Joseph
v.
Port of New Orleans

This case is not covered by Casetext's citator
United States District Court, E.D. LouisianaMar 4, 2002
Civil Action No. 99-1622 Section "N" (E.D. La. Mar. 4, 2002)

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Civil Action No. 99-1622 Section "N"

March 4, 2002


ORDER AND REASONS


Before the Court are the following motions: (1) Corporal Shane Stuntz' Motion to Dismiss and/or for Summary Judgment, seeking dismissal of all of the plaintiffs claims as a matter of law on the basis of qualified immunity and complete failure of proof as to causation, an essential element of the plaintiffs claim upon which plaintiff bears the burden of proof; (2) Sheriff Charles C. Foti's ("Sheriff Foti"), and Dr. Emile Riley's ("Dr. Riley") Motion for Summary Judgment seeking dismissal of the plaintiffs claims against them as a matter of law on the basis of prescription; and (3) a Motion in Limine seeking to prohibit plaintiff from calling any expert witness at trial for failure to comply with FRCP Rule 26(a)(2)(B). Plaintiff, George Joseph ("Joseph") filed formal opposition to each of the foregoing motions. The defendants filed formal reply memoranda. The matters were the subject of an oral hearing conducted on Wednesday, February 20, 2002 at 9:30, after which counsel for plaintiff filed a post-hewing memorandum of law. For the reasons set forth below, the defendants' dispositive motions are GRANTED, and therefore the defendants' motion in limine is DISMISSED AS MOOT.

Defendants Robert C. Hecker, sued personally and in his official capacity as Superintendent of the Harbor Police, and the Board of Commissioners of the Port of Orleans also filed a Motion for Summary Judgment seeking dismissal of the claims against them as a matter of law. See Board of Commissioner's and Hecker's Motion for Summary Judgment [Rec.Doc. No. 51]. That motion was dismissed as moot, because the plaintiff voluntarily dismissed his claims against defendants, the Harbor Police Department, Hecker (in both his individual and official capacities) and the Board of Commissioners of the Port of Orleans. See Minute Entry Order dated February 13, 2002 [Rec.Doc. No. 57]. The plaintiffs dismissal of his claims against the aforesaid defendants was recorded by David Zarek, Court Reporter.

I. UNDISPUTED FACTS

On August 5, 1998, the plaintiff Joseph, a paraplegic, was found in the parking lot of a vacant apartment complex in the 4300 block of Charters Street in the City of the New Orleans. He was discovered on the ground next to a vehicle with the driver's side door left open, the steering column stripped, and a screw driver in plain view. The vehicle was a Ford Taurus in which Joseph had admittedly been an occupant, and inside of which his wheelchair remained.

Defendant Corporal Shane Stuntz ("Stuntz") was acting in the course and scope of his duties with the Port of Orleans' Harbor Police, patrolling Charters Street, an approach to property owned by the Port of Orleans. Stuntz noticed Joseph sitting on the ground next to the car, with the vehicle's driver's side door open.

See Affidavit of Clayton L. Miller, Industrial Development Manager for the Port of Orleans, employed by the Board of Commissioners of the Port of Orleans [Exhibit "A" to Stuntz' Reply to Memorandum in Support of Summary Judgment]; and Affidavit of Duane Johnson, Interim Superintendent of the New Orleans Police Department (NOPD) [Exhibit "B" to Stuntz' Reply to Memorandum in Support of Summary Judgment].

Due to the undisputably suspicious circumstances, Stuntz stopped his patrol car, and approached Joseph for the purpose of investigating the situation. Plaintiff concedes there was reasonable suspicion to investigate. Stuntz contacted the office from the scene to run a check on the Taurus. Stuntz could see into the Taurus, noticing both a screw driver and the stripped steering column, suggesting that the car was stolen. Stuntz was then informed that the vehicle had been reported as stolen form Enterprise Car Rental in Kenner. Corporal Stuntz mirandized Joseph, who admitted that he had been in the vehicle and that his wheel chair was in the stolen vehicle. Stuntz placed Joseph under arrest, noting only the charge of being in possession of the stolen property. He then transported plaintiff to the Orleans Parish Prison ("OPP"), where custody of Joseph was turned over to the Orleans Parish Criminal Sheriffs Office. Corporal Stuntz never saw Joseph again after transferring his custody over to the Orleans Parish Criminal Sheriffs Office. The brief period of 30 to 45 minutes spent at the scene on Charters Street and transferring the plaintiffs custody to Sheriff Foti was extent and limit of Corporal Stuntz' contact with the plaintiff

