KELVIN WELLS v. SID GAUTREAUX (2025)

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on February 18, 2025.

Before the Court is a Motion to Dismiss, or Alternatively, Motion for a More Definite Statement (R. Doc. 13) filed by Defendants East Baton Rouge Parish Sheriff Sid J. Gautreaux III, Cpl. Dejuan Fleming, and the East Baton Rouge Parish Sheriff's Office (collectively, “Sheriff Defendants”). Pro se Plaintiff Kelvin Wells has not filed a response to the Sheriff Defendants' Motion, and the deadline for doing so has passed. As such, the Court considers this Motion unopposed. For the reasons set forth below, the Court recommends that the Sheriff Defendants' Motion to Dismiss be granted.

I. BACKGROUND

Plaintiff filed suit against Defendants Sheriff Sid Gautreaux, the East Baton Rouge Sheriff's Department, Cpl. Fleming, and Darion ¹ Garrett on November 2, 2023, alleging, inter alia, discrimination and due process violations.² Plaintiff amended his Complaint on November 30, 2023.³ On June 5, 2024, Plaintiff filed a Motion seeking a Clerk's entry of default against all Defendants for their failure to timely file an answer or other responsive pleading in this matter.⁴ The Court, finding “[s]ervice having been executed on Defendants, Sid Gautreaux, East Baton Rouge Sheriff's Department, Dejuan Fleming, and Darion Garrett, on April 9, 2024, and no answer, claim or other responsive pleadings having been filed,” granted Plaintiff's Motion on June 6, 2024.⁵

Shortly thereafter, on June 12, 2024, the Sheriff Defendants filed a Motion to Set Aside Entry of Default.⁶ The Court subsequently granted the Sheriff Defendants' Motion and set aside the Clerk's entry of default against those Defendants.⁷ Also on June 12, 2024, Plaintiff filed a Motion seeking Default Judgment against all Defendants.⁸ The undersigned, on February 7, 2025, issued a Report and Recommendation, recommending that Plaintiff's Motion for Default Judgment be denied, which Report and Recommendation remains pending before the District Judge.⁹ On July 3, 2024, the Sheriff Defendants filed the instant Motion to Dismiss, to which Plaintiff has not filed a response, making it unopposed.

II. LAW AND ANALYSIS

In their Motion, the Sheriff Defendants seek dismissal of the claims against Sheriff Gautreaux and Cpl. Fleming pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of process. Alternatively, the Sheriff Defendants seek a more definite statement by Plaintiff pursuant to Rule 12(e). In addition, the Sheriff Defendants seek dismissal of all claims against the East Baton Rouge Parish Sheriff's Office, with prejudice, pursuant to Rule 12(b)(6), based on its lack of capacity to be sued. The Court addresses each of these requests, in turn, below.

A. Standard for Pro Se Litigant

At the outset, the Court notes that Plaintiff is proceeding in this litigation pro se. Pro se pleadings are to be held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also S.E.C. v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (recognizing the established rule that this court “must construe [a pro se plaintiff's] allegations and briefs more permissively”). A court must liberally construe a pro se complaint, taking all well-pleaded allegations as true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam). Nevertheless, “a pro se litigant is not ‘exempt ․ from compliance with relevant rules of procedural and substantive law.’ ” NCO Fin. Sys., Inc. v. Harper–Horsley, No. 07–4247, 2008 WL 2277843, at *3 (E.D. La. May 29, 2008) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)). As such, a pro se plaintiff's complaint “must set forth facts giving rise to a claim on which relief may be granted.” Johnson, 999 F.2d at 100 (citation omitted).

Additionally, “[a] liberal reading of plaintiff's pleadings is the only special treatment afforded pro se plaintiffs by the courts.” Kiper v. Ascension Parish Sch. Bd., No. 14-313, 2015 WL 2451998, at *1 (M.D. La. May 21, 2015) (citing Callahan v. C.I.R., No. 99-0295, 2000 WL 1141607, at *1 (M.D. La. Apr. 10, 2000)). A “court is not required to search for or try to create causes of actions or find material issues of fact for pro se plaintiffs.” Id. And “[a] pro se litigant is not entitled to greater rights than would be a litigant represented by a lawyer.” NCO Fin. Sys., 2008 WL 2277843, at *3 (citing Birl, 660 F.2d at 593).

B. Sheriff Defendants' Rule 12(b)(5) Motion

“A defendant has no obligation to appear in court or defend an action before it is formally served with process directing it to appear before that forum.” Thompson v. Deutsche Bank Nat'l Trust Co., 775 F.3d 298, 303 (5th Cir. 2014) (emphasis in original). Proper service is critical because “[i]t is axiomatic that in order for there to be in personam jurisdiction there must be valid service of process.” Attwell v. LaSalle Nat'l Bank, 607 F.2d 1157, 1159 (5th Cir. 1979). Indeed, “[a] court which lacks personal jurisdiction over a defendant cannot enter a valid judgment against that defendant.” Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1486 (5th Cir. 1997) (quoting Broadcast Music, Inc. v. M.T.S. Enters., 811 F.2d 278, 281 (5th Cir. 1987)). If a plaintiff fails to properly effectuate service, the defendant may seek to dismiss the plaintiff's complaint under Rule 12(b)(5). See Fed. R. Civ. P. 12(b)(5) (authorizing a court to dismiss a civil action when service of process is insufficient).

“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service of process.” Holly v. Metro. Transit Auth., 213 F. App'x 343, 344 (5th Cir. 2007). The burden of demonstrating the validity of service when an objection is made lies with the party making service. Id. (citing Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)). As set forth in Rule 4(c)(1), a summons must be served with a copy of the complaint, and the plaintiff is responsible for having the summons and complaint served on the defendant within the time allowed by Rule 4(m). “The district court has broad discretion in determining whether to dismiss an action for ineffective service of process.” Trimble v. Strength, No. 20-355, 2022 WL 636729, at *2 (M.D. La. Jan. 25, 2022) (citing George v. U.S. Dep't of Labor, Occupational Safety & Health Admin., 788 F.2d 1115, 1116 (5th Cir. 1986)).

1. Whether Service of Process was Proper

a. Service on Cpl. Fleming

The Sheriff Defendants argue that Cpl. Fleming was not properly served. Plaintiff's first attempt at service on Cpl. Fleming, made on April 24, 2024, was refused by the Sheriff's Office.¹⁰ Plaintiff then attempted service by certified mail, which was signed for on May 20, 2024, by Deputy London.¹¹ This, however, does not constitute proper service.

Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual may be served by either “(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(e).

“Louisiana Code of Civil Procedure articles 1231 through 1235 govern state law procedure for serving individuals and call for personal or domiciliary service.” Black v. La. Dep't of Corr., No. 16-799, 2017 WL 11710636, at *2 (M.D. La. Nov. 17, 2017). “A defendant is personally served ‘when a proper officer tenders the citation or other process to the person to be served.’ ” Id. (quoting La. C.C.P. art. 1232). “ Domiciliary service is completed ‘when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served or with a person of suitable age and discretion residing in the domiciliary establishment.’ ” Id. (quoting La. C.C.P. art. 1234). “Further, ‘[a] public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any employee of suitable age and discretion.’ ” Id. (quoting La. C.C.P. art. 1265).

Here, Plaintiff attempted service on Cpl. Fleming by certified mail, and nothing in the record indicates that a waiver of service was requested. However, “[n]either the Federal Rules of Civil Procedure, nor Louisiana law, provide for service of process on individuals within the state of Louisiana by certified mail.” Jones v. Becnel, No. 15-713, 2015 WL 4677543, at *3 (E.D. La. Aug. 6, 2015). As such, service on Cpl. Fleming was not proper.

b. Service on Sheriff Gautreaux

The Sheriff Defendants assert that service on Sheriff Gautreaux was improper as well. As noted by the Sheriff Defendants, Plaintiff does not state in his Amended Complaint whether he is suing Sheriff Gautreaux in his official capacity or individual capacity. In either situation, however, service is insufficient.

“Under Louisiana law ․ Defendant Sheriff Gautreaux is deemed to be the final policymaker [for the East Baton Rouge Parish Sheriff's Office] and may be sued in his official capacity.” Wagster v. Gautreaux, No. 12-11, 2013 WL 6194516, at *4 (M.D. La. Nov. 26, 2013) (citations omitted). This means that any official capacity claims against Sheriff Gautreaux actually are claims against the East Baton Rouge Parish Sheriff's Office. Id. As such, service on Sheriff Gautreaux in his official capacity must comport with the requirements of Rule 4(j)(2). See Gilmore v. Wolfe, No. 15-280, 2016 WL 438978, at *2 (M.D. La. Feb. 3, 2016). According to Rule 4(j)(2), “[a] state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” As stated above, Louisiana Code of Civil Procedure art. 1265 specifies that “[a] public officer, sued as such, may be served at his office either personally, or in his absence, by service upon any of his employees of suitable age and discretion.” La. C.C.P. art. 1265.

