Patrick Levier v. John Trahan, Judge

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-232

PATRICK LEVIER

VERSUS

JOHN TRAHAN, JUDGE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20194503
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED.

Patrick Levier
533318
Louisiana State Penitentiary
Angola, LA 70712
PRO SE:
Patrick Levier

Honorable Jeff Landry
Attorney General
James G. Evans
Jacqueline B. Wilson
Assistant Attorneys General
Post Office Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6300
COUNSEL FOR DEFENDANT/APPELLEE:
Judge John D. Trahan

GREMILLION, Judge.

Plaintiff/Appellant, Patrick Levier, appeals the trial court’s judgment granting

the Defendant/Appellee, Judge John D. Trahan’s, peremptory exception of no cause of

action. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Levier, an inmate at Angola Penitentiary, was convicted of second-degree murder

in 2008, following a trial over which Judge Trahan presided. In July 2019, Levier filed

a “Civil Rights Complaint” against Judge Trahan, noting that Judge Trahan was “acting

under color of state law, when in his official capacity he conspired with Plaintiff’s

defense attorney Elbert Guillory to deprive Plaintiff of his civil and constitutional

rights.”1 He further requested $13,000,000 in damages.

In September 2019, Judge Trahan filed a peremptory exception of no cause of

action urging that the claims against him were barred by judicial immunity or failed to

state a cause of action. In mid-September 2019, Levier received an order to appear in

court on October 21, 2019, for a hearing on the exception of no cause of action. On

October 28, 2019, Levier filed a “Brief In Response To Defendant’s Peremptory

Exception of No Cause of Action Based [on] Judicial Immunity or Failure to State a

Cause of Action.” Attached to this document was a number of documents including,

Exhibit D, a “Motion Recusal” that was originally filed in December 2017. On October

22, 2019, Levier composed a letter to the Clerk of Court of the Fifteenth Judicial District

stating that “Upon being brought for the court appearance on the telecommunication

screen at this prison no one ever appeared on the screen that the hearing could

commence.” Levier requested that he be informed when the hearing would be

rescheduled.

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We note that Levier did not mention 42 U.S.C.A. § 1983 in his petition. However, we assume
Levier alleges that Judge Trahan’s conspiring with Guillory deprived him of a right to effective
assistance of counsel pursuant to the Sixth Amendment to the United States Constitution.

Following a January 21, 2020 hearing, Judge Trahan’s exception of no cause of

action was granted, and Levier’s lawsuit and claims against Judge Trahan were

dismissed. Additionally, Levier’s motion for the appointment of counsel was denied in

the judgment dated February 5, 2020. Levier filed an “Objection to the Proposed Final

Judgment,” objecting to the hearing being held without him present.2 On March 5, 2020,

he filed a petition for appeal, which was granted on March 9, 2020.

Levier assigns as error:

1. Whether the District Court’s Decision to Conduct The Hearing
Without The Presence of Plaintiff Was An Abuse of Discretion
Under La. Civil Code of Procedure art. 963 Relating to Rule
To Show Cause Motions That Must Be Tried Contradictory
With The Adverse Party In Violation of La. Const. of 1974
Article 1, Section 2 [and] 22.

2. Whether The District Court’s Decision Constituted Abuse of
Discretion Bu[t] Disregarding And Not Considering Plaintiff’s
Brief To Defendant’s Premptory [sic] Exception In Light of
Conducting The Hearing Without The Presence of Mr. Levier
Before Rendering Judgment In Violation of La. Const. Article
1, Section 22.

DISCUSSION

Assignment of Error One

In his first assignment of error, Levier complains that the trial court abused its

discretion and it was “not reasonable nor correct” when it did not allow him to be

present at the hearing contrary to La.Code Civ.P. art. 963, which requires that the

adverse party be present at the proceeding.3

Louisiana Code of Civil Procedure Article 963 states (emphasis added):

If the order applied for by written motion is one to which mover
is clearly entitled without supporting proof, the court may grant the
order ex parte and without hearing the adverse party.

