney “Jack” Strain (hereinafter “Defendants”) who pursuant to Local
Rule 7.8 respectfully represent as follows:
I.
Defendants have not previously requested an extension of time to plead and the opposing
party has not filed into the record an objection to an extension of time.
17-30519.3155
II.
Pursuant to Local Rule 7.8, Defendants request twenty-one (21) days from the date that
responsive pleadings are currently due or until January 6, 2014 in which to file responsive
pleadings herein.
WHEREFORE, considering the above and foregoing, it is respectfully requested that
this ex parte Motion for Extension of Time to Plead be granted as prayed for.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
E-mail: mhanna@mblb.com
tcutaiar@mblb.com
Attorneys for Defendants, Captain Kathy Sherwood
and Sheriff Rodney “Jack” Strain
record via the Court’s CM/ECF system, on December 11, 2013. Service has been made on non-
CM/ECF parties by US Mail.
/s/ Mark E. Hanna
17-30519.3156

VERSUS
JUDGE RICHARD SWARTZ, CASE NO.:

WALTER P. REED, ADA NICHOLAS 2:13-cv-06425
F. NORIEA, JR., CLERK OF COURT-
ST TAMMANY, MARIE-ELISE JUDGE:
PRIETO, STPSO SHERIFF RODNEY HONORABLE SARAH S. VANCE
"JACK" STRAIN, CAPTAIN
SHERWOOD, KATHRYN LANDRY, MAG. JUDGE:
THE OFFICE OF THE CLERK OF ALMA L. CHASEZ
LOUISIANA ATTORNEY GENERAL
JAMES D. "BUDDY" CALDWELL, JURY TRIAL
ATTORNEY GENERAL, THE OFFICE
OF WALTER P. REED DISTRICT
ATTORNEY FOR THE PARISH OF ST
TAMMANY, ADA RONNIE
GRACIANETTE, JOHN AND JANE
DOES OF THE PARISH AND STATE
OFFICES NAMED, AND TRAVELERS-
ST PAUL INSURANCE COMPANIES
RULE 7.8 CERTIFICATE
Undersigned counsel certifies that there has been no previous extension of time to plead
and that the opposing party has not filed in the record an objection to an extension of time.
/s/ Mark E. Hanna

BRACKETT, L.L.C.
17-30519.3157
Telephone: (504) 595-3000

Facsimile: (504) 522-2121
tcutaiar@mblb.com
Attorneys for Defendants, Captain Kathy Sherwood
and Sheriff Rodney “Jack” Strain
record via the Court’s CM/ECF system, on December 11, 2013. Service has been made on non-
CM/ECF parties by US Mail.
/s/ Mark E. Hanna
17-30519.3158

VERSUS
JUDGE RICHARD SWARTZ, WALTER CASE NO.:

P. REED, ADA NICHOLAS F. NORIEA, 2:13-cv-06425
JR., CLERK OF COURT-ST TAMMANY,
MARIE-ELISE PRIETO, STPSO JUDGE:
SHERIFF RODNEY "JACK" STRAIN, HONORABLE SARAH S. VANCE
CAPTAIN SHERWOOD, KATHRYN
LANDRY, THE OFFICE OF THE CLERK MAG. JUDGE:
OF COURT OF ST. TAMMANY, ALMA L. CHASEZ
JAMES D. "BUDDY" CALDWELL, THE
OFFICE OF THE LOUISIANA JURY TRIAL
TAMMANY, ADA RONNIE
GRACIANETTE, JOHN AND JANE DOES
OF THE PARISH AND STATE OFFICES
NAMED, AND TRAVELERS-ST PAUL
INSURANCE COMPANIES
ORDER
CONSIDERING THE ABOVE AND FOREGOING, pursuant to Local Rule 7.8;
It is hereby ORDERED that Defendants’, Captain Kathy Sherwood and Rodney “Jack”
Strain, ex parte Motion for Extension of Time to Plead is GRANTED. These Defendants have
an additional twenty-one (21) days or until January 6, 2014 in which to file responsive pleadings.
NEW ORLEANS, Louisiana, this _______ of ____________________, 2013.
_______________________________________
17-30519.3159
17-30519.3160
17-30519.3161
17-30519.3162
17-30519.3163
17-30519.3164

VERSUS
JUDGE RICHARD SWARTZ, WALTER CASE NO.:

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ORDER
CONSIDERING THE ABOVE AND FOREGOING, pursuant to Local Rule 7.8;
It is hereby ORDERED that Defendants’, Captain Kathy Sherwood and Rodney “Jack”
Strain, ex parte Motion for Extension of Time to Plead is GRANTED. These Defendants have
an additional twenty-one (21) days or until January 6, 2014 in which to file responsive pleadings.
NEW ORLEANS, Louisiana, this _______ December
12th of ____________________, 2013.
_______________________________________
17-30519.3165

SHANE GATES * CIVIL ACTION NO. 3-13-CV-6425

*
*
V. * JUDGE SARAH S. VANCE
*
*
JUDGE RICHARD SWARTZ, ET AL * MAGISTRATE JUDGE ALMA L. CHASEZ
********************************************************************
NOW INTO COURT, through undersigned counsel, come defendants, Attorney General
James D. “Buddy” Caldwell and the Honorable Judge Richard A. Swartz, who moves this
Honorable Court as follows:
1.
Plaintiff filed this action on August 5, 2013 but declined to request service until
November 15, 2013.
2.
Attorney General James D. “Buddy” Caldwell and Judge Richard A. Swartz were served
on November 25, 2013.
3.
Plaintiff has not filed into the record an objection to an extension of time.
4.
Defendants have made no prior requests for an extension of time and do not contemplate
that another extension will be required.
5.
A delay of twenty-one (21) days will not unduly prejudice plaintiff.
17-30519.3166
WHEREFORE, defendant prays that this Court grant him an extension of time of
twenty-one (21) days within which to file responsive pleadings in this matter.

ATTORNEY GENERAL
BY: /s/ Douglas G. Swenson

David G. Sanders, La. Bar No. 11696
Douglas G. Swenson, La. Bar No. 28773

Litigation Division
P.O. Box 94005
Phone: (225) 326-6300
Facsimile: (225) 326-6191
Counsel for James D. “Buddy” Caldwell and
Richard A. Swartz
I hereby certify that a copy of the foregoing was filed electronically with the Clerk of
Court using the CM/ECF system. Notice of this filing will be sent to all CM/ECF participants by
operation of this court’s electronic filing system. All non-CM/ECF participants will receive a
copy of this filing via U.S. Mail, properly addressed and with proper postage prepaid.
Baton Rouge, Louisiana, this 13TH day of December, 2013.
/s/Douglas G. Swenson
17-30519.3167


*
*
*
*
********************************************************************
CERTIFICATION
In accordance with Local Rule 7.8, the undersigned certifies that there has been no
previous extension of time to plead and that the opposing party has not filed in the record an
objection to an extension of time.

ATTORNEY GENERAL


Litigation Division
P.O. Box 94005
Phone: (225) 326-6300
Facsimile: (225) 326-6191
Counsel for James D. “Buddy” Caldwell and
Richard A. Swartz
17-30519.3168
Baton Rouge, Louisiana, this 13TH day of December, 2013.
/s/Douglas G. Swenson
17-30519.3169

*
*
*
*
********************************************************************
ORDER
Considering the foregoing Motion for Extension of Time by defendants, Attorney
General James D. “Buddy” Caldwell and the Honorable Judge Richard A. Swartz;
IT IS HEREBY ORDERED that defendant is given an additional twenty-one (21) days
from the date of this Order to file responsive pleadings in the above captioned matter.
THUS DONE AND SIGNED in New Orleans, Louisiana, this ____ day of December,
2013.
_______________________________________________
17-30519.3170

2:13-cv-06425
VERSUS
JUDGE RICHARD SWARTZ, WALTER P. JUDGE:

REED, ADA NICHOLAS F. NOREIA, JR., HON. SARAH S. VANCE
CLERK OF COURT-ST TAMMANY, MARIE-
ELISE PRIETO, STPSO SHERIFF RODNEY
“JACK” STRAIN, CAPTAIN SHERWOOD, MAGISTRATE JUDGE:
KATHRYN LANDRY, THE OFFICE OF THE ALMA L. CHASEZ
CLERK OF COURT OF ST. TAMMANY,
LOUISIANA ATTORNEY GENERAL JAMES
D. "BUDDY" CALDWELL, THE OFFICE OF
THE LOUISIANA ATTORNEY GENERAL,
THE OFFICE OF WALTER P. REED
DISTRICT ATTORNEY FOR THE PARISH
OF ST. TAMMANY, ADA RONNIE
GRACIANETTE, JOHN AND JANE DOES OF
THE PARISH AND STATE OFFICES NAMED,
AND TRAVELERS-ST PAUL INSURANCE
COMPANIES
NOW INTO COURT, through undersigned counsel, come defendants, Nicholas
Noreia, Jr., Ronnie Gracianette and Kathryn W. Landry, who respectfully represent:
Page 1
17-30519.3171
1.
Movers herein have not previously requested an extension of time to plead and the
opposing party has not filed into the record an objection to an extension of time.
2.
Pursuant to Local Rule 7.8 movers request an extension of twenty-one days, or until
January 6, 2014 for movers, Nicholas Noreia, Jr. and Ronnie Gracianette, and until January
13, 2014 for mover, Kathryn W. Landry, in which to file responsive pleadings herein.
WHEREFORE, defendants, Nicholas Noreia, Jr., Ronnie Gracianette and Kathryn W.
Landry, respectfully request that this motion be granted allowing an extension of twenty-one
days or until January 6, 2014 for movers, Nicholas Noreia, Jr. and Ronnie Gracianette, and
until January 13, 2014 for mover, Kathryn W. Landry, in which to file responsive pleadings
herein.

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
Page 2
17-30519.3172
I hereby certify that a copy of the foregoing pleading has been served on all counsel
of record via the Court's CM/ECF system on December 16, 2013. Service has been made on
non-CM/ECF parties by U.S. mail.
s/Kathryn Landry
KATHRYN LANDRY
Page 3
17-30519.3173

2:13-cv-06425
VERSUS

COMPANIES
RULE 7.8 CERTIFICATE
Movers herein, Nicholas Noreia, Jr., Ronnie Gracianette and Kathryn Landry, have
not previously requested an extension of time to plead and the opposing party has not filed
into the record an objection to an extension of time.

Telephone: (225) 766-0023
Facsimile: (225) 766-7341
17-30519.3174
I hereby certify that a copy of the foregoing pleading has been served on all counsel
of record via the Court's CM/ECF system on December 16, 2013. Service has been made on
non-CM/ECF parties by U.S. mail.
s/Kathryn Landry
KATHRYN LANDRY
17-30519.3175

2:13-cv-06425
VERSUS

COMPANIES
ORDER
IT IS HEREBY ORDERED that the motion is granted allowing an extension of
twenty-one days or until January 6, 2014 for movers, Nicholas Noreia, Jr. and Ronnie
Gracianette, and until January 13, 2014 for mover, Kathryn W. Landry, in which to file
responsive pleadings herein.
New Orleans, Louisiana, this _______ day of December, 2013.
_______________________________________
JUDGE
17-30519.3176
17-30519.3177


VERSUS
JUDGE RICHARD SWARTZ, WALTER CIVIL ACTION NO.:

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
MOTION TO TRANSFER
NOW COME Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his
official and individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St.
Paul Fire & Marine Insurance Company (improperly named as “Travelers-St. Paul Insurance
Companies”), Louisiana Attorney General James D. “Buddy” Caldwell and the office of the
Louisiana Attorney General (hereinafter “Defendants”), through undersigned counsel, and,
without waiving any of their previously filed motions, respectfully move for a transfer of this
case to the docket of United States District Judge Stanwood R. Duval, Jr.
WHEREFORE, Defendants respectfully request that their motion be granted.
17-30519.3178
s/ Mark E. Hanna
TREVOR M.CUTAIAR (#33082)
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121
Attorneys for Defendants, St. Tammany Parish

Sheriff, Rodney “Jack” Strain in his official and
individual capacity as Sheriff, St. Tammany Parish
Sheriff Captain Sherwood, and Travelers – St. Paul
Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: 225.326.6300
Facsimile: 225.326.6192
Attorneys for Defendant Louisiana Attorney

General James D. “Buddy” Caldwell and the office
of the Louisiana Attorney General
record via the Court’s CM/ECF system, this 20th day of December, 2013. I further certify that
there are no non-CM/ECF parties.
s/ Mark E. Hanna
17-30519.3179


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
MEMORANDUM IN SUPPORT OF MOTION TO TRANSFER
NOW INTO COURT, through undersigned counsel, come Defendants, St. Tammany
Parish Sheriff, Rodney “Jack” Strain, in his official and individual capacity as Sheriff, St.
Tammany Parish Sheriff Captain Sherwood, St. Paul Fire & Marine Insurance Company
(improperly named as “Travelers-St. Paul Insurance Companies”), Louisiana Attorney General
James D. “Buddy” Caldwell and the office of the Louisiana Attorney General (hereinafter
“Defendants”) and, without waiving any of their previously filed motions, submit their
Memorandum in Support of Motion to Transfer. For the reasons stated herein, Defendants
request that this matter be transferred to the docket of United States District Judge Stanwood R.
Duval, Jr.
17-30519.3180
I. FACTUAL BACKGROUND
On October 17, 2007, plaintiff, Shane Gates, filed a Complaint for Damages under Title
42 U.S.C. § 1983, et seq., under 45 C.F.R. 164.513 (“HIPAA”), pendent state law claims, and a
claim for injunctive relief to prevent bad-faith prosecution in the United States District Court for
the Eastern District of Louisiana, which Complaint is attached hereto as Exhibit A. That case
was assigned to Judge Duval. The events of November 16, 2006 that prompted the above-
referenced lawsuit are the same events that form the basis of the Complaint filed in Middle
District of Louisiana on August 5, 2013 and transferred to this Court on November 15, 2013. (R.
Doc. 1.) Many of the named defendants in the original 42 U.S.C. § 1983 proceeding before
Judge Duval are also named in the case recently filed and transferred to this Court, including:
1. St. Tammany Parish District Attorney, Walter Reed;
2. St. Tammany Parish Sheriff, Rodney “Jack” Strain;
3. The St. Tammany Parish District Attorney’s Office; and
4. St. Paul-Traveler’s Insurance Company.
Because the ongoing state court criminal proceedings necessarily had implications for the
42 U.S.C. § 1983 matter pending before Judge Duval, Defendants filed a Joint Motion to Stay
proceedings, as a conviction in the state court criminal proceeding could render moot Plaintiff’s
42 U.S.C. § 1983 lawsuit as Heck v. Humphrey1 would potentially bar Plaintiff’s claims against
the Defendants. On April 17, 2008, after full briefing and oral argument before the Court, Judge
Duval stayed the 42 U.S.C. § 1983 proceeding “pending resolution of the criminal charges in the
Twenty-Second Judicial District Court against Plaintiff, Shane M. Gates or until such time as the
Court, on motion of a party, lifts this stay.” See Judge Duval’s Stay Order, attached hereto as
Exhibit B.
1
512 U.S. 477, 114 S.Ct. 2364 (1994).
17-30519.3181
Despite this clear Order from the Court five years ago, Gates has attempted several times
to have the civil stay lifted prior to the completion of all criminal charges in the 22 nd Judicial
District Court and has fought tooth and nail to prevent the criminal proceeding from being fully
adjudicated in state court, all as more fully detailed in Defendants’ Memorandum in Support of
Motion to Change Venue filed in the Middle District of Louisiana. See R. Doc. 3-1 and
accompanying exhibits.
As the Court is aware, Judge Brady granted Defendants’ motion and transferred this case
to the Eastern District of Louisiana, at which time it was assigned to Your Honor. In doing so,
Judge Brady made the following finding:
First, it is apparent that virtually all of the relevant actions, events, and
prosecutions occurred in St. Tammany Parish, or at the very least, in the Eastern
District of Louisiana. Moreover, the Plaintiff presently resides in the Eastern
District of Louisiana. Further, it appears that virtually all of the potential
witnesses in this matter can be found in the Eastern District of Louisiana, and the
bulk of the evidence and other sources of proof are found in the Eastern District.
Furthermore, a closely-related case is currently pending in the Eastern
District, which involves 42 U.S.C. § 1983 claims asserted against many of the
same defendants in the present matter and arising out of events that are
relevant to this matter before the court. Plaintiff has failed to convince this
Court that a transfer is inappropriate.
(R. Doc. 14, p. 2) (emphasis added).
Defendants now seek to transfer this case to Judge Duval’s docket so they may request
consolidation of the two actions and a stay of this case pending the resolution of plaintiff’s
criminal charges in the 22nd Judicial District Court.
A. Transfer of this Case to Judge Duval’s Docket Serves the Interests of Justice and
Judicial Economy
Change of venue within the Federal District Courts is governed by 28 U.S.C. § 1404,
which states:
17-30519.3182
§ 1404 Change of venue
(a) For the convenience of parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other district or
division where it might have been brought or to any district or division to
which all parties have consented.
The United States Fifth Circuit Court of Appeals recently addressed venue transfer in In
Re RedMax, Ltd., 720 F.3d 285 (5th Cir. 2013). The court recited the eight-factor test used in
such an analysis, referring back to an earlier decision of the Fifth Circuit, In Re Volkswagen of
Am., Inc. (“Volkswagen II”), 545 F.3d 304, 315 (5th Cir. 2008) (en banc), in which the test was
set out as follows:
A motion to transfer venue pursuant to § 1404(a) should be granted if “the movant

demonstrates that the transferee venue is clearly more convenient,” taking into
consideration (1) “the relative ease of access to sources of proof”; (2) “the
availability of compulsory process to secure the attendance of witnesses”; (3) “the
cost of attendance for willing witnesses”; (4) “all other practical problems that
make trial of a case easy, expeditious and inexpensive”; (5) “the administrative
difficulties flowing from court congestion”; (6) “the local interest in having
localized interest decided at home”; (7) “the familiarity with the law that will
govern the case”; (8) “the avoidance of unnecessary problems of conflicts of laws
[or in] the application of foreign law.”
Volkswagen II, 545 F.3d at 315.
For the same reasons argued in the Middle District and relied upon by Judge Brady,
Defendants submit that transfer to Judge Duval’s docket is warranted. Although many of the
considerations governing transfer have already been addressed by the transfer of this case from
the Middle District to the Eastern District, Defendants submit that the interests of justice and
judicial economy support the transfer of this case to Judge Duval’s docket where a substantially
similar case has been pending since 2006. Judge Duval is familiar with the allegations and the
parties involved. Further, if transferred, Defendants will seek the imposition of a similar stay to
these proceedings pending the resolution of plaintiff’s criminal charges in state court.
17-30519.3183
B. Local Rules 3.1 and 3.1.1 Support a Transfer to Judge Duval’s Docket
Defendants’ position is further supported by Local Rule 3.1 and 3.1.1:
LR3.1 Collateral Proceedings and Refiled Cases

When a civil matter, commenced in or removed to the court, involves subject
matter that comprises all or a material part of the subject matter or operative facts
of another action, whether civil or criminal, then or previously pending in any
court or administrative agency, counsel must file a list and description of all such
actions then known to counsel and a brief summary of the relationship between
the cases. If information concerning any such proceeding is obtained after the
filing of the original pleading in the latter case, counsel must notify the court and
opposing counsel in writing of the relationship between the cases.
LR3.1.1 Assignment of Collateral Proceedings and Refiled Cases

To promote judicial economy, conserve judicial resources, and avoid potential
forum shopping and conflicting court rulings, all actions described in LR 3.1 must
be transferred to the section with the lowest docket number, unless the two judges
involved determine that some other procedure is in the interest of justice. If the
transferee and transferor judges cannot agree upon whether a case should be
transferred, the opinion of the transferee judge prevails. If counsel fails to make
the certification described in LR 3.1, the judge to whom the case is allotted must
transfer the action when he or she learns of the related nature of the proceedings.
See Local Rules of the United States District Court for the Eastern District of Louisiana, LR3.1
and LR3.1.1 (Effective February 1, 2011).
As extensively detailed in Defendants’ Memorandum in Support of Change of Venue
filed in the Middle District, this case involves subject matter that comprises a substantial and
material part of the subject matter or operative facts of another action pending before Judge
Duval. (R. Doc. 3-1). The transfer of this case to Judge Duval’s docket would promote judicial
economy, conserve judicial resources and avoid conflicting court rulings. Accordingly, transfer
of this case to the section with the lowest docket number—2:07-cv-06983-SRD-JCW pending
before Judge Duval—is appropriate.
17-30519.3184
III. CONCLUSION
For the reasons discussed above, Defendants, St. Tammany Parish Sheriff, Rodney
“Jack” Strain, in his official and individual capacity as Sheriff, St. Tammany Parish Sheriff
Captain Sherwood, St. Paul Fire & Marine Insurance Company (improperly named as
“Travelers-St. Paul Insurance Companies”), and Louisiana Attorney General James D. “Buddy”
Caldwell and the office of the Louisiana Attorney General (hereinafter “Defendants”)
respectfully request that this case be transferred to the docket of United States District Judge
Stanwood R. Duval, Jr.
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-
17-30519.3185


Litigation Division
P.O. Box 94005
Telephone: 225.326.6300
Facsimile: 225.326.6192

s/ Mark E. Hanna
17-30519.3186
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17-30519.3218


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
Please take notice that Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in
his official and individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St.
Companies”), Louisiana Attorney General James D. “Buddy” Caldwell and the office of the
Louisiana Attorney General (hereinafter “Defendants”) have filed a Motion to Transfer and
hereby notice said motion for submission before the Honorable Sarah S. Vance at 11:00 a.m. on
the 15th day of January, 2014.
17-30519.3219
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: 225.326.6300
Facsimile: 225.326.6192

s/ Mark E. Hanna
17-30519.3220

VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ORDER
Considering the foregoing Motion to Transfer filed on behalf of Defendants, St.
Tammany Parish Sheriff, Rodney “Jack” Strain, in his official and individual capacity as Sheriff,
St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire & Marine Insurance Company
James D. “Buddy” Caldwell and the office of the Louisiana Attorney General;
17-30519.3221
IT IS HEREBY ORDERED that Defendants’ Motion to Transfer is GRANTED and
this case is hereby transferred to the docket of United States District Judge Stanwood R. Duval,
Jr.
New Orleans, Louisiana, this _____ day of _________, 2014.
_________________________________
DISTRICT JUDGE SARAH S. VANCE
17-30519.3222

30th December
17-30519.3223


*
*
*
*
********************************************************************
ORDER
Considering the foregoing Motion for Extension of Time by defendants, Attorney
General James D. “Buddy” Caldwell and the Honorable Judge Richard A. Swartz;
IT IS HEREBY ORDERED that defendant is given an additional twenty-one (21) days
from the date of this Order to file responsive pleadings in the above captioned matter.
THUS DONE AND SIGNED in New Orleans, Louisiana, this 30th

____ day of December,
2013.
_______________________________________________
17-30519.3224

2:13-cv-06425
VERSUS

COMPANIES
ORDER
IT IS HEREBY ORDERED that the motion is granted allowing an extension of
twenty-one days or until January 6, 2014 for movers, Nicholas Noreia, Jr. and Ronnie
Gracianette, and until January 13, 2014 for mover, Kathryn W. Landry, in which to file
responsive pleadings herein.
30th day of December, 2013.

_______________________________________
JUDGE
17-30519.3225
17-30519.3226


VERSUS

TAMMANY, ADA RONNIE
NAMED, AND TRAVELERS-ST. PAUL
INSURANCE COMPANIES
MOTION TO STAY
James D. “Buddy” Caldwell, the office of the Louisiana Attorney General, Kathryn Landry,
ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter “Defendants”), and file their
Motion to Stay.
17-30519.3227
WHEREFORE, for the reasons outlined in Defendants’ Memorandum in Support of their
Motion to Stay, Defendants respectfully request that this matter be stayed pending resolution of
the criminal charges in the 22nd Judicial District Court against plaintiff, Shane M. Gates.
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192

-and-
17-30519.3228
KATHRYN W. LANDRY (# 19229)

P.O. Box 82659
Telephone: (225) 766-0023
Attorney for Defendants, Kathryn Landry, ADA

Ronnie Gracianette and ADA Nicholas F. Noriea
record via the Court’s CM/ECF system, this 6th day of January, 2014. I further certify that there
are no non-CM/ECF parties.
s/ Mark E. Hanna
17-30519.3229


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
MEMORANDUM IN SUPPORT OF MOTION TO STAY
Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his official and
individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire &
Marine Insurance Company (improperly named as “Travelers-St. Paul Insurance Companies”),
Louisiana Attorney General James D. “Buddy” Caldwell, the office of the Louisiana Attorney
General, Kathryn Landry, ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter
“Defendants”), through undersigned counsel, submit their Memorandum in Support of Motion to
Stay. For the reasons stated herein, Defendants request that this matter be stayed pending
17-30519.3230
resolution of the criminal charges in the 22nd Judicial District Court against plaintiff, Shane M.
Gates.
FACTUAL BACKGROUND
On October 17, 2007, plaintiff, Shane Gates, filed a Complaint for Damages under Title
42 U.S.C. § 1983, et seq., under 45 C.F.R. 164.513 (“HIPAA”), pendent state law claims, and a
claim for injunctive relief to prevent bad-faith prosecution in the United States District Court for
the Eastern District of Louisiana. (See R. Doc. 25-2). That case was assigned to Judge Duval.
The events of November 16, 2006 that prompted the above-referenced lawsuit are the same
events that form the basis of the Complaint filed in Middle District of Louisiana on August 5,
2013 and transferred to this Court on November 15, 2013. (R. Doc. 1.) Many of the named
defendants in the original 42 U.S.C. § 1983 proceeding before Judge Duval are also named in the
case recently filed and transferred to this Court, including:
1. St. Tammany Parish District Attorney, Walter Reed;
2. St. Tammany Parish Sheriff, Rodney “Jack” Strain;
3. The St. Tammany Parish District Attorney’s Office; and
4. St. Paul-Traveler’s Insurance Company.
Because the ongoing state court criminal proceedings necessarily had implications for the
42 U.S.C. § 1983 matter pending before Judge Duval, Defendants filed a Joint Motion to Stay
proceedings, as a conviction in the state court criminal proceeding could render moot plaintiff’s
42 U.S.C. § 1983 lawsuit as Heck v. Humphrey1 would potentially bar Plaintiff’s claims against
the Defendants. On April 17, 2008, after full briefing and oral argument before the Court, Judge
Duval stayed the 42 U.S.C. § 1983 proceeding “pending resolution of the criminal charges in the
1
512 U.S. 477, 114 S.Ct. 2364 (1994).
17-30519.3231
Twenty-Second Judicial District Court against Plaintiff, Shane M. Gates or until such time as the
Court, on motion of a party, lifts this stay.” (See R. Doc. 25-3).
Despite this clear Order from the Court five years ago, Gates has attempted several times
to have the civil stay lifted prior to the completion of all criminal charges in the 22 nd Judicial
District Court and has fought tooth and nail to prevent the criminal proceeding from being fully
adjudicated in state court, all as more fully detailed in Defendants’ Memorandum in Support of
Motion to Change Venue filed in the Middle District of Louisiana. (See R. Doc. 3-1 and
accompanying exhibits).
On one occasion, plaintiff successfully moved to reopen the case, representing to Judge
Duval that “[t]he twelve-person St. Tammany Parish Jury found Shane M. Gates not guilty of the
felony aggravated flight or any of the lesser charges on Friday, 27 July 2012.” See Record
Document 136-1 of Plaintiff’s already pending action, attached as Exhibit A. The motion was
granted prior to the filing of any opposition papers. Defendants immediately moved for re-
hearing to point out to Judge Duval that plaintiff’s statement was inaccurate. Granting
Defendants’ motion and leaving the stay in place, the Court stated:
At the time the Court granted the motion to reopen this matter, it was unaware
that misdemeanor criminal charges remained pending against Mr. Gates. Neither
the motion to reopen nor the plaintiff’s memorandum in support of that motion
indicated that the criminal charges remained pending against Mr. Gates. Had the
Court known that the misdemeanor criminal charges against Mr. Gates were still
pending, it would have denied the motion to reopen. Therefore, the Court grants
defendants’ joint motion for rehearing with respect to its Order reopening this
matter.
See Record Document 196 of Plaintiff’s already pending action, attached as Exhibit B.
As the Court is aware, Judge Brady granted Defendants’ motion and transferred this case
from the Middle District of Louisiana to the Eastern District of Louisiana, at which time it was
assigned to Your Honor. In doing so, Judge Brady made the following finding:
17-30519.3232
First, it is apparent that virtually all of the relevant actions, events, and
prosecutions occurred in St. Tammany Parish, or at the very least, in the Eastern
District of Louisiana. Moreover, the Plaintiff presently resides in the Eastern
District of Louisiana. Further, it appears that virtually all of the potential
witnesses in this matter can be found in the Eastern District of Louisiana, and the
bulk of the evidence and other sources of proof are found in the Eastern District.
Furthermore, a closely-related case is currently pending in the Eastern
District, which involves 42 U.S.C. § 1983 claims asserted against many of the
same defendants in the present matter and arising out of events that are
relevant to this matter before the court. Plaintiff has failed to convince this
Court that a transfer is inappropriate.
(R. Doc. 14, p. 2) (emphasis added).
Plaintiff’s resisting arrest trial was set for August 12, 2013 in the 22nd Judicial District
Court before Judge Richard Swartz. To derail the criminal trial, which had already been the
subject of numerous delays and continuances, plaintiff filed this action. The complaint is full of
scorched earth, highly personal attacks on the defendants and was successful in achieving yet
another recusal of a judge and yet another trial continuance.
There can be little doubt when comparing plaintiff’s original §1983 complaint with the
present matter that, to a great extent, it all arises out of the same operative facts. In the original
§1983 action, plaintiff alleged unlawful arrest and charges, asserts that the Sheriff and District
Attorney engaged in malicious prosecution and abuse of process and that the defendants
conspired in their actions.
In the present §1983 complaint, plaintiff alleges that the District Attorney of St.
Tammany Parish, the St. Tammany Parish Clerk of Court and the Bench in St. Tammany Parish
have conspired against him, committing a “fraud upon the Court.” Plaintiff essentially alleges
that the named defendants have committed crimes against him in the pursuit of the criminal
prosecution. In both lawsuits, plaintiff seeks “injunctive relief to prevent bad faith prosecution.”
17-30519.3233
In both complaints, plaintiff asserts that evidence has been destroyed, altered or fabricated. The
duplication in the lawsuits is evident in the enumerated §1983 violations, including:
1. Concerted unlawful and malicious subsequent arrest and charges;
2. Sheriff, Clerk of Court and District Attorney’s malicious prosecution;
3. A §1983 conspiracy cause of action;
4. A §1983 count alleging liability of the District Attorney and his Office. (In the
most recent complaint, Gates joins the Clerk of Court in this count); and
5. Both complaints set out due process and equal protection violations.
Although new facts are alleged in the recently filed complaint before this Court due to a
significant passage of time since the first filing in 2007 of a §1983 action in the Eastern District,
the factual predicate for both complaints is essentially the same. The complaint filed in this case
is simply an extension in time to the present of complaints and allegations pertaining to the
ongoing criminal prosecution having its genesis in plaintiff’s arrest by the St. Tammany Sheriff’s
Deputies on November 16, 2006.
Because this case arises out of the same operative facts, has many of the same or similar
defendants named in the original §1983 case stayed before Judge Duval and, frankly, picks up
where the original §1983 case left off when filed several years ago, with allegations to the
present day, it likewise should be subject to stay as a conviction on the resisting arrest charge
could likewise impact any allegations in this case. If the original §1983 case is stayed and this
case is simply a chronological extension of alleged deprivations of rights secured by law by state
actors, then it is appropriate to stay this case as well.
17-30519.3234
LAW AND ARGUMENT
The arguments that provided the basis for the Judge Duval’s stay of the original §1983
action are set out in Record Document 47-1 of plaintiff’s already pending action, attached hereto
as Exhibit C. Federal Courts are authorized to stay civil rights claims attacking the legality of a
plaintiff’s arrest, prosecution and detention until such time as the allegedly improper state
prosecution has been concluded. Wallace v. Kato, 549 U.S. 384, 393-394, 127 S. Ct. 1091
(2007). In Wallace, the Court stated:
If a plaintiff files a false-arrest claim before he has been convicted (or files any
other claim related to rulings that will likely be made in a pending or anticipated
criminal trial), it is within the power of the district court, and in accord with
common practice, to stay the civil action until the criminal case or the likelihood
of a criminal case is ended. If the plaintiff is ultimately convicted, and if the
stayed civil suit would impugn that conviction, Heck will require dismissal;
otherwise, the civil action will proceed, absent some other bar to suit.
Id. (internal citations omitted).
District Courts within the Fifth Circuit, as well as courts in this district, have routinely
stayed civil rights actions when criminal charges remain pending. Hood v. Smith, 2011 WL
378786, *3-4 (E.D. La. 2011) (staying claims for illegal arrest and illegal seizure of evidence on
which pending criminal charges are based under the Wallace reasoning); Holt v. Jefferson Parish
Sheriff’s Office, 2007 WL 4114357, *5-6 (E.D. La. 2007) (relying on Wallace to stay a claim for
fabrication of evidence).
The question presented is whether plaintiff’s damage claims in this case are related to and
are simply a continuation of the first filed § 1983 action and, further, are related to rulings that
will likely be made in the pending criminal proceeding. If so, this civil action should be stayed
until the criminal case is ended. Wallace, 549 U.S. at 393-394. It is respectfully submitted that
17-30519.3235
the legality of plaintiff’s arrest and prosecution will be determined in the state court criminal
proceeding.
Moreover, even if this were not the case, when it is premature to determine whether a
plaintiff’s civil damages claims may be barred under Heck because of the pendency of criminal
charges, Fifth Circuit precedent counsels in favor of staying the proceedings. Quinn v. Guerrero,
2010 WL 412901, at *2 (citing Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir.1995) (in such
cases, the court “may—indeed should—stay proceedings in the §1983 case until the pending
criminal case has run its course, as until that time it may be difficult to determine the relation, if
any, between the two”); Busick v. City of Madison, Mississippi, 90 Fed. Appx. 713, 713-714 (5th
Cir. 2004) (where it is impossible to determine whether a plaintiff’s civil claims relating to his
arrest and criminal prosecution necessarily implicate the validity of any conviction or sentence
that plaintiff has received or might receive because of ongoing criminal proceedings, the district
court should have stayed the civil proceedings pending the resolution of the criminal charges
against plaintiff); Davis v. Zain, 79 F.3d 18, 19 (5th Cir. 1996) (“if some presently unforeseen or
unarticulated conflict arises between the criminal retrial and the pending § 1983 case, the District
Court may consider the propriety of a stay or, perhaps, abstention”)).
Some judges of the Eastern District of Louisiana have implemented a multifactor test in
determining whether to stay civil cases in the face of parallel criminal proceedings. Courts have
considered (1) the overlap between the civil and criminal case; (2) the status of the criminal case;
(3) private interests of the plaintiff; (4) private interests of the defendants; (5) the interests of the
Court; and (6) the public interest. See Southeast Recovery Group, LLC v. BP America, Inc., 278
F.R.D. 162, 166-67 (E.D. La. 2012). A consideration of these factors weighs in favor of staying
this case.
17-30519.3236
(1) The Overlap Between the Civil and Criminal Case
It is respectfully submitted that this case simply picks up where plaintiff’s first § 1983
case before Judge Duval left off and that the subject matter of the criminal proceeding (resisting
arrest and D.U.I.) is identical, or at least very similar, to the nature of this case. Here, the civil
action involves the same issues as contained in the criminal prosecution. Plaintiff’s complaint in
this case is based upon information from the state court criminal proceeding. Many of the
witnesses who would be expected to testify would be expected to do so in both matters. The
documentary evidence would be substantially the same. Waste Management of Louisiana LLC v.
River Birch, Inc., 2012 WL 520660, *4 (E.D. La. 2012).
Some Courts have found that “the similarity of issues in the underlying civil and criminal
actions is considered the most important threshold issue in determining whether to grant a stay.”
Modern American Recycling Services, Inc. v. Dunavent, 2012 W.L. 1357720, *2 (E.D. La. 2012)
(citing Dominquez v. Hartford Fin. Servs. Grp., Inc., 530 F.Supp.2d 902, 906-07 (S.D. Tex.
2008)). In determining whether issues in civil and criminal cases are related, Courts impose a
“common-sense, fact-bound analysis.” Id. (citing In re Ramu Corp. 903 F.2d 312, 319 (5th Cir.
1990)).
Both the original § 1983 lawsuit (malicious prosecution, conspiracy and abuse of
process) and the second filed lawsuit (action as to treason, malicious prosecution, conspiracy,
abuse of process and equal protection) allege the same thing arising out of the ongoing criminal
proceeding in state court. Plaintiff alleges that the named defendants have committed crimes
against him in the pursuit of the criminal prosecution. In both lawsuits, plaintiff seeks injunctive
relief (previously denied by Judge Duval) and asserts that evidence has been destroyed, altered
or fabricated. Whether such allegations have any merit will very likely be decided in the state
17-30519.3237
court criminal trial. The extent of overlap between the two §1983 suits and the state court
criminal proceeding weighs heavily in favor of a stay in this case.
(2) The Status of the Criminal Proceeding
Plaintiff’s criminal trial was set for August 12, 2013 and only upset because of the
unfounded allegations against Judge Swartz in this case. Judge Walter Rothschild has been
appointed as Ad Hoc Judge and a trial date has been set for January 16, 2014. However, upon
information and belief, plaintiff’s counsel has moved for another continuance for medical
reasons. Broad-ranging discovery that is anticipated in this case is likely to disrupt and perhaps
undermine the criminal proceeding that is only awaiting trial. See Southeast Recovery Group
LLC v. BP America, Inc., supra, at 168. Because trial of the state court criminal proceeding is
imminent, this factor also weighs in favor of a stay.
(3) Plaintiff’s Interests
The first filed §1983 matter is already stayed. Plaintiff may actually benefit from a stay
of this case as it would allow plaintiff the benefit of information gathered during the criminal
investigation and made part of the criminal trial record. Plaintiff could have allowed the criminal
trial to proceed long ago but has resorted to filing numerous continuances and ultimately this
case, a device used to once again continue the criminal trial. Plaintiff is to blame for the
numerous continuances of the criminal trial. Further, as expressed in the previous motion
practice in the original §1983 lawsuit, defendants are concerned that any §1983 action will be
used to conduct discovery for the criminal proceeding while plaintiff will assert his Fifth
Amendment privilege and not reciprocate in discovery whatsoever. This factor also weighs in
favor of a stay.
17-30519.3238
(4) Defendants’ Burden
Defendants may not be able to receive the full extent of discovery that they are entitled to
if plaintiff asserts his Fifth Amendment privilege. Thus, the defendants may not have any real
way to defend themselves if a stay is not granted awaiting the outcome of the criminal
proceeding. Warren v. Geller, 2013 WL 1455688, *10 (E.D. La. 2012). “If the defendant would
be burdened by civil discovery on the same issues as a pending criminal case, this factor weighs
in favor of a stay.” Id. (citing Doe v. Morris, 11-1532, 2012 U.S. Dist. LEXIS 12454, *4, 2012
WL 359315 (E.D. La. Feb. 2, 2012) (Vance, C.J.)). Having to respond to all of plaintiff’s
discovery and likely getting nothing but an assertion of the Fifth Amendment in return is a
burden on defendants which justifies a stay.
Further, defendants have an interest in avoiding duplicative discovery, which could result
if this case proceeds while the original §1983 case remains stayed. Duplicative depositions,
written discovery and the Court having to manage that process would be a likely result. This
factor weighs in favor of a stay.
(5) and (6) The Interests of the Courts and the Public
The Court’s important interests in judicial economy and expediency are advanced by
staying this action and first allowing the criminal proceedings to go forward. Waste
Management of Louisiana LLC, supra, at *5 (quoting Doe, supra, at *4; SEC v. Offill, 2008 WL
958072, *3 (N.D. Tex. Apr. 9, 2008)). As previously mentioned, duplicative depositions and
written discovery all overseen by the Court are reasonably anticipated. Further, if plaintiff is
convicted of resisting arrest and D.U.I., this could greatly limit the viability of any §1983
proceeding under Heck v. Humphrey and its progeny. Proceeding with the civil action at this
time may result in the use of judicial resources that simply are not necessary. The criminal
10
17-30519.3239
proceeding may streamline the matter significantly. Further, the public would benefit by the
economical use of judicial resources advanced by a stay here until such time as the criminal
proceeding is completed and both the §1983 actions can proceed hand in hand. Waste
Management of Louisiana, LLC, supra, at *5. These factors also weigh in favor of a stay.
CONCLUSION
Plaintiff’s first-filed § 1983 suit has been stayed pending the outcome of the pending
criminal charges yet to be tried in state court. This case, his second § 1983 case arising out of
the same facts and circumstances and picking up where his first lawsuit left off, should be stayed
for the same reasons. All factors weigh in favor of staying this matter pending resolution of the
criminal charges in the 22nd Judicial District Court against plaintiff, Shane M. Gates. For the
reasons discussed herein, and the reasons that Judge Duval stayed plaintiff’s first § 1983 suit,
Defendants respectfully request that this Court grant their Motion to Stay.
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-
11
17-30519.3240


