Nelson v. Louisiana Department Of Public Safety and Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DONALD NELSON CIVIL ACTION

VERSUS 18-282-SDD-EWD

SECRETARY JAMES M.

LEBLANC AND OFFICERS

JOHN AND JANE DOES 1-10

RULING

Before the Court is the Rule 12(b)(1) & Rule 12(b)(6) Motion to Dismiss1 filed by

Defendant James LeBlanc, Secretary of the Louisiana Department of Public Safety and

Corrections (“Secretary LeBlanc”). Plaintiff, Donald Nelson (“Nelson”) filed an

Opposition.2 For the reasons that follow, the Motion is granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 10, 2017, Plaintiff Donald Nelson traveled to the Louisiana State

Penitentiary (LSP) to visit her incarcerated brother, Timothy Lenoir.3 Nelson alleges that

she has been on the approved visitor list at LSP for about fourteen years. On that

particular day, she was accompanied by her mother and brother. Visitors to LSP are

required to walk through a SecurePass machine as part of the security screening upon

entrance. Nelson alleges that she walked through the machine as instructed but that she

“was stopped from proceeding into the Penitentiary because the SecurePass machine

allegedly detected an ‘unknown object’ in her pants.”4 In an attempt to explain the nature

1 Rec. Doc. No. 26.

2 Rec. Doc. No. 30.

3 Donald Nelson is a transgender woman (See Rec. Doc. No. 9-2, p. 1, ¶ 4); the Court will use feminine

pronouns when referring to her throughout this Ruling.

4 Rec. Doc. No. 9-2, p. 2.

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of the “unknown object,” Nelson allegedly told the LSP personnel that “she was born a

male as indicated on her driver’s license.”5 Two guards then allegedly escorted her to a

men’s restroom and instructed her to remove her pants and underwear. She refused and

asked to leave the premises. At that point, a supervisor was called and reiterated the

request for Nelson to remove her pants and underwear. Nelson again refused, proceeding

back to her car. She alleges that “the supervisor and approximately nine other unknown

guards” followed her there and “demanded that [she] would have to reveal her genitalia

before being permitted to leave the premises.”6 Nelson allowed the prison personnel to

search her car but again, refused to remove her pants and underwear. When her mother

and brother arrived at the car, “the party was subsequently informed that all of their

visitations would be cancelled for that day.”7 The next day, September 11, 2017, Nelson

received a letter from the Deputy Warden of Security at LSP, informing her that she “had

been removed from the approved visiting list of offender Lenoir for a period of six (6)

months.”8

Nelson brings this action pursuant to 42 U.S.C. § 1983, alleging that the above-

described actions amounted to a violation of her Fourth Amendment right “to be secure

in her person from unreasonable search and seizures.”9 Nelson’s original Complaint

named as a Defendant the Louisiana Department of Public Safety & Corrections.10 After

the Department filed a Motion to Dismiss,11 Nelson filed an Amended Complaint removing

5 Rec. Doc. No. 9-2, p. 2.

6 Rec. Doc. No. 9-2, p. 3.

7 Rec. Doc. No. 9-2, p. 3.

8 Rec. Doc. No. 9-2, p. 3.

9 Rec. Doc. No. 9-2, p. 5.

10 Rec. Doc. No. 1.

11 Rec. Doc. No. 7.

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the Department as a Defendant and naming instead Secretary James M. LeBlanc.

Secretary LeBlanc now urges this Motion to Dismiss, arguing that this Court lacks

jurisdiction to hear Nelson’s claims and/or that Nelson has failed to state a cognizable

claim against him.12

II. LAW AND ANALYSIS

A. Motions to Dismiss Under Rules 12(b)(1) and 12(b)(6)

1. Rule 12(b)(1)

“When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction with other

Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before

addressing any attack on the merits.’”13 If a complaint could be dismissed for both lack

of jurisdiction and for failure to state a claim, “‘the court should dismiss only on the

jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state

a claim under [Rule] 12(b)(6).’”14 The reason for this rule is to preclude courts from issuing

advisory opinions and barring courts without jurisdiction “‘from prematurely dismissing a

case with prejudice.’”15

“Article III standing is a jurisdictional prerequisite.”16 If a plaintiff lacks standing to

bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal

12 Rec. Doc. No. 26, p. 1.

13 Crenshaw–Logal v. City of Abilene, Texas, 436 Fed.Appx. 306, 308 (5th Cir. 2011)(quoting Ramming v.

United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635

F.3d 757, 762 (5th Cir.2011); Fed. R .Civ. P. 12(h)(3)).