2
There does not appear to be any reason in the record as to why Levier was not present for the
hearing via telecommunication means.
3
Levier does not challenge the merits of the trial court’s judgment granting Judge Trahan’s
exception of no cause of action and its denial to appoint Levier counsel.

2

If the order applied for by written motion is one to which the
mover is not clearly entitled, or which requires supporting proof, the
motion shall be served on and tried contradictorily with the adverse
party.

The rule to show cause is a contradictory motion.

At the brief hearing on the exception of no cause of action, the following

transpired:

[Counsel for Judge Trahan:] . . . We filed an Exception of No
Cause of Action on behalf of Judge Trahan on two (2) grounds. The
first ground, Your Honor, of course, being that Mr. Levier is clearly
challenging his criminal conviction that should be properly raised in
post-conviction relief, some sort of habeas direct appeal, not in a civil
suit. And the other one, Your honor, is he’s clearly challenging Judge
Trahan’s conduct in the course of the criminal proceeding. Absolute
judicial immunity, as set forth in the cases cited in the brief, prohibits a
plaintiff from bringing a suit against a judge when the judge has
performed duties in his official capacity.

For those reasons, Your Honor, we would request judgment in
favor of Judge Trahan.

THE COURT: . . . Clearly, this is a habeas case, that if he is
unhappy with the conviction that transpired, that his recourse would be
to take that up in a habeas suit.

And with regard to the other contentions, I agree that Judge
Trahan is immune from that liability based on the protection by the
Code.

An exception of no cause of action is tried on the face of the petition alone.

La.Code Civ.P. art. 931. Accordingly, no evidence is introduced to support or disprove

the claim, and there is no need for an adverse party to be present. A trial court can grant

an exception of no cause of action sua sponte. La.Code Civ.P. art. 927(B). In Ramey

v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118-19, the supreme court

stated:

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 South, Inc., 616 So.2d
1234, 1238 (La.1993). The function of the peremptory exception of no
cause of action is to test the legal sufficiency of the petition, which is
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done by determining whether the law affords a remedy on the facts
alleged in the pleading. Id. at 1235. No evidence may be introduced to
support or controvert an exception of no cause of action. La. C.C.P. art.
931. Consequently, the court reviews the petition and accepts well-
pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of
Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806;
Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial
of the exception is whether, on the face of the petition, the plaintiff is
legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6
(La.5/23/94), 637 So.2d 127, 131.

Louisiana has chosen a system of fact pleading. La. C.C.P. art.
854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition.
Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere
conclusions of the plaintiff unsupported by facts does not set forth a
cause of action. Montalvo at p. 6, 637 So.2d at 131.

The burden of demonstrating that the petition states no cause of
action is upon the mover. City of New Orleans v. Board of Com’rs of
Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.
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 based solely on the sufficiency of the petition. Fink v.
Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New
Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether,
in the light most favorable to plaintiff and with every doubt resolved in
plaintiff’s behalf, the petition states any valid cause of action for relief.
City of New Orleans at p. 29, 640 So.2d at 253.

In his “Civil Rights Complaint,” Levier alleged that Judge Trahan conspired with

Elbert Guillory (Levier’s trial counsel) to deprive him of “his civil and constitutional

rights to a fair and impartial trial and judicial review.” Levier noted that his conviction

and sentence have been affirmed by this court and the Louisiana Supreme Court. His

complaint further stated that Judge Trahan presided over all of the post-conviction relief

proceedings and that he had filed numerous recusal motions because of a “personal

relationship which had developed between Judge Trahan and the murder victim’s

family and that Judge Trahan was biased and prejudiced against him and that he had

become personally involved and that this relationship was influencing his judicial

conduct.”

