Phillips v. Bruner et al

Filing 17

RULING and ORDER Adopting 14 Report and Recommendations of the U.S. Magistrate Judge. The 11 Motion to Dismiss is GRANTED, dismissing all claims brought against Defendants Vittorio and Benjamin; 12 Motion to Dismiss is GRANTED, dismissing al l claims against Defendants Jones and Smith. Plaintiff's 42 U.S.C. § 1983 claims against Defendants in their official capacity are DISMISSED. Plaintiff's § 1983 claims against Defendants Vittorio, Benjamin, Jones, and Smith are DISMISSED WITH PREJUDICE. Plaintiff's claims against Defendant Bruner are DISMISSED WITHOUT PREJUDICE for failure to timely effect service upon him. Signed by Chief Judge Brian A. Jackson on 8/25/2017. (EDC)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA
KINTAD PHILLIPS (# 294348) CIVIL ACTION

VERSUS
DAVID BRUNER, CADET, ET AL. NO.: 16-00624-BAJ-EWD

RULING AND ORDER
Before the Court is the United States Magistrate Judge's Report and
Recommendation (Doc. 14) pursuant to 28 U.S.C. § 636(b)(l). The Report and
Recommendation addresses Defendants Motions to Dismiss under Federal Rules of

Civil Procedure 12(b)(l) and 12(b)(6) (Docs. 11 & 12). The Magistrate Judge
recommended that Plaintiffs claims against Defendant Bruner be dismissed without
prejudice for failure to timely serve process on him. (Doc. 14 at p. 2 n.l). The
Magistrate Judge further recommended dismissing all 42 U.S.C § 1983 official
capacity claims for monetary damages under Rule 12(b)(l). (Doc. 14 at p. 3). Finally,
the Magistrate Judge recommended that all remaining § 1983 claims against
Defendants Vittorio, Benjamin, Jones, and Smith be dismissed with prejudice under
Rule 12(b)(6). (Doc. 14 at p. 11).
The Report and Recommendation notified Plaintiff that, pursuant to 28 U.S.C.
636(b)(l), he had fourteen (14) days from the date he received the Report and
Recommendation to file written objections to the proposed findings of fact,

conclusions of law, and recommendations therein. (Doc. 14 at p. 1). Plaintiff timely

filed a traverse (Doc. 15) to which Defendants responded (Doc. 16).
Plaintiffs primary objection is that he did not receive notice that the Motions
to Dismiss had been filed against him prior to the issuance of the Report and
Recommendation. (Doc. 15 at p. 1). Plaintiff further asserts that his failure to serve
Defendant Bruner was excusable because Defendant Bruner is no longer employed

by the Louisiana Department of Public Safety and Corrections ( LDPSC ), and
Plaintiff did everything within his power to serve Defendant Bruner. (Doc. 15 at pp.
1-2).1 Finally, Plaintiff insists that on the merits, his claims should not be dismissed
under Rule 12(b)(6). (Doc. 15 at pp. 2-3).2
Defendants respond that Plaintiff received notice of the Motions to Dismiss.
(Doc. 16 at p. 1). In support, Defendants attached a cover letter explaining that the
two motions had been filed against him and stating that the motions are enclosed
(Doc. 16-1). Defendants also attached a privileged mail log (Doc. 16-2), which Plaintiff
signed, indicating receipt of the letter on February 27, 2017. Considering these
exhibits, the court finds that Plaintiff did receive timely notice of the Motions to
Dismiss.

1 As the Report and Recommendation noted, the Process Receipt and Return filed into the record
indicated that Louisiana State Penitentiary did not accept service for Defendant Bruner as he was no
longer employed with the LDPSC. (Doc. 8). To date, Plaintiff has not filed a request to have the
Department of Corrections file Defendant Bruner's last known address into the record under seal, or
demonstrate any further attempts to have Defendant Bruner served. Accordingly, the United States
Marshals Service has not made any additional attempts to serve Defendant Bruner.

2 Plaintiffs objections to Rule 12(b)(6) dismissal merely restate factual allegations in the Complaint
{compare Doc. 1; with Doc. 15), but Plaintiff fails to articulate how the Magistrate Judge's legal
conclusion based on those allegations are in error.

Having carefully considered the underlying Complaint, the instant motions,
and related filings, the Court approves the Magistrate Judges Report and
Recommendation, and hereby adopts the findings of fact, conclusions of law, and
recommendation.

Accordingly,

IT IS ORDERED that the Magistrate Judge's Report and
Recommendation, (Doc. 14), is ADOPTED as the Court's opinion herein.

IT IS FURTHER ORDERED that Defendants' Motion to Dismiss (Doc.
11) is GRANTED, dismissing all claims brought by Plaintiff against Defendants
Vittorio and Benjamin.

IT IS FURTHER ORDERED that Defendants' Motion to Dismiss (Doc.
12) is GRANTED, dismissing all claims against Defendants Jones and Smith.

IT IS FURTHER ORDERED that Plaintiffs 42 U.S.C. § 1983 claims against
Defendants in their official capacity for monetary damages are DISMISSED.

IT IS FURTHER ORDERED that Plaintiffs § 1983 claims against
Defendants Vittorio, Benjamin, Jones, and Smith are DISMISSED WITH

PREJUDICE.

IT IS FURTHER ORDERED that Plaintiffs claims against Defendant
Bruner are DISMISSED WITHOUT PREJUDICE, due to Plaintiffs failure to
timely effect service upon him.
• - < 7^'-

Baton Rouge, Louisiana, this ' " --- day of August, 2017.

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p,,'..- ^/i

BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA