The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
ANTONIO HARRIS CIV. ACTION NO. 3:21-01332
VERSUS JUDGE TERRY A. DOUGHTY
JACOB BROWN, ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
REPORT AND RECOMMENDATION
Before the undersigned Magistrate Judge, on reference from the District Court, are the
following motions: three compound motions to dismiss for lack of personal jurisdiction,
insufficient process, and insufficient service of process pursuant to Rules 12(b)(2), (4), and (5) of
the Federal Rules of Civil Procedure, two filed by Defendant, Jacob Brown [doc. #s 19 & 46],
and one by Defendant, Dakota DeMoss [doc. # 22]; plus a motion to dismiss for insufficient
process and insufficient service of process filed by Defendant, George Harper [doc. # 24]. The
motions are opposed. For reasons detailed below, it is recommended that the motions to dismiss
be DENIED.
Background
On May 19, 2021, Plaintiff, Antonio Harris (“Harris”), filed the instant civil rights
complaint under 42 U.S.C. § 1983 against various law enforcement personnel and other entities
to recover compensatory and punitive damages for injuries that he sustained on May 23, 2020,
pursuant to a beating administered to him by several Louisiana State Police troopers following a
traffic stop and vehicle chase, plus his post-arrest failure to receive adequate medical care at the
Richland Parish Detention Center. (Compl.). Plaintiff initially sued the following law
enforcement officers and agencies, the Louisiana State Police (“LSP”); LSP Trooper Jacob
Brown, in his individual capacity; LSP Trooper Dakota DeMoss, in his individual capacity; LSP
Trooper George Harper, in his individual capacity; LSP Superintendent Lamar Davis, in his
individual and official capacities; the Richland Parish Sheriff’s Office (“RPSO”); the Richland
Parish Detention Center (“RPDC”); and John Doe RPDC corrections officers, in their individual
capacities. Id. Plaintiff asserted claims against LSP troopers Brown, DeMoss, and Harper under
42 U.S.C. § 1983 for excessive force under the Fourth Amendment. Id. He also alleged that the
LSP troopers violated his Fourth and Fourteenth Amendment rights when they failed to render
medical aid in response to both his cries for assistance and the visible injuries that he sustained
from the beating. Id. He further asserted that each of the foregoing officers failed to intervene to
prevent the excessive use of force upon him. Id.
Plaintiff also set forth state law claims for negligent training, hiring, and supervision
against the LSP and LSP Superintendent Lamar Davis. Id. Curiously, however, Plaintiff
requested special damages under federal common law and attorney’s fees under 42 U.S.C. §
1988 for these state law tort claims. See Compl., ¶¶ 77-79.
Plaintiff next alleged claims under § 1983 against the RPSO, RPDC, and John Doe
RPDC corrections officers for failure to provide adequate medical care in response to visible
blood in his sputum, stool, and urine. Id. Finally, in addition to monetary damages, Plaintiff
prayed for appointment of a receiver to ensure that LSP, RPSO, and RPDC employees receive
proper training and supervision. Id.
In partial response to a motion to dismiss [doc. # 14] filed by Defendant, RPSO, Plaintiff
filed a First Supplemental and Amended Complaint (“FSAC”) on September 9, 2021. (FSAC
[doc. # 44]). An “amended complaint supersedes the original complaint and renders it of no
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legal effect, unless the amended complaint specifically refers to and adopts or incorporates by
reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (citing Boelens
v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir.1985)). Here, there is no indication that the
supplemental and amended complaint adopted or referenced the earlier pleading. Therefore, the
sole, operative complaint before the court is the FSAC. [doc. #44].
In the FSAC, Plaintiff effectively substituted: 1) the Department of Public Safety &
Corrections (“DPSC”) for the LSP; 2) Sheriff Gary Gilley, in his individual and official
capacities, in lieu of the RPSO; 3) RPDC Warden Joel Weatherly, in his individual and official
capacities, instead of the RPDC; and 4) Jane Doe and/or John Doe for the John Doe RPDC
corrections officers. (FSAC, doc. #44). Plaintiff also fleshed out some of his allegations against
Defendants. Id. Finally, Plaintiff added facts to support a claim of false imprisonment for his
month-long detention at the RPDC, despite his repeated entreaties to Sheriff Gilley and Warden
Weatherly explaining that there was no outstanding arrest warrant for his arrest. Id.
On May 20, 2021, the Clerk of Court issued summonses to Plaintiff, so he could serve
Defendants. [doc. # 4]. As pertinent here, Plaintiff filed returns of service on June 30, 2021, for
Defendants, George Harper, Dakota DeMoss, and Jacob Brown. [doc. #s 11-13]. According to
the proofs of service, Harper was served at his residence by leaving the summons with his wife;
DeMoss was served at his residence by leaving the summons with his mother; and Brown was
served at 1811 Tower Drive, Monroe, Louisiana, via Janna Steele, who purportedly was
designated to accept service on his behalf. Id.
On July 27, 2021, Jacob Brown filed the instant motion to dismiss for lack of personal
jurisdiction because of insufficient process and/or service caused by Plaintiff’s failure to request
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service and to serve the Complaint and “citation” on Louisiana’s Office of Risk Management
(“LORM”) and the Louisiana Attorney General (“AG”) as required by Louisiana Revised Statute
§ 39:1538(D). (Brown’s M/Dismiss [doc. # 19]). Brown emphasized that to perfect service
against him in his capacity as an LSP trooper, Plaintiff also was obliged to serve the complaint
and “citation” on the LORM and AG, which had not occurred. Id. Brown admitted that he was
served on June 28, 2021. See M/Dismiss, Memo., pg. 1.
On August 2, 2021, Dakota DeMoss filed the instant motion to dismiss for lack of
personal jurisdiction and/or insufficient process/service that parallels Brown’s motion.
(DeMoss’s M/Dismiss [doc. # 22]). Like Brown, DeMoss argued that because Plaintiff sued him
for his actions “as a duly certified law enforcement officer employed by the Louisiana State
Police,” Plaintiff was required to comply with the service requirements of Louisiana Revised
Statute 39:1538(D), i.e., service on the LORM and the AG. Id.
On August 4, 2021, George Harper filed his own motion to dismiss for insufficient
process and/or service on the now-familiar grounds that Plaintiff failed to request summonses
and to serve the LORM and the AG, thereby depriving the court of jurisdiction over Harper.
(Harper’s M/Dismiss [doc. # 24]).
On August 13, 2021, Plaintiff filed returns of service showing that on August 11, 2021,
he caused summonses for Brown, DeMoss, and Harper (and others) to be served upon LORM
and the DA. [doc. #s 31, 34-35].
On August 17, 2021, Plaintiff filed a response to Brown’s motion to dismiss wherein he
urged the court to deny the motion because he had since cured the basis for the motion by
serving the LORM and the AG. (Pl. Opposition [doc. # 36]). Plaintiff further noted that, in any
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event, dismissal was not an available remedy for failure to comply with Louisiana Revised
Statute § 39:1538. Id.
On August 20, 2021, Plaintiff filed almost identical oppositions to DeMoss and Harper’s
motions to dismiss, wherein he urged the court to deny the motions because he since had served
the LORM and the AG. (Pl. Oppositions [doc. #s 39-40]). Plaintiff further argued that
Louisiana Revised Statute § 39:1538(D) did not apply to lawsuits originally filed in federal
court, and that failure to comply with § 39:1538(D) did not constitute grounds for dismissal. Id.
Plaintiff emphasized that § 39:1538(D) was limited to suits against the State and its agencies. Id.
The statute simply did not apply to Movants who were sued in their individual capacities as LSP
troopers. Id.