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192


P.O. Box 82659
Telephone: (225) 766-0023

s/ Mark E. Hanna
12
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17-30519.3252
17-30519.3253
17-30519.3254
17-30519.3255


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
Please take notice that Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in
his official and individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St.
Companies”), Louisiana Attorney General James D. “Buddy” Caldwell, the office of the
Louisiana Attorney General, Kathryn Landry, ADA Nicholas F. Noriea and ADA Ronnie
Gracianette (hereinafter “Defendants”) have filed a Motion to Stay and hereby notice said
motion for submission before the Honorable Sarah S. Vance at 10:00 a.m. on the 29th day of
January, 2014.
17-30519.3256
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192

-and-
17-30519.3257

P.O. Box 82659
Telephone: (225) 766-0023

s/ Mark E. Hanna
17-30519.3258

VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ORDER
Considering the foregoing Motion to Stay filed on behalf of Defendants, St. Tammany
ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter “Defendants”);
17-30519.3259
IT IS HEREBY ORDERED that Defendants’ Motion to Stay is GRANTED and this
case is hereby STAYED pending resolution of the criminal charges in the 22nd Judicial District
Court, State of Louisiana, against plaintiff, Shane M. Gates.
_________________________________
17-30519.3260

VERSUS
JUDGE RICHARD SWARTZ, WALTER P. REED, CASE NO.: 2:13-CV-06425

ADA NICHOLAS F. NORIEA, JR., CLERK OF
COURT-ST. TAMMANY, MARIE ELISE PRIETO,
STPSO SHERIFF RODNEY “JACK” STRAIN, JUDGE:
CAPTAIN SHERWOOD, KATHRYN LANDRY, HON. SARAH S. VANCE
THE OFFICE OF THE CLERK OF COURT OF ST.
TAMMANY, LOUISIANA ATTORNEY GENERAL,
JAMES D. “BUDDY” CALDWELL, THE OFFICE MAG. JUDGE:
OF THE LOUISIANA ATTORNEY GENERAL, THE HON. ALMA L. CHASEZ
OFFICE OF WALTER P. REED DISTRICT
ATTORNEY FOR THE PARISH OF ST.
TAMMANY, ADA RONNIE GRACIANETTE, JURY TRIAL
JOHN AND JANE DOES OF THE PARISH AND
STATE OFFICES NAMED AND TRAVELERS-ST.
PAUL INSURANCE COMPANIES
MOTION FOR A MORE DEFINITE STATEMENT UNDER

RULE 12(B)(E) AND MOTION TO STRIKE UNDER RULE 12(F)
NOW INTO COURT, through undersigned counsel, come defendants, Marie Elise
Prieto, both individually and in her official capacity, and the Office of the Clerk of Court of St.
Tammany (hereinafter “Defendants”), who files this Motion for Definite Statement Under Rule
12(b)(e) and Motion to Strike Under Rule 12(f) as follows:
The Motion for More Definite Statement is filed because plaintiff’s Complaint is so vague
or ambiguous that these defendants cannot reasonably be required to frame a responsive
pleading.
17-30519.3261
The Motion to Strike Under Federal Rule of Civil Procedure 12(f) is based on the fact
that plaintiff’s Complaint contains scandalous matter for which plaintiff has alleged no
supporting facts.
WHEREFORE, the premises considered, defendants pray that plaintiff be ordered to
amend his Complaint to provide a more definite statement of the allegations that he is
attempting to make against these defendants. Defendants further pray that the scandalous
matter contained in plaintiff’s Complaint be struck. Defendants also pray for such other and
further relief, both general and special, at law or in equity, to which they may be justly entitled.
HUVAL VEAZEY FELDER & RENEGAR, LLC
/s/ Thomas H. Huval_____________

THOMAS H. HUVAL (#21725)
Stefini W. Salles (#25857)
532 East Boston Street
Telephone: (985) 809-3800
Facsimile: (985) 809-3801
Email: thuval@hvfr-law.com
Attorneys for Marie Elise Prieto, Clerk of Court

for the Parish of St. Tammany and the Office of
the Clerk of Court of St. Tammany
Page 2 of 3
17-30519.3262
I hereby certify that a true and correct copy of the foregoing pleading was electronically
filed with the Clerk of court using the CM/ECF system. Notice of this filing will be sent to all
counsel of record by operation of the Court’s electronic filing system. I further certify and there
Covington, Louisiana this 6th day of January, 2014.
_______________S/ Thomas H. Huval________________

THOMAS H. HUVAL
Page 3 of 3
17-30519.3263

VERSUS

MEMORANDUM IN SUPPORT OF FEDERAL RULE

OF CIVIL PROCEDURE 12(B)(E) MOTION FOR A
MORE DEFINITE STATEMENTAND 12(F) MOTION TO STRIKE
Now Into Court, through undersigned counsel, come defendants, Marie Elise Prieto and
the Office of the Clerk of Court of St. Tammany (hereinafter “Defendants”), who files this
Motion for Definite Statement under Rule 12(b)(e) and Motion to Strike under Rule 12(f) as
follows:
MOTION FOR A MORE DEFINITE STATEMENT UNDER 12(B)(E)
1. Shane M. Gates, has filed a Complaint that he identifies as a “Civil Rights: 42 U.S.C. §
1983” action and an “Action as to Treason”. In addition to the labels he has given the
17-30519.3264
Complaint in the caption, he alleges in various places in the Complaint that he has the
been the victim of fraud, crimes, a conspiracy, fabrication of evidence, destruction of
evidence, malicious prosecution, false arrest, alteration of evidence, alteration of public
records, treason, and civil rights violations. One of the fundamental problems with the
Complaint which makes it vague and ambiguous, and virtually impossible to respond to,
is that in many places it lumps all the defendants together without specifying which
defendant allegedly engaged in the acts complained of and which defendant is allegedly
liable for each such act. The Complaint also fails to provide specifics regarding when the
acts were allegedly committed, which person committed the alleged acts, and what facts
support the allegations. Because of these deficiencies, defendants, Marie Elise Prieto,
individually, and the Office of the Clerk of Court of St. Tammany Parish, request that
plaintiff be required to replead his allegations to specify the specific causes of action
asserted against each individual defendant and the factual allegations upon which the
specific causes of action are based.
Examples of Deficiencies in the Complaint Which

Support the Motion for a More Definite Statement
2. In the preamble to the Complaint, plaintiff claims that all of the defendants have violated
his state and federal constitutional rights. Plaintiff does not, however, specify what
Marie Elise Prieto did in her individual capacity to deprive Mr. Gates of any
constitutionally protected right. He also does not specify what state or federal
constitutional protected right Ms. Prieto, in her individual capacity, ever deprieved him
off. Also, in the preamble to his petition, Mr. Gates alleges that his prosecution in the
22nd Judicial District Court for crimes that he committed in November 2006 exemplifies
Page 2 of 13
17-30519.3265
fraud and crimes committed not only against himself but “a number of other persons as
well”. He does not, however, specify which of the defendants he is referring to in the
Preamble. Marie Elise Prieto and the Office of the Clerk of Court has no power or control
over any individual’s prosecution and, hence, to the extent that Gates is alleging that
such prosecution exemplifies fraud and crimes, that has nothing to do with Ms. Prieto
and the Office of the Clerk of Court. These defendants should not be put in a position of
guessing whether the plaintiff intends that allegation to even pertain to them.
3. In paragraph 5 of plaintiff’s Complaint, he alleges that all of the defendants’ joint actions
and conspiracy constitute treason. Plaintiff fails to reasonably set forth what acts of Ms.
Prieto in her individual capacity constitutes treason. He also fails to set forth any facts
whatsoever to suggest that Ms. Prieto in her individual capacity was engaged in a
conspiracy. Ms. Prieto is left to guess what acts she is alleged to have committed, when
she is alleged to have committed them, and who her co-conspirators are. Without such
facts, it is impossible for her to reasonably prepare a response to the allegations. There is
a complete absence of facts which plaintiff believes supports the conclusory allegation
that Ms. Prieto, engaged in treason or a conspiracy. A pleading that only alleges
conclusory allegations without any facts that would give a defendant reasonable notice
of the conduct in question, or the factual basis for the cause of action, is insufficient to
state a claim under Federal Rule of Civil Procedure Rule 8(a). See E.G. Beanal v. Freeport-
McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999) (holding that plaintiff’s Complaint which
was devoid of names, dates, locations, times or any facts did not meet Rule 8(a)); Guidry v.
Bank of Laplace, 954 F.2d 278, 281 (5th Cir. 1992) (to avoid dismissal under Rule 12(b)(6),
Page 3 of 13
17-30519.3266
a plaintiff must plead specific facts, not mere conclusory allegations. The plaintiff also
fails to provide any facts to support the conclusory allegations as to the Office of the
Clerk of Court.
4. In Paragraph 6, Gates asserts that Judge Richard Swartz is an officer of the court. He also
asserts that Walter Reed, Nicholas F. Noriea and Ronald Gracienette are officers of the
court. He then alleges that “other named defendants are officers of the court”, but he fails
to identify which defendants he intends to include within the label “officers of the court”.
This is important because his paragraphs 7 through 16 seem to pertain to those
defendants who fall within the “officer of the court” designation. Gates should be
required to identify which defendants he intends to include in that category and exactly
what acts each such defendant committed that run afoul of any obligations or duties they
would have as an officer of the court.
5. In paragraph 17 of the Complaint, plaintiff complains that the defendants committed
crimes, but he fails to identify which defendant committed which crime. He fails to
identify the crime. He also fails to identify the dates on which the crimes were
committed or exactly who committed the crimes. In that same paragraph 17, plaintiff
again alleges that actions by the defendants constitute treason, but he fails to give any
facts supporting that allegation. Instead he just makes the conclusory allegation of
treason.
6. In paragraph 19 of the Complaint, plaintiff alleges that various persons with the District
Attorney’s Office acted in concert with Ms. Prieto and certain persons in the Clerk’s
Office. Plaintiff has not identified what persons in the District Attorney’s Office acted in
Page 4 of 13
17-30519.3267
concert with anyone in the Clerk of Court’s Office. He has also not identified any of the
persons in the Clerk’s Office who purported to act in concert with employees in the
District Attorney’s Office. He does not specify when such acts occurred, where they
occurred, how they occurred or why they occurred. Without such information, it is
impossible for Ms. Prieto and the Office of the Clerk of Court of St. Tammany Parish to
properly prepare a response. From the Complaint, undersigned counsel is not even able
to tell Ms. Prieto when the alleged acts supposedly occurred or the date of the loss
alleged.
7. In paragraph 28 of the Complaint, plaintiff alleges that there have been fraudulent acts,
alteration of public records and other crimes, but he fails to provide the who, what,
when, where and how relative to those alleged acts. He does not identify what the “other
crimes” are to which he refers. Plaintiff should be required to provide that information.
8. In paragraph 30 of the Complaint, plaintiff again makes reference to the fact that he
supposedly has evidence of records being altered. He fails to identify the dates on which
the alterations occurred, exactly what records were altered, how they were altered, or by
whom they were allegedly altered.
9. In Paragraph 32 of the Complaint, plaintiff names Ms. Prieto in her individual and official
capacities, and the Office of the Clerk of Court, as defendants. Plaintiff alleges that Ms.
Prieto and the Office of the Clerk of Court are responsible for the policies, procedures,
and practices implemented by that office. Plaintiff fails, however, to identify in the
Complaint a single policy, procedure or practice implemented by the Office of the Clerk
Page 5 of 13
17-30519.3268
of Court that has allegedly led to the deprivation of any constitutionally protected right
or any other damage to Plaintiff.
10. In paragraph 64 of the Complaint, plaintiff asserts that there have been years of fraud,
fabrication and alteration of evidence by all of the defendants. There are no facts
provided to support those allegations. Gates should be required to provide at least some
specifics as to which persons committed acts constituting fraud, what acts were
committed and when the acts where committed. The same thing should be required
regarding the allegations of fabrication and alteration of evidence. Further, Plaintiff again
lumps all the defendants together in this paragraph such that it is impossible to tell
exactly who he believes engaged in these acts. The named defendants are all unrelated
parties and it is not proper to simply lump them together without making the proper
distinction between them.
11. Paragraph 66 contains an allegation that the Clerk of Court altered public records, but
the plaintiff does not identify when the alteration occurred, what record was altered,
how it was altered, who altered it and what the significance of the alteration is vis-à-vis
this particular plaintiff. It is also unclear in Paragraph 66 of the Complaint, whether
Gates is referring to Ms. Prieto in her individual capacity, when he uses the term Clerk of
Court, or whether he is referring to some individual that allegedly works in the Clerk of
Court’s office. This is important since the liability of persons sued in their individual
capacities under Sec 1983 is gauged in terms of their own actions. Welch v. Ciampa 542 F.
3d 927, 936 (1st Cir 2008). Ms. Prieto has been sued in her individual capacity, but it is
not clear what Gates thinks Ms. Prieto did individually. Ms. Prieto cannot tell from the
Page 6 of 13
17-30519.3269
Complaint whether the reference to Clerk of Court in Paragraph 66 is intended to be a
reference to Ms. Prieto’s own individual acts, or the acts of others in the Office of the
Clerk of Court. In paragraphs 67 through 78, Gates alternates using “Prieto” and the
“Clerk of Court” when referring to these defendants. These terms are not
interchangeable and Gates should be required to identify who he is referring to.
12. Plaintiff asserts in Count 1 of the Complaint that the defendants maliciously prosecuted
and falsely charged plaintiff. Plaintiff, of course, lumps the defendants together. The
Complaint is devoid of any allegations as to how the Clerk of Court or Ms. Prieto could
maliciously prosecute anyone when it has no power or responsibility to prosecute.
Under La. Code of Criminal Procedure Art. 61, it is the District Attorney which has the
entire charge and control over every criminal prosecution instituted or pending in his
district, and is the only one empowered to determine whom, when and how he shall
prosecute. In that same count, plaintiff alleges that the defendants falsely charged
plaintiff with crimes. Again, the Clerk of Court and Ms. Prieto do not have the power to
charge anyone with anything. Plaintiff must breakout the allegations that purportedly
apply to each defendant, so that each defendant can reasonably determine how best to
respond to the allegations.
13. In Counts II, III and IV, Gates alleges a number of acts that constitute supposed
violations of 42 U.S.C Sec 1983. Again, he lumps all the defendants together. He should
be required to specify which allegations and counts pertain to which defendants.
Page 7 of 13
17-30519.3270
Law that Requires a More Definite Statement
14. Federal Rule of Civil Procedure 12(e) provides that a “motion for more definite statement
may be filed when a pleading to which a responsive pleading is permitted is so vague or
ambiguous that party cannot reasonably be required to frame a responsive pleading . . .”
The standard for evaluating a motion for more definite statement is whether the
Complaint is so excessively vague and ambiguous as to be unintelligible and as to
prejudice the defendant seriously in attempting to answer it. Coleman v. H.C. Price Co., 2012
U.S. Dist. Lexis 46756 (E.D.LA 2012); Advanced Commc’ns Techns, Inc. v. Li, No. 05 Civ. 4628,
2005 U.S. Dist. Lexis 30135, 2005 W.L. 3215222 at *3 (S.D.NY 11/30/2005) (citing Bower v.
Weisman, 639 F.Supp. 532, 538 (S.D.NY 1986).
15. According to a recent opinion authored by Magistrate Judge Knowles of the Eastern
District, “when evaluating a motion for more definite statement, the court must assess
the complaint in light of the minimal pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure, which provides in pertinent part ‘A pleading which sets forth a
claim for relief . . . shall contain a short and plain statement of the claim showing the
pleader is entitled to relief . . .’ Federal Rule of Civil Procedure 9(f), which should be
read in conjunction with Rule 8, states that averment of time and place are material for
the purpose of testing the sufficiency of a pleading; specific pleading of these averments,
however, is not required.” Coleman, id.
16. The court in Coleman also wrote that “the Rule 12(e) motion is disfavored, in that “in view
of the great liberality of Rule 8, permitting notice pleading, it is clearly the policy of the
rules that Rule 12(e) should not be used to frustrate this policy by lightly requiring a
Page 8 of 13
17-30519.3271
plaintiff to amend his Complaint which under Rule 8 is sufficient to withstand a motion
to dismiss.” Coleman, id. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959);
See generally 5(a) C. Wright and A. Miller, Fed. Practice and Procedure Sec. 1377 (2nd Ed.
1990).
17. However, in this instance, even in light of the liberal pleading requirements of Rule 8,
and the above referenced law, the Complaint is deficient and is so vague or ambiguous
that Ms. Prieto and the Office of the Clerk of Court cannot reasonably prepare a
response. See e.g. E.G. Beanal, 197 F.3d at 164 (if a complaint is ambiguous or does not
contain sufficient information to allow a responsive pleading to be framed, the proper
remedy is a motion for a more definite statement under Rule 12(e)). In addition,
defendants request that for each cause of action asserted against them, plaintiff be
required to state the legal elements of such a claim and provide a general basis for
asserting that the facts alleged by plaintiff meet the elements of each such claim. Walker
v. South Central Bell Telephone Co., 904 F.2d 275, 277 (3d Cir. 1990) (holding that Federal
Civil Procedure Rule 8 requires more than mere “”bare bone allegations that a wrong has
occurred).
18. Plaintiff has lumped all of the unrelated defendants together and asserted a wide variety
of alleged conduct without specifying which particular defendant did what, at what time
and in what manner. Those deficiencies should be corrected by appropriate amendments
to the Complaint.
19. Plaintiff has chosen to bring a number of serious, albeit completely baseless and
unfounded, allegations against a number of public officials in St. Tammany Parish. He
Page 9 of 13
17-30519.3272
should not be given a pass on being required to i) state what each such official allegedly
did, ii) when they did it, iii) how they did it and, iv) to the extent it is alleged that they
acted in concert with others, provide the facts supporting such conspiracy theories. In
the absence of that, defendants are left to guess as to what it is they are even responding
to and how it is that they should most appropriately respond to have this matter
dismissed in its entirety as early as possible.
20. Further, the Plaintiff alleges fraud in a conclusory fashion. He has failed to plead fraud in
accordance with Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) requires
that in pleading fraud a plaintiff must state with particularity the circumstances
constituting fraud or mistake. The Complaint falls far short of pleading fraud with the
particularity required by Rule 9(b). Under Louisiana law, fraud is defined as a
misrepresentation or suppression of the truth made with the intention either to obtain
an unjust advantage for one party or to cause a loss or inconvenience to the other. La.
C.C. art. 1953. Plaintiff has failed to plead any facts by which defendants can ascertain
the who, what, when, where and how of the alleged fraud. To satisfy 9(b)’s pleading
requirements, the plaintiff must specify the statements contended to be fraudulent,
identifying the speaker, state when and where the statements were made and explaining
why the statements were fraudulent. Southland Secs. Corp. v. Inspire, Ins. Solutions, Inc., 365
F.3d 353, 362 (5th Cir. 2004). Plaintiff makes no effort to do so.
MOTION TO STRIKE UNDER 12(F)
21. According to Rule 12(f) of the Federal Rules of Civil Procedure, the court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent or
Page 10 of 13
17-30519.3273
scandalous matter. In this instance, plaintiff’s Complaint contains scandalous matter
which should be struck. The Complaint is replete with conclusory allegations that the
defendants, including Ms. Prieto and the Office of the Clerk of Court, have engaged in
conduct constituting treason. In addition to being a ridiculous and unfounded
allegation, it is clearly scandalous. A simple review of Black’s Law Dictionary for the
definition of treason reveals that plaintiff’s use of that term throughout his Complaint is
completely inappropriate. Plaintiff has not defined treason in the Complaint, nor
referenced any statutes that would give him a private right of action for treason. Instead,
he just repeatedly uses the term.
22. Motions to strike matter from the pleadings are viewed with disfavor and are
infrequently granted, both because striking portions of pleadings is a drastic remedy and
because it is often sought by a movant simply as a dilatory tactic. Koerner v. Garden Dist.
Assoc., 2002 U.S. Dist. Lexis 6306 (E.D.L.A. 2002); FDIC v. Niblo, 821 F.Supp. 441 (N.D.T.X.
1993). The court does, however, possess considerable discretion in ruling on a motion to
strike. Although such motions may be infrequently granted, this is a case in which that
relief is appropriate. Plaintiff should not be allowed to make scandalous allegations but
then provide no facts to support the allegations. It is clear that the term “treason” has no
application to the matter at hand. It was clearly included in the Complaint for its
perceived shock value and should be struck from the Complaint.
23. Similarly, plaintiff alleges that these defendants have engaged in a conspiracy, committed
undefined crimes, and engaged in fraud. Given the absence of facts to support the
Page 11 of 13
17-30519.3274
conclusory allegations, these scandalous matters should also be struck from the
Complaint.
/s/ Thomas H. Huval______________________

Telephone: (985) 809-3800
Facsimile: (985) 809-3801

Page 12 of 13
17-30519.3275
______S/ Thomas H. Huval_______

THOMAS H. HUVAL
Page 13 of 13
17-30519.3276

VERSUS

Please take notice that of defendants, Marie Elise Prieto and the Office of the Clerk of
Court of St. Tammany, have filed a Motion for a More Definite Statement Under Rule 12(b)(e)
and Motion to Strike Under Rule 12(f) and hereby notice said motion for submission before the
Honorable Sarah S. Vance at 10:00 a.m. on the 26th day of February, 2014.
17-30519.3277
/s/ Thomas H. Huval______________________

Telephone: (985) 809-3800
Facsimile: (985) 809-3801

______S/ Thomas H. Huval_______

THOMAS H. HUVAL
Page 2 of 2
17-30519.3278


VERSUS
JUDGE RICHARD SWARTZ, ET AL. CIVIL ACTION NO.:

2:13-cv-06425
JUDGE: SARAH S. VANCE
MAG. JUDGE: ALMA CHASEZ
JURY TRIAL
***************************************************************
EX PARTE MOTION FOR EXTENSION OF TIME TO ANSWER

DEFENDANTS’ MOTIONS AT DOCUMENT NOS. 25, 29, 30
FOR MEDICAL REASONS & SCHEDULED TREATMENT
Undersigned counsel moves the Court for additional time to answers Motions filed by
defendants or to have co-counsel enrolled in this case. Defendants have filed two motions, one
to transfer this matter to Judge Duval [Rec doc. 25], to Stay the case [Rec. doc. 29], and for More
Definite Statement [Rec. doc. 30].
Counsel has health issues outlined in the Memorandum in Support.
Daniel G. Abel I have filed this pleading and exhibit

2421 Clearview Parkway with the Clerk of Court and thereby
Metairie, LA 70001 served all counsel. 13 January 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3279


VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
MEMORANDUM IN SUPPORT OF EX PARTE
MOTION FOR EXTENSION OF TIME TO ANSWER
DEFENDANTS’ MOTIONS AT DOCUMENT NOS. 25 & 26
FOR MEDICAL REASONS & SCHEDULED TREATMENT
Undersigned counsel has moved the Court for additional time to answers Motions filed
by defendants or to have co-counsel enrolled in this case. Defendants have filed two motions,
one to transfer this matter to Judge Duval [Rec doc. 25] and one to Stay the case [Rec. doc. 26].
Counsel has health issues outlined herein and confirmed by Dr. Collins in the letter attached as
Exhibit A.
Counsel had cancer surgery on 9 December 2013 performed by Dr. Sean Collins at East
Jefferson Hospital and is undergoing further diagnosis and treatment at East Jefferson and M.D.
Anderson Hospital in Houston, Texas in mid-February.
Counsel has moved the Court to give him time to enroll additional counsel or time to
respond to defendants’ motions once the treatment is complete, and he is capable of doing so.
In other matters, Judge Knowles has continued the Sampson trial formerly set for 6 January
2014, for six months and Judge Feldman has done the same in another case.
17-30519.3280
Counsel asks the Court to grant counsel an extension of time to answer defendants’
motions until he is capable of going forward or has enrolled other counsel.

Metairie, LA 70001 served all counsel. 13 January 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3281
rHU 15:15
0L/02/20L4Case FA:r 504 455 528? SUPBR
2:13-cv-06425-CJB-JCW 8 Airporr
Document N.0.,Filed
31-2 LA 01/13/14 Page 1 of 1 @oo3/ooe
SEAN COILINS, MD
at EastJeftrson General Hospital Credenioled W M. D. Andenon Physicions Netvvork"
January 3,2014
Judge Sarah S. Vance

Section R
500 Poydras Street, Room C255
Re: DanielAbel
Cases. Gates v Swartz, et al.
Dear Judge Vance:
Mr. Abel is a patient of mine who recently undenrvent a diagnostic cancer surgery. He is
recovering wellfrom his surgery, However, he will require rather extensive further
evaluation and treatment. I have made arrangements for him to see a number of other
physicians here in the New Orleans area, and he is also going to be evaluated at M.D.
Anderson. I expect it will take at least six months for him to complete his evaluation and
treatment. Please consider his request in reference to the above mentioned case. He
has given me his permission to share this information with you, lf you have any
questions, please call me directly (504) 454-5505 or on my cell phone (504)220-1013.
Thank you.
Sincerely,
SGE,I
Sean Gollins, M.D.
Director of Prostate Cancer and Robotic Surgery
East Jefferson General Hospital
SC/ch
4228 HOUMA BOULEVARD SUITE 330 . METAIRIL LA 70006 . PHONE:504-454-5s05 . FAK 504-454-5s06
17-30519.3282

VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
ORDER
It is ORDERED that this matter and action on the motions recorded at Rec. document
Nos. 25, 29, and 30 are continued. These matters are re-set for 18 June 2014, contingent
upon the medical condition of counsel at that time.
Ordered this ____ day of ____________, 2014. New Orleans, Louisiana.
______________________________________
District Judge Sarah S. Vance
17-30519.3283


VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
ORDER
It is ORDERED that this matter and action on the motions recorded at Rec. document
Nos. 25, 29, and 30 are continued. These matters are re-set for 18 June 2014, contingent
upon the medical condition of counsel at that time.
______________________________________
District Judge Sarah S. Vance
17-30519.3284

VERSUS NO: 13-6425
RICHARD SWARTZ, ET AL. SECTION: R
ORDER
Plaintiff moves to continue the submission dates on three
motions filed by defendants.1 Plaintiff's counsel submits that he
had cancer surgery in December and will be undergoing further
treatment in February.2 He requests "time to enroll additional
counsel or time to respond to defendants' motions once treatment
is complete." Plaintiff asks that the submission date on all
three motions be continued until June 18, 2014.
Considering counsel's health issues, the Court finds that a
continuation of the submission date is warranted. Accordingly,
the Court sets R. Docs. 25, 29, and 30 for hearing on February
26, 2014. This will provide counsel with ample time to enroll
additional counsel and respond to defendants' motions.
New Orleans, Louisiana, this 15th day of January, 2014.
SARAH S. VANCE
1
R. Doc. 31.
2
R. Doc. 31-1 at 1.
17-30519.3285


*
*
JUDGE RICHARD SWARTZ, WALTER P. REED,* CASE NO.: 2:13-cv-06425
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE: SARAH VANCE
CAPTAIN SHERWOOD, KATHRYN LANDRY, * MAG. JUDGE: ALMA CHASEZ
*****************************
MOTION TO CONTINUE AND RESET DEFENDANTS’
MOTIONS 25, 29, AND 30 UNTIL 9 APRIL 2014, FOR MEDICAL REASONS
KNOWN TO THIS HONORABLE COURT AND TO ALL COUNSEL OF RECORD
Plaintiff Shane M. Gates and counsel move the Court to continue the 26 February 2014
submission dates for defendants’ Motions appearing at Rec. Doc. Nos. 25, 29, and 30. Counsel
is undergoing further treatment, diagnosis, and monitoring at M.D. Anderson Cancer Center in
Houston, Texas the week of 3 March 2014 and for the reasons set forth in the memorandum
attached.

