CLAYTON CANGELOSI NO. 22-CA-174
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH COUNCIL, ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 814-570, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
December 14, 2022
ROBERT A. CHAISSON JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED RAC FHW JJM PLAINTIFF/APPELLANT, CLAYTON CANGELOSI In Proper Person
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH COUNCIL; SCOTT WALKER, JEFFERSON PARISH COUNCIL CHAIR; CYNTHIA LEE SHENG, JEFFERSON PARISH PRESIDENT; AND PEGGY BARTON, JEFFERSON PARISH ATTORNEY William Peter Connick Michael J. Monistere CHAISSON, J.
In this case arising from the denial of a permit to sell merchandise, Clayton
Cangelosi appeals a March 24, 2022 judgment of the trial court sustaining a
peremptory exception of no right of action filed by Jefferson Parish Council,
Jefferson Parish Council Chair Scott Walker, Jefferson Parish President Cynthia
Lee Sheng, and Jefferson Parish Attorney Peggy Barton, and dismissing Mr.
Cangelosi’s claims with prejudice. For the following reasons, we affirm the
judgment of the trial court.
BACKGROUND
In January of 2021, pursuant to the Jefferson Parish Code of Ordinances, Mr.
Cangelosi sought a permit to conduct outdoor sales of Valentine’s Day-related
merchandise from February 12 to February 14, 2021. Permits to conduct such
sales are authorized by resolution of Jefferson Parish Council.
The resolution authorizing Mr. Cangelosi’s sales permit was initially
scheduled to be considered as part of the Addendum Agenda at the January 13,
2021 meeting of the Jefferson Parish Council; however, it was removed from the
agenda at the request of Councilman Byron Lee, who later stated that he had
received complaints about the annual sales and was concerned about traffic
congestion given the limited ingress and egress at the identified location.
Councilman Lee encouraged Mr. Cangelosi to identify other locations for the sale
and to reapply for the permit, which could be approved at the next council meeting
on February 3.
At the February 3 council meeting, a resolution authorizing Mr. Cangelosi’s
sales permit was adopted en globo with other resolutions as part of a consent
agenda. Mr. Cangelosi made an appearance and proceeded to question the council
as to why his permit requests for other additional locations had not been approved.
He also stated that he was working with a lawyer to get approval for these
22-CA-174 1 additional permits. Following a discussion with Councilman Lee over Mr.
Cangelosi’s treatment of the councilman’s staff, Councilman Lee moved to
reconsider and cancel the previously adopted resolution authorizing Mr.
Cangelosi’s sales permit. This motion was seconded and then approved by the
Council.
Two days later, Mr. Cangelosi filed his original petition for damages in
forma pauperis against the Jefferson Parish Council, Jefferson Parish Council
Chair Scott Walker, Jefferson Parish President Cynthia Lee Sheng, Jefferson
Parish Attorney Peggy Barton, and Councilman Byron Lee in his personal rather
than official capacity. The petition was amended on February 8 to add Jefferson
Parish as a defendant. The original petition was served on all of the named
defendants in their official capacities on April 26, 2021; however, Councilman
Lee, in his personal capacity, was not served until March 22, 2022.
In his petition, Mr. Cangelosi makes numerous allegations. His charges are
made specifically against Councilman Lee and “the Parish as a Whole.” He makes
no specific allegations against Parish President Cynthia Lee Sheng or Jefferson
Parish Attorney Peggy Barton. His allegations against Parish Council Chair Scott
Walker appear to be made against Mr. Walker in his official capacity for
purportedly allowing Councilman Lee’s “misconduct” and “abuse of power” to
continue. His charges against the Parish defendants include violations of his rights
under the First and Fourteenth Amendments of the United States Constitution and
abuse of power. He seeks damages for lost earnings, aggravation, pain and
suffering, and time spent on this suit.
The parish defendants filed an answer to Mr. Cangelosi’s petition denying
the accusations made against them. They next filed a peremptory exception of no
cause of action, in which they argue that Mr. Cangelosi failed to allege facts
sufficient to support a claim for relief pursuant to defendants’ alleged violations of
22-CA-174 2 the First and Fourteenth Amendments or alleged abuse of power. Following a
hearing on the merits, the trial court sustained this exception and dismissed Mr.
Cangelosi’s claims with prejudice on March 24, 2022. It is from this judgment that
Mr. Cangelosi appeals.1
DISCUSSION
The function of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. State, Div. of Admin., Office
of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La.
