Davis v. Sheriff of Orleans Parish

• Court: District Court, E.D. Louisiana
• Decided: August 18, 2025
• Docket: 2:24-cv-00637
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

CALVIN DAVIS CIVIL ACTION

VERSUS NO. 24-637

SHERIFF OF ORLEANS PARISH, ET AL. SECTION: “P”(1)

ORDER AND REPORT AND RECOMMENDATION

Before the Court are the Motion to Refix Service and/or Contempt of Court (rec. doc. 24) and the Motion to Compel Defendants to Accept Service of Proceedings (rec. doc. 25) filed by Plaintiff Calvin Davis. The United States Marshal was unable to serve Defendant Melody Alexander Therence based on the information Plaintiff provided. Plaintiff stated in his Complaint that Therence was a nurse who treated him when he was incarcerated. (Rec. docs. 3, 17). In the second motionin bteerfo arleia this Court, Plaintiff argues that Therence, employed by Wellpath, a company that, , provides medical and mental healthcare to jails and prisons, can be served at 2800 Perdido Street, New Orleans, LA 70119, the address of the Orleans Parish Justice Center. (Rec. docs. 21, 22, 25). That is precisely where the United States Marshal attempted service on Therence, only to be informed by Tracey Como that Therence is not an employee of the OPJC. Specifically, the Marshal’s unexecuted return states: “Tracey Como – Refused service stated not an employee of Orleans. Refused to provide information further.” (Rec. doc. 22). Como is not a Defendant in this lawsuit and had no responsibility to accept service on behalf of a non-employee. Neither is she Therence’s agent for service of process. Indeed, Wellpath no longer provides medical and 1 mental healthcare services at the OPJC. As Plaintiff is aware, it is Plaintiff’s responsibility to provide all information necessary for the United States Marshal to effect service. This Court has given Plaintiff numerous opportunities to find and to serve Defendants – including Therence – in this lawsuit, which has been pending since March 2024. (Rec. docs. 11, 14, 16, 19, 23). This Court ultimately warned Plaintiff that should he fail to comply with the Court’s orders and fail to show good cause for not doing so, Plaintiff’s claims against Therence – the only remaining Defendant – may be dismissed pursuant to Fed. R. Civ. P. 4(m). (Rec. doc. 23). Plaintiff has failed to provide the Court with the proper address at which to serve the last remaining Defendant in this lawsuit after ample opportunities to do so. Instead, Plaintiff simply files motion after motion in an attempt to ask the Court to do his work for him. This has gone on for far too long.

In pertinent part, Rule 4(m) provides: must If a defendant is not served within 90 days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff – dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m) (emphasis added). Plaintiff was granted pauper status in this lawsuit. Therefore, he is entitled to have service effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). That fact, however, does

https://www.nola.com/news/courts/new-orleans-jail-to-ditch-longtime-medical-care-provider-in-pending- d1eal/article_456bca42-e24c-11ee-876e-d705ebf719c9.html not relieve Plaintiff of all responsibility regarding service. Rather, “[a]t a minimum, a plaintiff should request service upon the appropriate defendaRnotc ahnodn avt.t Demawpst otno remedy any apparent service defects of which a plaintiff has knowledge.” , 828 F.2d 1107, 1110 (5th Cir. 1987) (emphasis added). Dismissal is appropriate when service has nino tf obremena pparouppeerrliys eIdff.ected due to the inaction or dilatoriness of a plaintiff proceeding

. More than 90 days have elapsed since this lawsuit was filed in March 2024. Despite the passage of that extensive period of time, Plaintiff has not provided this Court or the United States Marshal with the information necessary to effect service on Therence. The Court gave Plaintiff notice of the fact that Therence was not served, as well as an opportunity to cure that defect. (Rec. doc. 23). Nevertheless, Plaintiff has not cured the defect by providing the necessary service information, and, as a result, the United States Marshal cannot effect service. Therefore, the failure to serve Therence results not from the actions

or inactions of the Court or the United States Marshal, but rather solely from the inaction and dilatoriness of Plaintiff. Without service on Therence, this lawsuit cannot proceed forward. Indeed, the Court cannot even ask for consent from the parties as Therence remains unserved, nor can the Court order Therence to respond to Plaintiff’s Complaint because she has not appeared nor retained counsel. Despite being given express notice that his claims against Therence could be dismissed unless Plaintiff provided the required information or showed good cause for failing to do so, Plaintiff has failed to cure any defects in service. Accordingly, this CouSrete ,f ien.dgs.,

that dismissal of those remaining claims against Therence is now appropriate. Gipson v. Keith Triplett v. LeBlanc , 678 F. ApAprm’x a2n6t4 v, .2 S6t6al d(5etrh Cir. 2017); , 642 F. AppP’xin 4e5s 7v,. 4St5. 9T-a6m0 m(5atnhy C Piar.r .2 P0r1is6o)n; , 351 Fed. App’x 958, 959 (5th Cir. 2009); , Civ. Action No. 09-3113, 2009 WL 3347384 (E.D. La. Oct. 14, 2009). Lastly, as to the unidentified individuals listed in Plaintiff’s Complaint, the Court notes that they are improper Defendants in any event. It is clear that “claims against . . .

unidentifiedA duegfuesntd va. nGtuss fmaial nto state a claim for which relief can be granted and are otherwise frivolousse.e” also Hill v. Strain , Civ. A. No. 06-3962, 2008 WL 466202, at *7 (E.D. La. Feb. 13, 2008); Francis v. Terrebonne, PCaivr.. ASh. eNroif.f '0s8 O-4ff7ic6e8, 2010 WL 111062, at *3 (E.D. La. Jan. 11, 2010); Carter v. Strain , Civ. A. No. 08-4972, 2009 WL 4730707, at *3 (E.D. La. Dec. 9, 2S0t0ar9i)t;z v. Valdez , Civ. A. No. 09-3401, 2009 WL 2390808, at *3 (E.D. La. July 31, 200B9a);n ks v. United State,s No. 3-06-CV-1926, 2007 WL 1498285, at *2 (N.D. Tex. May 21, 2007); , Civ. A. No. 05-6853, 2007 WL 1030326, at *11 (E.D. La. Mar. 28I,T 2 I0S0 O7)R. D AEcRcoErDdingly, and for the foregoing reasons,

that Motion to Refix Service and/or Contempt of Court (rec. doc. 24) aDnEdN tIhEeD Motion to Compel Defendants to Accept Service of Proceedings (rec. doc. 25) are IT. IS FURTHER RECOMMENDED DISMISSED WITHOUT PREJUDICE that Plaintiff’s Complaint be for failNuOreT tIoC Ep rOoFse RcuIGteH uTn TdOer O RBuJlEe C4T(m ).

A party’s failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge’s report and recommendation within 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 parDtoyu hgalsa sbse ve.n U sneirtveedd S wtaittehs nAouttioce. Athssaotc s.uch consequences will result from a failure to object. , 79 18th August F.3d 1415 (5th Cir. 1996) (en banc). New Orleans, Louisiana, this ________ day of ____________________________, 2025.

__________________________________________ MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE