
    Robert J. ELLIS, Jr. v. LOUISIANA BOARD OF ETHICS THROUGH the STATE of Louisiana, Blake Monrose as Chairman of the Louisiana Board of Ethics, Michael Dupree, Kathleen Allen, Sue Mooney, and Aaron Brooks, in their Official and Individual Capacity
    2017 CA 0385
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 1, 2017.
    See also 168 So.3d 714.
    
      Salvador I. Bivalacqua, Scott M. Ga-lante, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Robert J. Ellis, Jr.
    Jeff Landry, Attorney General, Andrew Blanchfleld, Special Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, The State of Louisiana, through the Louisiana Board of Ethics, Blake Monrose as Chairman of the Board of Ethics, Kathleen Allen, Sue Mooney and Aaron Brooks, in their Official and Individual Capacity
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

| ^Plaintiff, Robert J. Ellis, Jr. (Ellis), appeals from a summary judgment in favor of the defendants, the State of Louisiana, through the Louisiana Board of Ethics, Blake Monrose as Chairman of the Board of Ethics, Kathleen Allen, Sue Mooney, and Aaron Brooks (Defendants), in their official and individual capacity, dismissing his claims against Defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The factual and procedural history leading up to this case is more fully set forth in this court’s earlier opinion, Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So.3d 714, writ denied, 2015-0208 (La. 4/17/15), 168 So.3d 400. In sum, on September 15, 2011, the Louisiana Board of Ethics (the Board) voted to conduct a confidential investigation of Ellis for various potential violations of the Code of Governmental Ethics (Code of Ethics). On August 16, 2014, at its regularly scheduled meeting, the Board voted to file charges against Ellis for violating provisions of the Code of Ethics. Id. at 718. Ellis filed a dilatory exception raising the objection of prematurity, based on his contention that the charges should be dismissed because the Board did not complete its investigation prior to filing charges against him, which constituted a violation of La. R.S. 42:1141C. Id. at 718-19. The Louisiana Ethics Adjudicatory Board (EAB) overruled Ellis’ exception, and Ellis sought supervisory writs from this court. On December 30, 2014, this court granted Ellis’ writ application and reversed the ruling of the EAB overruling Ellis’ exception of prematurity, finding that the Board was unable to show a prima facie case of the alleged violations prior to filing formal charges, and therefore the formal charges were premature. Id. at 726. The court dismissed the charges against Ellis.

As a result of the dismissal of the charges, on December 30, 2015, Ellis filed |athe instant suit against the Board, Mon-rose as Chairman of the Board, and Michael Dupree , Allen, Mooney, and Brooks, in their official capacity as attorneys and legal counsel for the Board, and in their individual capacity. In his petition, Ellis alleged that the Board filed charges without supporting evidence in order to defeat prescription, and that the State’s attorneys recklessly misrepresented to the Board, the EAB and the First Circuit Court of Appeal that the investigation had been completed and that they had sufficient evidence to establish a prima facie case. Ellis alleged constitutional violations under 42 U.S:C. § 1983 as well as a claim for malicious prosecution.

Defendants answered the suit on March 28, 2016, denying liability and asserting that they were entitled to immunity for discretionary acts performed in the course and scope of their lawful powers and duties as employees of the State of Louisiana. Thereafter, Defendants filed an amended answer reiterating their discretionary immunity pursuant to statute and asserting that they were entitled to absolute quasi-judicial immunity and absolute quasi-prosecutorial immunity.

On June 22, 2016, Defendants filed a motion for summary judgment, contending that in determining whether to bring formal charges for ethics violations against Ellis, Defendants were acting in a quasi-judicial and/or quasi-prosecutorial function, and were therefore entitled to absolute immunity. Defendants further urged in the alternative that they were entitled to qualified immunity. Finally, Defendants asserted that they were entitled to qualified immunity for Ellis’ 42 U.S.C. § 1983 claims in their personal capacity. In support of their motion for summary judgment, Defendants attached the affidavit of Deborah S. Grier, the Executive Secretary and custodian of records for the Board, |4who testified that she had personal knowledge of the Ellis matter. Ms. Grier attested that on August 1, 2011, the Board received information concerning potential violations of the Code of Ethics by Ellis, and that in its September 15, 2011 executive meeting, the Board referred Ellis to investigation. She further attested' that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report. According to Ms. Grier, the Board reviewed this report at its August 16, 2012 meeting, and voted to issue charges against Ellis. She stated that at all pertinent times, Monrose, Allen, Mooney, and Brooks acted within their official capacities and within the lawful duties set forth in La. R.S. 42:1141. Finally, Ms. Grier t stated that at all pertinent times, the Board believed that it had competent evidence to issue formal charges against Ellis.

