# Lewis v. Lopinto

> District Court, E.D. Louisiana · June 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10189555

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10189555

## How later opinions describe it (automated extraction)

- finding that “[a] private individual complainant in a criminal prosecution does not act under color of law,” even if the police relied upon the individual’s sworn complaint in arresting and charging the plaintiff
- noting that the mere inclusion of names and notations of office in the caption does not suffice to state a claim

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALBERT LEWIS CIVIL ACTION

VERSUS NO. 22-4476

JOSEPH LOPINTO, ET AL. SECTION: “R”(1)

PARTIAL REPORT AND RECOMMENDATION

Plaintiff, Albert Lewis, a state pretrial detainee, filed this pro se federal civil action
pursuant to 42 U.S.C. § 1983.1 He sued Jefferson Parish Sheriff Joseph Lopinto, Detective Derek
Adams, Detective Daniel Lassus, Sergeant Marc Macaluso, Toni Nguyen, and Wilfred Garrison.
In his complaint, plaintiff stated his claims as follows:
Sheriff Joseph Lopinto is continuously allowing his detectives and officers
to operate in violation of the U.S. Constitution and federal law without correction.
Detective[s] Adams & Lassus conspired with civilians Toni Nguyen and
Wilfred Garrison to falsely accuse and imprison plaintiff Albert Lewis. The police
report clearly shows that Det. Adams allowed Wilfred Garrison to conduct his own
investigation, presenting the evidence he came up with to Det. Adams.
Toni Nguyen originally stated that suspect was approx. 135 to 150 pounds,
thin built, light skinned black male, about 50 plus years old. Ms. Nguyen also stated
that the suspect had a hood pulled over his face and that she could not get a good
look at his face, hair, or eyes. Victims originally state suspect had on a grey
sweatshirt then came back later and said the sweatshirt was red.
Toni Nguyen also stated that the security gate was locked closed and that
the suspect would have had to scale an 8 foot security fence to get in the back door
and scale it again to exit.

1 In pertinent part, that statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress ….

42 U.S.C. § 1983. Accordingly, “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff, upon arrest, just days after the robbery took place, weighed in at
250 pounds, and is an obese dark skinned black male. I don’t think anyone could
imagine him scaling an 8 foot security fence. The slim or thin build that the victim
describes of 135 to 150 pounds is more than 100 pounds off of Plaintiff’s weight at
the time of the robbery.
Plaintiff has also been in custody over two years without a trial in violation
of his 6th Amendment Constitutional right to due process.2

To better understand the factual bases of plaintiff’s claims, the Court held a Spears hearing
in this matter on May 2, 2023. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). “[T]he
Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of
communication more comfortable to many prisoners.” Davis v. Scott, 157 F.3d 1003, 1005-06
(5th Cir. 1998). The United States Fifth Circuit Court of Appeals has observed that a Spears
hearing is in the nature of a Fed. R. Civ. P. 12(e) motion for more definite statement. Eason v.
Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a part of the total filing
by the pro se applicant. Id.
At that Spears hearing, plaintiff testified he was arrested for the robbery of Express Seafood
in Marrero, Louisiana, and he was then detained on that charge for thirty months before being
released when the charge was ultimately dismissed.3 When asked why he concluded that a
conspiracy existed between the victims, Toni Nguyen and Wilfred Garrison, and the detectives,
plaintiff testified that Nguyen and Garrison “went off of what somebody said on the street and
didn’t have no proof or no evidence – just went off what he said.” When asked if he had any idea
why Nguyen and Garrison would engage in such a conspiracy to target him specifically, he
admitted that he did not and conceded that he had no history with either of them. He acknowledged

