United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Dismiss (Rec. Doc. No.
23) filed by the defendant, Gordon Dove, seeking
dismissal of plaintiff's complaint under Fed.R.Civ.P.
12(b)(5) for insufficient service of process. The motion and
the underlying matter were referred to a United States
Magistrate Judge to conduct a hearing, including an
evidentiary hearing, if necessary, and to submit proposed
findings and recommendations for disposition pursuant to
28 U.S.C. § 636(b)(1)(B) and (C) and §
1915A, and as applicable, 42 U.S.C. §
1997e(c)(1) and (2). Upon review of the entire
record, the Court has determined that the motion and this
matter can be disposed of without an evidentiary hearing.
Factual and Procedural Background
plaintiff, Johnny Joe Adam Usé
(“Usé”) was an inmate housed in the
Terrebonne Criminal Justice Complex (“TPCJC”) at
the time of the filing of this civil action. He has since been
released from the facility. Usé filed this pro
se and in forma pauperis complaint pursuant to
42 U.S.C. § 1983 against defendants, Terrebonne Parish
Sheriff Jerry J. Larpenter, Terrebonne Parish President
Gordon Dove, Sergeant Lee, and Sergeant Karen Becnel, seeking
monetary compensation and injunctive relief resulting from
the conditions of his confinement.
construed, Usé complains that TPCJC officials charge
inmates for certain clothing items, such as t-shirts,
underwear and socks, which he believes should be provided to
the inmates upon intake into the prison. He also alleges that
the food service and paper supplies for indigents are
inadequate. He further complains that the commissary prices
are inflated at the prison. He also contends generally that
the people in Terrebonne Parish are being charged to use the
money machines to obtain money to put in the inmates'
Standards of Review
Review for Frivolousness
to 28 U.S.C. § 1915(e)(2) and § 1915A and 42 U.S.C.
§ 1997e(c), the Court is required to sua sponte
dismiss cases filed by prisoners proceeding in forma
pauperis upon a determination that they are frivolous.
The Court has broad discretion in determining the frivolous
nature of the complaint. See Cay v. Estelle, 789
F.2d 318, 325 (5th Cir. 1986), modified on other
grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir.
1993). However, the Court may not sua sponte dismiss
an action merely because of questionable legal theories or
unlikely factual allegations in the complaint.
this statute, a claim is frivolous only when it lacks an
arguable basis either in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998). “A
[claim] lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint
alleges the violation of a legal interest which clearly does
not exist.” Harper v. Showers, 174 F.3d 716,
718 (5th Cir. 1999) (quoting Davis v. Scott, 157
F.3d 882, 889 (5th Cir. 1998)). It lacks an arguable factual
basis only if the facts alleged are “clearly baseless,
” a category encompassing fanciful, fantastic, and
delusional allegations. Denton v. Hernandez, 504
U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at
327-28). Therefore, the Court must determine whether the
plaintiff's claims are based on an indisputably meritless
legal theory or clearly baseless factual allegations.
Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994);
see Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir.
1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir.
Motion Under Fed.R.Civ.P. 12(b)(5)
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5)
challenges the failure to or means of delivery of the summons
and copy of the complaint. A Rule 12(b)(5) motion turns on
the legal sufficiency of the service of process. Quinn v.
Miller, 470 Fed.Appx. 321, 323 (5th Cir. 2012). Once the
validity of service of process has been contested, the
plaintiff bears the burden of establishing its validity.
Carimi v. Royal Carribean Cruise Line, Inc., 959
F.2d 1344, 1346 (5th Cir. 1992). A district court has broad
discretion to dismiss an action pursuant to Rule 12(b)(5) for
insufficient service of process. Kreimerman v. Casa
Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir.
Inadequate Service on Dove
Gordon Dove seeks dismissal of this pro se and
in forma pauperis complaint on the basis that
service was not properly made upon him. Specifically, Dove
alleges that the service was left for him at the Terrebonne
Parish Sheriff's Office and that the Sheriff is not a
registered agent for him.
plaintiff is required to serve the summons and a copy of the
complaint upon the defendants in a timely and proper manner.
See Fed. R. Civ. P. 4. When a plaintiff is
proceeding as a pauper, service is to be accomplished through
the U.S. Marshal's Service in accordance with 28 U.S.C.
§ 1915(d) and Fed.R.Civ.P. 4(c)(2). A pro se
plaintiff bears the burden of proving the validity of service
or good cause for failure to effect timely service. Sys.
Signs Supplies v. U.S. Dep't of Justice, 903 F.2d
1011, 1013 (5th Cir. 1990). “[G]ood cause is shown when
in forma pauperis plaintiff[ ]'s failure to properly
serve a defendant is attributable to a government personnel
who [has] improperly performed their duties.”
Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444,
447 (5th Cir. 1996); see also, Sanchez v.
Perez, No. 96-40049, 1996 WL 512289, at *1 (5th Cir.
Aug. 30, 1996) (dismissal improper where Marshal did not
properly serve the summons and did not seek corrective action
from the plaintiff); Pickens v. Powell, 188
Fed.Appx. 258, 259 (5th Cir. 2006) (the U.S. Marshal's
Service improperly performed its duty when it attempted to
serve only by certified mail and not personally, and
dismissal was improper).
case, it appears there is good cause for the improper service
which was not the fault of the plaintiff. Pursuant to the
standard practice of this Court, Title 28 of the United
States Code, and the Federal Rules of Civil Procedure,
summons and a copy of the complaint were prepared by the
Clerk of Court and provided to the U.S. Marshal's Service
for service upon the defendants. A review of the summons
issued by the Clerk of Court reflects, however, that other
than the name “Gordon Dove, ” the Clerk of Court
failed to include a service address on the summons intended
for Dove. Plaintiff provided a service address for
Dove in his complaint as Terrebonne Parish Government Tower,
7856 Main Street, Houma, Louisiana, 70360. The record does
not reflect that the Marshal's Service sought to obtain
the missing address or ...