Dexter Johnson Versus Madeline Jasmine - Individual Capacity

DEXTER JOHNSON NO. 19-CA-365

VERSUS FIFTH CIRCUIT

MADELINE JASMINE - INDIVIDUAL COURT OF APPEAL
CAPACITY
STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 72,674, DIVISION "B"
HONORABLE ROBERT L. LOBRANO, JUDGE AD HOC PRESIDING

January 29, 2020

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Robert A. Chaisson

AFFIRMED
FHW
MEJ
RAC

COUNSEL FOR PLAINTIFF/APPELLANT,
DEXTER JOHNSON
Dexter Johnson

COUNSEL FOR DEFENDANT/APPELLEE,
MADELINE JASMINE - INDIVIDUAL CAPACITY
Jo Ann Nixon

WICKER, J.

Plaintiff/Appellant, Dexter Johnson (hereinafter “Mr. Johnson”) appeals

from a May 9, 2019 decision of the 40th Judicial District Court,1 Parish of St. John

the Baptist, granting an exception of no cause of action in favor of

Defendant/Appellee, Judge Madeline Jasmine (hereinafter “Judge Jasmine”), in her

individual capacity. For the following reasons, we affirm the judgment of the trial

court.

FACTUAL AND PROCEDURAL HISTORY

Dexter Johnson appeared in Judge Jasmine’s courtroom on September 22,

2017, after filing a custody petition with the court.2 The children’s mother was not

present when Mr. Johnson presented his custody plan and testimony. After Mr.

Johnson left the courtroom, the children’s mother appeared before the Judge. No

record of the exchange exists. On October 26, 2017, Judge Jasmine issued a

judgment that differed from Mr. Johnson’s parenting plan proposing joint legal

custody and a 3-3-4-4 shared physical custody schedule. See Johnson v. Clofer,

18-119 (La. App. 5 Cir. 6/27/18), 251 So.3d 597, 599.

Thereafter, Mr. Johnson filed a Motion for New Trial, which was denied

following a hearing on December 22, 2017. Id. In her oral reasons for judgment,

Judge Jasmine stated that nothing from the children’s mother was considered in

rendering judgment because she arrived after the case had concluded. However,

Judge Jasmine found that, based on the evidence presented, Mr. Johnson’s

proposed plan was not in the best interest of the children. Mr. Johnson appealed

both the October 26, 2017 and December 22, 2017 judgments. See Id. On appeal,

1
Retired Judge Robert L. Lobrano sitting ad hoc.
2
The facts of the underlying case are more fully discussed in this Court’s opinion in Johnson v. Clofer,
18-119 (La. App. 5 Cir. 6/27/18), 251 So.3d 597.

19-CA-365 1

this Court found that the record contained insufficient evidence for a determination

of the best interest of the children, and vacated the judgment in part. Id. at 601.

On August 16, 2018, Mr. Johnson filed his “Petition for Damages” against

Judge Jasmine in her individual capacity, claiming that she “willfully, negligently,

maliciously, and recklessly abused her authority.” Mr. Johnson sought damages

for intentional infliction of emotional distress manifested in the form of “anxiety,

depression, lack of sleep, severe headaches, and diminished sexual desire.” Mr.

Johnson also claimed a loss of wages in the amount of $5,220 for nine days in

which he was seeking treatment for his other injuries and unable to work.

On October 22, 2018, Judge Jasmine filed a Peremptory Exception of No

Cause of Action and a Dilatory Exception of Vagueness asserting that Mr.

Johnson’s allegation of abuse of authority could only be referring to the October

26, 2017 Court Order issued, not in her individual capacity, but in her capacity as a

District Court Judge—a position which afforded her immunity for discretionary

acts pursuant to La. R.S. 9:2798.1. On February 25, 2019, the trial court granted

Judge Jasmine’s exception of no cause of action, but allowed Mr. Johnson an

opportunity to amend his petition to state a cause of action.3

On March 13, 2019, Mr. Johnson filed his “First Amended Petition for

Damages” in which he elaborated on the facts giving rise to his claim. Mr.

Johnson stated that he appeared with his counsel for the hearing in September of

2017; the opposing party was not present. However, Judge Jasmine’s judgment

issued on October 26, 2017, indicated that the opposing party appeared later and

that the judge considered “arguments of the parties” in rendering judgment against

Johnson. Thereafter, when Mr. Johnson gave Judge Jasmine “an opportunity to

cure and correct her judgement (sic),” Judge Jasmine maintained that the judgment

3
On January 4, 2019, Mr. Johnson filed a motion for summary judgment which was also set for hearing
on February 25, 2019. The trial court found the motion for summary judgment was premature due to the
fact that an answer had yet to be filed in the matter. See La. C.C.P. art. 966(A)(1).

19-CA-365 2

was pursuant to the law and that she did not consider any testimony from the

opposing party. Mr. Johnson stated that this Court vacated the judgment in part

and remanded the matter to the trial court due to an abuse of discretion. Therefore,

he concluded that Judge Jasmine’s behavior was willful, negligent, malicious, and

reckless and repeated his injuries alleged in the first petition.

Judge Jasmine re-urged the exceptions of no cause of action and vagueness.

On May 9, 2019, the trial court granted the exception of no cause of action stating:

Accepting all of the allegations of the amended petition as true, plaintiff
still could not recover. His entire complaint alleges actions taken by
defendant in her official capacity as a trial judge in the underlying case
involving plaintiff. Plaintiff's remedy is by way of appeal, which he
has done and was successful.

