Grimball v. New Orleans City et al

Filing 44

ORDER AND REASONS: ORDERED that Defendant Sean West's 34 Motion to Quash Service and Alternatively, Motion to Dismiss Pursuant to FRCP Rule 12(b) is DENIED and this case will be placed on the Court's trial docket. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GRIMBALL

CIVIL ACTION

VERSUS

NO: 10-3657

NEW ORLEANS CITY ET AL.

SECTION: “J”(3)

ORDER AND REASONS
Before the Court are Defendant Sean West’s Motion to Quash
Service and Alternatively, Motion to Dismiss Pursuant to FRCP
Rule 12(b) (Rec. Doc. 34), Plaintiff Renaldo Grimball’s
Opposition (Rec. Doc. 36), and West’s Supplemental Memorandum in
Support (Rec. Doc. 42).

The motion is before the Court on

supporting memoranda, without oral argument.

Having considered

the motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be DENIED.

PROCEDURAL HISTORY AND BACKGROUND FACTS
This case arises from an alleged cruel joke played by the
defendants during the plaintiff’s shift working at a restaurant.
On October 17, 2009, Plaintiff Grimball was employed as a
1

dishwasher and preparatory cook at the U.S. Prime Steakhouse (the
“Restaurant”) at 535 Tchoupitoulas Street in New Orleans,
Louisiana.

Grimball was working the dinner shift that evening

under the management of Defendant Aaron Haggman, who accused
Grimball of smoking marijuana in the bathroom during his shift.
Grimball denied the accusation, but Haggman told Grimball that he
“could go get a friend cop from the bar” to prove that his
accusation was true.

Rec. Doc. 1, at 3, ¶ 9.

Because Grimball

thought Haggman was joking, Grimball told him to go ahead.
Haggman left the kitchen and entered the bar, and then
returned to the kitchen with Defendant West.

Once they were in

the kitchen, Haggman allegedly told West, “I think he [Grimball]
has been smoking. I think he has contraband. ... Check him out. I
want to see if he’s got weed on him.” Id. at 4, ¶ 11.

Haggman

allegedly then asked West, “Sean, do you have your credentials
on?”, and West pulled up his shirt to reveal a holstered firearm.
Id., ¶¶ 12-13.

West then allegedly told Grimball to put his

hands on the wall, pulled out his gun and pointed it at Grimball,
pushed Grimball across the kitchen and against the freezer,
pressed Grimball’s elbow into his back, and frisked Grimball with
his free hand.

West announced that he had found a bag of “perp”

in Grimball’s pocket, but he never produced anything.

2

Grimball alleges that he “suffered bruising and soreness in
his back and shoulders due to aggressive pushing and elbowing
prior to and during the search by Officer West, causing him pain
and suffering and to be unable to work for a period of weeks.”
Id., ¶ 18.

Additionally, Grimball alleges that he “suffered

embarrassment, emotional distress and anxiety” and “could no
longer continue his employment at the U.S. Prime Steakhouse and
suffered a loss of wages and benefits.”

Id. at 5, ¶¶ 21, 23.

Following the incident, Grimball filed a complaint with the New
Orleans Police Department’s Public Integrity Bureau (“PIB”) and
gave a taped statement about the incident as a part of the PIB’s
investigation.
Grimball avers that “it was contrary to the Constitution and
laws of the United States, as well of the State of Louisiana, to
subject a person to excessive force and cruel and unusual
punishment, unreasonable search or seizure, and false arrest.”
Id. at 7, ¶ 31.

Grimball alleges that the defendants violated

the Fourth, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution; Title 42 U.S.C. Sections 1983, 1985,
and 1986; and Louisiana state law.

Grimball requests a

declaratory judgment, special damages, general damages, punitive
damages, nominal damages, civil penalties, a permanent injunction

3

to end certain policies and practices of the defendants,
litigation costs, and attorney’s fees.

He requests a jury trial.

Grimball filed his complaint on October 16, 2010, one day
short of one year after the date of the alleged incident.
Doc. 1.

Rec.

Ten days later, on October 26, 2010, Grimball requested

that summonses issue.

Rec. Doc. 3.1

Several months later, the

Court issued a call docket notice because of lack of service on
any defendant.

Rec. Doc. 5.

