McManus v. Norwood et al
Filing
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ORDER AND REASONS - IT IS ORDERED that Rec. Doc. 14 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; Rec. Doc. 24 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; and Rec. Doc. 26 Motio n to Dismiss Case are GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against Lisa Polk are DISMISSED for lack of jurisdiction. IT IS FURTHER ORDERED that Plaintiff's claims in all consolidated cases are DISMISSED. Signed by Judge Jane Triche Milazzo on 8/10/2018. (Reference: All Cases)(sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH MCMANUS
CIVIL ACTION
VERSUS
NO: 18-328
C/W: 18-329, 18-330,
18-366
RE: ALL
ELLA NORWOOD ET AL.
SECTION: “H”(2)
ORDER AND REASONS
Before the Court are Defendants Kazzaria Brumfield and George
Bonnett’s Motion to Dismiss (Doc. 14), Defendants Mike Rice, John Roberts,
and Mark Ford’s Motion to Dismiss (Doc. 24), and Defendants Ellamae
Norwood, Dennis Thomas, and Charles McManus Jr.’s Motion to Dismiss (Doc.
26). For the following reasons, the Motions are GRANTED. The Court also
reviews Plaintiff’s claims against Lisa Polk and DISMISSES them for lack of
jurisdiction.
BACKGROUND
This consolidated action includes four cases filed on January 11, 2018 by
Plaintiff Joseph McManus, pro se. Plaintiff filed case number 18-328, the lead
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action, against Defendants Norwood, Thomas, and Charles McManus; case
number 18-329 against Brumfield, Bonnett, and Justin Frechette; 1 case
number 18-330 against Rice, Roberts, and Ford; and case number 18-336
against Lisa Polk. Plaintiff’s complaints collectively allege the following: On
May 6, 2015, Plaintiff’s father, Defendant Charles McManus, sought an Order
of Protective Custody (“OPC”) for Plaintiff, claiming that Plaintiff threatened
to harm him and others. 2 Defendant Rice investigated the OPC on behalf of
the St. Tammany Parish Sheriff’s Office. Defendant Roberts completed the
Coroner’s Emergency Certificate on behalf of the St. Tammany Parish
Coroner’s Office. 3 Plaintiff claims that the OPC was issued improperly because
Rice and Roberts had no proof of any of the allegations made by Defendant
Charles McManus regarding Plaintiff. 4 Plaintiff was taken into custody under
the OPC.
Plaintiff further alleges that on January 12, 2017, Plaintiff’s eviction
from his father’s home led to a violent domestic dispute between Plaintiff and
his father. 5 The next day, Defendant Ford banned him from the Coroner’s office
after Plaintiff went there to make a complaint about his father threatening
him. 6 Plaintiff also alleges that his father owes him money. 7 On January 2,
2018, Plaintiff attempted to learn the name of the officer who evicted him from
his father’s home, but Defendants Brumfield and Bonnett of the St. Tammany
Parish Sheriff’s Office allegedly refused to provide him with the officer’s name. 8
Frechette was dismissed for lack of service. Doc. 35.
R. Doc. 1, Case 18-330 at 1.
3 R. Doc. 24-2 at 2.
4 R. Doc. 1, Case 18-330 at 1.
5 R. Doc. 14-1 at 2.
6 R. Doc. 1, Case 18-330 at 1.
7 R. Doc. 1 at 2.
8 R. Doc. 1, Case 18-329 at 1.
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Three groups of defendants have filed motions to dismiss now before the
Court. Defendants Brumfeld and Bonnett move to dismiss Plaintiff’s claims
against them pursuant to Federal Rules of Civil Procedure 12(b)(6) and
12(b)(1). 9 Defendants Rice, Roberts, and Ford move to dismiss Plaintiff’s claims
against them pursuant to Rules 4(m), 12(b)(6), and 12(b)(1). 10 Defendants
Norwood, Thomas, and Charles McManus, appearing pro se, move to dismiss
Plaintiff’s claims against them on the grounds that Plaintiff’s complaint
exceeds the statute of limitations. 11 The Court will discuss each motion in turn.
