Furr v. City of Baker

THOMAS L. FURR v. CITY OF BAKER, et al

CIVIL ACTION NO. 15-426-JWD-EWD

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 15, 2017

RULING AND ORDER

I. Introduction

This matter comes before the Court on Defendants' Motion to Dismiss Pursuant to Rule 12(b)(5) and 12(b)(6). (Doc. 32.) The motion is opposed by Plaintiff Thomas Furr ("Plaintiff").¹ (Doc. 36.) Defendants did not file a reply. After careful consideration of the law, facts, and arguments of the parties, for the reasons set forth below, Defendants' Motion is GRANTED IN PART and DENIED IN PART.

II. Background

a. Factual background

For the past thirty years, Plaintiff's property has been used for construction storage. (Doc. 3 at 2.) At the entrance of Plaintiff's property, there are "No Trespassing" signs posted, as well as a sign listing the Ten Commandments. (Id.) According to Plaintiff, his brother reported to him that the City of Baker ordered M.R.I. LLC d/b/a Netterville's Towing and Auto (owned by Paul Hickman, hereinafter "Netterville's") to enter Plaintiff's property and tow away several vehicles. (Doc. 3-1 at 1.) Prior to the City of Baker ordering the towing company to remove Plaintiff'svehicles, Plaintiff claims that he repeatedly, but unsuccessfully, attempted to reach the Code Enforcement Officer, William Johnson. (Id.)

On June 30, 2014, "agents and employees of the City of Baker" including Leroy White and Bill Johnson allegedly entered Plaintiff's property without a warrant, seized and stole three trucks and a car. (Doc. 3 at 2.) According to his complaint, Plaintiff alleges that these acts constitute:

(a) A violation of Louisiana Revised Statute § 67:26, regarding theft of a motor vehicle;

(b) Disposal of property and malicious intent in violation of Louisiana Revised Statute § 72.4; and

(c) Obstruction of justice by Baker City Policy Department by refusing to arrest vandals who had previously trespassed on Plaintiff's property.

(Id. at 6.) In addition to this and other state law violations, Plaintiff also alleges a Section 1983 claim, through which he alleges constitutional violations by various municipal actors.

Furthermore, Plaintiff alleges that neither he, nor any of his family members received any notice of the City of Baker's intent to seize the vehicles. (Doc. 3-1 at 2.) In failing to notify Plaintiff of its intention, Plaintiff alleges that the City of Baker violated Code of Ordinance Section 20-96, regarding "Junked Vehicles and Abandoned Property." (Id.) Additionally, Plaintiff alleges that the vehicles in the City of Baker's possession are exempt from the zoning ordinance authorizing the City to tow them because of their "antique" classification. (Doc. 3 at 5—6.)

In an amended complaint, Plaintiff also alleges that on May 6, 2014, officers of the Baker City Police, acting on the directions of Police Chief Mike Knaps, entered Plaintiff's property without a warrant, "passed through posted signs, cut the lock on his fence maced his [disabled younger brother's] dog, busted down his [brother's] door down, and tazed [sic] [his younger brother] while he was laying down in his bed" and arrested him in violation of the Fourth and Fourteenth Amendments. (Id. at 7.) Plaintiff's younger brother was found innocent of all charges against him arising out of the May 6, 2014 arrest. (Id.)

b. Procedural background

On June 30, 2015, Plaintiff Thomas Furr filed a complaint against "(a) the City of Baker, (b) the employees, agents, representative and assignees of the City of Baker, namely John Does 1 through 50, and (c) XYZ Insurance Company and all of its agents, representatives and assignees which insures the City of Baker." (Doc. 1 at 1.) In his complaint, Plaintiff alleged that on June 30, 2014, Defendants violated his constitutional rights and violation various state tort laws. (Id. at 2.) On July 30, 2015, Plaintiff amended his complaint to include for the first time the allegations relating to the arrest of Plaintiff's disabled younger brother, Rodger Furr, as outlined above. (Doc. 3 at 6—7.)

