LaVergne v. Cain et al

Filing 48

RULING: The 39 Motion to Sever and Remove Defendant from This Suit is denied as unnecessary as to Michael Smith and as moot as to defendant Maj. Larry Smith. The 43 Motion to Correct Under F. Civil Code Rule 15(c), treated as a motion for leave to amend, is granted, correcting the name of defendant Maj. Larry Smith to Lt. Col. Paul Smith. An order to issue summons and for service will be issued. Signed by Magistrate Judge Stephen C. Riedlinger on 11/19/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRANDON S. LAVERGNE (#424227)

CIVIL ACTION

VERSUS
N. BURL CAIN, ET AL.

NO. 15-34-BAJ-SCR

RULING ON MOTION TO SEVER AND REMOVE DEFENDANT
and
RULING ON MOTION TO CORRECT UNDER RULE 15(C)
Before the Court is the plaintiff’s Motion to Sever and Remove
Defendant From This Suit.

Record document number 39.

Also before

the court is the plaintiff’s Motion to Correct Under F. Civil Code
Rule 15(c).
Pro

Record document number 43.

se

plaintiff,

an

inmate

at

the

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, Maj. Michael Vaughn, Lt. Cindy
Vannoy,

Classification

Supervisor

Amber

Vittirao

unidentified Supervisor of Investigative Services.

and

The clerk of

court issued a summons to, among others, “Michael Smith.”1
U.S. Marshal did not serve Michael Smith.2

an

The

Nor did the U.S.

Marshal serve defendant Maj. Larry Smith, as he is not employed by
the

Louisiana

Department

of

Public

Safety

and

Corrections.

Plaintiff explained that he did not try to serve a Michael Smith,

1

2

Record document number 36.

Record document number 38, U.S. Marshal Process Receipt and
Return.

and moved to dismiss Maj. Larry Smith as he is not a necessary
party since the other disciplinary board member, Classification
Supervisor Amber Vittirao, is still party.

However, the plaintiff

also explained in his Motion to Correct Under F. Civil Code Rule
15(c), which was filed a few days later, that he recently learned
the correct name of defendant Maj. Larry Smith is Lt. Col. Paul
Smith.

Plaintiff move for an order changing the name of this

defendant to Lt. Col. Paul Smith.
As to the Motion to Sever and Remove Defendant From This Suit,
there is no need to take any further action regarding the Michael
Smith to whom a summons was incorrectly issued.

As to the

defendant named Maj. Larry Smith, the Motion to Correct Under F.
Civil Code Rule 15(c), shall be treated as a motion for leave to
amend to correctly identify this defendant as Lt. Col. Paul Smith,
which motion supercedes the Motion to Sever and Remove Defendant
From This Suit.
Accordingly, the Motion to Sever and Remove Defendant From
This Suit is denied as unnecessary as to Michael Smith and as moot
as to defendant Maj. Larry Smith.

The

Motion to Correct Under F.

Civil Code Rule 15(c), treated as a motion for leave to amend, is
granted, correcting the name of defendant Maj. Larry Smith to Lt.
Col. Paul Smith.
An order to issue summons and for service will be issued.
Baton Rouge, Louisiana, November 19, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
2