United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court is a motion to dismiss for insufficiency of service
by the Covington Police Department, Covington Police Chief
Tim Lentz, Sgt. Shane Maricelli, and Officer Lane Williard
Benjamin, II, individually and in their official capacities.
For the reasons that follow, the motion is GRANTED.
civil rights litigation arises from a traffic stop effected
by Covington Police Department officers.
March 24, 2017, Dennis Deveer was stopped in his vehicle by
Covington Police Department officers. When the officers
arrested him, he alleges, he sat in a hot police car for
hours before being transported to St. Tammany Parish Jail. He
was arrested and charged with running a stop sign and
resisting an officer. But Deveer alleges that he did neither,
and that he should have been issued a misdemeanor summons,
not arrested and booked at the jail.
March 22, 2018, Dennis Deveer, pro se, sued St. Tammany
Parish Sheriff's Office, St. Tammany Correctional Center,
Covington Police Department, Tim Lentz (individually and in
his official capacity as Covington Police Chief), John
Christopher Dupuy (individually and in his official capacity
as a Deputy of the Covington Police Department), Shane
Marcello (individually and in his official capacity as a
sergeant of the Covington Police Department), and Lance
Williard Benjamin, II (individually and in his official
capacity as an officer of the Covington Police Department).
Deveer seeks to recover under 42 U.S.C. § 1983 as a
result of injuries he says he suffered during the traffic
stop. St. Tammany Correctional Center and St. Tammany Parish
Sheriff's Office moved to dismiss the claims against them
for failure to state a claim; no opposition was filed. On May
29, 2018, the Court granted the motion. The remaining
defendants (including Shane Maricelli whom defendants note
was incorrectly named in the complaint as Shane Marcello) now
move to dismiss the plaintiff's claims for insufficient
service and insufficient service of process.
of process, under longstanding tradition in our system of
justice, is fundamental to any procedural imposition on a
named defendant." Murphy Bros., Inc. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999).
“In the absence of service of process (or waiver of
service by the defendant), a court ordinarily may not
exercise power over a party the complaint names as
defendant.” Id. (“[O]ne becomes a party
officially, and is required to take action in that capacity,
only upon service of a summons....”)(citation omitted);
see Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987)(the Court lacks personal
jurisdiction over a defendant unless the defendant has been
served with process in accordance with Federal Rule of Civil
Procedure 4.); see also Aetna Bus. Credit v. Universal
Decor, 635 F.2d 434, 435 (5th Cir. 1981)("In the
absence of valid service of process, proceedings against a
party are void.").
Rule of Civil Procedure 4(c) governs service of process and
obliges the plaintiff to serve the summons and complaint:
A summons must be served with a copy of the complaint. The
plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish
the necessary copies to the person who makes service.
4(m) provides the time limit for service:
If a defendant is not served within 90 days after the
complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if
the plaintiff shows good cause for the ...