Here, the Proof of Service submitted to the Court by Plaintiff indicates that Sheriff Gautreaux's summons was served on “Capt. Tommy Moore Asst. Chief of Civil Service Deputy.”¹² However, Article 1265 mandates that “a defendant sued in his official capacity must be personally served at his office unless he is absent from work.” Gilmore, 2016 WL 438978, at *2 (citing La. C.C.P. art. 1265). Plaintiff does not anywhere assert that Sheriff Gautreaux was not personally served because he was absent from work. As such, the requirements of Art. 1265 are not met, and service on Sheriff Gautreaux in his official capacity was not proper. See id. (finding defendants sued in their official capacity not properly served because plaintiff did not assert that said defendants were not personally served because they were absent from work at the time).

As with Cpl. Fleming, service on Sheriff Gautreaux in his individual capacity is governed by Rule 4(e). Gilmore, 2016 WL 438978, at *2. However, neither personal nor domiciliary service was effected on Sheriff Gautreaux, as summons was served on Tommy Moore, purportedly on behalf of Sheriff Gautreaux. While the Proof of Service form indicates, via only a checked box, that Moore “is designated by law to accept service of process on behalf” of Sheriff Gautreaux, nothing in the record supports this assertion.¹³ “Establishing that he has properly effectuated service upon each defendant is Plaintiff's burden to bear.” Gilmore, 2016 WL 438978, at *2 (citing Carimi, 959 F.2d at 1346). The Court finds that Plaintiff has failed to carry this burden, and that service on Sheriff Gautreaux in his individual capacity also was improper.

c. Whether Plaintiff Should Be Allowed to Correct Service Defects

While proceeding pro se “does not exempt a party from compliance with relevant rules of procedural and substantive law,” Birl, 660 F.2d at 593 (citation omitted), the District Court has wide discretion in determining whether to dismiss an action for insufficient service, and courts often give pro se litigants leeway in correcting defects in service of process. Lisson v. ING GROEP N.V., 262 F. App'x. 567, 571 (5th Cir. 2007). However, Plaintiff is not the average pro se plaintiff. In a recent decision, this Court noted that “[s]ince 1999, Kelvin Wells has filed forty-six (46) lawsuits in this Court.” Wells v. East Baton Rouge Sch. Sys., No. 23-595, 2024 WL 4142742, at *1 (M.D. La. Sep. 10, 2024). The Court continued, recognizing that “[o]f Wells' most recently filed cases that have been resolved, all have been dismissed for failure to state a claim, lack of subject matter jurisdiction, failure to timely serve, or on grounds of Eleventh Amendment immunity, sometimes on defense motions that were unopposed,” which is the case here. Id. Based, in part, on Well's “history” of “failing to prosecute lawsuits once they are filed,” the Court imposed a sanction requiring him to receive permission from a judge before filing any additional lawsuits in this Court. Id. Given Plaintiff's extensive litigation history in this Court, spanning 25 years and at least 46 cases, the Court finds that, here, Plaintiff should not be granted the opportunity to correct the defects in his service of process.

2. Whether Service was Timely

In addition to being insufficient, service on the Sheriff Defendants by Plaintiff also was untimely. According to Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court ․ must dismiss the action without prejudice against that defendant or order that service be made within a specified time,” “[b]ut if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m). “When the time to effect service has expired, however, the party attempting service has the burden of demonstrating good cause for failure to serve the opposing party.” Coleman v. Bank of New York Mellon, 969 F.Supp.2d 736, 746 (N.D. Tex. 2013) (quoting Kreimerman v. Casa Veerkamp, 22 F.3d 634, 645 (5th Cir. 1994)) (modification and internal quotations omitted).

Here, Plaintiff filed his initial Complaint on November 2, 2023, and his Amended Complaint on November 30, 2023. However, Cpl. Fleming and Sheriff Gautreaux were initially served on April 9, 2024, and April 24, 2024, over 130 days after Plaintiff filed his Amended Complaint. Because the time for service has long expired, Plaintiff must demonstrate “good cause” for his failure to properly serve process on Cpl. Fleming and Sheriff Gautreaux. Plaintiff, however, did not respond to the Sheriff Defendants' Motion. As such, he has not attempted to demonstrate good cause for his failure to effect proper service on them. He also has not requested addition time to properly serve any Sheriff Defendant. Dismissal without prejudice pursuant to Rule 12(b)(5) is proper under these circumstances. See Coleman, 969 F.Sup.2d at 746 (finding dismissal without prejudice under Rule 12(b)(5) appropriate where plaintiff did not attempt to demonstrate good cause for failing to effectuate proper service on defendants and did not request additional time to do so).

