United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Kirklon La'Roy Boyd is a prisoner currently incarcerated
in the Jefferson Parish Correctional Center in Gretna,
Louisiana. He filed this complaint pro se and in forma
pauperis pursuant to 42 U.S.C. § 1983 at a time when he
was a pretrial detainee awaiting trial on a murder charge.
The original defendants were Jefferson Parish Sheriff Newell
Normand (“Sheriff Normand”), Deputy Darryl
Tillery (“Deputy Tillery”), and the Jefferson
Parish Sheriff Office (the “Sheriff's
Office”). Boyd alleges that he was subjected to
excessive force on May 23, 2016, when he was attacked by
Deputy Tillery after being escorted from the jail to
“commissionary [sic] court.” Plaintiff seeks
monetary damages for physical injuries, emotional distress,
and pain and suffering. In addition, he seeks a “public
apology from the Sheriff and all parties that were involved
fired and pros[ecu]ted to the highest extent of the
law.” Record Doc. No. 5 (Complaint at Â¶'s IV and
was permitted two opportunities to expand upon the
allegations in his original form Section 1983 complaint.
First, in response to the court's order, he submitted a
written statement of facts concerning his claims. Record Doc.
on January 12, 2017, I conducted a telephone conference in
this matter. Plaintiff was sworn and testified for all
purposes permitted by Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), and its progeny. Plaintiff's written
submissions and testimony provided at the Spears
hearing were sufficient to state a cognizable constitutional
claim against Deputy Tillery for use of excessive force.
Record Doc. No. 19.
however, by order entered August 4, 2017, the presiding
district judge accepted my report and recommendation to
dismiss without prejudice plaintiff's complaint
as to Deputy Tillery for failure to prosecute and/or in
accordance with Fed.R.Civ.P. 4(m). Tillery's dismissal
without prejudice occurred only after the court had obtained
Tillery's last known address from his former employer,
the Sheriff; the United States marshal was unable to serve
Tillery at that address; and plaintiff failed to show good
cause why he could not provide Tillery's location or
otherwise assist the court in effectuating service of process
upon Tillery on his behalf. The court also dismissed with
prejudice plaintiff's claims as to the Sheriff's
Office, which is not a suable entity, leaving
Sheriff Normand as the only remaining defendant. Record Doc.
Nos. 25 and 26.
Normand filed a motion to dismiss or, alternatively, for
summary judgment, on September 6, 2017. Record Doc. No. 27.
In his motion, the Sheriff argues that Boyd has made no
allegation that the Sherif was personally involved in any way
in Tillery's use of force against Boyd. He also argues
that Boyd makes no allegation of any official policy,
practice or custom of the Sheriff sufficient to impose
official capacity liability against him under governing
Section 1983 case law.
order entered September 8, 2017, the court instructed
plaintiff to respond in writing to the Sheriff's motion
no later than September 26, 2017, and that
his response [to defendant's motion to dismiss] should
include sworn affidavits and/or other verified materials
sufficient to show that there is a material dispute
precluding dismissal of this case . . . . Failure to follow
the requirements of this order may result in a recommendation
that the motion be granted and the case dismissed without a
Doc. No. 28. Plaintiff has never filed a response to
defendant's motion, as ordered by the court. Id.
following reasons, I recommend that the Sheriff's motion
to dismiss should be granted and that the remaining federal
claim against the Sheriff under 42 U.S.C. § 1983 be
DISMISSED WITH PREJUDICE for failure to
state a claim.
recommend that Boyd's state law claims against the
Sheriff should be DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction,
reserving Boyd's right to reassert the state law claims
against the Sheriff in state court.