On the same day the call docket

notice issued, on February 3, 2011, service was made on the first
defendants to be served in the lawsuit.

Rec. Docs. 7-8 (returns

of summonses for New Orleans City and New Orleans Police
Department).

At the May 25, 2011 call docket hearing, the Court

ordered the matter passed 30 days.

Rec. Doc. 10.

A couple weeks

later, the Court issued a second call docket notice, noting
absence of service on West or Haggman.

Rec. Doc. 11.

On August

16, 2011, Grimball, for the second time, requested that a summons
issue as to West, and also that a summons issue as to Haggman; no
address was listed for either defendant.

Rec. Doc. 18.

During

the second call docket hearing, which was held on August 31,
2011, the Court again ordered the matter passed for 30 days.

1
No address was listed for Defendants Sean West or Aaron Haggman.
Docs. 3-4, 3-5.

4

Rec.

Rec. Doc. 22.

A few days later, the Court issued a call docket

notice for the third time, noting that there still had been no
service on West or Haggman.

Rec. Doc. 23.

During the Court’s

third call docket hearing, which was held on November 9, 2011,
the Court again passed the matter for 30 days, this time stating
that any defendant not served or defaulted would be dismissed.
Rec. Doc. 24.
At last, on November 16, 2011—more than a year after the
lawsuit was filed—West was personally served by a process server.
Rec. Doc. 25, at 2.

On December 7, 2011, West, who was pro se at

the time, moved for an extension of time to file responsive
pleadings and to obtain counsel, which this Court granted on
December 19, 2011.

Rec. Docs. 26, 28.

On December 28, 2011, the

date West’s answer was due, West filed a second motion for
extension of time because he had been unable to obtain legal
representation; the Court granted the motion on January 6, 2012.
Rec. Docs. 30-31.

On that same date, the Court dismissed without

prejudice all claims against Haggman because of no proof of
service in the record.

Rec. Doc. 32.

On the due date for

responding to the complaint, West, via his counsel, filed the
instant motion to dismiss.

Rec. Doc. 34.

5

THE PARTIES’ ARGUMENTS
West moves for an order quashing service of the complaint or
alternatively dismissing the complaint against him pursuant to
Federal Rule of Civil Procedure 12(b)(5) for insufficient service
of process.

West additionally moves that the claims against him

brought under Title 42 U.S.C. Sections 1983 et seq. be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted.
West contends that service on him should be quashed and the
complaint should be dismissed because he was not served with the
summons and complaint within 120 days after the complaint was
filed, as required by Federal Rule of Civil Procedure 4(m).

West

asserts that dismissal is proper because he was not served until
396 days after suit was filed and because Grimball has not made a
sufficient showing of good cause to extend the time period for
service.

West points to Grimball’s failure to attempt to serve

any defendant until 110 days after filing suit and his failure to
file a motion for extension of time as evidence of a lack of
diligence in attempting to serve West.
West argues that this Court should not exercise its
discretion to grant an extension of the time period for service
because there is a clear record of delay on the part of the

6

Grimball and actual prejudice to West.

West asserts that

Grimball waited until the statute of limitations was about to run
before filing his complaint and then waited until he was prompted
by this Court during a docket call, 110 days after filing, to
attempt to serve any of the defendants.

Additionally, West

asserts that the delay in service has greatly prejudiced his
ability to defend against Grimball’s claims because the
Restaurant has closed, West no longer has access to the premises
or the potential testimony of employees who were present during
the events at issue, and witnesses are no longer available or
their memories have dulled.
West points to a number of circumstances that he alleges
show dilatory conduct and the absence of good cause necessary to
extend the 120-day period for service of process.

West avers

that the service made on him on November 16, 2011 was at a
courthouse during a child support hearing.

West asserts that

minute entries from the 22nd Judicial District Court reveal that
West had previously been present in open court on October 21,
2010, January 20, 2011, March 30, 2011, and June 24, 2011—prior
dates on which Grimball could have had West personally served.
West argues that had Grimball been more diligent in filing his
claim, he could have served West at a police station up until

7

June 16, 2010, when West’s employment by the New Orleans Police
Department (“NOPD”) was terminated as a result of the PIB
investigation concerning the October 2009 incident at the
Restaurant.