C. Sheriff Defendants' Rule 12(b)(6) Motion to Dismiss Claims Against the East Baton Rouge Parish Sheriff's Office

1. Rule 12(b)(6) Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal of a complaint, or any part thereof, for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Shiell v. Jones, No. 19-848, 2020 WL 2331637, at *10 (E.D. La. May 11, 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Shiell, 2020 WL 2331637, at *10 (quoting Iqbal, 556 U.S. at 679).

A court must accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). “Dismissal is appropriate when the complaint on its face shows a bar to relief.” Shiell, 2020 WL 2331637, at *10 (quoting Cutrer v. McMillan, 308 F. App'x 819, 820 (5th Cir. 2009)). “Determining whether a complaint states a plausible claim for relief [is] ․ a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A court does not assume the truth of conclusory statements, but rather looks for facts which support the elements of the pleader's claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

2. Discussion

Rule 17(b) provides that the capacity to sue or be sued is determined by state law. Fed. R. Civ. P. 17(b). The Louisiana Supreme Court has clearly explained that a Sheriff's Department is not a legal entity capable of being sued:

It is well settled in the lower courts that a Sheriff's Department is not a legal entity capable of being sued. It is the elected sheriff, not the “Parish Sheriff's Office,” that is the constitutionally designated chief law enforcement officer of the Parish. The law of Louisiana affords no legal status to the “Parish Sheriff's Department” so that the department can sue or be sued, such status being reserved for the Sheriff.

Valentine v. Bonneville Ins. Co., 691 So.2d 665, 668 (La. 1997) (internal citations omitted); see also Weatherton v. America's Most Wanted, No. 09-111, 2010 WL 4668965, at *2 (M.D. La. Sep. 27, 2010) (“Under Louisiana law a parish sheriff is the proper party-defendant to respond on behalf of the Sheriff's Office. It is well-settled under Louisiana law that a Sheriff's Office is not a legal entity capable of being sued.”). This Court previously has dismissed the East Baton Rouge Parish Sheriff's Office based on its inability to be sued. See Mason v. East Baton Rouge Parish Prison Sheriff Office, No. 16-205, 2016 WL 8223432, at *2 (M.D. La. Dec. 8, 2016) (finding the East Baton Rouge Parish Sheriff's Office does not have the capacity to sue or be sued under Louisiana law); Coleman v. East Baton Rouge Parish Sheriff's Office, No. 14-186, 2014 WL 5465816, at *3 (Oct. 28, 2014) (“As an initial matter, the Court finds that Plaintiffs' official capacity claims against the EBRSO must be dismissed, because the EBRSO itself is not a separate legal entity that is capable of being sued.”); Ruggiero v. Litchfield, 700 F. Supp. 863, 865 (M.D. La. 1988) (finding that “the East Baton Rouge Parish Sheriff's Office is not a legal entity which may be sued”). As such, the Court recommends that all claims against the East Baton Rouge Parish Sheriff's Office be subject to dismissal with prejudice.

III. CONCLUSION AND RECOMMENDATION

For the foregoing reasons,

IT IS RECOMMENDED that the Motion to Dismiss, or Alternatively, Motion for a More Definite Statement (R. Doc. 13), filed by Defendants East Baton Rouge Parish Sheriff Sid J. Gautreaux III, Cpl. Dejuan Fleming, and the East Baton Rouge Parish Sheriff's Office be GRANTED.

IT IS FURTHER RECOMMENDED that Plaintiff's claims against Cpl. Fleming and Sheriff Gautreaux be dismissed without prejudice pursuant to Rule 12(b)(5), and that Plaintiff's claims against the East Baton Rouge Parish Sheriff's Office be dismissed with prejudice, pursuant to Rule 12(b)(6).

Signed in Baton Rouge, Louisiana, on February 18, 2025.

FOOTNOTES

1.   The Court notes that while “Darion” Garrett is listed as a Defendant in this case, some of the attachments to Plaintiff's Amended Complaint indicate that the individual's name actually is Davion Garrett. See, e.g., R. Doc. 2 at 17. While the Court finds that both names refer to the same individual, “Darion” is used herein, as it is the name in the caption of this proceeding.

2.   R. Doc. 1.

3.   R. Doc. 2.

4.   R. Doc. 4.

5.   R. Doc. 5.

6.   R. Doc. 8.

7.   R. Docs. 16, 18.

8.   R. Doc. 10.

9.   R. Doc. 20.

10.   R. Doc. 4 at 5.

11.   Id. at 6.

12.   R. Doc. 4 at 3; R. Doc. 19-2 at 5.

13.   R. Doc. 4 at 3; R. Doc. 19-2 at 5.

SCOTT D. JOHNSON UNITED STATES MAGISTRATE JUDGE