Carroll et al v. Abide et al

Filing 50

RULING and ORDER: Defendant's 45 Motion to Dismiss Pursuant to FRCP 12(B)11 (Doc. 45) is GRANTED. All of Plaintiff Pamela Carroll Alonso's claims against Defendant are DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(1). All of Plainti ffs William and Carolyn Carroll's claims against Defendant are DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6). All of Plaintiffs William and Carolyn Carroll's claims against XYZ Insurance Company are DISMISSED WITH PREJUDICE for all of the reasons provided herein. Signed by Chief Judge Brian A. Jackson on 3/10/2016. (BLR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIAM D. CARROLL, JR., ET AL.

CIVIL ACTION

VERSUS
SAMERA L. ABIDE, ET AL.

NO.: 14-00503-BAJ-EWD

RULING AND ORDER
Now into Court comes Defendant Samera L. Abide (“Defendant”) filing
Defendant’s Motion to Dismiss Pursuant to FRCP 12(B)1 (Doc. 45). Pro se2
Plaintiffs William D. Carroll, Jr., Carolyn K. Carroll, and Pamela Carroll Alonso
(collectively, “Plaintiffs”) have chosen not to address the merits of Defendant’s motion
because they believe it to be a “procedurally inappropriate filing.”3 (See Doc. 46). For
the reasons explained herein, Defendant’s motion is GRANTED pursuant to Federal
Rules of Civil Procedure (“Rule”) 12(b)(1)4 and 12(b)(6).

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[sic]

Initially, the Court acknowledges that “pro se complaints are held to less stringent standards than
formal pleadings drafted by lawyers.” Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002) (internal
quotations and citations omitted).
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From a procedural perspective, Defendant certainly “should have sought leave of court to supplement
[her] original motion to dismiss with . . . new . . . defenses.” See Cannon v. Sixth Dist. Pub. Def. Office,
No. CIV.A. 09-2164, 2010 WL 5855912, at *3 (W.D. La. Oct. 26, 2010); (See Doc. 3) (Defendant’s original
motion to dismiss). However, “any error is harmless, where, as here, the additional defenses could
have been raised in a Rule 12(c) motion for judgment on the pleadings, which is subject to the same
standard of review as a motion to dismiss under Rule 12(b)(6).” Servicios Azucareros de Venezuela,
C.A. v. John Deere Thibodaux, Inc., 922 F. Supp. 2d 567, 579 n.1 (E.D. La. 2013).
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Defendant asserts that its motion to dismiss arises under Rule 12(b)(6). See Doc. 45-1 at pp. 1—3.
However, all issues related to Article III standing, see id. at pp. 11—13, undoubtedly arise under Rule
12(b)(1), see Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).
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I.

Background5

Plaintiffs allege that Defendant violated their Fourth Amendment rights in
her capacity as court-appointed bankruptcy trustee. (See Doc. 1). More specifically,
Plaintiffs seek damages6 as a result of Defendant’s search of the Carrolls’ home, (id.
at p. 6, ¶ 27); (id. at p. 8, ¶ 35(a)), computer, (id. at p. 5, ¶ 23); (id. at p. 8, ¶ 35(b)),
and personal clothing and effects, (id. at p. 5, ¶ 25), (id. at p. 8, ¶ 35(c)).
II.

Discussion

Plaintiffs’ claims, for the following reasons, cannot stand: (1)7 Pamela Carroll
Alonso (“Alonso”) lacks Article III standing, (see Doc. 45-1 at pp. 11—13), (2) the
statute of limitations governing Defendant’s search of the Carrolls’ home has run, (see
id. at pp. 8—9), (3) an Article III judge authorized Defendant’s search of the Carrolls’
personal clothing and effects, (see id. at pp. 18—19), and (4) Defendant’s search of the
Carrolls’ computer does not fall within the confines of the Fourth Amendment.8

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See also Doc. 19 at pp. 1—3.

Such an action arises under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). See Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1387 (9th Cir.
1987).
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See Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001) (noting that “[w]hen a Rule 12(b)(1) motion
is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the merits”).
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Admittedly, the Court raised this issue sua sponte, see Coates v. Heartland Wireless Commc'ns, Inc.,
55 F. Supp. 2d 628, 633 (N.D. Tex. 1999) (citing Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th
Cir.1991)), before dismissing all claims arising out of Defendant’s search of the Carrolls’ home with
prejudice rather than without, see infra pp. 6—7. However, said claims were not, for instance,
dismissed as insufficiently pled. See Sullo & Bobbitt, PLLC v. Abbott, No. 3:11-CV-1926-D, 2012 WL
2796794, at **13—14 (N.D. Tex. July 10, 2012). They were dismissed as legally foreclosed based upon
the facts alleged. Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (reaffirming that a court
must, when evaluating a motion to dismiss, “accept as true all of the factual allegations contained in
the complaint”) (internal quotations and citations omitted). The notion that the Court should grant
Plaintiffs leave to amend the facts of their complaint hardly seems “fair.” See Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998) (internal quotations and citations omitted).
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A.

