Buckenberger v. Milazzo

Filing 13

ORDER AND JUDGMENT: IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Defendants and against Plaintiff, dismissing Plaintiff's claims in the above-captioned matter with prejudice pursuant to 28 U.S.C. 1915A(b)(1). Signed by Judge Ivan L.R. Lemelle on 6/13/2017.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTOPHER BUCKENBERGER

CIVIL ACTION

VERSUS

NO. 17-2862

JANE TRICHE MILAZZO

SECTION "B"(2)
ORDER AND JUDGMENT

On May 24, 2017, this Court ordered Plaintiff Christopher
Buckenberger to show cause in writing by June 5, 2017 why his
claims should not be dismissed as frivolous and otherwise barred
by judicial immunity. Rec. Doc. 10 at 2. On June 6, 2017, the Court
received two written responses. Rec. Docs. 11-12.1
In his first response, Plaintiff states that “LEMEL [sic]
shall not ‘threaten’ . . . with dismissal in any event . . . .”
Rec. Doc. 11 at 1.2 He appears to accuse this Court of bias or
misconduct

when

he

states

that

“RC

here

with

EXISTENTIALISM/SUBSTANTIVE (above) shows he is being PUNISHED BY
LEMEL (pg -3- here) whereby LEMEL extra . . . judicial bias
plausibly

presumed

(political)

ulterior

motives

It is not clear when these responses were signed and mailed by Plaintiff. The
first is dated April 27, 2017, nearly a month before the Court issued the show
cause order. See Rec. Doc. 11 at 13. The second suggests that it was submitted
on June 4, 2017. See Rec. Doc. 12 at 1. In the interest of justice, the Court
will assume that both responses were timely filed by the June 5, 2017 deadline.
2 Plaintiff cites to various cases and rules throughout his responses—none of
which persuade this Court that his suit is meritorious. For example, here he
cited to Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988), considering
whether or not failure to file a notice of appeal in accordance with Federal
Rule of Appellate Procedure 3(c)’s specificity requirement presents a
jurisdictional bar to an appeal, and Federal Rule of Appellate Procedure 2,
providing that a court of appeals may “suspend any provision of these rules in
a particular case and order proceedings as it directs . . . .”
1

1

subversively/related/DOJ RICO SCHEMES remove efforts!” Id. at 6-7
(emphasis in original).
He further suggests that this Court lacks jurisdiction and
failed

to

consider

the

supplemental

memorandum

he

filed

in

conjunction with his motion to remand. Rec. Doc. 11 at 1-3.
However, the Court did consider the supplemental memorandum, a
rambling thirty-one pages of incoherent arguments, like those made
here, filed more than a week before the Court issued its show cause
order.

See

Rec.

Doc.

8.

Both

his

original

motion

and

his

supplemental memorandum failed to provide any coherent, legal
basis for remand. Plaintiff also states that the Court failed to
consider “(a) to (d)” or “pgs 5 to 10.” Rec. Doc. 11 at 4. However,
the

Court

considered

Plaintiff’s

motion

and

supplemental

memorandum in their entirety—to the extent that the Court could
decipher Plaintiff’s arguments.3
He

also

maintains

that

Defendants

failed

to

provide

a

“mandate” when they removed the action to federal court. Rec. Doc.
11 at 5. In fact, he repeatedly refers to a “mandate” throughout
his response. Id. at 6-9, 12-14. It is unclear what Plaintiff is
referring to, but the United States clearly removed the matter
pursuant to 28 U.S.C. §§ 517, 1442(a)(1). Rec. Doc. 1 at 1.4

It remains unclear what portion of the motion or supplemental memorandum
Plaintiff is referring to when he cites to “(a) to (d)” and “pgs 5 to 10.”
4 These statutes provide that any Department of Justice officer “may be sent by
the Attorney General to any State or district in the United States to attend to
the interests of the United States in a suit pending in a court of the United
3

2

Plaintiff’s second response seems to focus on the withholding
of this “mandate.” Rec. Doc. 12 at 1-4.5 However, he also attaches
the Fifth Circuit’s September 10, 2009 judgment in Christopher
Buckenberger v. Walter Reed, et al., Civil Action No. 06-7393,
Section “F,” Rec. Doc. 145. In that judgment, the Fifth Circuit
held that Plaintiff’s claims of false testimony were barred by
Heck v. Humphrey, 512 U.S. 477 (1994) and that his claims of
excessive force were foreclosed by Hudson v. Hughes, 98 F.3d 868
(5th Cir. 1996); those claims were therefore properly dismissed by
the district court. Rec. Doc. 12 at 7, 10-11.6 However, the Fifth
Circuit also held that Plaintiff’s Fourth Amendment rights were
violated because a probable cause hearing was not held within
forty-eight hours of his warrantless arrest. Id. at 8-9. The
arresting officer, Defendant Haywood Jarrell, was

potentially

liable for this violation under Louisiana law. Id. at 9-10.
The docket entry describes the Fifth Circuit’s judgment in
the following way:
USCA JUDGMENT issued as mandate on 9/9/2009 as to 132
Notice of Appeal filed by Christopher Buckenberger,
States, or in a court of a State” and that a state court action involving any
officer of the United States, “for or relating to any act under color of such
office,” may be removed to the federal district court embracing the place
wherein it is pending.
5 The cases cited by Plaintiff do not shed any light onto the matter. See, e.g.,
Estates of Sorrells v. City of Dallas, 192 F.R.D. 203, 208-09 (N.D. Tex. 2000)
(noting that defendants should affirmatively plead the defense of qualified
immunity “at the earliest possible stage in litigation”). Here, Defendants
clearly pled judicial immunity in their notice of removal. See Rec. Doc. 1 at
¶ 8.
6 For the purposes of this Order, the Court will cite to the Fifth Circuit’s
opinion as it is attached to Plaintiff’s response.
3

ordered and adjudged that the judgment of the District
Court is affirmed in part and reversed in part, and the
cause is remanded to the District Court for further
proceedings in accordance with the opinion of this
Court.
(Emphasis added). This may be the “mandate” to which Plaintiff
repeatedly

refers.

Plus,

Plaintiff

highlighted

the

following

passage from the judgment:
There is a question as to whether the other named
defendants as well as “unidentified parties” shared in
the liability for the violation of Buckenberger’s Fourth
Amendment rights. “It may be that some, or perhaps none,
of the named defendants can be held responsible” for the
constitutional violation. Buckenberger never had an
opportunity for discovery because the district court
never ordered service of process on the defendants other
than Jarrell. Discovery may yield additional parties
responsible for the violation of Buckenberger’s Fourth
Amendment rights. “When a pro se plaintiff’s suit raises
a constitutional claim, but he has inadvertently sued
the wrong parties, he should [be] given leave to amend
to sue the appropriate party or parties.” Buckenberger’s
allegations show a probable constitutional violation by
someone. Therefore, we remand this issue to the district
court for further proceedings.
Rec. Doc. 12 at 10 (emphasis added by Plaintiff) (citations and
footnotes omitted). Thus, Plaintiff may be under the mistaken
belief that the Fifth Circuit authorized him to file the instant
action because he believes Defendants are the “responsible” and
“appropriate” parties. However, Judges Jane Triche Milazzo, Martin
L.C. Feldman, Daniel E. Knowles, and Michael B. North, all of whom
were named in Plaintiff’s petition, were not responsible for
Plaintiff’s
Defendant

delayed

named

in

probable
this

cause

action
4

is

hearing.
Gerald

The
J.

only

Neilsen,

other
who

represented
underlying

Plaintiff’s
action.

See

arresting
Christopher

officer,

Jarrell,

Buckenberger

v.

in

Gerald

the
J.

Nielsen, et al., Civil Action No. 15-1785, Section “H”(5), Rec.
Doc. 15 at 4.
Plaintiff failed to show cause why this matter should not be
dismissed as frivolous and otherwise barred by judicial immunity.
Accordingly,
IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment
in

favor

of

Defendants

and

against

Plaintiff,

dismissing

Plaintiff’s claims in the above-captioned matter with prejudice
pursuant to 28 U.S.C. § 1915A(b)(1).
New Orleans, Louisiana, this 13th day of June, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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