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KATHY RICHMOND ZEITOUN, WIFE OF/AND ABDULRAHMAN ZEITOUN, VERSUS THE CITY OF NEW ORLEANS, C. RAY NAGIN, INDIVIDUALLY AND AS MAYOR OF THE CITY OF NEW ORLEANS, THE STATE OF LOUISIANA, THROUGH ITS STATE POLICE, ET AL.

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NO. 2011-CA-0479

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-9676, DIVISION "G-11" HONORABLE ROBIN M. GIARRUSSO, JUDGE ****** JAMES F. MCKAY III JUDGE ****** (Court composed of Judge James F. McKay III, Judge Michael E. Kirby, Judge Terri F. Love)

LOUIS R. KOERNER, JR. KOERNER LAW FIRM 400 Lafayette Street P. O. Box 4297 Houma, Louisiana 70361-4297 Counsel for Plaintiffs/Appellants NOLAN P. LAMBERT SENIOR CHIEF DEPUTY CITY ATTORNEY FOR CITY OF NEW ORLEANS JAMES B. MULLALY DEPUTY CITY ATTORNEY FOR CITY OF NEW ORLEANS NANNETTE JOLIVETTE-BROWN CITY ATTORNEY FOR CITY OF NEW ORLEANS 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112 Counsel for Defendants/Appellees, The City of New Orleans and Former Mayor C. Ray Nagin

JAMES D. "BUDDY" CALDWELL PHYLLIS E. GLAZER, ASSISTANT A.G. MICHAEL C. KELLER, ASSISTANT A.G. DEPARTMENT OF JUSTICE LITIGATION DIVISION 400 Poydras Street, Suite 1600 New Orleans, Louisiana 70130 Counsel for Defendants/Appellees, State of Louisiana, through the Department of Public Safety and Corrections and Cornel Hubert

AFFIRMED

The appellants, Abdulrahman Zeitoun and Kathy Richmond Zeitoun ("Zeitouns"), appeal the judgment of the district court, granting the defendants, State of Louisiana through the Department of Corrections and Cornel Hubert, the City of New Orleans and Former Mayor C. Ray Nagin, peremptory exceptions of no cause of action and dismissing the matters with prejudice. Based upon the record before this Court, we affirm the judgment of the district court. FACTS AND PROCEDURAL HISTORY On September 6, 2005, Mr. Zeitoun was arrested on charges of suspicion of looting, La. R.S. 14:62.5, and possession of stolen property, La. R.S.14: 69 on or near the 5000 block of Claiborne Avenue.1 Mr. Zeitoun alleges that after he was arrested he was taken to a holding area located on St. Charles Avenue and Napoleon Avenue. He was then moved to the Union Passenger Train Station which was known as Camp Greyhound. After three days in "Camp Greyhound" he was transported to Elayn Hunt Correction Center ("Hunt"), which is locate in St.

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The appellant asserts that the arresting officer was New Orleans Police Department Officer Donald Lima. He was named a defendant in the appellants 2nd amended petition.

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Gabriel, in Iberville Parish.2 Mr. Zeitoun was detained at Hunt until September 29, 2005. After posting a $75,000 bond, he was released. The appellants original petition for damages was filed on August 28, 2006. It named the City of New Orleans ("City"), C. Ray Nagin, the State of Louisiana, and the Louisiana Department of Corrections as defendants.3 The Zeitouns assertions against the defendants are based on accusations of false arrest, imprisonment and the mistreatment of Mr. Zeitoun in the aftermath of Hurricane Katrina and conditions of confinement while incarcerated at Hunt. Initially, the appellants filed suit against the State through the Department of Corrections but the matter has been corrected to name the Louisiana Department of Public Safety and Corrections ("DPSC") as the actual party in interest in this lawsuit4. On October 31, 2006, the DPSC filed a dilatory exception of improper cumulation of actions pursuant to La. C.C.P Arts. 4635 and 4646 and the

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Cornel H. Hubert was the warden of Hunt at the time Mr. Zeitoun was incarcerated after leaving the temporary jail known as Camp Greyhound. The appellant sued Warden Hubert both personally and in his professional capacity as Warden of Hunt. 3 In appellants second amended petition they alleged that Mr. Zeitoun was arrested by the NOPD, not the State Police. Appellants also originally and mistakenly named Warden Burl Cain as a defendant in his personal and official capacity as the Warden of Hunt but amended in their second amended petition and joined Warden Hubert in the third amended petition. The appellants also sued Warden Cain alleging that he was in charge of the temporary jail "Camp Greyhound." Warden Cain remains in the law suit. 4 The DPSC was created by La. R.S. 36:401 et seq as an entity with the power to sue and be sued for all actions against the State Police and the Department of Corrections. 5 Art. 463. Cumulation, plural plaintiffs or defendants Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if: (1) There is a community of interest between the parties joined; (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and (3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
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Art. 464. Improper cumulation, effect When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed. When the cumulation is improper for any other reason, the court may: (1) order separate trials of the actions; or (2) order the plaintiff to elect which actions he shall proceed with, and to amend his petition so as to delete therefrom all allegations relating to the action which he elects to discontinue. The penalty for noncompliance with an order to amend is a dismissal of plaintiff's suit.