2 Rec. Doc. 1, pp. 4-5.
3 Although plaintiff is now once again detained, he explained that his current detention is based on subsequent,
unrelated criminal charges for home invasion and kidnapping.
that he had simply concluded that a conspiracy existed because everything they were saying was
so crazy that they must have hatched such a plot together.
Because he had named Sergeant Marc Macaluso as a defendant in the complaint but made
no allegations against him, plaintiff was asked why he sued Macaluso. Plaintiff replied that he did
not remember – and he explained that he had “everything written down” but did not have his notes
with him for the hearing. Given that he stated that he would like an opportunity to check his notes
regarding Macaluso, plaintiff was given until May 19, 2023, to file an amended complaint to
explain the basis of the claim against Macaluso;4 however, no such amended complaint was ever

filed.
Daniel R. Martiny, counsel for the Jefferson Parish Sheriff’s Office, confirmed that the
charge against plaintiff for the alleged robbery of Express Seafood was in fact dismissed.
I. Mandatory Screening Provisions
Plaintiff filed this action in forma pauperis.5 Concerning such actions, federal law
provides:
Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that ... the
action …

(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such
relief.

28 U.S.C. § 1915(e)(2)(B).

4 Rec. Doc. 10.
5 See Rec. Docs. 2 and 3.
In addition, because plaintiff is incarcerated, he is also subject to the screening provisions
of 28 U.S.C. § 1915A. That statute mandates that federal courts “review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” 28 U.S.C. § 1915A(a).6 Regarding such lawsuits, federal law similarly
requires:
On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint –

(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

28 U.S.C. § 1915A(b).
A complaint is frivolous “if it lacks an arguable basis in law or fact.” Reeves v. Collins,
27 F.3d 174, 176 (5th Cir. 1994). In determining whether a claim is frivolous, the Court has “not
only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims
whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989);
Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
A complaint fails to state a claim on which relief may be granted when the plaintiff does
not “plead enough facts to state a claim to relief that is plausible on its face. Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all the

6 “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused
of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions
of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c).
allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (footnote, citation, and quotation marks omitted).
For the following reasons, the undersigned recommends that plaintiff’s claims against
Sergeant Marc Macaluso, Toni Nguyen, and Wilfred Garrison be dismissed and that the remaining
claims be allowed to proceed pending further development.
II. Plaintiff’s Claims
A. Claims Against Sergeant Marc Macaluso

As noted, plaintiff listed Sergeant Marc Macaluso as a defendant but made no allegations
against him in the complaint. As also noted, plaintiff was afforded an opportunity to amend the
complaint to correct that defect, but no such amended complaint was filed. Accordingly, for the
following reasons, the claims against Macaluso, whatever they may be, should now be dismissed.
It is clear that “[p]ersonal involvement is an essential element of a civil rights cause of
action,” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983), and that such involvement must
be specifically alleged. For example, the United States Fifth Circuit Court of Appeals has held:
“Plaintiffs suing governmental officials in their individual capacities ... must allege specific
conduct giving rise to a constitutional violation. This standard requires more than conclusional
assertions: The plaintiff must allege specific facts giving rise to the constitutional claims.” Oliver

v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted). As a result, merely listing a
defendant in a complaint without making the factual allegations necessary to connect that
defendant to a claim simply does not suffice to state a claim against that defendant. See Tuley v.
Heyd, 482 F.2d 590, 594 (5th Cir. 1973) (noting that the mere inclusion of names and notations of
office in the caption does not suffice to state a claim); Guillotte v. Lafourche Parish, Civ. Action
No. 21-1400, 2022 WL 775339, at *4 (E.D. La. Feb. 11, 2022), adopted, 2022 WL 742473 (E.D.
La. Mar. 11, 2022).
Because there are no allegations whatsoever that Macaluso personally engaged in any
conduct which violated plaintiff’s constitutional rights, no § 1983 claim has been stated against
Macaluso.
B. Claims Against Toni Nguyen and Wilfred Garrison
“Section 1983 creates a private right of action for redressing violations of federal law by

those acting under color of state law.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999) (emphasis added). Here, however, Toni Nguyen and Wilfred Garrison are private
individuals, not state actors. Private individuals are not considered to be persons acting under
color of state law merely because they are involved in a criminal prosecution being pursued by
governmental officials. See Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988) (“A private
party does not act under color of state law when she merely elicits but does not join in an exercise
of official state authority. Police reliance in making an arrest on information given by a private
party does not make the private party a state actor. The execution by a private party of a sworn
complaint, which forms the basis for an arrest, is, without more, not sufficient to make that party’s
acts state action.” (footnote, citation, quotation marks, and brackets omitted)); see also Pleasant v.