West was at the City Hall for a civil service appeal

hearing on November 11, 2010, and he argues that Grimball could
have served him there on that date.
Grimball contends that he made good faith efforts to locate
and serve West and that there is good cause for extending the
120-day service period.

Grimball asserts that prior to filing

suit, he sent two open records requests to NOPD but received
nothing in return until February 2011.

Grimball also filed a

complaint with the PIB, which became the impetus for West’s
termination six months before the instant suit was filed.
Further, prior to filing suit, Grimball and his lawyer attempted
to attend a civil service commission hearing, but were told that
the hearing was being postponed and that they would not be
allowed to speak with West at the hearing.
Grimball avers that during the 120 days following the filing
of the complaint, his attorney communicated with a City of New
Orleans (“City”) attorney regarding a civil service commission
hearing on West’s termination and interviewed a former co-worker
of Haggman and West.

Grimball’s counsel avers that he hired a

8

law student to go to the location where the incident took place
to inquire about Haggman and West and that he called Louisiana
residents listed in the online white pages under the name “Sean
West.”2

Grimball also asserts that his actions taken beyond the

120-day window were sufficient to extend the 120-day deadline:
service of discovery on the City requesting West’s last known
address and other information; filing of a motion to compel this
discovery; leaving a voicemail message after calling the phone
number listed for West at the address provided by the City;
attempting service upon West, only for West to refuse to answer
the door3; attempting service at a different address, where
Grimball’s attorney learned indirectly from West’s ex-wife that
West had a child support hearing in the near future; and having a
process server personally serve West at the child support
hearing.
Grimball also contends that West cannot demonstrate
prejudice from the late service.

Grimball argues that West’s

2

Grimball’s counsel does not indicate the time period during which he
made these phone calls. The law student that he allegedly hired visited the
bar on February 4, 5, and 6, 2011—during the 120-day window for service. See
Rec. Doc. 36-1, at 2. Interestingly, the law student allegedly undertook this
undercover work for Grimball’s attorney immediately following the Court’s call
docket notice of February 3, 2011. Rec. Doc. 5.
3

West avers that the process server attempted to serve him at 501 St.
Mary, but that he lives at 521 St. Mary. He also avers that he could not have
refused to answer the door, not only because he did not live at 501 St. Mary,
but also because he was at work at the time of the alleged service attempt.

9

counsel’s recitation of facts reveals extensive knowledge that
must have come from West’s investigation of the facts underlying
the case.

Additionally, Grimball argues that West has already

had occasion to investigate the facts and prepare a defense
during the PIB investigation and in connection with the civil
service hearing on the termination of West’s employment.

To

these arguments, West responds that he was unable to cross
examine witnesses or put on his own evidence during the PIB
investigation, and that he did not conduct his own investigation
or locate witnesses during the PIB investigation.
As an alternative argument for dismissal, West contends that
the claims against him under Title 42 U.S.C. Sections 1983 et
seq. should be dismissed pursuant to Federal Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.

West

asserts that Grimball failed to allege any conduct that
constitutes action under color of state law.

He asserts that he

did not act in the course and scope of his employment at the time
of the incident, that Grimball admits that the incident was
intended as a joke, and that he was not acting on behalf of a
state or local entity or pursuant to any department regulation
when he entered the Restaurant kitchen.

West points out that the

alleged acts of holding a gun to someone’s head and digging

10

through his pockets are activities that could be performed by a
mugger just as easily as by a police officer, and that Grimball
does not allege that West identified himself as a police officer.
Further, West argues that, because Grimball has failed to state
any claim against West over which the Court has original
jurisdiction, the Court should decline to exercise pendent
jurisdiction over Grimball’s state law claims.
In response to West’s Section 1983 argument, Grimball
contends that West’s alleged wrongful actions were performed
under color of law because West used his apparent or real
authority as a police officer to perform a search and seizure for
contraband, which is normally a police function.

Additionally,

he argues that West used his status as a police officer to make
Grimball succumb to an illegal search.

Finally, Grimball argues

that even if the Court were to dismiss the Section 1983 claim
against West, the state law claims would be pendent to the
federal claims against the remaining defendants.

DISCUSSION
A.

Rule 12(b)(5) Motion
1.