Meanwhile, on August 18, 2021, Brown filed a reply brief whereby he took issue with
Plaintiff’s efforts to serve the LORM and the AG because Plaintiff failed to request summonses
issued by the Clerk of Court to the LORM and the AG. (Brown Reply [doc. # 38]). Rather,
Plaintiff tried to use the summons that had been issued to Brown to serve these other entities. Id.
On August 20, 2021, DeMoss filed a reply brief wherein he repeated Brown’s argument
that Plaintiff had failed to request summonses from the Clerk of Court for the LORM and the
AG. (DeMoss Reply [doc. # 41]).
On August 27, 2021, Harper filed a reply brief in which he advanced the same
summonses argument that Brown and DeMoss made in their reply briefs. (Harper Reply [doc. #
42]). Harper also cited several cases that purportedly applied § 39:1538 to cases filed in federal
court. Id.
On September 10, 2021, Brown filed a second motion to dismiss for lack of personal
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jurisdiction stemming from insufficient process and service as a “responsive motion in relation to
plaintiff’s [FSAC].” [doc. # 46]. Brown reiterated his arguments from the briefing on his first
motion to dismiss. Id. The matter is ripe.
Legal Principles
Defendants seek dismissal for insufficient process, insufficient service of process, and for
lack personal jurisdiction as a result of the invalid service of process. FED. R. CIV. P. 12(b)(4) &
(5). Although Rules 12(b)(4) and 12(b)(5) sound similar, there is a distinction. “An objection
under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its
service, while a Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of
the summons and complaint.” Gartin v. Par Pharm. Companies, Inc., 289 Fed. Appx. 688, 692
(5th Cir.2008) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 3d § 1353) (internal quotation marks omitted). Therefore, “a Rule 12(b)(4)
motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any
applicable provision incorporated by Rule 4(b) that deals specifically with the content of the
summons.” Fed. Practice and Procedure, supra. Id. Rule 12(b)(4) also is the proper challenge
when the respondent alleges that the summons and complaint do not properly name the party on
whom the summons and complaint were served. International Fire and Safety, Inc. v. HC
Services, Inc., 2006 WL 2403496 (S.D. Miss. Aug. 18, 2006).
When service is challenged under Rule 12(b)(5), the serving party bears the burden of
proving its validity or good cause for failure to effect timely service. Kitchen v. Walk-On’s
Bistreaux & Bar, No. 19-1062, 2020 WL 2404911, at *3 (W.D. La. May 12, 2020) (citing Sys.
Signs Supplies v. U.S. Dep’t of Justice, Washington, D.C., 903 F.2d 1011, 1013 (5th Cir. 1990)).
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“The Court may consider affidavits or declarations in resolving Rule 12(b)(5) motions.” Walk-
On’s, 2020 WL 2404911, at *1 (citations omitted). Without valid service of process,
“proceedings against a party are void because a court cannot exercise personal jurisdiction over a
defendant unless he was properly served.” Landry v. Garber, No. 19-0367, 2019 WL 2946149,
at *2 (W.D. La. June 21, 2019), R&R adopted, No. 19-0367, 2019 WL 2943409 (W.D. La. July
8, 2019) (citing Aetna Business Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d
434, 435 (5th Cir. 1981)); see also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987).
Analysis
In their initial motions, Defendants do not argue that they were incorrectly named on the
summons or complaint.1 Rather, they argue that service was ineffective. Accordingly, the court
will analyze Defendants’ motions under Rule 12(b)(5). See King v. Hebert, Civ. Action No. 17-
0406, 2018 WL 4355198, at *1–2 (M.D. La. Sept. 12, 2018).
Movants contend that service was invalid because Plaintiff did not serve them in
accordance with Louisiana Revised Statute § 39:1538, which provides, in pertinent part, that
[c]laims against the state or any of its agencies to recover damages in tort for money
damages against the state or its agencies for injury or loss of property, personal
injury, or death caused by the negligent or wrongful act or omission of any
employee of the agency while acting within the scope of his office or employment
under circumstances in which the state or such agency, if a private person, would
be liable to the claimant in accordance with the general laws of this state, may be
prosecuted in accordance with the provisions specified in this Chapter . . .
