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Coleman v. Lee

United States District Court, W.D. Louisiana, Shreveport Division

January 30, 2017





         Before 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.

         I. BACKGROUND.

         Coleman 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.

         On or 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. See id.

         Upon 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.

         Coleman 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.

         Coleman 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., ¶¶ 6-7.


         A. Service.

         Defendants 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 served by:

(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 ...

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