Rule 4(m) Standard

Under Federal Rule of Civil Procedure 12(b)(5), a defendant
11

may assert insufficient service of process as a defense to a
claim for relief in federal court, and Rule 4 governs the service
requirements regarding the summons and the complaint.

Rule 4(m)

permits a district court to dismiss a case without prejudice if a
plaintiff fails to comply with its mandates.

Millan v. USAA Gen.

Indem. Co., 546 F.3d 321, 325 (5th Cir. 2008).

Under Rule 4(m):

If a defendant is not served within 120 days after the
complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time.
But 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).

Therefore, when a plaintiff fails to serve

a defendant within the 120-day period, the district court has two
choices:

dismiss the action without prejudice, or direct that

service be effected within a specified time.
Brown, 91 F.3d 20, 21 (5th Cir.

1996).

See Thompson v.

If, however, a plaintiff

can establish good cause for the failure to timely serve a
defendant, the district court must extend the time for service.
Id.
Grimball filed his complaint on October 16, 2010.

One-

hundred twenty days thereafter was Sunday, February 13, 2011.
Therefore, the Rule 4(m) period for service expired on the

12

following day, Monday, February 14, 2011.4

West was not served

until November 16, 2011, outside of the 120-day window.

Thus,

this Court must determine, based on Grimball’s actions that took
place within the 120-day period, whether he has shown good cause
for his failure to timely serve West.

See Winters v. Teledyne

Movible Offshore, Inc., 776 F.2d 1304, 1305-06 (5th Cir. 1985)
(“It would appear to be generally irrelevant that the defendant
not served within the 120-day period later finds out about the
suit or is in fact later served, so long as there was not good
cause for the failure to serve within the 120 days.”).
“‘[G]ood cause’ under Rule 4(m) requires ‘at least as much
as would be required to show excusable neglect, as to which
simple inadvertence or mistake of counsel or ignorance of the
rules usually does not suffice.’”

Gartin v. Par Pharm. Cos., 289

F. App’x 688, 692 (5th Cir. 2008) (citing Lambert v. United
States, 44 F.3d 296, 299 (5th Cir. 1995)).

Where a party

requests an extension of time, relevant factors used to determine
whether there has been “excusable neglect” include:

“‘the danger

of prejudice to the [non-movant], the length of the delay and its
potential impact on the judicial proceedings, the reason for the

4

See FED. R. CIV. P. 6(a)(1)(C) (providing that if the last day of a
time period falls on a Sunday, the period continues to run until the end of
the next day).

13

delay, including whether it was within the reasonable control of
the movant, and whether the movant acted in good faith.’”

Adams

v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir.
2006).

Stated differently, “one is required to be diligent in

serving process, as well as pure of heart, before good cause will
be found.”

Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022

(5th Cir. 1995).
2.

Analysis of Untimely Service

In this case, there is the possibility of prejudice to West,
and the length of delay in this case has been considerable.

It

took Grimball over a year to have West served, during which time
the memories of witnesses who were at the Restaurant are probably
not as crisp as they once were.

The Restaurant is alleged no

longer to be open, which likely has had a dispersant effect on
the availability of witnesses and evidence.

These factors weigh

against a finding of good cause, but the most important factor in
this case is the reason for delay and whether it was within
Grimball’s control.
In considering the delay in this case, it is first important
to note that Grimball was not required to take every conceivable
measure to effect service.

West avers that he was present in

state court in St. Tammany Parish on multiple occasions from

14

October 2010 through the date on which service was made over a
year later.

However, the only apparent reason Grimball

eventually discovered that West would make a court appearance on
November 16, 2011 was that Grimball’s process server, while
attempting service at a Slidell address, happened to communicate
with West’s ex-wife about West’s child support hearing.

It is

unreasonable to suggest that Grimball should have searched
several state court dockets early in the instant case, before he
even had the Slidell address that would later permit him to know
which court dockets to search.

West also argues that Grimball

could have served him personally at a police station prior to his
termination from the police force in June 2010, but Grimball
cannot be expected to have anticipated West’s termination date.
Besides, Grimball had not even filed his complaint in June 2010.
Turning to Grimball’s actions from October 2010 until
February 2011, which contained the 120-day period for service,
Grimball does allege a few affirmative attempts by his attorney
to find and serve West.
Alan Kansas).

See Rec. Doc. 36-1, at 1-4 (affidavit of

Accepting his allegations as true for purposes of

the instant motion, Grimball’s attorney tried to determine West’s
whereabouts during an October 2010 interview of Grimball’s former
co-worker and was unable to attend a PIB hearing in November 2010

15

that the NOPD canceled.
be characterized.

It is unclear how these efforts should

On the one hand, perhaps they at least show

good-faith efforts to obtain an address for West.

Conversely,

Grimball provides no details regarding the subject matter of the
alleged conversation with the former co-employee, and it is
unclear whether attendance at the civil service hearing would
have been reasonably calculated to achieve service.
As the February 14, 2011 Rule 4(m) deadline approached, the
Court issued its call docket notice on February 3, 2011.
Notably, on the three immediately following days, Grimball’s law
student intern attempted to dig up information about West and
Haggman at the former location of the Restaurant.

Grimball’s

attorney avers that he hired the law student but does not state
whether the instruction to the intern to perform the
investigative work was given before or after the Court’s call
docket notice.

Grimball’s attorney avers, without providing

dates, that he placed phone calls to Louisiana residents with the
name “Sean West” listed in the online white pages.

It is unclear

whether these alleged calls occurred prior to the Rule 4(m)
deadline.
Even accepting these allegations as true, there are several
things Grimball’s attorney left undone that require but have not

16

received any explanation.

Grimball’s attorney did not request an

extension of the deadline to serve West, despite having received
a call docket notice from this Court that none of the defendants
had been served—110 days after suit was filed.

Additionally,

Grimball’s attorney neglected to serve the NOPD, a much easier
target for service of process with an ascertainable address,
until the day the Court’s notice issued.

It is unclear why

Grimball’s attorney would wait more than 100 days to serve the
City or the NOPD.

If he had made service earlier on those

defendants, he could have communicated with the City’s or NOPD’s
attorney concerning West’s address.

Grimball’s failure to timely

serve West does not appear to be the fault of some outside
factor, as in Tuggle v. MMR-AEI Constructors, Inc., No. 08-62,
2008 WL 3983847, at *2 (M.D. La. Aug. 27, 2008) (good cause based
on the serious medical condition of plaintiff’s counsel), or due
to exceptional circumstances beyond his control, as in Raby v.
National Express Corp./ATC, 03-1000, 2004 WL 1737909, at *1 (E.D.
La. July 29, 2004) (plaintiff’s service in the armed forces
excused her noncompliance with Rule 4(m)).

In the final

analysis, whether Grimball meets the “good cause” standard is a
close call.

17

Even if Grimball fails to show good cause, Rule 4(m) allows
an extension of time at the discretion of the district court.
See Thompson, 91 F.3d at 21; Henderson v. United States, 517 U.S.
654, 662-63 (1996) (citing Advisory Committee’s Notes on FED. R.
CIV. P. 4, 28 U.S.C. App., p. 654) (“Most recently, in 1993
amendments to the Rules, courts have been accorded discretion to
enlarge the 120-day period ‘even if there is no good cause
shown.’”).

Courts have considered various circumstances in

deciding whether to extend the time period for service.

See,

e.g., Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir.
1976) (in the context of failure to prosecute, considering
whether the applicable statute of limitations would bar the
refiled action); Roulston v. Yazoo River Towing, Inc., No. 032791, 2004 WL 1043140, at *1

(E.D. La. May 6, 2004) (considering

the potential waste of judicial resources if the case were
dismissed, only to be refiled within the statutory limitation
period); Alden v. Allied Adult & Child Clinic, L.L.C., No. 01371, 2002 WL 1684553, at *1 (E.D. La. July 22, 2002) (considering
whether the defendant would be prejudiced by an extension of the
120-day period).

Important to the instant case, “[a]

discretionary extension may be warranted, ‘for example, if the
applicable statute of limitations would bar the refiled action .

18

. . .’”.

Millan, 546 F.3d at 325.

Here, the applicable statute of limitations would likely bar
a refiled action if Grimball’s case were dismissed without
prejudice, so a dismissal without prejudice would have the effect
of a dismissal with prejudice.

The applicable statute of

limitations in a Section 1983 action is the state limitation
period for personal injury actions.

