LaVergne v. Cain et al

Filing 30

RULING denying 28 Motion for Reconsideration re 25 Order on Motion for Entry of Default. Signed by Magistrate Judge Stephen C. Riedlinger on 8/27/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227)
VERSUS

CIVIL ACTION

N. BURL CAIN, ET AL

NUMBER 15-34-BAJ-SCR

RULING ON MOTION FOR RECONSIDERATION
Before the court is the plaintiff’s Memorandum Objecting to
Clerk’s Order and Request for Reconsideration.

Record document

number 28.
Pro se plaintiff, an inmate at Louisiana State Penitentiary,
Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983
against Warden N. Burl Cain, Legal Programs Director Trish Foster,
Maj.

Larry

Smith,

Classification

Maj.

Supervisor

Michael
Amber

Vittirao

supervisor of Investigative Services.
in forma pauperis.

Vaughn,

Lt.
and

Cindy
an

Vannoy,

unidentified

Plaintiff is not proceeding

After he failed to serve any of the defendants

with a summons and the complaint he was ordered to show cause why
his complaint should not be dismissed pursuant to Rule 4(m),
Fed.R.Civ.P.1

After considering the plaintiff’s response to the

show cause order, on July 2, 2015 the district judge ordered the
clerk of court to issue summons and send them to the plaintiff, and
further ordered that “Plaintiff serve the defendants in the manner

1

Record document number 18.

required by Rule 4 of the Federal Rules of Civil Procedure, or
obtain a waiver of service within thirty (30) days” of the order.2
The clerk of court issued two sets of summons and sent them to
the

plaintiff.3

Plaintiff

filed

a

Certificate

of

Service

indicating that the defendants were served by certified mail
addressed to defendant Warden Burl Cain sent on July 22, 2015 to
both

the

Louisiana

State

Penitentiary

and

to

the

Louisiana

Department of Corrections (“DOC”) headquarters in Baton Rouge,
Louisiana.4

The person signing the receipt for the mailing to the

penitentiary, however, was not Warden Cain.

It was a person named

Eula Lee Saucier, who obviously is not the addressee and who did
not indicate on the receipt that she is the warden’s agent.

The

receipt is not dated.
Plaintiff filed both a Notice of Default and a Motion for
Judgment by Default on August 17, 2015.5

The clerk of court

treated the Notice of Default as a request for entry of a default
pursuant

to

defendants.

Rule

55(a),

Fed.R.Civ.P.,

against

all

of

the

The clerk of court denied the request “for incomplete

proof of service” because the record “does not reflect that proper
service

2

was

executed

on

each

individual

defendant(s),

and

Record document number 20.

3

Record document number 21 and 22. The first was a single
summons naming all of the defendants. The second was a set of
seven summons, each naming only one defendant.
4

Record document number 23.

5

Record document numbers 24 and 26, respectively.

appropriate return(s) filed.”6
The clerk of court’s determination was indisputably correct,
for the reasons explained below.
Plaintiff then filed this motion seeking reconsideration of
the clerk of court’s denial of entry of a default. Plaintiff filed
with his motion a copy of the same certified mail receipt he had
already filed, plus a copy of a receipt for certified mail sent to
“Louisiana Department of Public Safety and Corrections, Att. Legal
Dept.” in Baton Rouge.7

The latter receipt was signed by Andy

Collier, who is not a defendant and who did not indicate on the
receipt that he is the agent of any defendant.

This receipt is

dated July 23, 2015.
Plaintiff acknowledged that the clerk of court sent him two
sets of summons, including one consisting of a single page naming
all defendants.
headquarters.
Cain directly.

Plaintiff mailed that single summons to DOC

Plaintiff also mailed a summons to defendant Warden
Plaintiff argued that this was proper service,

citing another case, CV 13-233,8 in which the U.S. Marshal served
four individual defendants by bringing the summons to the DOC
headquarters in Baton Rouge and giving all four summons to a single
person.

6

Record document number 25.

7

Record document number 28-1, pp. 1, 2.

8

Brandon Scott Lavergne v. N. Burl Cain, et al., CV 13-233JWD-SCR (M.D. La.)

Because the defendants are individuals within a judicial
district of the United States, service upon them is governed by
Rule 4(e), Fed.R.Civ.P.

Pursuant to that rule, service of process

may be made by: (1) serving the defendant pursuant to the laws of
the state in which the district court is located or where service
is made, in this case Louisiana (Rule 4(e)(1)); (2) delivering the
service documents to the defendant, i.e. personal service (Rule
4(e)(2)(A)); (3) leaving copies of the service documents at the
defendant’s residence with a person of suitable age and discretion
(Rule 4(e)(2)(B)); or (4) delivering the service documents to an
agent of the defendant authorized to accept service by appointment
or by law, i.e. personal service on the agent (Rule 4(e)(2)(C)).
See, e.g., Ayika v. Sutton, 378 Fed.Appx. 432, 2010 WL 1948362
(C.A.5 (Tex.)); Ellibee v. Leonard, 226 Fed.Appx. 351, 2007 WL
837092 (C.A.5 (Tex.)).
In the case cited by the plaintiff, the U.S. Marshal’s Form
USM-285 Process Receipt and Return indicates that the summons was
actually delivered (the form states “Served @ LA DOC Legal”) to
Rhonda Weldon, a person authorized to accept service for current
DOC employees.9

Defendants who were served through the DOC filed

an answer in which they did not contest sufficiency of process or
service of process.10

Consequently, the court was not called upon

to determine whether the service by the U.S. Marshal complied with
9

10

CV 13-233-JWD-SCR, record document number 22.
Id., record document number 24.

Rule 4(e).

Here, however, because the plaintiff is seeking entry

of a default and a default judgment, the court must carefully
scrutinize the sufficiency of process and service of process.
As noted above, Rule 4(e)(1) permits service of a summons and
the

complaint

Louisiana.

in

Under

accordance
Louisiana

with

the

procedure,

laws

of

service

the
of

a

state

of

citation

(summons, in federal court) and the petition (complaint, in federal
court) on an individual defendant who is a resident of the state of
Louisiana generally must be made by either personal or domiciliary
service on the named defendant or his agent by a sheriff or deputy
sheriff.

La.C.Civ.P. articles 1231, 1232, 1234, 1235, 1291.

A

private person may be appointed to make service when the sheriff is
unable to do so.

La.C.Civ.P. article 1293.11

Service of pleadings

subsequent to the original petition may be made by mail, unless
otherwise provided by law.

La.C.Civ.P. article 1313.

Service may

also be made by mail when an express provision of law provides for
service by mail.

Id.

Plaintiff is responsible for properly serving the defendants.
The clerk of court provided him with a single summons, which he
could use to serve all defendants if service could properly be made

11

The federal corollary is Rule 4(c)(3), which authorizes the
court to appoint the U.S. Marshal, or a person specially appointed
by the court, to serve a summons and the complaint. Plaintiff did
not seek appointment of the U.S. marshal or another person to serve
the defendants. Because he is not proceeding in forma pauperis,
should the plaintiff request appointment of the U.S. Marshal he
would have to pay the deposit required by the U.S. Marshal before
service is made.

on all of them in the same manner at the same time.

He was also

provided with an individual summons for each defendant that he
could use to serve each defendant individually, in whatever manner
he could properly serve the defendant. It is readily apparent from
the plaintiff’s own filings that he has not served any defendant in
a manner authorized by any subsection of Rule 4(e).
Accordingly, the plaintiff’s Memorandum Objecting to Clerk’s
Order and Request for Reconsideration is denied.
Baton Rouge, Louisiana, August 27, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE