This is an appeal by Southern University and A & M College (Southern University) from a trial court judgment declaring its dormitory sweep policy prima facie unconstitutional. The plaintiff, Patrick Devers (Devers), answered the appeal asserting the trial court erred in dismissing a number of defendants and denying his discovery motions and request for sanctions.
FACTS AND PROCEDURAL HISTORY
On March 8, 1995, Devers, a student at Southern University, was arrested following the discovery of twelve bags of marijuana in his dormitory room. The discovery was made pursuant to a dormitory sweep authorized by Southern University's Housing Agreement, which students living in campus housing are required to sign. Devers was issued an administrative expulsion and prohibited from attending classes.
On March 23, 1995, Devers filed a suit for damages and an injunction against Southern University. Devers sought a temporary restraining order from his expulsion. On March 27, 1995, the trial court issued an order vacating Devers' administrative expulsion and ordering Devers to only be suspended from classes until the Judiciary Committee of Southern University determined whether he had violated the Southern University code of conduct manual. The Judiciary Committee was scheduled to hold a hearing on March 30, 1995.
On March 28, 1995, while Devers was on the Southern University campus attempting to gather evidence for his disciplinary hearing before the Judiciary Committee, he was detained, arrested, and forced off the campus. Devers filed a Rule for Contempt on March 30, 1995, alleging Southern University's actions violated the March 27, 1995 court order. After hearing the charges against Devers, the Judiciary Committee found Devers guilty of the following violations of the code of student conduct: 1.13 Manufacturing, Distributing, or Selling Drugs or Narcotics; 1.14 Possession of Drugs, Narcotics or Marijuana.
The Judiciary Committee recommended Devers be expelled from Southern University. In a letter dated March 31, 1995, Gerald Peoples, the Vice Chancellor of Student Affairs, notified Devers that he agreed with the recommendation of expulsion and informed Devers of the appeal procedure. Devers never pursued the appeal procedure. Instead, on April 10, 1995, Devers amended his original suit and asserted an action under 42 U.S.C.A. § 1983,
On April 17, 1995, Devers filed a second lawsuit, captioned, "Patrick N. Devers v. Gerald Peoples, et al.," No. 416,026, Div. A in
Meanwhile in Devers' initial lawsuit, he filed a multitude of amending petitions on May 5, and May 8, 1995, naming the following individuals as defendants: Delores Spikes, Marvin Yates, Gerald Peoples, Melvin Robinson, Brenda Walton, Leeta Hayes, Roland DeRouen, Jarmeca Norris, Elise Hodge, Harrison Baptiste, Joseph Broaden, Jessie James Monroe, Patrick Fontenot, Winston DeCuir, Tolar White, Yvonne Hughes, Elvin Sterling, Kevin Jefferson, Gerald Acorn, Myrtle Joyner, Press Robinson, and Sidney Matthews.
On May 31, 1995, the trial court rendered a judgment reflecting the settlement of the part of the suit pertaining to the injunction between Devers and Southern University. Pursuant to that judgment, Devers' expulsion was reduced to a suspension for the spring term of 1995, and he would be allowed to enroll at Southern University for the fall term of 1995, and could apply to attend band camp in the summer of 1995.
Devers' two suits were consolidated on July 10, 1995. The issues presented to this court arise from judgments issued by the trial court on October 28, 1996, and November 13, 1996. The judgments are attached hereto as "Appendix A."
Southern University assigns the following assignment of error:
Devers answered the appeal and assigned the following assignments of error:
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir. 6/20/97); 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97); 703 So.2d 29; Kidd v. Logan M. Killen, Inc., 93-1322, p. 4 (La.App. 1st Cir. 5/20/94); 640 So.2d 616, 618; Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94); 637 So.2d 467; Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993); Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); Sanders v. Ashland Oil, Inc., 696 So.2d at 1035.
The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Potter v. First Federal Savings and Loan Association of Scotlandville, 615 So.2d at 325; Kidd v. Logan M. Killen, Inc., 640 So.2d at 618-19; Sanders v. Ashland Oil, Inc., 696 So.2d at 1034.
In 1996, the Louisiana legislature amended LSA-C.C.P. art. 966 by adding paragraph (A)(2), which states in pertinent part:
The retroactive application of the amendment is evidenced by the Legislature's clear expression in § 4 of the Act. The amendment also sought to rectify the misapplication of the article by various state courts in clarifying what the original amendment purported to enact. See Reichert v. State, Department of Transportation, 96-1419 and 96-1460, p. 7 (La.5/20/97); 694 So.2d 193, 199. In our determination of whether the trial court properly granted the motions for summary judgment, we will apply LSA-C.C.P. art. 966 as amended.
Constitutionality of Dormitory Regulation
The provision of Southern's Rental Agreement at issue provides as follows:
The trial court ruled this regulation was prima facie unconstitutional in that it violated the Fourth Amendment rights of students living on the campus of Southern University. In holding the regulation prima facie unconstitutional, the trial court determined that there is no set of circumstances under which the regulation would be valid. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); State v. Brown, 94-1290, p. 5 (La.1/17/95); 648 So.2d 872, 875.
The Fourth Amendment to the United States Constitution provides:
The basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasion by government officials. See Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 526, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). To determine the reasonableness of a search, there must be a balancing of the need to search against the invasion in which the search entails. Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H.1976). It has been established that students do not shed their constitutional rights at the schoolhouse door. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). A student who occupies a college dormitory room enjoys the protection of the Fourth Amendment. Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971). A dormitory
Southern University argues that the increase in school violence, the increased prevalence of weapons at schools, and the continued involvement of students with drugs form the basis of a substantial state interest in discovering and eliminating weapons and drugs from the educational setting. Southern University asserts that its concern for the safety of its students, faculty, and staff provides the basis for the random dormitory sweeps. Southern argues that its regulation is similar to the Utah State University regulation encountered in State v. Hunter, 831 P.2d 1033 (Utah App.), review denied, 843 P.2d 1042 (Utah 1992) which provided as follows:
831 P.2d at 1034.
In Hunter, a warrantless search was made of a student's dormitory room, pursuant to room to room inspections conducted in response to vandalism and other behavior problems. The court held the regulation was a reasonable exercise of the university's authority to maintain an educational environment. State v. Hunter, 831 P.2d at 1036. It is important to note that the court distinguished this case on the basis of what did not occur, specifically, Hunter was not a case in which university officials took action at the behest of or as part of a joint investigation with the police. State v. Hunter, 831 P.2d at 1037. Nor did the university officials attempt to delegate their right to inspect rooms to the police, which would result in circumvention of traditional restrictions on police activity. State v. Hunter, 831 P.2d at 1037.
The wording of the Utah State University regulation is quite different from Southern University's housing regulation. The regulation in Hunter specifically stated the purpose of its inspections are for maintenance of university property, the health and safety of students, and maintenance of discipline in an educational atmosphere. Administrative checks of dormitory rooms for health hazards are permissible pursuant to the school's interest in the maintenance of its plant and health of its students, as are searches in emergencies, such as in the case of fire. Morale v. Grigel, 422 F.Supp. at 998. However, Southern University's regulation does not specify such a purpose, rather it allows entry of dormitory rooms accompanied by police without any stated purpose.
In Piazzola v. Watkins, 442 F.2d 284, the United States Fifth Circuit considered the constitutionality of the following provision contained in Troy State University's housing regulations:
442 F.2d at 286.
The court held Troy State University retained broad supervisory powers which permitted it to adopt the regulation; provided that the regulation was reasonably construed and was limited in its application to further Troy State University's function as an educational institution. In limiting the regulation's application, the court held it could not
Although Troy State University's regulation was upheld as constitutional, the wording of its regulation is clearly different from Southern's regulation. The regulation utilized by Southern University clearly authorizes police involvement in the entry and search of the dormitory rooms. With police routinely assisting in the entry and search of a dormitory room, there are no factors which would characterize such an intrusion as a benign "administrative" search. See Smyth v. Lubbers, 398 F.Supp. at 788.
In Smyth v. Lubbers, 398 F.Supp. 777, Grand Valley State College (Grand Valley) defended the constitutionality of its housing regulation which in part, authorized residence hall staff members to enter and search a dormitory room, if college officials had "reasonable cause" to believe students were continuing to violate federal, state, or local laws, or Grand Valley regulations. See Smyth v. Lubbers, 398 F.Supp. at 782. Grand Valley defined "reasonable cause" as more than a mere suspicion, but less than probable cause. Smyth v. Lubbers, 398 F.Supp. at 790.
Grand Valley asserted its regulation was essential to the maintenance of order and discipline on school property and was constitutionally reasonable, even though such regulation infringed on the outer limits of the students' constitutional rights. Smyth v. Lubbers, 398 F.Supp. at 789. Grand Valley contended it could utilize warrantless police searches of student dormitory rooms on less than probable cause, a method which is not available to federal and state law enforcement agencies. See Smyth v. Lubbers, 398 F.Supp. at 789.
The court found that while Grand Valley had an important interest in enforcing drug laws and regulations, and a duty to do so, it did not have such a special characteristic or such a compelling interest as to justify setting aside the usual rights of privacy enjoyed by adults. Smyth v. Lubbers, 398 F.Supp. at 790. The failure of the Grand Valley regulation to require there be "probable cause" to justify a room search rendered the regulation constitutionally invalid. Smyth v. Lubbers, 398 F.Supp. at 791.
Likewise Southern asserts that its interest in eliminating weapons and drugs from the educational environment makes its regulation constitutionally permissible. However, we note society as a whole shares this interest with Southern University. Yet, our law enforcement agencies do not have the authority to sweep entire residential areas without a warrant. This is the very essence of the Fourth Amendment protection.
Southern University has many ways to promote the safety interests of students, faculty and staff without the use of warrantless police searches. Where individuals are using or selling marijuana or where weapons have become a threat so as to provoke complaints from the dormitory residents, the alleged offender may be charged and the complaining witnesses may testify against the individual, or Southern may secure a search warrant. See Smyth v. Lubbers, 398 F.Supp. at 790.
We agree with the court in Morale v. Grigel, 422 F.Supp. 988, that a check of a student's dormitory room is unreasonable under the Fourth Amendment unless Southern University can show that the search furthers its functioning as an educational institution. Southern University's housing regulation, as written, clearly authorizes unconstitutional searches. The search must further an interest that is separate and distinct from that served by Louisiana's criminal laws. See Morale v. Grigel, 422 F.Supp. at 998.
We reject Southern University's argument that by agreeing to the provisions of the housing contract, students consent to the dormitory sweeps. The state, in operating a public school system of higher education, cannot condition attendance at one of its schools on the student's renunciation of his constitutional rights. Robinson v. Board of Regents of Eastern Kentucky University, 475 F.2d 707,
Dismissal of Winston DeCuir
In his Fifteenth Amended Petition, Devers asserted a cause of action against Winston DeCuir (DeCuir) in his individual capacity and his capacity as attorney for Southern University. According to Devers' allegations, DeCuir participated in the unlawful expulsion of Devers thereby wrongfully and unlawfully depriving Devers of his "Louisiana constitutional and statutory rights, civil rights and constitutional rights." Devers also claimed he was entitled to seek damages against DeCuir based on La. C.C. art. 2315, the doctrine of respondeat superior, and vicarious liability.
To be liable for deprivation of civil rights claims under 42 U.S.C.A. § 1983, a person must be either personally involved in the acts causing the alleged deprivation of constitutional rights or there must be a causal relationship between the act of that person and the constitutional violation sought to be redressed. See Lozano v. Smith, 718 F.2d 756, 768 (5th Cir.1983). Based on DeCuir's affidavit, he had no responsibility for policies and procedures of dormitory sweeps or disciplinary hearings. DeCuir also attended Devers' disciplinary hearing, but did not participate in the decision making process. It is clear from DeCuir's affidavit that he had no involvement in the actions of which Devers complains. Devers did not dispute the facts in DeCuir's affidavit. DeCuir is entitled to judgment as a matter of law dismissing him from any allegations regarding his role in depriving Devers of his constitutional rights.
As for Devers' allegation that DeCuir is liable for damages under the doctrine of respondeat superior or vicarious liability, it is well settled that theories of vicarious liability and respondeat superior do not apply to an action brought under 42 U.S.C.A. § 1983. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Furthermore, DeCuir's affidavit indicated he was neither employed by Southern University, nor did he employ any of the individual defendants named in the lawsuit.
The only causal relationship existing between DeCuir's conduct and Devers' expulsion is his activity of acting as an attorney for Southern University. A non-client cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. Penalber v. Blount, 550 So.2d 577, 581 (La.1989). Furthermore, there are no allegations that DeCuir's actions of providing legal advice to Southern University were intentionally calculated to deprive Devers of his rights. We find the trial court was correct in granting DeCuir's motion for summary judgment.
Dismissal of Sidney Matthews
Sidney Matthews was named as a defendant in Devers' Twenty-Third Amended petition. Devers sought damages from Matthews for allegedly falsely communicating to Devers' mother, Laverne Devers, that Patrick Devers had been arrested with a large quantity of drugs and cash on his person, causing her to suffer a stroke. However, on July 30, 1996, Laverne Devers and Charles Devers' claims were dismissed by the trial court. Devers' petition contains no remaining allegations that Sidney Matthews did any action that would cause damages to Patrick Devers; thus Matthews was properly dismissed.
