Lewis v. Orleans Parish Sheriff Office ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GRAYLIN SYLVESTER LEWIS CIVIL ACTION VERSUS No. 18-13939 ORLEANS PARISH SHERIFF’S SECTION: “J”(2) OFFICE, ET AL. ORDER Before the Court is Plaintiff’s Objection (Rec. Doc. 40) to the Magistrate Judge’s Report and Recommendation (Rec. Doc. 39). Plaintiff, proceeding pro se, protests the Magistrate Judge’s conclusions but fails to challenge the merits of that decision. The Court agrees with the Report and Recommendation, with one exception. Part V concludes that all claims against the Orleans Parish Sheriff’s Office should be dismissed because it is not a legal entity capable of being sued (Rec. Doc. 39, at 33). While this is true, the “Plaintiff's failure to specifically name the sheriff as a defendant in this suit does not bar recovery against the sheriff in his official capacity.” Riley v. Evangeline Par. Sheriff's Office, 637 So. 2d 395, 395 (La. 1994) (per curiam) (citing Jenkins v. Jefferson Par. Sheriff's Office, 402 So. 2d 669 (La. 1981)). The Court treats Plaintiff’s claim against the Orleans Parish Sheriff’s Office as one against Sheriff Marlin N. Gusman of the Parish of Orleans in his official capacity. See Hudson v. City of New Orleans, 174 F.3d 677, 680 (5th Cir. 1999). Therefore, the motion to dismiss should not be granted on this basis. However, Sheriff Gusman joined in the motion for judgment on the pleadings (Rec. Doc. 26) filed by the individually named Defendants (except for Director Hodge, who filed a separate motion), and the Court finds no error in the Magistrate Judge’s resolution of those claims. Accordingly, IT IS HEREBY ORDERED that Plaintiffs Objection (Rec. Doc. 40) is OVERRULED, and the Magistrate Judge’s Report and Recommendation (Rec. Doc. 39) is ADOPTED IN PART, except as to Part V, as the opinion of the Court. IT IS FURTHER ORDERED that the Defendants’ motions (Rec. Docs. 15, 25, and 26) are GRANTED, and Plaintiff's Complaint is hereby DISMISSED WITH PREJUDICE. New Orleans, Louisiana, this 22nd day of July, 2019. UK Baku AKA CARL J. BARBIER UNITED STA od DISTRICT JUDGE