Sherman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CRAIG JAMES SHERMAN, SR. CIVIL ACTION

VERSUS NO. 23-6833

THIBODAUX POLICE DEP’T., ET AL. SECTION “E”(2)

REPORT AND RECOMMENDATION

Plaintiff Craig James Sherman’s Motion to Reopen Case (ECF No. 24) was referred to a

United States Magistrate Judge for a recommendation on whether the Court should reopen

Sherman’s 42 U.S.C. § 1983 suit against defendants Thibodaux Police Department and Officer

Jason Slosarex. For the reasons that follow, it is recommended that the motion to reopen be

GRANTED.

I. BACKGROUND

Sherman filed this pro se and in forma pauperis suit pursuant to 42 U.S.C. § 1983 against

defendants Thibodaux Police Department and Officer Jason Slosarex. ECF No. 3, ¶III(B)-(C), at

4. Under a broad reading of his complaint, Sherman alleges that police were called to 619

Sycamore Street in Thibodaux, Louisiana, for a noise complaint. Id., ¶IV, at 4. He claims he was

not involved with the circumstances surrounding the noise complaint, but that he was targeted as

a black man in a majority white neighborhood. Sherman states he was told by the officer that he

had drugs and was searched four times, but no drugs were found. Sherman claims he informed the

officer that he was racially profiling Sherman. He alleges the officer laughed and stated, “I know

you got drugs.”

Once officers were aware that Sherman did not have any outstanding warrants, Sherman

states he was brought to the back of the police cruiser and searched again. He claims the officer

touched his private area, unbuckled his belt, and began to search under his clothes in the street. Id.

at 5. Sherman claims he asked the officer what he was doing and was told that Sherman told the

officer to do it. He states that no drugs were found and that the officer proceeded to “bash”

Sherman’s fiancée and two children. Sherman seeks monetary compensation. Id., ¶V, at 5.

On January 12, 2024, I issued a Response Order to provide the Court with more information

relating to Sherman’s claims. ECF No. 10. On February 1, 2024, Sherman filed a response to the

order with the Court. ECF No. 11. In his response, Sherman states that the name of the officer who

violated his rights is Jason Slosarex. Id. at 1. At the time of his response, Sherman claims he was

currently incarcerated in Lafourche Parish Correctional Complex and was awaiting trial on March

10-12, 2024. He states the date of his arrest was November 8, 2022.

On February 27, 2024, a notice mailed to Sherman about a deficient pleading was returned

as undeliverable. ECF No. 13. On April 18, 2024, I issued a show cause order requesting that

Sherman provide the Court with is current address and cautioned him that failure to do so may

result in a recommendation that his complaint may be dismissed for failure to prosecute. ECF No.

15. By searching available databases, the Court was made aware that Sherman was released from

Lafourche Parish Correctional Complex on March 8, 2024. Id. at 1.

Given his failure to respond to the show cause order or to contact the Court to provide a

current address, on May 21, 2024, I issued a Findings and Recommendations that Sherman’s

claims be dismissed without prejudice for his failure to prosecute. ECF No. 17. The United States

District Judge adopted the findings and recommendations via Order and Judgment issued June 27

and 28, 2024. ECF Nos. 20, 21. Since the return of the first undeliverable envelope on February

27, 2024, every record document sent to Sherman at his address of record was returned as

undeliverable. ECF Nos. 16, 18, 19, 22, 23.

2

In his motion to reopen, Sherman states that he was not properly notified of the last notice

sent to Lafourche Parish Correctional Complex on May 9, 2024. ECF No. 24 at 1. He states he is

currently housed at Lafourche Parish Correctional Complex and requests the case be reopened.

II. APPLICABLE LAW AND ANALYSIS

Rule 41(b) of the Federal Rules of Civil Procedure specifically provides that a court may,

in its discretion, dismiss a plaintiff’s claim for failure to prosecute or for failure to comply with

the Federal Rules of Civil Procedure or any order of the court. “This authority [under Rule 41(b)]

flows from the court's inherent power to control its docket and prevent undue delays in the

disposition of pending cases.”1 “[T]he failure of a pro se litigant to notify the district court of an

address change may be considered by the district court as an additional cause for dismissal for

failure to prosecute.”2 A Rule 41(b) dismissal is considered an adjudication on the merits.3 In

determining whether to dismiss a claim, courts have traditionally considered the extent to which

the plaintiff, rather than his counsel, has been responsible for any delay or failure to comply with

a rule or order.4

When a plaintiff is without counsel, he is responsible for the prosecution of his case. A

pro se litigant is not exempt from compliance with relevant rules of procedural and substantive

1 Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co., 370 U.S. 626,

629 (1962)).

2 Lewis v. Hardy, 248 F. App’x 589, 2007 WL 2809969, at *4 n.1 (5th Cir. 2007).

3 Fed. R. Civ. P. 41(b).

4 See, e.g., Markwell v. County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989); Price v. McGlathery, 792 F.2d 472, 474-

75 (5th Cir. 1986); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir. 1978); Ramsay v. Bailey, 531 F.2d 706,

708-09 (5th Cir. 1976).

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law.5 A pro se litigant who fails to comply with procedural rules has the burden of establishing

excusable neglect, which is a strict standard requiring proof of “more than mere ignorance.”6

The prescriptive period commences when the aggrieved party either has knowledge of the

violation or notice of the facts which, in the exercise of due diligence, would have led to actual

knowledge thereof.7 As a direct participant of the November 8, 2022, events, Sherman clearly

knew of the facts on which to base any claim which would mean he had until November 8, 2023,

to file suit before his claims would prescribe under Louisiana law.8 Although his Complaint was

filed on November 13, 2023,9 under the “mailbox rule,”10 his complaint is considered filed on

November 2, 2023.

