2:25-cv-02349•Jacquet v. Dorrance Publishing Company et al
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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIESHA ANN JACQUET VERSUS DORRANCE PUBLISHING COMPANY, ET AL. * * * CIVIL ACTION NO. 25-2349 SECTION “E” (2) REPORT AND RECOMMENDATION Plaintiff Keisha Ann Jacquet filed a Complaint on November 19, 2025. ECF No. 1. On November 25, 2025, I granted Plaintiff’s motion to proceed in forma pauperis and, consistent with the duties imposed by 28 U.S.C. § 1915(a) and (e)(2)(B), ordered that summons not be issued until completion of the statutorily mandated review. ECF No. 3. This Order also required Plaintiff to show cause why her case should not be dismissed by filing a written response setting forth the specific facts upon which she relies to establish bases for her claims, in accordance with 28 U.S.C. § 1915(e)(2). ECF No. 3 at 7. Plaintiff timely filed a response. ECF No. 5. In accordance with 28 U.S.C. § 636(b)(1)(B) and 28 U.S.C. § 1915, I submit this Report and Recommendation. I. PLAINTIFF’S COMPLAINT AND RESPONSE Plaintiff filed a complaint asserting a Bivens claim against Dorrance Publishing Company and Xlbris Publishing Company and invoking federal question jurisdiction. ECF No. 1 ¶¶ I(B), II at 2-3. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), a plaintiff may sue federal officials for the violation of certain constitutional rights. In this case, however, Plaintiff fails to identify, in either her complaint or response, any constitutional right allegedly violated by any federal officials. See id. ¶ II(C)-(D), at 3-4; ECF No. 5. Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 1 of 9
2 Instead, Plaintiff claims that Defendants failed to royalties on August 3, 2002, March 15, 2015, and May 7, 2023. ECF No. 1 ¶ III(B)-(C), at 4. Specifically, Plaintiff indicates that the two publishing company defendants have failed to pay her royalties allegedly owed for books she has written. ECF No. 5 at 2. Although unclear, it appears that Plaintiff has published two books entitled Keisha Ann Jacquet and Keisha Life Story. Id. Plaintiff states that she has not received any royalty checks from Dorrance Publishing or Xlibris Publishing, and Xlibris Publishing’s owner said on the phone that they would give her $1,000,000 for her book rights. Id. II. APPLICABLE LAW A. Statutorily Mandated Review Section 1915(e)(2)(B) grants the Court authority to summarily dismiss in forma pauperis complaints if the asserted claims are frivolous or malicious or fail to state a claim upon which relief may be granted.1 Indeed, the statute specifically mandates that the court “must sua sponte dismiss [the case] at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune.”2 This statutory review mandate applies to non-prisoner in forma pauperis cases equally to prisoner cases.3 A claim is “frivolous where it lacks an arguable basis either in law or in fact.”4 A claim “lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.”5 A court may 1 Tam Vo v. St. Charles Par., No. 10-4624, 2011 WL 743466, at *1-2 (E.D. La. Feb. 3, 2011), R.&R. adopted sub nom., Vo v. St. Charles Par., No. 10-4264, 2011 WL 740909 (E.D. La. Feb. 22, 2011). 2 Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir. 2018) (emphasis added) (citing 28 U.S.C. § 1915(e)(2)(B)). 3 James v. Richardson, 344 F. App’x 982, 983 (5th Cir. 2009) (“Section 1915(e)(2)(B) requires dismissal of frivolous IFP actions even if those actions are brought by non-prisoner plaintiffs.”); see also Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (applying § 1915(e)(2)(B) to a non-prisoner whose complaint was frivolous). 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989). 5 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 2 of 9
3 not dismiss a claim simply because the facts are “unlikely.”6 A factually frivolous claim alleges only facts that are “‘clearly baseless,’ . . . are ‘fanciful,’ ‘fantastic,’ and ‘delusional’ . . . [or] rise to the level of the irrational or wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”7 A complaint fails to state a claim on which relief may be granted when the factual allegations do not rise above a speculative level, with the assumption that all factual allegations in the complaint are true, even if doubtful.8 The Supreme Court clarified the standard for a Rule 12(b)(6) motion in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To avoid dismissal, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face (i.e., the factual allegations must “be enough to raise a right to relief above the speculative level”).9 If the “facts” alleged are “merely consistent” with those minimally required to establish liability, the complaint “stops short of the line between possibility and plausibility.”10 “Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim.”11 Although the court must accept all well-pleaded facts as true and consider the complaint in the light most favorable to the plaintiff, the court does not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”12 The court may consider not only the 6 Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992) (citing Denton v. Hernandez, 504 U.S. 25, 32–33 (1992)). 