5/10/11), 63 So.3d 940, 945. 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 S., Inc., 616 So.2d 1234, 1238 (La. 1993). No
evidence may be introduced to support or controvert an exception of no cause of
action. La. C.C.P. art. 931. The court reviews the petition and accepts the well-
pleaded allegations of fact as true. Khoobehi Properties, LLC v. Baronne Dev. No.
2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), writ denied, 17-0893 (La. 9/29/17),
227 So.3d 288. Because Louisiana utilizes a system of fact pleading, it is not
necessary for a plaintiff to plead a theory of the case in the petition; however, mere
conclusions of the plaintiff unsupported by the facts do not set forth a cause of
action. Meckstroth v. Louisiana Dept. of Transp. & Dev., 07-0236 (La. App. 4 Cir.
6/27/07), 962 So.2d 490. 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
1 Councilman Lee, who was served with the petition later than the other defendants, also filed an exception of no cause of action regarding the claims made against him; however, his exception was heard separately from the earlier filed exception of the other defendants. Consequently, the judgment on Councilman Lee’s exception regarding the claims against him in his personal capacity are considered in a companion appeal, 22-CA-338.
22-CA-174 3 decision is necessarily based solely on the sufficiency of the petition. Id. The issue
is whether, on the face of the petition, the plaintiff is legally entitled to the relief
sought. State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur.
Agency, L.L.C., 63 So.3d at 946.
We begin our analysis with the observation that Mr. Cangelosi’s brief fails
to comport with the Uniform Rules - Courts of Appeal Rule 2-12.4 in that if fails to
clearly state assignments of alleged errors.
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CLAYTON CANGELOSI NO. 22-CA-174
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH COUNCIL, ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 814-570, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
December 14, 2022
ROBERT A. CHAISSON JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED RAC FHW JJM PLAINTIFF/APPELLANT, CLAYTON CANGELOSI In Proper Person
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH COUNCIL; SCOTT WALKER, JEFFERSON PARISH COUNCIL CHAIR; CYNTHIA LEE SHENG, JEFFERSON PARISH PRESIDENT; AND PEGGY BARTON, JEFFERSON PARISH ATTORNEY William Peter Connick Michael J. Monistere CHAISSON, J.
In this case arising from the denial of a permit to sell merchandise, Clayton
Cangelosi appeals a March 24, 2022 judgment of the trial court sustaining a
peremptory exception of no right of action filed by Jefferson Parish Council,
Jefferson Parish Council Chair Scott Walker, Jefferson Parish President Cynthia
Lee Sheng, and Jefferson Parish Attorney Peggy Barton, and dismissing Mr.
Cangelosi’s claims with prejudice. For the following reasons, we affirm the
judgment of the trial court.
BACKGROUND
In January of 2021, pursuant to the Jefferson Parish Code of Ordinances, Mr.
Cangelosi sought a permit to conduct outdoor sales of Valentine’s Day-related
merchandise from February 12 to February 14, 2021. Permits to conduct such
sales are authorized by resolution of Jefferson Parish Council.
The resolution authorizing Mr. Cangelosi’s sales permit was initially
scheduled to be considered as part of the Addendum Agenda at the January 13,
2021 meeting of the Jefferson Parish Council; however, it was removed from the
agenda at the request of Councilman Byron Lee, who later stated that he had
received complaints about the annual sales and was concerned about traffic
congestion given the limited ingress and egress at the identified location.
Councilman Lee encouraged Mr. Cangelosi to identify other locations for the sale
and to reapply for the permit, which could be approved at the next council meeting
on February 3.
At the February 3 council meeting, a resolution authorizing Mr. Cangelosi’s
sales permit was adopted en globo with other resolutions as part of a consent
agenda. Mr. Cangelosi made an appearance and proceeded to question the council
as to why his permit requests for other additional locations had not been approved.
He also stated that he was working with a lawyer to get approval for these
22-CA-174 1 additional permits. Following a discussion with Councilman Lee over Mr.
Cangelosi’s treatment of the councilman’s staff, Councilman Lee moved to
reconsider and cancel the previously adopted resolution authorizing Mr.
Cangelosi’s sales permit. This motion was seconded and then approved by the
Council.
Two days later, Mr. Cangelosi filed his original petition for damages in
forma pauperis against the Jefferson Parish Council, Jefferson Parish Council
Chair Scott Walker, Jefferson Parish President Cynthia Lee Sheng, Jefferson
Parish Attorney Peggy Barton, and Councilman Byron Lee in his personal rather
than official capacity. The petition was amended on February 8 to add Jefferson
Parish as a defendant. The original petition was served on all of the named
defendants in their official capacities on April 26, 2021; however, Councilman
Lee, in his personal capacity, was not served until March 22, 2022.