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Levier argued that Judge Trahan conspired with Guillory to deny Levier’s “post-

conviction allegation that . . .Guillory was incompetent and failed to investigate . . . that

[Levier] had a history of mental illness as far back as when he was 7 years old.” He

argued that Guillory failed to raise an insanity defense due to his incompetence. He

further claimed that Judge Trahan “allowed a mentally retarded defendant to be

convicted of second degree murder” and failed to have him evaluated for mental

competency.

Accepting all of these allegations as true, we find that Levier has failed to state a

cause of action against Judge Trahan. Levier first claims that Judge Trahan was biased

because he developed a relationship with the murder victim’s family. He then claims

that Judge Trahan conspired with his defense counsel. However, he provides no details

or facts to support these bare allegations. Mere conclusions without any facts to support

them are insufficient to state a cause of action. Ramey, 869 So.2d 114.

Ineffective assistance of counsel claims are properly addressed in applications

for post-conviction relief. Levier’s allegation, in absence of any factual support, that

Guillory and Judge Trahan conspired to deny him post-conviction relief are insufficient

to state a civil cause of action. Once post-conviction relief has been exhausted, a

defendant cannot substitute a civil lawsuit for post-conviction relief claims. See

La.Code Crim.P. art. 930.4; State ex rel. Levier v. State, 15-2019 (La. 2/17/17), 211

So.3d 379, State ex. rel. Levier v. State, 16-1710 (La. 2/2/18), 234 So.3d 875. Because

the peremptory exception of no cause of action was properly granted, Levier’s presence

at the hearing was not necessary.

Furthermore, even if we accepted these bare allegations as sufficient to state a

cause of action, Judge Trahan would be absolutely immune from any federal § 1983

claims. In McCoy v. City of Monroe, 32,521, p. 6 (La.App. 2 Cir. 12/8/99), 747 So.2d

1234, 1241, writ denied, 00-1280 (La. 3/30/01), 788 So.2d 441, the court stated:
5

In Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d
555 (1988), the United States Supreme Court recognized the long
history of judicial immunity and its importance in protecting judges
from vexatious actions prosecuted by disgruntled litigants. The judge
is entitled to absolute immunity where he performs “judicial” acts.
Moore v. Taylor, 541 So.2d 378 (La.App. 2d Cir.1989). A judge, of
whatever status in the judicial hierarchy, is immune from suit for
damages resulting from any act performed in the judicial role. Judges
are absolutely immune from 42 U.S.C. § 1983 liability for all acts
performed within their subject matter jurisdiction, even if the acts are
malicious. This immunity extends to justices of the peace as well as
those that sit on the supreme court and shields judges unless they act
either in “the clear absence of all jurisdiction over subject matter” or in
a nonjudicial capacity. Moore v. Taylor, supra.

The Louisiana jurisprudence on judicial immunity mirrors the
federal doctrine. A judge may not be cast for damages for his errors
unless he has acted outside of his judicial capacity. Moore v. Taylor,
supra. Even where the judge has technically acted outside his
jurisdiction and contrary to law, he will remain protected, unless his
actions were based on malice or corruption. Moore v. Taylor, supra.

Levier’s petition fails to state a cause of action, and the trial court did not err in

granting Judge Trahan’s peremptory exception of no cause of action. Accordingly, this

assignment of error is without merit.

Assignment of Error Two

In his second assignment of error, Levier argues that the trial court abused its

discretion “when it did not evaluate, address or consider Levier’s brief in support of his

position before reaching a decision for denial.” Levier claims that “[i]t should

respectfully be perceived that the district court abused its discretion because the

framework for its decision is not clearly supported.” This argument appears to rely on

the trial court’s failure to mention Levier’s opposition, which was filed into the record

in October 2019, in either its oral or written reasons for judgment. For the reasons noted

above, this issue is moot. Accordingly, assignment of error two is without merit.

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CONCLUSION

The judgment of the trial court granting the peremptory exception of no cause of

action in favor of the Defendant/Appellee, Judge John D. Trahan, is affirmed. All costs

of this appeal are assessed against the Plaintiff/Appellant, Patrick Levier.

AFFIRMED.

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