     Case: 11-31104     Document: 00511953026         Page: 1     Date Filed: 08/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                          August 10, 2012
                                     No. 11-31104
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DELTA FUEL COMPANY, INCORPORATED,

               Plaintiff - Appellant

v.

RANDY J MAXWELL, in his official capacity as Sheriff, Concordia Parish;
SHERIFF'S OFFICE OF CONCORDIA PARISH; BRADLEY R. BURGET, in his
official capacity as District Attorney, Concordia Parish; DISTRICT ATTORNEY
OFFICE CONCORDIA PARISH; LOUISIANA DEPARTMENT OF JUSTICE;
JAMES D. CALDWELL, in his official capacity as Attorney General, State of
Louisiana,

               Defendants - Appellees



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1337


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Delta Fuel Company, Inc. (“Delta”) brought suit against Randy J. Maxwell,
Concordia Parish Sheriff; Bradley J. Burget, Concordia Parish District Attorney;


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                           No. 11-31104

the Concordia Parish District Attorney’s Office; the Louisiana Department of
Justice; and James D. Caldwell, the Attorney General of the State of Louisiana.
Delta’s complaint purported to bring suit pursuant to 42 U.S.C. §§ 1983 and
1985 and included a federal equal protection claim, a state law claim for
wrongful conversion, a claim entitled “State Law Wrongful Conversion: The
§ 1983 Action,” and a claim for punitive damages. Delta alleged that the
defendants individually and as co-conspirators violated its clearly established
rights to protect its property, to access the courts, and to be treated equally
under the law. Its claims were based on the state’s dismissal of criminal charges
against Barry Maxwell, a former Delta employee, following the state trial judge’s
rejection of a plea deal. The defendants moved to dismiss Delta’s complaint
pursuant to FED. R. CIV. P. 12(b)(6).
       The defendants’ motions to dismiss were referred to Magistrate Judge
James D. Kirk. The magistrate judge agreed that Delta’s complaint failed to
state a claim upon which relief could be granted.1                     In his Report and
Recommendation, the magistrate judge found: (1) that the Concordia Parish
Sheriff’s Department was not a legal entity capable of being sued;2 (2) that the
Concordia Parish District Attorney’s Office was not a person capable of being
sued under § 1983 and that Louisiana law did not permit the District Attorney’s
Office to be sued in its own name;3 (3) that the claim against Burget was based
on his recusal in the criminal case against Barry Maxwell and that, because the
recusal was done in Burget’s role as district attorney, Burget was entitled to




       1
           See FED. R. CIV. P. 12(b)(6).
       2
        See, e.g., Valentine v. Bonneville Ins. Co., 691 So. 2d 665, 668 (La. 1997) (“The law of
Louisiana affords no legal status to the ‘Parish Sheriff’s Department’ so that the department
can sue or be sued, such status being reserved for the Sheriff.”).
       3
           See Hudson v. City of New Orleans, 174 F.3d 677, 680 (5th Cir. 1999).

                                                2
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                                          No. 11-31104

absolute prosecutorial immunity;4 (4) that Caldwell was entitled to Eleventh
Amendment immunity as a state official acting in his official capacity and to
absolute prosecutorial immunity for his decision to dismiss criminal charges
against Barry Maxwell;5 (5) that the Louisiana Department of Justice, a state
agency, was not a “person” for purposes of § 1983 and that it was an arm of the
state entitled to Eleventh Amendment sovereign immunity;6 and (6) that Delta
failed to state a cognizable conspiracy claim or claim of deprivation of a civil
right under § 1983 and had not and could not set forth facts establishing a
conspiracy or violation of constitutional rights under § 1985. The district court
adopted the magistrate judge’s report and recommendations in full and entered
judgment for the defendants.
       We find no error in the magistrate judge’s recommendations, as adopted
by the district court.
       AFFIRMED.




       4
         Imbler v. Pachtman, 424 U.S. 409, 428 (1976) (“We conclude that the considerations
outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys
at common law.”); id. at 431 n.33 (“We recognize that the duties of the prosecutor in his role
as advocate for the State involve actions preliminary to the initiation of a prosecution and
actions apart from the courtroom.”).
       5
          See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (explaining that “a suit
against a state official in his or her official capacity is not a suit against the official but rather
is a suit against the official’s office” and that such state official is thus protected by Eleventh
Amendment sovereign immunity); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990)
(“‘[P]rosecutors are immune from liability in suits under § 1983 for acts that are an integral
part of the judicial process.’” (citation omitted)).
       6
           See Will, 491 U.S. at 71.

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