Although Devers' counsel raises the issue that he was not properly served with the motion for summary judgment, we find that issue has no merit. On August 19, 1996, pursuant to a motion filed by Southern University, the trial court ordered that all future service of legal documents be made by mail to plaintiff's counsel, Bernard Hardy. The motion for summary judgment contains the proper certificate of service; thus we find this issue to be without merit.
Dismissal of Patrick Fontenot
Although Devers assigned the dismissal of Patrick Fontenot in his assignment of errors, because the issue was not briefed, it is considered abandoned. Louisiana Uniform Rules—Courts of Appeal, Rule 2-12.4.
Dismissal of Judiciary Committee Members
The trial court granted the motions for summary judgment filed on behalf of Melvin Robinson, Leeta Haynes, Roland DeRouen, Myrtle Joiner, and Jarmeca Norris, who served on the Southern University Judiciary Committee, which heard the disciplinary case against Devers. The members of the Judiciary Committee found Devers guilty of violating the student code of conduct and recommended that he be expelled.
Devers argues in brief that he stated a cause of action under LSA-C.C. art. 425, which provides:
Other than alleging he stated a cause of action under LSA-C.C. art. 425, Devers does not indicate how such a cause of action exists. LSA-C.C. art. 425 has no relevance to the case sub judice. Devers complained in his various petitions that these members participated in his "unlawful expulsion"; however, we find that since Devers' expulsion was reduced to a one semester suspension, any claims he had against the Judiciary Committee members have been settled.
NO CAUSE OF ACTION
In deciding whether a petition states a cause of action, a court must accept the facts alleged in the petition without reference to any extraneous supporting or controverting evidence. LSA-C.C.P. art. 931; Montalvo v. Sondes, 93-2813, pp. 5-6 (La.5/23/94); 637 So.2d 127, 131. The court must accept well pleaded allegations of fact as true, and 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, 637 So.2d at 131; Everything on Wheels Subaru, Inc., v. Subaru South, 616 So.2d 1234, 1235 (La. 1993); Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). However, Louisiana retains a system of fact pleading. LSA-C.C.P. art. 854, official revision comment (a). The mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action. Montalvo v. Sondes, 637 So.2d at 131; Latham v. Latham, 216 La. 791, 44 So.2d 870, 871 (1950); In re Phoenix Building & Homestead Association, 203 La. 565, 14 So.2d 447, 451 (1943).
Louisiana subscribes to the traditional, majority view that an attorney does not owe a legal duty to his client's adversary when acting on his client's behalf. A non-client, therefore, cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. Montalvo v. Sondes, 637 So.2d at 130. The intent of this rule is not to reduce an attorney's responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client. Montalvo v. Sondes, 637 So.2d at 130; Penalber v. Blount, 550 So.2d at 581. Although Penalber re-affirmed the basic premise that an attorney acting on behalf of his client may not be sued by an adversary based on negligence or malpractice, Penalber did allow a cause of action against an attorney based on intentional tort. Montalvo v. Sondes, 637 So.2d at 130.
Dismissal of Linda Law Clark
Linda Law Clark is an attorney of record representing defendant, Southern University. Thus, she cannot be sued by Devers for negligence or malpractice. After reviewing Devers' Amended and Revised Petition, we find it fails to allege facts sufficient to state a cause of action in intentional tort. Devers' allegations that Clark made "misrepresentations" at a hearing are mere conclusions unsupported by facts, because he does not specify what specific misrepresentations were actually made. Paragraph 116 does allege Clark "intentionally ... engaged in malicious prosecution of [Devers]", however, we find this allegation is also a conclusion unsupported by facts. Since the facts alleged in the petition are not sufficient to give rise to an intentional tort, the trial court was correct in sustaining the peremptory exception raising the objection of no cause of action.
Dismissal of Attorney General and Louisiana Department of Justice
The sole allegation against the Attorney General and the Louisiana Department of Justice is that they "either approved the policy ... knew ... and/or permitted the searches to continue." There is no allegation that the Attorney General or the Louisiana Department of Justice intentionally acted to deprive Devers of his rights. Devers' petition fails to allege any intentional tort allegations; thus we find the trial court properly granted the exception of no cause of action dismissing the Attorney General and the Louisiana Department of Justice.
Judgments are either interlocutory or final, and the distinction between the two is that a judgment that determines "the merits in whole or in part" is a final judgment, whereas a judgment that decides only preliminary matters in the course of the action is an interlocutory judgment. Brennan v. Shell Offshore, Inc., 93-1525, p. 4 (La.App. 4th Cir. 3/29/94); 635 So.2d 429, 431. An appeal may be taken from a final judgment or from an interlocutory judgment which causes irreparable injury. LSA-C.C.P. art. 2083; Lawrence v. Gupta, 527 So.2d 1112 (La.App. 1st Cir.), writ denied, 532 So.2d 750 (La.1988). Interlocutory judgments rendered during the progression of a suit may be reviewed in the appeal of the final judgment in the suit. People of the Living God v. Chantilly, 251 La. 943, 207 So.2d 752, 753 (La.1968).
