Clayton Cangelosi Versus Jefferson Parish Council Jefferson Parish Council Chair Scott Walker And In Person: Byron Lee (Not as Council Member) And Jefferson Parish President Cynthia Lee Sheng Jefferson Parish Parish Attorney

CLAYTON CANGELOSI NO. 22-CA-338

VERSUS FIFTH CIRCUIT

JEFFERSON PARISH COUNCIL, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 814-570, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

December 14, 2022

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and John J. Molaison, Jr.

AFFIRMED
RAC
FHW
JJM

PLAINTIFF/APPELLANT,
CLAYTON CANGELOSI
In Proper Person

COUNSEL FOR DEFENDANT/APPELLEE,
BYRON LEE
William Peter Connick
Michael J. Monistere

CHAISSON, J.

In this case arising from the denial of a permit to sell merchandise, Clayton

Cangelosi appeals a July 6, 2022 judgment of the trial court sustaining a

peremptory exception of no cause of action filed by defendant Councilman Byron

Lee, in his personal capacity. For the following reasons, we affirm the judgment of

the trial court.

BACKGROUND

The facts and procedural history of this case arise from the same petition and

events described in the companion appeal, 22-CA-174, and for the purposes of this

appeal, we adopt the background section from that appeal herein in its entirety

without additional restatement.

In January of 2021, pursuant to the Jefferson Parish Code of Ordinances, Mr.

Cangelosi sought a permit to conduct outdoor sales of Valentine’s Day-related

merchandise from February 12 to February 14, 2021. Permits to conduct such

sales are authorized by resolution of Jefferson Parish Council.

The resolution authorizing Mr. Cangelosi’s sales permit was initially

scheduled to be considered as part of the Addendum Agenda at the January 13,

2021 meeting of the Jefferson Parish Council; however, it was removed from the

agenda at the request of Councilman Byron Lee, who later stated that he had

received complaints about the annual sales and was concerned about traffic

congestion given the limited ingress and egress at the identified location.

Councilman Lee encouraged Mr. Cangelosi to identify other locations for the sale

and to reapply for the permit, which could be approved at the next council meeting

on February 3.

At the February 3 council meeting, a resolution authorizing Mr. Cangelosi’s

sales permit was adopted en globo with other resolutions as part of a consent

agenda. Mr. Cangelosi made an appearance and proceeded to question the council

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as to why his permit requests for other additional locations had not been approved.

He also stated that he was working with a lawyer to get approval for these

additional permits. Following a discussion with Councilman Lee over Mr.

Cangelosi’s treatment of the councilman’s staff, Councilman Lee moved to

reconsider and cancel the previously adopted resolution authorizing Mr.

Cangelosi’s sales permit. This motion was seconded and then approved by the

Council.

Two days later, Mr. Cangelosi filed his original petition for damages in

forma pauperis against the Jefferson Parish Council, Jefferson Parish Council

Chair Scott Walker, Jefferson Parish President Cynthia Lee Sheng, Jefferson

Parish Attorney Peggy Barton, and Councilman Byron Lee in his personal rather

than official capacity. The petition was amended on February 8 to add Jefferson

Parish as a defendant. The original petition was served on all of the named

defendants in their official capacities on April 26, 2021; however, Councilman

Lee, in his personal capacity, was not served until March 22, 2022.

In his petition, Mr. Cangelosi makes numerous allegations. His charges are

made specifically against Councilman Lee and “the Parish as a Whole.” He makes

no specific allegations against Parish President Cynthia Lee Sheng or Jefferson

Parish Attorney Peggy Barton. His allegations against Parish Council Chair Scott

Walker appear to be made against Mr. Walker in his official capacity for

purportedly allowing Councilman Lee’s “misconduct” and “abuse of power” to

continue. His charges against the Parish defendants include violations of his rights

under the First and Fourteenth Amendments of the United States Constitution and

abuse of power. He seeks damages for lost earnings, aggravation, pain and

suffering, and time spent on this suit.

Councilman Lee filed a peremptory exception of no cause of action, in

which he argues that Mr. Cangelosi failed to allege facts sufficient to support a

22-CA-338 2

claim for relief pursuant to Councilman Lee’s alleged violations of the First and

Fourteenth Amendments or alleged abuse of power. Following a hearing on the

merits, the trial court sustained this exception and dismissed Mr. Cangelosi’s

claims with prejudice on July 6, 2022. It is from this judgment that Mr. Cangelosi

appeals.1

DISCUSSION

Mr. Cangelosi’s brief in this appeal states identical purported errors by the

trial court as those he states in the companion appeal, 22-CA-174, and does not

raise any new or additional purported issues or assignments of error.