In his petition, Mr. Cangelosi makes numerous allegations. His charges are
made specifically against Councilman Lee and “the Parish as a Whole.” He makes
no specific allegations against Parish President Cynthia Lee Sheng or Jefferson
Parish Attorney Peggy Barton. His allegations against Parish Council Chair Scott
Walker appear to be made against Mr. Walker in his official capacity for
purportedly allowing Councilman Lee’s “misconduct” and “abuse of power” to
continue. His charges against the Parish defendants include violations of his rights
under the First and Fourteenth Amendments of the United States Constitution and
abuse of power. He seeks damages for lost earnings, aggravation, pain and
suffering, and time spent on this suit.
The parish defendants filed an answer to Mr. Cangelosi’s petition denying
the accusations made against them. They next filed a peremptory exception of no
cause of action, in which they argue that Mr. Cangelosi failed to allege facts
sufficient to support a claim for relief pursuant to defendants’ alleged violations of
22-CA-174 2 the First and Fourteenth Amendments or alleged abuse of power. Following a
hearing on the merits, the trial court sustained this exception and dismissed Mr.
Cangelosi’s claims with prejudice on March 24, 2022. It is from this judgment that
Mr. Cangelosi appeals.1
DISCUSSION
The function of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. State, Div. of Admin., Office
of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La.
5/10/11), 63 So.3d 940, 945. 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 S., Inc., 616 So.2d 1234, 1238 (La. 1993). No
evidence may be introduced to support or controvert an exception of no cause of
action. La. C.C.P. art. 931. The court reviews the petition and accepts the well-
pleaded allegations of fact as true. Khoobehi Properties, LLC v. Baronne Dev. No.
2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), writ denied, 17-0893 (La. 9/29/17),
227 So.3d 288. Because Louisiana utilizes a system of fact pleading, it is not
necessary for a plaintiff to plead a theory of the case in the petition; however, mere
conclusions of the plaintiff unsupported by the facts do not set forth a cause of
action. Meckstroth v. Louisiana Dept. of Transp. & Dev., 07-0236 (La. App. 4 Cir.
6/27/07), 962 So.2d 490. 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
1 Councilman Lee, who was served with the petition later than the other defendants, also filed an exception of no cause of action regarding the claims made against him; however, his exception was heard separately from the earlier filed exception of the other defendants. Consequently, the judgment on Councilman Lee’s exception regarding the claims against him in his personal capacity are considered in a companion appeal, 22-CA-338.
22-CA-174 3 decision is necessarily based solely on the sufficiency of the petition. Id. The issue
is whether, on the face of the petition, the plaintiff is legally entitled to the relief
sought. State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur.
Agency, L.L.C., 63 So.3d at 946.
We begin our analysis with the observation that Mr. Cangelosi’s brief fails
to comport with the Uniform Rules - Courts of Appeal Rule 2-12.4 in that if fails to
clearly state assignments of alleged errors. The brief does contain statements of
issues; however, these present statements and conclusions of law that are not
reflected in the record before us. For example, appellant states:
3. Did the Court err when it found that the Defendant, Jefferson Parish Council, Jefferson Parish Council Chair Scott Walker, Byron Lee In Person, Jefferson Parish President Cynthia Lee Sheng, Jefferson Parish Attorney, Jefferson Parish was [sic] not vicariously liable for the malicious actions against Clayton Cangelosi. Because he petition the Government redress of grievance. [sic] And the administration and the Council Revoked His already passed Permit out of Malice and Violated his first amendment right to petition the Government redress of grievance. [sic]
This statement is incorrect because the trial court made no findings
regarding the merits or liability of the defendants. Instead, it considered the
question before it on the exception of no cause of action, which was whether
plaintiff’s petition alleged facts sufficient to present a cognizable claim.
Nevertheless, regardless of these errors in Mr. Cangelosi’s brief, we proceed with
our duty to conduct a de novo review of his petition under the standard of the
exception of no cause of action as stated above.