Walker v. Epps, 550 F.3d

407, 411 (5th Cir. 2008) (citing Wilson v. Garcia, 471 U.S. 261,
279 (1985)).

In Louisiana, the prescriptive period for personal

injury actions is one year.

LA. CIV. CODE art. 3492.

Under

Louisiana law, prescription is normally interrupted when a
plaintiff files suit in a court of competent jurisdiction and
proper venue, LA. CIV. CODE art. 3462, and this principle applies
when the suit is filed in federal court, see Allo v. Horne, 636
So. 2d 1048 (La. App. 5th Cir. 1994).

However, interruption is

considered never to have occurred if the plaintiff abandons the
action, voluntarily dismisses the action at any time either
before the defendant has made any appearance of record or
thereafter, or fails to prosecute the suit at the trial.

LA.

CIV. CODE art. 3463.
In Hawkins v. McHugh, 46 F.3d 10, 13 (5th Cir. 1995), the
Fifth Circuit held that a dismissal by a federal district court

19

for failure to timely serve counts as “abandonment” under the
meaning of Louisiana Civil Code article 3463, and thus annuls the
interruption of prescription where Louisiana law provides the
rules of limitations.

Thus, if Grimball’s case were dismissed

pursuant to Rule 4(m) and Grimball attempted to refile his
complaint against West, prescription would likely bar the refiled
action.5

As previously noted, Grimball filed his lawsuit on

October 16, 2010, one day shy of one year following the
Restaurant incident; without the benefit of interruption of
prescription, his claim was time-barred in October 2010.

In

effect, then, a dismissal would be with prejudice.
In the Fifth Circuit, a “‘dismissal with prejudice is
warranted only where “a clear record of delay or contumacious
conduct by the plaintiff” exists and a “lesser sanction would not
better serve the interests of justice.”’”
326.

Millan, 546 F.3d at

Under this heightened standard, a “‘delay which warrants

dismissal with prejudice must be longer than just a few months;
instead, the delay must be characterized by “significant periods
of total inactivity.”’”

Id. at 326-27. Applying these standards,

5

The Court does not, and need not, make a ruling on any prescription
issue, for the likelihood of the limitation period having run weighs in favor
of the Court’s exercise of discretion to extend the 120-day period. See
Millan, 546 F.3d at 326 (where the parties agreed that dismissal of the claims
would “likely have the effect of dismissal with prejudice” because of the
applicable statute of limitations, a heightened standard of review applied).

20

the Court finds it appropriate to exercise its discretion in
permitting the case against West to proceed.
First, Grimball’s conduct has not been shown to be
contumacious.

“Contumacious conduct is that which goes beyond

mere negligence and evinces ‘stubborn resistance to authority.’”
Webb v. Morella, No. 11-30175, 2012 WL 45411, at *3 (5th Cir.
Jan. 9, 2012) (quoting Millan, 546 F.3d at 327).

Although

perhaps irritating to the judicial system that Grimball’s
attorney took so long to effect service, rather than acting with
flagrancy or rebellion, he appeared at the Court’s call docket
hearings, at which the Court each time passed the matter 30 days
based on counsel’s representations to the Court.

Cf. Millan, 546

F.3d at 327 (finding that where the district court had ordered
the case passed for 30 days after its instructions to plaintiff’s
attorney, which suggested that the attorney had complied with the
district court’s order, the conduct was “far short of
‘contumacious’”).
Second, the Court finds that there is no clear record of
delay as would be required to effectively dismiss with prejudice
the claims against West.

Per the Court’s previous discussion,

there have been no significant periods of total inactivity by
Grimball’s attorney.

Furthermore, during the months in between

21

the Court’s several call docket hearings, Grimball has served
discovery concerning West on the City, moved to compel that
discovery, and attempted service at a couple of different
addresses.

Without resolving the dispute over whether the

process server initially attempted service at the wrong address
on St. Mary’s Street, the fact that from February 2011 until
eventual service on West in November 2011, Grimball’s attorney
continued to attempt service, weighs in favor of the denial of
West’s motion.

Additionally, because West was served several

months ago, judicial efficiency is best served by allowing the
case to go forward.
The Court acknowledges the potential for prejudice to West
but is not persuaded that it should result in dismissal.

