Hicks et al v. Louisiana et al

Filing 18

MEMORANDUM ORDER granting 16 Motion to Dismiss. Accordingly, Plaintiffs claims against Dirk Morris and Philip Tucker are DISMISSED. Signed by Judge S Maurice Hicks on 06/11/2014. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

DAVID L. HICKS, ET AL.

CIVIL ACTION NO. 13-CV-3000

VERSUS

JUDGE S. MAURICE HICKS, JR.

STATE OF LOUISIANA, ET AL.

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the Court is a Motion to Dismiss (Record Document 16) filed by Defendants,
Philip Tucker (“Tucker”) and Dirk Morris (“Morris”) (hereinafter collectively referred to as
“Defendants”). Defendants request that the Court dismiss all claims brought by Plaintiffs,
David L. Hicks (“Hicks”) and Mary F. Scaglione (“Scaglione”) (hereinafter collectively
referred to as “Plaintiffs”), pursuant to FRCP Rule 12(b)(5). For the reasons that follow,
Defendants unopposed Motion to Dismiss (Record Document 16) is GRANTED.
BACKGROUND
On November 5, 2013 Plaintiffs filed a pro se complaint for damages against several
defendants for violating their Fourth Amendment Rights (Record Document 2). Hicks
alleges that he called Shreveport Police for help after Caddo Animal Control prevented him
from burying his cat. Hicks claims the police officers handcuffed him, threw him down onto
his porch, and beat him in the head and face. Hicks was subsequently arrested and spent
several days in jail. Scaglione, an alleged bedridden stroke patient, was left home alone,
with no one to care for her for three days while Hicks was in jail. The charges against Hicks
were later dropped.
Defendants filed a 12(b)(5) Motion to Dismiss on March 26, 2014 (Recorded
Document 16). Plaintiffs were given notice of this motion and allowed fourteen (14)

calendar days to respond. Any opposition was due on April 9, 2014. To date, this motion
is unopposed.
LAW AND ANALYSIS
I. Legal Standard
“A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of
the service of process. The party making service has the burden of demonstrating its
validity when an objection to service is made.” Holly v. Metro. Transit Auth., 213 Fed.
Appx. 343, 344 (5th Cir. 2007)(unpublished). “It is true that service of process by pro se,
IFP litigants is governed by ‘[s]pecial,’ or more lenient rules. Nonetheless, when the
failure of effective service may be ascribed to the plaintiff’s ‘dilatoriness or fault’ or
‘inaction,’ the case may be properly dismissed.” Id. at 344-345.
Federal Rule of Civil Procedure 4 provides the requirements for service of a
lawsuit upon the defendant(s). The pertinent rule includes the following subsections:
(1) In General. A summons must be served with a copy of the complaint.
The plaintiff is responsible for having the summons and complaint served
within the time allowed by Rule 4(m) and must furnish the necessary
copies to the person who makes service. (2) By Whom. Any person who is
at least 18 years old and not a party may serve a summons and
complaint. (3) By a Marshal or Someone Specially Appointed. At the
plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by
the court. The court must so order if the plaintiff is authorized to proceed in
forma pauperis under 28 U.S.C. § 1916.
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Fed.R.Civ.P. 4(c).
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.
Fed.R.Civ.P. 4(e).
If a defendant is not served within 120 days after the complaint is filed, the
court - on motion or on its own after notice to the plaintiff - must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate
period.
Fed.R.Civ.P. 4(m).
II. Analysis
Proof of Service forms were filed with the Court on February 5, 2014 stating that
service was performed for the purposes of these two Defendants (Record Document 4Page 3 of 5

2 and 4-5). The Proof of Service forms, signed by Mr. Cecil W. Seymour (“Seymour”) as
server, improperly state that he served both Defendants in person, at their residences,
and through their designated agents. Specifically the forms state that Defendants were:
1) served in person at The City of Shreveport Government Plaza; 2) Seymour served
both Defendants at their respective residences, through Shreveport City Attorney Terry
Scott (“Scott”) and the Legal Administrator in the Office of the City Attorney Tammie
Roberison (“Roberison”), people of suitable age and discretion who reside there; and 3)
Seymour served via the Defendants respective agents, Scott and Roberison.
The Defendants submitted affidavits from Tucker, Morris, and Roberison. Tucker
and Morris both state that they have never been served personally by Seymour, no one
who lives at either of their residences was ever served, and neither Defendant ever
authorized Roberison or Scott to act as agents on their behalf. See Record Document
16-2. In her affidavit Tammie Roberison says that Seymour initially appeared at the city
attorney’s office, but was told that in order to serve the Defendants he needed to go to
the Shreveport Police Department. Seymour later returned with Hicks and told
Roberison that Shreveport Police Internal Affairs said to deliver the summons to the City
Attorney. Seymour then left the summons at the front desk of the city attorneys office
and left. (Record Document 16-2).
After a review of the facts, service forms, and affidavits, the Court finds: 1)
Defendants Tucker and Morris were not personally served; 2) no summons was left at
either individual’s residence or usual place of abode with a person of suitable age and
discretion who resides there; and 3) as to Scott and Roberison, neither were designated
by law to accept service on behalf of Tucker or Morris. Therefore, Defendants’ Motion to
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Dismiss is GRANTED. Accordingly, Plaintiffs claims against Morris and Tucker are
DISMISSED.

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