Hebert v. City of Baton Rouge et al

Filing 208

RULING : The 187 Motion to Dismiss is DENIED. The 188 or Extension of Time For Service of Charles Bridges and MOTION For Production of Complete Service Address For Charles Bridges Under Seal and MOTION to Re-Serve Charles Bridges is GRANTED IN PART AND DENIED IN PART. The Clerk of Court shall issue summons, and service shall be made upon the City, the Parish, and Dr. Bridges as requested in the attached USM-285 forms completed by the Court. The Clerk of Court is directed to forward a copy of the attached USM-285 forms to the United States Marshals Service. Signed by Judge John W. deGravelles on 10/3/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL HEBERT (#263630)

CIVIL ACTION

VERSUS
CITY OF BATON ROUGE, ET AL.

NO. 15-850-JWD-RLB
RULING

Before the Court is the Motion to Dismiss filed on behalf of defendants City of East
Baton Rouge (“City”), and East Baton Rouge Parish (“Parish”) (R. Doc. 187), and the plaintiff’s
Motion for Extension of Time for Service of Charles Bridges (R. Doc. 188). The motion filed on
behalf of the City and the Parish is opposed. See R. Doc. 189.
The pro se plaintiff, an inmate previously confined at the East Baton Rouge Parish Prison
(“EBRPP”), Baton Rouge, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against
numerous defendants alleging that his constitutional rights were violated due to deliberate
indifference to his health and serious medical conditions. The plaintiff seeks monetary,
declaratory, and injunctive relief.
The City and Parish defendants seek to dismiss the plaintiff’s claims against them
pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficiency of service of
process and for failure to timely perfect service. The City and Parish defendants contend that
because service was not made upon Mayor Sharon Weston Broome, in accordance with Rule 4(j)
of the Federal Rules of Civil Procedure, the plaintiff's claims asserted against the City and Parish
should be dismissed.
The plaintiff’s Complaint and Motion to Proceed in Forma Pauperis were filed on or
about December 17, 2015. See R. Docs. 1 and 2. After a protracted period, the Court

USM - Certified

determined that the plaintiff was entitled to proceed in forma pauperis and was not required to
pay an initial partial filing fee. See R. Docs. 5-10. Inasmuch as the plaintiff was proceeding pro
se in this case, the Court, pursuant to an Order dated April 13, 2016 (R. Doc. 11), directed the
United States Marshal's Office to serve the defendants named herein, wherever found.
Pursuant to normal procedure, the Marshal's Office then forwarded correspondence to the
plaintiff directing him to provide service information by filling out a United States Marshal Form
285. The plaintiff returned the completed forms to the Marshal's Office and indicated thereon
that the Marshal should serve defendant Dr. Bridges at “2867 Brig General Isaac Smith Blvd,”
the address for the EBRPP, and should serve the City and Parish defendants at “902
Governmental Building, 222 St. Louis Street.” See R. Docs. 14 and 16. It appears that the
United States Marshal then delivered the Summons and Complaint to these locations where
“Thelda Cary, Administrative Assistant, Parish Attorney” and “Lana Price, Assistant to the
Warden” received and accepted the Summons and Complaint without any noted limitation on
behalf of the City and the Parish, and Dr. Bridges, respectively.
Service on the City, the Parish, and Dr. Bridges was later quashed, and on May 17, 2017,
the plaintiff was granted an additional forty-five days to properly serve these defendants. See R.
Doc. 170. On May 26, 2017, the plaintiff filed a Motion for Production of Complete Service
Addresses, wherein he requested that service addresses be provided for the City, the Parish, and
Dr. Bridges. See R. Doc. 173. On June 26, 2017, the plaintiff’s Motion was granted in part and
the Marshal was directed to serve the defendants as follows: Personal service upon Dr. Charles
Bridges at his place of employment located at 2867 Brig General Isaac Smith Blvd, Baton
Rouge, Louisiana, 70807 or wherever found; and service upon the City of Baton Rouge and the
Parish of East Baton Rouge through Mayor-President Sharon Weston Broome, 222 St. Louis

Street, Baton Rouge, Louisiana, 70802, either personally, or in her absence upon any of her
employees of suitable age and discretion. See R. Doc. 181.
The plaintiff completed the required form USM-285 for each defendant with directions to
serve the defendants as stated above, and provided an alternate service address for Dr. Bridges. See
R. Docs. 185 and 186. Nevertheless, the U.S. Marshals Service again served Thelda Cary, an
employee of the Parish Attorney, and did not attempt service upon Dr. Bridges at the alternate
address provided by the plaintiff.1

