Lefebure v. D'aquila ( 2021 )


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  • Case: 19-30702     Document: 00515738873        Page: 1    Date Filed: 02/09/2021
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    _____________
    FILED
    February 9, 2021
    No. 19-30702
    consolidated with                          Lyle W. Cayce
    No. 19-30989                                Clerk
    _____________
    Priscilla Lefebure,
    Plaintiff—Appellee,
    versus
    Samuel D’Aquilla, 20th Judicial District, individually
    and in his official capacity as District Attorney,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:17-CV-1791
    Before Owen, Chief Judge, and Graves and Ho, Circuit Judges.
    James C. Ho, Circuit Judge:
    The allegations in this case are sickening. Priscilla Lefebure alleges
    that Barrett Boeker, her cousin’s husband, raped and sexually assaulted her
    on multiple occasions at his home on the grounds of the Louisiana state
    prison where he serves as an assistant warden. Lefebure further alleges that
    Samuel D’Aquilla, the district attorney, conspired with Boeker and others—
    including Boeker’s counsel, a relative of D’Aquilla’s—to prevent her from
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    seeking justice for these crimes. It is undisputed that D’Aquilla declined to
    prosecute Boeker. And according to Lefebure, he did not even bother to
    seriously investigate him. In response, she filed this suit against D’Aquilla,
    as well as Boeker and others, on a variety of constitutional and statutory
    claims.
    Under established precedent, however, we have no jurisdiction to
    reach her claims against D’Aquilla, because she has no standing under Article
    III of the Constitution to bring them. As the Supreme Court has instructed,
    “a private citizen lacks a judicially cognizable interest in the prosecution or
    nonprosecution of another.” Linda R.S. v. Richard D., 
    410 U.S. 614
    , 619
    (1973). The district court theorized that Linda R.S. does not apply here,
    because Lefebure complains not about the lack of prosecution, but about the
    lack of investigation. But we do not read Linda R.S. the same way. To the
    contrary, Linda R.S. makes clear that “a citizen lacks standing to contest the
    policies of the prosecuting authority when he himself is neither prosecuted
    nor threatened with prosecution.” 
    Id.
     (emphasis added).
    Not surprisingly, then, every court to our knowledge to have
    addressed this question prior to this case agrees that a crime victim may not
    challenge a prosecutor’s failure to investigate or prosecute his perpetrator.
    Lefebure does not cite any authority to the contrary, either here or before the
    district court—indeed, she did not file a brief in this appeal. Accordingly, we
    have no choice but to reverse and remand with instructions to dismiss the
    complaint for lack of subject matter jurisdiction as to D’Aquilla.
    I.
    Forced to evacuate her home in Baton Rouge due to flooding,
    Lefebure resided temporarily with her cousin and her cousin’s husband,
    Boeker. Their home is located on the grounds of the Louisiana State
    Penitentiary, where Boeker serves as an assistant warden.
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    Lefebure alleges that Boeker raped and sexually assaulted her on
    multiple occasions there. First, he raped her in front of a mirror, where he
    made her watch, while telling her that no one would hear her scream. Later,
    he sexually assaulted her with a foreign object, after picking the lock of the
    room where she was attempting to hide. Afterward, she tried to lock the door
    again, but he again proceeded to pick the lock and blocked her escape.
    Following these repeated assaults, Lefebure received a sexual assault
    examination, revealing bruises, redness, and irritation on her arms, legs, and
    cervix. Boeker was arrested a few weeks later for second degree rape. But no
    indictment or conviction followed.
    According to Lefebure, D’Aquilla, the district attorney for
    Louisiana’s 20th Judicial District, conspired with Boeker as well as West
    Feliciana Parish Sheriff J. Austin Daniel, and Boeker’s defense counsel, a
    relative of the district attorney, to ensure that he would not be properly
    investigated for his crimes.      Specifically, she claims that D’Aquilla
    (1) refused to collect and examine the rape kit; (2) made handwritten notes
    on the police report highlighting only purported discrepancies in Lefebure’s
    account of the events and presented that report to the grand jury; (3) declined
    to meet or speak with her about the alleged assaults before the grand jury
    proceeding; and (4) failed to call various witnesses who could have
    corroborated her version of the events. She further alleges that they gave
    Boeker preferential treatment, low bond, and ultimately ensured that he
    would not be indicted for his alleged assault.