Daniel G. Abel, LSB # 8348 I have filed this motion, memorandum, and
2421 Clearview Parkway proposed order electronically with the Clerk
Legal Department - Suite 106 of Court and thereby served all counsel. On
Metairie, Louisiana 70001 this 18 February 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3286


*
*
*****************************
MEMORANDUM IN SUPPORT OF COUNSEL’S
MOTION TO CONTINUE AND RESET DEFENDANTS’
MOTIONS 25, 29, AND 30 UNTIL 9 APRIL 2014, FOR MEDICAL REASONS
KNOWN TO THIS HONORABLE COURT AND TO ALL COUNSEL OF RECORD
submission dates for defendants’ Motions appearing at Rec. Doc. Nos. 25, 29, and 30. Counsel
is undergoing further treatment, diagnosis, and monitoring at M.D. Anderson Cancer Center in
Houston, Texas the week of 3 March 2014 and for the reasons set forth herein.
Undersigned counsel had surgery and was diagnosed with cancer at the end of December
2014. He has been treated locally but is now scheduled to continue treatment, diagnosis, and
monitoring the week of 3 March 2014. At the end of that time, his treating physician at M.D.
Anderson should be able to provide a more conclusive prognosis and what the future treatment
will entail. Prior to that time, the ongoing diagnosis and scope of treatment is uncertain.
17-30519.3287
Counsel has contacted certain attorneys who are considering enrolling in this matter. To
date none have finalized an agreement to enroll.
submission dates for defendants’ Motions appearing at Rec. Doc. Nos. 25, 29, and 30 and re-set
the dates for 9 April 2014, at 10:00 A.M. to be submitted before Judge Sarah S. Vance.
Daniel G. Abel, LSB # 8348 I have filed this motion, memorandum, and
2421 Clearview Parkway proposed order electronically with the Clerk
Legal Department - Suite 106 of Court and thereby served all counsel. On
Metairie, Louisiana 70001 this 18 February 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3288

*
*
*****************************
ORDER
In light of the ongoing medical treatment and diagnosis of counsel, the Court continues
the 26 February 2014 submission dates for defendants’ Motions appearing at Rec. Doc. Nos. 25,
29, and 30 and re-sets the date of each for 9 April 2014, at 10:00 A.M. to be submitted before
this Court.
Ordered this ___ day of __________, 2014. New Orleans, Louisiana
________________________________
CHIEF JUDGE SARAH S. VANCE
17-30519.3289

VERSUS NO: 13-6425
RICHARD SWARTZ, ET AL. SECTION: R
ORDER
On January 15, 2014, the Court granted plaintiff's motion to
continue the submission dates on three motions filed by
defendants based on the representations of plaintiff's counsel
that he was undergoing cancer treatment and needed additional
time to respond to the motions.1 The Court set the motions for
hearing on February 26, 2014.2
Plaintiff now moves for another continuance of the
submission date on the three motions.3 Plaintiff's counsel
submits that he is still undergoing treatment and that he has
"contacted certain attorneys who are considering enrolling in
this matter," but that none have yet "finalized an agreement to
enroll."4 Plaintiff requests that the Court continue the
submission date on the motions until April 9, 2014.
1
See R. Doc. 31; R. Doc. 33.
2
R. Doc. 33.
3
R. Doc. 34.
4
Id. at 1-2.
17-30519.3290
Considering counsel's health issues, and considering
counsel's good-faith efforts to find additional attorneys to
assist in this matter, the Court finds that an additional
continuation of the submission date is warranted. Accordingly,
the Court sets R. Docs. 25, 29, and 30 for hearing on April 9,
2014. The Court will not grant any further continuances of the
submission date on these motions.
New Orleans, Louisiana, this 24th day of February, 2014.
SARAH S. VANCE
17-30519.3291
17-30519.3292
17-30519.3293
17-30519.3294
17-30519.3295
17-30519.3296
17-30519.3297
17-30519.3298
17-30519.3299

NOTICE
All Civil, Criminal and Miscellaneous cases allotted to Magistrate Judge
Division "5" are reassigned to Magistrate Judge Michael B. North.
WILLIAM W. BLEVINS
CLERK OF COURT
March 1, 2014
17-30519.3300

SHANE M. GATES * CASE NO.: 2:13-cv-06425
VERSUS * JUDGE: SSV
RICHARD A. SWARTZ, ET AL. * MAG JUDGE: MBN
* JURY TRIAL
**************************************************************
POSITION AS TO DEFENDANTS’ MOTION TO TRANSFER
[DOCUMENT NO. 25]
Considering the political ramifications of allowing this case to go forward in the Eastern
District, in light of the ongoing state and federal investigations of officials in the 22nd Judicial
District Court for the Parish of St. Tammany, Gates and counsel aver that this action and all
related matters should be transferred to another district of the United States District Courts.
Gates and counsel take no position—neither consenting to nor opposing—defendants’
Motion to Transfer [Rec. Doc. No. 25] this action to Judge Stanwood Duval.
Daniel G. Abel, LSB # 8348 Having filed this pleading

2421 Clearview Parkway electronically on 1 April 2014,
Legal Department - Suite 106 all counsel have been served.
Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3301

SHANE M. GATES * CASE NO.: 2:13-cv-06425
VERSUS * JUDGE: SSV
RICHARD A. Judge Swartz, ET AL. * MAG JUDGE: MBN
* JURY TRIAL
**************************************************************
OPPOSITION TO MOTION FOR A MORE DEFINITE STATEMENT
UNDER RULE 12(B)(E) AND MOTION TO STRIKE UNDER RULE 12(F)
[DOCUMENT NO. 30]
Ms. Ms. Prieto and counsel ask for a more definite statement alleging that counsel has not
identified by name, the persons who actually altered and fabricated the public records described in
the original complaint. The statements of fraud and alteration of public records are based on evidence
gathered and collected over the past four years which shall be presented to the jury and court when
timely. The names of the persons who committed these acts shall be determined through discovery
and are being identified through FOIA requests and from private citizens group investigations.
Ms. Prieto and counsel also complain that the original lawsuit “contains scandalous matter”
without supporting facts. While undersigned counsel has only reported the actions of persons in the
office of the Clerk of Court, counsel does agree that their crimes and actions, as public officials and
public employees are “scandalous”. The crimes are scandalous, not the reporting of those crimes.
Clerk of Court Malise Prieto and persons in her office or who have been given access to her
online public records programs have not only altered but have also fabricated public records as
recently as January of 2014 and have blocked online public access to records in the Gates matter as
recently as the month of March, 2014. It is difficult to respond to motions like this without access
Page 1 of 13
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to the public records.
This is not the first time or first case that parties and counsel have discovered alterations and
have discovered that the Clerk of Court’s office has even refused to provide transcripts to persons
who have paid for those transcripts. In a recent case the clerk of court’s office failed to send to the
First Circuit Court of Appeal the entire record of a case [State V. Keith Boyd][2013-KA-0238] now
pending in the Louisiana Supreme Court. As expected the parts of the record not sent to the First
Circuit were the parts probative of the issues that favored Mr. Boyd. As in the Gates matter, this
failure worked to the benefit of the district attorney and against the citizens.
Citizens groups and counsel will also provide the jury with data and evidence that the clerk
of court selectively allots certain matters to certain judges in the 22nd JDC, in the complicity of the
District Attorney and other interested parties.
Ms. Prieto and Counsel Ask for the Names of the Persons Who Altered the Records
Ms. Prieto and counsel ask for a more definite statement alleging that counsel has not
the original complaint. Ms. Prierto does not seem to dispute the alteration of the records nor dispute
the fact that undersigned counsel had put her on notice of the proven the alteration of those records.
She [Ms. Prieto] wrote back and said the alteration was an accident and that it would be changed.
The alterations were corrected, but only shortly thereafter were altered again and not
surprisingly, those altered records were used by appeals counsel for the District Attorney to argue
points probative by citation to the public records. Certain of those alterations were set forth in the
original complaint and set forth again below.
Page 2 of 13
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The Alterations Have Been Recorded and Shall Be Presented to the Court and Jury
During the years-long investigation of the activities in the 22nd Judicial District Courts
counsel, investigators and citizen’s groups have made copies of the docket sheets, minutes, and other
official online records which appear in various cases that have been altered or erased completely.
Needless to say, the cached versions of such alterations and erasures are proof in themselves
of the actions alleged in the original complaint. But the times at night when such public records
were altered and observed online during the altering, raises the question: who has access to the
clerk’s public records so that they can alter them at midnight; presumably not one’s usual civil
servant?
While counsel will present the actual documentation and data providing such alterations,
neither he nor the investigators would or could know the names of the persons sitting behind the
clerk’s keyboards making the alterations.
Counsel as obligated under Rule 8 of the Rules of Professional Responsibility as well as
citizens groups have reported a number of such actions by the Clerk of Court and her office, to the
appropriate authorities.
Facts Probative of Clerk’s Alteration of Public Records and Fraud
Ms. Prieto and counsel argue that “plaintiff’s Complaint is so vague or ambiguous that
defendants cannot reasonably be required to frame a responsive pleading”. However, the Original
Complaint sets forth facts and examples of the Clerk of Court’s actions Clerk of Court Ms. Prieto
and persons in her office or who have been given access to her online public records have not only
altered but have also fabricated public records as recently as January of this year and have blocked
online public access to records in the Gates matter as recently as the month of March, 2014. It is
Page 3 of 13
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difficult to respond to motions like this without access to the public records.
A most unusual instance of misconduct occurred when someone in the clerk’s office called
East Jefferson Hospital on 9 December 2014 and inquired if counsel was having surgery that day [I
was]. Then subsequently the Clerk’s office fabricated statements and placed them in the record
saying that they had obtained counsel’s medical records from East Jefferson Hospital by subpoena
duces tecum [they had not].
Those statements were entered in the public record by the Clerk’s office or someone with
access to the Clerk’s online records. Those statement are false and the hospital authorities have
confirmed that they received no such subpoenas nor would they by law have released any records
to the clerk, district attorney or state courts being prohibited from doing so by federal law. They
added, “this is Jefferson Parish, not St. Tammany.” They suggested that counsel contact the HIPPA
authorities. But in the Gates matter, the Clerk or someone with access to the records and programs
repeated altered and fabricated records many alteration and erasures have been saved as evidence.
In June 2013, Gates and counsel discovered that the Clerk of Court had [again] altered the
public record in the felony and misdemeanor prosecution in order to make it consistent with
arguments the District Attorney through Appeals Counsel Kathryn Landry was making with the
appeals court, and having made those same arguments repeatedly, contrary to the evidence that was
in the record—before the record was altered—and in direct contradiction to the testimony given by
all witnesses at trial.
Co-defendant Landry in her most recent briefs has continued to contend that there was a
flight or aggravated flight from Miller although those facts have been rejected and decided by the
jury at trial. Landry knowingly misrepresents facts that are established and res judicata—and as such
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she statements constitute fraud. The clerk facilitated that fraud by placing those facts in the record.
To argue against the District Attorney’s failure to satisfy the requirements of both the
felony and misdemeanor procedures and constitutional provisions, the Clerk of Court with the
assistance or input of the district attorney altered the public records.
Once put on notice that Gates and counsel had caught these alterations and had records of
the earlier original versions, defendants Ms. Prieto and others, corrected the alterations, only to place
the incorrect versions back online to provide fabricated evidence and support for the arguments that
the district attorney through appeals counsel wanted to make with both the state and federal courts;
although the district attorney knew that evidence and those alterations place in the record were false..
The district attorney’s appeal counsel Kathryn Landry continued to use the altered records
for purposes of advancing the false argument that Gates continued the misdemeanor and the felony
matter when in fact he had not. Not surprising, there is not record of a motion ever being by counsel
for Gates requesting the continuances which the clerk has placed on the public record.
Again, it is not an coincidence that Appeals Attorney Kathryn Landry again made allegations
and false statements of fact regarding these very same records, in her pleadings against Gates to the
Louisiana Supreme Court and most recently in these and other related matters.
Landry’s argument to the courts relies in significant part of the altered records as those have
been used in support of Landry’s argument about the Gates arrest for the felony flight charge and the
District Attorney’s failure to comply with the guarantees of the Speedy Trial act.
In fact, Gates was prosecuted and tried for Aggravated Flight, a charge he was not, ever
arrested for. Nor did Gates ever sign a ticket nor was he given a ticket for that charge and in fact the
investigators found that there are several versions of the tickets where the deputies or district attorney
Page 5 of 13
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have altered the color of the car and the number of doors on the car in order to match the description
of Mr. Gates’s vehicle, when the first versions of those tickets did not match. As of today there are
no tickets on record in the clerk of court’s office again in violation of La. R.S. 14: 132 and 133, the
public record act.
Ms. Prieto altered the public record to state that he was arrested for aggravated flight and she
fabricated a date on which he was allegedly [but not actually] arrested.
The alteration of Gates’s record is equally significant for purposes of writs, appeal, and for
any civil rights claims which might be pursued in federal courts.
As Kathryn Landry was going to argue and did that Gates was arrested for that charge, Ms.
Prieto and her office changed the record again to state that Gates was arrested for aggravated flight
and that change was made right at the time Landry’s brief went the First Circuit and then to the
Supreme Court.
The repeated alterations of the record in this matter was not an accident or coincidence, as
was proved by the time frame and obvious purpose for which he was being altered. At issue also is
who in the district attorney’s office has access to amend or alter these public records.
Investigators who have monitored the clerk’s record in this matter will present video-tapes
of the records being altered.
Investigators who have monitored the Clerk’s record in this matter will show the court the
content that was being monitored, at which point the purpose of the alteration will become apparent.
Ms. Prieto and counsel complain that the original lawsuit does not set forth facts to support
those allegations. The facts are set forth therein and again, above.
The facts support that the Clerk of Court her assistants, and office violated Gates’ rights as
Page 6 of 13
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those rights are expressly guaranteed and protected under Monell v. New York City Dept of Social
Services, 436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520
U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452,
C.A. 5 (La.) 1999, and Holly Ray Burns v. Sheriff Rodney Jack Strain, et al. [No. 07-30837, 14
January 2008].
The Clerk of Court, her assistants and office have violated their mandate as set forth in the
United States Constitution and the 1974 Louisiana Constitution, as articulated expressly in State v.
Tate 171 So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II, 541 So.2d 903 and
have violated that mandate as further defined under Monell v. New York City Dept of Social Services,
436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520 U.S. 781,
Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452, C.A. 5
(La.) 1999, State v. Tate 171 So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush II,
541 So.2d 903.
By conspiring with the co-defendants to obstruct Mr. Gates’s redress of the violations of his
constitutional and civil rights, these defendants including but not only the St. Tammany District
Attorney, the Sheriff, the Clerk of Court, and Judge have violated their mandate as set forth in the
1974 Louisiana Constitution, and as articulated—specifically prohibiting a district attorney from
being involved or interested in any extrinsic matters, which might consciously or unconsciously
impair his power to conduct an accused’s trial impartially. State v. Tate, Sup.1936, 185 La. 1006,
171 So. 108. Their conduct also constitutes treason.
In violating their constitutional mandate, the Clerk of Court and her office have also deprived
and violated his constitutional and civil rights as set forth in Monell v. New York City Dept of Social
Page 7 of 13
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Services, 436 U.S. 658, City of Canton v. Harris, 489 U.S. 387, McMillian v. Monroe County, 520
U.S. 781, Bryan County Comm’r v. Brown, 520 U.S. 397, and Burge v. St Tammany 187 F 3d. 452,
C.A. 5 (La.) 1999, State v. Tate 171 So. 108, Perez, 454 So.2d 806, Bush I, 538 So.2d 606, and Bush
II, 541 So.2d 903.
Crimes Which Constitute Treason
Ms. Prieto and counsel complain that the original lawsuit “contains scandalous matter”
public employees are “scandalous”.
Ms. Prieto and counsel aver that the original complaint contains neither facts nor law which
supports the allegations of treason—by the failure of the various defendant-officers of the 22nd
Judicial District Court to uphold their obligations under the United States and Louisiana
Constitutions. If fact, the facts, allegations, and jurisprudence cited are extensive.
Defendants Judge Swartz, Reed, Ms. Prieto, ADAs Noriea, Graicianette, and other’s joint
actions and conspiracy as judge and officers of these courts constitute treason under the laws of the
Constitution and the United States as established by the United States Supreme Court.
Judge Swartz as judge is an officer of the court, as well as are all attorneys including Reed,
Noriea, Gracianette, and other named defendants. Judge Swartz as a state judge is a state judicial
officer, paid by the State to act impartially and lawfully whose actions are in clear violation of the
United States and Louisiana Constitution contrary to his sworn oath of office such as to constitute
treason.
State [and federal] attorneys including Reed, Caldwell, Noriea, Gracianette, and Hughes, fall
Page 8 of 13
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into the same general category and must meet the same requirements. A judge is not the court.
People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980). The Clerk of Court and District Attorney
are not the law.
Having committed and condoned the fraud and destruction of evidence proved, these named
defendants including Judge Swartz, Ms. Ms. Prieto, Reed, Noriea, and Gracianette, have committed
such fraud established by the United States Supreme Court such that: “Whenever any officer of the
court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court".
In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the
court is fraud which is directed to the judicial machinery itself and is not fraud between the parties
or fraudulent documents, false statements or perjury. ...”
What the named defendants have done is "Fraud upon the court" as has been defined by the 7th
Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the
Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.210.
It is also clear and well-settled law that any attempt to commit "fraud upon the court" vitiates
the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E.
229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to
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The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935). The alteration of
public records by the clerk or any other is a “fraud upon the court.” The original complain sets forth
the actions committed by the clerk of court, her employees, and others which constitute such fraud
and also constitute treason.
Under state and Federal law, when any officer of the court has committed "fraud upon the
court", the orders and judgment of that court are void, of no legal force or effect, as has been done
denied by Judge Swartz who cited no law and gave no basis for his denial of the motions. Nor has
the Court issued written orders concerning those denials.
The Supreme Court has also held that if a officer of the courts wars against the Constitution,
or if he acts without jurisdiction, [s]he has engaged in treason to the Constitution as persons in the
clerk of court’s office have done during the various matters relating to Gates which acts are set forth
below.
Courts have repeatedly ruled that judges and other court officers have no immunity for their
criminal acts including fraud. Since both treason and the interference with interstate commerce are
criminal acts, no judge has immunity to engage in such acts under the 11th Amendment to the United
States Constitution.
No officers of the court have immunity for the consequences of their criminal acts including
the consequences that effect the civil and constitutional rights of the citizens of this or all other of
these United States; those criminal acts are set forth below.
Page 10 of 13
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Crimes and Acts Pleaded—Which Constitute Treason
These constitutional violations of the rights of Gates and numerous others in the Parish of
St. Tammany and the State of Louisiana are crimes. They are crimes committed and covered-up by
defendants who are named and otherwise identified herein. Their actions are ongoing now.
The complaint states that defendants Noreia, Ms. Prieto, Sherwood, Strain and Others have
committed crimes documented during the medical malpractice action, the felony prosecution, and
the misdemeanor prosecution including:
(1) the fabrication of evidence [clerk of court]
(2) the destruction of evidence [clerk of court],
(3) fabrication and alteration of public records [clerk of court],
(4) the fabrication and alteration of minutes from hearings in the criminal
prosecution [clerk of court],
Ms. Prieto and counsel ask for a more definite statement alleging that counsel has not
the original complaint. The statements of fraud and alteration of public records are based on evidence
gathered and collected over the past four years which shall be presented to the jury and court when
timely. A number of those acts are set forth above and were set forth in the original complaint. The
names of the persons who committed these acts shall be determined through discovery and are being
identified through FOIA requests and from private citizens group investigations.
Ms. Prieto and counsel also complain that the original lawsuit “contains scandalous matter”
Page 11 of 13
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public employees are “scandalous”.
Clerk of Court Ms. Prieto and persons in her office or who have been given access to
her online public records programs have not only altered but have also fabricated public records as
recently as January of 2014 and have blocked online public access to records in the Gates matter as
recently as the month of March, 2014. It is difficult to respond to motions like this without access
to the public records which access the Clerk of Court and others continue to obstruct.
Once discovery is completed the names of the persons in the clerk’s office or the district
attorney’s office or others with access to the public record data base system, will be identified,
named in an amended complaint and reported to the appropriate law enforcement agencies, as their
acts and alteration of public records are state and federal crimes.
Daniel G. Abel, LSB # 8348 Having filed this pleading electronically

2421 Clearview Parkway I have served all counsel on 1 April 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
Rule 11 Verification of Investigation and Facts
I, Daniel G. Abel, attorney at law, have personal knowledge of the facts and statements made
herein and therefore verify that these facts are true to the best of my knowledge and belief under Rule
11. I have represented Gates since the outset of this malicious and fabricated prosecution and have
personal knowledge and evidence which proves that testamentary evidence was altered and destroyed
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by the defendants named herein and shall provide that evidence including the work of forensic
experts who shall further prove the fraud underlying the malicious felony prosecution of Gates which
ended a twelve person verdict of NOT GUILTY, on 27 July 2012. I have also been involved in the
investigation of four or five other, similar prosecutions in the Parish of St. Tammany and shall
confirm the fraud and actions taken in the Gates matter as part of the habit and practice by the Clerk
of Court and others who have altered the records and fabricated entries placed in the public record
in complicity with the District Attorney which acts constitute crimes, misconduct, and treason.
Verified on 31 March 2014
___________s/ Daniel G. Abel_____________

Daniel G. Abel, LSB #8348
Attorney at Law
Page 13 of 13
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*
*
JUDGE RICHARD SWARTZ, WALTER P. REED,* CASE NO.: 2:13-CV-06425
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE: SARAH S. VANCE
*****************************
OPPOSITION TO DEFENDANTS’ MOTION TO STAY

[DOCUMENT NO. 29]
The Defendants and counsel ask the Court to Stay this matter claiming that it is identical in
substance to the earlier action pending in Judge Duval’s court. The purpose of defendants asking
for a stay at this time is to prevent and obstruct discovery which shall produce facts, records, and
testamentary evidence probative of the crimes and civil rights violations which the defendants have
committed over the seven years this prosecution has continued—to the benefit of Walter Reed’s
civil clients the several insurance companies. Walter Reed’s civil law firm represented Roger
Gottardi the St. Tammany deputy who beat up Gates after he was handcuffed. Reed’s civil law firm
represented the Sheriff and his insurance companies as well. District Attorney Reed’s continued
Page 1 of 14
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prosecution of Gates after the jury returned its 30 minute NOT GUILTY verdict has no purpose other
than to protect the interests of those insurance carriers who would be financially liable for the actions
of Gottardi and others. The motion to stay is also aimed at preventing discovery of the facts, fraud,
and fabrication of evidence involved in the still-after-seven-years ongoing prosecution. The stay
would also bar further discovery and reporting of Walter Reed’s Hobbs Act violations.
This action does not concern nor will it effect any evidence or issue of substance in the
ongoing but fraudulent prosecution of Gates by Walter Reed in the 22nd JDC. The suggestion that
this complaint effects or would be effected by the prosecution is unfounded. The request to stay this
action, filed seven years after the underlying incident for which the District Attorney prosecuted
Gates, is also unfounded. The motion to stay is again nothing more than an attempt to prevent
discovery which shall produce evidence further probative of the fraud, self-interest, and Hobbs Act
violations of Walter Reed and others. Everyone has testified. Everyone should now be deposed and
produce all testamentary evidence.
The St. Tammany Prosecution Against Gates Should Be Stayed
It is the prosecution against Gates in St. Tammany parish which should be stayed to halt the
seven year violation of his constitutional rights. On 27 July 2012, the St. Tammany jury understood
what had transpired and within 30 minutes after a five day trial, found Gates NOT GUILTY on all
the charges brought by Walter Reed at that time.
The prosecution in St. Tammany should also be enjoined until the various state and federal
investigations into the 22nd Judicial District Court and its officers is concluded. Upon information
and belief, those investigations concern persons and matters involved in the Gates prosecution.
Gates, all citizens of the State of Louisiana now and at all times during defendants’
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violations of his and their state and federal constitutional rights, have set forth facts and identified
violations of rights under the Constitution of the United States and State of Louisiana. Gates’s
prosecution exemplifies the fraud and crimes committed against a number of other persons as well.
District Attorney Walter Reed’s Civil Firm Represented Gottardi & Insurance Carriers
District Attorney Walter P. Reed is “Of Counsel” with the law firm that has represented
officer Roger Gottardi, the Sheriff’s office and Sheriff’s insurance companies St Pauls-Travelers in
the Gates matter. Reed’s continued insistence on prosecuting Gates after the NOT GUILTY verdict
works to the apparent benefit of their clients and done to shield all from their liability for Gates’s
permanent injuries and prognosed surgeries.
Reed used his official and private positions for personal gain in violations of the Hobbs Act.
In 2007, Gates and counsel did not have evidence of Reed’s personal benefit from his civil firms
representation of Gottardi and the insurance companies. Despite his involvement with that firm,
Reed has not reported the income he has received for that involvement during the last four years on
the required ethics reporting form for public officials, including district attorneys.
Only recently did Gates, investigators, and counsel discover that District Attorney Walter
Reed was “Of Counsel” with the firm who represented Gottardi and the insurance carriers. His civil
firm represented Gottardi and the carriers in the matter heard by Judge Duval. Reed’s representation
raises the concern as to why the earlier court granted Reed’s motion to again Stay the civil rights
action, after the St. Tammany Parish jury had returned their NOT GUILTY verdict in favor of Gates.
The concern is magnified in light of the conflicts revealed during the BP litigation. This information
also raises the issue as to why these actions should not be transferred to another district of the United
States District Courts.
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This is not the first instance of such a conflict on the part of District Attorney Reed, including
cases he has referred to other counsel, when the matters were being prosecuted by his office. The
taxpayer monies spent by Walter Reed in this prosecution of Gates also accrues to the benefit of the
insurance carriers, who are represented by the law firm where Walter Reed is: “Of Counsel”.
When he joined the law firm Reed stated publically that “ . . . he found no conflict of interest
associating with the firm, especially because it takes no criminal cases”. He did not state that his new
firm represents companies that insure the sheriff as in the Gates case and that Reed’s continued
prosecution after the jury found Gates NOT GUILTY, works to the advantage of his firm’s clients,
in this instance St. Pauls and Travelers insurance companies and Gottardi who is the defendant that
beat up Gates after Gates was handcuffed. The involvement of the Attorney General raises a similar
concern because of his relationship—personal and professional—with Walter Reed.
The admitted ex parte contacts between the sheriff’s counsel and the judges gave reason for
the Louisiana Attorney to appear and represent the judges when those contacts were discovered and
admitted by at least two judges, although the Attorney General has already become involved in the
prosecution of Gates. Involving that office is impermissible conflicts by statute. The Attorney
General also presented redacted documents to Gates, during this matter which were public records
and which is in certain violation of Louisiana Sunshine law. These documents contained information
about the ex parte conversations between Caldwell’s office, the judges involved, and the DA.
The Louisiana Attorney General’s representation of the judges further demonstrates the
conflict and violation of Gates’s right as the AG’s office had been involved in the prosecution of
Gates, but had redacted the invoices and records of its involvement, which accidentally appeared in
other federal proceedings. All of these apparent and known conflict impugns the integrity of the
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entire legal system, not only of the courts and the district attorney and the attorney general’s office
to such an extent that it constitutes treason and makes all prior actions of those courts and its
officers, void.
Gates Opposes a Stay As Not Directly Bearing on the Ongoing Fraudulent Prosecution
Shane M. Gates moved the Court to reopen this matter as the Twelve-Person St. Tammany
charges brought on Friday, 27 July 2012. The defendants again wish to impose a stay as they claim
the Walter Reed has brought more charges against Gates even though the misdemeanors have
nothing to do whatsoever with the misconduct and treason set forth in this matter: Gates v. Swartz.
While the District Attorney did not bring the six-year old misdemeanor charges of DUI and
Resisting Arrest, they did call every witness and present every adjudicative fact about blood alcohol
and resisting arrest in an attempt to prejudice the Jury. Having brought those witnesses and that
evidence once, the District Attorney cannot now bring these old charges offering the same evidence
again. The evidence brought was the following. Gates has testified as have all his witnesses and all
his experts. Gates’ and his witnesses’ testimony constitutes discovery for Walter Reed’s next
attempt before a judge, which will only benefit Reed’s civil clients and the insurance carriers. The
defendants have testified as well. They would not now be prejudiced by discovery.
Gottardi Admitted: Gates Was Handcuffed When His Face Slammed Onto Blacktop
Deputy Gottardi testified that he held Gates face down on the hot hood of his police car and
handcuffed Gates. Gottardi admitted that when Gates raised up, to get his face off the hot hood,
Gottardi threw Gates face-first to the concrete and “fell”on top of him. No witness now disputes this
fact: Gates was handcuffed at the time his face was slammed on the road and beaten.
Page 5 of 14
17-30519.3319
Miller also testified that it was his [their] practice to hold a person’s [including Gates’s] face
onto the hood of their car to handcuff them. Miller also admitted that when Gates raised up from the
hot hood of his car, he pepper-sprayed him in the face. Miller and Gottardi confirmed that they
knowingly and intentionally held Gates’s face down onto the hot hood of each of their cars. They
admitted that it was a practice of deputies in their department. This Court is too conversant with Heck
v Humphrey to revisit and has already warned defendants as to what it will rule if convinced Gates
was handcuffed [as he was] when the injuries were inflicted upon him.
Gates Testified That Gottardi Beat His Head On The Concrete Until Unconscious
In Its earlier consideration of this matter, this Court was concerned that discovery might give
Gates an advantage if he did not testify at trial. Gates did testify at trial and will now testify during
discovery in this civil matter. The defendants’ concern is answered. Gates also confirmed that he was
handcuffed when Gottardi threw him to the ground on his face.
What Gottardi failed to say and what Gates testified to was: that once Gottardi had thrown him
face-first onto the roadway, Gottardi repeatedly pounded his face into the concrete until Gates passed
out. During rebuttal and re-direct, neither Gottardi nor Miller disputed Gates’s testimony. The
photographs and medical records are probative of the truthfulness of Gates sworn testimony about
the cause and timing of his injuries.
Gottardi, the Sheriff, and D.A. Covered-Up Gottardi’s Serious Disciplinary Actions
Gates’ Brady request for review of Gottardi’s files was never honored which is another reason
why the Stay would be important to the defendants. Judge Swartz did nothing when the Sheriff and
District Attorney refused to produce one single file from Gottatdi’s extensive personnel record.
At trial, Gottardi also failed to admit that he was demoted and why he was demoted s a
Page 6 of 14
17-30519.3320
detective from the Sheriff’s office. The District Attorney’s other main witness, Nathan Miller was
allowed to resign when he was proved to have lied during an Internal Affairs Investigation. Both the
Sheriff and the District Attorney failed to admit that Gottardi was fired and covered up that relevant
information during open-file discovery. These same defendants wish to continue to bar discovery
of their personnel files and the various sanctions and reprimands.
Counsel for Gates only learned that Gottardi was fired at trial, during cross-examination.
Counsel only learned why Gottardi was fired after trial. Gottardi perjured himself at trial when he
testified that he “does not know why he was fired” and under pressure later said “it was because he
failed to return a phone call”. Upon information and belief, Gottardi was fired for failing return a
purse and the money in a victim’s purse during an investigation—a substantial sum of money.
The Twelve Person Jury Rejected All Evidence for All Matters Brought
Gates testified at trial giving defendants any opportunity they wished to cross-examine, in fact
to attack, him. Defendants testified as well, admitting under oath many of the facts underlying this
§ 1983 action. All parties to this suit testified or were given the opportunity to testify under oath.
The concern raised by defendants and initially acknowledged by the Court that discovery of
the defendants alone would give Gates an unfair advantage, is now moot. Gates testified under oath.
The defendants testified under oath. All experts have testified under oath.
Defendants claim that there are other charges pending but the Jury was only presented with
these charges and The Twelve Person St. Tammany Parish jury found Gates NOT GUILTY on the
charges that were brought.
The defendants already presented the Jury with every witness and every piece of evidence
which they used in an attempt to relate to resisting arrest, the facts related to blood alcohol, the facts
Page 7 of 14
17-30519.3321
that they would have to use again and bring again before a receptive local judge.
The minutes from the trial prove that the District Attorney has brought every witness and all
evidence already, even the evidence which would have to be heard again to prosecute the two charges
that the District Attorney did not bring. The trial minutes also confirm that the District Attorney
brought former deputy Miller, former Deputy Gottardi, Patrick Williams hospital lab supervisor to
testify about the blood test, St. Tammany Parish Toxicologist from the Coroner’s Office Dr.
Lazaguth, and others. The defendants not only failed to tell this Court, when before Judge Duval in
April of 2008, but also failed to tell Gates, that the person Roger Loll, who actually performed the
blood alcohol test was dead and had been dead since June of 2007.
But on Friday, 27 July 2012, the jury ruled and the minutes memorialize:
The defendant being present in open Court attended by his Counsel, Martin Regan. At 11:47
p.m. the jury returned to the courtroom and through their foreperson, returned their written
verdict to the court, which verdict the clerk was ordered to read as follows: "We, the jury,
find the defendant, Shane Michael Gates, NOT GUILTY / signed Randall Evans,
Foreperson, dated, July 27, 2012. [Emphasis ours]
"We, the jury, find the defendant, Shane Michael Gates, NOT GUILTY/signed Randall Evans,
Foreperson, dated, July 27, 2012.
Police and Medical experts testified and gave scientific evidence confirming the facts alleged
in Gates’s original complaint. The St. Tammany Parish Toxicologist’s testimony discredited the
allegations made by defendants in their attempt to cover-up their use of excessive force against Gates
after he was handcuffed.
Page 8 of 14
17-30519.3322
The St. Tammany Parish Jurors understood. Now the District Attorney would like to try this
matter one more time before a more receptive fact finder, a local judge—why? For the benefit of his
civil law firms clients the insurance carriers.
These minutes transcribed verbatim prove that the District Attorney presented every witness
available and offered every piece of evidence to prove both the charge of Aggravated Flight and
Flight, which charges the D.A. brought to trial. As well, the District Attorney brought every witness
and every piece of evidence which he would also have brought if he had brought he six-year old
misdemeanors of DUI and Resisting to trial. But the District Attorney did not bring those
misdemeanors to trial. Now it is eight years after 2006, when the underlying incident occurred.
Why Do the District Attorney and Sheriff Want to Prevent Discovery?
The District Attorney wants halt discovery and have another trial as his office was
complicitous with the Sheriff and other defendants in the fabrication of evidence and malicious
prosecution perpetrated against Gates over the last seven years. Not only have these defendants
fabricated evidence they have hidden evidence including but not only the fact that Gottardi was
demoted as a detective and the dishonesty which lead to his firing.
These earlier facts underlying such were testified to under oath on 10 May 2010 1:
(1) Sheriff’s Attorney Charles Hughes admitted that he asked the District Attorney to add charges
against Gates in order to save money for his insurance company [$500,000] and to protect
certain deputies from the civil rights actions pending against them in federal court [Exhibit
B - Recusal Hearing Transcript, 10 May 2010, pp. l31-139];
(2) ADA Ronald Gracianette testified that there was no need to add “Resisting Arrest” charges
1
Transcript of 10 May 2010 hearing in the record of this matter.
Page 9 of 14
17-30519.3323
for the purpose of prosecution, as those charges were not enhancable and served no purpose
for the prosecution whatsoever [Exhibit B - Recusal Hearing Transcript, 10 May 2010, p.85-
89];
(3) ADA Ronald Gracianette then testified that he personally told Hughes what Hughes and the
Sheriff could do to have the District Attorney add the charges of “Resisting Arrest”- They
would have to characterize the deputies as Victims of Gates [Exhibit B - Recusal Hearing
(4) Hughes testified that he told the Sheriff’s uncle Chief Deputy Al Strain what the District
Attorney wanted the deputies [“As Victims”] to write, in order for the District Attorney to add
“Resisting Arrest” charges [Exhibit B - Recusal Hearing Transcript, 10 May 2010, p.120-
125];
(5) Hughes testified that the deputies’ letter was delivered from his office to the District Attorney,
just before the District Attorney recharged Gates with resisting arrest. [Exhibit B - Recusal
Hearing Transcript, 10 May 2010, p. 100, ff.];
(6) Hughes told Abel when they first met that he would have resisting arrest charges added, as
he did, if Gates went forward with any civil rights claims [Exhibit B - Recusal Hearing
Transcript 10 May 2010, pp. 36-38];
(7) ADA Gracianette testified that the District Attorney, he, and ADA Dearing have been named
in the civil rights action pending in federal court-[but this would not influence his decision
in adding charges or prosecuting the underlying case] [Exhibit B - Recusal Hearing
Transcript, 10 May 2010, pp.93-94].
But on 5 January 2012, Nathan Miller testified that He Did Not Write or Know of the Letter
Page 10 of 14
17-30519.3324
that Hughes and Gracianette said that he [Miller] wrote. Miller’s 5 January 2012 testimony is the
underlying basis for a perjury motion which the trial court also refused to hear.
with the Sheriff in concert with the late Chief Deputy Al Strain and the District Attorney’s office to
institute the specific prosecution for purposes and in a manner prohibited by the federal and state
constitutions and Louisiana law.
Summary Of Underlying Fabrication of Facts by Deputies and District Attorney
The District Attorney and Sheriff and others want to prevent discovery to shield the facts
probative of the ongoing fabrication and destruction evidence by the deputies and district attorney’s
office.
diagnose him with permanent nerve damage and prognose four [4] corrective surgeries; [Exhibit A -
Photographs] Private investigators have located a former officer on the scene that night and will
testify that the supervisor had to intervene to stop the officers from continuing to beat him.
medical experts have stated that a BAC in that range is not possible considering Gates’ GCS scores
and E/V/M results taken and recorded at the same time.
Realizing the extent of Gates’ injuries at the hospital, the deputies created “cover charges” in
anticipation of Gates’s seeking to redress their brutality and use of excessive force. In concert with
Page 11 of 14
17-30519.3325
claiming that there were no doctors on duty that could treat him in Jefferson, Orleans, or St. Tammany
parishes. Investigators have confirmed that there were such doctors on duty in Jefferson, Orleans, and
also St. Tammany parishes.
The deputies decided later to charge Gates with Obstruction of a Highway of Commerce, a
felony. They charged him with a felony in order to cover up for the serious damages which they have
inflicted upon him. When the charges got to the District Attorney the Obstruction change was
converted to a Aggravated Flight, still a felony. The District Attorney changed the charge to
“Aggravated Flight” so that they would have a felony with which to bargain against the serious injures
the deputies had inflicted upon him. A cursory look at the police notes from that night, prove that
Gates did not obstruct anything, much less I-12 Highway.
judge. The judge signed a warrant for “Obstruction of a Highway”, but that warrant was never served
and Gates was never arrested on any charge other than DUI.
Gates was never arrested for “Aggravated Flight” and no warrant for that charge was ever
issued. Without any conversation or further interaction with the ONE officer who made the stop—not
the officers who arrived later, at the scene, who were the only ones who signed affidavits initiating
the arrest—the District Attorney simply charged Gates with felony flight that might fit once the
officer was told what to say. Obstruction of a highway could not fit any facts.
Page 12 of 14
17-30519.3326
the transcripts are examined carefully. The charges were fabricated by the District Attorney without
any affidavit or sworn statement from or conversation with the ONE officer who could have been the
only witness to the stop. Hughes and Gracianette both testified that there was no contact with this
officer prior to fabrication of the “Deputies-as-Victims” letter, to which they were all parties.
Attorney Abel met with Attorney Hughes at Hughes Office in Mandeville at 1:30 P.M. on 24
July 2007. Abel and Hughes discussed the extent of Gates’ injuries, the required surgeries, and the
likelihood that Gates would file a civil rights suit.
meeting and Hughes’ threat are also evidenced under oath. [See : Testimony from 2010 Hearing cited
in paragraph 6 on page 3 above].
What Gates nor Abel knew then was that Walter Reed’s civil firm also represented the
Sheriff’s office, deputy Gottardi, and most significantly the insurance carriers who would be largely
responsible for any award to damages to Gates visited upon him by Gottardi or by the subsequent
malicious prosecution.
Page 13 of 14
17-30519.3327
Conclusion
If this subsequent matter is stayed Gates’s exercise of his constitutional rights are stayed as
well. Gates has testified at trial and will testify in discovery. Gates is the only person prejudiced if
this matter—after seven years—is again stayed. Gates is the only person who will be prejudiced if the
defendants are allowed to continue falsifying and fabricating evidence which has already been
completely rejected by a jury of Gates’s peers. Gates has been found NOT GUILTY by a St.
Tammany Parish Jury of his peers on Friday, 27 July 2012 on ALL THE CHARGES WHICH THE
DISTRICT ATTORNEY BROUGHT TO TRIAL. The District Attorney has already offered every
witness and every piece of evidence adjudicative of the misdemeanor charges not brought. Gates has
testified at trial and will again testify during discovery.
Whatever the intent of the Court, the effect of staying this matter will be to allow defendants
to continue the fraudulent prosecution of Gates for the primary purpose of protecting the interests
of Walter Reed’s civil clients, the insurance companies and the persons who have injured Gates.
Legal Department - Suite 106 served all counsel: 1 April 2014.
Telephone: 504.208.9610
Cell Phone: 504.284.8521
Facsimile: 888.577.8815
Page 14 of 14
17-30519.3328