* * *
1 In their reply memoranda, Defendants contend that the summonses Plaintiff served on the
LORM and the AG, in response to Defendants’ motions, were deficient because they were not
originally issued by the Clerk of Court. The court, however, does not reach this issue because §
39:1538 is inapplicable in the present context. See discussion, infra.
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In actions brought pursuant to this Section, process shall be served upon the head
of the department concerned, the office of risk management, and the attorney
general, as well as any others required by R.S. 13:5107 . . .
La. R. S. § 39:1538(A) & (D).
Defendants’ argument, however, misses the mark. Plaintiff sued Defendants, Brown,
DeMoss, and Harper, not in their official capacities, but in their individual capacities as LSP
troopers. See Compl.2 In other words, Plaintiff does not seek recovery against the state or its
agencies for damages pursuant to his individual capacity claims against Brown, DeMoss, and
Harper, and consequently, by its terms, § 39:1538 does not apply to Plaintiff’s claims against
these Defendants. See Brown v. Chesson, 315 So.3d 834, 838 (La. 2021) (personal service on
qualified state health care provider sufficed, and § 39:1538 remained inapplicable where plaintiff
did not assert any claims against the state or its agencies).3
2 For purposes of recovery against the LSP, Plaintiff initially sued that agency directly and later
substituted the DPSC in its stead. See FSAC. Plaintiff also sued Colonel Lamar Davis in both
his individual capacity and in his official capacity as LSP Superintendent. See Compl. and
FSAC.
3 In any event, Plaintiff only need comply with § 39:1538 if he opted to serve the state or state
agency in accordance with state law pursuant to Rule 4(j)(2)(B) of the Federal Rules of Civil
Procedure. Otherwise, he simply could serve the state and/or its agency by delivering a copy of
the summons and the complaint to that entity’s chief executive officer as provided by Rule
4(j)(2)(A). See Bellue v. Louisiana Workforce Comm’n, Civ. Action No. 15-0509, 2015 WL
9200499, at *1–2 (M.D. La. Dec. 16, 2015) (“because service was effectuated on Defendant’s
chief executive officer, state law simply does not come into play.”); Rougeau v. Louisiana Dep’t
of Soc. Servs., Civ. Action No. 04-0432, 2008 WL 11355054, at *2–3 (M.D. La. July 10, 2008)
(plaintiff properly effected service of original complaint on DSS Secretary pursuant to Rule
4(j)(2)(A), and failed to show that a case filed originally in federal court must be served in
accordance with state law); Richard v. Louisiana o/b/o Dep’t of Children & Family Servs., Civ.
Action No. 18-01257, 2019 WL 3366997, at *3 (W.D. La. June 3, 2019), R&R adopted, 2019
WL 3368558 (W.D. La. July 24, 2019) (plaintiff properly effected service on the state agency’s
chief executive officer; thus, service was effective under Rule 4(j)(2)(A)) and § 39.1538
remained inapplicable); Lewis v. Louisiana Dep’t of Transp. & Dev., Civ. Action No. 10-4600,
2011 WL 3502327, at *1–2 (E.D. La. Aug. 10, 2011) (by serving the secretary of the department,
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Instead, service against the individual defendants in this case must be perfected pursuant
to Rule 4(e), which provides that,
[u]nless federal law provides otherwise, an individual . . . 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).
Here, it is uncontroverted that Plaintiff served Dakota DeMoss by delivering a copy of
the summons and the complaint to DeMoss’s residence or usual place of abode and leaving the
documents with his mother, Stacey Thompson. See Proof of Service [doc. # 12]. The foregoing
service method satisfied the requirements of Rule 4(e)(2)(B). See King, supra (denying motions
to dismiss filed by state troopers for failure to perfect service under § 39:1538 where the troopers
were served individually under Rule 4(e)).