The court also examines its jurisdiction over Plaintiff’s claims against
Defendant Polk sua sponte.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
enough facts to “state a claim for relief that is plausible on its face.” 12 A claim
is “plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged. 13
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 14 The Court need not,
however, accept as true legal conclusions couched as factual allegations. 15 To
be legally sufficient, a complaint must establish more than a “sheer possibility”
that the plaintiff’s claims are true. 16 If it is apparent from the face of the
R. Doc. 14-1.
R. Doc. 24-2.
11 R. Doc. 26.
12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007)).
13 Id.
14 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
15 Iqbal, 556 U.S. 662 at 678.
16 Id.
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complaint that an insurmountable bar to relief exists and the plaintiff is not
entitled to relief, the court must dismiss the claim. 17
A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a
federal district court. “A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case.” 18 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. 19 The proponent of federal court jurisdiction—in this case, Plaintiff—
bears the burden of establishing subject matter jurisdiction. 20
LAW AND ANALYSIS
I.
Defendants Brumfield and Bonnett’s Motion to Dismiss
Defendants Brumfield and Bonnett move to dismiss Plaintiff’s claims
against them on the grounds that this Court lacks subject matter jurisdiction
and that Plaintiff failed to state a claim upon which relief may be granted.
Plaintiff’s complaint against Defendants Brumfield and Bonnett makes three
claims: first, that Plaintiff was taken into custody pursuant to an OPC without
being shown a warrant; second, that Plaintiff was evicted from his father’s
home before the five-day period required under Louisiana law for residential
evictions had expired; and third, that Defendants refused to provide Plaintiff
with the name of the officer who evicted him. 21
Lormand, 565 F.3d 228 at 255–57.
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998).
19 Den Norske Stats Oljesels kap As v. Heere MacVof, 241 F.3d 420, 424 (5th Cir. 2001).
20 See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
21 R. Doc. 1, Case 18-329.
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Plaintiff’s allegation that he was unreasonably seized pursuant to an
OPC without being shown a warrant fails to state an actionable claim under
Rule 12(b)(6). This Court interprets Plaintiff’s allegations that he was seized
without being shown a warrant as a Fourth Amendment claim. The Fourth
Amendment prohibits seizures of a person that are unreasonable. 22 According
to Louisiana Revised Statutes § 28:53:2, a person may be placed under an OPC
when “a peace officer or other credible person executes a statement under
private signature” specifying that the person is in need of immediate
treatment. 23 The statute does not require that a warrant or other order be
shown to the person being seized for treatment. Nor does the Fourth
Amendment itself require officers to present a court order before carrying out
a search or seizure. 24 Because the Louisiana statute provides “adequate
safeguards to protect the constitutional rights of Plaintiff,” the seizure of
Plaintiff pursuant to the OPC, but without showing Plaintiff the OPC
beforehand, was reasonable and did not violate the Fourth Amendment. 25
Plaintiff’s claim for unlawful seizure therefore fails to state a claim under
which relief may be granted and is dismissed.
Plaintiff’s allegations that Defendants Brumfield and Bonnett failed to
provide him with the name of the officer who evicted him from his father’s
home also fail to state an actionable claim under Rule 12(b)(6). Plaintiff argues
that Defendants Brumfield and Bonnett, employees of the St. Tammany Parish
Sheriff’s Office, violated the Freedom of Information Act by withholding that
information. 26 The Freedom of Information Act applies only to federal agencies,
McLin v. Ard, 866 F.3d 682, 694 (5th Cir. 2017).
LA. REV. STAT. § 28:53:2.
24 See United States v. Grubbs, 547 U.S. 90, 99 (2006).
25 See Doe v. Spurlock, No. 91-61, 1991 WL 175547, at *2 (E.D. La. Aug. 27, 1991), aff’d, 973
F.2d 923 (5th Cir. 1992).
26 R. Doc. 1, Case 18-329 at 2.
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not state or local entities. 27 Because Defendants Brumfield and Bonnett are
not federal agencies or employees, the Freedom of Information Act does not
provide Plaintiff a cause of action against them. Plaintiff also argues that
Defendants’ silence violated Plaintiff’s rights under the First Amendment.
However, the First Amendment does not mandate “a right of access to
government information or sources of information within the government’s
control.” 28 Accordingly, Plaintiff’s claims regarding the name of his arresting
officer fail to state a claim under which relief may be granted and are
dismissed.