Ellis filed an opposition to the motion for summary judgment, maintaining that as this court and the Louisiana Supreme Court had previously ruled that the Board, its chairman, and its attorneys did not complete their investigation to establish a prima facie case before filing charges against Ellis, the doctrines of law of the case and res judicata served to defeat the motion for summary judgment as there was clearly no immunity, qualified or otherwise, afforded the Board, its chairman, or its attorneys for a proceeding in direct violation of statutory mandates. Ellis also argued that summary judgment was premature. Following a hearing on October 31, 2016, the trial court granted Defendants’ motion for summary judgment and all of Ellis’ claims were dismissed by judgment dated December 2, 2016. It is from this judgment that Ellis appeals.

ASSIGNMENTS OF ERROR

Ellis asserts the following assignments of error:

(1) The trial court erred in finding that Defendants’ actions were quasi-judicial and entitled to absolute immunity;
⅛(2) The trial court erred in finding that Defendants’ mixed role of prosecutor and investigator did not negate absolute immunity;
(3) The trial court erred in finding that Defendants had qualified immunity; and
(4) The trial court erred by granting summary judgment without discovery,

LAW AND DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Codé Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.3d 607, 610.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof | Bat trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. .art. 966D(1); Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 81-82, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 82.

We first address Ellis’ fourth assignment of error asserting that the trial court erred by' granting summary judgment without discovery. Ellis alleges that there has been no discovery, ‘nor the requisite investigation to determine issues of material fact to the claims presented in his petition for damages. He further argues that at the time of the hearing on the motion for summary judgment, there was a pending motion to compel responses to his request for production of documents.

The record in this case reveals that Ellis did'not propound discovery until June 24, 2016, after the motion for summary judgment was filed and nearly six months after he filed suit. He did not file a motion to compel until October 19, 2016, although the hearing on the motion for summary judgment was set for October 31, 2016. Ellis did not request a continuance of the hearing on the motion for summary judgment. Moreover, he failed to file an affidavit showing facts essential to justify his opposition or why he could not justify his opposition as required by La. Code Civ. Pro. art. 967. See Vanderbrook v. Coachmen Indus., Inc., 2001-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906, 911.

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Id. Under La. Code.Civ. Pro. art. 967, a trial judge clearly has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908, 912 (La. 1986). The only ^requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Id. at 913. The mere claim by an opponent to a motion for summary judgment that he does not have in his possession the facts and information necessary to counter such a motion will not defeat a summary judgment motion. Vanderbrook, 818 So.2d at 911.

Under the facts of this case, Ellis had the opportunity for “adequate discovery.” La. Code Civ. Pro. art. 966A(3). Additionally, notwithstanding Ellis’ allegation that there has been no discovery, he cannot rely on “the mere allegations or denials of his pleading” to rebut a supported motion for summary'judgment. La; Code Civ. Pro. art. 967B. Rather,-Ellis “must'set forth specific facts showing that there- is a genuine issue for trial.” Id. Ellis has failed to do so. Ellis has also failed to comply with the provisions of La. Code Civ. Pro. art. 967C that he file an affidavit ’Stating the reasons why he cannot present by affidavit facts essential to justify his opposition to the motion for summary judgment, thus allowing the court to order a, continuance or.to.allow discovery. Therefore, this assignment of error is without merit.

