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Richard v. Harris

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

August 16, 2018

LAWRENCE RICHARD
v.
ALONZO HARRIS ET AL

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the Court, on referral from the district judge, is a Motion To Dismiss Plaintiff's Complaint filed by Defendant Bruce A. Gaudin (“Gaudin”) [Rec. Doc. 40].

         I. Factual Background

         The Plaintiff, after dismissal by the State Court in an action that was pending in the 27th Judicial District Court for the Parish of St. Landry, State of Louisiana, in Civil Action No. 16-C-0977-A, sought to file this action herein against a number of parish and state employees, as well as Gaudin, a private attorney. While neither the Original Complaint [Rec. Doc. 1] nor the Amended Complaint [Rec. Doc. 11]

         contain specific allegations against Gaudin, an exhibit attached to the Amended Complaint states:

         1. Bruce Gaudin

He first off violated my civil rights and also misused his power with the judge. I dont [sic] understand why he felt he had the authority to take my property away. The property belong to me and being that he lied to the judge that is considered theft by fraud. And when I went to talk to him about the mistake he made he said if I pay him he would put the property back in my name. My daughter Jane paid him $1700 to take the property, and if I have to bring Jane to court I will be suing her as well to get my property back. I am suing him for malpractice and pain and suffering. And if he decide to take it to trial I would like a jury trial.

Rec. Doc. 11-1, p.1.

         II. Law and Analysis

          Gaudin argues, and this Court agrees, that the statement above is not a sufficient “short and plain statement of the claim, ” because it does not state what he did to violate plaintiff's rights. It merely states legal conclusions that a piece of property that belonged to the plaintiff was taken by fraud. The complaint contains no allegations which can support a claim against Gaudin, a lawyer in private practice, pursuant to §1983. 42 U.S.C. § 1983 provides for a private right of action for violations of federally-secured rights under color of state law. The statute states in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state . . ., subject, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . . shall be liable to the party injured.

Thus, in order for a §1983 action to be viable, a plaintiff must meet three requirements:

1) deprivation of a right secured by the U.S. Constitution or ...

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