The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
COREY MARQUEE ADAMS
CIVIL ACTION
VERSUS
22-20-SDD-RLB
LOUISIANA DEPARTMENT OF
CORRECTIONS, ET AL.
RULING
This matter comes before the Court on the Motion to Dismiss pursuant to 12(b)(5)1
filed by Defendant Charles Tolbert (“Defendant Tolbert”), through the Assistant Attorney
General. Plaintiff, Corey Marquee Adams (“Plaintiff”) filed an Opposition,2 to which
Defendant filed a Reply.3 For the reasons set forth below, the Court will deny Defendant’s
motion.
I. BACKGROUND AND PROCEDURAL FACTS
This motion challenges the Amended Complaint4 filed by Plaintiff, who is
incarcerated and was proceeding pro se at the time of filing. He alleges, inter alia, that
Defendant Tolbert and several other named defendants violated the American Disabilities
Act, 42 U.S.C 12101 (the “ADA”), and acted with deliberate indifference in violation of his
Eighth Amendment rights.5 With respect to Defendant Tolbert, Plaintiff alleges that on
October 20, 2020, Defendant Tolbert was a sergeant in the Louisiana State Penitentiary
(“LSP”), and Defendant “refused to call for help or otherwise assist” Plaintiff while Plaintiff
1 Rec. Doc. 131.
2 Rec. Doc. 133.
3 Rec. Doc. 136.
4 Rec. Doc. 104.
5 Id.
“was bleeding out in his cell from lacerations caused by an attempted suicide.”6 When
Plaintiff filed his Original Complaint, Plaintiff did not know Defendant’s actual name and
identified him as “Toby” without any other identifying information.7 On June 12, 2023,
Plaintiff sought leave to amend his complaint once he identified “Toby” as Defendant
Tolbert through the course of litigation.8 The Court granted this motion, and on September
12th, the Court ordered the named defendants to file the last known address of Defendant
Tolbert under seal within seven days.9 Additionally, Plaintiff was permitted an additional
45 days to effect service upon Defendant Tolbert.10 On September 14th, the Defendants
filed a Notice of Compliance under seal containing the last known address of Defendant
Tolbert.11 Thereafter, Plaintiff retained counsel, and they enrolled in this matter on
October 4th.12 On December 8th, Defendant Tolbert filed the pending motion because he
was never served with Plaintiff’s complaint.13
II. LAW AND ANALYSIS
A. Rule 12(b)(5)
If a plaintiff fails to properly effectuate service, the defendant may seek to dismiss
the plaintiff's complaint under Rule 12(b)(5).14 “A motion to dismiss pursuant to Rule
12(b)(5) turns on the legal sufficiency of the service of process.”15 The burden of
6 Rec. Docs. 104 and 133.
7 Rec. Doc. 1-1.
8 Rec. Doc. 79.
9 Rec. Doc. 98.
10 Id.
11 Rec. Doc. 105.
12 Rec. Doc. 115.
13 Rec. Doc. 132.
14 See Fed. R. Civ. P. 12(b)(5) (authorizing a court to dismiss a civil action when service of process is
inadequate).
15 Ceasar v. Louisiana Bd. of Ethics, 2018 WL 2090184, at *4 (M.D. La. May 4, 2018) (quoting Holly v.
Metro. Transit Auth., 213 Fed.Appx. 343, 344 (5th Cir. 2007)).
demonstrating the validity of service when an objection is made lies with the party making
service.16 When a challenge made to the adequacy of service of process, the serving
party bears the burden of proving the validity of service or the existence of good cause
for failing to effect service in a timely manner.17 The fact that the plaintiff is pro se does
not excuse the failure to properly effect service of process.18
To establish good cause for failing to timely effect service, a plaintiff has the burden
of demonstrating “at least as much would be required to show excusable neglect. . . .”19
“Simple inadvertence or mistake of counsel or ignorance of the rules usually does not
suffice. . . .”20 In addition, “some showing of ‘good faith on the part of the party seeking
an enlargement and some reasonable basis for noncompliance within the time specified’
is normally required.”21 It is “irrelevant that the defendant not served within the 120–day
period later finds out about the suit or is in fact later served, so long as there was not good
cause for the failure to serve within the 120 days.”22
A plaintiff who is incarcerated and proceeding pro se is “entitled to rely upon
service by the U.S. Marshal to properly effect service of process, where such fault is
through no fault of the litigant.”23 However, if the failure to timely effect service is due to
the “dilatoriness or fault” of the plaintiff, he will be unable to show good cause for such
16 Id (citing Holly, 213 Fed. Appx. at 344).
17 Id (citing System Sign Supplies v. U.S. Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); Aetna
Business Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1990)).
18 Id (citing System Signs Supplies, 903 F.2d at 1013; Dupre v. Touro Infirmary, 235 F.3d 1340 (5th Cir.
2000) (unpub'd)).
19 Mayeaux v. McKee, 2014 WL 7186275, at *2–3 (M.D. La. Dec. 16, 2014) (quoting Winters v. Teledyne
Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir.1985)).
20 Id (quoting Winters, 776 F.2d at 1306).
21 Id (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (1969)).
22 Id (quoting Winters, 776 F.2d at 1305–6).
23 Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987).
failure.24
Defendant Tolbert requests dismissal because Plaintiff failed to serve him within
the time permitted by the Court’s Order.25 Defendant argues that, although he timely filed
his last known address into the record, Plaintiff did not effect service.26 Plaintiff concedes
that he did not effect service but argues good cause exists because, at the time to effect
service, Plaintiff was proceeding pro se and relied on the Clerk of the Court and the U.S.
