Harris v. Lopinto ( 2023 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA EMANUEL HARRIS, JR. CIVIL ACTION VERSUS NO. 23-197 JOSEPH LOPINTO, ET AL. SECTION “R” (1) ORDER Plaintiff Emanuel Harris, Jr., a state pretrial detainee proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983.1 Plaintiff originally named as defendant Joseph Lopinto from the Jefferson Parish Sheriff’s Office, but he later added defendants Brianne Carter, Aaron Savoie, Gabriel Marquez Castro, Zachary Babin, and Elliot Somen in an amended complaint filed on March 3, 2023.2 To date, the claims against Lopinto have been dismissed with prejudice, and all of plaintiff’s remaining claims have been stayed except for his claims against Castro, Babin, and Somen for allegedly using excessive force in connection with plaintiff’s arrest.3 With respect to those excessive force claims, Castro, Babin, and Somen filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal 1 R. Doc. 1. 2 R. Doc. 7. 3 R. Docs. 9 & 10. Rules of Civil Procedure,4 arguing that plaintiff has failed to state a claim upon which relief can be granted because he has not pleaded his claims with sufficient particularity given that defendants are invoking the defense of qualified immunity. On September 1, 2023, Magistrate Judge Janis van Meerveld ordered plaintiff to file a memorandum in response to defendants’ motion by no later than September 20, 2023,5 but plaintiff filed no such response. Magistrate Judge van Meerveld issued a Report & Recommendation (“R&R”) on October 23, 2023, recommending that the Court grant defendants’ motion and dismiss plaintiff’s excessive force claims against defendants Castro, Babin, and Somen without prejudice.6 Plaintiff did not object to the R&R. Therefore, the Court reviews the R&R for clear error. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996); see also Fed. R. Civ. P. 72(b) advisory committee’s note (1983) (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). The Court finds no clear error. 4 R. Doc. 16. 5 R. Doc. 17. 6 R. Doc. 18. Accordingly, the Court adopts Magistrate Judge van Meerveld’s R&R as its opinion. Defendants’ motion to dismiss is GRANTED, and plaintiff's excessive force claims against defendants Castro, Babin, and Somen are DISMISSED WITHOUT PREJUDICE. New Orleans, Louisiana, this 8th _ day of November, 2023. SARAH S. VANCE UNITED STATES DISTRICT JUDGE