This appeal followed.4

DISCUSSION

Appellate courts review a judgment sustaining an exception of no cause of

action de novo. Jenkins v. Jackson, 16-482 (La. App. 5 Cir. 2/22/17), 216 So.3d

1082, 1089. The function of the exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the pleading. Williams vs. State of Louisiana, et al, 34,691 (La.

App. 2 Cir. 5/9/01), 786 So.2d 927, 930. The exception of no cause of action is

tried solely on the four corners of the petition, accepting all well-pleaded facts in

the petition as true. Jenkins, 216 So.3d at 1089. A petition generally will not be

dismissed for failure to state a claim unless plaintiff has no cause of action under

any evidence admissible under the pleadings. Steed v. St. Paul's United Methodist

Church, 31,521 (La. App. 2 Cir. 2/24/99), 728 So.2d 931, writ denied, 99-0877

(La.5/7/99), 740 So.2d 1290.

4
Mr. Johnson initially filed a writ application with this Court on May 17, 2019. The writ was granted for the limited
purpose of remanding the matter to order the district court to consider the Notice of Intent to Seek Writs as a timely
filed motion for appeal. Dexter Johnson versus Madeline Jasmine–Individual Capacity, La. App. 5 Cir. 19-C-279.
On October 22, 2019, this Court remanded the matter again to allow the trial court to execute and file an Order of
Appeal, which was missing from the appellate record.

19-CA-365 3

Judges are entitled to absolute immunity from liability while performing

judicial acts. See Menard v. Louisiana Dept. of Health & Hospitals, 11-1487 (La.

App. 3rd Cir. 4/4/12), 94 So.3d 15, 18–19, Viator v. Miller, 04-1199 (La. App. 3rd

Cir. 4/27/05), 900 So.2d 1135, 1139–40. The Louisiana Supreme Court has held

that “Judges acting within the scope of their subject matter jurisdictions cannot be

held liable for acts done in their judicial capacities.” Knapper v. Connick, 96-0434

(La. 10/15/96, 3), 681 So.2d 944, 946 (citing Killeen v. Boland, Gschwind Co.,157

La. 566, 102 So. 672 (1924)). However, in accordance with the United States

Supreme Court’s interpretation of judicial immunity in Forrester v. White, 484

U.S. 219, 227–28, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988), judges do not enjoy

absolute immunity from civil liability for administrative decisions that are not

judicial or adjudicative. Palowsky v. Campbell, 18-1105 (La. 6/26/19), ---So.3d---,

reh'g denied, 18-1105 (La. 9/6/19), 278 So.3d 358.

Mr. Johnson’s petition, on its face, clearly alleges that the behavior

complained of occurred while Judge Jasmine was acting in her judicial capacity.

Mr. Johnson claims to have suffered injury from the judgments of October 26,

2017 and December 22, 2017. Few activities performed by a judge are considered

more judicial or adjudicatory than issuing a judgment. In like cases, the immunity

from civil liability has been considered absolute, even in cases in which the judge

acts with malice. Knapper, 681 So.2d at 946.

Mr. Johnson argues, however, that Judge Johnson is not insulated from

liability in this case because La. R.S. 9:2788.1, often called the “discretionary

immunity doctrine” does not grant immunity to public officials for acts which do

not involve the exercise of discretion or for “acts or omissions which constitute

criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or

flagrant misconduct.” La. R.S. 9:2798.1(B).

19-CA-365 4

Mr. Johnson argues that he was entitled to a default judgment in this case,

and no discretion was called for. This argument is without merit because a party

seeking a default judgment pursuant to La. C.C.P. arts. 1701 and 1702 must

present evidence sufficient to convince the court that it is probable that he or she

would prevail in a trial on the merits. See Ramos v. Alexander, 18-355 (La. App. 5

Cir. 12/19/18), 262 So.3d 1000, 1003. Deciding whether a petitioner has

established a prima facie case is an exercise of discretion, and public officials are

immune from liability for discretionary acts “when such acts are within the course

and scope of their lawful powers and duties.” La. R.S. 9:2798.1(A).

Finally, we will briefly address Mr. Johnson’s argument that Judge

Jasmine’s participation in ex parte communication, in violation of the Judicial

Code of Conduct Canon 3(7)(6), constitutes an intentional and malicious act which

subjects Judge Jasmine to personal liability for damages. The process by which

Judges are disciplined for violations of the Judicial Code of Conduct is through the

filing of a complaint with the Judiciary Commission—the Louisiana Supreme

Court is vested with exclusive original jurisdiction in judicial disciplinary

proceedings. La. Const. Art. V, § 25(C), See e.g. In re Clark, 2014-0188 (La.

5/7/14), 145 So.3d 261, 262; In re Alford, 2007-1893 (La. 2/15/08), 977 So.2d 811,

823. Therefore, Judge Jasmine’s alleged ex parte communication does not give

rise to a cause of action for personal liability for damages.

CONCLUSION

Accepting all facts alleged in Mr. Johnson’s petition as true, the petition

does not state a cause of action against Judge Jasmine. The judgment of the trial

court dismissing Mr. Johnson’s case with prejudice is affirmed.

AFFIRMED

19-CA-365 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-365
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
JO ANN NIXON (APPELLEE)

MAILED
HONORABLE ROBERT L. LOBRANO DEXTER JOHNSON (APPELLANT)
(DISTRICT JUDGE) IN PROPER PERSON
PARISH OF ST. JOHN 123 GASSEN STREET
40TH JUDICIAL DISTRICT COURT LULING, LA 70070
P. O. BOX 357
EDGARD, LA 70049