United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Dismiss Pursuant to FRCP 4(j),
12(b)(4), 12(b)(5) and 12(b)(6) filed by Defendants, Harrison
Shaver and Sherlon Combs. See Record Document 39.
Defendants seek dismissal on the grounds of insufficient
service, qualified immunity, and failure to state a claim
upon which relief can be granted. Plaintiff Erwin Darnell
Coleman (“Coleman”) opposed the Motion to
Dismiss, arguing there was sufficient service; he has stated
a failure to intervene claim; and dismissal on the ground of
qualified immunity is premature at this stage. See
Record Document 47. For the reasons set forth below,
Defendants' Motion to Dismiss is DENIED.
resided with his mother in Shreveport, Louisiana and was
under parole supervision at this time. See Record
Document 36 (Second Amended Complaint), ¶¶ 8-9.
Probation and Parole Officer Shaver (“Officer
Shaver”) was Coleman's parole officer. See
id., ¶ 10.
about January 27, 2015, during the morning hours, Coleman was
at his mother's home located in Shreveport, La. See
id., ¶ 9. City of Shreveport police officer C.O.
Lee (“Officer Lee”), City of Shreveport police
officer M.T. Murphy (“Officer Murphy”), Officer
Shaver, and Probation and Parole Officer Combs
(“Officer Combs”) came to the home where Coleman
resided because a neighbor had called the police and accused
Coleman of committing acts of minor property damage. See
id., ¶ 11. According to Coleman, the police began
to knock loudly and kick on the door to the residence,
demanding that he exit. See id., ¶ 12. Coleman
alleges that he inquired through the closed door what was
the“problem” and asked about a warrant. See
id. The officers refused to answer and told Coleman they
needed no warrant to enter his home. See id. Coleman
called 911 to find out why the officers were there. See
id. Once he was able to determine the purpose of the
officers' presence at his residence, he exited the house.
his exit, Coleman alleges that Officer Lee and Officer Murphy
immediately grabbed him and handcuffed him. See id.,
¶ 13. Coleman further alleges that Officer Combs and
Officer Shaver were in the immediate vicinity. See
id. Once handcuffed, Officer Lee body slammed Coleman
onto the concrete floor of the porch. See Id.
Coleman's head was slammed onto the floor. See
id. The body slam caused Coleman to lose three teeth and
caused injury to his abdomen area and groin. See id.
Coleman contends that Officer Lee also repeatedly kicked
Coleman in his head and lower body area. See id.
alleges that Officer Murphy, Officer Combs, and Officer
Shaver had time to intervene to warn, command and/or stop
some or all of the use of force by Officer Lee. See
id., ¶ 14. Coleman maintains that the force used by
Officer Lee was obviously excessive at the time and the
actions of the officers were clearly a violation of
Coleman's civil rights. See id.
filed a Second Amended Complaint and Demand for Jury Trial on
March 23, 2016. See id. His action is brought
pursuant to 42 U.S.C. § 1983 and the First, Fourth and
Fourteenth Amendments of the United States Constitution.
See id., ¶ 1. Coleman alleges excessive force,
failure to intervene, and the corresponding state law claims.
See id., ¶¶ 16-26. The named defendants
are Officer Lee, Officer Murphy, the City of Shreveport,
Officer Shaver, and Officer Combs. See id.,
¶¶ 3-7. Officer Shaver and Officer Combs are sued
in their individual capacities only. See id.,
LAW AND ANALYSIS.
argue that the allegations against them amount to “a
suit against the state for purposes of service” and
that they have not been served in accordance with Louisiana
Revised Statutes 13:5107 and 39:1538. Rule 12(b)(4) permits a
court to dismiss a complaint for insufficient process. Rule
12(b)(5) allows a claim to be dismissed for insufficient
service of process. Pursuant to Rule 4(j)(2), a state, a
municipal corporation, or any other state-created
governmental organization that is subject to suit must be
(A) delivering a copy of the summons and of the complaint to
its chief executive officer; or
(B) serving a copy of each in the manner prescribed by that
state's law for serving a summons or like process ...