Magee v. Reed et al

Filing 36

ORDER AND REASONS: For the forgoing reasons, Defendants Gracianette and Cuccia's 26 Motion to Dismiss is GRANTED IN PART, and Defendant Walter Reed's 27 Motion to Dismiss is DENIED. Plaintiff's claims against Gracianette and Cucci a in their personal capacities are DISMISSED. All other claims are maintained at this time. IT IS FURTHER ORDERED that this matter is referred to the Magistrate Judge for consideration of whether appointment of counsel to represent Plaintiff in this matter is warranted.Signed by Judge Jane Triche Milazzo on 5/4/2016. (my)(NEF:SS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THERONE MAGEE

CIVIL ACTION

VERSUS

NO: 14-1554

WALTER REED, ET AL

SECTION: “H”(1)

ORDER AND REASONS
Before the Court are two Motions to Dismiss: one filed by Defendants
Ronald Gracianette and Jason Cuccia (Doc. 26) and one filed by Defendant
Walter Reed (Doc. 27).

For the following reasons, Defendants Ronald

Gracianette and Jason Cuccia’s Motion is GRANTED IN PART, and
Defendant Walter Reed’s Motion is DENIED.
BACKGROUND
Plaintiff Therone MaGee’s pro se complaint alleges that St. Tammany
law enforcement officials worked together to violate his civil rights.
Specifically, he alleges that he was targeted with false charges of drug offenses
because of his race. Although he was ultimately acquitted on these charges,
he spent two years in jail during the pendency of trial. He alleges that
Defendants conspired unlawfully to detain him in deprivation of his rights.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and Louisiana state
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law for alleged Due Process and Equal Protection violations.

He seeks

damages for “unlawful arrest, excessive force, extortion, race-based
prosecution, and other violations of [his] civil rights.”
Defendants Ronald Gracianette and Jason Cuccia ask the Court to
dismiss the claims against them in both their individual and official capacities.
As to the individual capacity claims against them, these Defendants seek
dismissal pursuant to Fed. Rules Civ. Pro 12(b)(2) and 12(b)(5), as they aver
that they were not properly served in their individual capacities. As to the
official capacity claims against them, Defendants aver that dismissal is
warranted under Federal Rule of Civil Procedure 12(b)(6) on grounds of
absolute prosecutorial immunity. Defendant Walter Reed seeks dismissal of
the claims against him in his official capacity due to lack of service.
LEGAL STANDARD
I. Motion to Dismiss for Improper Service
“Federal Rule of Civil Procedure 12(b)(5) provides for dismissal of a claim
if service of process was not timely made in accordance with Federal Rule of
Civil Procedure 4 or was not properly served in the appropriate manner.” 1 “In
the absence of valid service of process, proceedings against a party are void.”2
The party responsible for serving has the burden of showing that service was
valid in the face of a 12(b)(5) challenge.3
Wallace v. St. Charles Parish Sch. Bd., 2005 WL 1155770, at *1 (E.D. La. 2005).
Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th
Cir. 1981).
3 Signs Supplies v. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990).
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2

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Rule 4(m) provides in part:
If a defendant is not served within 90 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.4
Thus, a Court faced with a defendant's Rule 12(b)(5) motion to dismiss for
failure to timely serve must undertake a two part inquiry.5 First, the Court
must determine if the plaintiff can show “good cause” for its failure to timely
serve. If good cause exists, the Court is required to extend the 90 day period
for service of process.6 “If good cause does not exist, the Court may, in its
discretion, decide whether to dismiss the case without prejudice or extend time
for service.”7 “The district court enjoys a broad discretion in determining
whether to dismiss an action for ineffective service of process.”8
II. Motion to Dismiss for Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts “to state a claim to relief that is plausible on its face.”9 A claim is
“plausible on its face” when the pleaded facts allow the court to “[d]raw the
reasonable inference that the defendant is liable for the misconduct alleged.”10

Fed. R. Civ. P. 4(m).
Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
6 Id.
7 Id.
8 George v. U.S. Dep't of Labor, 788 F.2d 1115, 1116 (5th Cir. 1986).
9 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)).
10 Id.
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A court must accept the complaint's factual allegations as true and must “draw
all reasonable inferences in the plaintiff's favor.”11

The Court need not,

however, accept as true legal conclusions couched as factual allegations.12
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff's claims are true.13 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’”
will not suffice.14

Rather, the complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiffs' claim.15
LAW AND ANALYSIS
As noted above, there are two Motions to Dismiss pending before the
Court in this matter. The Court will address each in turn.
I. Motion to Dismiss filed by Ronald Gracianette and Jason Cuccia
Defendants Ronald Gracianette and Jason Cuccia seek dismissal of the
claims against them in their individual capacity for improper service. They
further seek dismissal of the official capacity claims against them on grounds
of absolute prosecutorial immunity. The Court will address these arguments
for dismissal separately.

