Opinion
CIVIL ACTION NO: 00-1137 SECTION: "N" (3)
May 21, 2001
On April 13, 2000, plaintiffs, Allen Carmouche, Harry Carmouche, Michael Dibenditto, and Kenneth Veneralla, filed this lawsuit against Stephen Petit, individually and in his official capacity as a St. Charles Parish Deputy, Paul Finn, individually and in his official capacity as a St. Charles Parish Deputy, and Greg Champagne, individually and in his official capacity as the St. Charles Parish Sheriff. According to the complaint, the two named deputies went to Allen Carmouche's place of employment seeking to arrest Dibenditto. Plaintiffs allege that the deputies asked Dibenditto to approach them and, after a brief discussion, the deputies arrested Dibenditto and proceeded to assault him. Plaintiffs also allege that the deputies failed to inform Dibenditto of the charges against him. Allen Carmouche, Harry Carmouche and Kenneth Veneralla were allegedly assaulted with pepper spray by the deputies. All four plaintiffs were arrested and charged with violations alleged to have occurred during this incident.
Although not stated in the complaint, defendants state that this incident occurred on September 28, 1997, and that plaintiffs filed their lawsuit in state court on September 29, 1998. Counsel agree that service of citation of the state court petition was not requested until July 29, 1999. On March 22, 2000, the state court judge granted a motion for involuntary dismissal for failure to serve the lawsuit within 90 days. The state court judge then dismissed the state court lawsuit without prejudice.
Plaintiffs' counsel has stipulated that the dates of events set forth in defendants' memorandum are accurate. Although plaintiffs' state court lawsuit was filed one year and one day after the date of the alleged incident which caused plaintiffs' injuries, defendant represents that there is no dispute that the state court lawsuit was timely filed because due to a hurricane, the Twenty-Ninth Judicial District Court Clerk's office was closed on the lawsuit's one year anniversary date.
Plaintiffs' state that their complaint is brought to redress a violation of their civil rights pursuant to 42 U.S.C. § 1983, 1985, 1986, and 1988, and pursuant to the United States and Louisiana Constitutions. Plaintiffs further allege that defendants are liable pursuant to state law for negligence, assault and battery, intentional infliction of emotional distress, malicious abuse of process, false arrest, false imprisonment, and denial of medical treatment.
Before the Court is defendants' motion to dismiss or, in the alternative, motion for summary judgment. "A court may convert a motion to dismiss into a motion for summary judgment if the parties present the court matters outside of the pleadings which are not excluded." Golizio v. Antonine Holding, Inc., 1997 WL 47781, 2 (E.D.La. 1997)(Clement, J.)(citing Morin v. Caire, 77F.3d 116, 118 (5th Cir. 1996)). Because plaintiffs' stipulations with respect to the accuracy of the dates of events are outside of the pleadings, this Court exercises its discretion pursuant to Rule 12(b) and treats this motion as one for summary judgment. See Walker at 12.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.C.P 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case.
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999)(citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53,quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of her claim. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
Id. (citing Celotex Corp., 477 U.S. at 321-23, 106 S.Ct. at 2551-53).
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." This Court does not, "however, in the absence of any proof, assume that the non moving party could or would prove the necessary facts."
Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Little at 1075 (emphasis in original).
Defendants first argue that plaintiffs claim has prescribed because this lawsuit was filed in federal court on April 13, 2000, more than one year after the September 28, 1997, incident. Defendants also argue that even if the Court found that the filing of the state court lawsuit interrupted the one year prescriptive period, this lawsuit has still prescribed because the state court dismissed the lawsuit filed in state court on March 22, 2000, and the filing of the lawsuit in this Court did not fall within the one year prescriptive period.
Rec. Doc. 1.
Defendant's memorandum.
Plaintiffs assert that defendant's general appearance in the state court to a motion to continue trial caused prescription to be interrupted. Furthermore, plaintiffs contend that the plaintiffs interrupted the prescriptive period by filing the state court lawsuit within the one year period. Although plaintiffs argue that interruption continues until the state court judgment becomes final and that the state court judgment did not become final until all appeal delays had elapsed, plaintiffs do not cite any law in support of that contention.
Actions filed pursuant to 42 U.S.C. § 1983, 1985, 1986, and 1988 are subject to the forum state's personal injury limitations period. In Morales, the court stated:
Morales v. State of Louisiana 1996 WL 44222, 2 (E.D.La.); see also Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1986); Evans v. C P Telephone Co. of Maryland, 535 F. Supp. 499, 500 (D. Md. 1982).