7 Id. (quoting Denton, 504 U.S. at 32-33). 8 Garrett v. Thaler, 560 F. App’x 375, 377 (5th Cir. 2014) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 9 Twombly, 550 U.S. at 555, 570. 10 Iqbal, 556 U.S. at 678. 11 Roy v. Cobb, No. 20-0167, 2020 WL 2045791, at *2 (W.D. La. April 7, 2020) (citing Twombly, 550 U.S. at 556). 12 Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted); Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted); see also SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n for Lehman Bros. Small Balance Com. Mortg. Pass-Through Certificates, Series 2007-3, 881 F.3d 933, 943–44 (5th Cir. 2018) (holding conclusory fraud allegations that the defendant intended plaintiff to act upon representations and plaintiff acted in reliance on representations insufficient to withstand Rule 12(b)(6) challenge). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 3 of 9
4 allegations but also any documents attached to the complaint, referenced documents that are central to the claim, and documents that are part of the public record or subject to judicial notice.13 In comparing a dismissal for failure to state a claim under 28 U.S.C. § 1915(e) and Rule 12(b)(6), the Supreme Court in Neitzke v. Williams, 490 U.S. 319 (1989), held that a claim that is dismissed under one rule does not “invariably fall afoul” of the other.14 If an in forma pauperis complaint lacks even an arguable basis in law, dismissal is appropriate under both Rule 12(b)(6) and § 1915(e).15 “When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under [§ 1915(e)’s] frivolousness standard is not.”16 B. Bivens Claims A Bivens claim remedies constitutional violations by federal government officials in their individual capacities.17 To state a Bivens claim, a plaintiff must plead a deprivation of statutory or constitutional rights by a federal officer acting under color of federal law.18 “[P]rivate actors are not subject to liability under Bivens for conduct that typically falls within the scope of traditional state tort law.”19 13 See, e.g., Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (directing courts to “consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”); Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (stating that a court may rely on the complaint, its proper attachments, documents incorporated by reference, and matters of judicial notice). 14 Moore, 976 F.2d at 269 (quoting Neitzke, 490 U.S. at 326 (citing 28 U.S.C. § 1915(d)) (current version at 28 U.S.C. § 1915(e)). 15 Id. 16 Id. 17 Affiliated Pro. Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); see F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994). 18 See 403 U.S. at 397. 19 Vela v. Presley, No. 22-40484, 2023 WL 3255010, at *1 (5th Cir. May 4, 2023) (citing Minneci v. Pollard, 565 U.S. 118, 131 (2012); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63-64 (2001); Eltayib v. Cornell Cos., 533 F. App’x 414, 414-15 (5th Cir. 2013)); see also Goodloe v. United States, No. 22-5, 2023 WL 4712204, at *5 (N.D. Tex. June 21, 2023) (Ramirez, M.J.) (citing Lampley v. Doe, No. 21-261, 2021 WL 3396777, at *2 (E.D. Tex. June 3, 2021), R.&R. adopted, 2021 WL 3367677 (E.D. Tex. Aug. 2, 2021) (citing Malesko, 534 U.S. at 72-73)), R.&R. adopted, 2023 WL 4707997 (N.D. Tex. July 24, 2023). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 4 of 9
5 Somewhat like 42 U.S.C. § 1983, Bivens extends the protections similar to those under § 1983 to parties injured by federal, rather than state, actors.20 Bivens is not, however, broadly construed and does not create rights of actions in the same manner, or as extensively, as § 1983.21 “The Supreme Court has authorized an implied damages remedy against federal officers for constitutional violations (Bivens actions) only three times.”22 Bivens does not extend to “new contexts”—that is, those that are “different in a meaningful way from previous Bivens cases decided by the Court.”23 Indeed, the Supreme Court has “consistently refused to extend Bivens to any new context or new category of defendants . . . for the past 30 years.”24 C. Pleading Standard Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint set forth “sufficient facts from which the court can determine the existence of subject matter jurisdiction and from which the defendants can fairly appreciate the claim made against them.”25 While Rule 8’s pleading standard does not require “detailed factual allegations,” it does demand more than an “unadorned, the-defendant-unlawfully-harmed-me accusation.”26 While documents filed pro se 20 See Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir. 1999) (“A Bivens action is analogous to an action under § 1983– the only difference being that § 1983 applies to constitutional violations by state, rather than federal officials”), overruled on other grounds, Castellano v. Fragozo, 352 F.3d 939, 948–49 & n.36 (5th Cir. 2003). 21 See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855-57 (2017). Bivens claims may not be implied under contexts not previously recognized by the Supreme Court, and there are very few recognized contexts. Id. at 1857; Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020), cert. denied, 141 S. Ct. 2669 (2021). 22 Springer v. United States, No. 21-11248, 2022 WL 2208516, at *1 (5th Cir. June 21, 2022) (citing Carlson v. Green, 446 U.S. 14 (1980) (inmate’s Eighth Amendment claim for failure to provide adequate medical assistance); Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment Due Process claim for gender discrimination); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (Fourth Amendment claim for unreasonable search and seizure)). 23 Id. (quoting Butler v. S. Porter, 999 F.3d 287, 294 (5th Cir. 2021) (quoting Abbasi, 137 S. Ct. at 1864)). 24 Abbasi, 137 S. Ct. at 1857 (quoting Malesko, 534 U.S. at 68). 25 Kinchen v. Sharp, No. 11-1040, 2012 WL 700920, at *2 (E.D. La. Feb. 10, 2012) (quoting Bremer v. Hous. Auth. of New Orleans, No. 98-2735, 1999 WL 298795, at *1 (E.D. La. May 12, 1999)), R.&R. adopted, 2012 WL 700265 (E.D. La. Feb. 29, 2012). 26 Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 5 of 9
6 are “liberally construed,”27 even the complaints of pro se litigants must satisfy Rule 8 to convince the court that plaintiff has a colorable claim.28 D. Availability of Amendment Although frivolous claims may be dismissed with prejudice,29 before doing so, the Court should allow the pro se Plaintiff the opportunity to state his best case: Under Rule 12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a claim and an opportunity to amend the complaint before the motion is ruled upon. These procedures alert him to the legal theory underlying the defendant's challenge and enable him meaningfully to respond by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action.30 Thus, the court should generally allow a plaintiff the opportunity to amend before dismissing an action for failure to state a claim.31 Indeed, unless it is clear that a plaintiff is unwilling or unable to amend in a manner that will avoid dismissal, the court errs in not providing a pro se plaintiff with at least one opportunity to cure pleading deficiencies before dismissing.32 When, however, the “complaint alleges the plaintiff's best case,” a further factual statement from the plaintiff need not be allowed.33 27 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 98, 106 (1976)). 28 Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (stating “[a]lthough we treat pro se pleadings more liberally, some facts must be alleged that convince us that the plaintiff has a colorable claim; conclusory allegations will not suffice.”). 29 See Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (en banc). 30 Neitzke, 490 U.S. at 329-30. 31 See, e.g., Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citation omitted); see also FED. R. CIV. P. 15(a)(2); F.D.I.C. v. Conner, 20 F.3d 1376, 1385 (5th Cir. 1994) (noting that Rule 15(a) “evinces a strong bias in favor of granting . . . leave to amend a pleading”). 32 Dierlam v. Trump, 977 F.3d 471, 478 n.44 (5th Cir. 2020) (quoting Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)); see also Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (cleaned up); Brown v. Brown, 842 F. App'x 948, 949 (5th Cir. 2021) (“Generally a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.” (quoting Mendoza-Tarango v. Flores, 982 F.3d 395, 402 (5th Cir. 2020) (cleaned up))). 33 Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999) (citation omitted). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 6 of 9
