Opinion
Civil Action No. 03-1429, Section I-2.
August 26, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion, filed on behalf of the defendants, the City of New Orleans, the New Orleans Police Department, New Orleans police officers Justin Crespo ("Crespo") and Kevin Johnson ("Johnson"), former New Orleans Police Department Superintendent Richard Pennington, and former Mayor Marc M. Morial, seeking a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, defendants' motion for judgment on the pleadings is DENIED.
FACTS AND PROCEDURAL HISTORY
On May 20, 2003, plaintiff filed this action pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986 and 1988 against the above-named defendants. Plaintiff previously filed a lawsuit against the Board of Commissioners for the Orleans Levee District ("Levee Board") and levee board officers Thaddeus Petit ("Petit") and Craig Robinson ("Robinson") on February 15, 2002. The previous lawsuit was based on the same events as the one presently before the Court.During the time period relevant to this litigation, Marc Morial was the Mayor of the City of New Orleans, Richard Pennington was the Superintendent of Police for the City of New Orleans, and Justin Crespo and Kevin Johnson, who were acting within the scope of their employment, were employees of the City of New Orleans and/or the New Orleans Police Department. Plaintiff alleges that on February 23, 2001, while he was attending a Mardi Gras parade with family and friends, his civil rights were violated by local law enforcement when he was falsely arrested and excessive force was used against him. Plaintiff claims that he crossed a barricade and was asked to cross back over by Petit. It is further alleged that when plaintiff complied with the request, Petit grabbed him by the back of his shirt and struck plaintiff on the head, knocking him to the ground. According to plaintiff, he was then handcuffed and escorted by Petit, Crespo, and Johnson, and/or other unknown members of the New Orleans Police Department to a squad car owned by the New Orleans Police Department. Upon reaching the squad car, plaintiff maintains that Crespo and Johnson, other unknown members of the New Orleans Police Department and/or Petit and/or Robinson restrained him at the rear of the squad car and repeatedly slammed his face into the squad car.
Rec. Doc. No. 1, at ¶ 6.
Rec. Doc. No. 1, at ¶ 7.
Rec. Doc. No. 1, at ¶ 10.
Rec. Doc. No. 1, at ¶¶ 24-31.
Rec. Doc. No. 1, at ¶ 16.
Rec. Doc. No. 1, at ¶ 16.
Rec. Doc. No. 1, at ¶ 17.
Rec. Doc. No. 1, at ¶¶ 17, 19.
In the alternative, plaintiff contends that Crespo and Johnson, other unknown members of the New Orleans Police Department, and/or Petit and/or Robinson failed to intervene while witnessing the violation of his civil rights. Moreover, plaintiff asserts that the New Orleans Police Department and the Levee Board are liable to plaintiff, as employers, for the officers' failure to intervene.
Rec. Doc. No. 1, at ¶ 22.
Rec. Doc. No. 1, at ¶ 23.
On April 12, 2004, defendants filed the instant motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), asserting that plaintiff's claims against them have prescribed.
Rec. Doc. No. 24, at ¶ 1.
STANDARD OF REVIEW FOR A MOTION FOR JUDGMENT ON THE PLEADINGS
Federal Rule of Civil Procedure 12(c) provides that "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The Fifth Circuit has set forth the standard of review for ruling on motions for judgment on the pleadings:
A motion brought pursuant to Fed.R.Civ.P. 12(c) is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts. The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief. Pleadings should be construed liberally, and judgment on the pleadings is appropriate only if there are no disputed issues of fact and only questions of law remain. The district court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. [The court] will not, however, accept as true conclusory allegations or unwarranted deductions of fact. The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312-13 (5th Cir. 2002) (internal quotations and citations omitted).
Pursuant to Rule 12(c), the movant must clearly establish that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law. Hebert Abstract Co. v. Touchstone Properties, 914 F.2d 74, 76 (5th Cir. 1990); Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973). The issue is whether the plaintiff is entitled to offer evidence to support his claim, not whether he will ultimately prevail on the merits. The Court will only dismiss the claim if plaintiff is not entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint. See Great Plains Trust Co., 313 F.3d at 312-13.
Federal courts follow a strict standard in ruling on motions for judgment on the pleadings. 5C CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368 (3d ed. 2004). "Although the motion may be helpful in disposing of cases in which there is no substantive dispute that warrants the litigants and the court proceeding further . . . hasty or imprudent use of this summary procedure by the courts violates the policy in favor of ensuring to each litigant a full and fair hearing on the merits of his or her claim or defense." Id. (stating "[t]he importance of this policy has made federal judges unwilling to grant a motion under Rule 12(c) unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to a judgement as a matter of law.")
DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants have moved for judgment on the pleadings on the ground that plaintiff's claims are prescribed. In Louisiana, delictual (tort) actions are subject to a liberative prescription period of one year, which runs from the day injury or damage is sustained. La. Civ. Code art. 3492. Prescription is interrupted when suit is timely filed in a court of competent jurisdiction and venue. La. Civ. Code art. 3462. An interruption of prescription against one solidary obligor is effective against all other solidary obligors, and the interruption continues while the suit is pending. La. Civ. Code arts. 1799, 2324, 3463 and 3503; Picone v. Lyons, 601 So. 2d 1375, 1377 (La. 2002). Further, an interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. La. Civ. Code art. 2324(C).
Plaintiff asserts claims pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986, and 1988. Section 1986 contains a one year statute of limitations. 42 U.S.C. § 1988 endorses the borrowing of state-law limitations provisions where doing so is consistent with federal law. See Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 102 L. Ed.2d 594 (1989) (federal courts borrow the forum state's general personal injury limitation period in § 1983 actions); McDougal v. County of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991) (holding "[law] suits under § 1985(3) . . . are governed by the same statute of limitations as actions under § 1983"); Callwood v. Questel, 883 F.2d 272, 274 (3d Cir. 1989) (same).
Defendants argue that plaintiff sued the "wrong defendant" when he filed suit against the Board of Commissioners for the Levee Board and officers Petit and Robinson. Defendants assert that prescription is not interrupted by suing the wrong defendant. See Ruffin v. Blue Plate Foods, 29 So. 2d 722, 725 (La.App. 1947) (distinguishing between suing a defendant by the wrong name and suing an unrelated defendant by mistake). A wrong defendant may be defined as a defendant who is not associated with or wholly unrelated to the proper defendant. See Heimann v. General Cinema Corp. of La., 559 So. 2d 919, 921 (La.App. 5th Cir. 1990). The Levee Board and officers Petit and Robinson are not wrong defendants under either theory of plaintiff's action: that the defendants from the previous lawsuit and the defendants in this case are either solidary obligors or joint tortfeasors.
Plaintiff settled his lawsuit against the previous defendants, the Levee Board, Petit, and Robinson. Rec. Doc. 58.
Defendants' "wrong defendant" argument may be applicable when a plaintiff files a lawsuit against the wrong (non-solidarily liable) entity or individual and then attempts to amend his lawsuit to substitute the proper defendant for the "wrong defendant." See Ray v. Alexandria Mall, 434 So. 2d 1083, 1086-87 (La. 1983) (establishing four requirements for an amendment changing the identity of a party to relate back to the original filing date); Abercrombie v. V.P. Pierret Realty Constr. Co., 532 So. 2d 212, 215 (La.App. 3d Cir. 1988). Louisiana's "wrong defendant" jurisprudence also recognizes an exception to the rule that an action against the "wrong defendant" does not interrupt prescription: That solidarity interrupts prescription. See Sam v. Sorpel Elec. Contractors, Inc., 525 So. 2d 244, 245 n. 1 (La.App. 1st Cir. 1988); Jacobs v. Harmon, 197 So. 2d 704, 707 (La.App. 4th Cir. 1967). Pursuant to the 1996 amendment to Louisiana Civil Code article 2324, solidary liability as well as being a joint tortfeasor interrupts prescription. See La. Civ. Code art. 2324(C); see supra notes 17-18 and accompanying text.
Plaintiff maintains that defendants in the instant action and the Levee Board are solidary obligors and, therefore, prescription was interrupted because of his timely filed suit against the Levee Board, dated February 15, 2002. Since Louisiana adopted the doctrine of pure comparative fault, joint tortfeasors are no longer automatically deemed solidary obligors. In 1996, Louisiana Civil Code article 2324 was amended to eliminate solidary liability of joint tortfeasors, except for intentional or willful acts. La. Civ. Code art. 2324; see also Hall v. Zen-Noh Grain Corp., 777 So. 2d 523, 526 (La.App. 5th Cir. 2000).
"Solidary liability . . . does not require that defendants share liability for the whole of the plaintiff's damages. Defendants are solidarily liable for the purpose of interrupting prescription as long as they share coextensive liability to repair certain elements of the same damage." Lewing v. Sabine Parish Police Jury, 664 So. 2d 598, 600 (La.App. 3d Cir. 1995).
