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Boyd v. Normand

United States District Court, E.D. Louisiana

November 12, 2017

KIRKLON LA'ROY BOYD
v.
SHERIFF NEWELL NORMAND ET AL.

         SECTION “A” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 ¶'s IV and V).

         Boyd 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. No. 11.

         Second, 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.

         Thereafter, 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.

         Sheriff 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.

         By 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 further hearing.

         Record Doc. No. 28. Plaintiff has never filed a response to defendant's motion, as ordered by the court. Id.

         For the 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.

         I also 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.

         ANALYSIS

         I. STANDA ...


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