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Use v. Larpenter

United States District Court, E.D. Louisiana

October 9, 2018

JOHNNY JOE ADAM USÉ
v.
JERRY J. LARPENTER, GORDON DOVE, SGT. LEE, SGT. KAREN BECNEL

         SECTION “S” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Factual and Procedural Background

         The 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.[1] He has since been released from the facility.[2] 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.

         Broadly 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' accounts.

         II. Standards of Review

         A. Review for Frivolousness

         Pursuant 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.

         Under 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. 1992).

         B. Motion Under Fed.R.Civ.P. 12(b)(5)

         A 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. 1994).

         III. Analysis

         A. Inadequate Service on Dove

         Defendant 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.

         A 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).

         In this 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.[3] Plaintiff provided a service address for Dove in his complaint as Terrebonne Parish Government Tower, 7856 Main Street, Houma, Louisiana, 70360.[4] The record does not reflect that the Marshal's Service sought to obtain the missing address or ...


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