On July 30, 2015, Plaintiff amended his complaint to add as Defendants William Johnson, Paul Hickman, and Netterville's. (Doc. 3 at 1—2.) On February 10, 2016, Plaintiff filed an executed summons into the record with respect Johnson, Hickman, and Netterville's. (Doc. 15.) On February 12, 2016, Plaintiff filed the City's executed summons into the record. (Doc. 16.)

On October 30, 2015, the Court granted leave for Plaintiff to amend his complaint once again to substitute John Does 1—11 for the following individuals: Harold Rideau, Darnell Waites, Mike Knaps, Robert Young, John Givens, Joyce Burges, Pete Heine, Charles Vincent as well as naming the City of Baker Insurance Company as Defendants.² (Docs. 10, 11.) On November 1, 2016, Plaintiff issued a summons upon Burges, City of Baker Insurance, Givens, Heine, Rideau, Vincent, Waites, and Young. (Doc. 12.) On March 10, 2016, Plaintiff filed an executed summons with respect to Heine, Rideau, and Waites. (Doc. 17.) The record reflects that Plaintiff has not filed an executed summons with respect to Knaps, Young, Givens, Burges, Vincent, or the City of Baker Insurance Company.

On November 29, 2016, all Defendants moved to dismiss the complaint pursuant to Rule 12(b)(5) and 12(b)(6), raising two grounds for relief: first, that some of the named defendants have not been properly served and thus they are entitled to dismissal under Rule 12(b)(5). (See Doc. 32.) Second, that with respect to all Defendants except for the City, the amendments to Plaintiff's complaint do not relate back; his claims have prescribed, and thus they are subject to dismissal pursuant to Rule 12(b)(6). (See id.) Plaintiff filed a memorandum in opposition (Doc. 36.) Defendants did not file a reply.

III. Discussion

a. Standard

1. Rule 12(b)(5)

If a plaintiff fails to properly effectuate service, the defendant may seek to dismiss the plaintiff's complaint under Rule 12(b)(5). See Fed. R. Civ. P. 12(b)(5) (authorizing a court to dismiss a civil action when service of process is inadequate). "A motion to dismiss pursuant to Rule 12(b)(5) turns on the legal sufficiency of the service of process." Holly v. Metro. Transit Auth., 213 Fed. App'x. 343, 344 (5th Cir. 2007). The burden of demonstrating the validity of service when an objection is made lies with the party making service. Id. (citing Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).

When a challenge is made to the adequacy of service of process, the serving party bears the burden of proving the validity of service or the existence of good cause for failing to effect service in a timely manner. System Sign Supplies v. U.S. Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990); Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1990). The fact that the plaintiff is pro se does not excuse the failure to properlyeffect service of process. System Signs Supplies, 903 F.2d at 1013; Dupre v. Touro Infirmary, 235 F.3d 1340 (5th Cir. 2000) (unpub'd).

2. Rule 12(b)(6)

A. General standard

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court expounded upon the Twombly standard, explaining that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. It follows that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show [n]'—'that the pleader is entitled to relief.' Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). Assessing the certainty of facts supporting a plaintiff's claim, "the court is permitted to look at evidence in the record beyond simply those facts alleged in the complaint and its proper attachments." Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238) (5th Cir. 2009)).

B. Pro se standard

"A document filed pro se is to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94, 127 S. Ct. at 2200 (citations omitted). But even a pro secomplainant must plead "factual matter" that permits the court to infer "more than the mere possibility of misconduct." Iqbal, 129 S. Ct. at 1950. The court need not accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Id. at 1949-50 (internal quotation marks omitted).

b. Parties' Arguments

i. Defendants' Motion to Dismiss (Doc. 32)

1. Plaintiff's claims have prescribed and his Amendments Do Not Relate Back

Defendants argue that the claims against all Defendants (except for the City of Baker) have prescribed and thus should be dismissed under Rule 12(b)(6). (Doc. 32-1 at 3.)

A. No Mistake of Identity

On June 30, 2015, Plaintiff filed his original complaint concerning the incident that occurred on June 30, 2014; however, he failed to identify by name the individual defendants involved in this case. (Id.) Defendants claim that when Plaintiff filed his amended complaint, naming Defendants William Johnson, Paul Hickman, Harold Rideau, Darnell Waites, Mike Knaps, Robert Young, John Givens, Joyce Burges, ...