14 Crenshaw–Logal, 436 Fed.Appx. at 308 (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th

Cir.1977)).

15 Id. (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210

(1998), and Ramming, 281 F.3d at 161).

16 Crenshaw–Logal, 436 Fed.Appx. at 308 (citing Steel Co., 523 U.S. at 101, and Xerox Corp. v. Genmoora

Corp., 888 F.2d 345, 350 (5th Cir. 1989)).

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under Rule 12(b)(1) is appropriate.17 The party seeking to invoke federal jurisdiction

bears the burden of showing that standing existed at the time the lawsuit was filed.18 In

reviewing a motion under 12(b)(1) for lack of subject matter jurisdiction, a court may

consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the

court's resolution of disputed facts.19

2. Rule 12(b)(6)

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”20 The

Court may consider “the complaint, its proper attachments, documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.”21 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”22 In Twombly, the United States Supreme

Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

17 Whitmore v. Arkansas, 495 U.S. 149, 154–55 (1990); Chair King, Inc. v. Houston Cellular Corp., 131 F.3d

507, 509 (5th Cir.1997).

18 M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Howery v. Allstate Ins. Co., 243

F.3d 912, 916 (5th Cir. 2001); Ramming, 281 F.3d at 161.

19 Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981).

20 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin v. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

21 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

22 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area

Rapid Transit, 369 F.3d at 467).

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of the elements of a cause of action will not do.”23 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”24 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”25 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”26 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”27 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”28

B. 12(b)(1): Whether this Court has Jurisdiction over Nelson’s Claims

In her Complaint, Nelson prays for “appropriate injunctive relief, including but not

limited to an order lifting the restriction preventing Donald Nelson from visiting offender

Timothy Lenoir and restraining Defendant from engaging in further discriminatory

conduct. . .”29 Secretary LeBlanc argues that this Court lacks subject matter jurisdiction

to hear Nelson’s claims for reinstatement of her visiting privileges because the claim is

not ripe, as Nelson failed to seek an appeal with the Secretary of the Department as

required by Department regulations. This argument converges to some extent with

23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter Twombly).

24 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

25 Twombly, 550 U.S. at 570.

26 Iqbal, 556 U.S. at 678.

27 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).

28 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d

209 (1986)).

29 Rec. Doc. No. 9-2, p. 7.

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Secretary LeBlanc’s contention that Nelson lacks standing because Department

Regulation No. C-02-008 Section 20(C)(3) provides that reinstatement of visitor privileges

must be sought by written request of the offender, i.e., Lenoir, who has not submitted

such a request. The Court will address the ripeness and standing arguments separately.

i. Ripeness

Ripeness is “a justiciability doctrine designed to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect the agencies from judicial

interference until an administrative decision has been formalized and its effects felt in a

concrete way by the challenging parties.”30 It generally incorporates consideration of two

elements: “(1) the fitness of the issues for judicial decision and (2) the hardship to the

parties of withholding court consideration.”31

Secretary LeBlanc’s ripeness argument is sparse; he simply cites to Department

Regulation No. C-02-008, Section 20(C)(3), which provides that reinstatement of visiting

privileges “may only be considered upon written request from the offender following the

procedures detailed in . . .this regulation.”32 The Court infers that it is Secretary LeBlanc’s

position that because there has been no written request for reinstatement of Nelson’s

visiting privileges, her claim is not yet ripe, because it could still be redressed via the

promulgated Department regulations. Nelson disagrees, noting that her claim is a “purely

30 Nat'l Park Hospitality Ass'n v. U.S. Dep't of Interior, 538 U.S. 803, 807–08, 123 S.Ct. 2026, 2030, 155

L.Ed.2d 1017 (2003) (internal quotation marks omitted).

