Payton v. Wright et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS 6 ; ORDERED that 7 Objection filed by Raymond Payton are OVERRULED; FURTHER ORDERED that Plaintiff's claim against New Orleans Police Superintendent Ronal Serpas is DISMISSED WITH PREJUDICE as frivolous and/or for failure to state a claim on which relief may be granted. FURTHER ORDERED that plaintiff's claim against New Orleans Police Officer D. Wright is STAYED and that the Clerk of Court is directed to mark this action CLOSED for st atistical purposes. FURTHER ORDERED that the Court retains jurisdiction and that this case be restored to the trial docket upon plaintiff's motion once his criminal proceedings are concluded, so that the claim against Wright may proceed to final disposition.. Signed by Judge Carl Barbier on 3/25/13.(sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAYMOND PAYTON

CIVIL ACTION

VERSUS

NO: 13-181

WRIGHT ET AL.

SECTION "J" (1)
O R D E R

The Court, having considered the record, the applicable law,
the Report and Recommendation of the United States Magistrate Judge
(Rec. Doc. 6), and Plaintiff's objections thereto (Rec. Doc. 7),
hereby approves the Report and Recommendation of the United States
Magistrate Judge and adopts it as its opinion herein.
The Magistrate Judge correctly determined that Plaintiff has
failed to state a cause of action under 28 U.S.C. § 1983 against
Police Superintendent Ronal Serpas. Plaintiff has affirmatively
testified that Superintendent Serpas had no personal involvement in
the alleged offense, and Plaintiff has failed to allege that there
was a policy or custom in place that would implicate Superintendent
Serpas in his official capacity. See Thompson v. Steele, 709 F.2d
381, 382 (5th Cir. 1983); Spiller v. City of Texas City, Police

Department, 130 F.3d 162, 167 (5th Cir. 1997). Thus, Superintendent
Serpas must be dismissed from this suit.
Likewise, the Court

agrees with the Magistrate Judge's

recommendation that the case against Officer Wright should be
stayed. Plaintiff's underlying criminal case has not been fully
resolved, and the outcome of that trial necessarily influences the
Court's capacity to grant Plaintiff his requested relief in this
action. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding
that "in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff mut prove that the conviction or sentence has
been reversed on direct appeal, expunged [], [or otherwise declared
invalid]). Accordingly;
IT IS ORDERED that Plaintiff's objections (Rec. Doc. 7)are
hereby OVERRULED;
IT IS FURTHER ORDERED that the Court hereby ADOPTS the Report
and Recommendation of the United States Magistrate Judge (Rec. Doc.
6) as its own;
IT IS FURTHER ORDERED that Plaintiff’s claim against New
Orleans

Police

Superintendent

Ronal

Serpas

is

DISMISSED

WITH

PREJUDICE as frivolous and/or for failure to state a claim on which

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relief may be granted.
IT IS FURTHER ORDERED that plaintiff’s claim against New
Orleans Police Officer D. Wright is STAYED and that the Clerk of
Court is directed to mark this action CLOSED for statistical
purposes.
IT IS FURTHER ORDERED that the Court retains jurisdiction and
that this case be restored to the trial docket upon plaintiff’s
motion once his criminal proceedings are concluded, so that the
claim against Wright may proceed to final disposition.
New Orleans, Louisiana this 25th day of March, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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