Alonso’s Article III Standing

“To meet the standing requirements of Article III, a plaintiff must allege
personal injury fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief.” Raines v. Byrd, 521 U.S. 811, 818—19
(1997) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) (emphasis in original).
Although, “at the pleading stage, general factual allegations of injury resulting from
the defendant's conduct may suffice,” Hotze v. Burwell, 784 F.3d 984, 992 (5th Cir.
2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)), “[a] federal court
is powerless to create its own jurisdiction by embellishing otherwise deficient
allegations of standing,” Whitmore v. Arkansas, 495 U.S. 149, 155—56 (1990). Put
simply, “if the plaintiff does not carry his burden . . . to allege facts demonstrating
that he is a proper party to invoke judicial resolution of the dispute, then dismissal
for lack of standing is appropriate.” Hotze, 784 F.3d at 992—93 (quoting FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)).
Plaintiffs assert that Defendant unconstitutionally searched the Carrolls’
home, (Doc. 1 at p. 6, ¶ 27); (id. at p. 8, ¶ 35(a)), computer, (id. at p. 5, ¶ 23); (id. at p.
8, ¶ 35(b)), and personal clothing and effects, (id. at p. 5, ¶ 25); (id. at p. 8, ¶ 35(c)).
The record, however, is “devoid of any evidence that [Alonso] . . . was personally
subjected9 to an illegal search or seizure . . . .” See San Jacinto Sav. & Loan v. Kacal,

The Fifth Circuit has, by its own admission, continued to construe this rule as one of standing, see
United States v. Maldonado, 1993 WL 307857, *3 n.2 (5th Cir. 1993), rather than substantive Fourth
Amendment law, see Rakas v. Illinois, 439 U.S. 128, 138—40 (1978).
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928 F.2d 697, 704 (5th Cir. 1991); (See Doc. 1 at p. 2, ¶ 2) (wherein Plaintiffs’
Complaint makes clear that any reference to “the Carrolls” does not include Alonso).
Plaintiffs have therefore failed to satisfy their jurisdictional burden with
respect to Alonso. See King v. U.S. Dep't of Veterans Affairs, 728 F.3d 410, 413 (5th
Cir. 2013) (holding that federal jurisdiction must be established by a preponderance
of the evidence by whom it is invoked); Wyble v. Gulf S. Pipeline Co., L.P., 308 F.
Supp. 2d 733, 741 (E.D. Tex. 2004) (citing Raines, 521 U.S. at 818) (holding that “each
plaintiff must establish that he has standing to sue”) (emphasis added). Accordingly,
Alonso’s claims against Defendant are DISMISSED WITHOUT PREJUDICE
pursuant to Rule 12(b)(1).
B.

Defendant’s Search of the Carrolls’ Home

A constitutional claim filed in Louisiana’s federal courts is subject to a oneyear statute of limitations, King v. Louisiana, 294 F. App'x 77, 82 (5th Cir. 2008)
(citing LA. CIV. CODE art. 3492), that “begins to run the moment the plaintiff becomes
aware that he has suffered an injury or has . . . information [such that] . . . a
reasonable person [would] . . . investigate further,” Piotrowski v. City of Houston, 237
F.3d 567, 576 (5th Cir. 2001).
Plaintiffs allege that on May 26, 2011, it was “very obvious [to them] that an
illegal search [of the Carrolls’ home] had taken place.” (Doc. 1 at p. 6, ¶ 27). Put
another way, Plaintiffs admit that on May 26, 2011, any constitutional claim arising
out of Defendant’s search of the Carrolls’ home accrued. This lawsuit was filed on

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August 12, 2014. (Id. at p. 1). By that point, the one-year statute of limitations had
already run.10
Accordingly, all claims arising out of Defendant’s search of the Carrolls’ home,
(id. at p. 6, ¶ 27); (id. at p. 8, ¶ 35(a)), are DISMISSED WITH PREJUDICE
pursuant to Rule 12(b)(6).
C.