31 Nat'l Park Hospitality Ass'n, 538 U.S. at 808, 123 S.Ct. 2026 (citing to Abbott Labs. v. Gardner, 387 U.S.

136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

32 Rec. Doc. No. 26-4, p. 18.

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legal” one, namely, that her “visitation restrictions are a violation of 42 U.S.C. § 1983.”33

Therefore, she argues, “there is no further factual development that must occur before

this Court would be in a posture to handle this case.”34 In her view, this case is ripe for

decision because the visiting prohibition is “the direct result of concrete action taken

against [her]”35 and, “every day that she is barred from visiting Angola is an ‘immediately

adverse consequence.’”36

The Court agrees with Nelson. Ripeness doctrine exists to prevent courts from

taking up matters that involve “too remote and abstract an inquiry for the proper exercise

of judicial function.”37 Secretary LeBlanc cites no authority for the proposition that

Nelson’s § 1983 claim is unripe because her brother failed to submit a written request for

reinstatement of her visiting privileges. It is true that the Prison Litigation Reform Act

(PLRA), which governs prison litigation in federal courts, requires prisoners to exhaust

their administrative remedies before seeking judicial review, but the PLRA applies on its

face to lawsuits “by a prisoner confined in any jail, prison, or other correctional facility.”38

Nelson is not a prisoner. Even if she were subject to PLRA’s exhaustion requirements,

federal courts have found that failure to exhaust does not necessarily foreclose a claim

under Section 1983. The United States Second Circuit Court of Appeals in Roach v.

Morse noted that, “[b]ecause § 1983 is intended to provide a federal forum . . . there will

almost always be some sort of administrative or judicial avenue of relief at state law—

33 Rec. Doc. No. 30, p. 3.

34 Id.

35 Id.

36 Rec. Doc. No. 30, p. 3.

37 Texas v. U.S. 523 U.S. 296, 301 (1954).

38 42 U.S.C.A. § 1997e.

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whether compelled by federal statute or simply available under general state court

jurisdiction.”39 Applying that observation in the context of Planned Parenthood Gulf Coast,

Inc. v. Kliebert, this Court concluded that the existence of state administrative review

procedures “rarely, if ever, implies that either § 1983 plaintiffs need exhaust them or a

case is unripe when the process has not been invoked but an injury plainly looms.”40

Overall, the Court finds a lack of support for Secretary LeBlanc’s contention that

Nelson’s claim is unripe. After reviewing the parties’ arguments and the applicable law,

the Court finds that adjudication by this court would not be premature. Therefore, the

12(b)(1) motion to dismiss is DENIED with respect to ripeness.

ii. Standing

Secretary LeBlanc also argues that Nelson’s claims should be dismissed because

she lacks standing. It is true, as Secretary LeBlanc points out, that a request for

reinstatement of visiting privileges “may only be considered upon written request from the

offender.”41 However, Secretary LeBlanc goes too far where he argues that, because “the

plaintiff is a visitor, not the inmate, [she] thus has no grounds to bring a suit regarding the

resolution of the restriction placed upon her visiting privileges.”42 This argument

improperly conflates constitutional standing doctrine with the procedural requirements of

the Department Regulations. Although Nelson is not the proper party to initiate an appeal

of the suspension of visiting rights pursuant to Department Regulation No. C-02-008, that

39 Roach v. Morse, 440 F.3d 53, 57 (2d Cir.2006).

40 Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 628–29 (M.D. La. 2015), aff'd sub

nom. Planned Parenthood of Gulf Coast, Inc. v. Gee, 837 F.3d 477 (5th Cir. 2016), opinion withdrawn and

superseded, 862 F.3d 445 (5th Cir. 2017), and aff'd sub nom. Planned Parenthood of Gulf Coast, Inc. v.

Gee, 862 F.3d 445 (5th Cir. 2017) 141 F. Supp. 3d 604, 625 (M.D. La. 2015).

41 Rec. Doc. No. 26-4, p. 18 (emphasis added).

42 Rec. Doc. No. 26-1, p. 7.

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does not compel the conclusion that she lacks standing to allege a constitutional violation

related to the events she alleges occurred during her attempted visitation at LSP.

The “irreducible [constitutional] minimum” of standing contains three elements: “(1)

an injury-in-fact,” defined as “an invasion of a legally protected interest which is (a)

concrete and particularized” and “(b) actual or imminent, not conjectural or hypothetical,”

that is (2) fairly traceable to the defendant's allegedly unlawful conduct” and that is (3)

likely to be redressed by the requested relief.43 Secretary LeBlanc does not argue that

Nelson has not suffered an actual injury-in-fact. Instead, Secretary LeBlanc’s extremely

brief argument gestures at the third prong of standing doctrine, namely, the requirement

that the alleged injury is likely to be redressed by the requested relief.