Following the arrest by Corporal Stuntz, Joseph remained in the custody of the Sheriff Foti in OPP less than thirty days ( i.e., from August 5, 1998 until September 2, 1998), when his mother finally succeeded in raising bond money for his release. When Joseph failed to attend his arraignment, set for October 16, 1998, he was once again arrested (not by Corporal Stuntz). On October 26, 1998, plaintiff was arraigned and a hearing was set for December 2, 1998. After failing to appear for motions set for December 2, 1998, Joseph was again arrested by the NOPD, incarcerated, and his bond was forfeited, this time for five months. Approximately four months later on March 26, 1999, Joseph was released, when the criminal charges against him were dismissed ("nolle prossed").

See Order and Reasons, dated August 12, 1999, (setting out the factual background relative to the Board of Commissioner's and the Harbor Police Department's Motions to Strike, Motion for More Definite Statement, Motion to Dismiss for Failure to Join a Party under Rule 19, and Motion to Dismiss for Failure to State a Claim and granting its Motion to Dismiss in part, granting its Motion to Strike and Alternative Motion for More Definite Statement, granting its Motion to Strike Punitive Damages, and denying its FRCP Rule 19 Motion to Dismiss for Failure to Join the Orleans Parish Criminal Sheriff, Sheriff Foti) [Rec.Doc. No. 7, at pp. 2, 9-10].

The Affidavit of Ida Joseph states in plain and certain terms:

At the time of George's arrest by Officer Shane Stuntz on August 5, 1998, he had a small dicubitus ulcer in the middle of his butt. I know this ulcer was there and that it was small because I was the only one who took care of it, I dressed the ulcer, and I know for a fact that he was managing it well. You can still see the little bit of thing (the ulcer) he had when he was arrested and it is still there even now and it is almost healed. . . . When he was rearrested and spent time again in the Prison from December 3, 1998 until March 25, 1999, he developed an entirely different much more difficult bed sore . When I retained Mr. Band to defend my son, I knew only that he was having problems with the new bed sore, but I did not connect the new bed sore with any medical neglect. . . .

See Affidavit of Ida Joseph dated February 12, 2002 [Exhibit "3" to Opposition to Sheriff Foti's Motion for Summary Judgment]; see also Affidavit of George Joseph dated February 12, 2002 [Exhibit "1" to Opposition to Sheriff Foti's Motion for Summary Judgment].

It is not disputed that the damages claimed result from an entirely new injury. There is no connection, whatsoever, between the conduct of Corporal Stuntz in arresting Joseph on August 5, 1998, and Joseph's injuries and consequent damages allegedly occurring after his December 3, 1998 arrest, when his bond was revoked for five months on account of his failure to appear for his December 2, 1998 hearing. Four months intervened, while petitioner was out on bond, prior to his rearrest for failure to appear on December 3, 1998. The physical injuries and damages Joseph claims in this lawsuit are allegedly sequella to this "entirely new" dicubitis ulcer, which developed during his custodial detention between December 3, 1998 and March 25, 1999, when he was released from custody. The damages plaintiff claims are with respect to this "new" injury.

The case is approximately 2 ½ years old and plaintiff has made four attempts to meet the "heightened pleading standard" applicable to Corporal Stuntz, to no avail. Each time, plaintiff merely presents a larger field of rhetoric, and then essentially relies on the Court to figure out what claims he has succeeded in stating. It became apparent in oral argument that the plaintiffs argument is simply that his injuries as a result of the alleged wrongdoing are so severe that the plaintiff is entitled to jury trial, regardless of whether there remain any material issues of fact to determine. There is no question but that the plaintiffs injuries are quite serious and debilitating. However, the severity of the plaintiffs injuries does not dictate the standard applicable to the moving parties' dispositive motions.