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter “Defendants”), and
respectfully request leave of Court to file a Reply Memorandum in support of their Motion to
Stay (R. Doc. 29).
17-30519.3329
Plaintiff, Shane M. Gates, has made several assertions in his Memorandum in Opposition
to Defendants’ Motion to Stay (R. Doc. 42) that defendants wish to address prior to the
submission date of the Motion to Stay.
WHEREFORE, Defendants respectfully request leave of Court to file a Reply
Memorandum in support of their Motion to Stay.
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192

17-30519.3330
-and-

P.O. Box 82659
Telephone: (225) 766-0023

record via the Court’s CM/ECF system, this 8th day of April, 2014. I further certify that there are
no non-CM/ECF parties.
s/ Mark E. Hanna
17-30519.3331

VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ORDER
Considering the foregoing Motion for Leave to File Reply Memorandum filed on behalf
of Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his official and individual
capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire & Marine
Insurance Company (improperly named as “Travelers-St. Paul Insurance Companies”),
“Defendants”);
17-30519.3332
IT IS HEREBY ORDERED that Defendants’ Motion for Leave to File Reply
Memorandum is GRANTED and Defendants’ Reply Memorandum shall be filed into the record
of this matter.
_________________________________
17-30519.3333


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
REPLY MEMORANDUM IN SUPPORT OF MOTION TO STAY
ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter “Defendants”), and submit
their Reply Memorandum in support of their Motion to Stay (R. Doc. 29).
17-30519.3334
For the reasons discussed herein and in Defendants’ Memorandum in Support of their
Motion to Stay (R. Doc. 29-1), Defendants respectfully request that this matter be stayed pending
resolution of the pending criminal charges in the 22nd Judicial District Court against plaintiff,
Shane M. Gates.
A. Counsel for St. Paul has no affiliation with District Attorney Reed
Plaintiff repeatedly asserts that District Attorney Walter Reed is of counsel to the law
firm that represents the Sheriff’s insurance carrier. Contrary to plaintiff’s assertions,
undersigned counsel for St. Paul Fire & Marine Insurance Company has no affiliation with
District Attorney Reed and District Attorney Reed is not “of counsel” to the law firm of
undersigned counsel for St. Paul.
B. Plaintiff offers no analysis of the factors governing this Motion to Stay
In their Memorandum in Support of Motion to Stay (R. Doc. 29-1), Defendants provided
an analysis of the factors utilized by courts in this district when considering motions to stay and
cited to authorities in support of their argument that this case should be stayed. Plaintiff’s
opposition offers no analysis of these factors that would support an argument against staying this
case. Instead, Plaintiff spends considerable time rehashing the same unsupported assertions that
have been the backdrop of his years-pending criminal and civil litigation.
Rule 7.5 of the Local Civil Rules of the United States District Court for the Eastern
District of Louisiana requires that:
Each party opposing a motion must file and serve a memorandum in opposition to the
motion with citations of authorities no later than eight days before the noticed
submission date. If the opposition requires consideration of facts not in the record,
counsel must also file and serve all evidence submitted in opposition to the motion
with the memorandum.
LR 7.5 Response and Memorandum (emphasis added).
17-30519.3335
Apart from vague references to the Hobbs Act and Louisiana’s Sunshine Law (Louisiana
Public Records Act), Plaintiff cites no legal authority in opposing Defendants’ Motion to Stay.
Also, plaintiff has submitted absolutely no evidence necessary for the Court to properly consider
the “facts” as stated by plaintiff, none of which are in the record of this case.
C. Plaintiff’s rehash of arguments before Judge Duval are not grounds for denial of
Defendants’ Motion
Much of the substance of plaintiff’s opposition comes from a prior submission to Judge
Duval in plaintiff’s first filed § 1983 action that is pending, and currently stayed, in Section K of
this District (2:07-cv-06983). At page 9 of his opposition, plaintiff presents a laundry list of
what he contends is sworn testimony from a May 10, 2010 hearing in his criminal prosecution
regarding his motion to recuse the district attorney’s office. (R. Doc. 42, p. 9). This list of
purported testimony mirrors a prior pleading filed in Judge Duval’s court on March 17, 2011.
See Record Document 84-1, 07-cv-06983, attached as Exhibit A, at pp. 4-5. The hearing
transcript, which plaintiff attached to his March 2011 pleading, but failed to attach to his
opposition in this case, was not persuasive them (as Judge Duval ordered the matter stayed) and
should not be persuasive now.
The remainder of plaintiff’s opposition to Defendants’ Motion to Stay is a nearly word-
for-word reproduction of additional unsupported statements and arguments contained in
plaintiff’s March 17, 2011 pleading submitted to Judge Duval. Compare Exhibit A, pp. 5-7 and
R. Doc. 43, pp. 11-13.
D. Plaintiff’s argument to stay his criminal case was considered and rejected by Judge
Duval
Plaintiff argues that “[i]t is the prosecution against Gates in St. Tammany parish [sic]
which should be stayed to halt the seven year violation of his constitutional rights.” (R. Doc. 42,
17-30519.3336
p. 2). Like the bulk of his opposition memorandum, this argument was also made to Judge
Duval and rejected. See Judge Duval’s Order and Reasons denying Plaintiff’s Motion to Re-
District Court for the Parish of St. Tammany, Record Document 121, 07-cv-06983, attached as
Exhibit B.
In his Order and Reasons, Judge Duval thoroughly analyzed whether there was any basis
for a federal court to stay plaintiff’s ongoing state criminal prosecution and concluded that “the
issues raised by plaintiff surrounding the arrest and alleged manufacturing of evidence can be
addressed in the context of a defense to the criminal charges at a trial on the merits.” Exhibit B,
p. 9. For the reasons previously explained by Judge Duval, plaintiff’s suggestion that his
criminal prosecution should be stayed is without merit and should be rejected.
E. Conclusion
Plaintiff has offered no legal analysis in opposition to the Defendants’ Motion to Stay.
Rather, he has relied on entirely unsupported allegations and assertions to argue the merits of his
pending criminal and civil actions. He cites to no legal authority and attaches no evidence to
support his position. For the reasons set forth herein and in Defendants’ Memorandum in
Support of Motion to Stay (R. Doc 29-1), Defendants’ respectfully request that their Motion to
Stay be granted.
17-30519.3337
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192

-and-

P.O. Box 82659
Telephone: (225) 766-0023
17-30519.3338

record via the Court’s CM/ECF system, this 8th day of March, 2014. I further certify that there
s/ Mark E. Hanna
17-30519.3339

VERSUS NO. 13-6425
RICHARD SWARTZ, ET AL. SECTION “R” (5)
ORDER TRANSFERRING CASE DUE TO RELATED PROCEEDING
It has been brought to the Court's attention that the above captioned
matter is related to Civil Action No. 07-6983, Gates v. Strain, et al.,
previously allotted to Section “K”(2) of this Court.
Accordingly,
IT IS ORDERED that this matter is hereby transferred to Section
“K”(2) for further proceedings.

New Orleans, Louisiana, this 10th April
___ day of ___________, 2014.
SARAH S. VANCE
17-30519.3340


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
ORDER
Considering the foregoing Motion for Leave to File Reply Memorandum filed on behalf
of Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his official and individual
capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire & Marine
Insurance Company (improperly named as “Travelers-St. Paul Insurance Companies”),
“Defendants”);
17-30519.3341
IT IS HEREBY ORDERED that Defendants’ Motion for Leave to File Reply
Memorandum is GRANTED and Defendants’ Reply Memorandum shall be filed into the record
of this matter.
21st day of _________,
New Orleans, Louisiana, this _____ April 2014.
_________________________________
17-30519.3342


VERSUS

TAMMANY, ADA RONNIE
INSURANCE COMPANIES
REPLY MEMORANDUM IN SUPPORT OF MOTION TO STAY
ADA Nicholas F. Noriea and ADA Ronnie Gracianette (hereinafter “Defendants”), and submit
their Reply Memorandum in support of their Motion to Stay (R. Doc. 29).
17-30519.3343
For the reasons discussed herein and in Defendants’ Memorandum in Support of their
Motion to Stay (R. Doc. 29-1), Defendants respectfully request that this matter be stayed pending
resolution of the pending criminal charges in the 22nd Judicial District Court against plaintiff,
Shane M. Gates.
A. Counsel for St. Paul has no affiliation with District Attorney Reed
Plaintiff repeatedly asserts that District Attorney Walter Reed is of counsel to the law
firm that represents the Sheriff’s insurance carrier. Contrary to plaintiff’s assertions,
undersigned counsel for St. Paul Fire & Marine Insurance Company has no affiliation with
District Attorney Reed and District Attorney Reed is not “of counsel” to the law firm of
undersigned counsel for St. Paul.
B. Plaintiff offers no analysis of the factors governing this Motion to Stay
In their Memorandum in Support of Motion to Stay (R. Doc. 29-1), Defendants provided
an analysis of the factors utilized by courts in this district when considering motions to stay and
cited to authorities in support of their argument that this case should be stayed. Plaintiff’s
opposition offers no analysis of these factors that would support an argument against staying this
case. Instead, Plaintiff spends considerable time rehashing the same unsupported assertions that
have been the backdrop of his years-pending criminal and civil litigation.
Rule 7.5 of the Local Civil Rules of the United States District Court for the Eastern
District of Louisiana requires that:
Each party opposing a motion must file and serve a memorandum in opposition to the
motion with citations of authorities no later than eight days before the noticed
submission date. If the opposition requires consideration of facts not in the record,
counsel must also file and serve all evidence submitted in opposition to the motion
with the memorandum.
LR 7.5 Response and Memorandum (emphasis added).
17-30519.3344
Apart from vague references to the Hobbs Act and Louisiana’s Sunshine Law (Louisiana
Public Records Act), Plaintiff cites no legal authority in opposing Defendants’ Motion to Stay.
Also, plaintiff has submitted absolutely no evidence necessary for the Court to properly consider
the “facts” as stated by plaintiff, none of which are in the record of this case.
C. Plaintiff’s rehash of arguments before Judge Duval are not grounds for denial of
Defendants’ Motion
Much of the substance of plaintiff’s opposition comes from a prior submission to Judge
Duval in plaintiff’s first filed § 1983 action that is pending, and currently stayed, in Section K of
this District (2:07-cv-06983). At page 9 of his opposition, plaintiff presents a laundry list of
what he contends is sworn testimony from a May 10, 2010 hearing in his criminal prosecution
regarding his motion to recuse the district attorney’s office. (R. Doc. 42, p. 9). This list of
purported testimony mirrors a prior pleading filed in Judge Duval’s court on March 17, 2011.
See Record Document 84-1, 07-cv-06983, attached as Exhibit A, at pp. 4-5. The hearing
transcript, which plaintiff attached to his March 2011 pleading, but failed to attach to his
opposition in this case, was not persuasive them (as Judge Duval ordered the matter stayed) and
should not be persuasive now.
The remainder of plaintiff’s opposition to Defendants’ Motion to Stay is a nearly word-
for-word reproduction of additional unsupported statements and arguments contained in
plaintiff’s March 17, 2011 pleading submitted to Judge Duval. Compare Exhibit A, pp. 5-7 and
R. Doc. 43, pp. 11-13.
D. Plaintiff’s argument to stay his criminal case was considered and rejected by Judge
Duval
Plaintiff argues that “[i]t is the prosecution against Gates in St. Tammany parish [sic]
which should be stayed to halt the seven year violation of his constitutional rights.” (R. Doc. 42,
17-30519.3345
p. 2). Like the bulk of his opposition memorandum, this argument was also made to Judge
Duval and rejected. See Judge Duval’s Order and Reasons denying Plaintiff’s Motion to Re-
District Court for the Parish of St. Tammany, Record Document 121, 07-cv-06983, attached as
Exhibit B.
In his Order and Reasons, Judge Duval thoroughly analyzed whether there was any basis
for a federal court to stay plaintiff’s ongoing state criminal prosecution and concluded that “the
issues raised by plaintiff surrounding the arrest and alleged manufacturing of evidence can be
addressed in the context of a defense to the criminal charges at a trial on the merits.” Exhibit B,
p. 9. For the reasons previously explained by Judge Duval, plaintiff’s suggestion that his
criminal prosecution should be stayed is without merit and should be rejected.
E. Conclusion
Plaintiff has offered no legal analysis in opposition to the Defendants’ Motion to Stay.
Rather, he has relied on entirely unsupported allegations and assertions to argue the merits of his
pending criminal and civil actions. He cites to no legal authority and attaches no evidence to
support his position. For the reasons set forth herein and in Defendants’ Memorandum in
Support of Motion to Stay (R. Doc 29-1), Defendants’ respectfully request that their Motion to
Stay be granted.
17-30519.3346
s/ Mark E. Hanna
BRACKETT, L.L.C.
Telephone: (504) 595-3000
Facsimile: (504) 522-2121

Insurance Companies
-and-


Litigation Division
P.O. Box 94005
Telephone: (225) 326-6300
Facsimile: (225) 326-6192

-and-

P.O. Box 82659
Telephone: (225) 766-0023
17-30519.3347

record via the Court’s CM/ECF system, this 8th day of March, 2014. I further certify that there
s/ Mark E. Hanna
17-30519.3348


VERSUS

2:13-cv-06425
JUDGE: STANWOOD DUVAL
JURY TRIAL
***************************************************************
MOTION FOR PRELIMINARY DEFAULT JUDGMENT
BASED ON DEFENDANT DISTRICT ATTORNEY WALTER REED’S REFUSAL
TO ACCEPT SERVICE OF THE ORIGINAL COMPLAINT AND REFUSAL TO
ALLOW ANYONE AT HIS OFFICE TO ACCEPT SERVICE FROM
FROM THE OFFICIAL FEDERAL PROCESS SERVER FOR
THE UNITED STATES DISTRICT COURTS FOR
THE EASTERN DISTRICT OF LOUISIANA
Defendant District Attorney Walter P. Reed was served but his employees refused to take
the copy of the original complaint and has intentionally avoided service and has instructed his
public employees not to accept service from the officially designated federal process server for
the United States District Courts for the Eastern District of Louisiana. By doing so, defendant
Mr. Walter Reed who is not only a public official but is also an attorney licensed to practice law
by the Louisiana Supreme Court, has knowingly violated the federal laws of the United States as
well as those of Louisiana and the Rules of Professional Conduct which govern the actions of all
attorneys within the state.
Mr. Gates and counsel request the entry of a preliminary judgment of default as defendant
Page 1 of 2
17-30519.3349
Walter Reed has knowingly avoided service although the federal process server has brought the
original complaint to his office.

Metairie, LA 70001 served all counsel. 11 July 2014.
Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 2 of 2
17-30519.3350


VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
MEMORANDUM IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT
Defendant District Attorney Walter P. Reed has intentionally avoided service of this
complaint and has instructed his public employees not to accept service from the officially
designated federal process server for the United States District Courts for the Eastern District of
Louisiana. But defendant Walter Reed has been served although he and his employees refused to take
the copy provided from the federal process server.
By doing so, defendant Mr. Walter Reed who is not only a public official but is also an
attorney licensed to practice law by the Louisiana Supreme Court, has knowingly violated the federal
laws of the United States as well as those of Louisiana and the Rules of Professional Conduct which
govern the actions of all attorneys within the state.
Page 1 of 3
17-30519.3351
Attorney General James “Buddy” Caldwell, has been served in his capacity as the agent [and
co-defendant with Mr. Walter Reed] for all Louisiana departments and agencies including the law
enforcement agencies such as the District Attorney’s Office for the 22nd Judicial District Court for
the Parishes of St. Tammany and Washington. Mr. Caldwell’s office has already responded to as
a co-defendant with Mr. Walter Reed and has established its representation of co-defendant Judge
Richard A. Swartz, also of the 22nd Judicial District Court for the Parishes of Washington and St.
Tammany.
Mr. Gates and counsel request the entry of a judgment of default as defendant Walter Reed
has knowingly avoided service and as Mr. Reed’s agent-by-law Attorney General Buddy Caldwell,
has not acknowledged service for Mr. Reed. Mr. Reed’s attorney Kathy Landry has informed counsel
that Walter Reed will not answer any 42 U.S.C. § 1983 lawsuit.
Defendant District Attorney Walter P. Reed has committed certain Hobbs Act violations also
set forth in the original complaint, which the entry of a default judgment will establish an underlying
foundation and the requisite legal grounds for injunctive relief.
District Attorney Walter P. Reed along with his private law firm has and continues to use
his public office and to continuously prosecuting Mr. Gates and others, in exchange for a “stream
of benefits” which including legal fees paid to Mr. Reed himself and to his private law firm by the
insurance carries and more significantly by the taxpayers from public funds of St. Tammany and
Washington Parishes.
Mr. Reed’s actions, involving activities that cross state lines are violations of commence
clause statutes including those set forth in the Hobbs Acts, at 18 U.S.C. § 1951 and in other
articles of federal and state criminal codes. Those actions continue to violate the rights of Mr.
Page 2 of 3
17-30519.3352
Gates and others, and also constitute crimes as are set forth in detail in the original complaint and
which constitute the Enterprise counsel believes to be one subject of the now acknowledged
federal investigation.
Mr. Gates and counsel request the entry of a judgment of default as defendant Walter
Reed have been served [but refused to take any copies of the original complaint] and has
knowingly avoided service.

Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 3 of 3
17-30519.3353

VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
ORDER
For the reasons set forth in the motion and memorandum,
IT IS ORDERED THAT:
1. A judgment of default is entered against defendant Walter P. Reed.
_____________________________
District Judge Stanwood R. Duval, Jr.
Page 1 of 1
17-30519.3354


VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
This matter is Noticed for Submission before Judge Stanwood R. Duval, Jr., Section K,
500 Poydras Street, Courtroom C352, New Orleans, LA 70130, at 9:30 AM on the 6th
Day of August, 2014. Counsel shall request a hearing with Oral Argument on that date.

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3355


*
*
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE: SRD
*****************************
MOTION FOR ENTRY OF JUDGMENT IN DEFAULT,
DELAY OF PROCEEDING AND TO PREVENT INJUNCTIVE RELIEF
Mr. Gates and counsel move the Court to enter judgments in default as none of the
defendants listed herein have answered the original compliant filed in August of last year, 2013 but
have intentionally taken steps to prevent this action from going forward.
Defendants Swartz, Reed, Prieto, ADAs Noriea, Graicianette and other’s actions constitute
treason under the laws of the Constitution and the United States as established by the United States
Supreme Court. The action being filed almost one year ago, defendants repeatedly acted to continue
and stay these matters such as to not only comprise the integrity of these specific proceedings, but
also to comprise the apparent impartiality and integrity of the courts.
Mr. Gates and counsel asked for injunctive relief from the Court pursuant to 28 U.S.C. §§
Page 1 of 2
17-30519.3356
1331, 1343, 2201; 42 U.S.C. §§ 1983, and 1988; and the Fourth, Fifth, Eight, and Fourteenth
Amendments of the United States Constitution. Mr. Gates and counsel also asked for a hearing to
obtain that relief immediately. Instead, the Court has entertained the defendants repeated requests
to prevent such a hearing and to obstruct the forward progress of this case.
Among the rights Mr. Gates has been deprived of, it the right to a fair and expeditious
proceeding which includes an unobstructed movement through discovery to trial. To do so, the
defendants have not answered the original complaint although all have been served, including co-
defendant Walter P. Reed who was drop-served at his office although he had instructed his
employees to not take service or a copy of the complaint. As none of the defendants have answered
the complaint, Mr. Gates and counsel move the Court to enter default judgments against each.
s/ Daniel G. Abel
Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 2 of 2
17-30519.3357


*
*
JUDGE RICHARD SWARTZ, WALTER P. REED,* CASE NO.: 13-6425
COURT-ST TAMMANY MARIE-ELISE PRIETO, * JUDGE:
*****************************
MOTION FOR ENTRY OF JUDGMENTS IN DEFAULT,
defendants listed herein have answered the original compliant filed in August of last year, 2013
but have intentionally taken steps to prevent this action from going forward.
Defendants Swartz, Reed, Prieto, ADAs Noriea, Graicianette and other’s actions
constitute treason under the laws of the Constitution and the United States as established by the
United States Supreme Court. The action being filed almost one year ago, defendants repeatedly
acted to continue and stay these matters such as to not only comprise the integrity of these
specific proceedings, but also to comprise the apparent impartiality and integrity of the courts.
Page 1 of 3
17-30519.3358
obtain that relief immediately. Instead, the Court has entertained the defendants repeated
requests to prevent such a hearing and to obstruct the forward progress of this case.
This is a civil action to enjoin and redress Gates’s deprivation of rights, under color of
state law, by local authorities—as such authorities have been defined by the United States 5th
Circuit Court of Appeal in Holly Ray Bush v. Sheriff Jack Strain, et al. [5th Cir. No. 05-30837],
and Burge v. Parish of NOPD, 187 F.3d 452, citing Mairena, 816 F.2d at 1064 and Hudson, 174
F.3d 677—in violation of his rights, privileges, and immunities under the United States
Constitution and the Louisiana State Constitution.
defendant Walter P. Reed who was dropped served at this office although he had instructed his
employees to not take service or a copy of the complaint. As none of the defendants have
answered the complaint or filed other requisite responsive pleadings, Mr. Gates and counsel
move the Court to enter a default against each of the defendants named below:
A. Defendant RICHARD A. SWARTZ,
B. Defendant MARIE-ELISE “MALISE” PRIETO,
COURT FOR THE PARISH OF ST TAMMANY,
Page 2 of 3
17-30519.3359
E. Defendant WALTER P. REED ,
F. Defendant THE OFFICE OF THE DISTRICT ATTORNEY FOR THE PARISH
OF ST. TAMMANY
G. Defendant SHERIFF RODNEY “JACK” STRAIN,
H. Defendant STPSO CAPTAIN SHERWOOD,
CALDWELL, & THE OFFICE OF THE ATTORNEY GENERAL,
J. Defendant KATHRYN LANDRY.
Mr. Gates and counsel reserve their right to move forward with requests for injunctive
relief and to seek supervisory writs as to these matters and the matter of injunctive relief as
necessary.
At this time, Mr. Gates and counsel move the Court to enter judgments of default.
s/ Daniel G. Abel

Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 3 of 3
17-30519.3360

VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************
ORDER
IT IS ORDERED THAT:
1. A preliminary judgment of default is entered against defendants:


OF ST. TAMMANY
Page 1 of 2
17-30519.3361

_____________________________
Page 2 of 2
17-30519.3362


VERSUS

2:13-cv-06425
JURY TRIAL
***************************************************************

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3363


* ACTION AS TO TREASON
VERSUS *
* CASE NO. 2:13-cv-06425
RICHARD A. SWARTZ, ET AL. *
* JUDGE: STANWOOD R. DUVAL, JR.
*
* MAG. JUDGE: JOSEPH C. WILKINSON
*
************************* JURY TRIAL
***************************************************************
MOTION FOR ENTRY OF DEFAULT ON DISTRICT ATTORNEY WALTER REED
[Rec. Doc. 49]
Defendant District Attorney Walter P. Reed was approached with federal service but his
employees refused to take the copy of the original complaint and has intentionally avoided
service and has instructed his public employees not to accept service from the officially
Louisiana. By doing so, defendant Mr. Walter Reed who is not only a public official but is also
an attorney licensed to practice law by the Louisiana Supreme Court, has knowingly violated the
federal laws of the United States as well as those of Louisiana and the Rules of Professional
Conduct which govern the actions of all attorneys within the state.
Page 1 of 2
17-30519.3364
Reed has knowingly avoided service although the federal process server has brought the original
complaint to his office.

Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 2 of 2
17-30519.3365


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************
MEMORANDUM IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT
Defendant District Attorney Walter P. Reed has intentionally avoided service of this
complaint and has instructed his public employees not to accept service from the officially
Louisiana. But defendant Walter Reed has been served although he and his employees refused to take
the copy provided from the federal process server [Exhibit A - #3 - Affidavit As to Service].
By doing so, defendant Mr. Walter Reed who is not only a public official but is also an
attorney licensed to practice law by the Louisiana Supreme Court, has knowingly violated the federal
laws of the United States as well as those of Louisiana and the Rules of Professional Conduct which
govern the actions of all attorneys within the state.
Page 1 of 5
17-30519.3366
Attorney General James “Buddy” Caldwell, has been served in his capacity as the agent [and
co-defendant with Mr. Walter Reed] for all Louisiana departments and agencies including the law
enforcement agencies such as the District Attorney’s Office for the 22nd Judicial District Court for
the Parishes of St. Tammany and Washington. Mr. Caldwell’s office has already responded to as
a co-defendant with Mr. Walter Reed and has established its representation of co-defendant Judge
Richard A. Swartz, also of the 22nd Judicial District Court for the Parishes of Washington and St.
Tammany.
Mr. Gates and counsel request the entry of a judgment of default as defendant Walter Reed
has knowingly avoided service and as Mr. Reed’s agent-by-law Attorney General Buddy Caldwell,
has not acknowledged service for Mr. Reed. Mr. Reed’s attorney Kathy Landry has informed counsel
that Walter Reed will not answer any 42 U.S.C. § 1983 lawsuit. Subsequent to the initial filing of
this motion, Ms. Landry noted that she will waive service for Mr. Reed. Ms. Landry should have
informed counsel when she was served herself, since it was evident from the face of the complaint
that her client District Attorney Walter P. Reed was a co-defendant with her in this action. Ms.
Landry’s status as a co-defendant calls into question her legal capacity to represent Mr. Reed and the
other defendants from the District Attorney’s office, Mr. Gracianette and Mr. Noreia.
Defendant District Attorney Walter P. Reed has committed certain Hobbs Act violations also
set forth in the original complaint, which the entry of a default judgment will establish an underlying
foundation and the requisite legal grounds for injunctive relief.
District Attorney Walter P. Reed along with his private law firm has and continues to use
his public office and to continuously prosecuting Mr. Gates and others, in exchange for a “stream
of benefits” which including legal fees paid to Mr. Reed himself and to his private law firm by the
Page 2 of 5
17-30519.3367
insurance carries and more significantly by the taxpayers from public funds of St. Tammany and
Washington Parishes.
Mr. Reed’s actions, involving activities that cross state lines are violations of commence
clause statutes including those set forth in the Hobbs Acts, at 18 U.S.C. § 1951 and in other
articles of federal and state criminal codes. Those actions continue to violate the rights of Mr.
Gates and others, and also constitute crimes as are set forth in detail in the original complaint and
which constitute the Enterprise counsel believes to be one subject of the now acknowledged
federal investigation.
RULE 55. DEFAULT; DEFAULT JUDGMENT
(a) Entering a Default. When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made
certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the
amount due—must enter judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default
judgment. A default judgment may be entered against a minor or incompetent person only if
represented by a general guardian, conservator, or other like fiduciary who has appeared. If the
party against whom a default judgment is sought has appeared personally or by a representative,
that party or its representative must be served with written notice of the application at least 7
Page 3 of 5
17-30519.3368
days before the hearing. The court may conduct hearings or make referrals—preserving any
federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting; [not applicable at this time]
(B) determine the amount of damages; [not applicable at this time]
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
Mr. Gates and counsel have been co-operating with state and federal law enforcement
agencies regarding this an other matters. The facts set forth in the original complaint of this
matter have nothing to do with the facts underlying the original civil rights matter also assigned
to this Court. The facts underlying this case involved the Treason, Fraud and Hobbs Act
violations committed by the defendants whom actions are the causes-in-fact of the violations of
federal and state constitutional and civil rights of Mr. Gates.
As well, Mr. Reed, counsel for and the defendants themselves continue to prevent Mr.
Gates from going forward with the action, with his request for an injunction, and for all other
relief. Having done so, these defendants and counsel have failed to answer to the original
complaint but have simply filed dilatory motions to prevent this matter from being heard on its
merits.
Therefore, as Mr. Reed and defendants have failed to answer Mr. Gates and counsel move
the Court for the Entry of Default, for the reasons set forth in FRCP Rule 55, as set forth above.
Particularly, the Court should order the Entry of Default for the purposes of Rule 55 (b)(2):
Page 4 of 5
17-30519.3369
Reed have been served [but refused to take any copies of the original complaint] and has
knowingly avoided service.

Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 5 of 5
17-30519.3370


VERSUS *
* CASE NO. 2:13-cv-06425
*
* MAG. JUDGE:JOSEPH C. WILKINSON
*
************************* JURY TRIAL
AFFIDAVIT
OF
DONALD BREAUX
Having been sworn under oath, Mr. Donald Breaux testified as follows:
1.
My name is Donald Breaux; I am a private investigator licensed by the State of
Louisiana.
2.
I serve federal and state court summons, complaints, petitions, and all other types of
federal and state lawsuits and documents as permitted under federal and state law.
3.
I was asked by counsel to serve most of the defendants in the Gates v. Swartz lawsuit
initially filed in the United States District Courts in the Middle District of Louisiana.
4.
I personally served a number of the defendants with the summons and complaints
provided by the Clerk of the Middle District Court except for the insurance carriers who
were served through the Louisiana Secretary of State.
5.
I served certain persons in the 22nd Judicial District Court including ADA Nicholas
Noriea, ADA Ronnie Gracianette, Clerk of Court Malise Prieto and Judge Richard A.
Swartz at the Courthouse for the 22nd Judicial District Courthouse at 701 North Columbia
Street, Covington, Louisiana 70433. I started serving the people in the Courthouse from
17-30519.3371
about the date of 25 November 2013 and continuing for about one week until the
summons I was given were served [Record Document Nos. 12 & 13 - Summons Issued
by the Clerk of Court].
6.
I brought service for defendant District Attorney Walter P. Reed to his office on the
Second Floor of the 22nd Judicial District Courthouse for the Parish of St. Tammany.
7.
None of the employees in District Attorney Walter Reed’s office would accept the
summons and the complaint that I was serving on behalf of the United States District
Court for the Middle District of Louisiana.
8.
I believe the first attempts at service took place on 25 Novmeber 2013, when I served the
other defendants at the courthouse.
9.
I asked to see Mr. Walter Reed personally and on every occasion, I was told that he was
not available.
10.
I tried to serve District Attorney Mr. Reed on four or five occasions, but was unable to do
so. His employees at the District Attorney’s Office would not accept service for him.
JURAT
Sworn to on 20 July 2014
____________/s/ Donald Breaux____________

Donald Breaux, Affiant
[Signed Original on File]
__________/s/ Daniel G. Abel______________

Daniel G. Abel, Notary Public
No. 36320 / Life Commission
17-30519.3372

VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************
ORDER
IT IS ORDERED THAT:
1. The Clerk of Court file an Entry of Default against defendant Walter P. Reed.
_____________________________
Page 1 of 1
17-30519.3373


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3374


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************
MOTION FOR ENTRY OF DEFAULT AND AS TO INTENTIONAL

defendants listed herein have answered the original compliant filed in August of last year, 2013 but
have intentionally taken steps to prevent this action from going forward.
Defendants Swartz, Reed, Prieto, ADAs Noriea, Graicianette and other’s actions constitute
treason under the laws of the Constitution and the United States as established by the United States
Supreme Court. The action being filed almost one year ago, defendants repeatedly acted to continue
and stay these matters such as to not only comprise the integrity of these specific proceedings, but
also to comprise the apparent impartiality and integrity of the courts.
Page 1 of 2
17-30519.3375
obtain that relief immediately. Instead, the Court has entertained the defendants repeated requests
to prevent such a hearing and to obstruct the forward progress of this case.
defendant Walter P. Reed who was drop-served at his office although he had instructed his
employees to not take service or a copy of the complaint. As none of the defendants have answered
the complaint, Mr. Gates and counsel move the Court to enter default judgments against each.
s/ Daniel G. Abel
Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 2 of 2
17-30519.3376


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************
MOTION FOR ENTRY OF DEFAULT, AND AS TO INTENTIONAL
defendants listed herein have answered the original compliant filed in August of last year, 2013
but have intentionally taken steps to prevent this action from going forward.
Defendants Swartz, Reed, Prieto, ADAs Noriea, Graicianette and other’s actions
constitute treason under the laws of the Constitution and the United States as established by the
United States Supreme Court. The action being filed almost one year ago, defendants repeatedly
acted to continue and stay these matters such as to not only comprise the integrity of these
specific proceedings, but also to comprise the apparent impartiality and integrity of the courts.
Page 1 of 5
17-30519.3377
obtain that relief immediately. Instead, the Court has entertained the defendants repeated
requests to prevent such a hearing and to obstruct the forward progress of this case.
This is a civil action to enjoin and redress Gates’s deprivation of rights, under color of
state law, by local authorities—as such authorities have been defined by the United States 5th
Circuit Court of Appeal in Holly Ray Bush v. Sheriff Jack Strain, et al. [5th Cir. No. 05-30837],
and Burge v. Parish of NOPD, 187 F.3d 452, citing Mairena, 816 F.2d at 1064 and Hudson, 174
F.3d 677—in violation of his rights, privileges, and immunities under the United States
Constitution and the Louisiana State Constitution.
defendant Walter P. Reed who was dropped served at this office although he had instructed his
employees to not take service or a copy of the complaint. As none of the defendants have
answered the complaint or filed other requisite responsive pleadings, Mr. Gates and counsel
move the Court to enter a default against each of the defendants named below:
Page 2 of 5
17-30519.3378
OF ST. TAMMANY
Page 3 of 5
17-30519.3379
violations committed by the defendants whom actions are the causes-in-fact of the violations of
federal and state constitutional and civil rights of Mr. Gates.
As well, counsel for and the defendants themselves continue to prevent Mr. Gates from
going forward with the action, with his request for an injunction, and for all other relief. Having
done so, these defendants and counsel have failed to answer to the original complaint but have
simply filed dilatory motions to prevent this matter from being heard on its merits.
Therefore, as defendants have failed to answer Mr. Gates and counsel move the Court for
the Entry of Default, for the reasons set forth in FRCP Rule 55, as set forth above. Particularly,
the Court should order the Entry of Default for the purposes of Rule 55 (b)(2):
Mr. Gates and counsel reserve their right to move forward with requests for injunctive
Page 4 of 5
17-30519.3380
relief and to seek supervisory writs as to these matters and the matter of injunctive relief as
necessary.
At this time, Mr. Gates and counsel move the Court to enter judgments of default.
s/ Daniel G. Abel

Telephone: 504.284.8521
Facsimile: 888.577.8815
Page 5 of 5
17-30519.3381


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
AFFIDAVIT
OF
DONALD BREAUX
1.
Louisiana.
2.
3.
4.
5.
17-30519.3382
6.
7.
8.
I believe the first attempts at service took place on 25 Novmeber 2013, when I served the
other defendants at the courthouse.
9.
not available.
10.
JURAT
____________/s/ Donald Breaux____________

__________/s/ Daniel G. Abel______________

17-30519.3383

VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************
ORDER
IT IS ORDERED THAT:
1. A Entry of Default is entered against defendants for the purposes set forth
in FRCP 55, as set forth in the Memorandum in Support of the Motion:


OF ST. TAMMANY
Page 1 of 2
17-30519.3384

_____________________________
Page 2 of 2
17-30519.3385


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
***************************************************************

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3386


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
MOTION FOR ENTRY OF DEFAULT AS TO

DEFENDANT RICHARD A. SWARTZ
Mr. Gates and counsel move the Court for the entry of a default as to defendant Judge
Richard A. Swatz. Repeated reviews of the record both in the Middle District of Louisiana and
in the Eastern District of Louisiana [once transferred] do not appear to contain an answer or any
responsive pleading filed by Mr. Richard Swartz himself or by any attorney for Mr. Swartz
including the Louisiana Attorney General James ‘Buddy’ Caldwell, on behalf of Mr. Swartz.
Mr. Gates and counsel move for the entry of default accordingly.
Daniel G. Abel I have filed this pleading and any

2421 Clearview Parkway exhibits using the ecf system on the
Metairie, Louisiana 70001 21 July 2014 serving counsel thereby.
Telephone: 504.284.8532
17-30519.3387


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
MOTION FOR ENTRY OF DEFAULT AS TO
DEFENDANT RICHARD A. SWARTZ
Mr. Gates and counsel move the Court for the entry of a default as to defendant Judge
Richard A. Swartz. Repeated reviews of the record both in the Middle District of Louisiana and
in the Eastern District of Louisiana [once transferred] do not appear to contain an answer or any
responsive pleading filed by Mr. Richard Swartz himself or by any attorney for Mr. Swartz
including the Louisiana Attorney General James ‘Buddy’ Caldwell, on behalf of Mr. Swartz.
The Clerk of Court for the United States District Courts for the Middle District of
Louisiana in Baton Rouge, issued summons for all defendants including defendant Richard A.
Swartz [Rec. docs. Nos. 12 & 13].
Mr. Breaux personally served defendant Mr. Richard Swartz and others on 25 November
2013 or within a week thereafter, ten days after the subpoenas were issued [Exhibit A- #3 -
Breaux Affidavit]. Mr. Breaux did not serve Mr. Caldwell or Ms. Landry.
While Louisiana Attorney General James “Buddy” Caldwell included defendant Mr.
Swartz in his request for a continuance on December 13, 2013 [Rec. doc. No.23] Mr. Caldwell
17-30519.3388
has not filed any subsequent responsive pleading nor has his office included defendant Mr.
Swartz in any other responsive pleading, including its motion to stay filed on 6 January 2014,
over six months ago [Rec. doc. No. 29].
Although some pleadings are filed on behalf of several defendants, such as Ms. Kathy
Landry’s pleadings, who although she in a defendant herself, has appears on behalf of St.
Tammany District Attorney ADA Ronnie Gracianette and Nicholas Noriea and recently as stated
that she represents and would waive service for the previously un-servable Mr. Walter Reed.
That offer was not made until the motions were filed last week.
However, no one has appeared for defendant Mr. Richard Swartz and no responsive
pleadings have been filed by him or on his behalf, either for him individually or with him as part
of group of co-defendants since 6 January 2014.
Although neither clerk of either district has made this observation, the record does not
contain any responsive pleading filed for or by Mr. Swartz since he was served over 200 days
ago.
17-30519.3389
violations committed by the Mr. Richard Swartz and the defendants whom actions are the causes-
in-fact of the violations of federal and state constitutional and civil rights of Mr. Gates.
As well, counsel for and the defendants themselves continue to prevent Mr. Gates from
going forward with the action, with his request for an injunction, and for all other relief. Having
done so, these Mr. Swartz and co-defendants and counsel have failed to answer to the original
complaint but have simply filed dilatory motions to prevent this matter from being heard on its
merits.
17-30519.3390
Therefore, as Mr. Swartz and co-defendants have failed to answer Mr. Gates and counsel
move the Court for the Entry of Default, for the reasons set forth in FRCP Rule 55, as set forth
above. Particularly, the Court should order the Entry of Default for the purposes of Rule 55
(b)(2):
Mr. Gates and counsel move for the entry of default accordingly.
Daniel G. Abel I have filed this pleading and any

2421 Clearview Parkway exhibits using the ecf system on the
Metairie, Louisiana 70001 21 July 2014 serving counsel thereby.
Telephone: 504.284.8532
17-30519.3391


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
AFFIDAVIT
OF
DONALD BREAUX
1.
Louisiana.
2.
3.
4.
5.
17-30519.3392
6.
7.
8.
I believe the he first attempts at service took place on 25 Novmeber 2013, when I served
the other defendants at the courthouse.
9.
not available.
10.
JURAT
____________/s/ Donald Breaux____________

__________/s/ Daniel G. Abel______________

17-30519.3393

VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
PROPOSED ORDER
For the reasons set forth in the motion and as the record contains no pleading
filed since December 13, 2013, on behalf of defendant Mr. Richard A. Swartz,
IT IS ORDERED THAT:
The Clerk of Court file an Entry of Default as to defendant Mr. Richard A. Swartz.
Ordered this ____ day of _________, 2014. New Orleans, Louisiana.
______________________________________________
17-30519.3394


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL

Telephone: 504.284.8521
Facsimile: 888.577.8815
17-30519.3395


*
*
V. * JUDGE STANWOOD R. DUVAL, JR.
*
*
JUDGE RICHARD SWARTZ, ET AL * MAGISTRATE JUDGE
********************************************************************
MOTION TO STAY OR IN THE ALTERNATIVE MOTION TO DISMISS
NOW INTO COURT, through undersigned Assistant Attorneys General, comes
the defendant, Judge Richard Swartz, who moves the Court as follows:
I.
Defendant herein, Judge Richard Swartz, hereby adopts and incorporates the
Motion to Stay these proceedings previously filed by defendants on January 6, 2014.
II.
In the alternative, Judge Swartz moves that this Court dismiss this action for the
reasons that follow.
III.
Defendant herein shows that this Court lacks jurisdiction to hear this matter under
FED. R. CIV. P. 12(b)(1) due to defendant’s sovereign immunity.
IV.
Plaintiffs have failed to state a claim upon which relief can be granted and
plaintiffs’ claim should be dismissed under FED. R. CIV. P. 12(b)(6) as Judge Richard
Swartz is entitled to judicial immunity.
17-30519.3396
V.
This court lacks jurisdiction over plaintiff’s treason claims as plaintiff, as a
private citizen, lacks standing to institute federal criminal proceedings.
WHEREFORE, defendant prays that plaintiffs’ Complaint against him be
dismissed at plaintiffs’ costs.

ATTORNEY GENERAL
By: s/ Douglas G. Swenson

David G. Sanders (La. Bar Roll No. 11696)
Douglas G. Swenson (La. Bar Roll No. 28773)
Louisiana Department of Justice
Litigation Division
P. O. Box 94005
(225) 326-6300 Telephone
(225) 326-6192 Facsimile
E-Mail Address: swensond@ag.state.la.us
Attorneys for Defendant,
Judge Richard Swartz
I hereby certify that a copy of the foregoing was filed electronically with the
Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all
CM/ECF participants by operation of this court’s electronic filing system. All non-
CM/ECF participants will receive a copy of this filing via U.S. Mail, properly addressed
and with proper postage prepaid.
s/ Douglas G. Swenson
Douglas G. Swenson
17-30519.3397


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MEMORANDUM IN SUPPORT OF MOTION TO STAY
OR IN THE ALTERNATIVE MOTION TO DISMISS
1. STATEMENT OF THE CASE
On or about August 5, 2013, Shane Gates filed the above captioned suit in the Middle District
of Louisiana. [Rec. Doc. 1]. This case was transferred to this Court on November 15, 2013. [Rec.
Doc. 15] On January 6, 2014 a Motion to Stay was filed by defendants, St. Tammany Parish Sheriff,
Rodney “Jack” Strain, in his official and individual capacity as Sheriff, St. Tammany Parish Sheriff
Captain Sherwood, St. Paul Fire & Marine Insurance Company (improperly named as “Travelers-St. Paul
Insurance Companies”), Louisiana Attorney General James D. “Buddy” Caldwell, the office of the
Louisiana Attorney General, Kathryn Landry, ADA Nicholas F. Noriea and ADA Ronnie Gracianette.
[Rec. Doc. 29] An oppositions was filed by plaintiff on April 1, 2014. [Rec. Doc. 42] A reply was filed
on April 22, 2014. [Rec. Doc. 48] There has been no ruling on said Motion to Stay. Judge Richard
Swartz appears herein to adopt the Motion to Stay and Reply Memorandum. [Rec. Doc. 29 & 48]
In the alternative, defendant herein, Judge Richard Swartz, now appears to file this Motion to
Dismiss based on the plaintiffs’ failure to state a cause of action and this Court’s lack of jurisdiction.
For the reasons stated herein, this suit against Judge Richard Swartz must be dismissed.
17-30519.3398
2. LAW AND ARGUEMENT
I. THIS COURT LACKS JURISDICITION TO HEAR THIS MATTER AGAINST

JUDGE KELLER IN HER OFFICIAL CAPACITY
A Fed. R. Civ. P. 12(b)(1) challenge to subject matter jurisdiction may be raised at any time,
by any party or by the court. Emrich v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988). The
burden lies with the party invoking the jurisdiction of the court. Thomson v. Gaskill, 315 U.S. 442,
62 S.Ct. 673 (1942). Substantively, the pleader may aver jurisdiction, but the actual facts may
contradict that averment and show that jurisdiction is absent and that the case must be dismissed.
Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725 (1939) and Ohio Nat’l Life Ins. Co. v. United States, 922
F.2d 320 (6th Cir. 1990). In evaluating whether subject matter jurisdiction exists, the court accepts
all uncontroverted factual allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683 (1974).
The court views the allegations as a whole. If a conclusory averment of subject matter jurisdiction is
negated by other allegations in the pleading, the case may be dismissed. Gibbs, supra.
The defendant respectfully states that accepting all uncontroverted factual allegations made
by the plaintiff as true, the Court lacks subject matter jurisdiction to hear and decide the plaintiff’s
claims under 42 U.S.C. §1983 filed against the defendant in his official capacity.
The Eleventh Amendment to the United States Constitution restricts the authority of the
federal court to hear lawsuits against States. That is, the Eleventh Amendment bars a state’s citizens
from filing suit against the State in federal court unless the state has waived its immunity. Cozzo v.
Tangipahoa Parish Council-President Government, 279 F. 3d 273, 280 (5th Cir. 2002). In Cozzo,
supra. the U.S. 5th Circuit Court of appeals has noted that by statute, Louisiana has refused any such
−2−
17-30519.3399
waiver of its Eleventh Amendment governing immunity regarding suits in federal court.1
Additionally, Congress may only abrogate a state’s Eleventh Amendment immunity by
unequivocally expressing its intent to do so and by acting pursuant to a valid exercise of power. In
enacting §1983, congress did not explicitly and by clear language indicate on its face an intent to
sweep away the immunity of the states. Cozzo, 279 F. 3d at 281. Further, a state is not a “person”
under 42 U.S.C. §1983. Will v. Michigan, 491 U.S. 58, 70, 109 S. Ct. 2314, 2312 (1989).
Plaintiff has failed to state if he has sued the Judge in his official or individual capacity. As
the suit against the Judge in his official capacity is actually a suit where the state is the real,
substantial party in interest, the Eleventh Amendment deprives this court of jurisdiction over
plaintiff’s claims against the State and all such claims against them for money damages should be
dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12 (b)(1). Warnock v.
Pecos County, Texas, 88 F. 3d 341, 343 (5th Cir. 1996).
II. Fed. R. Civ. P. 12(b)(6)
A motion under FED. R. CIV. P. 12(b)(6) tests the legal sufficiency of claims stated in the
complaint and must be evaluated solely based on the pleadings. Jackson v. Procunier, 789 F.2d 307
(5th Cir. 1986). On a FED. R. CIV. P. 12(b)(6) motion, the court must accept as true the plaintiff’s
allegations and may not dismiss the complaint for failure to state a claim unless it appears beyond
doubt the plaintiff cannot prove any set of facts in support of his claim which would entitle him to
relief. Chrissy F. By Medley v. Mississippi Dept. of Public Welfare, 925 F.2d 844, 846 (5th Cir.
1991).2 The court will not accept conclusory allegations in the complaint as true. Kaiser v.
1 La. R.S. 13:5106(A).

2 Quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).
−3−
17-30519.3400
Aluminum and Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.
1982), cert. denied, 459 U.S. 1105 (1983). At a minimum, the complaint must contain facts
sufficient to state a claim as a matter of law and must not be merely conclusory in its allegations.
Young v. Biggers, 938 F.2d 565 (5th Cir. 1991).
In the case at bar, plaintiff makes vague conclusory statements of violations of law and
deprivation of civil rights, but the only specific allegations made against Judge Richard Swartz are
as follows;
Swartz knowing denied Gates the right to introduce a FuelMan credit card receipt.
(Rec. Doc. 1, Paragraph 9)
Fifteen or sixteen motions were denied by Swartz who cited no law and gave no basis
for his denial of the motions. (Rec. Doc. 1, Paragraph 12)
Judge Swartz may condone a trial with the identical witnesses and identical evidence
used at the previous trial. (Rec. Doc. 1, Paragraph 21)
Judge Richard Swartz, did nothing in response to Noriea’s introduction of evidence

over plaintiff’s objection that it was improper. (Rec. Doc. 1, Paragraph 39)
Judge Richard Swartz allowed Noriea to introduce and allowed the jury to hear the
dispatch tape that Noriea and Capt. Sherwood had altered. (Rec. Doc. 1, Paragraph
40)
Evidence and testimony was produced and presented to the Court (assumingly against
plaintiff’s wishes) and Judge Swartz did nothing. (Rec. Doc. 1, Paragraph 44)
Judge Swarz’s refusal to have the sheriff and district attorney produce records is
another act by Swartz in violation of his oath of office and Gates’s constitutional
rights. (Rec. Doc. 1, Paragraph 51)
Judge Swartz failed to enforce the rights guaranteed Gates under the Sixth
Amendment Confrontation and Compulsory Process clauses and the governing
jurisprudence. (Rec. Doc. 1, Paragraph 56)
Judge Richard Swartz did nothing whatsoever. [Regarding Sherriff Strain laughing
while testimony was ongoing] (Rec. Doc. 1, Paragraph 62)
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17-30519.3401
Rec. Doc. 1, Paragraph 79 -90 states that the case was assigned to Judge Swartz, that
the plaintiff did not like the way Judge Swartz ruled on the introduction of medical
records, that he did not allow open file discovery and that he ruled against production
of a witnesses employment record.
These allegations also fail to rise to the level of a constitutional violation.
A JUDGE RICHARD SWARTZ IS ENTITLED TO JUDICIAL IMMUNITY
Judges are afforded absolute immunity when they perform a normal judicial function, unless
they are acting in the clear absence of all jurisdiction and that immunity attaches even if the action
was taken in error, was done maliciously, or was done in excess of the judge's authority. Bordages v.
McElroy, 952 F.Supp. 499 (S.D. Tex., 1996).
The United States Supreme Court has acknowledged the importance in protecting judges
from “vexatious actions prosecuted by disgruntled litigants.” Forrester v. White, 108 S.Ct. 538, 540
(1988). A judge acting in his capacity enjoys absolute immunity when dealing with the plaintiff
unless the judge acts in complete absence of all subject matter jurisdiction over the matter forming
the basis for such liability. Mireless v. Waco, 112 S.Ct. 286, 288 (1991); Stump v. Sparkman, 98
S.Ct. 1099, 1105 (1978). One cannot hold a judge liable in damages for judicial acts, even those
done maliciously or corruptly, unless the judge acts in the clear absence of all jurisdiction or acts in a
non-judicial role. Mireless, 112 S.Ct. at 288; Eitel v. Holland, 787 F.2d 995, 998 (5th Cir. 1989);
John v. Kegans, 870 F.2d 992, 995 (5th Cir. 1989).
With respect to the allegations that Judge Swartz violated plaintiff’s rights, those allegations
are bared by judicial immunity. Allegations of alleged due process and equal protection violations
do not defeat judicial immunity. Stump v. Sparkman, 435 U.S. 349, 355-360 (1978); Rheuark v.
Shaw, 628 F.2d 297, 303-304 (5th Cir. 1980), cert denied, 450 U.S. 931 (1981); Holeman v. Elliot,
−5−
17-30519.3402
732 F.Supp 726 727 (S.D. Tex. 1990). Rather, the sole inquiry is whether a judge acted in the clear
absence of jurisdiction. Stump, 435 U.S. at 355-357. As a state district court judge, Judge Swartz
had original subject matter jurisdiction to hear all state criminal and civil matters. Louisiana
Constitution, Article 5, Section 16. Judge Swartz was actively serving on the bench and was
exercising the authority vested in him by the Constitution and statutory law of the State of Louisiana
on cases pending before him in the court of general jurisdiction to which he was elected.
State judges enjoy judicial immunity from suit (rather than from the mere imposition of
damages) while engaged in judicial functions which fall within that judge’s jurisdiction. Forrester v.
White, 484 U.S. 219 (1988), Stump v. Sparkman, 435 U.S. 349 (1978); Moore v. Taylor, 541 So.2d
378 (La. App. 2nd Cir. 1989), citing Killen v. Boland, Gschwind Co., 157 La. 566 (1924) and
Cleveland v. State, 380 So.2d 105 (La. App. 1st Cir. 1979).
The allegations made against Judge Swartz involve rulings on motions, evidentiary issues and
discovery. All plaintiff’s non-conclusory allegations show that the complained about activity is a
normal judicial function, centered around a case which was alleged to be pending before the Judge
and arose directly out of the judge’s official capacity. As such, according to plaintiff’s allegations,
Judge Richard Swartz is entitled to judicial immunity and the suit against him must be dismissed.
B TREASON
Treason is a criminal proceeding. U.S. v. Burr, 25 F. Cas. 55, No. 14693, C.C.D. Va., August
31, 1807; Cramer v. U.S., 325 U.S. 1, 655 S. Ct. 918, 89 L. Ed. 1441 (1947).
A private citizen has no standing to institute federal criminal proceedings. It is well
established that criminal statutes are public in nature, prosecuted in the name of the United States to
protect society’s interest in security, fairness, and freedom. Linda R.S. v. Richard D., 410 U.S. 614,
−6−
17-30519.3403
93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Lewis v. Jindal, 2010 WL 774185, (5th Cir. 3/8/10)
(unreported); Kunzer v. Magill, 664 F. Supp. 2d 1058 (D. Minn. 2009).
Plaintiff has no standing to institute federal criminal proceedings nor does plaintiff have a
private cause of action under federal criminal laws. Kunzer, supra. As such, any alleged private
action based upon treason or conspiracy to commit treason must be dismissed.
3. CONCLUSION
This Court lacks jurisdiction to hear an action for damages against Judge Richard Swartz in
his official capacity. Further, plaintiff has made conclusory allegations of constitutional and criminal
violations but has failed to allege facts sufficient to state a claim upon which relief may be granted.
As such, Judge Richard Swartz is entitled to judicial immunity and all claims against him must be
dismissed.

ATTORNEY GENERAL

Litigation Division
P. O. Box 94005
(225) 326-6300 Telephone
(225) 326-6192 Facsimile
−7−
17-30519.3404
Douglas G. Swenson
−8−
17-30519.3405


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To: SHANE GATES

Through his counsel of Record
2421 Clearview Parkway, Suite 106
Metairie, LA 70001
Dismiss filed by Defendant Richard Swartz before the Honorable Stanwood R. Duval, Jr.,
United States District Judge, United States District Court, 500 Poydras Street, New Orleans,
LA 70130, on the 20th day of August, 2014, at 9:30 a.m. Pursuant to Local Rule 78.1E, this
motion shall be determined without oral argument unless any party desiring oral argument
files separate written request for oral argument, or the court orders oral argument.

ATTORNEY GENERAL

Litigation Division
1885 North 3rd Street; P.O. Box 94005
Phone: (225) 326-6300
Facsimile: (225) 326-6192
17-30519.3406
Court using the CM/ECF system. Notice of this filing will be sent to all CM/ECF participants
by operation of this court’s electronic filing system. All non-CM/ECF participants will
receive a copy of this filing via U.S. Mail, properly addressed and with proper postage
prepaid.
Baton Rouge, Louisiana, this 22nd day of July, 2014.
s/Douglas G. Swenson
Douglas G. Swenson
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17-30519.3407


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MEMORANDUM IN OPPOSITION OF MOTION FOR ENTERY OF DEFAULT

PROCEDURAL HISTORY:
On or about August 5, 2013, Shane Gates filed the above captioned suit in the
Middle District of Louisiana. [Rec. Doc. 1]. This case was transferred to this Court on
November 15, 2013. [Rec. Doc. 15] A Motion for Extension of Time to Answer was file
by undersigned counsel on behalf of defendant James D. “Buddy” Caldwell and Judge
Richard Swartz on December 13, 2013. [Rec. Doc. 23] On January 6, 2014 a Motion to
Stay was filed by defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his
official and individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St.
Companies”), Louisiana Attorney General James D. “Buddy” Caldwell, the office of the
Louisiana Attorney General, Kathryn Landry, ADA Nicholas F. Noriea and ADA Ronnie
Gracianette. [Rec. Doc. 29] An opposition was filed by plaintiff on April 1, 2014. [Rec. Doc.
42] A reply was filed on April 22, 2014. [Rec. Doc. 48] There has been no ruling on said
Motion to Stay. Plaintiff filed a Motion for Entry of A Default against Judge Swartz on July
21, 2014. [Rec. Doc. 53] Judge Richard Swartz filed a Motion to Stay or in the
17-30519.3408
Alternative Motion to Dismiss on July 23, 2015. [Rec. Doc. 55] Defendant, Judge
Richard Swartz appears herein to oppose the Motion for Entry of Default.
LAW AND FACTS:
Under Federal Rules of Civil Procedure, Rule 55(a), a default may only be
entered into the record “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend”. The Fifth Circuit Court of Appeal has
stated that it has a policy “against the use of default judgments” due to their truncated
nature.1 The Fifth Circuit has further explained that, “[w]e have adopted a policy in favor
of resolving cases on their merits and against the use of default judgments.”2 The
plaintiff here has shown no extreme circumstance or any reason to violate the policy of
the Fifth Circuit Court of Appeal in the request of a default judgment.
Further, the Fifth Circuit Court of Appeal has taken an expansive view as to what
constitutes an appearance under Rule 55(b)(2). Defendants herein has enrolled counsel,
filed for an extension and filed a dispositive motion showing his clear intent to pursue his
defense of this claim. The Fifth Circuit has noted that they have,
[C]onstrued the phrase “has appeared in the action” to

require the filing of responsive papers or actual in-court
efforts by the defendant. See United States v. McCoy, 954
F.2d 1000, 1003 (5th Cir.1992) (noting the “relatively low
threshold for making an appearance for purposes of Rule
55(b)(2)'s three-day notice requirement”). Rather, to
qualify as an appearance and trigger Rule 55(b)(2)'s notice
requirements, the defendant's actions merely must give the
plaintiff a clear indication that the defendant intends to
1
See: Levitt-Stein v. Citigroup, Inc., 284 Fed.Appx. 114 at 115 (C.A. 5 (Tex.), 2008); Rogers v. Hartford
Life and Acc. Ins. Co., 167 F.3d 933 at 938 (C.A. 5 (Miss.), 1999); Harrell v. DCS Equip. Leasing Corp.,
951 F.2d 1453 at 1459 (5th Cir.1992).
2
Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933 at 938 (C.A. 5 (Miss.), 1999) quoting Lindsey v.
Prive Corp., 161 F.3d 886, 892-93 (5th Cir.1998) and Sun Bank of Ocala v. Pelican Homestead & Sav.
Ass'n, 874 F.2d 274, 276 (5th Cir.1989)(“Default judgments are a drastic remedy, not favored by the
Federal Rules and resorted to by the courts only in extreme situations.”)
17-30519.3409
pursue a defense and must “be responsive to the plaintiff's

formal Court action.” Baez v. S.S. Kresge Co., 518 F.2d
349, 350 (5th Cir.1975); see also Sun Bank, 874 F.2d at
276 (noting that appearances “‘include a variety of informal
acts on defendant's part which are responsive to plaintiff's
formal action in court, and which may be regarded as
sufficient to give plaintiff a clear indication of defendant's
intention to contest the claim’”) Rogers v. Hartford Life
and Acc. Ins. Co., 167 F.3d 933 at 936-937 (C.A. 5 (Miss.),
1999).
Appearing defendant has appeared herein and filed a dispositive motion showing
his indication of intention to contest the claim, and otherwise defend.
Finally, Rule 60(b)(1) states that, “[o]n motion and just terms, the court may
relieve a party or its legal representative from a final judgment, order, or proceeding for
the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” The
Fifth Circuit Court of Appeals has stated that, “Courts construe Rule 60(b)(1) liberally to
ensure that they resolve doubtful cases on the merits. See Harrell v. DCS Equip. Leasing
Corp., 951 F.2d 1453, 1459 (5th Cir.1992) (“This court applies Rule 60(b) ‘most liberally
to judgments in default ... [because] ... [t]runcated proceedings of this sort are not
favored.’ ”)3
Appearing defendant shows that the he has appeared and shown his intent to
defend this suit. The inadvertence of undersigned counsel to include Judge Richard
Swartz’s name in the Motion to Stay is at best excusable neglect as shown by the
promptness of counsel to file said pleadings and opposition immediately upon the
learning of the intent to seek entry of default. “Although the concept of excusable
neglect is “somewhat elastic,” it generally excludes gross carelessness, ignorance of the
3
Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933 (C.A. 5 (Miss.), 1999).
17-30519.3410
rules, or ignorance of the law.”4 When ruling on a motion to set aside default judgment,
the district court should consider: “(1) the extent of prejudice to the plaintiff; (2) the
merits of the defendant's asserted defense; and (3) the culpability of [the] defendant's
conduct.”5
Plaintiff has not alleged any prejudice which would occur if entry of Clerk’s
default is not entered. Defendant herein has appeared and alleged his defenses to
plaintiff’s claim which are well founded and properly before the Court. Finally,
defendant’s inadvertencies were not in bad faith and there has been no delay in this
matter and denial of entry of default would not prejudice plaintiff in this matter.
CONCLUSION:
The Fifth Circuit has explained its policy against the use of default judgments as
well as its expanded view and low threshold for making an appearance. With this in
mind, defendant has appeared and made efforts to defend this claim and the inadvertent
action of not including Judge Swartz’s name in the previously filed Motion to Stay has
not prejudiced plaintiff, caused delay nor was it in bad faith. For these reasons, appearing
defendants pray that the entry of default be denied.
4
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 at 392, 113 S.Ct. 1489,
1497, 123 L.Ed.2d 74 (1993).
5
Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 938-39 (5th Cir.1999).
17-30519.3411

