Opinion
CIVIL ACTION 02-3397, SECTION "T"(2).
May 6, 2003.
ORDER AND REASONS
Before the Court is a Motion to Dismiss [Doc. 21] pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of the Defendant, Vincent Paciera, Jr. The Court having reviewed the complaint, the memoranda filed, the law, and the applicable jurisprudence, is fully advised in the premises and ready to rule.
I. BACKGROUND:
Pro se Plaintiff Hooker instituted this suit pursuant to an alleged civil rights claim that arose during the period of December 1979 to June 1981. On December 28, 1979, Hooker was arrested and charged with theft. He was represented in this matter by Vincent Paciera, Jr. On January 16, 1980, a plea of "not guilty" was entered on Hooker's behalf. Hooker bases the present complaint on a minute entry from this date, and alleges that it shows defendants Paciera and Judge Bagert were involved in the conspiracy against him. The criminal charges against Hooker were eventually dismissed on June 15, 1981. Judge Bagert is since deceased. The complaint in this matter was filed on November 13, 2002, wherein Mr. Hooker alleges that Mr. Paciera engaged in malpractice, malicious prosecution, willful negligence, civil conspiracy, fraud, defamation, as well as slander and libel. Mr. Hooker later appeared before this Court on his own Motion for Judicial Notice of Adjudicative facts on February 26, 2003. At that time, Mr. Hooker presented several documents in to the record as a Plaintiff proffer. The Court dismissed defendant, Roadway Express, Inc., on March 19, 2003.
II. LAW AND ANALYSIS:
A. Law on Rule 12(b)(6) motions:
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), courts have found that dismissal pursuant to this provision "is viewed with disfavor and is rarely granted." Lowery v. Texas A M University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
"If, on a motion asserting a defense numbered (6) to dismiss for failure of the pleading to state a claim for which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . ." Fed.R.Civ.P. 12(b).
B. Law on Motion for Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if 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." FED. R. Civ. P. 56©). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco. Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56©), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
C. Prescription
The last action mentioned in the factual allegations of the Plaintiff's complaint is the dismissal of the criminal charges against him on June, 15, 1981. The complaint in the present case was not filed until November 13, 2002 — over 21 years later. Since the civil rights statutes under which the Plaintiff brings this action do not have specific statues of limitation, this Court must look to the applicable state prescriptive periods for personal injury claims. Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). In Louisiana, the time period for bringing delictual claims, including those for malicious prosecution, fraud, libel, slander, willful negligence, defamation, is one year commencing from the date the damage or injury is sustained. La. Civ. Code art. 3492; See also, F. Stone, Louisiana Tort Doctrine, § 229 (1977); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Hero Lands Co. v. Texaco. Inc., 310 So.2d 93 (La. 1975). Therefore, since the above possible claims would be barred by prescription, this Court does not need to address whether the Plaintiff has failed to state a valid claim upon which relief can be granted.
To establish prima facie case of civil conspiracy, plaintiff must show (1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights and (2) actual deprivation of those rights in the form of overt acts in furtherance of agreement. Scherer v. Balkema et al., 840 F.2d 437, 442 (7th Cir. 1988); 42 U.S.C. § 1983, 1985(3), 1986. When Plaintiff filed his complaint, the referred to documents that were later entered into the record. In examining the complaint of the Plaintiff, and the subsequent documents, specifically, the documents alleged to support a claim for civil conspiracy, this Court is of the opinion that there is no claim for civil conspiracy that could be supported by the documents which are provided to this Court. There is no claim within the pleadings of the Plaintiff that would allow this Court to conclude that relief could be granted for an alleged civil conspiracy or any acts in furtherance of the deprivation of the Plaintiff's rights.
As far as the malpractice claims made by Plaintiff, neither the claims included in the complaint, nor the documents referred to by the Plaintiff support a claim on which for relief may be given in this Court. This Court is of the opinion that there is no genuine issue for trial. The documents that were submitted by Rev. Hooker do not support a claim for malpractice. During the short time of representation by Defendant, Vincent Paciera, Jr., the Plaintiff had a plea of `not guilty' entered on his behalf, and two weeks, later, the Court appointed an second attorney. Furthermore, copies of the Court record details the oral and written withdrawal of Mr. Paciera on February 25, 1980, which the Court accepted.
These documents were presented to the Court in Plaintiff's Motion for Judicial Notice of Adjudicative Facts of February 26, 2003.
A Accordingly,
IT IS ORDERED that defendants Motion to Dismiss is hereby GRANTED, and the claims of the Plaintiff, Bennie Hooker, are hereby DISMISSED WITH PREJUDICE.