The Supreme Court has held that “where a plaintiff's complaint alleges a continuing

violation or the imminence of a future violation, a prayer for injunctive relief satisfies

redressability.”44 Nelson has alleged such a continuing violation. She asserts that she

“was restricted from visiting”45 and that she “had been removed from the approved visiting

list . . . for a period of six (6) months.”46 That restriction was imposed on September 11,

2017.47 Moreover, Nelson alleges that the letter from Deputy Warden Dupont “did not

guarantee that [her] ability to visit offender Lenoir would be reinstated after the six (6)

month period.”48 This suit was filed on March 13, 2018,49 seeking, inter alia, reinstatement

of Nelson’s visiting privileges. At least as of the time of the filing of the Complaint, then,

43 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

44 NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 397 (5th Cir. 2015)(citing Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83, 108, 118 S.Ct. 1003, 1019, 140 L.Ed.2d 210 (1998)).

45 Rec. Doc. No. 9-2, p. 4.

46 Rec. Doc. No. 9-2, p. 3.

47 Rec. Doc. No. 9-2, p. 3.

48 Rec. Doc. No. 9-2, p. 3.

49 Rec. Doc. No. 1.

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the alleged injury remained ongoing. Therefore, it is clear that a favorable decision from

this Court could redress Nelson’s alleged injuries. Accordingly, the Motion to Dismiss is

DENIED with respect to standing. However, the Court cannot determine whether Nelson’s

privileges have been restored in the intervening time, and if so, whether Nelson’s claim

is now moot for standing purposes. The Court infra grants Nelson leave to file a Second

Amended Complaint; that amendment should plead additional facts in support of Nelson’s

standing.

C. Nelson’s Failure to State a Claim Under § 1983

Having found that it has jurisdiction over Nelson’s claims, this Court nevertheless

also finds that all of Nelson’s claims against Secretary LeBlanc should be dismissed

under Rule 12(b)(6) for failure to state a claim. To successfully allege constitutional

violations in a § 1983 claim, the Fifth Circuit has held that a plaintiff “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.”50 In order to establish the personal liability of a certain defendant

to a plaintiff who is claiming damages for deprivation of his civil rights, that plaintiff must

show that particular defendant's action or inaction was a violation of the plaintiff's civil

rights.51 Overall, “[p]ersonal involvement is an essential element of a civil rights cause of

action.”52 “Under section 1983, supervisory officials are not liable for the actions of

50 Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (internal citations omitted).

51 Archie v. LeBlanc, No. CV08-CV-1381, 2010 WL 3522296, at *4 (W.D. La. July 28, 2010), report and

recommendation adopted, No. 08-CV-1381, 2010 WL 3522293 (W.D. La. Sept. 2, 2010), aff'd, 447 F. App'x

591 (5th Cir. 2011) (citing Reimer v. Smith, 663 F.2d 1316, 1322 n. 4 (5th Cir.1981). Also, Malley v. Briggs,

475 U.S. 335, 106 S.Ct. 1092, 1098 n. 7, 89 L.Ed.2d 271 (1986)).

52 Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.1 983).

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subordinates on any theory of vicarious liability.”53 A supervisory official may be held liable

under section 1983 only if “(1) he affirmatively participates in the acts that cause the

constitutional deprivation, or (2) he implements unconstitutional policies that causally

result in the constitutional injury.”54

Plaintiff avers that LeBlanc is the “Secretary of the Department of Public Safety &

Corrections responsible for depriving Ms. Nelson of her rights.”55 This statement is a legal

conclusion. The only other allegation in the Complaint that mentions Secretary LeBlanc

is the allegation that “Leslie Dupont, Deputy Warden of Security, then sent a letter on

behalf of Secretary LeBlanc . . . informing them that they had been removed from the

approved visiting list.”56 But the letter that Nelson cites is merely printed on Department

stationery that includes Secretary LeBlanc in the heading; the only mention of Secretary

LeBlanc in the body of the letter is a statement that the decision can be addressed by

written correspondence, to be directed to the Secretary.57 The mere mention of Secretary

LeBlanc in the letter informing Nelson of the visiting restriction does not rise to the level

of alleging personal involvement in the acts that caused the alleged constitutional

deprivation.