Defendant’s Search of the Carrolls’ Personal Clothing and
Effects

A bankruptcy trustee is entitled to “derivative immunity” when acting
pursuant to the orders of the court. Boullion v. McClanahan, 639 F.2d 213, 214 (5th
Cir. 1981). “As a corollary to this general rule, however, virtually all courts agree that
a bankruptcy trustee may be sued in his individual capacity for acts which exceed the
scope of his authority, or are ultra vires.” In re Solar Fin. Servs., Inc., 255 B.R. 801,
803 (Bankr. S.D. Fla. 2000)
An Article III judge, in this case, authorized Defendant’s search of the Carrolls’
personal clothing and effects. See In re Redpen Properties, LLC et al., No. 11-cv-702
(M.D. La. Aug. 13, 2013), ECF No. 164 (“IT IS FURTHER ORDERED that any
personal property or property purchased since the bankruptcy proceedings shall be
clearly identified by the Trustee.”) (emphasis in original); id. (M.D. La. Aug. 23, 2013),
ECF No. 171. Accordingly, all claims arising out of Defendant’s search of the Carrolls’
personal clothing and effects, (Doc. 1 at p. 5, ¶ 25); (id. at p. 8, ¶ 35(c)), are
DISMISSED WITH PREJUDICE pursuant to Rule 12(b)(6).

Plaintiffs concede as much in their opposition to Defendant’s original motion to dismiss. See Doc. 8
at p. 6.
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D.

Defendant’s Search of the Carrolls’ Computer

“The Fourth Amendment generally does not protect against unreasonable
intrusions by private parties.” In re Bodeker, No. 12-60137-7, 2013 WL 2467975, at
*11 (Bankr. D. Mont. June 7, 2013) (quoting In re Kerlo, 311 B.R. 256, 263 (Bankr.
C.D. Cal. 2004) (citing Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). However, the
Fourth Amendment does apply “to the conduct of private parties acting as
instruments or agents of the government.” Id. (quoting In re Kerlo, 311 B.R. at 263)
(citing Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)). That is, a private party
can be held liable under the Fourth Amendment if: (1) the government knew of and
acquiesced in the intrusive conduct, and (2) the private party acted with the intent to
assist law enforcement. Id. (quoting United States v. Reed, 15 F.3d 928, 931 (9th
Cir.1994)); see also United States v. Hardin, 539 F.3d 404, 418 (6th Cir. 2008) (holding
that where “the intent of the private party conducting the search is entirely
independent of the government's intent to collect evidence for use in a criminal
prosecution,” the Fourth Amendment does not apply); United States v. Blocker, 104
F.3d 720, 725 (5th Cir. 1997); United States v. Attson, 900 F.2d 1427, 1432 (9th Cir.
1990); In re Bodeker, 2013 WL 2467975 at *12 (refusing to impose Fourth Amendment
liability upon a trustee who merely “collect[ed] property of the estate” pursuant to 11
U.S.C. § 704(a)(1)) .
Plaintiffs acknowledge that the government neither knew of nor acquiesced in
Defendant’s search of the Carrolls’ computer. (See Doc. 1 at p. 4, ¶ 16) (noting that
the Court did not grant Defendant permission “to access the [Carrolls’] computer”);

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(See id. at p. 7, ¶ 30) (referring to Defendant’s search of the Carrolls’ computer as
“unauthorized”). Accordingly, all claims arising out of Defendant’s search of the
Carrolls’ computer, (id. at p. 5, ¶ 23); (id. at p. 8, ¶ 35(b)), are DISMISSED WITH
PREJUDICE pursuant to Rule 12(b)(6).
III.

CONCLUSION

IT IS ORDERED that Defendant’s Motion to Dismiss Pursuant to FRCP
12(B)11 (Doc. 45) is GRANTED.
IT IS FURTHER ORDERED that all of Plaintiff Pamela Carroll Alonso’s
claims against Defendant are DISMISSED WITHOUT PREJUDICE pursuant to
Rule 12(b)(1).
IT IS FURTHER ORDERED that all of Plaintiffs William and Carolyn
Carroll’s claims against Defendant are DISMISSED WITH PREJUDICE pursuant
to Rule 12(b)(6).
IT IS FURTHER ORDERED that all of Plaintiffs William and Carolyn
Carroll’s claims against XYZ Insurance Company12 are DISMISSED WITH
PREJUDICE for all of the reasons provided herein.
Baton Rouge, Louisiana, this 10th day of March, 2016.
______________________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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[sic]

12

XYZ Insurance Company is Defendant’s insurer. See Doc. 1 at p. 2, ¶ 5.

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