West

likely knew that a suit was possible, and during the months
leading up to the filing of the suit, he was the subject of a PIB
investigation.

Because of the absence of a clear record of delay

or contumacious conduct, and the likelihood that a dismissal
would effectively be with prejudice, the Court holds that
dismissal for insufficient service of process would be improper.
B.

Rule 12(b)(6) Motion
1.

Legal Standard

Under the Federal Rules of Civil Procedure, a complaint must

22

contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

FED. R. CIV. P. 8(a)(2).

The

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.”
Broudo, 544 U.S. 336, 346 (2005).
simple, concise, and direct.”

Dura Pharm., Inc. v.

The allegations “must be

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
U.S. at 678.

Iqbal, 556

A court must accept all well-pleaded facts as true

and must draw all reasonable inferences in favor of the
plaintiff.

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33

(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996).

The court is not, however, bound to accept as true legal

conclusions couched as factual allegations.

Iqbal, 556 U.S. at

678.
2.

Section 1983 Claim Against West

For a plaintiff to state a claim under Title 42 U.S.C.

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Section 1983, he “must allege the violation of a right secured by
the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law.”
(1988).

West v. Atkins, 487 U.S. 42, 48

To meet the “under color of state law” element, there

must be a showing of “some manner of state responsibility for the
acts that underlie” the claim.

Auster Oil & Gas, Inc. v. Stream,

764 F.2d 381, 387 (5th Cir. 1985).

When a Section 1983 action is

brought against a state official, the requirement that the
plaintiff prove that the defendant acted under color of state law
is coextensive with the “state action” requirement of the
Fourteenth Amendment.

Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922, 924, 929 (1982).

“‘[A]cts of officers in the ambit of their

personal pursuits are plainly excluded’” from Section 1983
liability. U.S. v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)
(quoting Screws v. United States, 325 U.S. 91, 111 (1944)).
Moreover, “individuals pursuing private aims and not acting by
virtue of state authority are not acting under color of law
purely because they are state officers.”

Id.

West argues that the complaint fails to state a Section 1983
claim because Grimball fails to allege conduct by West that
constitutes state action.

To address this issue, the Court

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accepts the well-pleaded facts in the complaint as true, which
are as follows.

Haggman identified West as a cop.

See Rec. Doc.

1, at 3, ¶ 9 (Haggman told Grimball that he could prove Grimball
had been smoking marijuana by going to “get a friend cop from the
bar”).

Haggman, in Grimball’s presence, said to West, “I think

he has contraband. ... Check him out.
weed on him.”

Id., at 4, ¶ 11.

I want to see if he’s got

Haggman looked at West and said,

“Sean, do you have your credentials on?”

Id., ¶ 12.

up his shirt to reveal a hand gun at his waist.

West pulled

Id., ¶ 13.

West

then pulled out his gun, pointed it at Grimball, and ordered him
in colorful terms to place his hands on the wall.

Id., ¶ 14.

Maintaining the gun barrel only a few inches from Grimball’s
head, West pushed Grimball across the kitchen to a freezer and
ordered Grimball to put his arms and legs against it.

Id., ¶ 15.

West proceeded to press his elbow into Grimball’s back and frisk
him with the other hand.

Id., ¶ 16.

West announced that he had

found a bag of “perp” in Grimball’s pocket.

Id., ¶ 17.

West is

alleged to have acted within the course and scope of his
employment with the City.

Id. at 6-7, ¶ 30.

Although West

maintains that he was partaking of a meal in the Restaurant, was
in plain clothes, and was off duty at the time of the incident,
there are no such allegations in the complaint.

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Although a private pursuit by a police officer does not
constitute state action, the reasons motivating an officer’s
actions are generally irrelevant.

See Brown v. Miller, 631 F.2d

408, 411 (5th Cir. 1980) (“[I]t is not significant for purposes
of defeating a s[ection] 1983 action that the misuse of power
under color of state law was motivated solely for purely personal
reasons of pecuniary gain.”).

Therefore, the Court focuses not

on the subjective intent of West or Haggman in allegedly plotting
the confrontation with Grimball, but rather focuses upon the
content of West’s actions and their context in relation to
Grimball.

Grimball has alleged facts which indicate that West’s

authority as a police officer furthered his ability to carry out
the sued-upon confrontation that he had with Grimball.
Grimball alleges that West searched him for drugs, after
West was identified as a police officer by Haggman.

