Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CURTIS LAVSON MITCHELL * CIVIL ACTION

VERSUS * NO. 25-2275

NANCY A. MILLER, ET AL. * SECTION “D” (2)

REPORT AND RECOMMENDATION

Plaintiff Curtis Lavson Mitchell filed a Complaint and Ex Parte Motion to proceed in forma

pauperis on November 4, 2025. ECF Nos. 1-2. The matter was referred to the undersigned United

States Magistrate Judge to submit proposed findings and recommendations for disposition

pursuant to 28 U.S.C. § 636(b)(1)(B), including frivolousness review under 28 U.S.C. § 1915. On

November 10, 2025, I granted Plaintiff’s motion to proceed in forma pauperis and, consistent with

the duties imposed by § 1915(a) and (e)(2)(B), ordered that summons not be issued until

completion of the statutorily mandated review. ECF No. 3. This Order also required Plaintiff to

show cause why his Complaint should not be dismissed as frivolous and/or for failure to state a

claim by filing a written response setting for the specific facts supporting his causes of action

against each defendant in accordance with § 1915(e)(2). Id. at 11.

Plaintiff timely filed a response (the “Response”). ECF No. 5. The Court later issued a

Report and Recommendation recommending dismissal of Plaintiff’s claims, to which Plaintiff

objected. ECF Nos. 6, 9. He also filed an Amended Complaint pursuant to Rule 15(a)(1)(A) of

the Federal Rules of Civil Procedure, mooting the Report and Recommendation and his objection.

ECF Nos. 7, 11. The Amended Complaint was referred to the undersigned United States

Magistrate Judge to submit proposed findings and recommendations for disposition pursuant to

§ 636(b)(1)(B), including frivolousness review under § 1915. ECF No. 11.

1

I. THE AMENDED COMPLAINT

In his Amended Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 for

compensatory damages and “punitive damages where permitted” against Defendants Officer

Linden Calvin of the Gretna Police Department, Judge Nancy A. Miller of the 24th Judicial District

Court, and District Attorney Paul Connick of Jefferson Parish. ECF No. 7-1. Plaintiff alleges that,

on August 5, 2023, Officer Calvin stopped him without reasonable suspicion and subsequently

searched and arrested him without probable cause. Id. He further alleges Officer Calvin used

excessive force to execute the arrest and that false or misleading statements were used to justify

the arrest and prosecution. Id.

Plaintiff asserts unlawful stop, unreasonable search, false arrest, and excessive force

claims against Officer Calvin; a Monell claim1 against the City of Gretna; and Fourteenth

Amendment due process claims based on use of allegedly false statements and misleading

evidence during criminal proceedings, though Plaintiff does not identify against whom he asserts

that claim. ECF No. 7-1.

II. APPLICABLE LAW

A. Statutorily Mandated Review

Section 1915(e)(2)(B) grants the Court authority to summarily dismiss in forma pauperis

complaints if the asserted claims are frivolous or malicious or fail to state a claim upon which

relief may be granted.2 Indeed, the statute specifically mandates that the court “must sua sponte

dismiss [the case] at any time if it determines that the action is frivolous or malicious, fails to state

a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

1 See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978).

2 Tam Vo v. St. Charles Par., No. 10-4624, 2011 WL 743466, at *1-2 (E.D. La. Feb. 3, 2011), R.&R. adopted sub

nom. Vo v. St. Charles Par., No. 10-4264, 2011 WL 740909 (E.D. La. Feb. 22, 2011).

2

immune.”3 This statutory review mandate applies to non-prisoner in forma pauperis cases equally

to prisoner cases.4

A claim is “frivolous where it lacks an arguable basis either in law or in fact.”5 A claim

“lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if

the complaint alleges the violation of a legal interest which clearly does not exist.”6 A court may

not dismiss a claim simply because the facts are “unlikely.”7 A factually frivolous claim alleges

only facts that are “‘clearly baseless,’ . . . are ‘fanciful,’ ‘fantastic,’ and ‘delusional’ . . . [or] rise

to the level of the irrational or wholly incredible, whether or not there are judicially noticeable

facts available to contradict them.”8

A complaint fails to state a claim on which relief may be granted when the factual

allegations do not rise above a speculative level, with the assumption that all factual allegations in

the complaint are true, even if doubtful.9 The Supreme Court clarified the standard for a Rule

12(b)(6) motion in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007). To avoid dismissal, a complaint must contain sufficient factual matter to

state a claim to relief that is plausible on its face (i.e., the factual allegations must “be enough to

raise a right to relief above the speculative level”).10 If the “facts” alleged are “merely consistent”

with those minimally required to establish liability, the complaint “stops short of the line between

3 Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir. 2018) (emphasis added) (citing 28 U.S.C. § 1915(e)(2)(B)).

4 James v. Richardson, 344 F. App’x 982, 983 (5th Cir. 2009) (“Section 1915(e)(2)(B) requires dismissal of frivolous

IFP actions even if those actions are brought by non-prisoner plaintiffs.”); see also Newsome v. EEOC, 301 F.3d 227,

231 (5th Cir. 2002) (applying § 1915(e)(2)(B) to a non-prisoner whose complaint was frivolous).

5 Neitzke v. Williams, 490 U.S. 319, 325 (1989).

6 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1997)).

7 Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992) (citing Denton v. Hernandez, 504 U.S. 25, 32–33 (1992)).

8 Id. (quoting Denton, 504 U.S. at 32-33).

9 Garrett v. Thaler, 560 F. App’x 375, 377 (5th Cir. 2014) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)).

10 Twombly, 550 U.S. at 555, 570.

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possibility and plausibility.”11 “Plausibility simply calls for enough factual allegations to raise a

reasonable expectation that discovery will reveal evidence to support the elements of the claim.”12

Although the court must accept all well-pleaded facts as true and consider the complaint in

the light most favorable to the plaintiff, the court does not accept as true “conclusory allegations,

unwarranted factual inferences, or legal conclusions.”13 The court may consider not only the

allegations but also any documents attached to the complaint, referenced documents that are

central to the claim, and documents that are part of the public record or subject to judicial notice.14

In comparing a dismissal for failure to state a claim under 28 U.S.C. § 1915(e) and Rule

12(b)(6), the Supreme Court in Neitzke v. Williams, 490 U.S. 319 (1989), held that a claim that is

dismissed under one rule does not “invariably fall afoul” of the other.15 If an in forma pauperis

complaint lacks even an arguable basis in law, dismissal is appropriate under both Rule 12(b)(6)

and § 1915(e).16 “When a complaint raises an arguable question of law which the district court

ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is

appropriate; however, dismissal under [§ 1915(e)’s] frivolousness standard is not.”17

B. Pleading Standard

Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint set forth “sufficient

11 Iqbal, 556 U.S. at 678.

12 Roy v. Cobb, No. 20-0167, 2020 WL 2045791, at *2 (W.D. La. April 7, 2020) (citing Twombly, 550 U.S. at 556).

13 Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted); Gentilello v. Rege, 627 F.3d 540,

544 (5th Cir. 2010) (citation omitted); see also SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n for Lehman Bros. Small

Balance Com. Mortg. Pass-Through Certificates, Series 2007-3, 881 F.3d 933, 943–44 (5th Cir. 2018) (holding

conclusory fraud allegations that the defendant intended plaintiff to act upon representations and plaintiff acted in

reliance on representations insufficient to withstand Rule 12(b)(6) challenge).

14 See, e.g., Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (directing courts to “consider the

complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take

judicial notice.”); Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (stating that a court may rely on the complaint,

its proper attachments, documents incorporated by reference, and matters of judicial notice).

15 Moore, 976 F.2d at 269 (quoting Neitzke, 490 U.S. at 326 (citing 28 U.S.C. § 1915(d)) (current version at 28 U.S.C.

§ 1915(e)).

16 Id.

17 Id.

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facts from which the court can determine the existence of subject matter jurisdiction and from

which the defendants can fairly appreciate the claim made against them.”18 While Rule 8’s

pleading standard does not require “detailed factual allegations,” it does demand more than an

“unadorned, the-defendant-unlawfully-harmed-me accusation.”19 While documents filed pro se

are “liberally construed,”20 even the complaints of pro se litigants must satisfy Rule 8 to convince

the court that plaintiff has a colorable claim.21

C. Availability of Amendment

Claims filed by a pro se litigant that fail to state grounds upon which relief can be granted

should generally be dismissed without prejudice, unless the plaintiff has been given adequate

opportunity to cure the deficiencies or if the pleadings demonstrate the plaintiff has pleaded his

best case:22

Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a

pending motion to dismiss for failure to state a claim and an opportunity to amend the

complaint before the motion is ruled upon. These procedures alert him to the legal theory

underlying the defendant's challenge, and enable him meaningfully to respond by opposing

the motion to dismiss on legal grounds or by clarifying his factual allegations so as to

conform with the requirements of a valid legal cause of action.23

Unless it is clear that a plaintiff is unwilling or unable to amend in a manner that will avoid

dismissal, the court errs in not providing a pro se plaintiff with at least one opportunity to cure

18 Kinchen v. Sharp, No. 11-1040, 2012 WL 700920, at *2 (E.D. La. Feb. 10, 2012) (quoting Bremer v. Hous. Auth.

of New Orleans, No. 98-2735, 1999 WL 298795, at *1 (E.D. La. May 12, 1999)), R.&R. adopted, 2012 WL 700265

(E.D. La. Feb. 29, 2012).

19 Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

20 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 98, 106 (1976)).

21 Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (stating “[a]lthough we treat pro se pleadings more

liberally, some facts must be alleged that convince us that the plaintiff has a colorable claim; conclusory allegations

will not suffice.”).

22 James v. Smith, 152 F.4th 594, 610 (5th Cir. 2025) (citing Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415,

423 (5th Cir. 2017) (per curiam) (citations omitted)); Ricks v. Khan, 135 F.4th 296, 300 (5th Cir. 2025).

23 Neitzke, 490 U.S. at 329-30.

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pleading deficiencies before dismissing.24 When, however, the “complaint alleges the plaintiff's

best case,” a further factual statement from the plaintiff need not be allowed.25 Frivolous claims,

however, are generally dismissed with prejudice and without leave to amend because the plaintiff

cannot cure the frivolity.26

D. Claims Under § 1983

Section 1983 creates a damages remedy for the violation of federal constitutional or

statutory rights under color of state law:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State . . . subjects, or causes to be subjected, any . . . person

within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law . . . .27

“The purpose of § 1983 is to deter state actors from using their badge of authority to deprive

individuals of federally guaranteed rights and to provide relief to victims if such deterrence

fails.”28

Generally, a plaintiff must satisfy three elements to establish § 1983 liability:

(1) deprivation of a right secured by the U.S. Constitution or federal law;

(2) that occurred under color of state law; and

(3) was caused by a state actor.29

Because § 1983 merely provides a remedy for designated rights, rather than creating any

substantive rights, “an underlying constitutional or statutory violation is a predicate to

24 Dierlam v. Trump, 977 F.3d 471, 478 n.44 (5th Cir. 2020) (quoting Great Plains Tr. Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)); see also Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (cleaned

up); Brown v. Brown, 842 F. App'x 948, 949 (5th Cir. 2021) (“Generally a district court errs in dismissing a pro se

complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.”

(quoting Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020) (cleaned up))).

25 Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999) (citation omitted).

26 See Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc).

27 42 U.S.C. § 1983.

28 Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57 (1978)).

29 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).

6

liability.”30 This requires the plaintiff to identify both the constitutional violation and the

responsible person acting under color of state law.31 Plaintiff must specify the personal

involvement of each defendant in a cause of action under § 1983.32 A plaintiff cannot make

generalized allegations, nor can he support a claim based on any vicarious liability theory.33

There must be an affirmative link between the incident and some act by the defendant.34

Section 1983 claims may be brought against an officer in his personal or official

capacity or against a governmental entity, such as a municipality.35 An officer’s performance

of his “official duties creates two potential liabilities,” personal-capacity liability for him and

official-capacity liability for the governmental entity that employs him.36 Official-capacity

suits generally represent another way of pleading an action against an entity of which an officer

is an agent.37 Because the governmental entity is the real party in interest, “an official-capacity

suit is, in all respects other than name, to be treated as a suit against the entity.”38 Thus, “a

plaintiff seeking to recover a damages judgment in an official-capacity suit must look to the

government entity itself,”39 except he may not recover punitive damages if the entity

employing the officer is a municipality.40 Liability is premised on the entity itself being the

cause of the constitutional violation at issue through the “execution of the government’s policy

30 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).

31 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978).

32 See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

33 See Howard v. Fortenberry, 723 F.2d 1206, 1209 (5th Cir. 1984).

34 Rizzo v. Goods, 423 U.S. 362, 371 (1976).

35 Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (citing Bd. of Cnty. Comm'rs of Bryan Cnty. v.

Brown, 520 U.S. 397, 403 (1997)).

36 Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000).

37 Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell,

436 U.S. at 690 n.55)).

38 Graham, 473 U.S. at 165 (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)).

39 Id. at 166.

40 Id. at 167 n.13 (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)).

7

or custom” by that employee.41 Thus to hold a municipality liable for the misconduct of one

of its employees, a plaintiff must allege the municipality caused the constitutional violation

through its policies or customs (a Monell claim).42

Conversely, personal-capacity suits “seek to impose individual liability upon a

government officer for actions taken under color of state law.”43 In other words, a victory in

a personal-capacity suit is against the individual defendant and not the entity that employs him;

there is no imposition of liability on the latter.44 “To establish personal liability in a § 1983

action, it is enough to show that the official, acting under color of state law, caused the

deprivation of a federal right.”45 And if the official’s conduct is proven to have been

“motivated by evil intent or demonstrates reckless or callous indifference to a person’s

constitutional rights,” punitive damages are available for this suit.46

III. ANALYSIS

A. Capacity

Plaintiff’s Amended Complaint does not specify whether Defendants, who are all

employed by a governmental entity, are sued in their personal or official capacity or both. This is

not uncommon,47 nor is a plaintiff generally required to plead the capacity in which a defendant is

sued.48 “To determine whether a defendant is being sued in his or her official or [personal]

41 City of Canton v. Harris, 489 U.S. 378, 385 (1989) (citations omitted); see also Kohler v. Englade, 470 F.3d 1104,

1115 (5th Cir. 2006) (citing Monell, 436 U.S. at 690-91).