Rule 4 of the Federal Rules of Civil Procedures provides in pertinent part:
“(e) Serving an Individual Within a Judicial District of the United States.
Unless federal law provides otherwise, an individual--other than a minor, an
incompetent person, or a person whose waiver has been filed--may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located
or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion who
resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process…2
(j) Serving a Foreign, State, or Local Government.
(1) Foreign State. A foreign state or its political subdivision, agency, or
instrumentality must be served in accordance with 28 U.S.C. § 1608.
(2) State or Local Government. A state, a municipal corporation, or any
other state-created governmental organization that is subject to suit must
be served by:
(A) delivering a copy of the summons and of the complaint to its
chief executive officer; or

1

Service upon the City and the Parish was previously quashed after service was made upon Thelda Cary, rather than
the Mayor or one of her employees.
2
The pertinent Louisiana rules of civil procedure are consistent with Rule 4(e) of the Federal Rules of Civil
Procedure. See Louisiana Code of Civil Procedure articles 1231-1235.

(B) serving a copy of each in the manner prescribed by that state's
law for serving a summons or like process on such a defendant.”3
As such, the plaintiff’s service of process, through no fault of his own, was deficient.
Defendant Dr. Bridges has not been personally served, and as to the City and Parish defendants,
service was not made upon Mayor-President Sharon Weston Broome, the chief executive officer
of the City of Baton Rouge and East Baton Rouge Parish.
The District Court has wide discretion in determining whether to dismiss an action for
insufficient service, and courts often give pro se litigants leeway in correcting defects in service
of process. Lisson v. ING Groep N.V., 262 F. App’x. 567, 571 (5th Cir. 2007). Furthermore,
inasmuch as a dismissal of the moving defendants at this time could operate as a dismissal with
prejudice (because of the running of the applicable limitations period), the Court's authority to
dismiss these defendants is limited. With this in mind, and particularly considering the plaintiff
was not at fault in the insufficient service complained of, the Court will deny the Motion to
Dismiss (R. Doc. 187), and will grant the plaintiff’s Motion (R. Doc. 188) in part. Accordingly,
IT IS ORDERED the Motion to Dismiss (R. Doc. 187) is DENIED.
IT IS FURTHER ORDERED that improper service upon the City and the Parish be
quashed, and the plaintiff shall have an additional forty-five days from the date of this Order to
properly serve the City and the Parish.

3

Louisiana Code of Civil Procedure article 1265 provides, “Service of citation or other process on any political
subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by
personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable
age and discretion. A public officer, sued as such, may be served at his office either personally, or in his absence, by
service upon any of his employees of suitable age and discretion. If the political entity or public officer has no
established office, then service may be made at any place where the chief executive officer of the political entity or
the public officer to be served may be found.”

IT IS FURTHER ORDERED that the plaintiff’ Motion (R. Doc. 188) is GRANTED
IN PART, and the plaintiff shall have an additional forty-five days from the date of this Order to
properly serve Dr. Bridges.
IT IS FURTHER ORDERED that the Clerk of Court shall issue summons, and service
shall be made upon the City, the Parish, and Dr. Bridges as requested in the attached USM-285
forms completed by the Court. The Clerk of Court is directed to forward a copy of the attached
USM-285 forms to the United States Marshals Service.
Signed in Baton Rouge, Louisiana, on October 3, 2017.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

U.S. Department of Justice
United States Marshals Service

PROCESS RECEIPT AND RETURN
See "Instructions for Service of Process by U.S. Marshal"

PLAINTIFF

COURT CASE NUMBER

Michael Hebert (#263360)

15-cv-850-JWD-RLB

DEFENDANT

TYPE OF PROCESS

Charlie Haywood Bridges, MD

Summons and Complaint

NAME OF INDIVIDUAL, COMPANY, CORPORATION. ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN

{

SERVE
AT

Charlie Haywood Bridges, MD
ADDRESS (Street or RFD, Apartment No., City, State and ZIP Code)

7777 Hennessy Blvd, STE #608, Baton Rouge, LA 70808-4369

SEND NOTICE OF SERVICE COPY TO REQUESTER AT NAME AND ADDRESS BELOW

*See Special Instructions*
1

Number of parties to be
served in this case

Michael Hebert (#263630)
Louisiana State Penitentiary
Angola, LA 70712

Number of process to be
served with this Form 285

1

Check for service
on U.S.A.
SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (Include Business and Alternate Addresses,
All Telephone Numbers, and Estimated Times Available for Service):
Fold

Fold

If Dr. Bridges cannot be served at the above address, the Marshal is directed by the Court to serve Dr. Bridges wherever found,
including at his home address which is available via public records.