Finally, this Court lacks subject matter jurisdiction to hear Plaintiff’s
claim that he was evicted without adequate notice. Louisiana law requires a
lessor to give written notice to a lessee at least five days before requiring the
lessee to vacate the premises. 29 A claim for violating that requirement arises
from state law, not from the “Constitution, laws, or treaties of the United
States,” and this Court therefore lacks federal question jurisdiction over it. 30
Nor does the Court have diversity jurisdiction, as Plaintiff’s complaint does not
allege, and the facts do not suggest, that Plaintiff and Defendants Brumfield
and Bonnett are citizens of different states. 31 Furthermore, having dismissed
Plaintiff’s other claims against Defendants Brumfield and Bonnett, this Court
lacks supplemental jurisdiction as well. 32 Accordingly, Plaintiff’s claim for
untimely eviction is dismissed.
Wright v. Curry, 122 Fed. App’x 724, 725 (5th Cir. 2004) (unpublished).
Houchins v. KQED, Inc., 438 U.S. 1, 1 (1978).
29 LA. CODE CIV. P. art. 4701.
30 28 U.S.C. § 1331.
31 See 28 U.S.C. § 1332.
32 See 28 U.S.C. § 1367.
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II.
Defendants Rice, Roberts, and Ford’s Motion to Dismiss
Defendants Rice, Roberts, and Ford move to dismiss Plaintiff’s claims
against them pursuant to Rules 4(m), 12(b)(6), and 12(b)(1). Plaintiff makes
three claims against Defendants Rice, Roberts, and Ford: first, that Plaintiff
was detained under the May 6, 2015 OPC without proof of his need to be in
custody; second, that Defendants Rice, Roberts, and Ford refused to produce
records supporting or associated with that detention; and third, that Plaintiff
was wrongfully banned from the coroner’s office on January 2, 2017.
Defendants Roberts and Ford first move to dismiss Plaintiff’s complaint
against them pursuant to Rule 4(m) because they were not served within 90
days of the filing of the complaint. 33 Because Defendants have now been served
and suffered no prejudice, the Court declines to dismiss the complaint under
Rule 4(m). 34
Plaintiff’s claim against Defendants Rice, Roberts, and Ford that there
was no proof to support the OPC under which he was detained has prescribed.
Plaintiff’s claim that he was detained under the OPC without proof is a Fourth
Amendment claim cognizable under 42 U.S.C. § 1983. 35 The statute of
limitations to be applied in § 1983 actions is the state statute of limitations
governing actions for personal injury. 36 In Louisiana, the prescriptive period
for delictual actions is one year. 37 Plaintiff’s Fourth Amendment claim arises
from his detention on May 6, 2015, more than one year before he filed suit, and
has therefore prescribed on its face. Plaintiff argues that his claim has not
prescribed because he only recently become aware of the mental damage that
he suffered from his detention. In § 1983 cases, prescription commences “when
See FED. R. CIV. P. 4(m).
See Thrasher v. City of Amarillo, 709 F.3d 509, 513 (5th Cir. 2013).
35 42 U.S.C. § 1983.
36 Wilson v. Garcia, 471 U.S. 261, 267–80 (1985).
37 LA. CIV. CODE art. 3492.
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the plaintiff knows or has reason to know of the injury which is the basis of the
action.” 38 Here, Plaintiff immediately suffered a loss of freedom when he was
detained under the OPC. Plaintiff also suspected that his rights had been
violated, as he argues that he “told them it [was] a lie from day one.” 39
Therefore the prescriptive period for Plaintiff’s Fourth Amendment claim
began to run on May 6, 2015. Plaintiff’s Fourth Amendment claim against
Defendants Rice, Roberts, and Ford is dismissed.
Plaintiff’s remaining allegations against Defendants Rice, Roberts, and
Ford—that they refused to provide him with the records supporting his
detention under the OPC and that they banned him from the Coroner’s office—
fail to state claims that are actionable under this Court’s jurisdiction. Plaintiff
demands that Defendants be fired and that he be given his medical record, yet
articulates no federal right or law that Defendants violated or that would
provide such relief. Similarly, apart from the Fourth Amendment claim
dismissed above, Plaintiff offers no legal basis under which Defendants Rice,
Roberts, and Ford would be liable for damages. Accordingly, Plaintiff’s claims
against them are dismissed.