42 Kohler, 470 F.3d at 1115 (citing Monell, 436 U.S. at 690-91).

43 Hafer, 502 U.S. at 25.

44 Graham, 473 U.S. at 167-68.

45 Hafer, 502 U.S. at 25 (citation modified) (quoting Graham, 473 U.S. at 166).

46 William v. Kaufman County, 352 F.3d 994, 1015 (5th Cir. 2003) (citation modified) (quoting Sockwell v. Phelps, 20

F.3d 187, 192 (5th Cir. 1994) (citing Smith v. Wade, 461 U.S. 30, 56 (1983))); see Graham, 473 U.S. at 167 n.13

(“[P]unitive damages . . . are available in a suit against an official personally.” (citation omitted)).

47 See Graham, 473 U.S. at 167 n.14.

48 Robinson v. Hunt County, 921 F.3d 440, 446 (5th Cir. 2019) (“A person's capacity need not be pled except to the

extent required to show the jurisdiction of the court.” (quoting Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973)

(per curiam) (citing FED. R. CIV. P. 9(a))).

8

capacity,” the court examines “the allegations in the complaint” and “the course of proceedings.”49

The relief sought as demonstrated by same may be indicative of the capacity in which a defendant

is sued.50

As reflected in his original complaint, Plaintiff sued Defendants only in their respective

official capacities (ECF No. 1 at 2-3), so the Court treated his claims as official-capacity claims in

its initial Report and Recommendation. See ECF No. 6 at 2, 12. Although Plaintiff’s March 20,

2026, Objections did not challenge this construction, his Amended Complaint filed the same day

makes clear that he now sues all the Defendants in their respective personal capacities given that

he seeks punitive damages for the “actions of Defendants.” ECF No. 7-1 at 2; No. 9. It is also

clear from the Amended Complaint that Plaintiff sues Officer Calvin in his official capacity too as

he asserts a Monell claim against him seeking to hold his employer, the City of Gretna, liable.

ECF No. 7-1 at 1.51 Liberally construing the Amended Complaint, Plaintiff sues Judge Miller and

DA Connick in their official capacities because he notes their official positions and seeks punitive

damages “where permitted,” which implicitly recognizes that punitive damages are precluded for

some of his claims, i.e., official-capacity claims. ECF No. 7-1.

B. Judicial Notice

A court may take judicial notice of an adjudicative fact that is not subject to reasonable

49 Id. (citations modified) (quoting Parker, 479 F.2d at 336; Graham, 473 U.S. at 167 n.14).

50 See id. (“Here, both the complaint and the course of proceedings demonstrate that Robinson sought prospective

relief against the defendants in their official capacities only.”); Mayfield v. Tex. Dep’t of Crim. Just., 529 F.3d 599,

604-05 (5th Cir. 2008) (“Construing Mayfield's pro se complaint liberally, we find that it seeks declaratory relief as

well as a permanent injunction against Johnson and Pierce in their official capacities.” (citing Aguilar v. Tex.

Dep't Crim. Just., 160 F.3d 1052, 1054 (5th Cir. 1998) (explaining that the application of Ex Parte Young requires the

complaint to include claims against individual persons in their official capacities as agents of the state, and the “relief

sought must be declaratory or injunctive in nature and prospective in effect”))); Williams v. Crowe, No. 09-6440, 2011

WL 743426, at *2 (E.D. La. Feb. 22, 2011) (Vance, J.) (“When the complaint is not clear whether the defendant is

named in his individual or official capacity, the Court must look to the substance of the claims, the relief sought, and

the course of the proceedings to determine in which capacity the defendant is sued.” (citations omitted)).

51 See Durant v. City of Gretna, No. 19-147, 2021 WL 3852228, at *1 (E.D. La. Aug. 27, 2021) (Brown, C.J.)

(dismissing official capacity claim against Gretna police officer because it was duplicative of the claims against the

City of Gretna).

9

dispute because it is generally known within the court’s territorial jurisdiction or because it can be

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

FED. R. EVID. 210(a)-(b).52 The court has the discretion to take judicial notice sua sponte. Id. at

210(c)(1). And generally, the court may do so at “any stage” of the case,53 including a § 1915

statutory review.54 The court may “take judicial notice of related proceedings and records in cases

before the same court”55 and “of the public records in prior state court proceedings.”56 Judicial

records, including those documents judicially authored or created,57 are public records.58

In his Amended Complaint, Plaintiff describes an August 5, 2023, encounter with Officer

Calvin that ultimately led to his arrest and subsequent prosecution, yet he does not specify the charge

he is facing in state court. Plaintiff previously submitted various documents with his Response,

including a November 5, 2025, Order issued by Judge Miller in Criminal Action No. 23-3903 that

indicates he was charged with committing Aggravated Flight in violation of LA. REV. STAT.

52 See also Lewis v. Danos, 83 F.4th 948, 954 (5th Cir. 2023) (quoting Taylor v. Charter Med. Corp., 162 F.3d 827,

829 (5th Cir. 1998)); Deakle v. Westbank Fishing, LLC, 559 F. Supp. 3d 522, 526 (E.D. La. 2021) (Vance, J.) (quoting

FED R. EVID. 201(b)).

53 FED. R. EVID. 210(f); see also FED R. EVID. 201(f) advisory committee’s note to 1972 proposed rules (“[J]udicial

notice may be taken at any stage of the proceedings, whether in the trial court or on appeal.”); Gov’t of Canal Zone v.

Burjan, 596 F.2d 690, 694 (5th Cir. 1979). But see Colonial Leasing Co. of New Engl., Inc. v. Logistics Control Grp.

Int’l, 762 F.2d 454, 461 (5th Cir. 1985) (noting Rule 201(f) is broad in scope but describing limitations not applicable

here).

54 Taylor v. Gibson, 529 F.2d 709, 717 (5th Cir. 1976) (“A complaint conflicting with facts of which the district court

may take judicial notice might also properly be dismissed under Section 1915(d).”).

55 Farrier v. Louisiana, No. 20-1611, 2020 WL 10458187, at *2 n.4 (E.D. La. July 31, 2020) (Douglas, M.J.) (quoting

MacMillian Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th Cir. 1985))).

56 Stiel v. Heritage Numismatic Auctions, Inc., 816 F. App’x 888, 892 (5th Cir. 2020) (citation modified) (quoting

Kahn v. Ripley, 772 F. App'x 141, 142 (5th Cir. 2019) (citing Taylor, 162 F.3d at 829; Cinel v. Connick, 15 F.3d 1338,

1343 n.6 (5th Cir. 1994))).

57 Bradley ex rel. AJW v. Ackal, 954 F.3d 216, 227 (5th Cir. 2020) (“While this court has not generally defined ‘judicial

record’ or yet interpreted minutes as a judicial record, it would defy commonsense if the minutes in this case did not

qualify as a judicial record.” (citing In re United States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d

283, 290 (4th Cir. 2013) (“Although we have never explicitly defined ‘judicial records,’ it is commonsensical that

judicially authored or created documents are judicial records.”))).