The function of the peremptory exception of no cause of action is to test the

legal sufficiency of the petition, which is done by determining whether the law

affords a remedy on the facts alleged in the pleading. State, Div. of Admin., Office

of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La.

5/10/11), 63 So.3d 940, 945. A cause of action, when used in the context of the

peremptory exception, is defined as the operative facts that give rise to the

plaintiff’s right to judicially assert the action against the defendant. Everything on

Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1238 (La. 1993). No

evidence may be introduced to support or controvert an exception of no cause of

action. La. C.C.P. art. 931. The court reviews the petition and accepts the well-

pleaded allegations of fact as true. Khoobehi Properties, LLC v. Baronne Dev. No.

2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), writ denied, 17-0893 (La. 9/29/17),

227 So.3d 288. Because Louisiana utilizes a system of fact pleading, it is not

necessary for a plaintiff to plead a theory of the case in the petition; however, mere

conclusions of the plaintiff unsupported by the facts do not set forth a cause of

action. Meckstroth v. Louisiana Dept. of Transp. & Dev., 07-0236 (La. App. 4 Cir.

1
A prior judgment dated March 24, 2022, sustaining a near identical exception of no cause of
action filed by the other defendants, is the subject of a companion appeal, 22-CA-174.

22-CA-338 3

6/27/07), 962 So.2d 490. In reviewing the judgment of the district court relating to

an exception of no cause of action, appellate courts should conduct a de novo

review because the exception raises a question of law and the lower court’s

decision is necessarily based solely on the sufficiency of the petition. Id. The

issue is whether, on the face of the petition, the plaintiff is legally entitled to the

relief sought. State, Div. of Admin., Office of Facility Planning & Control v.

Infinity Sur. Agency, L.L.C., 63 So.3d at 946.

Mr. Cangelosi alleges claims against Councilman Lee in his personal

capacity for proposing and voting to rescind a previously adopted resolution

authorizing a vendor’s permit for Mr. Cangelosi. Personal or individual capacity

suits seek to impose personal liability upon a government official for actions he

takes under color of state law causing the deprivation of a constitutional right. A

state official is individually liable for violating the constitutional rights of his

victim. Driscoll v. Stucker, 04-0589 (La. 1/19/05), 893 So.2d 32.

In support of his claim, Mr. Cangelosi cites Louisiana Revised Statute 14:48.

This statute, which was repealed on July 31, 2021, stated:

Where a non-privileged defamatory publication or expression is false
it is presumed to be malicious unless a justifiable motive for making it
is shown. Where such publication or expression is true, actual malice
must be proved in order to convict the offender.

Mr. Cangelosi’s reliance on this statute is misplaced. The language of the

statute creates an evidentiary presumption that relieves the prosecution from

having to prove one element of a claim for criminal defamation. In this case, Mr.

Cangelosi has alleged that Councilman Lee acted with malice, an allegation of fact

which may be accepted as true for the purposes of the analysis of the petition on

the exception of no cause of action. However, the allegation of that fact alone is

insufficient to support a civil cause of action against the defendant; it is merely one

22-CA-338 4

element among many that must be alleged in the petition in order to state a

justiciable claim that must be then later proven at a trial on the merits.

For the reasons discussed in the companion appeal, 22-CA-174, which we

adopt in full and without additional restatement here, we have found that Mr.

Cangelosi has failed to allege facts sufficient to state claims for violation of his

rights under the Louisiana or United States Constitutions. Further examination of

his petition shows that he has failed to allege facts sufficient to state cognizable

claims against Councilman Lee in his personal capacity.

CONCLUSION

Upon de novo review of the petition, we find that Mr. Cangelosi has failed to

allege facts sufficient to state a cause of action against Councilman Lee in his

personal capacity. We further find that such deficiency cannot be cured through

amendment. The judgment of the trial court is affirmed.

AFFIRMED

22-CA-338 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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
DECEMBER 14, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-338
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE)
MICHAEL J. MONISTERE (APPELLEE) WILLIAM PETER CONNICK (APPELLEE)

MAILED
CLAYTON CANGELOSI (APPELLANT) ELIZABETH O. CLINTON (APPELLEE)
2357 CADDY DRIVE ATTORNEY AT LAW
MARRERO, LA 70072 3421 NORTH CAUSEWAY BOULEVARD
SUITE 408
METAIRIE, LA 70002