Plaintiff’s last filing with the court was on February 1, 2024. After the court received

return mail notices, it ordered Plaintiff to show cause why his complaint should not be dismissed

for failure to provide a current address. Plaintiff failed to update his address or provide any

5 Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981); Beard v. Experian Info. Solutions Inc., 214 F. App’x 459, 462 (5th

Cir. 2007).

6 See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.1988) (quotation omitted); Birl, 660 F.2d at 593.

7 Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995) (citing Vigman v. Community Nat’l Bank & Trust

Co., 635 F.2d 455, 459 (5th Cir. 1981)).

8 The applicable Louisiana prescriptive period/statute of limitation is one-year. La. Civ. Code art. 3492 (repealed by

Acts 2024, No. 423, § 2, eff. July 1, 2024). Currently, Louisiana’s prescriptive period for torts is two years. La. Civ.

Code art. 3493.1. However, Article 3493.1 has “prospective application only,” and its two-year prescriptive period

“shall apply to delictual actions arising after the [July 1, 2024] effective date of [Act 423].” TORT ACTIONS, 2024

La. Sess. Law Serv. Act 423 (H.B. 315). Because the alleged incidents underlying these claims occurred before July

1, 2024, the former Article 3492 and its one-year prescriptive period apply. See Allied World Nat’l Assurance Co. v.

Nisus Corp., 134 F.4th 821, 826 n.3 (5th Cir. 2025) (applying the former Article 3492’s one-year prescriptive period

to tort claim arising from facts occurring before July 1, 2024).

9 ECF No. 1.

10 The Fifth Circuit has recognized the “mailbox rule” applies to pleadings, including complaints filed under 42 U.S.C.

§ 1983, submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive

the pleading from the inmate for delivery to the court is considered the time of filing for limitations purposes. United

States v. Petty, 530 F.3d 361, 363 & n. 1 (5th Cir. 2008); Stevenson v. Anderson, 139 F. App'x 603, 604 (5th Cir.

2005); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). Sherman’s deficient complaint was docketed on

November 13, 2023. ECF No. 1. However, Sherman signed and dated his complaint on August 24, 2023. ECF No. 3

at 5. The date on the envelope stamped by prison officials was dated November 2, 2023. Id. at 6. Giving Sherman the

greatest possible benefit, the filing date, at the latest, would be considered November 2, 2023, and still within the one-

year timeline.

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response, and he took no action until this Motion to Reopen in January 2026. Given the

circumstances, the Court was well within its jurisdiction to dismiss Sherman’s suit without

prejudice for his failure to prosecute the case by not providing the Court with his current address.

Ordinarily, a dismissal without prejudice preserves to the plaintiff the ability to refile the

complaint. However, given the dates of the alleged events, the date Sherman filed the original

complaint, and the applicable limitation period, Sherman would be precluded from having his

claims heard on the merits if the Court were to deny his motion to reopen on the grounds that he

refiles suit due to the statute of limitations surrounding his claims.11 Because the prescriptive

period has run, even a dismissal without prejudice is effectively a dismissal with prejudice.12

Dismissals with prejudice are “reserved for the most egregious of cases, usually cases

where the requisite factors of clear delay and ineffective lesser sanctions are bolstered by the

presence of at least one of the aggravating factors.”13 Those aggravating factors include (1) delay

resulting from intentional conduct, (2) delay caused by the plaintiff personally, and (3) delay

causing prejudice to the defendant.14 Instances where a plaintiff’s failure to comply with a court

order was “more a matter of negligence than purposeful delay or contumaciousness” do not favor

dismissal with prejudice.15

11 “[T]he statute of limitations for a Section 1983 action is a state’s general or residual personal injury statute of

limitations.” Brown v. Pouncy, 93 F.4th 331, 334 (5th Cir. 2024) (citation omitted), cert. denied, 145 S. Ct. 170

(2024).

12 See McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); Burden v. Yates, 644 F.2d 503, 505 (5th. Cir.

1981); Moore v. Lindley, No. 20-121, 2024 WL 1327257, at *1 (E.D. Tex. Feb. 26, 2024), report and recommendation

adopted by 2024 WL 1326753, at *1 (E.D. Tex. Mar. 27, 2024).

13 Rogers v. Kroger, 669 F.2d 317, 320 (5th Cir. 1982).

14 Morris v. Ocean Systems, Inc., 730 F.2d 248, 252 (5th Cir. 1984).

15 Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981) (reversing a district court’s dismissal with prejudice and

remanding for further proceedings when plaintiff was derelict in pursuit of his suit); See Durham v. Florida East Coast

Railway Co., 385 F.2d 366, 368 (5th Cir. 1967); See also Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241,

247 (5th Cir. 1980).

5

The record in this case does not support a finding of purposeful delay or contumacious

conduct. For these reasons, Sherman’s motion to reopen the case should be granted and he be

afforded the opportunity to pursue his claims.

Hl. RECOMMENDATION

It is therefore RECOMMENDED that plaintiff Craig James Sherman, Sr.’s Motion to

Reopen Case (ECF No. 24) be GRANTED and the Clerk administratively reopen the above

captioned matter.

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 28th day of January, 2026.

a Alyy CURRAULT

UNITED STATES MAGISTRATE JUDGE

'6 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.