Signature of Attorney other Originator requesting service on behalf of:

✘

PLAINTIFF

TELEPHONE NUMBER

DATE

10/3/17

DEFENDANT

SPACE BELOW FOR USE OF U.S. MARSHAL ONLY-- DO NOT WRITE BELOW THIS LINE
I acknowledge receipt for the total
number of process indicated.
(Sign only for USM 285 if more
than one USM 285 is submitted)

Total Process

District of
Origin

District to
Serve

No.

Signature of Authorized USMS Deputy or Clerk

Date

No.

I hereby certify and return that I
have personally served ,
have legal evidence of service,
have executed as shown in "Remarks", the process described
on the individual , company, corporation, etc., at the address shown above on the on the individual , company, corporation, etc. shown at the address inserted below.
I hereby certify and return that I am unable to locate the individual, company, corporation, etc. named above (See remarks below)
Name and title of individual served (if not shown above)

A person of suitable age and discretion
then residing in defendant's usual place
of abode

Address (complete only different than shown above)

Time

Date

am
pm

Signature of U.S. Marshal or Deputy

Service Fee

Total Mileage Charges Forwarding Fee
including endeavors)

Total Charges

Advance Deposits

Amount owed to U.S. Marshal* or
(Amount of Refund*)

$0.00
REMARKS:

DISTRIBUTE TO: 1. CLERK OF THE COURT
2. USMS RECORD
3. NOTICE OF SERVICE
4. BILLING STATEMENT*: To be returned to the U.S. Marshal with payment,
if any amount is owed. Please remit promptly payable to U.S. Marshal.
5. ACKNOWLEDGMENT OF RECEIPT

PRIOR EDITIONS MAY BE USED

Form USM-285
Rev. 11/13

U.S. Department of Justice
United States Marshals Service

PROCESS RECEIPT AND RETURN
See "Instructions for Service of Process by U.S. Marshal"

PLAINTIFF

COURT CASE NUMBER

Michael Hebert (#263360)

15-cv-850-JWD-RLB

DEFENDANT

TYPE OF PROCESS

City of Baton Rouge and Parish of East Baton Rouge

Summons and Complaint

NAME OF INDIVIDUAL, COMPANY, CORPORATION. ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN

{

SERVE
AT

City of Baton Rouge and Parish of East Baton Rouge, through Mayor-President Sharon Weston Broome
ADDRESS (Street or RFD, Apartment No., City, State and ZIP Code)

222 St. Louis St., 3rd Floor, Baton Rouge, LA 70802

*See Special Instructions*

SEND NOTICE OF SERVICE COPY TO REQUESTER AT NAME AND ADDRESS BELOW

1

Number of parties to be
served in this case

Michael Hebert (#263630)
Louisiana State Penitentiary
Angola, LA 70712

Number of process to be
served with this Form 285

1

Check for service
on U.S.A.
SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (Include Business and Alternate Addresses,
All Telephone Numbers, and Estimated Times Available for Service):
Fold

Fold

The Marshal is directed by the Court to serve Mayor-President Sharon Weston Broome, either personally, or in her absence
upon any of her employees of suitable age and discretion. Service should not be made upon Thelda Cary or any other
employee of the Parish Attorney.

Signature of Attorney other Originator requesting service on behalf of:

✘

PLAINTIFF

TELEPHONE NUMBER

DATE

10/3/17

DEFENDANT

SPACE BELOW FOR USE OF U.S. MARSHAL ONLY-- DO NOT WRITE BELOW THIS LINE
I acknowledge receipt for the total
number of process indicated.
(Sign only for USM 285 if more
than one USM 285 is submitted)

Total Process

District of
Origin

District to
Serve

No.

No.

Signature of Authorized USMS Deputy or Clerk

Date

I hereby certify and return that I
have personally served ,
have legal evidence of service,
have executed as shown in "Remarks", the process described
on the individual , company, corporation, etc., at the address shown above on the on the individual , company, corporation, etc. shown at the address inserted below.
I hereby certify and return that I am unable to locate the individual, company, corporation, etc. named above (See remarks below)
Name and title of individual served (if not shown above)

A person of suitable age and discretion
then residing in defendant's usual place
of abode

Address (complete only different than shown above)

Time

Date

am
pm

Signature of U.S. Marshal or Deputy

Service Fee

Total Mileage Charges Forwarding Fee
including endeavors)

Total Charges

Advance Deposits

Amount owed to U.S. Marshal* or
(Amount of Refund*)

$0.00
REMARKS:

DISTRIBUTE TO: 1. CLERK OF THE COURT
2. USMS RECORD
3. NOTICE OF SERVICE
4. BILLING STATEMENT*: To be returned to the U.S. Marshal with payment,
if any amount is owed. Please remit promptly payable to U.S. Marshal.
5. ACKNOWLEDGMENT OF RECEIPT

PRIOR EDITIONS MAY BE USED

Form USM-285
Rev. 11/13