In her Opposition to the Motion to Dismiss, Nelson also argues that Secretary

LeBlanc is subject to supervisory liability for implementing unconstitutional policies. It is

true that as the head of the Louisiana Department of Public Safety & Corrections,

Secretary LeBlanc is a “supervisory official” under the doctrine. As discussed above, a

53 Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).

54 Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008).

55 Rec. Doc. No. 9-2, p. 2.

56 Rec. Doc. No. 9-2, p. 3.

57 Rec. Doc. No. 26-2, p. 1.

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supervisory official can be liable in his individual capacity under § 1983 if “(1) he

affirmatively participates in the acts that cause the constitutional deprivation, or (2) he

implements unconstitutional policies that causally result in the constitutional injury.”58

The Fifth Circuit has held that “[s]upervisory liability may also exist without overt

personal participation in the offensive act if the supervisory official ‘implement[ed] a policy

so deficient that the policy itself is a repudiation of constitutional rights and is the moving

force of the constitutional violation.’”59 Moreover, this Court has previously held that

allegations of “’tacit approval of, acquiescence in, or purposeful disregard of, rights-

violating conduct’ will defeat a motion to dismiss predicated on Rule 12(b)(6).”60 However,

such allegations must include “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”61 Nelson’s Complaint

contains no such content. It is not sufficient to offer in a brief the legal conclusion that

LeBlanc “is responsible for making the policies and procedures Deputy Warden Leslie

Dupont follows,”62 especially when the Complaint does not allege which policy,

specifically, is at issue, or that the policy is itself unconstitutional. Likewise, Nelson’s

conclusory argument in her brief that “the actions of Secretary LeBlanc’s subordinates in

carrying out such policies directly implicate him and create liability for him”63 does not

state a claim for supervisory liability under § 1983. Accordingly, the Motion to Dismiss

shall be granted, and Nelson’s claims against Secretary LeBlanc dismissed without

58 Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 435 (5th Cir.2008).

59 Walker v. Nunn, 456 F. App'x 419, 424 (5th Cir. 2011), citing Thompkins, 828 F.2d at 304 (internal

quotation marks and citation omitted).

60 Cleveland v. Gautreaux, 198 F.Supp.3d 717, 739 (M.D. La. 2016).

61 Iqbal, 556 U.S. 662 (2009).

62 Rec. Doc. No. 30, p. 6.

63 Rec. Doc. No. 30, p. 6.

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prejudice. The Court does not reach the issue of qualified immunity, which was raised as

a defense by Secretary LeBlanc. However, to the extend Nelson continues this litigation

by availing herself of the leave to amend granted by the Court below, she is hereby

ordered to file a response to the qualified immunity issue pursuant to Federal Rule of Civil

Procedure 7(a).

D. Leave to Amend

Federal Rule of Civil Procedure 15(a) applies to determine whether leave to amend

the Complaint should be granted or denied. Rule 15(a) provides that leave to amend “shall

be freely given when justice so requires.” The court liberally construes Rule 15(a) in favor

of amendment.64 In determining whether to grant leave, a court may consider several

factors, including, “undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, [and] futility of amendment

....”65 Although Nelson already filed a First Amended Complaint, she has not had an

opportunity to amend with respect to her claims against Secretary LeBlanc. Finding no

evidence of delay or bad faith, the Court concludes that Nelson shall have leave to file

amend her Complaint once more to correct the deficiencies raised in this Court’s Ruling.

64 See, Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981) (“[T]he liberal position of the

federal rules on granting amendments ... evinces a bias in favor of granting leave to amend”).

65 Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1153 (5th Cir 1981) (quoting Foman v. Davis, 371 U.S.

178, 182, 83 S.Ct. 227, 230, 9 L.Ed. 2d 222 (1962)).

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III. CONCLUSION

For the reasons set forth above, Secretary LeBlanc’s Motion to Dismiss66 is

granted and the claims against him dismissed without prejudice. Plaintiff Donald Nelson

shall file a Second Amended Complaint, if any, within 30 days of this Court’s Ruling.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on September 16, 2019.

S

CHIEF JUDGE SHELLY D. DICK

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

66 Rec. Doc. No. 26.

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