Denial of Devers' Motion for Summary Judgment
The trial court denied Devers' motion for summary judgment seeking liability for injuries and damages he suffered as a result of the deprivation of his Fourteenth Amendment constitutional due process rights by Gerald Peoples, Melvin Robinson, Roland DeRouen, Myrtle Joiner, Leeta Haynes, Jarmeca Norris, Joseph Broaden, Kevin Jefferson, Jarod Alcorn, and Southern University. However, no appeal lies from the denial of a motion for summary judgment. LSA-C.C.P. art. 968, Thomas v. Albertsons, Inc., 28,950, p. 2 (La.App. 2nd Cir. 12/11/96); 685 So.2d 1134, 1136, writ denied, 97-0391 (La.3/27/97); 692 So.2d 395. A trial court's overruling a motion for summary judgment is an interlocutory judgment, causing no irreparable injury, which can only be appealed with the final judgment in the case. Thomas v. Albertsons, Inc., 685 So.2d at 1136.
We note the summary judgment which was granted in this matter pertaining to the constitutionality of Southern University's dormitory sweep policy did not dispose of the full merits of this case. The trial court did not rule on any liability or damage issue. Thus, this assignment of error is not properly before us. See Dennis v. Finish Line, Inc., 93-0638, p. 4 (La.App. 1st Cir. 3/11/94); 636 So.2d 944, 946, writ denied, 94-1652 (La.10/7/94); 644 So.2d 636.
Denial of Motion to Lift Discovery Restrictions
Devers complains of the trial court's action of limiting his interrogatories for twenty defendants to a single set of fifteen identical interrogatories. We note this discovery issue is not the proper subject of an appeal as we find Devers has made no showing of irreparable injury. We agree with the trial court's remark at the October 21, 1996 hearing that "[t]his is a simple case that has been papered to death." It is hornbook law that regulation of discovery is subject to the broad discretion of the trial court. See Amoco Production Co. v. Columbia Gas Transmission Corp., 455 So.2d 1260, 1265 (La.App. 4th Cir.), writ denied, 459 So.2d 542 (La.1984).
Denial of Motion to Compel Discovery and Sanction Appellants
Devers appeals the denial of his September 9, 1996 motion to compel discovery by defendants and for sanctions. Denial of a rule to compel discovery is a nonappealable interlocutory judgment, absent a showing of irreparable injury. See Jowers v. State, through Department of Health and Hospitals, 610 So.2d 841, 842 (La.App. 1st Cir.1992). Devers complained that he served discovery upon the defendants
Denial of Sanctions Against Winston Decuir, Linda Law Clark, and David G. Sanders
Devers filed a Rule for Contempt on October 3, 1996. The rule alleged DeCuir, Clark, and Sanders were guilty of constructive contempt of court under LSA-C.C.P. arts. 224(4), (10), and 225.
Devers also asserts the pleadings filed by Clark and Sanders requesting dismissal of the litigation against the Judiciary Committee defendants either for administrative finality, or because compromise and settlement had been reached by the parties for the wrongful expulsion portion of the case, are sanctionable because these pleadings are repetitious.
The denial of sanctions is a nonappealable interlocutory judgment. Devers has made no showing of irreparable harm; thus the issue is not properly before this court. We also note the trial judge is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order. Estate of Graham v. Levy, 93-0134, 93-0636, pp. 4-5 (La.App. 1st Cir. 4/8/94); 636 So.2d 287, 290.
Denial of Motion to Disqualify Decuir and Clark
Devers filed a motion seeking to have Winston DeCuir, Linda Law Clark and the firm of DeCuir & Clark, which represents Southern University, disqualified from the case on the basis DeCuir and Clark were named defendants and potential witnesses. Because DeCuir and Clark have both been dismissed as defendants from the lawsuit, the objection is moot. However, Devers has made no showing that he will suffer any irreparable harm by allowing DeCuir and Clark to continue to represent Southern University, although they may be called as witnesses in the case. Because there has been no showing made by Devers of irreparable harm, this is not an appealable judgment.
Based on the above and foregoing reasons, we find the trial court correctly held the Southern University dormitory regulation pertaining to police searches prima facie unconstitutional. We also find the trial court properly dismissed Linda Law Clark, Winston