We now address Ellis’ contention that the previous decision in Ellis, 168 So.3d 714, (“Writ Action”) precludes Defendants from asserting an immunity defense in this case. Ellis argues that “as a matter of law of this case, the- defendants have been adjudged to have violated a non-discretionary statute, and therefore cannot be entitled to any immunity whatsoever.” We find that Ellis’ reliance on the “law of the case” doctrine is misplaced. The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. Arceneaux v. Amstar Corp., 2010-2329 (La. 7/1/11), 66 So.3d 438, 448. The matter pending before this Court is a completely separate case, involving different legal issues. The Writ ^Action involved an interpretation of La. R.S. 42:1141 to determine whether the Board had completed its investigation before bringing formal charges against Ellis. The pending matter alleges constitutional violations under 42 U.S.C. § 1983 and a claim for malicious prosecution. Thus, the law of the case principle is inapplicable. See Wehrlin v. Manitowoc Co., Inc., 2014-0428 (La. App. 1 Cir. 1/31/17), 2017 WL 436397 (unpublished), writ denied, 2017-0391 (La. 4/13/17), 218 So.3d 631. Defendants, therefore, are not precluded from asserting immunity with regard to Ellis’ pending claims.

We next address Ellis’ first assignment of error, alleging that the trial court erred in finding that Defendants’ actions were quasi-judicial and entitled to absolute immunity. The doctrine of judicial immunity provides judges with absolute immunity from liability for acts done in their judicial capacities. See Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So.2d 944, 946. This absolute immunity has been extended to prosecutors acting within the scope of their prosecutorial duties as an advocate for the state. Id. at 951. Further, because many 19administrative boards and commissions have a quasi-judicial function, it has become common for courts to recognize quasi-judicial immunity, equivalent to judicial immunity, for such boards and commissions, and their individual members, for actions taken and decisions made in their adjudicative role. Talbert v. Louisiana State Bd. of Nursing, 2003-0258 (La. App. 1 Cir. 12/31/03), 868 So.2d 729, 730. Similarly, the doctrine of absolute prosecu-torial immunity has been extended to agency officials performing certain functions analogous to those of a prosecutor, such as the decision to initiate administrative proceedings against an individual. See Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 2915, 57 L.Ed.2d 895 (1978).

The Board is charged with administering and enforcing the provisions of the Code of Ethics. La. R.S. 42:1132C. The purpose of the Code of Ethics is to further the public interest by ensuring that the law protects against conflicts of interest on the part of Louisiana’s public officials and state employees by establishing ethical standards to regulate the conduct of those persons. See La. R.S. 42:1101; In re Arnold, 2007-2342 (La. App. 1 Cir. 5/23/08), 991 So.2d 531, 536. The eleven-member Board is given the authority to investigate and pursue formal charges through either public or private hearings against an individual or entity for alleged violations of the Code of Ethics. See La. R.S. 42:1101 and 42:1134; Ellis, 168 So.3d at 721. Upon receiving a sworn complaint concerning a violation of the Code of Ethics, or voting to consider a matter which it has reason to believe may be a violation of the Code of Ethics, a private investigation shall be conducted to elicit evidence upon which the Board shall determine whether a public hearing should be conducted or that a violation has not occurred. La. R.S. 42:1141B(l)(a), C(l). If the Board determines following an investigation that a public hearing should be conducted, it shall issue charges. La. R.S. 42:1141C(3)(a).

ImThe acts of which Ellis complains in his petition are as follows:

(1) With regard to the Board, he claims that it filed charges against him without supporting evidence in order to defeat prescription;
(2) With regard to Monrose, that he signed the formal charges against Ellis as chairman of the Board;
(3) With regard to Allen, Mooney, and Brooks, that they recklessly misrepresented to the Board, the EAB, and the First Circuit Court of Appeal that the investigation had been completed and that they had sufficient evidence to establish a prima facie case; and
(4)With regard to Allen and Brooks, in their individual capacity, they failed to follow the prescribed legislative statutory process, they inadequately supervised their subordinates, and they acquiesced or were deliberately indifferent to a policy or custom which deprived Ellis of his constitutional rights.