58 Binh Hoa Le v. Exter Fin. Corp., 990 F.3d 410, 416 (5th Cir. 2021).

10

§ 14.108.1(C). ECF No. 5 at 32. This fact is confirmed by the state court record.59

Plaintiff recently filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in which he

asserts he was convicted on March 26, 2026, in Criminal Action Nos. 23-3903 and 23-3993 in state

court. Civil Action No. 26-712, ECF No. 7 at 1. According to the April 6, 2026, minute entries in

those cases, which were initiated by the same criminal complaint, Plaintiff was convicted of

Aggravated Flight in violation of LA. REV. STAT. § 14.108.1(C), Possession of Marijuana in

violation of LA. REV. STAT. § 40.966(C), and Resisting an Officer in violation of LA. REV. STAT.

§ 14.108. The Court takes judicial notice of these convictions reflected in the state court record.60

C. Plaintiff’s Fourth Amendment Claims

The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.”61 The “ultimate touchstone of

the Fourth Amendment is [the] reasonableness” of the search or seizure.62 Warrantless searches

and seizures are per se unreasonable unless one of the recognized exceptions applies.63 An arrest

and confinement are “seizures” of “persons.”64 But an officer may arrest a person and

subsequently confine (i.e., imprison) him if there is “probable cause” that the person committed a

59 See Polnac v. City of Sulphur Springs, 555 F. Supp. 3d 309, 327-28 (E.D. Tex. Aug. 18, 2021) (noticing documents

reflecting criminal charges the plaintiff faced in stated court); United States v. Sleugh, 896 F.3d 1007, 1017 & n.6 (9th

Cir. 2018) (noticing defendant’s criminal charge in state court).

60 See United States v. Huntsberry, 956 F.3d 270, 284-85 (5th Cir. 2020) (noticing prior conviction in state court).

61 U.S. CONST. amend. IV.

62 Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citation modified).

63 United States v. Thomas, 997 F.3d 603, 609 (5th Cir. 2021) (citing Cotropia v. Chapman, 978 F.3d 282, 286 (5th

Cir. 2020)).

64 District of Columbia v. Wesby, 583 U.S. 48, 56 (2018); see Torres v. Madrid, 592 U.S. 306, 320 (2021) (“Stated

generally, false imprisonment required confinement, such as taking a person into custody under an asserted legal

authority.” (citation modified)).

11

crime in the officer's presence,65 regardless of how minor the crime.66 A § 1983 claim for false

arrest and/or false imprisonment thus requires a plaintiff to demonstrate that he was arrested and/or

confined without probable cause.67

“Traffic stops are deemed seizures for the purposes of the Fourth Amendment.”68 One

exception to the warrant requirement is that officers may conduct stops to investigate based on

“reasonable suspicion that the person is engaged in criminal activity or wanted in connection with

a completed felony.”69 The legality of the stop is analyzed under the framework articulated

in Terry v. Ohio, 392 U.S. 1 (1968).70 The “stop must be justified by reasonable suspicion at its

inception and be reasonably related in scope and duration to the circumstances justifying the

stop.”71 “Reasonable suspicion exists if there are ‘specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant a detention.’”72 A § 1983

unlawful stop claim thus requires a plaintiff to demonstrate that the office lacked a reasonable

suspicion to perform the stop.73

65 Wesby, 583 U.S. at 56; see Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686, at *8 (5th Cir. Apr.

20, 2023) (citing Brown v. Lyford, 243 F.3d 185, 190 (5th Cir. 2001); Thomas v. Kippermann, 846 F.2d 1009, 1011

(5th Cir. 1988)).

66 See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth

Amendment, arrest the offender.”).

67 See Manuel v. City of Joliet, 580 U.S. 357, 367 (2017) (“If the complaint is that a form of legal process resulted in

pretrial detention unsupported by probable cause, then the right allegedly infringed lies in

the Fourth Amendment ‘false imprisonment.’”); Defrates v. Podany, 789 F. App'x 427, 431 (5th Cir. 2019) (“The

Fourth Amendment protects citizens from false arrests—that is, arrests unsupported by probable cause.” (citing Club

Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009))); Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020)

(quoting Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004)).

68 United States v. Henry, 853 F.3d 754, 756 (5th Cir. 2017) (quoting United States v. Lopez-Moreno, 420 F.3d 420,

430 (5th Cir. 2005)).

69 United States v. Alvarez, 40 F.4th 339, 345 (5th Cir. 2022) (citations omitted).

70 Lopez-Moreno, 420 F.3d at 430 (citing Knowles v. Iowa, 525 U.S. 113, 117 (1998); Berkemer v. McCarty, 468 U.S.

420 (1984)).

71 Carney v. Brandon Police Dep't, 624 F. App’x 199, 201 (5th Cir. 2015) (citing Terry, 392 U.S. at 19-20).

72 Allen v. Cisneros, 815 F.3d 239, 245 (5th Cir. 2016) (brackets omitted) (quoting Terry, 392 U.S. at 21).

73 See Holmes v. Reddoch, 117 F.4th 309, 319-20 (5th Cir. 2024).

12

Individuals have a Fourth Amendment right to be free from excessive force in the course

of an investigatory stop or arrest.74 To state a Fourth Amendment excessive force claim, a plaintiff

must allege that he suffered “(1) an injury, which (2) resulted directly and only from the use of

force that was clearly excessive to the need; and the excessiveness of which was (3) objectively

unreasonable.”75 The test for reasonableness for the use of force is “not capable of precise

definition or mechanical application.”76 In the context of excessive force in effecting an arrest,

the Supreme Court has identified the following considerations to take into account: “(1) the

severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of

the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest

by flight.”77

D. Heck Bar

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that a § 1983

claim seeking damages or release from custody is barred if success in the suit would necessarily

imply the invalidity of an outstanding criminal conviction or a plaintiff's present confinement.78

Heck’s “favorable-termination” requirement79 thus precludes a § 1983 claim seeking relief that

would render a conviction or sentence invalid unless the conviction or sentence has been reversed,

expunged, declared invalid or called into question by issuance of a writ of habeas corpus.80

Assessment of a Heck bar thus requires an analytical and fact-intensive analysis as to whether the

74 Ramos v. Erwin, 723 F. Supp. 3d 529, 542 (S.D. Tex. 2024) (citing Graham v. Connor, 490 U.S. 386, 394

(1989); Tennessee v. Garner, 471 U.S. 1, 7–22 (1985); Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005)),

aff’d, No. 24-20164, 2024 WL 5040984 (5th Cir. Dec. 9, 2024) (per curiam).

75 Buchanan v. Gulfport Police Dep’t, 530 F. App’x 307, 312 (5th Cir. 2013) (quoting Ikerd v. Blair, 101 F.3d 430,

433-34 (5th Cir. 1996)).

76Poole v. City of Shreveport (Poole I), 691 F.3d 624, 627-28 (5th Cir. 2012) (quoting Graham, 490 U.S. at 396).

77 Id. (quoting Graham, 490 U.S. at 396).

78 See also Olivier v. City of Brandon, 607 U.S. ----, 146 S. Ct. 916, 920 (2026) (“Heck prohibits the use of § 1983 to

challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages.”).

