Brown v. Turlich

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ELIJAH DESHUNN BROWN CIVIL ACTION

VERSUS NO. 24-0725

SHERIFF TURLICH, ET AL. SECTION “E”(4)

REPORT AND RECOMMENDATION

Pending before the Court is Defendant Darren Robin’s Motion to Dismiss, or

Alternatively, Quash Return on Summons pursuant to Rule 12(b)(5) (ECF No. 46), which

was referred to the undersigned United States Magistrate Judge in accordance with Local Rule

73.2 and 28 U.S.C. § 636(b)(1)(B). Plaintiff Elijah Deshunn Brown failed to timely file an

Opposition Memorandum, as required by Local Rule 7.5. No party requested oral argument in

accordance with Local Rule 78.1, and the court agrees that oral argument is unnecessary.

I. Background

Plaintiff Elijah Deshunn Brown (“Brown”) is a federal pretrial detainee currently housed

in the Plaquemines Parish Detention Center (“PPDC”) in Pointe a La Hache, Louisiana. ECF No.

10, ¶II(A), at 2; id., ¶III(A), at 4; ECF No. 10-1, at 1. Brown filed this pro se and in forma pauperis

complaint pursuant to 42 U.S.C. § 1983 against defendants Plaquemines Parish Sheriff Turlich,

Warden Denise Narcisse, Lt. Ashton Paxton and Deputy Robin. ECF No. 10, ¶III(B)-(E), at 5.

The only claims remaining are Brown’s claims against Lt. Ashton Paxton (“Paxton”) and Deputy

Robin (“Robin”) for the use of excessive force on February 12, 2024. ECF No. 14.

II. Service

After Brown filed his § 1983 suit, the undersigned granted his request to proceed in forma

pauperis. ECF No. 12. After conducting the Court’s statutory frivolousness review, summons were

issued and the Marshal’s Service was directed to effect service in this pauper proceeding to the

remaining Defendants. ECF No. 17. The summons as to Robin, which was addressed to him at his

place of employment with the Plaquemines Parish Detention Center, 16801 Highway 15 in Davant,

Louisiana, was returned executed on March 3, 2025. ECF No. 30 at 1. ECF No. 39. Kevin Bryan,

listed as “PPSO transport”, accepted service for Robin at 500 Poydras Street in New Orleans,

Louisiana. ECF No. 39 at 2.

Defendant Robin thereafter filed this motion to dismiss, or alternatively quash the return

on summons, for insufficient service. ECF No. 46. Robin argues that Rule 4(c)(1) requires a

plaintiff to accomplish service, and that service upon a third party at a place other than his domicile

is improper. ECF No. 46 at 1; id., ¶II, at 5. On that basis, he seeks dismissal of Brown’s excessive

force claim against him or asks this Court to quash the return of service. Id., ¶III, at 5.

III. Applicable Law And Analysis

A. Service by the USMS

Service on an individual is perfected by delivering a copy of the summons and complaint

to the defendant personally, leaving a copy at the dwelling or usual place of abode with a suitably

aged resident, or delivering a copy to an authorized agent. FED. R. CIV. P. 4(e)(2). Rule 4(c)(1)

generally imposes the obligation of service on the plaintiff. FED. R. CIV. P. 4(c)(1). However,

since Brown has been granted leave to proceed in forma pauperis (“IFP”), 28 U.S.C. § 1915(d)

provides that “officers of the court shall issue and serve all process[.]”

When a plaintiff proceeds IFP, “[s]pecial rules govern the procedure for service of

process.” Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir. 1996). A plaintiff

proceeding in forma pauperis is entitled to have the summons and complaint served by the USMS.

FED. R. CIV. P. 4(c)(3). Thus, it is the USMS, rather than Brown, who was responsible for effecting

proper service in this case. After an IFP plaintiff takes “reasonable steps to identi[f]y the

defendant(s),” courts issue process and direct the USMS to serve the identified defendants.