    Lefebure filed suit against D’Aquilla and the others, seeking damages
    and declaratory and injunctive relief. With respect to D’Aquilla, she brought
    various claims under (1) the Equal Protection Clause of the Fourteenth
    Amendment, as well as Article I, Section 3 of the Louisiana Constitution
    (Right to Individual Dignity); (2) the Due Process Clause of the Fourteenth
    Amendment, as well as Article I, Section 2 of the Louisiana Constitution
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    (Right to Due Process); (3) 
    42 U.S.C. §§ 1983
     and 1985 for civil conspiracy
    to violate civil rights; and (4) 
    42 U.S.C. § 1983
     for abuse of process.
    D’Aquilla filed a motion to dismiss under Federal Rule of Civil
    Procedure 12(b)(1) and 12(b)(6) for, respectively, lack of subject matter
    jurisdiction and failure to state a claim upon which relief can be granted, and
    asserted various defenses.
    The district court granted in part and denied in part D’Aquilla’s
    motion to dismiss. Lefebure v. Boeker, 
    390 F. Supp. 3d 729
    , 768 (M.D. La.
    2019). It denied the motion to dismiss under Rule 12(b)(1), finding that
    Lefebure had standing. 
    Id. at 746
    . It also dismissed some of her claims, and
    rejected many of D’Aquilla’s asserted defenses as to her other claims. 
    Id.
     at
    747–50, 758, 763, 767–68.
    The district court certified the order for interlocutory appeal under
    
    28 U.S.C. § 1292
    (b). D’Aquilla moved in this court for leave to appeal from
    the interlocutory order, and we granted the motion.
    On appeal, Lefebure made four requests to extend her briefing
    deadline, between June and August 2020. We granted each of those requests,
    but then denied her fifth request for an extension. In September, we gave her
    notice that she could submit a motion to file a brief out of time within ten
    days. She declined to respond to our request or file a brief in this appeal, so
    the case was submitted with only D’Aquilla’s brief. Her decision not to
    submit a brief “does not preclude our consideration of the merits” of
    D’Aquilla’s appeal. Hager v. DBG Partners, Inc., 
    903 F.3d 460
    , 464 (5th Cir.
    2018). Cf. Fed. R. App. P. 31(c) (an appellee who does not file a brief
    forfeits the right to appear at oral argument).
    We review questions of subject matter jurisdiction de novo. Jones v.
    United States, 
    625 F.3d 827
    , 829 (5th Cir. 2010).
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    II.
    It is well established, and the parties do not dispute, that a victim has
    no standing under Article III of the Constitution to bring suit to demand the
    prosecution of his perpetrator. The Supreme Court so held in Linda R.S.
    
    410 U.S. at 619
    . And courts, including ours, have consistently enforced this
    same principle. Whether framed as a lack of standing or a lack of any right to
    sue as a matter of substantive law, courts consistently reach the same
    judgment as in Linda R.S.—that plaintiffs may not file suit to secure the
    prosecution of another person. See, e.g., Oliver v. Collins, 
    914 F.2d 56
    , 60 (5th
    Cir. 1990) (affirming dismissal of a prison inmate’s claim against the sheriff
    for failing to press criminal charges against correctional officers involved in
    an alleged assault because the plaintiff “does not have a constitutional right
    to have someone criminally prosecuted”). See also, e.g., Del Marcelle v. Brown
    Cty. Corp., 
    680 F.3d 887
    , 901 (7th Cir. 2012) (en banc) (Easterbrook, C.J.,
    concurring) (the victim “needs to show how he was injured by what the
    defendants did to him, rather than by what they didn’t do to other people”);
    Parkhurst v. Tabor, 
    569 F.3d 861
    , 866 (8th Cir. 2009) (“federal courts have
    maintained the distinction in standing between those prosecuted by the state
    and those who would urge the prosecution of others”); Sattler v. Johnson,
    
    857 F.2d 224
    , 227 (4th Cir. 1988) (rejecting claim that crime victims have
    “an enforceable right as a member of the public at large and as a victim to
    have the defendants criminally prosecuted”).
    Lefebure contends that this body of precedent should not bar her suit,
    because her asserted injury is not D’Aquilla’s failure to prosecute but rather
    his failure to investigate Boeker. See, e.g., Lefebure, 390 F. Supp. 3d at 745
    (“[Lefebure] seeks relief for the failure to investigate her claims, for the
    alleged conspiracy with the Sheriff not to investigate her claims, and for the
    alleged long-standing practice, policies and procedures that fostered the
    failure to investigate”).
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    We disagree. Her theory of the injury is the same: As in Linda R.S.,
    D’Aquilla deprived her of the opportunity to hold Boeker accountable
    through the criminal justice system.
    In fact, Lefebure repeatedly emphasizes her desire to hold Boeker
    accountable throughout her complaint—and in particular, her desire to hold
    him accountable through the criminal justice system. See First Amended
    Complaint & Jury Demand at 2, 7, 16, 21–22, Lefebure v. Boeker, 
    390 F. Supp. 3d 729
     (M.D. La. 2019) (ECF No. 37) (alleging that D’Aquilla and other
    officials conspired to ensure that Boeker “would not be held accountable for
    his actions,” would be “protect[ed] . . . from prosecution,” “would not be
    convicted of the alleged rapes,” would “walk free,” and would be
    “protect[ed] . . . from criminal liability”). See also Lefebure, 390 F. Supp. 3d
    at 745 (acknowledging that “the alleged failure to investigate was motivated
    by a preference in the prosecutorial outcome”).
    We see no reason why the logic of Linda R.S. would not readily apply
    here. Linda R.S. itself makes clear that “a citizen lacks standing to contest
    the policies of the prosecuting authority when he himself is neither
    prosecuted nor threatened with prosecution.” 
    410 U.S. at 619
     (emphasis
    added). And other courts have likewise uniformly denied relief where the
    victim brought suit to challenge the failure to investigate the perpetrator. See,
    e.g., Mitchell v. McNeil, 
    487 F.3d 374
    , 378 (6th Cir. 2007) (“There is no
    statutory or common law right, much less a constitutional right, to an
    investigation.”). Cf. Sargeant v. Dixon, 
    130 F.3d 1067
    , 1069–70 (D.C. Cir.
    1997) (if a person has “an interest in ‘being heard’ by the grand jury,” it is
    “only because” he has an “interest in seeing certain persons prosecuted”—
    which is “not legally cognizable within the framework of Article III” under
    Linda R.S.).
    The district court accordingly erred in concluding otherwise.
    ***
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    Lefebure’s story is one that is shared by too many survivors who have
    been doubly victimized by the horrifying crime of sexual assault—first by
    their assailants, and then again by a criminal justice system that fails to
    enforce the laws on the books. See, e.g., Pierre v. Vannoy, 
    891 F.3d 224
    , 229
    (5th Cir. 2018) (reversing district court for its “troubling” decision to release
    convicted child rapist without mentioning, let alone distinguishing,
    governing circuit precedent foreclosing release).
    Moreover, Lefebure’s story is particularly appalling because her
    alleged perpetrator holds a position of significance in our criminal justice
    system as an assistant prison warden. We expect law enforcement officials
    to uphold the law, not to violate it—to protect the innocent, not to victimize
    them. “Nothing is more corrosive to public confidence in our criminal
    justice system than the perception that there are two different legal
    standards—one for the powerful, the popular, and the well-connected, and
    another for everyone else.” United States v. Taffaro, 
    919 F.3d 947
    , 949 (5th
    Cir. 2019) (Ho, J., concurring) (discussing lack of prison time for chief deputy
    sheriff in Jefferson Parish despite multiple criminal convictions).
    It is no doubt cold comfort to Lefebure, then, that the legal principles
    we are forced to apply today present no barrier to bringing her own suit
    against her assailant—which she reportedly has already done. For surely she
    expected to have the support of her state’s elected and appointed
    prosecutors, investigators, and other officials in her pursuit of justice. If her
    account is correct, then the system failed her—badly.
