Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richard v. Harris

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

November 7, 2018

LAWRENCE RICHARD
v.
ALONZO HARRIS ET AL

          SUMMER HAYS JUDGE.

          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 Sheriff Bobby Guidroz (“Guidroz”) [Rec. Doc. 49].

         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 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]

         II. Law and Analysis

         A. Standard of Review

         1. Fed.R.Civ.P. 12(b)(6)

         When 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).

         In 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).

         2. Fed.R.Civ.P. 12(b)(1)

         In the 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).

         B. Analysis

         Sheriff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.