Lindsey, 101 F.3d at 446. The USMS must use due diligence in serving defendants on behalf of an

IFP plaintiff, and if a provided business address is insufficient for service, due diligence requires

the USMS to search for “personal addresses for the defendants and serve the individuals at those

addresses[,]” particularly where the plaintiff is incarcerated with no access to the home address of

the defendant prison employee. Ellibee v. Leonard, 226 F. App’x 351, 359 (5th Cir. 2007) (per

curiam).

Had Defendant Robin been personally served at the Plaquemines Parish Detention Center,

service would be proper. The record reflects, however, that the USMS did not effectuate proper

service on Robin because it did not serve him personally at his place of employment, nor did it

effect domiciliary service.

B. Request for Dismissal

Robin seeks to be dismissed from this suit based on insufficient service. ECF No. 46.

However, an IFP plaintiff is entitled to rely upon service by a Marshal and should not be penalized

with dismissal for failure of a Marshal to properly effect service, where such failure is due to no

fault of the plaintiff. Lindsey, 101 F.3d at 447 (5th Cir. 1996); Rochon v. Dawson, 828 F.2d 1107,

1110 (5th Cir. 1987).

Instead, “[i]n such instances, courts recognize that the Plaintiff’s claims should not be

subject to dismissal, but instead that measures be taken to either re-issue summons and re-authorize

service by the officers of the Court, or ask the defendant to waive the insufficient service issues

and agree to waiver of service of summons under Federal Rule of Civil Procedure 4(d).” Cordova

v. Cuendiz, No. 20-1198, 2021 WL 5323762, at *3 (N.D. Tex. Nov. 16, 2021) (citing Kaminsky v.

Wake Forest Univ. Baptist Med. Center, No. 08-882, 2009 WL 3208449, at *5 (M.D.N.C. Sept.

30, 2009) (“[T]he court remains under a duty to assist Plaintiff with regard to service of process in

view of his pro se status and the granting of leave to proceed in forma pauperis. Therefore, rather

than recommending dismissal of the action as to the Defendants on the basis of inadequate service,

the Court must take reasonable steps to see that service is effected on all Defendants properly

before the Court in accordance with Rule 4(c)(3)”); Counce v. Wolting, No. 13-3199, 2017 WL

661583, at *3 (D. Kan. Feb. 17, 2017) (if Plaintiff has provided the necessary information, and the

failure was due to the Marshal’s inadequate service, such arguments “present, at most, an

opportunity to correct a mistake for which the plaintiff is not accountable”)).

Furthermore, dismissal is not necessary after one single attempt at service of process.

Stanga v. McCormick Shipping Corp., 268 F.2d 544, 554 (5th Cir. 1959) (noting that dismissal is

not appropriate where there has been only one attempt at service of process); Allison v. Raytheon,

No. 10-438, 2010 WL 5535808, at *3 (E.D. Tex. Dec. 17, 2010). Dismissal is also not appropriate

where there is a reasonable prospect that the defendant can be served properly. Thus, the proper

remedy for insufficient service in this instance is to reissue summons and direct the USMS to

perfect service of a new summons and complaint on Defendant Robin.

IV. Recommendation

Considering the record, the submission and arguments of counsel, and the applicable law,

for the foregoing reasons,

IT IS RECOMMENDED that Defendant Darren Robin’s Motion to Dismiss, or

Alternatively, to Quash Return on Summons (ECF No. 46) be DENIED in part, as to the

motion to dismiss and GRANTED in part, as to the motion to quash the return of service and that

the summons executed on Defendant Darren Robin at 500 Poydras Street in New Orleans,

Louisiana (ECF No. 39 at 2) be QUASHED for insufficient service.

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.!

New Orleans, Louisiana, this 4th day of June, 2025.

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KAREN WELLS ROBY

UNITED STATES MAG RATE JUDGE

' Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (Sth Cir. 1996). Douglass referenced the previously

applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended

to extend the period to fourteen days.