The Reconstruction Civil Rights Acts, as codified in 42 U.S.C. § 1981, 1983, and 1985, do not contain a specific statute of limitations. When Congress fails to set a time limitation on a federal action, the settled practice is to borrow the analogous state law prescriptive period. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (district courts should use forum state's personal injury limitations period). In this circuit, it is well settled that wrongs committed by Louisiana state officials in violation of a plaintiffs constitutional rights are subject to the one-year prescriptive period for Louisiana tort actions. Watts v. Graves, 720 F.2d 1416, 1423 (5th Cir. 1983); Jones v. Orleans Parish School Board, 679 F.2d 32, 35 (5th Cir. 1982), cert. denied, 461 U.S. 951 (1983) (plaintiffs §§ 1981, 1983, and 1985 claims subject to one-year limitation period); see La.Civ. Code art. 3492 (one year limitation period for torts).
However, to determine when a plaintiffs action accrues, the Court must turn to federal law. Moore, 30 F.3d at 620-21; Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1986). Under federal law, a cause of action accrues "the moment the plaintiff knows or has reason to know of the injury that is the basis of his complaint." Helton, 832 F.2d at 334-35.
Morales at 2.
Plaintiffs' state law claims brought pursuant to Louisiana Civil Code article 2315 begin to accrue on the day that the injury or damage is sustained.
See La. Civ. Code art. 3492 (West 2001) which provides:
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.
Plaintiffs' complaints accrued on September 28, 1997, the date of the alleged incident. Therefore, unless the state court lawsuit has been interrupted, plaintiffs had until September 29, 1998, one year later, to file their lawsuit in federal court. Federal courts apply state tolling provisions to federal claims unless Congress has established specific tolling rules.
Plaintiffs had one year from the date of their injuries to bring their state law tort claims. La. Civ. Code art. 2315. See footnote no. 1.
Hardin v. Straub, 490 U.S. 536, 538-39, 109 S.Ct. 1998, 2000, 104 L.Ed.2d 582 (1989)(citing Wilson v. Garcia, 471 U.S. 261, 268-269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985)); Kaufman v. Singer, 1999 WL 253522, 1 (E.D.La. 1999); Benyi v. Broome County, N.Y. 887 F. Supp. 395, 400 (N.D.N.Y. 1995).
Under Louisiana law, prescription is interrupted by the filing of a lawsuit in a court of competent jurisdiction and venue. The interruption continues as long as the lawsuit is pending. However, at issue is La. R.S. 13:5107(D) which requires a plaintiff to request service of citation within ninety days of the filing of the initial pleading when a state agency, the state, a political subdivision, or any other officer or employee thereof is named as a party. La. R.S. 13:5107(D) (West 2001) provides:
La. Civ. Code art. 3462 (West 2001); see also Lawrence v. St. Bernard Police Dept., 2000 WL 1751607, 1 (E.D.La. 2000).
La. Civ. Code art. 3463 (West 2001); Lawrence at 1.
Defendants do not specifically state in their memorandum that La. R.S. 13:5107(D) is applicable in this case. However, defendants direct the Court to two Louisiana cases, Borrello v. City of Kenner, 750 So.2d 230 (La.App. 5th Cir. 1999) and Patterson v. Jefferson Davis Parish School Board, 773 So.2d 297 (La.App. 3d Cir. 2000), which applied the ninety day request for service of citation to governmental defendants. The Court notes that although an earlier version of 13:5107(D) was applied in Borrello, the ninety day request for service of citation was in effect in that version.
(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.
The effective date of the statute set forth above is January 1, 1998, and it applies to all lawsuits filed against governmental defendants on or after that date. The Louisiana Supreme Court has held that La. R.S. 13:5107(D) is applicable when plaintiff's cause of action arises prior to the effective date of that statute, but the plaintiff files his lawsuit after the effective date.
Naquin v. Titan Indemnity Co., 779 So.2d 704, 707 (La. 2001). Pursuant to La. R.S. 13:5102(B) (West 2001), a sheriff is a political subdivision of the State of Louisiana.
Naquin at 708.
Plaintiffs' state court lawsuit filed against the governmental defendants was dismissed without prejudice in state court for failure to timely request service of process. Pursuant to R.S. 13:5107(D), when the governmental defendants were dismissed as parties because the plaintiffs failed to request service within the 90 day period, the filing of the state court lawsuit did not interrupt or suspend the running of prescription as to the governmental defendants.
Because there is no interruption of prescription, the plaintiffs lawsuit in this Court, filed more than a year after the incident which caused the basis of their complaint, has prescribed. Accordingly, the Court need not address defendants' remaining arguments with respect to res judicata and collateral estoppel.
For the foregoing reasons,
IT IS ORDERED that defendants' motion for summary judgment is GRANTED.