79 Johnson v. Thibodaux City, 887 F.3d 726, 732 (5th Cir. 2018).

80 Id. at 486-87. Heck does not, however, bar a claim for “purely prospective” relief. Olivier, 146 S. Ct. at 920.

13

factual basis of the conviction is temporally and conceptually distinct from the claim being

brought.81 The court must determine whether success on the claim requires negation of an element

of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the

criminal conviction.82

Despite the limited allegations and information available, the Court can determine that

Heck bars Plaintiff’s false arrest and excessive force claims. As to the false arrest claim, “§ 1983

unlawful arrest claims cannot lie in cases in which ‘a state defendant is convicted of and sentenced

for the crime of resisting arrest . . . because he would have to negate an element of the offense of

which he has been convicted.’”83 To challenge his conviction for Resisting an Officer via his false

arrest claim, Plaintiff would have to negate the “lawful arrest” element of LA. REV. STAT. §

14.108(A).84 As to his excessive force claim, while same is not necessarily Heck barred if

“temporarily and conceptually distinct” from his conviction, Plaintiff’s claim and his conviction

for Resisting an Officer “stem from a single interaction.”85 Thus, his excessive force claim can

only be read as an attack on the validity of his conviction for Resisting an Officer. Therefore, it is

barred by Heck.86

Although it is likely that Plaintiff’s unlawful stop and unreasonable search claims

arerelated to Plaintiff’s conviction for Possession of Marijuana, that is not entirely clear.

Moreover, an unreasonable search claim undermines the validity of a conviction and is Heck-

barred when “evidence that was a direct or indirect product of the alleged unlawful search and

81 See, e.g., Clark v. Dep't of Pub. Safety & Corr., 141 F.4th 653, 660 (5th Cir. 2025) (quoting Bush v. Strain, 513

F.3d 492, 498 (5th Cir. 2008)).

82 Aucoin vs. Cupil, 958 F.3d 379, 382 (5th Cir. 2020) (quoting Bush, 513 F.3d at 497).

83 Brown v. Sudduth, 255 F. App’x 803, 806 (5th Cir. 2007) (citation modified) (quoting Heck, 512 U.S. at 487 n.6).

84 See LA. REV. STAT. § 14:108(A).

85 Walter v. Horseshoe Ent., 483 F. App’x 884, 887 (5th Cir. 2012) (citation omitted).

86 Id.

14

seizure was presented in the plaintiff's criminal conviction proceeding.”87 If, however, the illegally

obtained evidence is admissible under the independent source or inevitable discovery doctrine, or

if the evidence's admission is deemed harmless, Heck does not operate to bar the claim.88 An

unlawful stop claim can undermine the validity of a conviction for the same reason (i.e., illegally

obtained evidence was presented during the criminal proceedings).89 But if the evidence is

admissible or its admission is harmless, Heck does not bar the claim.90 The record is not

sufficiently developed to determine whether any evidence allegedly obtained illegally was

admitted and, if so, based on an independent source or the inevitable discovery doctrine or whether

the admission of same was harmless. Thus, the Court cannot determine if Heck applies to these

claims.91

Heck thus applies to some, and may apply to all, of Plaintiff’s Fourth Amendment claims

for damages against Officer Calvin.92 But at this early stage of the case, it is uncertain whether

Heck bars all of Plaintiff’s claims.

E. Grounds for Early Dismissal

87 Blimline v. Thirty Unknown Emps. Of the Sec. & Exch. Comm’n, 757 F. App’x 299, 302 (5th Cir. 2018) (citing

Heck, 512 U.S. at 487 n.7).

88 Id.

89 See Ballenger v. Owens, 352 F.3d 842, 847 (4th Cir. 2003) (“Ballenger challenges the traffic stop and asserts that

the search that followed was illegal as the fruit of an illegal stop. If Ballenger succeeds in demonstrating in this § 1983

case that his traffic stop was illegal, the illegality of the search would require the suppression of the evidence seized.

. . . [A]nd were that evidence to be suppressed by reason of the illegality of the search, the conviction could not be

salvaged.” (emphasis in original)).

90 Cf. id. (“Ballenger has advanced no circumstances, nor conceived of any to our knowledge, to suggest how the state

could convict him of cocaine trafficking if the automobile stop were to have been found illegal. In the particular

circumstances of this case, there could be no independent source for the cocaine and no inevitable discovery of it.

Moreover, if the evidence obtained by the search were suppressed, there could be no harmless error because there

would be no evidence of illegal drug trafficking.”).

91 Blimline, 757 F. App’x at 302 (finding district court erred in dismissing claims based on Heck).

92 See Thomas v. Pohlmann, 681 F. App’x 401, 406 (5th Cir. 2017) (“We have specifically noted that false arrest . . .

claims challenge the existence of probable cause and, thus, by their essence are collateral attacks on a criminal

judgment's validity.” (quoting Cormier v. Lafayette City-Par. Consol. Gov't, 493 F. App’x 578, 583 (5th Cir. 2012)

(per curiam))); Jackson v. Vannoy, 49 F.3d 175, 176 (5th Cir. 1995) (applying Heck to an unlawful stop claim) (per

curiam); Blimline, 757 F. App’x at 302; Bush, 513 F.3d at 497 (“[T]he Heck principle applies to § 1983 excessive

force claims . . . .”).

15

The Fifth Circuit requires a court to address dismissal of immune defendants and cull those

claims that cannot proceed under § 1983 without regard to any Heck bar.93

1. Eleventh Amendment Immunity

The Eleventh Amendment provides: “The judicial power of the United States shall not be

construed to extend to any suit in law or in equity, commenced or prosecuted against of the United

States by Citizens or Subjects of any Foreign State.”94 This language has been construed as an

immunity that bars actions in federal court against state governments by anyone other than the

federal government or another state95 for “retrospective relief in the form of a money judgment in

compensation for past wrongs.”96 Eleventh Amendment immunity extends to bar “suits against

state officials or agencies that are effectively suits against the state,”97 such as official-capacity

claims for damages against state-court judges.98 “[U]nless the state has waived sovereign

immunity or Congress has expressly abrogated it, the Eleventh Amendment bars the suit.”99

Louisiana has declined to waive sovereign immunity,100 § 1983 “does not abrogate” Eleventh

93 See Busick v. City of Madison, 90 F. App’x 713, 714 (5th Cir. 2004) (recognizing that the district court should

consider grounds for dismissal other than Heck); see also Boyd v. Biggers, 31 F. 3d 279, 284 (5th Cir. 1994) (holding

application of absolute immunity must be considered as a threshold matter prior to applying Heck).

94 Neuwirth v. La. State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988) (quoting U.S. CONST. amend. XI).

95 Id. (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102 (1984)).

96 Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988).

97 City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019) (citing Edelman v. Jordan, 415 U.S. 651, 663-69 (1974)

(extending sovereign immunity to state officers in their official capacities); Ford Motor Co. v. Dep’t of Treasury, 323

U.S. 459, 463-64 (1945) (barring suits in which the state is a real party in interest, despite not being a named

defendant)).

98 See Davis v. Tarrant County, 565 F.3d 214, 228 (5th Cir. 2009) (“Texas judges are entitled to Eleventh

Amendment immunity for claims asserted against them in their official capacities as state actors.”); Cain v. City of

New Orleans, 281 F. Supp. 3d 624, 646 (E.D. La. 2017) (Vance, J.) (observing that Eleventh Amendment immunity

would apply to a suit for retrospective relief against Orleans Parish Criminal District Court judges), aff'd sub

nom., Cain v. White, 937 F.3d 446 (5th Cir. 2019); Summers v. Louisiana, No. 13-4573, 2013 WL 3818560, at *4

(E.D. La. July 22, 2013) (Africk, J.) (finding that “an official-capacity claim against [a Louisiana judge] would in

reality be a claim against the state itself, and any such claims would be barred by the Eleventh Amendment”); Klein

v. Medley, No. 25-1047, 2025 WL 2986694, at *5 (E.D. La. Oct. 23, 2025); Brennan, 834 F.2d at 1253.

99 Paxton, 943 F.3d at 997 (citing AT&T Commc’ns v. Bellsouth Telecomms. Inc., 238 F.3d 636, 644-45 (5th Cir.

2001)).

100 Fletcher v. La. Dep’t of Transp. & Dev., 19 F.4th 815, 818 (5th Cir. 2021) (“While Louisiana may have waived

sovereign immunity with respect to some claims, LA. CONST. art. I, § 26 makes it clear the State has not waived its

16

Amendment immunity.101

A state official in his official capacity is not considered a “person” subject to suit under

§ 1983.102 Any money judgment against a Louisiana judge in her official capacity would be

satisfied out of the state treasury rendering Louisiana liable for any alleged wrongs.103 Thus, the

§ 1983 claim against Judge Miller in her official capacity is considered a claim against the State

of Louisiana itself and is consequently barred by the Eleventh Amendment.104 Because this

immunity deprives a federal court of jurisdiction to hear claims to which it applies,105 the claim

should be dismissed without prejudice for seeking monetary relief against an immune defendant.106

2. Judicial Immunity

Judicial immunity is an immunity from suit, not just immunity from the ultimate

assessment of damages,107 available to a judicial officer when sued in her personal capacity.108

Although unfairness and injustice to a litigant may occasionally result, “it is a general principle of

sovereignty within the federal system.” (quoting Holliday v. Bd. of Supervisors of LSU Agric. & Mech. Coll., 149 So.

3d 227, 229 (La. 2014))).

101 Lewis v. La. State Univ., No. 21-198, 2021 WL 5752239, at *11 (M.D. La. 2021) (Morgan, J.) (citing Quern v.

Jordan, 440 U.S. 332, 338-42 (1979)).

102 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (suit against a state official in official capacity is not a

suit against the individual person but a suit against the official’s office); Boyd v. Lasher, No. 09-7645, 2010 WL

677663, at *2 (E.D. La. Feb. 24, 2010) (order adopting R&R) (a judge is a state official and state officials acting in

that capacity are not considered to be “persons” within the meaning of § 1983); McCloud v. Craig, No. 09-3287, 2009

WL 2515609, at *5 (E.D. La. Aug. 17, 2009) (same).

103 LA. REV. STAT. § 13:5108.1; Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 188 (5th Cir. 1986).

104 Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 n.3 (5th Cir. 1996) (“Suits against state officials in their official

capacity are considered to be suits against the individual’s office, and so are generally barred as suits against the state

itself.”); Rackley v. Louisiana, No. 07-504, 2007 WL 1792524, at *3 (E.D. La. Jun. 21, 2007) (suit against Louisiana

state judge in an official capacity is suit against the State); Voisin’s Oyster House, 799 F.2d at 188; Doris v. Van Davis,

No. 08-4138, 2009 WL 382653, at *2 (E.D. La. Feb. 12, 2009) (judgment against a Louisiana state judge in official

capacity would be satisfied out of the state treasury rendering a claim against the judge a claim against the state).

105 Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100 (1984)).

106 Id.

107 Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam).

108 Laird v. Spencer, No. 20-30237, 2025 WL 79826, at *2 & n.9 (5th Cir. Jan. 13, 2025) (per curiam) (citing Turner,

229 F.3d at 483 (explaining that “defenses such as absolute quasi-judicial immunity, that only protect defendants in

their individual capacities, are unavailable in official-capacity [§ 1983] suits”)); see also Mid-City Neighborhood Org.

v. Gusman, No. 18-3705, 2018 WL 4846632, at *4 (E.D. La. Oct. 5, 2018) (Vance, J.) (citing Cain v. City of New

Orleans, 184 F. Supp. 3d 379, 391 n.54 (E.D. La. 2016) (in the context of claims against state judicial officers, noting

that “[a]bsolute immunity does not apply to claims against a defendant in his official capacity.”)).

17

the highest importance to the proper administration of justice that a judicial officer, in exercising

the authority vested in h[er], shall be free to act upon on h[er] own convictions, without

apprehension of personal consequences to h[er]self.”109 Whether judicial immunity applies is a

threshold question to be determined as early as possible in a proceeding,110 and only a judge’s

actions, “not intent,” are relevant to resolve that question.111 Allegations of bad faith,

maliciousness, or corruption are insufficient to deprive a judge of immunity.112

There are two exceptions to judicial immunity. First, “a judge is not immune from liability

for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.”113 The law

distinguishes between judicial acts and the administrative, legislative, or executive functions that

it may occasionally assign to a judge; thus, an act is not “judicial” merely because a judge did the

act, even if she does it frequently.114 Courts consider four factors to determine whether an action

is within a judicial capacity:

(1) whether the precise act complained of is a normal judicial function; (2) whether

the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's

chambers; (3) whether the controversy centered around a case pending before the

court; and (4) whether the acts arose directly out of a visit to the judge in his official

capacity.115

109 Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (quoting Mireles, 502 U.S. at 10).

110 Villegas v. Galloway, 458 F. App’x 334, 337 (5th Cir. 2012) (citing Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir.

1994) (“[I]t remains appropriate for district courts to consider the possible applicability of the doctrine of absolute

immunity . . . as a threshold matter.”); Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995) (absolute immunity is a

threshold matter that should be determined as early as possible in a proceeding)).

111 Malina v. Gonzalez, 994 F.2d 1121, 1125 (5th Cir. 1993).

112 Ballard, 413 F.3d at 515 (quoting Mireles, 502 U.S. at 11); see also Holloway v. Walker, 765 F.2d 517, 522 (5th

Cir. 1985) (“[M]ere allegations that [a judge] performed . . . acts pursuant to a bribe or conspiracy will not be sufficient

to avoid the immunity.” (citing Sparks v. Duval Ranch Co., 604 F.2d 976 (5th Cir. 1979) (en banc), aff’d sub nom.,

Dennis v. Sparks, 449 U.S. 24 (1980))).

113 Bowling v. Roach, 816 F. App’x 901, 906 (5th Cir. 2020) (quoting Mireles, 502 U.S. at 11-12).

114 Jones v. King, 148 F.4th 296, 300 (5th Cir. 2025) (citations omitted).

115 Morrison v. Walker, 704 F. App’x 369, 373 (5th Cir. 2017) (quoting Ballard, 413 F.3d at 515).

18

They are “broadly construed in favor of immunity,”116 thus application of immunity may be

appropriate even if one or more of these factors is not met.117

Second, “a judge is not immune from actions, though judicial in nature, taken in the

complete absence of all jurisdiction,”118 rather than just in excess of jurisdiction.119 As the

Supreme Court has explained, there is a meaningful difference between the two:

In [Bradley v. Fisher], the Court illustrated the distinction between lack of

jurisdiction and excess of jurisdiction with the following examples: if a probate

judge, with jurisdiction over only wills and estates, should try a criminal case, he

would be acting in the clear absence of jurisdiction and would not be immune from

liability for his action; on the other hand, if a judge of a criminal court should

convict a defendant of a nonexistent crime, he would merely be acting in excess of

his jurisdiction and would be immune.120

An error then is insufficient to deprive a judge of immunity.121 Rather, for a judge to be deprive

on immunity under this exception, she must have acted despite “clearly lack[ing] all

jurisdiction.”122 The applicability of this exception depends on whether the judge had “some

subject matter jurisdiction” over the case; if she does, judicial immunity applies.123

Plaintiff has not alleged facts to suggest that either exception applies to deprive Judge Miller

of judicial immunity from Plaintiff’s § 1983 personal-capacity claim against her. The claim should

be dismissed with prejudice for being frivolous.124

116 Jones, 148 F.4th at 301 (quoting Ballard, 413 F.3d at 515).

117 Morrison, 704 F. App’x at 373 (citing Malina, 994 F.2d at 1124).

118 Bowling, 816 F. App’x at 906 (quoting Mireles, 502 U.S. at 11-12).

119 Kemp ex rel. Kemp v. Perkins, 324 F. App’x 409, 412-13 (5th Cir. 2009) (“There is a meaningful distinction

between judicial acts which occur in ‘excess of jurisdiction’—which receive judicial immunity—and those which take

place wholly lacking jurisdiction—which do not.” (citing Stump v. Sparkman, 435 U.S. 349, 357 n.7 (1978) (quoting

Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352 (1871)))); see also Brewer v. Blackwell, 692 F.2d 387, 396 n.12 (5th

Cir. 1982).

120 Stump, 435 U.S. at 357 n.7 (quoting Bradley, 80 U.S. at 352).

121 Bowling (quoting Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995)).

122 Kemp, 324 F. App’x at 412 (emphasis in original) (quoting Holloway, 765 F.2d at 523 (quoting Bradley, 80 U.S.

at 352))).

123 Id. (quoting Adams v. McIlhany, 764 F.2d 294, 298 (5th Cir. 1985) (citing Bradley, 80 U.S. at 352)).

124 Boyd, 31 F.3d at 284-85 (affirming § 1915 dismissal of pro se plaintiff’s § 1983 claims for damages brought against

judge based on judicial immunity and finding the dismissal of the claims “with prejudice as frivolous” proper); Hunter

v. Rodriguez, 73 F. App’x 768, 770 (5th Cir. 2003) (“[A] dismissal based on absolute immunity should generally

19

3. Prosecutorial Immunity

A prosecutor has absolute immunity for § 1983 claims brought against him in his personal

capacity.125 But his actions are not automatically immunized “because they are performed by a

prosecutor.”126 Rather, courts look “to the nature of the function performed.”127

The Fifth Circuit has recognized prosecutors have absolute immunity “for initiating and

pursuing a criminal prosecution, for actions taken in [their] role as ‘advocate for the state’ in the

courts, or when [their] conduct is ‘intimately associated with the judicial phase of the criminal

process.’”128 Those actions are still immunized even when the prosecutor acted “maliciously,

wantonly or negligently.”129 On the other hand, a prosecutor does not have absolute immunity

“for acts performed in the course of ‘administrative duties and those investigatory functions that

do not relate to an advocate’s preparation for the initiation of a prosecution for judicial

proceedings.’”130 “The timing of a prosecutor’s actions” is not dispositive.131

The Fifth Circuit has recognized that prosecutorial immunity applies for allegations of

suppression of exculpatory material and conspiracy against the plaintiff.132 But it has also

recognized coercing witnesses to give false testimony and fabricating evidence in general is not

be with prejudice. (emphasis in original) (citing Boyd, 31 F.3d at 285)); Graves v. Hampton, 1 F.3d 315, 319 (5th Cir.

1993) (holding that dismissal with prejudice without leave to amend is proper when claims are subject to an obvious

meritorious defense), overruled in part on other grounds, Arvie v. Broussard, 42 F.3d 249 (5th Cir. 1994).

125 Singleton v. Cannizzaro, 956 F.3d 773, 778 n.3, 779 (5th Cir. 2020) (citing Imbler v. Pachtman, 424 U.S. 409

(1976)).

126 Loupe v. O’Bannon, 824 F.3d 534, 538-39 (5th Cir. 2016) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993)).

127 Id. at 539 (quoting Buckley, U.S. at 269).

128 Id. (quoting Hart v. O’Brien, 127 F.3d 424, 439 (5th Cir. 1997), abrogated on other ground recognized by Spivey

v. Robertson, 197 F.3d 772, 775-76 (5th Cir. 1999)).

129 Rykers v. Alford, 832 F.2d 895, 897 (5th Cir. 1987) (quoting Morrison v. City of Baton Rouge, 761 F.2d 242, 248

(5th Cir. 1985)).

130 Loupe, 824 F.3d at 539 (quoting Buckley, 509 U.S. at 273; Hoog-Watson v. Guadalupe, 591 F.3d 431, 438 (5th

Cir. 2009)).

131 Wearry v. Foster, 33 F.4th 260, 268 (5th Cir. 2022) (quoting Singleton, 956 F.3d at 783).

132 Reynolds v. Titus County, No. 23-40700, 2024 WL 837040, at *2 (5th Cir. Feb. 28, 2024) (citing Cousin v. Small,

325 F.3d 627, 635 (5th Cir. 2003) (per curiam) (noting that a prosecutor’s suppression of exculpatory evidence is

shielded by absolute immunity)).

20

protected by absolute immunity because the function performed is “evidence creation, which is

not part of the advocate’s role, but a corruption of the investigator’s function of ‘searching for

clues and corroboration.’”133

Liberally construing Plaintiff’s due process claims as asserted against DA Connick in his

personal capacity (even though they do not satisfy the § 1983 pleading standard),134 Plaintiff has

failed to allege facts that would preclude absolute prosecutorial immunity from barring the claims.

He alleges that DA Connick used “false statements and misleading evidence” during criminal

proceedings. ECF No. 7-1 at 1. Despite these allegations, Plaintiff does not identify any statement

or evidence nor explain why they are “false” and “misleading,” and because the Court does not

accept such conclusory statements and naked assertions devoid of further factual enhancement as

true, Plaintiff’s allegations do not bar absolute prosecutorial immunity.135 The claim should be

dismissed with prejudice for being frivolous.136

4. Statute Of Limitations

There is no federal statute of limitations for actions brought under § 1983, so federal courts

borrow the forum state's limitations period.137 “[T]he statute of limitations for a Section 1983

133 Wearry, 33 F.4th at 267-68 (quoting Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001); Buckley, 504 U.S. at

273).

134 See Armstrong v. Ashley, 60 F.4th 262, 274 (5th Cir. 2023) (“[A] § 1983 plaintiff ‘must plead that each Government-

official defendant, though the official's own individual actions, has violated the Constitution.’” (quoting Iqbal, 556

U.S. at 676).

135 See Darden v. Vines, No. 22-404, 2023 WL 11830304, at *5 (W.D. La. Mar. 10, 2023) (quoting Harmon v. City of

Arlington, 16 F.4th 1159, 1162-63 (5th Cir. 2021)) (finding prosecutors entitled to absolute immunity despite

allegations of evidence fabrication and witness coercion because plaintiff provided only conclusory statements), R.&R.

adopted, 2023 WL 6178709 (W.D. La. Sept. 21, 2023), appeal dismissed, No. 23-30700, 2024 WL 1433633 (5th Cir.

Feb 16, 2024).

