United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
the Court, on referral from the district judge, is a Motion
To Dismiss Plaintiff's Complaint filed by Defendant
Sheriff Bobby Guidroz (“Guidroz”) [Rec. Doc. 49].
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 defendants, including St. Landry Parish Sheriff
Bobby Guidroz. He alleges that his property was taken by
“fraudulent acts by persons in authority.” [Rec.
Doc. 1, p 4.] Plaintiff alleges that Guidroz should be
charged with negligence, accessory and withholding evidence
because this matter “could have been taken care of but
authorities was saying they can't do anything after a
judge ruling and I feel like everybody was in favor of the
judge.” [Rec. Doc. 11-1, p.3]
Law and Analysis
Standard of Review
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the
court “must accept as true all well pleaded facts in
the complaint, and the complaint is to be liberally construed
in favor of the plaintiff.” Kaiser Aluminum &
Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982); Miller v. Stanmore, 636
F.2d 986, 988 (5th Cir. 1981). However, the court may not
accept as true mere conclusionary allegations. Kaiser
Aluminum, 677 F.2d at 1045; Assoc‘d Builders,
Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir.
1974). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
A. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Facts
that merely create a suspicion of a legally cognizable right
of action are not enough. Id. (citing 5 C. Wright
& Miller, Federal Practice and Procedure § 1216, pp.
235-236 (3d ed. 2004)). Although a complaint should not be
dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim, Kaiser Aluminum, 677 F.2d at
1045; Conley v. Gibson, 1');">355 U.S. 41, 45-56 (1957), a
complaint may be dismissed that shows relief to be barred by
an affirmative defense. Kaiser Aluminum, 677 F.2d at
1045; United Trans. Union v. Florida East Coast Railway
Co., 586 F.2d 520, 527 (5th Cir. 1978).
deciding a motion to dismiss, a court may (without converting
the motion to one for summary judgment) properly look beyond
the complaint to matters of public record. Wright v. U.S.
Postal Services, 344 F.Supp.2d 956, 961 (M.D. La. 2004);
Cinel v. Connick, 15 F.3d 1338');">15 F.3d 1338, 1343 n. 6 (5th
Cir.), cert. denied, 13 U.S. 868');">513 U.S. 868 (1994); Louisiana ex
rel. Guste v. United States, 1310');">656 F.Supp. 1310, 1341 n. 6
(W.D.La.1986), aff'd, 832 F.2d 935 (5th
Cir.1987), cert. denied, 1033');">485 U.S. 1033 (1988).
context of a motion to dismiss, the applicable test for
determining jurisdiction on the face of the pleadings is not
whether the plaintiff may actually recover, but
“whether the federal court claim alleged is so patently
without merit as to justify the District Court's
dismissal for want for jurisdiction.” Sisk v. Texas
Parks and Wildlife Dept. 1056');">644 F.2d 1056, 1058 (5th Cir.
1981). Therefore, the complaint must be drawn to seek
recovery under a federal statute or directly under the United
States Constitution, and not immaterial and made solely for
the purpose of obtaining federal jurisdiction, or wholly
insubstantial and frivolous. Spector v. L Q Motor Inns.,
Inc., 17 F.2d 278');">517 F.2d 278, 281 (5th Cir. 1975); Bell v.
Hood, 327 U.S. 678, 682-83 (1946).
Guidroz argues, and this Court agrees, that Plaintiff has
failed to allege any actions, performed directly by the
Sheriff or that would otherwise implicate him. He has also
failed to identify a protected property ...