ATTORNEY GENERAL

Litigation Division
P. O. Box 94005
(225) 326-6300 Telephone
(225) 326-6192 Facsimile
I hereby certify that a copy of the foregoing was filed electronically with the
Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all
CM/ECF participants by operation of this court’s electronic filing system. All non-
CM/ECF participants will receive a copy of this filing via U.S. Mail, properly addressed
and with proper postage prepaid.
Douglas G. Swenson
17-30519.3412

VERSUS

CAPTAIN SHERWOOD, KATHRYN LANDRY, HON. STANWOOD R. DUVAL, JR.
TAMMANY, LOUISIANA ATTORNEY GENERAL, MAG. JUDGE:
JAMES D. “BUDDY” CALDWELL, THE OFFICE HON. JOSEPH C. WILKINSON
OF THE LOUISIANA ATTORNEY GENERAL, THE
ATTORNEY FOR THE PARISH OF ST. JURY TRIAL
TAMMANY, ADA RONNIE GRACIANETTE,
MEMORANDUM IN OPPOSITION TO
PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT
Defendants, Marie Elise Prieto, Clerk of Court for the Parish of St. Tammany and the
Office of the Clerk of Court of St. Tammany (hereinafter “Defendants”), submit this Memorandum
in Opposition to Plaintiff’s Motion for Entry of Default.
FACTS
Plaintiff, Shane Gates (“Plaintiff”), filed the instant litigation on August 5, 2013 in the
Middle District of Louisiana.1 The case was transferred to this Court, pursuant to an Order
1
See Complaint, Rec. Doc. No. 1.
17-30519.3413
granting a Motion to Change Venue dated November 14, 2013.2 On December 12, 2013,
Defendants filed a Consent Motion for Extension of Time to Answer.3 This Court granted Defendants’
motion of extension of time to answer on December 30, 2013.4 Defendants’ answer was to be
filed on or before January 6, 2014.5
Defendants filed a Motion for a More Definitive Statement under Rule 12(b)(e) and Motion to Strike
under Rule 12 (f) on January 6, 2014.6 On January 13, 2014, Plaintiff filed two requests for
extensions and ultimately established a submission date of April 9, 2014.7 The Court granted
Plaintiff’s two requests for extensions and ultimately established a submission date of April 9,
2014.8 Plaintiff filed an opposition to Defendants’ motions on April 1, 2014.9 To date, there has
been no ruling on Defendants’ Motion for a More Definitive Statement under Rule 12 (b)(e) and Motion to
Strike under Rule 12 (f). Despite Defendants filing a responsive pleading to Plaintiff’s complaint,
Plaintiff filed a Motion for Entry of Default as to all Defendants on July 11, 2014.10 Obviously,
Plaintiff’s Motion for Entry of Default is completely unfounded, and the Clerk has plead and
otherwise defended against Plaintiff’s Complaint. The motion should, thus, be denied.
2
See Order, Rec. Doc. No. 15.
3
See Rec.Doc. No. 21.
4
See Rec. Doc. No. 26.
5
Id.
6
7
See Ex Parte Motions for Extension of Time to Answer Defendants’ Motions at Document Nos. 25, 29, 30 for Medical Reasons and
Scheduled Treatment, Rec. Doc. No. 31 and Ex Parte Motion to Continue Submission Dates of 26 February 2014 on Motions at Rec.
Doc. Nos. 25, 29, 30, Rec. Doc. No. 34.
8
See Rec. Doc. Nos. 33 and 36.
9
10
17-30519.3414
LAW AND ARGUMENT
Plaintiff’s request for default is based on Rule 55 of the Federal Rules of Civil
Procedure.11 Rule 55 provides in pertinent part, “[w]hen a party against whom judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.” As set forth in the fact section
above, Defendants have plead and otherwise defended against Plaintiff’s claims by filing a Motion
for a More Definitive Statement under Rule 12(b)(e) and Motion to Strike under Rule 12 (f).12 Rule 12(e),
provides as follows:
a party may move for a more definitive statement of a pleading to which a

responsive pleading is allowed which but which is so vague or ambiguous that a
party cannot reasonably prepare a response. The motion must be made before
filing a responsive pleading and must point out the defect complained of and the
details desired.
Rule 12 (f) provides the following:
The Court The Court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertanent, or scandalous matter.
The Court may act:
(1) On its own; or

(2) On motion made by a party either before responding to the
pleading or, if a response is not allowed, within twenty (20) days
after being served with the pleading;
Clearly Rule 12 provides that any objections relating to more definitive statements
and/or motions to strike must be filed prior to answering the complaint.13 As it relates to
motions for default, pleadings filed pursuant to Rule 12 of the Federal Rules of Civil Procedure
11
12
13
See Rule 12(e)(f) of the Federal Rules of Civil Procedure.
17-30519.3415
have been deemed to be a defensive action for the purpose of defending against a rule for entry of
default.14 It has been generally held by various Courts that “the interposition of various
challenges to matters such as service, venue, and the sufficiency of the complaint preclude a default
even if pursued in the absence of a responsive pleading.15 Additionally, “a party is not entitled to
a default judgment as a matter of right, even where the defendant is technically in default.” 16 “In
fact, ‘[d]efault judgments are a drastic remedy, not favored by the Federal Rules and resorted to
by courts only in extreme situations.’ ” 17
Defendants in this matter have filed a motion which serves to prevent the entry of a
default judgment against Defendants.18 Accordingly, Plaintiff’s Motion for Entry of Default has no
basis in fact or law and should be denied.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Entry of Default should be denied,
because Defendants have filed a pleading in an effort to defend against Plaintiff’s claims. The
Defendants’ motions under Rule 12 that have been filed in lieu of an answer, constitute an effort
14
See Onyiah v. St. Cloud State University, 655 F.Sup.2d 948, 972 (D. Minn. 2009)(holding that a rule of Motion for Entry
of Default should be denied, because defendants filed a rule 12(b) motion in lieu of an answer.); Wickstrom v. Ebert, 101
F.R.D. 26 (E.D.Wis.1984).
15
See Wickstrom, 101 F.R.D. at 33(emphasis added); citing 10 Wright & Miller, Federal Practice and Procedure Section 2682 at
409-410 (2d ed. 1983); See also Olsen v. International Supply Company, 22 F.R.D.221, 223, 17 Alaska 643 (D. Alaska 1958)(The
words “otherwise defend” refer, among other things, to attacks on service or motions to dismiss or for particulars,
which serve to prevent without presently pleading to merits.”).
16
Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir.2001); Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.1996).
17
Lewis, 236 F.3d at 767 (quoting Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir.1989).
18
See Id.; See also Rec. Doc. No. 30.
17-30519.3416
to defend against Plaintiff’s claims.

______/s/Thomas H. Huval______________________________
Thomas H. Huval (La. Bar Roll 21725)
Stefini W. Salles (La. Bar Roll 25857)
Telephone: (985) 809-3800
Facsimile: (985) 809-3801
Counsel for Marie Elise Prieto, Clerk of Court for
the Parish of St. Tammany and the Office of The
Clerk of Court of St. Tammany
I HEREBY CERTIFY that on July 29th, 2014 a copy of Plaintiffs’ Opposition to Motion for
Default was filed electronically with the Clerk of Court using the CM/ECF system. Notice of
this filing will be sent to all CM/ECF participants by operation of the court’s electronic filing
system. All Non-CM/ECF participants will receive a copy of this filing via U.S. Mail properly
addressed and with proper postage prepaid.
/s/ Thomas H. Huval

Thomas H. Huval
17-30519.3417

SHANE M. GATES CIVIL ACTION NO.:

2:13-cv-06425
VERSUS
JUDGE:
JUDGE RICHARD SWARTZ, HONORABLE STANWOOD R.
WALTER P. REED, ADA NICHOLAS DUVAL, JR.
F. NORIEA, JR., CLERK OF COURT-
ST TAMMANY, MARIE-ELISE MAG. JUDGE:
PRIETO, STPSO SHERIFF RODNEY JOSEPH C. WILKINSON, JR.
"JACK" STRAIN, CAPTAIN
SHERWOOD, KATHRYN LANDRY,
THE OFFICE OF THE CLERK OF
JAMES D. "BUDDY" CALDWELL,
TAMMANY, ADA RONNIE
GRACIANETTE, JOHN AND JANE
DOES OF THE PARISH AND STATE
OFFICES NAMED, AND
TRAVELERS-ST. PAUL INSURANCE
COMPANIES
MEMORANDUM IN OPPOSITION TO MOTION FOR DEFAULT JUDGMENT

AS TO DISTRICT ATTORNEY WALTER REED
NOW INTO COURT, through undersigned counsel, comes defendant, District
Attorney Walter Reed, who files this opposition to plaintiff’s Motion for Default
Judgment as to District Attorney Walter Reed based on his alleged refusal to accept
service or to allow someone from his office to accept service on his behalf. Plaintiff has
filed a separate motion seeking entry of default judgment against all defendants, and the
opposition to that motion has been separately filed and is adopted herein.
1
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Prior to reaching the issue of service herein, undersigned counsel wants to correct
a false statement made by plaintiff’s counsel in his memorandum. Plaintiff’s counsel
alleges that undersigned counsel informed him that Walter Reed will not answer any
§1983 action. That statement is completely false. In fact, since the filing of this action,
13-6425, undersigned counsel has had no substantive discussions with plaintiff’s counsel
regarding this action or any §1983 actions. Moreover, Gates himself has a previously
filed §1983 action pending in this Court arising from the same operative facts, civil action
no. 07-6983, filed against many of the same defendants, and defendant, District Attorney
Walter Reed, through undersigned counsel, has filed pleadings therein in defense of the
action.
Procedural Background
In the opposition by the other defendants herein to plaintiff’s request for entry of
default judgment against them, the defendants set forth a comprehensive background of
this litigation and the companion litigation in this Court which will not be repeated
herein. However, this Court should also be aware of the extensive proceedings in the
state criminal case attributable to plaintiff which have effectively blocked conclusion of
the remaining criminal charges against plaintiff.
Following the trial of the felony charge in July, 2012, the state trial court
scheduled the trial of the misdemeanor charges on August 31, 2012. See Notice of
Misdemeanor Trial, Exhibit “A”. Due to Hurricane Isaac, the 22nd Judicial District Court
was closed on that date, which required rescheduling of the trial to November 28, 2012.
Gates’ counsel then filed a motion seeking dismissal of the misdemeanor charges due to
2
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alleged untimeliness of the trial. As a result, the trial scheduled on November 28, 2012
was continued, and the motion was set for hearing on January 18, 2013. See Minute
Entry of November 28, 2012, Exhibit “B”. On January 18, 2013, the trial court denied
the defense motion and upon request of Gates’ counsel, gave him time to file a writ
application with the First Circuit Court of Appeal. See Minute Entry of January 18, 2013,
Exhibit “C”. The First Circuit Court of Appeal denied the writ on April 8, 2013. See
Judgment, Exhibit “D”. The Louisiana Supreme Court denied his related writ application
on June 21, 2013. State v. Gates, 118 So.3d 418 (La. 2013). Thereafter, Gates filed
numerous motions, all of which were heard by the court on July 18, 2013. Gates again
sought review of those rulings with the First Circuit Court of Appeal, which denied relief
on August 8, 2013. See Judgment, Exhibit “E”. On August 5, 2013, just before the trial
date scheduled on August 12, 2013, Gates filed this action in the Middle District of
Louisiana, and as a result, when counsel appeared for trial on August 12, 2013, the court
recused itself since the trial judge was named as a party defendant herein. See transcript
of August 12, 2013, Exhibit “F”. Thereafter, all of the judges of the 22nd Judicial District
Court recused themselves in all cases involving Daniel Abel. See Recusal Order, Exhibit
“G”.
The Louisiana Supreme Court appointed Judge Walter Rothschild to preside over
the criminal case. Gates then filed a motion seeking the recusal of the district attorney
and a motion for change of venue. A hearing was held on these motions on November
13, 2013, and those motions were denied. The trial of the misdemeanor charges was set
for January 16, 2014. Although counsel for Gates appeared on the hearing date, Gates
3
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was not present. The State requested an attachment be issued for Gates. The trial court
ordered Gates’ counsel to contact Gates and inform him the court set a deadline of
November 22, 2013 for Gates to appear in the Clerk of Court office, file a signed Request
Address Change form and be personally served with the misdemeanor trial date or an
attachment would be issued for Gates’ arrest. See minute entry of November 13, 2013,
Exhibit “H”. Gates failed to appear as ordered, and on November 25, 2013, an attachment
was issued for his arrest, which remains outstanding. See Attachment, Exhibit “I”. On
January 7, 2013, the misdemeanor case was scheduled for status conference, and although
neither Gates nor his counsel appeared, the trial court had received notice from Gates’
counsel that he was undergoing medical treatment and continued all pending court dates.
See Minute Entry of January 7, 2014, Exhibit “J”. On March 27, 2014, the court
conducted a status conference. Gates’ counsel was present, but Gates was again not
present. The court advised counsel that the status would be determined upon Gates’
arrest. See minute entry of March 27, 2014, Exhibit “K”. To date, to the knowledge of
undersigned counsel, Gates has not yet been arrested.
Law and Argument
With regard to service, while plaintiff’s counsel makes various allegations about
defendant Walter Reed not accepting service and not allowing a staff member to accept
service, and while not specifically citing any law, undersigned counsel submits that the
reference is to a provision of state procedural law which concerns service on a counsel of
record and which does not govern original service on a party. See La. C.C.P. art. 1314,
which provides that personal service on a staff member of a counsel of record constitutes
4
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valid service. However, defendant herein is being served as a party, not as counsel of
record in an existing lawsuit. Accordingly, that state law provision is inapplicable.
There is no return summons contained in this record as to defendant, District
Attorney Walter Reed, which is a prerequisite to obtaining a default judgment against a
party. Perfecting service of process is a necessary procedural prerequisite to the entry of
a default judgment. Leedo Cabinetry v. James Sales & Distribution, Inc., 157 F.3d 410
(5th Cir.1998). See also Maryland State Firemen Assoc. v. Chaves, 166 F.R.D. 353, 354
(D.Md.1996) (“It is axiomatic that service of process must be effective under the Federal
Rules of Civil Procedure before a default or a default judgment may be entered against a
defendant.”). Where there is no service return of record, there is no evidence of service. Sisk
v. U.S., 2007 WL 1963000 (W.D. La. 2007). In the absence of effective service upon
defendant, this motion for default judgment should be denied.
Nevertheless, undersigned counsel, following receipt of this motion, notified
plaintiff’s counsel that she would execute a waiver of service on behalf of defendant,
District Attorney Walter Reed, if plaintiff’s counsel would forward such a waiver request
to her in accordance with Federal Rule of Civil Procedure 4( c). In fact, at all times,
plaintiff’s counsel had the option to request such a waiver of service by following the
procedure set forth in that rule, but has chosen not to do so.
Entry of default judgments is generally disfavored in the law and any doubt should
be resolved in favor of the nonmovant. Lacy v. Sitel Corp., 227 F.3d 290 (5th Cir. 2009).
The Fifth Circuit has held that a “party is not entitled to a default judgment as a matter of
right”. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir.2001), citing Ganther v. Ingle, 75 F.3d
5
17-30519.3422
207, 212 (5th Cir.1996). In fact, “[d]efault judgments are a drastic remedy, not favored by
the Federal Rules and resorted to by courts only in extreme situations.” Lewis, 236 F.3d
at 767, citing Sun Bank of Ocala v. Pelican Homestead and Savings Ass'n., 874 F.2d 274,
276 (5th Cir.1989).
While plaintiff alleges that defendant is intentionally evading service, his evidence
does not constitute proof of intentional evasion. Rather, the evidence consists of an
affidavit from the process server that over a period of time (the length of which is
unidentified), he tried service at defendant’s office “four or five” times, and defendant
was unavailable. Moreover, evading service is “insufficient to make a defendant's failure
to answer willful,”, because the duty to answer only arises after service has been
perfected. Jenkens & Gilchrist v. Groia & Co., 542 F.3d 114, 123 (5th Cir.2008), citing
Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 374 (D.C.Cir.1980)
and Lacy, 227 F.3d at 292 n. 5 (noting that willful evasion of service is not grounds to
support an entry of default). Again, plaintiff’s counsel has had an option for waiver of
service available to him at all times pursuant to Rule 4 of the Federal Rules of Civil
Procedure. Plaintiff’s counsel was aware, at all times pertinent to this litigation, that
undersigned counsel represents District Attorney Walter Reed in the first case filed by
plaintiff, yet never inquired as to waiver of service. Again, since receipt of this motion,
as acknowledged by plaintiff’s counsel in his refiled motion, undersigned counsel has
offered to execute a waiver of service in accordance with Rule 4.
For the foregoing reasons and the reasons additionally stated in the Memorandum
in Opposition to Plaintiff’s Motion for Entry of Default and as to Intentional Delay of
6
17-30519.3423
Proceeding and to Prevent Injunctive Relief filed this same date, plaintiff’s motion herein
seeking default judgment as to District Attorney Walter Reed should be denied.
By: s/Kathryn W. Landry

P.O. Box 82659
Telephone: (225) 766-0023
I hereby certify that a copy of the foregoing pleading has been served on all
counsel of record via the Court’s CM/ECF system, this 29th day of July, 2014.
s/ Kathryn W. Landry
7
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17-30519.3442
17-30519.3443


VERSUS

P. REED, ADA NICHOLAS F. NORIEA, 2:13-cv-06425-SRD-JCW
SHERIFF RODNEY "JACK" STRAIN, HONORABLE STANWOOD R. DUVAL
OF COURT OF ST. TAMMANY, JOSEPH C. WILKINSON, JR.
TAMMANY, ADA RONNIE
INSURANCE COMPANIES
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR ENTRY OF

DEFAULT AND AS TO INTENTIONAL DELAY OF PROCEEDING AND TO
PREVENT INJUNCTIVE RELIEF
Defendants, St. Tammany Parish Sheriff, Rodney “Jack” Strain, in his official and
individual capacity as Sheriff, St. Tammany Parish Sheriff Captain Sherwood, St. Paul Fire &
Marine Insurance Company (improperly named as “Travelers-St. Paul Insurance Companies”),
Louisiana Attorney General James D. “Buddy” Caldwell, the Office of the Louisiana Attorney
General, Kathryn Landry, District Attorney Walter P. Reed, ADA Nicholas F. Noriea Jr., ADA
17-30519.3444
Ronnie Gracianette, and the Honorable Judge Richard Swartz (collectively hereinafter
“Defendants”) aver as follows:
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff currently has pending two related lawsuits before this Court arising out of the
same operative facts. The first lawsuit, Gates v. Strain, et al., 2:07-cv-06983-SRD-JCW (“Gates
I”), was filed on October 17, 2007. That lawsuit is stayed pending resolution of the ongoing
criminal charges against plaintiff in the 22nd Judicial District Court.1 Plaintiff was unsuccessful
in his first attempt to re-open the case in March 2011.2 However, in August 2012, Gates I was re-
opened after plaintiff’s counsel represented to the Court that Gates had been acquitted of all
criminal charges.3 This was addressed by defendants in a Joint Motion for Rehearing that this
Court granted, vacating the prior order re-opening the case.4
This lawsuit, Gates v. Swartz, et al., 2:13-cv-06425-SRD-JCW (“Gates II”), is the second
lawsuit plaintiff has pending in this Court. Suit was originally filed in the Middle District of
Louisiana on August 5, 2013.5 Before any summons was requested by Gates, some defendants
moved to change the venue of Gates II from the Middle District to the Eastern District pursuant
to 28 U.S.C. § 1404 and, alternatively moved the Court to dismiss the matter for insufficient
service of process pursuant to Federal Rule of Civil Procedure 12(b)(5). 6 On October 4, 2013,
Gates sought an extension of time to respond to the motion to change venue to which, out of
1
R. Doc. 81 and R. Doc. 196 in Gates I.
2
3
R. Doc. 143 in Gates I.
4
5
R. Doc. 1.
6
R. Doc. 3.
17-30519.3445
professional courtesy, defendants consented.7 On October 8, 2013, Gates filed an opposition to
the defendants’ motions to change venue and dismiss.8
On November 15, 2013, Judge Brady of the Middle District granted the Motion to
Change Venue and deferred ruling on the Rule 12(b)(5) motion.9 The case was transferred to the
Eastern District of Louisiana on November 15, 2013 where it was originally allotted to District
Judge Vance.10 After the transfer of venue, certain defendants filed motions for extensions of
time11 which were uniformly granted, giving the defendants until January 6, 2014 to respond to
Gates II.12 On or before January 6, 2014, certain defendants filed a Motion to Transfer the case
from Judge Vance to this Honorable Court13 (where Gates I was filed and is presently stayed)
and a Motion to Stay Gates II for essentially the same reasons that Gates I is presently stayed.14
The St. Tammany Parish Clerk of Court also filed a Motion for More Definite Statement
and Motion to Strike.15 Gates, again through the professional courtesy granted by defense
counsel, obtained another extension of time to respond to these two defense motions.16 Gates’
counsel submitted an order requesting that he be granted until June 18, 2014 (approximately six
months) to file responses to these motions.17 Judge Vance entered an order extending the
submission date on Record Documents 25, 29 and 30 to February 26, 2014.18
7
R. Doc. 6.
8
R. Doc. 8.
9
R. Doc. 14.
10
R. Docs. 15 and 16.
11
R Docs. 20, 21, 23 and 24.
12
R. Docs. 22, 26, 27 and 28.
13
R. Doc. 25.
14
R. Doc. 29.
15
R. Doc. 30.
16
R. Doc. 31.
17
R. Doc. 32.
18
R. Doc. 33.
17-30519.3446
Thereafter, on February 18, 2014, Gates’ counsel yet again requested a continuance of the
hearings on the various motions.19 Judge Vance granted Gates’ counsel’s motion to continue the
submission dates, this time to April 9, 2014.20 On April 1, 2014, Gates filed a “no position”
response to the Motion to Transfer to this Court21 and filed oppositions to the motion for more
definite statement, motion to strike22 and motion to stay these proceedings.23 The defendants
requested leave to file a reply in support of the motion to stay. 24 Ultimately, Judge Vance
transferred Gates II to this Court, recognizing that Gates I and Gates II arose out of the same
operative facts.25
This Honorable Court granted defendants’ motion for leave to file their reply in support
of the Motion for Stay on April 22, 2014.26 The Reply was filed into the record that day.27 Thus,
the Motion for Stay had been fully briefed and was awaiting a decision of the Court as of April
22, 2014. Thereafter, Gates counsel attempted to take default judgments on July 11, 2014. 28 At
no time prior to this date did Gates’ counsel suggest that any additional responsive pleading was
necessary (which these defendants would vehemently dispute) and by Gates’ counsel’s repeated
requests for continuances and in contesting the various defense motions by filing oppositions
into the record, Gates has engaged in an eleven month silence and litigation as usual conduct.
There can be little doubt when comparing Gates I with Gates II that they both arise out of
the same operative facts. In Gates I, plaintiff alleged unlawful arrest and false charges, asserted
that the Sheriff and District Attorney engaged in malicious prosecution and abuse of process and
19
R. Doc. 34.
20
R. Doc. 36.
21
R. Doc. 40.
22
R. Doc. 41.
23
R. Doc. 42.
24
R. Doc. 44.
25
R. Doc. 46.
26
R. Doc. 47.
27
R. Doc. 48.
28
R. Docs. 49, 50.
17-30519.3447
that the defendants conspired in their actions. In Gates II, plaintiff alleges that the District
Attorney of St. Tammany Parish, the St. Tammany Parish Clerk of Court and the Bench in St.
Tammany Parish have conspired against him, committing a “fraud upon the Court.” Plaintiff
essentially alleges that the named defendants have committed crimes against him in the pursuit
of the same criminal prosecution as complained of in Gates I. In both lawsuits, plaintiff seeks
“injunctive relief to prevent bad faith prosecution.” In both complaints, plaintiff asserts that
evidence has been destroyed, altered or fabricated. The duplication in the lawsuits is evident in
the enumerated §1983 violations, including:
4. A §1983 count alleging liability of the District Attorney and his Office. (In the
most recent complaint, Gates joins the Clerk of Court in this count); and
5. Both complaints set out due process and equal protection violations.
Although new facts are alleged in Gates II due to a significant passage of time since
Gates I was filed in 2007, the factual predicate for both complaints is essentially the same.
Gates I is simply an extension in time, to the present, of complaints and allegations pertaining to
the ongoing criminal prosecution having its genesis in plaintiff’s arrest by St. Tammany Sheriff’s
Deputies on November 16, 2006.
Because this case arises out of the same operative facts, has many of the same or similar
defendants named in Gates I and, frankly, picks up where Gates I left off when filed several
years ago, with allegations to the present day, it likewise should be subject to stay as a conviction
on the resisting arrest charge could likewise impact any allegations in Gates II. If Gates I is
17-30519.3448
stayed and this case is simply a chronological extension of alleged deprivations of rights secured
by law by state actors, then, by extension, it is appropriate to stay Gates II as well.
Prior to plaintiff’s attempt to take defaults against the defendants in Gates II, there has
been no activity in this case since April 22, 2014. The same is true of Mr. Gates still-pending
state court criminal trial on the charge of resisting an officer. The attached minute entry from the
22nd Judicial District Court makes clear that the standstill in Mr. Gates’ criminal prosecution is
the result of his failure to appear.29 As noted in the minute entry, there is an outstanding
attachment for Mr. Gates’ arrest.
Considering the time and effort of defendants to have the case transferred from the
Middle District to the Eastern District and transferred from Judge Vance’s court to this Court, as
well as the pending Motion to Stay, Rule 12(b)5 motion for insufficient service of process, the
Rule 12(e) motion for more definite statement and Rule 12(f) motion of defendants Prieto and
the St. Tammany Parish Clerk of Court’s Office,30 it is unclear how plaintiff’s counsel could
possibly allege in good faith that all defendants have “failed to plead or otherwise defend” 31
plaintiff’s claims in Gates II. Indeed, contrary to the allegations in the default pleadings, any
delay in both the civil cases (Gates I and Gates II) and Mr. Gates’ criminal trial has been caused
by plaintiff and his counsel.
LAW AND ARGUMENT
I. ENTRY OF DEFAULT IS A DRASTIC REMEDY DISFAVORED BY THE

COURTS
It has long been held in the United States Fifth Circuit that entry of Judgment by Default
is a drastic remedy that should only be resorted to in extreme situations. E.F. Hutton and Co.,
29
See the 3/27/14 Minute Entry from the 22nd JDC, attached as Exhibit A.
30
Defendants Marie Elise Prieto and the St. Tammany Parish Clerk of Court’s Office have filed a separate response
to Plaintiff’s motion. See R. Doc. 57.
31
Fed. R. Civ. P. 55(a).
17-30519.3449
Inc. v. Moffatt, 460 F.2d 284 (5th Cir. 1972); see also Southern Distributing Co., Inc. v.
Technical Support Associates, Inc., 105 F.R.D. 1 (D.C. Tex. 1984). The Fifth Circuit has long
held that the drastic sanction of judgment by default is permitted only in extreme situations
where there is a clear record of contumacious conduct. GFI Computer Industries, Inc. v. Fry,
476 F.2d 1 (5th Cir. 1973).
Many other federal courts likewise view default as a drastic remedy. Wendt v. Pratt, 154
F.R.D. 229 (D. Minn. 1994); Lichtenstein v. Jewelart, Inc., 95 F.R.D. 511 (E.D.N.Y. 1982). As
a general rule, default judgments are ordinarily disfavored because cases should be decided on
the merits whenever reasonably possible. Creative Tile Marketing, Inc. v. SICIS Intern., S.r.L.,
122 F.Supp. 1534 (S.D. Fla. 1996). Further, defaults are looked upon with disfavor, especially in
actions implicating a public issue. In Wilson v. Winstead, 84 F.R.D. 218 (E.D. Tenn. 1979),
citing Wright and Miller, the Court noted that the matter before it involved the employment of an
elected public official.32 Doubt with respect to whether to grant a default should generally be
resolved in favor of trial on the merits. Davis v. Parkhill-Goodloe Co., 302 F.2d 489 (5th Cir.
1962); see also U.S. v. $55, 518.05 in U.S. Currency, 728 F.2d 192 (3rd Cir. 1984).
As previously stated, to be culpable, Defendants’ conduct leading to entry of default
judgment must have been willful, intentional, reckless or in bad faith, and more than negligence
is required for culpability for purposes of determining whether a default judgment should be set
aside. Monah v. Albert Einstein Medical Center, 161 F.R.D. 304 (E.D. Pa. 1995).
Any doubts as to the propriety of granting a default judgment should be resolved in favor
of the non-moving party. Cincinnati Bell Telephone Company v. Allnet Communications
32
In the present case, the Defendants are uniformly public officials or employees, some elected, others employed,
some more significantly in the public eye. There is little debate that Gates’ lawsuits pertain to a State court criminal
prosecution and implicate a public issue.
17-30519.3450
Services, Inc., 810 F.Supp. 217 (S.D. Ohio 1992) (citing Charles Allen Wright, Arthur R. Miller
and Mary K. Kane, 10 FEDERAL PRACTICE AND PROCEDURE, §§ 2681-2701 (2d Ed., 1983)).
It is only in those circumstances where a defendant fails to make any type of appearance
at all, thus failing to plead or otherwise defend the claims made against the defendant, that an
entry of default is warranted. District 2A, Transp., Technical, Warehouse, Indus. and Service
Employees Union v. Government of the Virgin Islands, 759 F.Supp. 278 (D.C. V.I. 1990).
II. DEFENDANTS’ PENDING FED. R. CIV. P. 12(b)(5), 12(e) AND 12(f) MOTIONS
PRECLUDE THE ENTRY OF DEFAULT
As previously set forth in the Defendants’ factual statement, Gates II was filed on August
5, 2013 in the United States District Court, Middle District of Louisiana. In response, defendants
St. Tammany Parish Sheriff Rodney “Jack” Strain, St. Tammany Parish Sheriff Deputy Captain
Sherwood, Travelers-St. Paul Insurance Companies and Louisiana Attorney General James D.
“Buddy” Caldwell filed a Motion for Change of Venue pursuant to 28 USC §1404 and,
alternatively, a Motion to Dismiss for Insufficient Service of Process pursuant to Federal Rule of
Civil Procedure 12(b)(5).33 The Defendants made clear that they did not want to waive the
defense of insufficient service of process pursuant to Rule 12(h). Rather, Defendants sought to
preserve this motion and its defense by asserting it contemporaneous with the Motion to Transfer
Venue. Judge Brady ultimately ruled favorably to the Defendants on the Motion to Transfer
Venue and, in regard to the Rule 12(b)(5) motion, stated: “ Accordingly, the court will not rule
on this motion, as a ruling is premature” and “[t]his Court will not rule on defendant’s Motion
(Doc. 3) to Dismiss for Insufficient Service of Process pursuant to FRCP 12(b)(5), as it is
33
R. Doc. 3.
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premature.”34 Judge Brady likewise recognized that the Defendants had filed the Rule 12(b)(5)
“in order to preserve the defense pursuant to Federal Rule of Civil Procedure 12(h).”35
Subsequently, Defendants filed a Motion to Stay these proceedings36 and the
aforementioned Rule 12(b)(5) motion is still pending as it has not been reset for hearing,
dismissed or otherwise disposed of to date. Further, Defendants Marie Elise Prieto and the
Office of the Clerk of Court of St. Tammany filed a Motion for a More Definite Statement under
Rule 12(e) and a Motion to Strike under Rule 12(f).37
The jurisprudence uniformly states that timely serving and filing a Motion to Dismiss
under Rule 12(b) precludes the entry of default. Langdon v. Google, Inc., 474 F. Supp. 2d 622
(D. Del. 2007) (citing Francis v. Joint Force Headquarters Nat’l Guard, 2006 WL 2711459
(D.N.J. Sept. 19, 2006)). Filing a Motion to Dismiss pursuant to Rule 12(b) is clearly a response
to a lawsuit and a reflection that the filing Defendants are “otherwise defending” the lawsuit,
precluding default under Rule 55. Langdon at 628. In Wickstrom v. Ebert, 101 F.R.D. 26 (E.D.
Wis. 1984), the Court noted that although certain defendants had not filed answers to plaintiff’s
complaint, the defendants had “defended” by filing Motions to Dismiss and a default could not
be entered. The Court in Wickstrom specifically stated:
Pursuant to Rule 55 of the Federal Rules of Civil Procedure, default judgment is

appropriate when “a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by these rules…” Fed.
R. Civ. P. 55 (a) (emphasis supplied). The words “otherwise defend” presume the
absence of some affirmative action on the part of a defendant which would
operate as a bar to the satisfaction of the moving party’s claim. George & Anna
Portes Cancer Prevention Center, Inc. v. Inexco Oil Company, 76 F.R.D. 216,
217 (W.D. La. 1977); see also Bryant v. City of Marianna, 532 F.Supp. 133, 137
(N.D. Fla. 1982) (default is appropriate where defendants have not taken a single
action in lawsuit).
34
R. Doc. 14 (emphasis added).
35
Id.
36
R. Doc. 29.
37
R. Doc. 30.
17-30519.3452
In this context, it is generally held that the interposition of various challenges to

matters such as service, venue and the sufficiency of the complaint preclude a
default even if pursued in the absence of a responsive pleading. 10 Wright and
Miller, FEDERAL PRACTICE AND PROCEDURE, § 2682 at 409-410 (2d ed. 1983); see
also Olson v. International Supply Company, 22 F.R.D. 221, 223, 17 Alaska 643
(D. Alaska 1958) (words “otherwise defend” refer, among other things, to attacks
on service or motions to dismiss or for particulars, which serve to prevent default
without presently pleading to the merits). It is undisputed that motions
challenging a complaint for failure to state a claim following which relief can be
granted, falls squarely within the ambit of the phrase “otherwise defend”.
Rudnicki v. Sullivan, 189 F.Supp. 714, 715 (D. Mass. 1960); Bass v. Hoagland,
172 F.2d 205, 210 (5th Cir.), cert. denied, 338 U.S. 816, 70 S. Ct. 57, 94 L. Ed.
494 (1949).
Wickstrom at pp. 32-33.
In Rogers v. Barnhart, 365 F.Supp. 2d 803 (S.D. Texas, 2004), the court stated:
In this case, the Commissioner has “otherwise” defended the case by filing a
Motion to Dismiss for Lack of Jurisdiction. See Sun Bank v. Ocala v. Pelican
Homestead and Sav. Ass’n., 874 F.2d 274, 277 (5th Cir. 1989) (“The filing of a
Motion to Dismiss is normally considered to constitute an appearance”).
In Ojelade v. Unity Healthcare, Inc., 962 F. Supp. 258 (D.D.C. 2013), the Court held that
a Motion to Dismiss brought pursuant to Rule 12(b)(5) was a response to the plaintiff’s complaint
which mandated denial of a Motion for Default Judgment.
It is respectfully submitted that by filing a Motion to Dismiss pursuant to Rule 12(b)(5),
along with defendants Prieto and the St. Tammany Parish Clerk’s Office’s Motion for a More
Definite Statement under Rule 12(e) and a Motion to Strike under Rule 12(f), all defendants have
manifested a clear intention to defend against Mr. Gates’ claims as set forth in Gates II. The
Defendants are “otherwise defending” this lawsuit.
III. SETTING ASIDE THE RULE 12 MOTIONS AND OTHER RESPONSIVE

