United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
Ware Youth Center (“Ware”), Darqwiez Murphy
(“Murphy”), and Raymond Lloyd
(“Lloyd”) filed a Motion to Dismiss for
Insufficiency of Service, Improper Venue, and Lack of
Standing and, alternatively, a Motion for a More Definite
Statement (Doc. 7). Because service was effected by the
United States Marshal's Service (“USMS”),
Defendants' Motion to Dismiss (Doc. 7) for lack of proper
served should be denied, the Motion to Dismiss for improper
venue should be denied, and the Motion to Dismiss for lack of
standing should be granted as to Williams. However,
Defendants' alternative request to transfer venue to the
Shreveport Division (Doc. 7) should be granted.
Ladarian Jackson (“Jackson”), through his
appointed tutrix, Tracy Williams (“Williams”),
filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983, in forma pauperis. The named
defendants are Ware (a juvenile detention center and group
home located in Coushatta, Red River Parish, Louisiana),
unknown John Does employed at Ware, Murphy (employed at
Ware), and Lloyd (a warden, administrative agent, or employee
contends that, when he was confined in Ware,  he was beaten and
injured by Murphy in the presence of another guard. Jackson
contends he sustained “open wound bruises, ” and
mental and emotional injuries. Jackson contends Ware, as
Murphy's employer, is liable for the injuries caused by
Murphy under the theory of respondeat superior.
Jackson contends that Williams complained to Lloyd about
Jackson's injuries. Lloyd told Williams he had reviewed
the video tapes of the incident and would “press
unspecified ‘charges' against Plaintiff Jackson if
this type event occurred again.” Lloyd refused to allow
Williams or Jackson to view the videotape. Jackson further
contends he was denied medical care for his resulting
headaches and neck pain. Plaintiff seeks monetary damages
(including punitive damages), attorney's fees, costs, and
Ware, Murphy, and Lloyd filed a Motion to Dismiss (Doc. 7),
alleging: (1) improper service; (2) improper venue; and (3)
that Williams lacks standing to file suit on behalf of
Jackson. Defendants also move for a more definite statement
and a transfer to the Shreveport Division (Doc. 7).
then enrolled for Plaintiff and filed a “Motion to
Amend Complaint and Transfer Venue” (Doc. 19).
Law and Analysis
Service of process on Defendants by the USMS was
Defendants contend the complaint should be dismissed for
failure to effect sufficient service of process. Defendants
contend they became aware of this suit when “the
summons and an unsigned, unverified copy of the
complaint” were addressed only to the “Ware Youth
Center” and delivered by certified mail (Doc. 7-1).
Defendants complain that Fed.R.Civ.P. 4(j)(2) was not complied
pro se litigant proceeding in forma
pauperis timely and correctly requests service by the
USMS, and the defendant has actual notice of the suit, the
interests of justice are best served by allowing the
litigants to rely upon the service ultimately effected by the
USMS, even if it is untimely or improper. See Rochon v.
Dawson, 828 F.2d 1107, 1109 (5th Cir. 1987) (citing
Romandette v. Weetabix Co., Inc., 807 F.2d 309 (2d
Cir. 1986)); see also Lindsey v. U.S.R.R. Retirement
Bd., 101 F.3d 444 (5th Cir. 1996); Byrd v.
Stone, 94 F.3d 217 (5th Cir. 1996). Where there is no
prejudice to the defendant, the plaintiff should not be
penalized for the failure of the USMS to properly effect
service of process where such failure is through no fault of
the plaintiff. See Lee v. Henderson, 75 F.Supp.2d
591, 595 (E.D. Tex. 1999) (citing Rochon); see
also Triplett v. LeBlanc, 642 Fed.Appx. 457, 460 (5th
Cir. 2016), cert. den., 137 S.Ct. 192 (U.S. 2018);
Flander v. Kforce, Inc., 526 Fed.Appx. 364, 368 (5th
Cir. 2013); Hurlburt v. Zaunbrecher, 169 F.R.D. 258,
259 (N.D.N.Y. 1996). As the court in Hurlburt
stated, "[R]equiring the Marshal's Service to
personally serve defendants who admit to having actual notice
of the case against them is the ultimate in exalting form
over substance" and amounts to a "dog in the
manger" tactic. Hurlburt, 169 F.R.D. at 259.
Moreover, "the Marshal's Service has limited
manpower and resources available for serving process in
in forma pauperis actions" and "it can
barely keep up with the myriad requests it receives to serve
defendants in such actions by mail. As a result, a
coordinated effort by individuals who are frequently sued by
IFP plaintiffs (for example, corrections officers) to demand
service in strict compliance with Rule 4(e) could literally
bring prisoner civil rights litigation to a standstill."
Hurlburt, 169 F.R.D. at 259 n. 2.
this Court were to order new service,  the USMS is
required by this court to mail waiver of service forms to the
defendants prior to personally serving defendants. If
defendants do not waive service, defendants are assessed the
costs of service. See Fed.R.Civ.P. 4(d).
case involves a (then) pro se plaintiff who is
proceeding in forma pauperis ("IFP") and
who, under well-settled case law, is entitled to rely on the
USMS to effect proper service. Defendants have not alleged
prejudice or lack of notice arising from improper service.
Therefore, Defendants' motion to dismiss for failure to
effect proper service (Doc. 7) should be denied.
Defendants' Motion to Transfer Venue should be
contend this case should be dismissed or transferred to the
Shreveport Division due to improper venue. It is noted that,
in their Motion to Transfer Venue,  Plaintiffs consent to have