Bourg v. Fabre et al

Filing 27

ORDERED that defendant Douglass Chauvin's 25 Motion to Dismiss for Failure to State a Claim is GRANTED. It is FURTHER ORDERED that Plaintiff shall show cause in writing by Wednesday, December 14, 2016, why this Court should not dismiss the sole remaining defendant in this case, Leslie Breaux. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
REGGIE P. BOURG

CIVIL ACTION

VERSUS

NO: 16-7490

JEROME C. FABRE, ET AL.

SECTION: “J” (5)
ORDER AND REASONS

Before the Court is a 12(b)(6) Motion to Dismiss

(R.

Doc. 25) filed by Defendant, Douglas Chauvin, 1 in his official
capacity as Constable, Ward Five, of Terrebone Parish, Louisiana
(Defendant Chauvin).

No opposition was filed to this motion.

Having considered the motion and legal memorandum, the record, and
the applicable law, the Court finds that the motion should be
GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This

litigation

derives

from

a

state

court

eviction

proceeding which occurred before Defendant Jerome Fabre in his
capacity

as

Plaintiff’s

Justice
complaint

of

the

alleges

Peace.
that

(R.
in

Doc.

April

10-1,

2013,

at

1).

Plaintiff

entered into an oral lease agreement with Andre Breaux (Breaux),
wherein Plaintiff would be granted permission to garden on Breaux’s
property, and in exchange, Plaintiff would mow the lawn in Breaux’s

1

The complaint refers to Defendant Chauvin as “Douglass Chauvin.” Defendant
Chauvin’s memorandum in support of his motion to dismiss states that Defendant
Chauvin died on July 25, 2016.

1

pasture and monitor goats and a bull owned by Breaux.
at 16).

(R. Doc. 1,

This arrangement appears to have soured at some point

over the next two years, culminating in Plaintiff receiving a
Notice to Vacate from Breaux and his wife, Defendant Leslie Breaux,
on May 19, 2015. (R. Doc. 1, at 12; R. Doc. 21, at 2).
Plaintiff alleges that on May 27, 2015, Jerome Fabre, in his
capacity as Justice of the Peace, signed a Rule to Show Cause
summoning Plaintiff to appear on June 1, 2015. (R. Doc. 1, at 13).
Plaintiff further alleges that Defendant Chauvin served Plaintiff
with the Rule to Show Cause. (R. Doc. 1 at 3). Plaintiff alleges
that on June 1, 2015, Defendant Fabre ruled in favor of Breaux and
his wife, signing a Judgment of Eviction against Plaintiff, but
giving Plaintiff conditional allowance onto the property to pick
vegetables.

(R. Doc. 1, at 14).

The complaint alleges that

Defendant Chauvin was present at the eviction hearing, and that
Defendant Chauvin “made his presence known and that he would
[enforce] the Justice of the Peace’s orders to the fullest extent
of the law.” (R. Doc. 1, at 3).
Plaintiff contends that on June 14, 2015, Defendant Fabre
issued a notice advising Plaintiff that continued intrusion onto
the property could result in criminal charges. (R. Doc. 1 at 11;
R. Doc. 21, at 13).

The complaint alleges that Plaintiff appealed

the Judgment of Eviction to the 32nd Judicial District Court.

It

appears from the complaint that the 32nd Judicial District was set
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to hear Plaintiff’s appeal on June 17, 2015, but that Plaintiff
failed to attend the hearing, causing the matter to be dismissed.
(R. Doc. 1, at 18).
On May 31, 2016, Plaintiff filed a complaint in this Court
against Defendants under 42 U.S.C. § 1983, alleging violations of
the Fourteenth Amendment to The United States Constitution.
complaint requests damages and declaratory relief.

The

On September

30, 2016, Defendant Chauvin filed the instant 12(b)(6) Motion to
Dismiss for failure to state a claim upon which relief can be
granted. (R. Doc. 25).

Plaintiff did not file an opposition. The

motion is now before the Court on the brief and without oral
argument.
PARTIES’ ARGUMENTS
Defendant Chauvin argues that Plaintiff’s complaint should be
dismissed for failure to state a claim pursuant to Federal Rule of
Civil

Procedure

asserts

that

12(b)(6)

Plaintiff

(Rule
failed

12(b)(6)).
to

plead

Defendant
sufficient

Chauvin

facts

to

demonstrate that Defendant Chauvin is liable for any alleged
misconduct or that he acted in a way that injured Plaintiff. (R.
Doc. 25-1, at 6).

Defendant Chauvin contends that any action he

took in the eviction proceeding was authorized by the law and at
the request of the justice of the peace.

(R. Doc. 25-1, at 4).

Furthermore, Defendant Chauvin argues that Plaintiff received the
requisite due process. (R. Doc. 25-1, at 4). Finally, Defendant
3

Chauvin asserts that he is entitled to qualified immunity. (R.
Doc. 25-1, at 5).
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
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.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). 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.” Id. 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
4

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.
DISCUSSION
Plaintiff’s only allegation with respect to Defendant Chauvin
is that Defendant Chauvin carried out the orders of the justice of
the peace and was present at the eviction proceedings. (R. Doc. 1,
at 3). As this Court has already determined, the justice of the
peace had jurisdiction over the eviction proceeding in this case
pursuant to Louisiana Code of Civil Procedure Article 4912. (R.
Doc. 26, at 7).

The justice of the peace is required to utilize

the constable in his ward “to execute all orders, citations,
summons, seizures, and writs in civil cases.”
13:3478.

La. Rev. Stat.

Thus, the law explicitly authorizes the constable to

effect a service of process at the request of the justice of the
peace of his ward.

Id.

It was Defendant Chauvin’s duty, in his

official capacity as constable, to serve the Rule to Show Cause on
Plaintiff.

Furthermore, if the justice of the peace had required,

it would have been his duty to enforce the justice of the peace’s
subsequent orders as a result of the eviction.
Plaintiff makes no argument that Defendant Chauvin worked
outside his role as constable. In fact, Plaintiff simply lists the
duties of a constable and alleges that Defendant Chauvin carried
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out those duties. Plaintiff fails to allege any particularized
facts that permit a reasonable inference that Defendant Chauvin is
liable for any alleged constitutional violations.

Because all

actions taken by Defendant Chauvin were within his lawful duties
as constable, the complaint clearly fails to state facts sufficient
to articulate a cause of action.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendant Chauvin’s 12(b)(6) Motion
to Dismiss (R. Doc. 25) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall show cause in
writing by Wednesday, December 14, 2016, why this Court should not
dismiss the sole remaining defendant in this case, Leslie Breaux.
New Orleans, Louisiana this 29th day of November, 2016.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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