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peremptory exception of no cause of action pursuant to La.C.C.P. Art. 927 (5)7. On March 23, 2007, oral argument on the exceptions was held. The district court considered the original petition and the first amended petition and granted the DPSCs exception of no cause of action and dismissed, with prejudice, all claims against the DPSC; the judgment was signed on April 3, 2007. In this judgment the district court did not give the appellants leave to amend. Nevertheless, the appellant filed a second amended petition joining NOPD Officer Donald Lima and Warder Burl Cain. The appellant also incorporated references to all previously dismissed claims. On April 30, 2007, the appellants, by way of a devolutive appeal, appealed the district courts judgment. On April 7, 2009, this Court reversed and remanded the matter 8 to give the appellants the opportunity to amend their lawsuit pursuant to La. C.C.P. Art. 9349. On March 1, 2010, the DPSC moved for an order mandating the appellants to comply with this Courts order to amend their petition. Ultimately, the appellant filed their third amended petition to include claims against Cornel Hubert, Warden of Hunt. On June 1, 2010, the DPCS filed a second exception of no cause of action in response to the appellants second and third amended petitions. Appellants then filed a motion for leave to file a fourth amended petition. The appellants followed

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Art. 927. Objections raised by peremptory exception: (5) No cause of action. Zeitoun v. the City of New Orleans, 2008-1025 (La. App. 4 Cir. 4/1/09), 9 So.3d 1025. Art. 934. Effect of sustaining peremptory exception

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When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

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this filing with a motion for leave to file a fifth amended petition. The district court granted both motions but also ordered that no further supplementations of amendment to the petition be allowed. 10 On September 17, 2010 Warden Hubert filed his exception of improper cumulation of parties. One month later the City and the State moved jointly to reset the hearings on their exceptions of no cause of action based on the assertion that the appellants fourth and fifth amended petitions failed to cure any grounds for the pending exceptions. On December 17, 2010, the district court granted the DPSCs peremptory exception of no cause of action as well as Warden Huberts dilatory exception of improper cumulation. The district court also granted the Citys peremptory exception of no cause of action. It is from these judgments that the appellants appeal. DISCUSSION: DPSC AND WARDEN CORNEL HUBERT Supplemental Amendments The DPSC asserts that the appellants were given the opportunity to amend their original petition for damages, pursuant to La.C.C.P. Art. 934, and cure defects raised in the DPSCs first exception of no cause of action. However, after filing their second, third, fourth and fifth amended petitions the appellants failed to provide additional factual allegations against the City and the DPSC to establish any cause of action upon which relief could be granted.

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The City had similar exceptions.

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Simply filing a pleading entitled "amended petition" is insufficient to state a cause of action in compliance with La.C.C.P. Art. 934 which states: When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. C.C.P. Art 934. Appellants' Second Amended Petition: The second amended petition does not change any of the facts alleged in the original petition but simply joins Warden Burl Cain, the warden of the Louisiana State Penitentiary in Angola and alleged that he was the "Warden" of the temporary jail known as "Camp Greyhound" located at the Union Train Station terminal in New Orleans in the direct aftermath of Hurricane Katrina. They also erroneously assert the Warden Cain was the warden of Hunt. The appellants asserted that the DPSC was vicariously liable for the actions of its employee, Warden Cain. Appellants' Third Amended Petition: The third amended petition does not change the facts alleged in the original petition but simply joins Warden Hubert as the Warden of Hunt. This appeal concerns the ultimate dismissal of Warden Hubert on an exception of improper cumulation. The appellants also continue to reference the Department of Corrections and the Louisiana State Police not the DPSC. Appellants' Fourth and Fifth Amended Petition:

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The fourth and fifth amended petitions do not contain any factual allegations pertaining to the DPSC. Appellants once again failed to cure the defect by not specifically naming the DPSC. In sum the appellants, despite their numerous amended petitions, failed to asserts any facts pertaining to the DPSC. As it did in its original exception, the failure by the appellants to cure this defect was continuously raised by the DPSC. Accordingly, we find that the district court properly granted the DPSCs exception of no cause of action based on La.C.C.P. Art. 934, 42 U.S.C.

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