136 Boyd, 31 F.3d at 85 (affirming § 1915 dismissal of pro se plaintiff’s § 1983 claims for damages brought against

prosecutor based on prosecutorial immunity and finding the dismissal of the claims “with prejudice as frivolous”

proper); Hunter, 73 F. App’x at 770 (“[A] dismissal based on absolute immunity should generally be with prejudice.

(emphasis in original) (citing Boyd, 31 F.3d at 285)); Hampton, 1 F.3d at 319 (holding that dismissal with prejudice

without leave to amend is proper when claims are subject to an obvious meritorious defense).

137 Owens v. Okure, 488 U.S. 235, 239, 250-51 (1989).

21

action is a state’s general or residual personal injury statute of limitations.”138 In Louisiana, that

period is one year for acts that occurred before July 1, 2024.139

Federal law, however, determines when a cause of action under § 1983 accrues.140 The

statute of limitations on a claim for false arrest begins to run at the time the claimant becomes

detained pursuant to the legal process.141 Likewise, the limitations period for unreasonable

search/seizure and excessive force claims commences when plaintiff knew or had reason to know

he was injured.142 There is no basis to depart from this general standard for a unlawful stop

claim.143 Thus, regardless of the applicability of Heck to Plaintiff’s § 1983 claims of unlawful

stop, false arrest, unreasonable search, and excessive force against Officer Calvin, the claims are

untimely. As a direct participant in the August 5, 2023, encounter with Officer Calvin, Plaintiff

clearly knew of the facts on which he bases the claims on that date. The prescriptive period thus

lapsed on August 5, 2024. As such, his claims are prescribed on the face of the complaint.

Prescribed claims are properly dismissed with prejudice and without leave to amend because they

are legally frivolous.144

138 Brown v. Pouncy, 93 F.4th 331, 334 (5th Cir.) (citing Owens, 488 U.S. at 236), cert. denied, 145 S. Ct. 170 (2024).

139 In 2024, the Louisiana Legislature extended Louisiana’s one-year statute of limitations, or prescriptive period, for

torts to two years. LA. CIV. CODE art. 3493.1. However, this change has “prospective application only,” and applies

only “to delictual actions arising after the [July 1, 2024] effective date of [Act 423].” 2024 La. Sess. Law Serv. Act

423 (H.B. 315). The former one-year prescriptive period under LA. CIV. CODE art. 3492 remains applicable. 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).

140 Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993) (per curiam) (citing Lavellee v. Listi, 611 F.2d 1129, 1130

(5th Cir.1980)).

141 Wallace, 549 U.S. at 388.

142 See Humphreys v. City of Ganado, 467 F. App'x 252, 255 (5th Cir. 2012); Moore v. McDonald, 30 F.3d 616, 620-

21 (5th Cir. 1994); Morrill v. City of Denton, 693 F. App’x 304, 306-07 (5th Cir. 2017).

143 See Gartrell, 981 F.2d at 257 (“Under federal law, a cause of action accrues when the plaintiff knows or has reason

to know of the injury which is the basis of the action.”).

144 Hampton, 1 F.3d at 319 (holding that dismissal with prejudice without leave to amend is proper when claims are

subject to an obvious meritorious defense, such as a peremptory time bar); Pham v. Unidentified DEA Agent, No. 22-

292, 2022 WL 1008239, at *2 (E.D. La. Mar. 14, 2022) (citing Brown v. Pool, 79 F. App'x 15, 17 (5th Cir.

2003); Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998); Payton v. Normand, No. 21-1325, 2022 WL

412720 (E.D. La. Jan. 21, 2022), R.&R. adopted, 2022 WL 393628 (E.D. La. Feb. 9, 2022) (Vance, J.)

(dismissing Section 1983 complaint under 28 U.S.C. § 1915(e) as legally frivolous because the claims were time-

barred)), R.&R. adopted, 2022 WL 1001452 (E.D. La. Apr. 4, 2022).

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5. Failure to State a Monell Claim

To state a Monell claim, a plaintiff must plausibly allege three elements: “(1) a

policymaker; (2) an official policy; and (3) a ‘violation of constitutional rights whose moving force

is the policy or custom.’”145 An “official policy” is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and

promulgated by the municipality's lawmaking officers or by an official to whom

the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although

not authorized by officially adopted and promulgated policy, is so common and

well settled as to constitute a custom that fairly represents municipal policy.146

A Louisiana district attorney sued in his official capacity is not entitled to Eleventh Amendment

immunity147 and is the proper defendant for a Monell claim based on any alleged misconduct of

his office.148

Plaintiff has failed to state a Monell claim against DA Connick in his official capacity

because he has failed to allege any facts to support the requisite elements. Such failure generally

should result in a dismissal of the claim without prejudice. But considering Plaintiff asserts this

claim based on purely isolated alleged violations, he cannot establish the official policy element.149

Thus, amendment is futile; the claim should be dismissed with prejudice.

145 Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 280 (5th Cir. 2015) (quoting Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell, 436 U.S. at 694)).

146 Id. (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam)).

147 Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (“The rule in this circuit is that a Louisiana

district attorney, sued in his or her official capacity, is a local government official who is not entitled to Eleventh

Amendment immunity.”).

148 See Kimble v. Jefferson Par. Sheriff’s Off., No. 22-30078, 2023 WL 1793876, at *3 (5th Cir. Feb. 7, 2023) (citing

Connick v. Thompson, 563 U.S. 51, 54, 60 (2011) (analyzing lawsuit against “Connick, in his official capacity as the

Orleans Parish District Attorney,” under municipal liability principles)); Hudson v. City of New Orleans, 174 F.3d

677, 680 (5th Cir. 1999).

149 See Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 753 (5th Cir. 2023) (“This circuit has consistently rejected the

notion that one-off actions constitute a policy.” (citing Piotrowski, 237 F.3d at 581; Bennett v. City of Slidell, 728 F.2d

762, 768 n.3 (5th Cir. 1984) (“Isolated violations are not the persistent, often repeated, constant violations that

constitute custom and policy.”)).

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IV. RECOMMENDATION

Accordingly, for the foregoing reasons,

IT IS RECOMMENDED that Plaintiff Curtis Lavson Mitchell’s § 1983 claims against

Defendant Officer Linden Calvin of the Gretna Police Department and § 1983 personal-capacity

claims against Defendants Judge Nancy A. Miller of the 24th Judicial District Court and District

Attorney Paul Connick of Jefferson Parish be DISMISSED as frivolous.

IT IS FURTHER RECOMMENDED that Plaintiff’s § 1983 official-capacity claim

against Defendant Judge Miller be DISMISSED WITHOUT PREJUDICE for seeking monetary

relief against an immune defendant.

IT IS FURTHER RECOMMENDED that Plaintiff’s § 1983 official-capacity claim

against Defendant DA Connick be DISMISSED for failure to state a claim.

ALTERNATIVELY, IT IS FURTHER RECOMMENDED that Plaintiff’s false arrest

and excessive force claims be dismissed with prejudice to their being asserted again until the Heck

conditions are met, but leaving Plaintiff’s unlawful stop and unreasonable search claims for further

development to determine whether same are likewise subject to dismissal under Heck.

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

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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 12th day of June, 2026.

DO PHILL i CURRAULT

UNITED STATES MAGISTRATE JUDGE

0 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.

25