As noted above, Ms. Grier testified by affidavit that the Board received information concerning potential violations of the Code of Ethics by Ellis, and that the Board referred Ellis to investigation. She further attested that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report, and that after reviewing the report, the Board voted to issue charges against Ellis. She stated that at all pertinent times, the Board believed that it had competent evidence to issue formal charges against Ellis. Finally, Ms. Grier attested that all pertinent times, Monrose, Allen, Mooney, and Brooks acted within their official capacities and within the lawful duties set forth in La. R.S. 42:1141.

We find that the Board’s procedures share enough of the characteristics of Inthe judicial process that quasi-judicial and/or quasi-prosecutorial immunity should be extended to the Board, and its individual members, for actions taken and decisions made in their adjudicative role. See Durousseau v. Louisiana State Racing Comm’n, 98-0442 (La. App. 4 Cir. 12/9/98), 724 So.2d 844, 846, writ denied, 99-0034 (La. 2/12/99), 738 So.2d 582. Extending such quasi-judicial immunity to the Board’s administrative adjudicatory decisions preserves the independence of judgment of the adjudicators by foreclosing any possibility of intimidation or deterrence through the threat or actuality of suits for damages. See Talbert, 868 So.2d at 731. We further find that the acts of Allen, .Mooney, and Brooks of which Ellis complains are akin to those of a prosecutor, entitling them to absolute immunity. See Forman v. Ours, 804 F.Supp. 864 (E.D. La. 1992), aff'd, 996 F.2d 306 (6th Cir. 1993). Thus, this assignment of error is without merit.

We next address Ellis’ second assignment of error asserting that the trial court erred in finding that Defendants’ mixed role of prosecutor and investigator did not negate absolute immunity. Ellis contends that where there is a mixing of investigative and prosecutorial functions, there can be no absolute immunity, citing Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In Buckley, the United States Supreme .Court stated that a prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings- are not entitled to absolute immunity. Id., 609 U.S. at 273, 113 S.Ct. at 2616.

Ms. Grier testified by affidavit that the Board referred Ellis to investigation, and that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report. Thereafter, the Board reviewed the report and voted to issue charges against Ellis. Ellis failed to produce factual support’ sufficient to establish that Defendants performed any investigatory functions that were not an integral part of their authority to pursue 112formal charges against an individual or entity for alleged violations of the Code of Ethics. See La. R.S. 42:1134. Thus, Ellis failed to establish the existence of a genuine issue of material fact or that Defendants are not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966. Therefore, this assignment of error is without merit.

Finally, we pretermit discussion of Ellis’ third assignment of error regarding the trial court’s finding that Defendants were entitled to qualified immunity pursuant to La. R.S. 9:2798.1. As we have found that Defendants are entitled to absolute immunity from Ellis’ claims, we need not address this alternative ground for dismissal of Ellis’ claims.

CONCLUSION

Based on the foregoing, we affirm the December 2, 2016 judgment of the trial court. All costs of this appeal are assessed to the plaintiff, Robert J. Ellis, Jr.

AFFIRMED, 
      
      . The original petition named Michael Dupree as a defendant. However, no mention is made of Mr. Dupree in the answer to the petition, the amended answer, or the motion for summary judgment.
     
      
      . Defendants incorrectly cited that they were entitled to such immunity pursuant to La. R.S. 9:2798, not La. R.S. 9:2798.1.
     
      
      . Ellis also contends, without briefing same, that the doctrine of res judicata serves to defeat immunity. We find that his reliance on this doctrine is also misplaced. The doctrine of res judicata is set forth in La. R.S. 13:4231, and provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of .the litigation are extinguished and merged in the judgment.
      (2) if the judgment is in favor of the defendant, all causes of action existing at the time' of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
      The pending matter involves additional parties than were involved in the Writ Action. Moreover, the cause of action asserted in this suit arose as a result of the dismissal of the charges at issue in the Writ Action, and therefore Ellis’ claims of constitutional violations under 42 U.S.C. § 1983 and malicious prosecution were not, nor could they have been, actually litigated and determined at that time.
     
      
      . Ellis did not raise on appeal the trial court's ruling that Allen, Mooney, and Brooks were entitled to immunity for Ellis' 42 U.S.C. § 1983 claims in their individual capacity. Thus, the dismissal of these parties in their individual capacities is a final judgment.
     