Federal Claims
Mr. Cangelosi alleges that defendants violated his constitutional rights under the
Fourteenth and First Amendments of the United States as well as the Louisiana
22-CA-174 4 Constitution. We address these claims in turn.2
Mr. Cangelosi’s recovery against the defendants in their official capacities is
governed by 42 U.S.C. §1983, which provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …
The Louisiana Supreme Court has held that to recover under §1983, a
plaintiff must allege and prove two essential elements: 1) plaintiff must show that
the conduct occurred under color of state law; and 2) plaintiff must show that this
conduct deprived him or her of a right, privilege or immunity secured by the
Constitution or a law of the United States. Moresi v. State Through Dep’t of
Wildlife & Fisheries, 567 So.2d 1081, 1084 (La. 1990). Procedural due process
imposes constraints on governmental decisions which deprive individuals of
“liberty” or “property” interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319, 332, 96
S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner. Id. Upon de novo review of Mr. Cangelosi’s petition, we find that he has
failed to allege a deprivation of a constitutionally protected property interest.
Applying for a permit does not afford the applicant vested rights. Palermo Land
Co., Inc. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482 (La. 1990). In
other words, Mr. Cangelosi does not have a right to a vendor’s permit such that the
2 Mr. Cangelosi additionally alleges that Councilman Lee acted with malice against him in voting to rescind the resolution authorizing his vendor’s permit. The analysis below encompasses Mr. Cangelosi’s claims against Councilman Lee in his official capacity, while those made against him in his personal capacity are addressed in the opinion in the companion appeal, 22-CA-338.
22-CA-174 5 council’s actions violated his right to due process under the Fourteenth
Amendment.
Mr. Cangelosi further alleges that his rights to freedom of speech under the
First Amendment were violated when the council voted to rescind the resolution
authorizing his vendor’s permit after he spoke out at the meeting and criticized the
council for statements made at previous council meetings. The First Amendment
right to free speech includes not only the affirmative right to speak, but also the
right to be free from retaliation by a public official for the exercise of that right.
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). However, not
every reaction made in response to an individual’s exercise of his First
Amendment right to free speech is actionable retaliation. Id. To prevail on a
§1983 claim for First Amendment retaliation, a plaintiff must show: 1) that he was
engaged in constitutionally protected activity; 2) the defendant’s actions caused
him to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity; and 3) the defendant’s adverse actions were
substantially motivated by the constitutionally protected conduct. McLin v. Ard,
866 F.3d 682, 696 (5th Cir. 2017). The second element requires some showing
that the plaintiff’s exercise of free speech has been curtailed. Id. Upon de novo
review of Mr. Cangelosi’s petition, we find that he has failed to allege facts
sufficient to support his retaliation claim. In particular, he has failed to allege facts
sufficient to support this third element with regard to actions taken by any
defendant other than Councilman Lee. He also has failed to allege that his ability
to speak out against or criticize the council have been curtailed or chilled in any
way.
Finally, regarding Mr. Cangelosi’s §1983 claim, particularly wherein he
states that Jefferson Parish Council is vicariously liable for the actions of the
council members, we note that it is well settled that a local governmental body’s
22-CA-174 6 liability under 42 U.S.C. §1983 cannot be imposed under the theories of vicarious
liability or respondeat superior. Mederos v. St. Tammany Par. Gov’t, 15-1602
(La. App. 1 Cir. 7/11/16), 199 So.3d 30, 37. The Parish Council may only be held
liable under §1983 if the constitutional violation is due to official action, policy, or
custom. Monell v. Department of Social Services, 436 U.S. 658, 690-1, 98 S.Ct.
2018, 2035-6, 56 L.Ed.2d 611 (1978). Upon de novo review of Mr. Cangelosi’s
petition, we find no facts sufficient to support a direct §1983 claim against the
Jefferson Parish Council.
State Claims
As to Mr. Cangelosi’s allegations regarding violations of his State
constitutional rights, we find that the same factors which defeat his federal §1983
claim reveal that he has failed to state a cause of action for violations of his State
constitutional rights by the defendants.
CONCLUSION
Upon de novo review, we find that Mr. Cangelosi has failed to allege facts
sufficient to state a cause of action against the defendants. We further find that
such deficiency cannot be cured through amendment. Accordingly, the judgment
of the trial court is affirmed.
AFFIRMED
22-CA-174 7 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 14, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-174 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE) MICHAEL J. MONISTERE (APPELLEE) WILLIAM PETER CONNICK (APPELLEE)
MAILED CLAYTON CANGELOSI (APPELLANT) ELIZABETH O. CLINTON (APPELLEE) 2357 CADDY DRIVE ATTORNEY AT LAW MARRERO, LA 70072 3421 NORTH CAUSEWAY BOULEVARD SUITE 408 METAIRIE, LA 70002