7 III. ANALYSIS OF PLAINTIFF’S CLAIMS A. Bivens Claims Plaintiff’s Bivens claims are frivolous. Despite explicit instruction as to the necessity to identify a claim against a federal officer in the Show Cause Order,34 Plaintiff provided no additional factual allegations involving any federal official as necessary to state a Bivens claim. Again, Plaintiff complains only of actions by private actors. Plaintiff’s complaint and response fail to state a Bivens claim as she names only private entities rather than any federal officials, and she fails to allege violation of any constitutional right for which a Bivens remedy has been recognized. B. Plaintiff’s Demand for Royalties 1. Breach of Contract Plaintiff’s complaint appears to seek recovery of royalties from private publishers. In Louisiana, a failure to pay book royalties is governed by contract law.35 An author’s right to royalties is included in a publication contract between the publisher and author. In order to prevail on a breach of contract claim, the plaintiff must demonstrate three elements: (1) that the obligor undertook an obligation to perform; (2) that the obligor failed to perform the obligation (the breach); and (3) that the failure to perform resulted in damages to the obligee.36 Instead of providing any facts regarding these elements, Plaintiff merely alleges that she is owed royalty checks from Dorrance Publishing and Xlbris Publishing for a book(s) she has written and demands $1,000,000 from Xlbris Publishing. 34 ECF No. 3 at 4-5. 35 See Fonseca v. Pelican Publ’g. Co., 921 So. 2d 1126, 1128 (La. App. 1 Cir. 2006). 36 Walker v. Pelican Publ’g. Co., No. 10-4389, 2011 WL 2976271 at *6 (E.D. La. July 22, 2011) (Zainey, J.) (citing Garco, Inc. v. Rob's Cleaning & Powerwash, Inc., 12 So. 3d 386, 391 (La. App. 4 Cir. 2009)). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 7 of 9
8 Plaintiff has failed to set forth any factual basis to support her claim for royalties. Nowhere in either her complaint or response does she identify a publication contract or any provisions thereof. Further, she has not stated any dates in which a contract may have been entered, who the parties to the agreement were, and for which book(s). Thus, she has not demonstrated that either of the defendant publishing companies undertook an obligation to pay her royalties or that they failed to perform any agreed obligation. Plaintiff has not set forth sufficient facts so that Defendants can fairly appreciate the claim made against them. 2. Copyright Infringement To the extent that Plaintiff may seek to demand royalties based on copyright infringement, Plaintiff has not alleged sufficient facts to establish that Dorrance Publishing and Xlbris Publishing violated any exclusive rights of Plaintiff in terms of reproduction, distribution, or creation of a derivate work. To establish a claim of copyright infringement, a plaintiff must prove that she owned a valid copyright, and that the defendant impermissibly copied that work or otherwise infringed upon the copyright.37 One such statutory formality is registration.38 “A certificate of registration, if timely obtained, is prima facie evidence both that a copyright is valid, and that the registrant owns the copyright.”39 Here, Plaintiff has not asserted that she owned a valid copyright or how Defendants impermissibly copied or infringed upon that copyright. Therefore, she has not asserted a claim for which relief can be granted under copyright law. 37 Positive Black Talk Inc. v. Cash Money Recs., 394 F.3d 357, 367 (5th Cir. 2004), abrogated in part on other grounds, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); Quintanilla v. Tex. Television Inc., 139 F.3d 494, 500 (5th Cir. 1998). 38 See 17 U.S.C. § 410(c). 39 Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004) (per curiam). Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 8 of 9
9 IV. RECOMMENDATIONS Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Plaintiff Keisha Anna Jacquet’s claims under Bivens be DISMISSED WITH PREJUDICE and without leave to amend for being frivolous. IT IS FURTHER RECOMMENDED that Plaintiff Keisha Anna Jacquet’s claims against Dorrance Publishing Company and Xlbris Publishing Company for unpaid book royalties be DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted, but with leave to file an amended complaint within thirty days to set forth the necessary facts to state a claim under either state or federal law. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within fourteen (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 party has been served with notice that such consequences will result from a failure to object.40 Dated this ____ day of March, 2026. ________________________________________________ DONNA PHILLIPS CURRAULT UNITED STATES MAGISTRATE JUDGE 40 Douglass v. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (5th Cir. 1996). Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days. 9th Case 2:25-cv-02349-SM-DPC Document 6 Filed 03/09/26 Page 9 of 9
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