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
Iqbal, 556 U.S. at 667.
13 Id.
14 Id. at 678 (quoting Twombly, 550 U.S. at 555).
15 Lormand, 565 F.3d at 255–57.
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12

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B. Sufficiency of Service of Individual Capacity Claims
Defendants Gracianette and Cuccia first aver that the individual
capacity claims against them should be dismissed for insufficient service of
process. As noted above, the party responsible for service has the burden of
showing that it was valid in the face of a 12(b)(5) challenge.16 Plaintiff’s
opposition fails to address the affidavits of Defendants Gracianette and Cuccia,
which indicate that service was not properly effected upon them in their
individual capacities.

Rule 4(e) of the Federal Rules of Civil Procedure

indicates that service may be made by either delivering a copy of the summons
and of the complaint to the individual personally, leaving a copy of each at the
individuals dwelling or usual place of abode with someone of suitable age and
discretion who resides there, or delivering a copy of each to an agent authorized
by appointment or by law to receive service of process.17 Service may also be
made according to the 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 services is made.18
Defendants contend that the summons and complaint was merely left
with the receptionist at their office. Though they do not appear to dispute that
this action is sufficient to effect service on them in their official capacities, they
contend that they have never been properly served in their individual
capacities. This Court agrees. Because neither Defendant has appointed an
agent for the service of process, service may only be made upon them in their
Signs Supplies v. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
Fed. R. Civ. Pro. 4(e).
18 Id.
16
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individual capacity through personal or domiciliary service. This was not done.
Plaintiff has likewise failed to show good cause for this failure to timely effect
service more than a year after the initiation of this suit. Accordingly, pursuant
to Rule 12(b)(5), Plaintiff’s individual-capacity claims against Gracianette and
Cuccia are dismissed.19
A. Absolute Prosecutorial Immunity
Defendants Gracianette and Cuccia next seek dismissal of the official
capacity claims against them on grounds of absolute prosecutorial immunity.
This argument is based on a misunderstanding of the role of absolute
prosecutorial immunity.

Generally speaking, an official capacity suit

“represent[s] only another way of pleading an action against an entity of which
an officer is an agent.”20 “Unlike government officials sued in their individual
capacities, municipal entities and local governing bodies do not enjoy immunity
from suit, either absolute or qualified, under § 1983.”21 Accordingly, absolute
prosecutorial immunity does not apply to official-capacity suits against district
attorneys, and cannot be invoked to support dismissal of the official-capacity

The Court notes that even if service were effected on Gracianette and Cuccia in their
personal capacities, these claims would likely not survive an application of the doctrine of
absolute immunity. Prosecutors are protected from suit in their individual capacity when
acting in their role as an advocate for the state. Kalina v. Fletcher, 522 U.S. 118, 127 (1997).
Plaintiff’s claims regarding Gracianette and Cuccia are limited to their conduct in
prosecuting his case, which would entitle them to absolute immunity from suit in their
individual capacities.
20 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).
21 Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (finding that
district attorney was not entitled to absolute prosecutorial immunity in an official capacity
suit). See also Johnson v. Louisiana, No. 09-55, 2010 WL 996475, at *10 (W.D. La. Mar. 16,
2010) (collecting cases).
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claims in this matter.22 Defendants’ Motion is therefore denied with respect to
Plaintiff’s official-capacity claims.
II. Walter Reed’s Motion to Dismiss Official Capacity Claims
Defendant Walter Reed has likewise filed a Motion to Dismiss seeking
dismissal of Plaintiff’s official capacity claims against him because he has not
been served in this matter. Plaintiff responds, asserting that he has been
unable to obtain an accurate address at which to serve Mr. Reed, and has
requested additional time in which to serve Defendant.

He has further

indicated that the St. Tammany Parish District Attorney’s Office has
repeatedly declined to accept service on behalf of Walter Reed in his official
capacity. Accordingly, the Court is satisfied that Plaintiff has presented good
cause for his failure to timely effect service, and will grant an additional 60
days from the entry of this order within which to effect service.
The Court further notes that it appears that Plaintiff has experienced
difficulty understanding the nuanced nature of service of process. Accordingly,
this matter is referred to the Magistrate Judge for consideration of whether
appointment of counsel to represent Plaintiff is warranted.
CONCLUSION
For the forgoing reasons, Defendants Gracianette and Cuccia’s Motion
to Dismiss is GRANTED IN PART, and Defendant Walter Reed’s Motion to
Dismiss is DENIED. Plaintiff’s claims against Gracianette and Cuccia in

22

Burge, 187 F. 3d at 466.

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their personal capacities are DISMISSED. All other claims are maintained
at this time.
IT IS FURTHER ORDERED that this matter is referred to the
Magistrate Judge for consideration of whether appointment of counsel to
represent Plaintiff in this matter is warranted.
New Orleans, Louisiana this 4th day of May, 2016.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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