Similarly, it is uncontroverted that Plaintiff served George Harper by delivering a copy of
plaintiffs properly effectuated service of process on the LADOTD pursuant to the first method of
service allowed under Rule 4(j)(2)); see also King v. Hebert, Civ. Action No. 17-0406, 2018 WL
4355198, at *1–2 (M.D. La. Sept. 12, 2018) (plaintiff not required to effect service pursuant to
state law because case originally was filed in federal district court where the Federal Rules of
Civil Procedure apply).
.
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the summons and the complaint to Harper’s residence or usual place of abode and leaving the
documents with his wife, Hailey Harper. See Proof of Service [doc. # 11]. The foregoing
service method satisfied the requirements of Rule 4(e)(2)(B). See King, supra.
Plaintiff also adduced evidence that he served Jacob Brown by serving the summons and
complaint on Janna Steele, who purportedly was designated by law to accept service of process
on his behalf. See Proof of Service [doc. # 13]. The foregoing service facially satisfied the
requirements of Rule 4(e)(2)(C). See King, supra.
In his motion, Brown did not dispute that Steele was authorized by appointment or law to
receive service for him. Rather, he admitted that he was served on June 28, 2021. (M/Dismiss,
Memo., pg. 1 [doc. # 19]). Brown solely argued that in order to perfect service against him in his
capacity as an LSP trooper, Plaintiff also was required to perfect service in accordance with §
39:1538. However, the court has resolved that issue against him. See discussion, supra.
In the absence of a cognizable challenge to the method of service employed by Plaintiff
to serve him in his individual capacity, the court necessarily finds that Brown was properly
served under Rule 4(e)(2)(C). See Jones v. First Bank & Tr., Civ. Action No. 10-0939, 2010 WL
2836150, at *4 (E.D. La. July 16, 2010), vacated on other grounds 2010 WL 11494062 (E.D. La.
Oct. 26, 2010) (an objection to the insufficiency of service of process must detail the manner in
which the plaintiff has failed to satisfy the requirements of the applicable service provision).
In his second motion to dismiss for insufficient service of process and lack of personal
jurisdiction, Brown re-urged his arguments from his initial motion and directed them toward the
amended pleading. However, the undersigned has rejected those arguments and found that
Plaintiff properly served Brown with the original complaint. See discussion, supra.
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Accordingly, service of the amended pleading need only comply with Rule 5, which Plaintiff
effected by service on Brown’s attorney pursuant to the court ’s electronic-filing system. See
FED. R. CIV. P. 5(a)(1)(B) and 5(b)(1)-(2)(E).
Finally, Defendants’ motions to dismiss for lack of personal jurisdiction were premised
upon their underlying argument that Plaintiff failed to properly serve them in accordance with
state law. However, the court’s rejection of Defendants’ insufficient service of process argument
undermines the foundation for their respective motions to dismiss for lack of personal
jurisdiction.
Conclusion
For the above assigned reasons,
IT IS RECOMMENDED that the Rule 12(b) motions to dismiss for insufficient process,
insufficient service of process, and/or lack of personal jurisdiction filed by Defendants, Jacob
Brown [doc. # 19 & 46], Dakota DeMoss [doc. # 22], and George Harper [doc. # 24] be
DENIED.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties
have fourteen (14) days from service of this Report and Recommendation to file specific,
written objections with the Clerk of Court. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. A courtesy copy of any
objection or response or request for extension of time shall be furnished to the District Judge at
the time of filing. Timely objections will be considered by the District Judge before he makes a
final ruling.
A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED
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FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS
REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE
SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR,
FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL
FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
In Chambers, at Monroe, Louisiana, on this 27th day of September, 2021.
i f At _
KAYLA DYE WiC@RUSKY
UNITED STATES MAGISTRATE JUDGE
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