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Mayeaux v. McKee

United States District Court, M.D. Louisiana

November 10, 2014

KENNETH MAYEAUX (#318576)
v.
MACK MCKEE, ET AL

Kenneth Mayeaux, Plaintiff, Pro se, Covington, LA.

For Mack McKee, Defendant: Tara Lynn Johnston, LEAD ATTORNEY, Erlingson Banks, PLLC, Baton Rouge, LA.

MAGISTRATE JUDGE'S REPORT

STEPHEN C. RIEDLINGER, UNITED STATES MAGISTRATE JUDGE.

Before the court is Mack McKee's Motion to Dismiss pursuant to Rule 12(b)(5), Fed.R.Civ.P. Record document number 11. The motion is not opposed.

Pro se plaintiff, an inmate currently confined at St. Tammany Parish Jail, Covington, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Cpl. Mack McKee and East Baton Rouge Jail. Plaintiff alleged that Cpl. McKee subjected him to an excessive use of force in violation of his constitutional rights.

I. Factual Allegations

Plaintiff alleged that while confined at East Baton Rouge Parish Prison he was subjected to an excessive use of force in violation of his constitutional rights. Specifically, the plaintiff alleged that on October 7, 2013, [1] Cpl. McKee slapped a tray out of the plaintiff's hands, kicked the plaintiff in the back and put his hands around the plaintiff's neck without provocation. Plaintiff further alleged that Cpl. McKee made offensive comments during the incident.

II. Applicable Law and Analysis

A. Procedural Background

Plaintiff filed his § 1983 complaint on February 4, 2014. On February 27, 2014, the plaintiff's motion to proceed in forma pauperis was granted.[2] On that same date, the United States Marshal was ordered to serve the defendants wherever found.[3]

Plaintiff stated in the Process Receipt and Return Form USM-285 that the defendant's address for service was " East Baton Rouge Jail." [4] The service return states that " Lana Price, Secretary" was " personally served" on May 2, 2014, and indicates that service was made at the address provided. Id.

B. Rule 12(b)(5) - Standard

Defendant Cpl. McKee moved to dismiss the complaint pursuant to Rule 12(b)(5), Fed.R.Civ.P. for insufficient service of process. Cpl. McKee asserted that service of process was insufficient because Lana Prince was ...


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