The Court does not need to determine whether a failure to intervene is an intentional or willful act and, therefore, whether defendants are solidary obligors, since interruption of prescription against one joint tortfeasor interrupts prescription against all joint tortfeasors. See La. Civ. Code art. 2324 (C); Renfroe v. State ex rel. Department of Transportation, 809 So. 2d 947, 950 (La. 2002) (stating "[w]hen one joint tortfeasor or solidary obligor is sued timely, that suit interrupts prescription as to all other joint tortfeasors or solidary obligors"); Perkins v. Willie, No. 2003-CA-0126, 2004 WL 691167 (La.App. 1st Cir. Apr. 24, 2004). Therefore, plaintiff need only show that the defendants in this action and the defendants in the previously filed lawsuit, the Levee Board and/or officers Petit and Robinson, are joint tortfeasors in order to interrupt prescription.
Plaintiff contends that defendants are joint tortfeasors with the Levee Board and Petit and Robinson. In his complaint, plaintiff alleges that officers Petit and/or Robinson participated in the restraint, detention, and abuse of his civil rights at the rear of the squad car, along with officers Crespo and Johnson and other unknown members of the New Orleans Police Department. In the alternative, plaintiff alleges that defendants and the Levee Board are further liable for failing to intervene when plaintiff was initially struck in the head by Petit and later when his face was being slammed into the squad car.
Under Louisiana law, two or more persons are joint tortfeasors if each of their actions were a substantial factor in causing harm to the plaintiff. See Monger v. McFarlain, 204 So. 2d 86 (La.App. 3d Cir. 1968); Williams v. Parish of E. Baton Rouge, 417 So. 2d 483 (La.App. 1st Cir. 1982). When tortfeasors jointly cause harm, they can be said to be joint tortfeasors. Cargo v. Green, 463 So. 2d 685, 686-87 (La.App. 4th Cir. 1958); Hoefly v. Gov't Employees Ins. Co., 418 So. 2d 575, 576-79 (La. 1982). Black's Law Dictionary defines joint tortfeasor as "[t]wo or more tortfeasors who contributed to the claimant's injury and who may be joined as defendants in the same lawsuit." BLACK'S LAW DICTIONARY 1497 (7th ed. 1999).
Louisiana Civil Code article 2324 defines the relationship between joint tortfeasors as those who are jointly liable because they are jointly at fault. Cormier v. Clemco Serv. Corp., 48 F.3d 179, 182 (5th Cir. 1995). Further, it does not matter that one tortfeasor committed an act of commission while another committed an act of omission:
Negligence constituting the cause of an accident may consist of acts of omission as well as commission, or combinations of the two. Acts of omission are almost always passive and continuous, whereas acts of commission are more frequently active and precipitate. We discern no purpose to be served by characterizing the negligent act as passive or active. The real inquiry must be whether the negligence in question (active or passive) either independently or in combination with the negligence of others, caused the injury to plaintiff.Woods v. Employers Liab. Assurance Corp., 172 So. 2d 100 (La.App. 1st Cir. 1965).
Rec. Doc. No. 1, at ¶ 22.
Rec. Doc. No. 1, at ¶ 23.
The Fifth Circuit has held that an officer who is present at the scene and does not take any reasonable measures to protect a suspect from another officer's use of excessive force may be held liable under § 1983. Hale v. Townley, 19 F.3d 1068, 1075 (5th Cir. 1994). Further, the fact that the officers are from different law enforcement agencies does not relieve liability. Id.
The Seventh Circuit has enunciated the elements of a § 1983 failure to intervene claim:
An officer who is present and fails to intervene to prevent other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer has reason to know: (1) that excessive force was being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring . . . Whether an officer had sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 477 (7th Cir. 1997) (internal citations omitted).
The First Circuit is in accord with the Seventh Circuit. It has held that a defendant can only be held liable under § 1983 for failing to intervene if he was present when excessive force was used, observed the use of excessive force, was in a position where he could realistically prevent that force, and had sufficient time to do so. Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001); Gaudreault v. Mun. of Salem, Mass., 923 F.2d 203 (1st Cir. 1990).
Under these alleged facts, and because all well-pleaded facts are accepted as true when considering a motion for judgment on the pleadings, the plaintiff can state a valid claim that the instant defendants and the Levee Board and/or Petit and Robinson are joint tortfeasors. Plaintiff is, therefore, entitled to offer evidence to support his claim.
Defendants' only argument in support of their motion for judgment on the pleadings is that plaintiff sued the wrong defendant in the previous suit and that suing the wrong defendant does not interrupt prescription as to the correct defendant. This argument is not persuasive as plaintiff is now alleging that the defendants are either solidary obligors or joint tortfeasors. Further, defendants' argument fails to address whether defendants are solidary obligors or joint tortfeasors with the Levee Board and/or Petit and Robinson.
Accordingly,
IT IS ORDERED that defendants' motion for judgment on the pleadings is DENIED.