Carraway, No. 94-10272, 1994 WL 261217, at *1 (5th Cir. June 6, 1994) (finding that “[a] private
individual complainant in a criminal prosecution does not act under color of law,” even if the
police relied upon the individual’s sworn complaint in arresting and charging the plaintiff); Guillot
v. Coastal Commerce Bank, Civ. Action No. 10-2092, 2010 WL 4812959, at *3 (E.D. La. Nov.
19, 2010) (“[T]he law is clear that private parties do not become state actors when they merely call
upon law enforcement for assistance. Private citizens who provide information to the police do
not become state actors for purposes of § 1983 when the police rely upon that information to effect
an arrest. And it does not matter that the citizen knew that the information given to police was
false.” (citations omitted)).
That result is not changed by plaintiff’s allegations that Nguyen and Garrison conspired
with the detectives. It is true that “a private citizen may be a state actor is if she is involved in a
conspiracy or participates in joint activity with state actors.” Moody v. Farrell, 868 F.3d 348, 352

(5th Cir. 2017). But plaintiff’s allegations that such a conspiracy existed in this case are entirely
speculative and wholly conclusory – and that simply will not suffice. See Terwilliger v. Reyna, 4
F.4th 270, 285 (5th Cir. 2021) (“To support a conspiracy claim under § 1983, the plaintiff must
allege facts that suggest an agreement between the defendants to commit an illegal act and an
actual deprivation of constitutional rights. ... A conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show illegality.” (quotation marks and ellipsis
omitted)). Moreover, with respect to conspiracies such as the one alleged here, the United States
Fifth Circuit Court of Appeals has explained:
It is well-established that “a private party does not act under color of state
law when she merely elicits but does not join in an exercise of official state
authority. For this reason, evidence that a private citizen reported criminal activity
or signed a criminal complaint does not suffice to show state action on the part of
the complainant in a false arrest case. The plaintiff must further show that the police
in effecting the arrest acted in accordance with a preconceived plan to arrest a
person merely because he was designated for arrest by the private party, without
independent investigation.

Moody, 868 F.3d at 353 (citations, quotation marks, and brackets omitted); accord Guillot, 2010
WL 4812959, at *3 (“Absent joint conduct between law enforcement and the private citizen, such
as during a conspiracy, or a special relationship between law enforcement and the private citizen,
the conduct of the private citizen is not fairly attributable to the state.”).
Because Nguyen and Garrison are private individuals, and because plaintiff does not allege
any facts which would suggest that they acted jointly with the detectives in a preconceived plan to
cause his arrest, imprisonment, and prosecution, the claims against Nguyen and Garrison should
be dismissed.
C. Claims Against Jefferson Parish Sheriff Joseph Lopinto,

Detective Derek Adams, and Detective Daniel Lassus
This Partial Report and Recommendation does not address the claims against Jefferson
Parish Sheriff Joseph Lopinto, Detective Derek Adams, and Detective Daniel Lassus. Those
claims should remain pending before the undersigned for further development.7
RECOMMENDATION
It is therefore RECOMMENDED that plaintiff’s claims against Sergeant Marc Macaluso
be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) for failing to state a claim on which relief may be granted.
It is FURTHER RECOMMENDED that plaintiff’s claims against Toni Nguyen and
Wilfred Garrison be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii) and 1915A(b)(1) as frivolous and/or for failing to state a claim on which relief
may be granted.

7 The undersigned makes no findings herein regarding the timeliness of the claims against these defendants. Before
such a finding can be made, the precise nature of plaintiff’s claims must be further clarified, and the underlying facts
must be further developed.
It is FURTHER RECOMMENDED that plaintiffs claims against Jefferson Parish
Sheriff Joseph Lopinto, Detective Derek Adams, and Detective Daniel Lassus remain referred to
the undersigned pending further development.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
the district court, provided that the party has been served with notice that such consequences will
result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n,
79 F.3d 1415, 1430 (Sth Cir. 1996) (en banc).
New Orleans, Louisiana, this 26th day of June, 2023.

C aaa Vaw /* loo, wold □□
JANIS VAN MEERVELD
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189555. Public record. Not legal advice.