PLEADINGS, THE DEFENDANTS’ PENDING MOTION TO STAY
PROCEEDINGS (R. DOC. 29) EVIDENCES THAT THE DEFENDANTS ARE
VIGOROUSLY DEFENDING THEIR POSITION IN THIS LITIGATION
10
17-30519.3453
In Cincinnati Bell Telephone Company v. Allnet Communication Services, Inc., supra, the
local telephone carrier (“Bell”) commenced an action in State court. Allnet moved for a change
of venue, “claiming that the case should be transferred to the Federal District Court in
Washington, D.C., or in the alternative that the action should be stayed until the FCC has
resolved Allnet’s complaint about Cincinnati Bell’s access charges during 1987-1988.”
Cincinnati Bell Telephone Company at 219 (emphasis added). Despite the pleadings of Allnet,
Bell moved the Court for a default judgment. The Court rejected such a motion, stating:
In the matter before this Court, Allnet has defended itself in this suit. Allnet
removed this matter to Federal court. Furthermore, Allnet has vigorously
defended its position in this litigation, by arguing that this case should be
transferred or stayed. Therefore, although Allnet has not filed an answer, we
conclude that a default judgment is inappropriate because Allnet has “…otherwise
defend[ed]…” itself under the rules. See id.
Cincinnati Bell Telephone Company at 221 (citing Charles Allen Wright, Arthur R. Miller and
Mary K. Kane, 10 FEDERAL PRACTICE AND PROCEDURE, §§ 2681-2701 (2d Ed. 1983)).
In Mitsubishi Shoji Kaisha Limited v. MS Galini, 323 F.Supp. 79 (S.D. Tex. 1971), the
defendant filed a Motion for a Stay pending arbitration along with other motions after the
plaintiff moved for a default. Mitsubishi Shoji Kaisha Limited at 84. The trial court stated: “In
that circumstance, the Motion for Default Judgment will be denied.” Id. Certainly the Motion
for Stay was viewed as a demonstration of the defendant’s intent to defend the case, even though
it was filed after the filing of the default judgment.
Finally, in HC Dalmoreproduct v. Kogan, 145 F.3d 1338 (9th Cir. 1998) (unpublished),
the court noted that a motion for stay pending arbitration, although not on the list of defenses that
may be made by Rule 12(b) motion, should be treated the same as a Rule 12(b) motion for
purposes of delaying the need to file an answer. Id. at *1 (citing Wright & Miller § 1360, pp.
432, 439-441 (motion for a stay pending arbitration may be treated as a Rule 12(b) motion);
11
17-30519.3454
Buckley v. Gallo Sales Co., 949 F.Supp. 737, 739-40 (N.D. Cal. 1996) (treating a motion to stay
pending arbitration as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
In the present case, certain defendants have filed a Motion to Stay in Gates II just as
Gates I is currently stayed as both Gates I and Gates II arise out of the same operative facts. The
Defendants respectfully submit that they are vigorously defending their position in this litigation
by arguing that the case should be stayed. As such, a default judgment is inappropriate.
IV. DEFENDANTS HAVE NOT BEEN TOTALLY UNRESPONSIVE TO THE

COMPLAINT IN GATES II AND ARE CERTAINLY INDICATING THAT THEY
INTEND TO OFFER A DEFENSE IN THE MATTER
For a default judgment, a defendant must be considered a “totally unresponsive” party
and its default plainly willful, reflected by its failure to respond to the summons and complaint,
the entry of default or the motion for default judgment. International Painters and Allied Trades
Indus. Pension Fund v. Auxier Drywall, LLC, 531 F.Supp. 2d 56 (D. D.C. 2008) (citing
Gutierrez v. Burg Contracting, Inc., 2000 WL 331721 at *1 (D. D.C. Mar. 20, 2000)); see also
Jackson v. Beech, 636 F.2d 831, 836 (D. D.C. Cir. 1980), in which the court had held that the
default judgment usually is only available when the adversary process has been brought to a halt
because of an essentially unresponsive party. Jackson 636 F.2d at 836. Default judgments
entered pursuant to Rule 55 are intended to protect plaintiffs whose adversaries “are clearly
unresponsive.” Niemic v. Maloney, 409 F.Supp. 2d 32, 37 (D. Mass. 2005); citing Ortiz-
Gonzalez v. Fonovisa, 277 F.3d 59, 63 (1st Cir. 2002)(citation omitted).
Further, Rule 55 contemplates the entry of a default judgment if the defendant fails to
“appear.” Courts have construed the term in a liberal fashion in order to support the policy
against unnecessary defaults. Trust Co. Bank v. Tingen-Millford Drapery Co. Inc., 119 F.R.D.
21 (E.D. N.C. 1987). In Trust Co. Bank, the court found that the defendant had appeared in the
12
17-30519.3455
case by implication in that defendant’s attorney had a telephone call with plaintiff’s attorney in
which he indicated that the defendants intended to defend the lawsuit. The court noted that an
appearance can arise as a result of an objective manifestation of intent on the part of the
defendant or counsel to defend the action. Trust Co. Bank at 22 (other citations omitted). The
Court concluded that the defense attorney had every intention of defending the case.
Admittedly, the Court is empowered to enter a default judgment against a defendant who
fails to defend its case. Kegel v. Key West and Caribbean Trading Co., 627 F.2d 372, 375 (D.C.
Cir. 1980). Here, however, the Defendants have clearly manifested an intent to defend the case
and a default judgment pursuant to Rule 55(b)(2) is totally unwarranted. In the present case, the
Defendants have filed a Motion to Transfer Venue, Motions to Dismiss Pursuant to Rule 12, a
Motion to Transfer within the Eastern District and a Motion to Stay, all evidencing a vigorous
intent to defend the case.
V. PLAINTIFF’S MOTION IS PROCEDURALLY IMPROPER AND PREMATURE
As directed in the Notice of Deficient Document entered on July 14, 2014, Gates was
required to file a Motion for Entry of Default prior to seeking a default judgment against
Defendants. While the pleading’s caption includes the phrase “Motion for Entry of Default,” the
very first sentence of his motion and supporting memorandum make clear that Gates
impermissibly seeks to skip the requirement of an entry of default and, instead, “Mr. Gates and
counsel move the Court to enter judgments in default.”38 The Clerk afforded Gates the
opportunity to remedy this procedural misstep and this opportunity was ignored.
A Judgment of Default may be taken only after the Clerk of Court first enters the party’s
default. Onyiah v. St. Cloud State University, 655 F. Supp. 2d 948 (D. Minn. 2006) (citing Fed
R. Civ. P. 55(b); Johnson v. Dayton Electric Manufacturing Co., 140 F.3d 781, 783 (8th Cir.
38
R. Doc. 52, p. 1, R. Doc. 52-1, p. 1.
13
17-30519.3456
1998)); Christenson Media Grp., Inc. v. Lang Indus., Inc., 782 F. Supp. 2d 1213 (D. Kan. 2011).
In Structural Concrete Products, LLC v. Clarendon America Ins. Co., 244 F.R.D. 317 (E.D. Va.
2007), the Court stated:
Before the plaintiff can move for default judgment the Clerk or the Court must
enter default. Eagle Fire, Inc. v. Eagle Integrated Controls, Inc., 2006 WL
1720681, at *5 (E.D. Va. June 20, 2006); 10A Charles Allen Wright and Arthur
R. Miller, FEDERAL PRACTICE AND PROCEDURE § 2682 (3d ed. 2007) (“Prior to
obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there
must be an Entry of default as provided by Rule 55(a)”).
Structural Concrete Products, 244 F.R.D. at 328.
Likewise, in U.S. v. Manriques, 2013 WL 5592191 (M.D. N.C. 2013), the court reiterated
the Rule in a clear expression of Rule 55 that, before attempting to obtain a default judgment
under Rule 55(b), there must be an entry of default by the Clerk of Court as provided by Rule
55(a). Id. at *2. When petitioner does not first seek entry of a default with the Clerk of Court, it
is procedurally improper for that party to move the Court for the entry of a default judgment. Id.
(other citations omitted).
In the present case, Gates has not obtained an entry of default from the Clerk of Court. It
is procedurally improper for Gates to move this Court for entry of default judgment under Rule
55(b). For this reason alone, Gates’ motion should be denied by the Court.
VI. BY PARTICIPATING IN THE PROSECUTION OF THIS MATTER WITH

“LITIGATION AS USUAL” CONDUCT, GATES HAS WAIVED ANY RIGHT
TO SEEK A DEFAULT JUDGMENT
Gates II was filed in the United States District Court, Middle District of Louisiana on
August 5, 2013. Before any summons was requested by Gates, defendants moved to change the
venue of Gates II from the Middle District to the Eastern District pursuant to 28 U.S.C. § 1404
and, alternatively moved the Court to dismiss the matter for insufficient service of process
14
17-30519.3457
pursuant to Federal Rule of Civil Procedure 12(b)(5).39 On October 4, 2013, Gates sought an
extension of time to respond to the motion to change venue to which, out of professional
courtesy, defendants consented.40 On October 8, 2013, Gates filed an opposition to the
defendants’ motions to change venue and dismiss.41
On November 15, 2013, Judge Brady of the Middle District granted the Motion to
Change Venue and deferred ruling on the Rule 12(b)(5) motion.42 The case was transferred to
the Eastern District of Louisiana on November 15, 2013.43 Defendants filed a Motion to
Transfer the case from Judge Vance to this Honorable Court44 (where Gates I was filed and is
presently stayed) and a Motion to Stay in Gates II for essentially the same reasons that Gates I
has been and is presently stayed.45
The St. Tammany Parish Clerk of Court also filed a Motion for More Definite Statement
and Motion to Strike.46 Gates, again through the professional courtesy granted by defense
counsel, obtained another extension of time to respond to these two defense motions.47 Setting
forth health issues as the basis for his request, Gates’ counsel submitted an order requesting that
he be granted until June 18, 2014 to file responses to these motions.48 Judge Vance entered an
order extending the submission date on Record Documents 25, 29 and 30 to February 26, 2014,
noting “[t]his will provide counsel with ample time to enroll additional counsel and respond to
defendants’ motions.”49
39
R. Doc. 3.
40
R. Doc. 6.
41
R. Doc. 8.
42
R. Doc. 14.
43
R. Docs. 15 and 16.
44
R. Doc. 25.
45
R. Doc. 29.
46
R. Doc. 30.
47
R. Doc. 31.
48
R. Doc. 32.
49
R. Doc. 33.
15
17-30519.3458
On February 18, 2014, Gates’ counsel yet again requested a continuance of the hearings
on the various motions.50 Judge Vance granted Gates’ counsel’s motion to continue the
submission dates, this time to April 9, 2014.51 On April 1, 2014, Gates filed a “no position”
response to the Motion to Transfer to this Court52 and filed oppositions to the motion for more
definite statement, motion to strike53 and motion to stay these proceedings.54 The defendants
requested leave to file a reply in support of the motion to stay. 55 Ultimately, Judge Vance
transferred Gates II to this Court, recognizing that Gates I and Gates II arose out of the same
operative facts.56
This Honorable Court granted defendants’ motion for leave to file their reply in support
of the Motion for Stay on April 22, 2014.57 Thus, the Motion for Stay had been fully briefed and
was awaiting a decision of the Court as of April 22, 2014. Thereafter, Gates counsel attempted
to take default judgments on July 11, 2014.58 At no time prior to this date did his counsel suggest
that any additional responsive pleading was necessary (which these defendants would
vehemently dispute) and by Gates’ counsel’s repeated requests for continuances and in
contesting the various defense motions by filing oppositions into the record, Gates has engaged
in an eleven month silence and litigation as usual conduct.
In FOC Financial Ltd. Partnership v. National City Commercial Capital Corporation,
612 F.Supp. 2d 1080 (D. Ariz. 2009), a Motion to Dismiss had been filed and subsequently
denied by the Court and defendant failed to timely file an answer. The Court stated:
50
R. Doc. 34.
51
R. Doc. 36.
52
R. Doc. 40.
53
R. Doc. 41.
54
R. Doc. 42.
55
R. Doc. 44.
56
R. Doc. 46.
57
R. Doc. 47.
58
R. Docs. 49, 50.
16
17-30519.3459
It is also noted that defendant’s failure to timely answer was a technical error with
little bearing on the disposition of the case. Defendant promptly responded to
service of process by filing a notice of removal and motion to dismiss and the
failure to answer was not noticed by both the Court and the plaintiff’s competent
counsel for five months during which time the proceedings continued as if an
answer had been filed (Docs. 1, 6, 28). The Court agrees with defendant that
plaintiff’s five-month silence and litigation-as-usual conduct effectively waived
any right to entry of default judgment. See e.g., Ciccarello v. Joseph Schlitz
Brewing Co., 1 F.R.D. 491, 493 (S.D. W.Va. 1940) (plaintiff’s conduct may
constitute “waiver of any right to a default judgment”); La. Farmer’s Protective
Union v. Great Atl. & Pac. Tea Co. of Am., Inc., 83 F.Supp. 646, 656 (E.D. Ark.
1949) (plaintiff’s delay in seeking default constituted an effective waiver).
FOC Financial Ltd. Partnership, et al., at 1084-85.
In Ciccarello, supra, the court held that plaintiff’s motion for entry of a default judgment
could not be sustained where plaintiffs consented to several continuances and other proceedings.
The Court found plaintiff’s actions amounted to a “waiver” of any right to a default judgment.
Ciccarello at 493.
Likewise, in the present case, even assuming Gates’ counsel has some justifiable basis for
seeking a default (which he does not), Gates’ silence in fully engaging in the litigation process
by filing various pleadings, including motions to continue and opposition memoranda to the
Defendants’ motions, should constitute a waiver of any right whatsoever to a default judgment.
VII. GATES HAS NOT FILED RETURNS OF SERVICE AS TO SEVERAL

DEFENDANTS AND AS SUCH ANY MOTION FOR DEFAULT SHOULD BE
DENIED
Gates has not filed returns on summonses for the following defendants:
1. Richard A. Swartz;
2. Marie-Elise (Malise) Prieto;
3. Office of the Clerk of Court, 22nd JDC for the Parish of St. Tammany;
4. Nicholas Noriea Jr.;
5. Ronnie Gracianette;
6. Walter Reed;
7. Office of the District Attorney for St. Tammany Parish;
8. Sheriff Rodney “Jack” Strain;
9. STP Captain Sherwood.
17
17-30519.3460
Gates’ motion for default should be denied as to each of these defendants because Gates
has failed to file a return of service of summons as to these defendants. Zeviar v. Local No.
2747, Airline, Aerospace and Allied Employees, IBT, 733 F.2d 556, 558 (8th Cir. 1984); Brown v.
Florida, 2013 WL 869534 (M.D. Fl. 2013). Where there is no service return of record, there is
no evidence of service. Sisk v. U.S., 2007 WL 1963000 (W.D. La. 2007).
VIII. APPLICATION OF A MULTI-FACTORAL TEST REVEALS THAT GATES’

MOTION FOR DEFAULT JUDGMENT SHOULD BE DENIED
Courts, including the Eastern District of Louisiana, have implemented a multi-factor
analysis to determine whether the entry of a default judgment is warranted. Eitel v. McCool, 782
F.2d 1470, 1471-72 (9th Cir. 1986); DameWare Development LLC v. Northern Software, S.A.,
2003 WL 1341209 (E.D. La. 2003).
(1) Potential prejudice to Gates.
There is no prejudice to Gates. If Gates II is stayed as Gates I is presently, both awaiting
the outcome of Gates’ criminal trial (which is fundamental to the disposition of Gates I and II),
then all parties will wait to proceed until after the criminal trial. If the stay is denied, Defendants
will move forward with defending the case and ostensibly, motion practice and possibly
discovery could be initiated. Gates misrepresents the proceedings by suggesting that Defendants
have “acted to continue…these matters” and filed dilatory motions. 59 To the contrary, a review
of the docket sheet reflects that Gates has no less than three times sought extensions of time to
respond to the meritorious pleadings of these Defendants. Recognizing Gates II is wholly a
continuation of allegations made in Gates I, Judge Brady of the Middle District and Judge Vance
of the Eastern District both ordered venue transfer and transfer to this division respectively.60
59
R. Doc. 52, p.1, R. Doc. 52-1, p. 4.
60
R. Docs. 15, 46.
18
17-30519.3461
The motions to transfer venue and to transfer divisions of court thus have already been
determined to have merit and any time allocated to such motions has not been prejudicial to
Gates.
Further, Gates cannot claim prejudice in having to respond to the Defendants’ motion for
stay. Gates I is stayed and the reasons to stay Gates II are essentially the same.61 Further,
Defendants also have Rule 12 motions pending before the Court that, based on the record and
pleadings, also have merit.62 It is respectfully submitted that these “otherwise defending”
motions have merit and if there is any prejudice it is to the Defendants if these motions are not
decided before allowing the case to move forward. Because the ongoing state court criminal
proceeding complained of in both Gates I and II necessarily has implications for the §1983
allegations as set forth in Gates I and II, Defendants have filed a joint motion to stay
proceedings, as a conviction in the state court criminal proceeding could render moot both Gates
I and II as Heck v. Humphrey, 512 US 477, 114 S. Ct. 2364 (1994), would potentially bar
plaintiff’s claims against these Defendants. Awaiting a decision on the motion to stay these
proceedings does not act to prejudice Gates. Heck provides a compelling basis for the motion to
stay and the FRCP 12 motions are meritorious as well. There simply is no prejudice to the
plaintiff. This factor favors defendants.
(2) Gates’ claims lack merit.
As previously stated, under Heck v. Humphrey, if Gates is convicted in state court of
resisting arrest, both Gates I and II could potentially be dismissed. Gates II was filed on August
61
See Memorandum in Support of Motion for Stay (R. Doc. 29-1) and Reply to Plaintiff’s Opposition to Motion to
Stay (R. Doc. 48) which set forth these arguments.
62
Defendant St. Tammany Parish Sheriff, Rodney “Jack” Strain in his official and individual capacity as Sheriff, St.
Tammany Parish Sheriff Captain Sherwood and St. Paul Insurance Company (improperly named as “Travelers-St.
Paul Insurance Companies”) have not reset the FRCP 12(b)(5) motion for hearing as the motion for stay (R. Doc.
29) has been filed and is pending before the Court.
19
17-30519.3462
5, 2013, just one week before Gates’ criminal resisting arrest and DUI trial was set to begin
before Judge Swartz on August 12, 2013 in the 22nd Judicial District Court for the Parish of St.
Tammany. In an obvious attempt to derail the criminal proceeding, which had already been the
subject of numerous delays and continuances, Mr. Abel filed Gates II. The complaint is full of
scorched earth, highly personal attacks on the Defendants and its filing alone, naming Judge
Swartz as a defendant, led to the entire bench of the 22nd Judicial District Court being recused
and the criminal case yet again being continued. Retired Louisiana State Fifth Circuit Court of
Appeal Judge Walter Rothschild, took over the adjudication of the criminal matter at the
direction of the Louisiana Supreme Court. Gates has obtained numerous continuances and
remains a fugitive from justice refusing to participate in the criminal process, despite having
recused every single judge in the 22nd Judicial District Court.63
Gates’ counsel suggests that the facts set forth in Gates II have nothing to do with the
facts underlying the original civil rights matter also assigned to this Court (Gates I).64 A side-by-
side comparison of the original §1983 complaint (Gates I) with the present matter reflects that it
all arises out of the same operative facts. In Gates I, plaintiff alleged unlawful arrest and
charges, asserts that the sheriff and district attorney engaged in malicious prosecution and abuse
of process and the defense conspired in their actions.
In Gates II, plaintiff alleges the District Attorney of St. Tammany Parish, the St.
Tammany Parish Clerk of Court, and the entire bench in St. Tammany Parish have conspired
against him, committing a “fraud upon the Court.” Plaintiff alleges that the named Defendants
committed crimes against him in the pursuit of the criminal prosecution. In both Gates I and
Gates II, plaintiff seeks “injunctive relief to prevent bad faith prosecution.” In both complaints,
63
See Minute Entry attached as Exhibit A.
64
See R. Doc. 52-1, p. 4.
20
17-30519.3463
plaintiff asserts that evidence has been destroyed, altered or fabricated. The duplication in the
lawsuits is evident in the enumerated §1983 violations, including:

4. A §1983 count alleging liability of the District Attorney and his office. (In Gates
II, Gates joins the Clerk of Court in this count); and
5. Both Gates I and II set out due process and equal protection violations.
Although new facts are alleged in Gates II due to the passage of time since the first filing
in 2007 of Gates II, the factual predicate for both complaints is essentially the same. The
complaint filed in Gates II is simply an extension of time to the present of complaints and
allegations pertaining to the ongoing criminal prosecution. It becomes obvious that Gates II is a
further effort to derail the criminal prosecution which outcome all counsel recognize could have
a significant impact on Gates I and II.
Apart from vague references to “treason, fraud and Hobbs Act violations,”65 plaintiff
cites no compelling facts or legal authority to support Gates II. Although it is the same criminal
prosecution for which counsel for Gates told the Court that he was opting not to pursue a Hobbs
Act claim, counsel for Gates continues to make vague references to the Hobbs Act in an effort to
provide some seemingly convincing basis for Gates II when, in fact, none exists. 66
In opposition to the motion to stay, plaintiff attempted to argue that it is the prosecution
of Gates that should be stayed. Like the bulk of the pleadings that Gates has filed thus far, this
argument was also already made to this Honorable Court and rejected.67 This Court has
previously given careful consideration to whether there was any basis for the Federal court to
65
R. Doc. 52-1, p. 4.
66
In Gates I, Gates’ counsel told the Court on the record that Gates is not alleging any claims for violations of the
Hobbs Act whatsoever (See R. Doc. 81, Gates I).
67
See this Court’s Order and Reasons to Deny Plaintiff’s Motion to Re-open 42 USC §1983 Action and Stay
Unconstitutional Prosecution in the 22nd Judicial District Court for the Parish of St. Tammany (R. Doc. 121, p. 9 in
Gates I).
21
17-30519.3464
stay the plaintiff’s ongoing criminal prosecution. In this Court’s Order and Reasons, this Court
concluded that “the issues raised by plaintiff surrounding the arrest and alleged manufacturing of
evidence can be addressed in the context of a defense to the criminal charges at trial on the
merits.”68
favor of an ongoing state proceeding, if the relief sought in federal court would interfere with a
state proceeding. See Younger v. Harris, 401 U.S. 37 (1971). A federal court must abstain from
hearing a claim under Younger abstention where three conditions are present: (1) pending states
judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to raise federal claims. See Middlesex County
Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 432 (1982). When a person is the
target of an ongoing state action involving important state matters, that person cannot interfere
with the pending state action by maintaining a parallel federal action involving claims that could
have been raised in the state case. If the state defendant files such a case, Younger requires the
federal court to defer to the state proceedings. See Borkowski v. Fremont Inv. And Loan of
Anaheim, Cal., 368 F. Supp. 2d 822 (N.D. Ohio 2005).
This Court has already rejected any notion that a stay of the state proceedings should be
granted and that any of the issues raised by Gates can be addressed in the context of a defense to
the criminal charges at the trial on the merits. Plaintiff offers nothing with regard to alleged
claims of treason and fraud other than hyperbole and speculation. The root of the problem is that
Gates simply does not want to face a criminal trial realizing the potential implications for Gates
I. Gates’ claim simply lacks merit.
(3) Gates’ complaint is wholly insufficient and not well-supported by the record.
68
Id.
22
17-30519.3465
Gates II is an unmitigated diatribe seeking to disqualify Judge Swartz (which was
accomplished), bringing personal attacks against the attorney for the District Attorney’s office
(Kathryn Landry) as well as claims against the Louisiana Attorney General, Buddy Caldwell in
addition to the defendants already named in Gates I. Forty pages of hollow, unsupported
allegations do not simply make the complaint well-supported by the record. Further, adding the
Clerk of Court of St. Tammany Parish as a defendant is simply without merit. The complaint is
vague and ambiguous throughout and impracticable to respond to in that in numerous instances it
lumps all the defendants together without specifying which defendant allegedly engaged in the
acts complained of and which defendant is allegedly liable for such acts.69
The complaint also fails to provide specific facts regarding when the acts were allegedly
committed, which person committed the alleged acts and which acts support the allegations. A
review of the Clerk of Court’s Memorandum in Support of its Rule 12 motion for a more definite
statement and to strike is reflective of the numerous deficiencies with the complaint itself.70 The
claims of fraud and treason are truly scandalous as set forth by the Clerk of Court. The
complaint simply lacks merit.
(4) Gates is vague and ambiguous with regard to damages as well.
The complaint in Gates II states that “Gates avers all damages arising from these
violations of his rights under the United States Constitution and that of the State of Louisiana.”71
That said, based on prior knowledge and the fact that Gates allegedly suffered a facial fracture
with damage to his right eye, it is fully anticipated that Gates will seek millions of dollars in this
matter. It is well-stated that “default judgment is disfavored where the sum of money at stake is
too large or unreasonable in light of defendant’s actions.” Trindade v. Reach Media Group,
69
R. Doc. 30-1, p. 2.
70
R. Doc. 30-1.
71
R. Doc. 1, p. 38.
23
17-30519.3466
LLC, 2014 WL 3572132 (N.D. Cal. 2014), citing Truong Giang Corp. v. Twinstar Tea Corp.,
2007 WL 1545173 at *12 (N.D. Cal. 2007). This factor weighs in favor of denying plaintiff’s
motion for default.
(5) Material facts are in dispute and there is no neglect or bad faith or the need to
analyze excusable neglect.
Defendants hotly contest all facts as alleged in Gates II. Defendants’ allegations are
meritorious if they contain “even a hint of a suggestion” which proven at trial, would constitute a
complete defense. Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372 (D.C.C.
1980) (other citations omitted). Certainly, defense counsel contest the forty pages worth of
allegations set forth in Gates II.
Defendants have fully participated in the process. And while the tactical decisions cited
by plaintiff may in fact be indicative of Defendants’ litigation strategy, this strategy is not, on the
face of the record, one of improper delay but rather of asserting a justifiable stay in Gates II
when a stay in Gates I has already been granted. See FOC Financial Ltd. Partnership v.
National City Commercial Capital Corporation, supra, at 1083. The suggestion that such
motions as filed by the Defendants are “dilatory” is wholly without merit. The Defendants have
not avoided participating in the proceedings. The preference to adjudicate cases, especially here
where Defendants have vigorously “otherwise defended” the action would warrant the denial of
plaintiff’s motion. This factor weighs in favor of Defendants.
CONCLUSION
For the reasons discussed above, Plaintiff is entitled neither to an entry of default nor a
default judgment. Defendants have actively defended this lawsuit. Any delay has been due to
Plaintiff and his counsel. Plaintiff’s motion must be denied.
24
17-30519.3467
s/ Mark E. Hanna DAVID G. SANDERS (#11696)

MARK E. HANNA (#19336) DOUGLAS SWENSON (#28773)
TREVOR M.CUTAIAR (#33082) ASSITANT ATTORNEYS GENERAL
BRACKETT, L.L.C. LOUISIANA DEPARTMENT OF JUSTICE
701 Poydras Street, Suite 4250 Litigation Division
New Orleans, LA 70139 P.O. Box 94005
Telephone: (504) 595-3000 Baton Rouge, Louisiana 70804-9005
E-mail:mhanna@mblb.com Facsimile: (225) 326-6192
Counsel for Defendants, St. Tammany Parish Counsel for Defendant Louisiana Attorney
Sheriff, Rodney “Jack” Strain in his official General James D. “Buddy” Caldwell and the
and individual capacity as Sheriff, St. office of the Louisiana Attorney General and
Tammany Parish Sheriff Captain Sherwood, Honorable Judge Richard A. Swartz
and Travelers – St. Paul Insurance Companies

P.O. Box 82659
Telephone: (225) 766-0023
Counsel for Defendants, Kathryn Landry,

District Attorney Walter P. Reed ADA Ronnie
Gracianette, and ADA Nicholas F. Noriea
record via the Court’s CM/ECF system, this 29th day of July, 2014. I further certify that there are
no non-CM/ECF parties.
s/ Mark E. Hanna
25
17-30519.3468
17-30519.3469


VERSUS *
* CASE NO. 2:13-cv-06425
*
*
************************* JURY TRIAL
OPPOSITION TO DEFENDANT JUDGE RICHARD A. SWARTZ’S

MOTION TO STAY OR IN THE ALTERNATIVE MOTION TO DISMISS
Defendant Judge Richard A. Swartz is named in his individual capacity. Judge Swartz is also
named in his official capacity as an officer of the courts obligated by oath and constitutional
authority to uphold the Constitution of the United States of America and that of Louisiana. Judge
Swartz met with and was complicit in some of these actions undertaken against Mr. Gates by his co-
defendants.
I. Defendant Judge Richard A. Swartz has committed acts in his individual capacity outside the
parameters of the court and his judicial capacity.
II. Defendant Judge Richard A. Swartz has committed acts of fraud in his judicial capacity
which of themselves are subject to scrutiny and nullification as set forth by the United States
Supreme Court in its jurisprudence.
III. Defendant Judge Richard A. Swartz has committed acts which constitute treason as
articulated by the United States Supreme Court and its underlying courts. While treason does
Page 1 of 18
17-30519.3470
not give rise to civil actions of itself, the acts which constitute treason do and as such make
null and void any actions made by a federal or state court judge acting in his official capacity.
Defendant Judge Richard Swartz claims that this action should be dismissed as (1) the federal
courts lack subject jurisdiction under Fed. R. Civ. P. 12(b)(1) and should be dismissed as the claims
lack legal sufficiency under Fed. R. Civ. P. 12(b)(6). Judge Swartz claims he is entitled to absolute
immunity. He avers that the allegations as to treason are not relevant as treason is a criminal act
which does not give rise to civil remedies.
Contrary to defendant Swartz’s contentions the courts have held that “The defendant does
not enjoy any modicum of judicial immunity for his non-judicial and judicial civil treasonous acts”.
Defendant Swartz knowingly, voluntarily and methodically made decisions to ignore the oath of
office and disregard the Constitutional principles he is mandated to uphold in order to insure each
litigant who comes before him is treated with the impartiality the Constitution demands. Otherwise,
what would it matter for a judge and any other public official to take an oath of office to uphold the
constitution if his failure to uphold the constitution as in the Shane Gates case, had no consequences.
These defendants acts are not isolated; rather his manner, method and mode including the
ex parte communications with Walter Reed and others are outside the jurisdiction of the court where
he holds office. Defendant Swartz’s ex parte contacts allowed him to take the following actions
once back in the court and on the bench.
(1) Defendant Swartz from his ex parte communications with the Sheriff and the District
Attorney’s office, was able to announce from the bench what the sheriff’s deputies
were going to testify about at the misdemeanor and how their testimony was going
Page 2 of 18
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to establish probable cause for the stop of the Gates’s vehicle.
(2) Without the district attorney filing any opposition, defendants Judge Swartz quashed
the request to subpoenas the felony trial jurors to question them about what they
already decided as to probable cause for the stop, when they found Mr. Gates NOT
GUILTY of aggravated flight and the lesser charge of simple flight on 27 July 2012.
(3) Defendant Judge Swartz did nothing whatsoever when ADA Nick Noriea admitted
altering the dispatch tape but instead allowed Mr. Noriea to present
the altered evidence to the jury, over counsel’s objections.
(4) Defendant Judge Swartz did nothing whatsoever when it was brought to his attention
that Walter Reed’s cousin Clerk of Court Malise Prieto changed the public record to
falsely state that Mr. Gates had been arrested for Aggravated Flight, so that Mr. Reed
could force Mr. Gates to a felony trial and use the information in appellate pleadings.
Judge Swartz did nothing when he learned of these criminal acts by the clerk of court
and district attorney.
(5) Defendant Judge Swartz did nothing whatsoever in response to Clerk of Court Malise
Prieto’s admission that the record was altered to falsely state that Mr. Gates had been
arrested for Aggravated Flight. Prieto altered these records to force Mr. Gates to trial.
(6) Defendant Judge Swartz refused to allow Mr. Gates and counsel to hear the audio
tape from the court reporter when it was discovered that the transcribed copy of
Nathan Miller’s testimony was not correctly transcribed. Judge Swartz refused to
acknowledge that defendant Mr. Gates had a right to record of his own proceedings.
The following day Judge Swartz stated [falsely] that he listed to the audio tape and
Page 3 of 18
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there was no mistake in the transcript. Four eyewitnesses contested his version and
confirmed that the transcript did not contain damning evidence by Nathan Miller.
(7) Defendant Judge Swartz did nothing whatsoever when it was brought to his attention
that the letter allegedly written by Nathan Miller was forged and introduced into
evidence by the sheriff’s attorneys. Miller stated under oath that he did notwrite,
know of, had even seen, or authorized the letter.
(8) Defendant Judge Swartz has had before him motions pertaining to Mr. Gates’s
medical malpractice claims. For almost three years he has refused to address those
motions and thereby prevented Mr. Gates from taking an appeal.
(9) Defendant Judge Swartz has acted in concert with Walter Reed and other co-
defendants to continue all matters and deny Mr. Gates the right to discovery in an ex
parte conspiracy to protect the insurance company clients from liability and expose
the fraud that was committed with Mr. Gates’s medical records.
(10) Defendant Judge Swartz allowed the district attorney to introduce fabricated medical
records which were not authenticated after Judge Swartz had expressly ordered the
district attorney to call the Heart Hospital’s custodian of records to authenticate the
records. When the district attorney did not call the custodian defendant Judge Swartz
allowed them to introduce the fabricated medical records and present them to the jury
anyway. The doctor and the nurse testified that they did not know where such
medical records came from.
(11) Defendant Judge Swartz did not order the sheriff and district attorney to locate and
produce the medical records which were allegedly in the vault. Dr. Bruce Kerry
Page 4 of 18
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testified that he did not even finish the medical records until January 2007, but the
district attorney and sheriff said they had the same records since November 2006.
(12) Under oath, defendant Judge Swartz and co-defendants will have to admit to ex parte
communications as Judge Badeaux has already admitted to when he was presiding
over this and other cases.
Furthermore, defendant Judge Richard Swartz had stated to persons outside the court that he
would have to find Mr. Gates guilty in the misdemeanor trial, otherwise the damages for the
permanent injuries inflicted on Mr. Gates—including the violations of his constitutional rights
—which the defendants could be found liable, would be substantial. Defendant Judge Swartz
presided over three cases involving Mr. Gates, the purpose of which was to have all actions including
the medical malpractice action, under the control of Judge Swartz, contrary to Louisiana law.
Defendant Judge Swartz without the input or opposition from any of the defendants
repeatedly denied requests made by Mr. Gates and counsel, obviously accomplishing for the
defendants goals which he knew about from ex parte sources. Having control of the medical
malpractice case, Judge Swartz allowed the defendants to take the deposition of Mr. Gates, but did
not allow Mr. Gates to take the depositions of the defendants who had inflicted the injuries on Mr.
Gates. Those defendants were the person who would later testify at Mr. Gates’s felony trial. There
was no purpose to allow the depositions of Mr. Gates while a felony trial was pending except to
facilitate the interests of the civil clients of District Attorney Walter Reed and to shield the sheriff’s
deputies from liability.
Page 5 of 18
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I. Defendant Richard A. Swartz Has Committed Acts in His Individual Capacity
Defendant Richard A. Swartz, presiding judge of Division C of the 22nd Judicial District
Court, and former Assistant District Attorney employed by the District Attorney Walter P. Reed who
subsequently endorsed and arranged for Judge Swartz to be elected to office with compliance of
Sheriff Jack Strain, and who in numerous ex parte communications and in complicity with the
district attorney and sheriff covered-up their actions and the actions of the clerk of court and
reporters who have altered the public records in certain violation of Louisiana law: La. R.S. 14: 132,
133, et seq.
Defendant Mr. Swartz’s ex parte communications with the district attorney and others are
actions taken in his individual capacity [See: pp.2-4 above for facts pleaded]. Those contacts,
agreements and statements made by Mr. Swartz are actions in his individual capacity. Even if done
from the purpose of accomplishing something for his co-defendants’ benefit through his actions in
the court, these are in themselves actions for which he is not immune. “The defendant does not enjoy
any modicum of judicial immunity for his non-judicial and judicial civil treasonous acts”. When
actions taken outside the court are used to foster actions taken by a judge in his official capacity, he
is not immune from the consequences. At such times in such instances, he is not acting legally as
an officer of the court or as an agent of the state.
The “absence of jurisdiction” exception to rule that a judge is absolutely immune from civil
rights damage liability for acts within his judicial capacity, except when he acts in absence of all
jurisdiction, refers to situations in which a judge acts purely in a private and nonjudicial capacity.
Henzel v. Gerstein, C.A.5 (Fla.) 1979, 608 F.2d 654.
Knowing his intent to protect the personal and client interests of District Attorney Walter
Page 6 of 18
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Reed [and his insurance company civil law clients] and the insurance interests of Sheriff Jack Strain,
defendant Judge Swartz knew that the actions he took were taken to accomplish this purpose, were
clearly outside his jurisdiction and expressly deprived him of jurisdiction and therefore of judicial
immunity.
When a judge knows he lacks jurisdiction, or acts in the face of clearly balanced statutes or
case law expressly depriving him of jurisdiction, judicial immunity is lost. Schorle v. City of
Greenhills, S.D.Ohio 1981, 524 F.Supp. 821. As well, when judges who do not report the criminal
activities of other officers of the court including other judges, those judges become principals in the
criminal activity, 18 U.S.C. Section 1. The fraud and criminal actions in the Shane Gates prosecution
committed by the district attorneys and sheriff are too numerous to list in their entirety. That
defendant Judge Swartz failed to report those crimes of those officers of the 22nd Judicial District
Court, makes Judge Swartz a principal in the criminal activity himself.
II. Defendant Richard A. Swartz Has Acted In Clear Absence of All Jurisdiction
The United States Supreme Court has upheld the principle that the doctrine of judicial
immunity does not apply when a judge acts outside of his [any] jurisdiction.
Judges will be subject to liability despite doctrine of judicial immunity, where he has acted
in clear absence of all jurisdiction. Moore v. Brewster, C.A.9 (Cal.) 1996, 96 F.3d 1240, certiorari
denied 117 S.Ct. 963, 519 U.S. 1118, 136 L.Ed.2d 848.
The “absence of jurisdiction” exception to rule that a judge is absolutely immune from civil
rights damage liability for acts within his judicial capacity, except when he acts in absence of all
jurisdiction, refers to situations in which a judge acts purely in a private and nonjudicial capacity [or
for such purposes]. Henzel v. Gerstein, C.A.5 (Fla.) 1979, 608 F.2d 654.
Page 7 of 18
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Judicial immunity is quite broad, but the immunity pertains only to those acts “judicial” in
nature, and judge will not benefit from judicial immunity and will be exposed to liability for actions
in the clear absence of all jurisdiction. Cintron Rodriguez v. Pagan Nieves, D.Puerto Rico 1990, 736
F.Supp. 411.
Under New York law, town justice did not have judicial immunity in civil rights suit for
issuing arrest warrants in neighboring town over which he knew he had no jurisdiction. Maestri v.
Jutkofsky, C.A.2 (N.Y.) 1988, 860 F.2d 50, certiorari denied 109 S.Ct. 1132, 489 U.S. 1016, 103
L.Ed.2d 193.
When judge knows he lacks jurisdiction, or acts in face of clearly balanced statutes or case
law expressly depriving him of jurisdiction, judicial immunity is lost. Schorle v. City of Greenhills,
S.D.Ohio 1981, 524 F.Supp. 821.
The Kids for Cash court provided an exact qualified immunity analysis. In his ruling, Caputo
ruled that judges "no matter how corrupt" are protected by judicial immunity for all decisions made
from the bench [United States District Court for the Middle District of Pennsylvania (H.T. et al. v.
Mark A. Ciavarella, Jr., et al., 3:09-cv-0357].
But actions Ciavarella took outside court, including closing the county's government-run
detention center and instituting a zero-tolerance policy believed to have sent hundreds of teens to
lockup for alleged parole violations, left him open to the suits, he decided.
Similarly, Judge Richard Swartz actions and ex parte communications with the co-defendants
for the purpose on individual gain and to secure their streams of benefits take his actions outside the
jurisdiction and official capacity of the state and its courts [See: pp.2-4].
Page 8 of 18
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III. Defendant Richard A. Swartz Has Committed Acts Which Constitute Treason
Defendants Richard Swartz and co-defendant’s joint actions and conspiracy as judge and
officers of these courts constitute treason under the laws of the Constitution and the United States as
established by the United States Supreme Court.
Any judge who does not comply with his oath to uphold the Constitution of the United States
wars against that Constitution and engages in acts in violation of the Supreme Law of the land. The
judge is engaged in acts of treason. Judge Richard Swartz having taken at least two, if not three,
oaths of office to support the Constitution of the United States, and the Constitution of the State of
Louisiana, has acted in violation of the Constitution is engaged in an act or acts of treason. If a judge
does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200
(1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason
Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged
in acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens
v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821).
Having acted without jurisdiction in some if not all instances, defendant Judge Swartz has
engaged in an act or acts of treason. Any judge or attorney who does not report officers of the courts
or judges who commit crimes and for treason as required by law may themselves be guilty of
misprison of treason, 18 U.S.C. Section 2382. Defendant Judge Swartz’s failure to report the crimes
of the other officers of the courts during and subsequent to the Gates prosecution, constitutes treason.
The original petition clearly states numerous acts where defendant Judge Swartz failed to
report crimes and violations of the oaths of office including such violations by ADA Nick Noriea,
Clerk of Court Malise Prieto, Sheriff Jack Strain, District Attorney Walter Reed and others [See: acts
Page 9 of 18
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enumerated herein as set forth in the original complaint].
The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974)
stated that "when a state officer acts under a state law in a manner violative of the Federal
Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that
case stripped of his official or representative character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States." [Emphasis supplied in original]. By law,
a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his
person).
Mr. Swartz as judge is an officer of the court, as well as are all attorneys and other named
defendants. Mr. Swartz as a state judge is a state judicial officer, paid by the State to act impartially
and lawfully whose actions are in clear violation of the United States and Louisiana Constitution
contrary to his sworn oath of office such as to constitute treason. A judge himself is not the court.
People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980). The District Attorney is not the law.
Having knowingly condoned the fraud, perjury, and spoliation of evidence by his association
with other defendants outside the arena of the court itself, defendant Mr. Swartz is individually guilty
of and complicit in such fraud as established by the United States Supreme Court such that:
“Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged
in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court
stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud
between the parties or fraudulent documents, false statements or perjury...”
What the named defendants have done is "Fraud upon the court" as has been defined by the
Page 10 of 18
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7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the
Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23.
Defendant Judge Swartz knowingly denied Gates the right to introduce the FuelMan credit
card receipt which would have proved when Gates left the dealership and disproved the state’s
fraudulent statement that Gates left the dealership at 7:00 PM—Gates left the dealership at
approximately 8:40 PM and he was stopped only twenty minutes later. Noriea in closing argument
lied to the jury stating that Gates bought the car during the day and had been drinking all day.
All other witnesses testified to the contrary including the state toxicologist who stated under
oath that what the district attorney claimed about Mr. Gates’s alleged alcohol consumption and
fabricated BAC numbers, was not possible. Again, in light of this fraudulent claim by the state, Judge
Swartz did nothing upon learning that the district attorney had lied. Therefore, the decisions made by
Judge Swartz is such as the 7th Circuit further stated "a decision produced by fraud upon the court
is not in essence a decision at all, and never becomes final."
From the decisions made by Judge Swartz for Reed and Strain to the benefit of their insurance
company, it is also clear and well-settled law that any attempt to commit "fraud upon the court"
vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192
N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to
Page 11 of 18
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The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935). Defendant Judge
Swartz likewise condoned, was complicit in, and was involved in ex parte communications with the
district attorney and sheriff in order to protect them from liability and to protect the personal interest
of the civil clients of District Attorney Walter Reed.
Under state and federal law, when any officer of the court has committed "fraud upon the court",
the orders and judgment of that court are void, have no legal force or effect, as has been done
denied or never ruled on by Judge Swartz who cited no law and gave no basis for his denial of the
motions on those he did rule on. Nor has the Court issued written orders concerning those denials.
Judge Swartz knowingly failed to act which prevented Mr. Gates and counsel from arguing to the
courts of appeal, against the written reasons which Judge Swartz refused to issue.
Courts have repeatedly ruled that judges have no immunity for their criminal acts including
fraud. Since both treason and the interference with interstate commerce are criminal acts, no judge
has immunity to engage in such acts under the 11th Amendment to the United States Constitution.
The commission of such criminal acts which violate a citizen’s [Gates’s] constitutional rights—
as known to Judge Swartz and committed by ADA Noriea and others, are not and cannot be subject
to immunity even [especially] when done in the course of judicial actions.
Judge Swartz, District Attorney Reed, ADA Noriea and other officers of the court have no
immunity for the consequences of their criminal acts including the consequences that effect the civil
and constitutional rights of the citizens of this or all other of these United States; those criminal acts
Page 12 of 18
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are set forth herein.
IV. Defendant Judge Richard Swartz Claims That This Action Should be Dismissed as the
Federal Courts Lack Subject Jurisdiction Under Fed. R. Civ. P. 12(b)(1)
Citing Cozzo v. Tangipahoa Parish Council-President Government, 279 F. 3d 273, 280
defendant Mr. Swartz argues that Louisiana has not waived its [alleged] Eleventh Amendment
regarding suits in federal court. Defendant Swartz goes on to argue that if he is sued in his official
capacity “the state is the real, substantial party in interest”. Counsel for defendant Swartz adds that
all such claims for money damages should be dismissed for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1). Their argument ignores the fact that Mr. Gates has not only
asked for money damage relief but also asked for injunctive relief from a fraudulent prosecution.
As well, Mr. Gates and counsel have not only averred actions by Judge Swartz in his official
capacity, but has pleaded actions by defendant Swartz outside of his official capacity that are
probative of Judge Swartz’s complicity with defendant District Attorney Walter Reed and Sheriff
Jack Strain. Those actions by Judge Swartz in concert with his former employer District Attorney
Walter P. Reed, were done to create a stream of benefits for co-defendant Walter Reed, his private
law firm, the law firm’s clients and the Sheriff personally.
In light of the extensively pleaded facts demonstrating the complicity between Judge Swartz,
District Attorney Walter Reed, Sheriff Jack Strain, the Eleventh Amendment bars no claims for the
various reliefs prayed for under these circumstances.
Defendant Judge Swartz argues that the United States Supreme Court has construed the
Eleventh Amendment to restrict federal jurisdiction over sovereign States unless the State consents.15
Hans v. Louisiana, 134 U. S. 1 (1890); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
Page 13 of 18
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(1984).
But Supreme Court Justice Stevens has stated: “Immunity” is a misnomer. Eleventh
Amendment jurisprudence is jurisdictional doctrine. States remain fully liable for their wrongdoing,
but are not amenable to suit for injuries therefrom in federal courts, absent waiver or consent.
This construction is contrary to the clear language of the Eleventh Amendment, yet tolerated
by some. Justice Stevens has described Eleventh Amendment jurisprudence as creating "two Eleventh
Amendments,’ one narrow and textual and the other—not truly a constitutional doctrine at all—based
on prudential considerations of comity and federalism.” Hess v. Port Authority Trans-Hudson
Corporation, 513 U.S. 30, 52 (1994) (Stevens, J, concurring) (citing Pennsylvania v. Union Gas Co.,
491 U. S. 1, 23-29 (1989) (Stevens, J., concurring).
Justice Stevens teaches that fictitious construction “is not merely misguided as a matter of
constitutional law; it is also an engine of injustice. . . . [T]hroughout the doctrine's history, it has
clashed with the just principle that there should be a remedy for every wrong. See, e. g., Marbury v.
Madison, 1 Cranch 137, 163 (1803). Sovereign immunity inevitably places a lesser value on
administering justice to the individual than on giving government a license to act arbitrarily.” “Arising
as it did from the peculiarities of political life in feudal England . . . sovereign immunity is a doctrine
better suited to a divinely ordained monarchy than to our democracy.” Hess at 53-54.
Entities “beneath state level” are not co-equals with the United States, and may not escape the
jurisdiction of federal courts. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984);
Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397 (1997); Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658 (1978); Greater Los Angeles Council on Deafness, Inc. v.
Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). When an entity attempts to assert itself as a sovereign,
Page 14 of 18
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it must establish its status. Id.; Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir. 2004).
A government entity that is not a state is not entitled to State status “unless it is
simply ‘the arm or alter ego of the State.” Moor v. Alameda Cnty., 411 U.S. 693, 717 (1973).
“Alter-ego” is a question of fact, the burden of proving which rests with the party asserting it. Id.;
Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002). “We must look behind the pleadings to determine
whether a decree in the case would operate in fact against the sovereign. If the judgment would
actually run against the state.
Such “joint control” entities—even though operated by States themselves—are not entitled
to immunity “[u]nless there is good reason to believe that the States structured the new agency to
enable it to enjoy the special constitutional protection of the States themselves, and that Congress
concurred in that purpose.” Id. at 43-44 (citing Lake County, supra). Both Courts in Lake County and
Hess declined to extend Eleventh Amendment immunity to State-level entities despite complete
control by the States. Id.
V. Defendant Judge Richard Swartz Claims That This Action Should be Dismissed For
Failure to State a Claim Under Fed. R. Civ. P. 12(b)(6)
Defendant Judge Richard Swartz avers that this action should be dismissed for failure to state
a claim against him. Again, Judge Swartz claims judicial immunity. Citing Bordages v. McElroy, 952
F.Supp. 499, Mireless 112 S. Ct. 286,288, Eitel, 787 F.2d 995, and John, 870 F. 2d 922, counsel for
Judge Swartz fails to address the facts which demonstrate that actions, complicity, and ex parte
communications with the co-defendants Walter Reed, ADA Noriea, and others take any actions even
those performed in the court outside the jurisdiction which would otherwise provide a judge
immunity. While the integrity of the 22nd Judicial District Court and its officers, is no longer a
Page 15 of 18
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question, the particular actions of Walter Reed and his attorneys and Judge Swartz have taken place
largely outside the court even where those plans were formulated and only later realized in the court
by the actions of Judge Swartz. No such enterprise or any of its actors are given any type of
immunity, especially judicial immunity.
A. JUDGE SWARTZ’S ACTIONS PRECLUDE JUDICIAL IMMUNITY
Without repeating the facts which preclude Judge Swartz from being giving judicial immunity
in this instance, the U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687
(1974) stated that "when a state officer acts under a state law in a manner violative of the Federal
Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that
case stripped of his official or representative character and is subjected in his person to the
consequences of his individual conduct. The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States." [Emphasis supplied in original]. By law,
a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his
person). Judge Swartz has acted in a manner which violated the Federal Constitution to the injury
and detriment of Mr. Gates. He is not immune for those constitutional violations, which in fact make
his actions individual not official.
Defendant Judge Swartz was the presiding judge of Division C of the 22nd Judicial District
Court, and former Assistant District Attorney employed by the District Attorney Walter P. Reed who
subsequently endorsed and arranged for Judge Swartz to be elected to office and who in complicity
with the district attorney and sheriff has covered-up their actions and the actions of the clerk of court
and reporters who have admitted to altering the public records in certain violation of Louisiana law:
La. R.S. 14: 132, 133, et seq.
Page 16 of 18
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Defendant Mr. Swartz’s ex parte communications with the district attorney and others are
actions taken in his individual capacity. Those contacts, agreements and statements made by Mr.
Swartz are actions in his individual capacity. Even if done from the purpose of accomplishing
something for his co-defendants benefit through his actions in the court, are in themselves, actions
for which he is not immune. “The defendant does not enjoy any modicum of judicial immunity for
his non-judicial and judicial civil treasonous acts”.
When actions taken outside the court are used to foster actions taken by a judge in his official
capacity, he is not immune from the consequences. At such times in such instances, he is not acting
legally as an officer of the court or as an agent of the state. Judge Swartz is not immune from his
violations of the constitution and his cover-up of the crimes of the district attorney, the sheriff, and
others.
B. TREASON
Defendant Judge Swartz argues that actions of treason are criminal proceedings and cannot
be brought by private citizens. Mr. Gates has not instituted a criminal proceeding against Judge
Swartz, but had cited and now relies on numerous federal and Supreme Court cases which identify
acts committed by state court judges which constitute treason.
Those courts hold that when such state court judges commit treason, those actions take them
beyond the jurisdiction which would otherwise give them judicial immunity for in- court actions.
This jurisprudence also establishes how court-of-court actions which influence in-court acts by
judges, also preclude them from claiming immunity. [See: Section III, pp. 8-12, above for the fully
argued and cited statement].
Page 17 of 18
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CONCLUSION
Defendant Judge Richard Swartz has adopted his co-defendants’ arguments and request for
a Stay of these proceedings. Mr. Gates and counsel re-urge their opposition to the motions to Stay,
as the underlying actions from which these claims arise, are not based on the actions by the police
officers. Prior to this motion, defendant Judge Swartz filed no answer to this federal action. It
appears that Judge Swartz thinks he is immune from any actions, by any courts, federal or state.
According to the case law cited herein, it is apparent that he is not.
As defendant Judge Richard A. Swartz acted outside of his official capacity, but also violated
his oath of office and his constitutional and conspired to take actions for the benefit of District
Attorney Walter P. Reed, Sheriff Jack Strain, their civil clients and insurance companies, he is not
entitled to judicial immunity. His motion to dismiss on all grounds pleaded, should be denied.
In the alternative, the Court should order Mr. Gates to amend the complaint so as to comply with the
requirements of Fed. R. Civ. P. 12(b)(6).
Based upon the facts set forth herein and already in the record of this matter, defendant Judge
Richard Swartz’s Motion to Dismiss should be denied. The defendants motion to stay should be
denied as well.
Daniel G. Abel I have filed this pleadings using

[LSB No.8348] the ECF system of the Eastern
2421 Clearview Parkway District Courts and served all
Legal Department Counsel on 12 August 2014.
Metairie, LA 70001
Telephone: 504.208.9610
Facsimile: 888.577.8815
Page 18 of 18
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VERSUS NO. 13-6425
and
VERSUS NO. 07-6983
SHERIFF RODNEY JACK STRAIN, ET AL. SECTION "K"(2)
ORDER AND REASONS
Before the Court is a Motion to Stay (Doc. 29) filed by defendants, St. Tammany Parish
Sheriff, Rodney "Jack" Strain, in his official and individual capacity as Sheriff, St. Tammany
Parish Sheriff Captain Sherwood, St. Paul Fire & Marine Insurance Company , Louisiana
Attorney General James D. "Buddy"Caldwell, the office of the Louisiana Attorney General,
Kathryn Landry, ADA Nicholas f. Noriea and ADA Ronnie Gracianette (hereinafter
"Defendants"). Having reviewed the pleadings, memoranda and the relevant law, the Court
finds merit in this motion.
Background
This case is a continuation of a matter that is stayed in this Court, that being Shane M.
Gates v. Sheriff Rodney Jack Strain, et al., C.A. No. 07-6983. In the 2007 suit, Shane Gates
seeks damages under 42 U.S.C. § 1983, et seq., under 45 C.F.R. 164.513 ("HIPAA"), pendent
state law claims, and a claim for injunctive relief to prevent bad-faith prosecution. That case
17-30519.3488
arose from the arrest of Shane M. Gates (“Gates”) on November 16, 2006 for (1) obstruction of
a highway, (2) driving while intoxicated1; (3) having an open container; (4) reckless operation
and (5) resisting arrest. The circumstances surrounding that arrest have been hotly contested and
formed the basis for the original § 1983 suit based on his contention that he was wrongfully and
brutally beaten in and around the face by sheriff deputies at the time of his arrest. Gates sued a
litany of defendants, including Sheriff Rodney Jack Strain (“Strain”) in his official and
individual capacity; the St. Tammany Parish Sheriff’s Office; District Attorney Walter P. Reed
in his official capacity; St. Tammany District Attorney’s Office; Attorney Charles M. Hughes,
Jr.; Sheriff Deputy Nathan Miller; Sheriff Deputy Roger Gottardi; and Sheriff Deputy Brian
Williams.
Gates further contends in that 2007 suit that the defendants sought to extort out of Gates
the relinquishment of his claims against the St. Tammany defendants in exchange for his
abandoning his constitutional rights under § 1983. He sought to have the federal court step in to
prevent further alleged violations of Gates’ constitutional rights and enjoin the criminal
prosecution. He based this contention on the allegation that Gates was initially charged by the
St. Tammany District Attorney’s Office only with aggravated flight (felony) and DUI (which
can be enhanced to a felony); however, ten months later and after, on the eve of trial and after a
civil suit was threatened by Gates’ attorney ( who is also his step-father), a new bill of
information issued which then included resisting arrest which under the jurisprudence of Heck v.
1
procured.
17-30519.3489
Humphrey, 512 U.S. 477 (1994)2 and its progeny might act as a complete bar to plaintiff’s §
1983 claim if these injuries were the direct result of his having resisted the arrest.
The 2007 case was initially stayed on April 17, 2008, pending the resolution of the
criminal charges in the Twenty-Second Judicial District Court, (Rec. Doc. 81). On July 27,
2012, Gates was indeed acquitted of the felony aggravated flight charges and moved the Court
to re-open without informing the Court that the misdemeanor charges were still pending. Those
misdemeanor criminal charges including resisting arrest were and remain still pending3 and as
noted could result in the dismissal of the § 1983 suit. The Court on reconsideration issued its
Order and Reasons again staying that case pending the outcome of the misdemeanor charges
which in the event Gates is found guilty might render this suit moot under Heck v. Humphrey,
512 U.S. 477 (1994). Apparently, the resisting arrest trial had been set for August 12, 2013 in
the 22nd Judicial District Court before Judge Swartz..
The instant suit arises out of these same underlying facts and involves four of the same
defendants4. This suit was filed in the United States District Court for the Middle District of
Louisiana on August 5, 2013 (on the eve of the misdemeanor trial) and transferred to the Eastern
2
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make
such determination or called into question by a federal curt’s issuance of a writ of habeas corpus.’”
Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008) citing Heck, 512 U.S. at 486-87
3
For a full explanation of all of the charges and procedural history of this case, see Rec. Docs. 81 and 121
in C.A. No. 07-6983.
4
St. Tammany Parish District Attorney, Walter Reed; St. Tammany Parish Sheriff, Rodney "Jack" Strain;
The St. Tammany Parish District Attorney's Office; and St. Paul-Traveler's Insurance Company.
17-30519.3490
District on November 15, 2013. The case was initially allotted to another section of this court,
but was transferred to the undersigned based on its being related to the 2007 suit.
In this §1983 complaint, plaintiff now alleges that the District Attorney of St. Tammany
Parish, the St. Tammany Parish clerk of Court and the Bench in St. Tammany Parish have
conspired against him, committing a "fraud upon the Court" and that the defendants have
committed various crimes in pursuit of the second criminal prosecution. In both civil lawsuits,
plaintiff seeks "injunctive relief to prevent bad faith prosecution." In both complaints, plaintiff
asserts that evidence has been destroyed, altered or fabricated. While there are new facts added,
these facts are inextricably linked to the events of the night of November 16, 2006. Indeed, this
case is the chronological extension of the stayed suit.
In Wallace v. Kato, 549 U.S. 384 (2007), the Supreme Court stated:
If a plaintiff files a false-arrest claim before he has been convicted (or files
any other claim related to rulings that will likely be made in a pending or
anticipated criminal trial), it is within the power of the district court, and in
accord with common practice, to stay the civil action until the criminal case or the
likelihood of a criminal case is ended. . . . If the plaintiff is ultimately convicted,
and if the stayed civil suit would impugn that conviction, Heck, will require
dismissal; otherwise, the civil action will proceed, absent some other bar to suit.
Id. at 393-394. See Busick v. City of Madison Mississippi, 20 Fed. Appx. 713 (Feb. 6, 2004);
Quinn v. Guerrero, 2010 WL 412901 (E.D. Tex. 2010). Clearly then, a stay in this matter is
appropriate.
Moreover, plaintiff's claim that he is entitled to injunctive relief to prevent bad-faith
prosecution as to the misdemeanor claim has been previously rejected by this Court and that
analysis remains valid and is hereby re-iterated and adopted in full in this case. Gates v. Strain,
2011 WL 2690607 (E.D.La. July 11, 2011). The Court found then that under the provisions of
17-30519.3491
the Anti-Injunction Act, 28 U.S.C. § 2283, Younger v. Harris , 401 U.S. 37 (1971) and Shaw v.
Garrison, 467 F.2d 113, 114 (5th Cir. 1972), that the facts in the 2007 case did not meet the
requisite threshold to allow this Court to enjoin the state court proceeding. The suit sought to be
enjoined herein is the self-same suit; any "new" evidence of "bad-faith," "manufacturing," and
"altering" can be presented in Gates’ defense and will speak directly to a jury’s decision as to
guilt or innocence on the charges brought. Accordingly,
IT IS ORDERED that this higher-numbered case, Gates v. Strain, C.A. 13-6425 be
CONSOLIDATED with the lower numbered case, Gates v. Strain, C.A. No. 07-6983. This
higher-numbered case is hereby CONSOLIDATED with the lower numbered case and that
lower numbered case is hereby designated as the "lead case."
Pursuant to the court’s directive, all pleadings hereafter filed in this consolidated
proceeding shall bear the caption of the lead case together with only the docket number of all
cases within the consolidated suit to which the document applies or the notation "All Cases" if it
applies to all cases.
The clerk of court is directed to establish a master file and a master docket sheet for the
consolidated group of cases.
All entries shall be made on the master docket sheet only, with a notation listing the cases
to which the document applies, except that orders and documents terminating a party or
disposing of a case will also be entered on the individual docket sheet. All documents shall be
filed in the master file only, except that orders and documents terminating a party or disposing of
a case will also be filed in the record of the individual case.
17-30519.3492
In the event that a case is separated from the consolidated group it shall be the
responsibility of counsel to jointly designate documents necessary to the continued litigation of
the case and to file such designation and copies of the documents.
IT IS FURTHER ORDERED that Motion to Stay (Doc. 29) in C.A. No. 13-6425 is
GRANTED.
IT IS FURTHER ORDERED that the following motions filed in C.A. No. 13-6425:
Motion for More Definite Statement (Doc. 30);
Motion for Entry of Default as to Defendant Walter P. Reed (Doc. 51);
Motion for Entry of Default as to All Defendants (Doc. 52);
Motion for Entry of Default as to Defendant Richard A. Swartz (Doc. 53);
Motion to Stay or in the Alternative Motion to Dismiss (Doc. 55)
are DISMISSED as MOOT without prejudice to such motions being re-filed upon the proper
reopening of these matters.

6
17-30519.3493

JURY DEMAND
ORDER
thereof.
September 2016.
New Orleans, Louisiana, this _____ day of _____________,
____________________________________
JUDGE
17-30519.3494
89240/438523


* Section: K
v. * Magistrate: 2
*
* Consolidated With
*
Defendants *
**************************
PROPOSED ORDER
IT IS ORDERED THAT:
IT IS ORDERED THAT:
Ordered this 18th

____ day ofNovember
_________, 2016. New Orleans, Louisiana.
______________________________________________
17-30519.3495

VERSUS NO. 07-6983, 13-6425
RODNEY JACK STRAIN, ET AL SECTION "J" (2)
JUDGMENT
Considering the court's Order and Reasons dated March 24, 2017 and the court's
Order dated April 17, 2008, and previous court orders filed herein,
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of
defendants, Rodney J. "Jack" Strain, Jr., in both his individual capacity and his official
capacity as former Sheriff of St. Tammany Parish, Deputy Rodney J. "Jack" Strain, Jr., in
both his individual capacity and his official capacity as former Sheriff of St. Tammany
Parish, Deputy Nathan Miller, Deputy Roger Gottardi, Captain Kathy Sherwood, Deputy
Brian Williams, Walter P. Reed, in both his individual and his official capacity as former
Louisiana Attorney General James D. Caldwell, Office of the Louisiana Attorney General,
Judge Richard Schwartz of the 22nd Judicial District Court, Marie-Elise Prieto, in her
Charles M. Hughes, Jr., Philip Duiett, Louisiana Medical Center and Heart Hospital, LLC,
St. Paul Insurance Company, St. Paul Fire and Marine Insurance Company, and against
Plaintiff, Shane M. Gates, dismissing the plaintiff's suit, with prejudice.
17-30519.3496
New Orleans, Louisiana, this 27th day of MARCH, 2017.
17-30519.3497

Shane Gates V Sheriff Jack Strain Randy Smith ST Tammany 22nd Clerk of Court Louisiana 5th Circuit - Case No 17-30519

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APPEAL,CLOSED,MASTER

U.S. District Court

Gates v. Strain et al Date Filed: 10/17/2007

John Alford Hollister

Martin E. Regan , Jr.

Alanah Odoms Hebert

Pascal Frank Calogero , Jr.

James McClendon Williams

John Alford Hollister

Martin E. Regan , Jr.

Andre Jude Lagarde

Andrew Robert Capitelli

Mark Emerson Hanna

Andre Jude Lagarde

Andrew Robert Capitelli

Emily Gaunt Couvillon

Joseph L. Spilman , III

William Glenn Burns

Andre Jude Lagarde

Andrew Robert Capitelli

Mark Emerson Hanna

Andre Jude Lagarde

Andrew Robert Capitelli

Mark Emerson Hanna

Andre Jude Lagarde

Andrew Robert Capitelli

Mark Emerson Hanna

Alissa Jean Allison

Andre Jude Lagarde

Mark Emerson Hanna

Douglas Gist Swenson

Emily Gaunt Couvillon

Stefini Weckwerth Salles

Douglas Gist Swenson

Emily Gaunt Couvillon

Mark Emerson Hanna

Trevor Matthew Cutaiar

Emily Gaunt Couvillon

Andrew Robert Capitelli

Mark Emerson Hanna

Trevor Matthew Cutaiar

William H. Howard , III

Andrew Robert Capitelli

Mark Emerson Hanna

Trevor Matthew Cutaiar

Douglas Gist Swenson

Trevor Matthew Cutaiar

David Glen Sanders

David Glen Sanders

David Glen Sanders

Robert Craig Stern

David Glen Sanders

Date Filed # Docket Text

02/07/2008 14 SUMMONS Returned Executed; Charles M. Hughes, Jr served on 2/6/2008, answer

02/08/2008 17 Request of Summons Re-Issued as to Walter P Reed filed by Shane M. Gates re 3

02/08/2008 18 Summons Re-Issued as to Walter P Reed. (blg) (Entered: 02/11/2008)

02/19/2008 22 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Walter P

02/26/2008 24 EXPARTE/CONSENT MOTION for Extension of Time to Answer by Robert

02/28/2008 26 *** DEFICIENT - EXPARTE/CONSENT MOTION for Hearing re 25 (p.145)

02/29/2008 28 EXPARTE/CONSENT Ex Parte MOTION for Entry of Default as to Defendant

02/29/2008 29 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 3 (p.75)

02/29/2008 30 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Charles M.

02/29/2008 31 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 3 (p.75)

05/11/2011 116 DEFICIENT EXPARTE/CONSENT MOTION to Enroll as Counsel of Record