In context,

this establishes the “under-color-of-law” element of a Section
1983 claim because it indicates a use of power to accomplish what
is ordinarily a law enforcement function.

Specifically, West was

asked in Grimball’s presence to search Grimball for “contraband”;
West proceeded to forcefully detain Grimball and search him for
drugs, afterward announcing the result of his search.

West

implicitly asserted that his gun constituted “credentials”

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through revealing it when asked to do so by Haggman.

This

implicit reference by West to his status as a police officer, in
combination with his use of “credentials” (i.e., holding Grimball
at gunpoint) to persuade Grimball to submit to a drug
search—ordinarily a law enforcement function—indicates an
invocation by West of governmental authority vested in him to
enforce the laws.

See Pitchell v. Callan, 13 F.3d 545, 548 (2d

Cir. 1994) (citing Stengel v. Belcher, 522 F.2d 438, 441 (6th
Cir. 1975)) (“Liability also may exist where off-duty police
officers perform duties prescribed generally for police
officers.”).

Grimball has alleged more than a merely private

pursuit by West, whose objective manifestations of law
enforcement authority were the direct cause of the constitutional
deprivation alleged by Grimball.
West asserts that because he was joking around, the episode
in the Restaurant kitchen was a private action rather than one
performed under color of state law.

There is support for the

proposition that playing a joke or general tomfoolery is conduct
that fails to invoke Section 1983.

See Townsend v. Moya, 291

F.3d 859, 862-63 (5th Cir. 2002) (where the parties were engaged
in the “purely private aim” of name-calling, they were engaged in
“horseplay,” and thus were not acting under color of state law);

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Harris v. Rhodes, 94 F.3d 196, 197-98 (5th Cir. 1996) (where the
parties teased each other regarding personal attributes and the
discussion involved “purely personal matters,” there was
“horseplay” and thus no action under color of state law when the
defendant punched the plaintiff in the nose).

Although Grimball

alleges that West and Haggman “decided to play a cruel joke” on
him and avers that at least initially, the defendants appeared to
be joking, he also alleges that the intensity and extremity of
West’s actions made Grimball question whether the incident was
really a joke.

Rec. Doc. 1, at 3-5, ¶¶ 6-7, 9, 11, 20.

Moreover, Grimball alleges that West pulled a gun on him and told
him to “[p]ut [his] [expletive] hands on the wall,” which exceeds
the mere “horseplay” that may make an action wholly private in
nature.

The well-pleaded facts indicate more than horseplay—a

misuse by West of his power as a police officer with respect to
his encounter with Grimball.
Cases cited by West are not persuasive and generally are
distinguishable.

In Pitchell, 13 F.3d 545, although the officer

acted as a private citizen, his action is distinguishable from
that of West, who implicitly invoked state authority through the
display of his “credentials” and his performance of a police
function.

In contrast with Barna v. City of Perth Amboy, 42 F.3d

28

809 (3d Cir. 1994), which involved a personal family dispute,
West allegedly forcefully detained Grimball and invoked state
authority through his pat-down for drugs and the display of his
weapon.

In Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445

(1st Cir. 1997), although the defendant initially asserted that
he was a police officer, there was no causal relationship between
the assertion and his later brawl with and shooting of the
decedent.

In contrast, West allegedly invoked law enforcement

authority to facilitate the complained-of conduct, a drug search.
Likewise, Delcambre v. Delcambre, 635 F.2d 407 (5th Cir. 1981)
and Hudson v. Maxey, 856 F. Supp. 1223 (E.D. Mich. 1994) are
distinguishable from the instant matter, in which more than a
mere private pursuit is alleged.
The Court, assuming the veracity of the well-pleaded factual
allegations, finds that they plausibly give rise to an inference
that West acted under color of state law.
679.

See Iqbal, 556 U.S. at

West’s motion to dismiss for failure to state a claim

should be denied.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant Sean
West’s Motion to Quash Service and Alternatively, Motion to

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Dismiss Pursuant to FRCP Rule 12(b) (Rec. Doc. 34) is DENIED and
that this case will be placed on the Court’s trial docket.
New Orleans, Louisiana, this 23rd day of April, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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