Marshal to effect service, and the government personnel failed to do so.27
The Fifth Circuit has considered cases where a pro se incarcerated plaintiff has
relied upon service by the U.S. Marshal. In Rochon v. Dawson, the U.S. Marshals failed
to properly effect service, and the court had to decide whether the failure of the U.S.
Marshals was due to any dilatoriness or fault by the plaintiff. The Circuit court explained
that, “[at] a minimum a plaintiff should request service upon the appropriate defendant
and attempt to remedy any apparent service defects of which a plaintiff has knowledge.”28
The Circuit court found that the district court provided notice to the plaintiff that the
defendant was never served. Despite this notice, the plaintiff never requested that the
U.S Marshal properly serve the defendant. The Circuit court found that the plaintiff was
penalized not because of the U.S. Marshal, but because of his own “inaction or
dilatoriness.”29
The Fifth Circuit came to a different conclusion in Lindsey v. U.S. RR Retirement
Board. In that case, the Fifth Circuit found that good cause was shown because the
24 Id.
25 Rec. Doc. 131.
26 Rec. Doc. 131-1, pp. 3–4.
27 Rec. Doc. 133, pp. 6–7.
28 828 F.2d at 1109–10 (5th Cir. 1987).
29 Id.
plaintiff’s failure to properly serve the defendant was attributable to government personnel
who improperly performed their duties.30 The Fifth Circuit explained that the facts
differentiated from Rochon because the plaintiff in Lindsey requested service of process,
but the district court did not appoint or direct anyone to serve process. The court
concluded:
[The] [p]laintiff’s inability to properly serve the [defendant] was attributable
in large part to the clerk’s failure to provide [plaintiff] with the proper
summons form and the district court’s failure to follow controlling statutes
which required the court to appoint a United States Marshal or other person
or office appointed by the court to effectuate service for [the plaintiff].31
The Court finds that the facts here align more with the conclusion of Lindsey than
Rochon. On September 12, 2023, the Court ordered:
[Within] 7 days of the date of this Order, defendants shall file the last known
address of Charles Tolbert under seal. The Clerk of Court shall issue a
summons for defendant Tolbert and the United States Marshal shall serve
the defendant wherever found upon receipt of the completed USM-285 form
and payment of any required fees. The plaintiff shall have an additional 45
days to effect service upon the defendant Tolbert.32
According to Plaintiff, he completed the USM-285 form and payment of any
required fees, but the U.S. Marshal never served Defendant Tolbert because the Clerk of
the Court never issued summons.33 Once Plaintiff retained counsel, Plaintiff’s counsel
spoke to the Clerk of the Court, who confirmed that, in error, they never sent Defendant
Tolbert’s summons to the U.S. Marshal.34 And because Defendant Tolbert filed his
address under seal, Plaintiff also asserts that, as of December 21, 2023, there was not a
30 101 F.3d 444, 446–48 (5th Cir. 1996).
31 Id.
32 Rec. Doc. 98.
33 Rec. Doc. 133, p. 6.
34 Rec. Doc. 133-1, p. 1.
docket entry visible to indicate whether Defendant Tolbert complied with the Court’s
Order.35 Defendant Tolbert counters that Plaintiff could have contacted Defendant’s
counsel or the Clerk’s office to inquire whether Defendant Tolbert complied with the
Court’s Order.36 While the Court agrees with Defendant that Plaintiff could have taken
steps to inquire about service on Tolbert, the Court finds that Plaintiff has sufficiently
shown good cause. Plaintiff complied with this Court’s Order, and it was the Court’s
personnel that failed to carry out its duties. Moreover, Defendant Tolbert filed his last
known address under seal, and while that, too, was in compliance with the Court’s Order,
Plaintiff and his counsel had no notice in the record due to the sealed filing. It was the
responsibility of the government personnel to comply with the Court’s Order and serve
Defendant Tolbert. The Court finds that Plaintiff did not “remain silent” as found in Rochon,
and Plaintiff should not be penalized for the Court’s error.
In conclusion, the 12(b)(5) motion to dismiss is denied. Because Plaintiff is now
represented by counsel, the Clerk of Court shall provide Plaintiff’s counsel with access to
the sealed Notice of Compliance, which provides the last known address of Defendant
Tolbert. Plaintiff shall have 30 days from the date of this Ruling to effect service upon
Defendant Tolbert. Defendant Tolbert shall file a responsive pleading, or in the alternative,
Co-Defendants shall supplement their Motion for Summary Judgment37 by joining
Defendant Tolbert as a movant once he has been served.
35 Id; Rec. Doc. 133, pp. 3–4.
36 Rec. Doc. 136, p. 2.
37 Rec. Doc. 103.
III. CONCLUSION
Accordingly, the Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(5)38 is hereby DENIED. Plaintiff shall have 30 days from the date of this Ruling to
effect service upon Defendant Tolbert. Upon service, Defendant Tolbert shall file a
responsive pleading to the Amended Complaint or join the Motion for Summary
Judgment39 filed by the Co-Defendants. If Defendant Tolbert joins the Motion for
Summary Judgment, the Motion shall be supplemented as to the claims against
Defendant Tolbert ONLY, and Plaintiff may supplement his Opposition40 as to his claims
against Defendant Tolbert ONLY. Any supplemental briefs shall not exceed five pages.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on this 28th day of May, 2024.
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
38 Rec. Doc. 131.
39 Rec. Doc. 103.
40 Rec. Doc. 127.