III.
Defendants Norwood, Thomas, and Charles McManus’s Motion
to Dismiss
Defendants Norwood, Thomas, and Charles McManus move pro se to
dismiss Plaintiff’s claims against them on the ground that they have
prescribed. Plaintiff makes three general demands against Defendants
Norwood, Thomas, and Charles McManus: first, that Charles McManus’s
mental health be evaluated; second, for money that Plaintiff claims Defendants
owe him based on past loans, lost and unpaid wages, expenses incurred for
Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992) (quoting Burrell v. Newsome, 883
F.2d 416, 418 (5th Cir. 1989)).
39 See R. Doc. 29 at 1.
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their benefit, and damage to Plaintiff’s property; and third, for damages
resulting from mental distress that Defendants caused Plaintiff.
Although Defendants Norwood, Thomas, and Charles McManus move to
dismiss based on prescription, the Court first determines sua sponte whether
it has subject matter jurisdiction over Plaintiff’s claims. 40 Plaintiff does not
allege that Plaintiff and Defendants Norwood, Thomas, and Charles McManus
are citizens of different states. The facts suggests that all are citizens of
Louisiana. 41 Therefore this Court does not have diversity jurisdiction. Nor does
the Court have federal question jurisdiction. Plaintiff’s demands for a mental
health evaluation, for property damage and unjust enrichment against private
citizens, and for the infliction of emotional distress are all state law claims, to
the extent they are claims at all. Plaintiff points to no federal right or statute
that Defendants Norwood, Thomas, and Charles McManus violated.
Accordingly, this Court lacks subject matter jurisdiction over Plaintiff’s claims
against Norwood, Thomas, and Charles McManus. The claims are dismissed,
and the Court does not reach Defendants’ prescription argument.
IV.
Plaintiff’s Claims Against Defendant Polk
Although Defendant Polk has not filed responsive pleadings despite
being served, this Court examines its jurisdiction over Plaintiff’s claims
against her sua sponte. A court is duty-bound to ensure that it has subject
matter jurisdiction at all stages of a proceeding. 42 Plaintiff alleges that
Defendant Polk is the justice of the peace who presided over a hearing and
ordered that Plaintiff be evicted from his father’s house. 43 Plaintiff claims that
Defendant Polk’s ruling was not supported by the evidence and that Polk
See Union Planters Bank Nat. Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).
See R. Doc. 1; R. Doc. 26.
42 See Union Planters Bank Nat. Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).
43 R. Doc. 1, Case 18-336 at 1.
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labored under a conflict of interest because she has known Plaintiff’s father for
a long time. Plaintiff demands that Polk be fired and that he received damages
for mental distress.
In essence, Plaintiff seeks review of a state court judgment, for which
this Court lacks jurisdiction. The Rooker-Feldman Doctrine holds that federal
courts lack the power to modify or reverse state court judgments. 44 Its bar is
jurisdictional. 45 The doctrine extends not only to those cases in which a
plaintiff candidly seeks review of a state court judgment, but also to those in
which the “‘claims presented [in federal court] are inextricably intertwined
with the state court’s’ grant or denial of relief.” 46 Here, although Plaintiff does
not ask the Court to reverse the order of eviction, Plaintiff seeks damages
premised on the order’s invalidity. 47 Accordingly, this Court lacks subject
matter jurisdiction over Plaintiff’s claims against Defendant Polk. Plaintiff’s
claims are dismissed.
CONCLUSION
For the forgoing reasons, Defendants’ motions to dismiss are GRANTED.
Plaintiff’s claims in all consolidated cases are DISMISSED.
New Orleans, Louisiana this 10th day of August, 2018.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
Truong v. Bank of Am., N.A., 717 F.3d 377, 381–83 (5th Cir. 2013).
Id. at 381.
46 Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986) (quoting District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983)).
47 See Price v. Porter, 351 F. App’x 925, 926 (5th Cir. 2009); Minor v. Texas, 62 F.3d 395,
1995 WL 450201 (5th Cir. 1995).
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