    But none of this changes the fact that our court has no jurisdiction to
    reach her claims against the district attorney, who for whatever reason
    declined to help her. We have no choice but to reverse and remand with
    instructions to dismiss the complaint for lack of subject matter jurisdiction as
    to D’Aquilla.
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    James E. Graves, Jr., Circuit Judge, concurring, joined by Ho, Circuit
    Judge:
    I fully join the majority opinion, but I write to highlight the gravity of
    the allegations against the district attorney.              We recognize that under
    Louisiana law, the district attorney is vested with vast prosecutorial
    discretion and “shall have charge of every criminal prosecution by the state
    in his district, be the representative of the state before the grand jury in his
    district, and be the legal advisor to the grand jury.” La. Const. art. V, §
    26(B). This discretion extends to a determination of “whom, when, and how
    he shall prosecute.” La. Code Crim Proc. art. 61. Yet broad and even
    necessary 1 though that discretion may be, prosecutorial conduct should not
    be an obstacle to crime victims and their pursuit of justice.
    If Lefebure’s allegations are true, then she faced that obstacle here.
    The complaint alleges the following: Neither D’Aquilla nor anyone from his
    office ever met or spoke with Lefebure about the violent crimes she suffered;
    in fact, he told reporters that he was “uncomfortable” speaking with her.
    D’Aquilla and the sheriff refused to collect, examine, and present as evidence
    Lefebure’s rape kit and sexual assault examination to the grand jury. Two
    investigating officers, the nurse who conducted the sexual assault
    examination, and an expert from the coroner’s office that stored the rape kit
    were not called to testify before the grand jury as well, which is commonly
    done in other cases. Further, defense counsel was a relative of D’Aquilla,
    giving support to the allegation that the district attorney conspired with
    Boeker to thwart investigation and prosecution.
    Louisiana has long held that “public officials—and prosecutors in
    particular—are held to a higher standard than ordinary attorneys.” In re
    1
    See Roger A. Fairfax, Jr., Prosecutorial Nullification, 
    52 B.C. L. Rev. 1243
    , 1252–
    58 (2011) (explaining factors influencing a prosecutor’s discretion, including resource
    limitations, law enforcement priorities, victim’s needs or wishes, and perceived public
    interest).
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    Griffing, 17-0874 (La. 10/18/17), 
    236 So.3d 1213
    , 1221–22 (citing In re
    Bankston, 01-2780 (La. 3/8/02), 
    810 So.2d 1113
    , 1117–18). “Because the
    prosecutor is given such great power and discretion, he is also charged with
    a high ethical standard.” In re Toups, 00-0634 (La. 11/28/00), 
    773 So.2d 709
    ,
    715–16. As “an administrator of justice, a zealous advocate, and an officer of
    the court,” the prosecutor has the primary duty “to seek justice.” ABA
    Standards for Criminal Justice 3-1.2 (a)–(b) (4th ed. 2017). A prosecutor
    “should act with diligence and promptness to investigate, litigate, and
    dispose of criminal charges, consistent with the interests of justice and with
    due regard for fairness, accuracy, and rights of the defendant, victims, and
    witnesses.” 
    Id. at 3-1
    .9(a) (emphasis added). In fact, the 20th Judicial
    District Attorney’s Office (D’Aquilla’s office) recognizes this responsibility
    to victims, as its mission statement prioritizes “provid[ing] comfort and
    restitution to those victims who have been harmed by criminal offenders.” 2
    Further, prosecutors “should not use other improper considerations, such as
    . . . personal considerations, in exercising prosecutorial discretion,” and
    “should not permit [their] professional judgment or obligations to be affected
    by [their] personal . . . relationships.” ABA Standards for Criminal Justice
    3-1.6(a), 3-1.7(f).
    Again, if Lefebure’s allegations regarding the district attorney’s
    conduct are true, then his handling of the matter was substandard and less
    than ethical.     And by (allegedly) engaging in this course of conduct,
    D’Aquilla, who occupies a position of public trust, may have caused
    “inestimable harm to the public’s perception of the legal profession.”
    Bankston, 810 So.2d at 1117–18.
    2
    20th Judicial District Attorney’s Office, http://www.felicianasda.org/ (last
    visited Jan. 27, 2021).
    9