Romious v. Hunter et al

Filing 26

ORDER & REASONS granting 13 Motion to Dismiss Party. Party George Giacobbe and Rebecca Olivier dismissed. Signed by Chief Judge Sarah S. Vance on 4/3/2012. (rll, ) Modified on 4/3/2012 to edit doc type to OPINION (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARLOS ROMIOUS

CIVIL ACTION

VERSUS

NO: 12-77

CAROLINE C. HUNTER, ET AL.

SECTION: R(1)

ORDER AND REASONS
Before the Court is defendants Judge Rebecca Oliver and
Judge George Giacobbe’s motion to dismiss plaintiff Carlos
Romious’s complaint.

Because plaintiff fails to state a claim,

the Court GRANTS defendants’ motion.

I.

STANDARD
Federal Rule of Civil Procedure 12(b)(1) permits dismissal

for lack of jurisdiction over the subject matter of the claim.
In ruling on a Rule 12(b)(1) motion to dismiss, the court may
rely on (1) the complaint alone, presuming the allegations to be
true, (2) the complaint supplemented by undisputed facts, or (3)
the complaint supplemented by undisputed facts and by the court’s
resolution of disputed facts.

Den Norske Stats Oljeselskap As v.

HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996).

The party asserting jurisdiction bears the burden of

establishing that the district court possesses jurisdiction.

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

A

court’s dismissal of a case for lack of subject matter
jurisdiction is not a decision on the merits, and the dismissal
does not ordinarily prevent the plaintiff from pursuing the claim
in another forum.

See Hitt v. City of Pasadena, 561 F.2d 606,

608 (5th Cir. 1977).
When a defendant attacks the complaint because it fails to
state a legally cognizable claim, Rule 12(b)(6) provides the
appropriate challenge.

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, 129

S.Ct. 1937, 1960 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (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.”

Id. at 1949.

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, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996).

But the Court is not bound to accept

as true legal conclusions couched as factual allegations.
129 S.Ct. at 1949.

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Iqbal,

II.

DISCUSSION
A. Motion to Dismiss
Judges Rebecca Oliver and George Giacobbe seek dismissal

pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).

The Eleventh Amendment bar against suits by private

citizens against a state in federal court “applies not only to
the state itself, but also protects state actors in their
official capacities.”

K.P. v. LeBlanc, 627 F.3d 115, 124 (5th

Cir. 2010) (citing Hudson v. City of New Orleans, 174 F.3d 677,
682 (5th Cir. 1999).

Accordingly, to the extent that plaintiff

seeks to sue these defendants in their official capacities, he is
precluded from doing so by the Eleventh Amendment.

Moreover,

Romious has alleged no specific facts whatsoever, and the legal
conclusions recited will not suffice to survive a motion to
dismiss.

See Iqbal, 129 S. Ct. at 1949–50.

Therefore, the Court

dismisses plaintiff’s complaint against Judges Oliver and
Giacobbe with prejudice for failure to state a claim upon which
relief may be granted.
B. Request for Sanctions
Defendants argue that the Court, pursuant Federal Rule of
Civil Procedure 11, should formally admonish Romious from filing
additional claims that lack any legal merit or factual basis.
Defendants note that plaintiff filed the suit against 26
defendants, many of whom are state officials, and that he filed
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at least five other similar lawsuits in this district.
Romious is hereby warned that if he files another frivolous
pleading in this Court, he may be subject to sanctions, including
the imposition of a fine and/or an injunction against further
filings without leave of the Court.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’

motion to dismiss.

New Orleans, Louisiana, this 3rd day of April, 2012.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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