It is noteworthy that Judge Duval's Order and Reasons dated August 12, 1999 addressed the "heightened pleading standard," however, it did so only as to the municipal defendants and not Corporal Stuntz, individually. Judge Duval specifically noted that while the plaintiff had a difficult road ahead in attempting show "a pattern or practice" of unconstitutional behavior on the part of the Port and the Harbor Police, paragraph 16(a) of plaintiffs original petition for damages met the required standard under the liberal notice pleading standard. See Order and Reasons, dated August 12, 1999 (noting that as to municipalities, the Supreme Court overruled the "heightened pleading standard" imposed by the Fifth Circuit, citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993))[Rec.Doc. No. 7]. The Leatherman Court explicitly declined to consider heightened pleading against individual governmental officials, such as Shane Stuntz. In Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), the Fifth Circuit reaffirmed the "heightened pleading standard" as to defendants in their individual capacities. Id. at 1430.

The undisputed facts regarding circumstances of the plaintiffs tenure in Sheriff Foti's custody were that: (1) Joseph remained in jail initially for slightly less than thirty (30) days, but only because he could not procure bail prior to that time; (2) Joseph was rearrested December 3, 1998 and remained in custody for a period of several months thereafter, due to his failure to appear for the scheduled motion hearing on December 2, 1998; and (3) Corporal Stuntz played no part in effecting plaintiffs arrest pursuant to the bench warrant issued on December 3, 1998 on account of Joseph's failure to appear.

II. PROCEDURAL BACKGROUND

Several months after his release from the custody of the criminal sheriff, Joseph filed suit pursuant to 42 U.S.C. § 1983 against the Port of Orleans, the Port of Orleans Harbor Police Department, and Corporal Shane Stuntz, individually. Therein, Joseph claimed that he was wrongly detained and wrongly treated while incarcerated. He further complained of callous, insensitive, malicious and disproportionate behavior, as well as wanton and malicious reporting on the part of Corporal Stuntz. Plaintiff alleged that he suffered mental anguish on account of his wrongful arrest and detention, and that his rights to due process of law and to be free from cruel and unusual punishment were violated, since he was allegedly not given proper medical attention nor allowed to stay in special handicapped facilities while incarcerated. Plaintiff claims that he developed severe bed sores that required surgery the week of May 1, 1999. In his original petition for damages, plaintiff alleged no violations of Louisiana law.

See Plaintiff's Petition for Damages, filed May 27, 1999 [Rec.Doc. No. 1].

On August 12, 1999, Judge Stanwood Duval denied the Port of Orleans' FRCP Rule 19 Motion to Dismiss for Failure to Join Sheriff Foti. It is clear, and is the law of the case, that as early as July 13, 1999, when the Port of Orleans Filed its FRCP Rule 19 Motion to Dismiss, and in no event later than August 12, 1999, when Judge Duval issued his Order and Reasons denying that Rule 19 motion, the plaintiff was fully apprised of the facts giving rise to any claim he could possibly have had against Sheriff Foti and Dr. Riley. The municipal defendants argued, in no uncertain terms in the context of their Rule 19 Motion to Dismiss, that any award to plaintiff must be born by the rightful defendant, Sheriff Foti, considering that the plaintiffs injuries, if any, were the result of negligent acts of the employees of Orleans Parish Prison (OPP). Judge Duval noted that the plaintiff is the architect of his lawsuit, and in the absence of prejudice to the defendants, the court need not require joinder of parties that the plaintiff does not wish to sue. Judge Duval then explained to the parties that if the defendants are correct that Foti is solely responsible for Joseph's injuries, then the municipal defendants will prevail at trial, meaning that the plaintiff will receive no award for his injuries.

See Order and Reasons, dated August 12, 1999, at p. 9 [Rec.Doc. No. 7].

Id. at p. 10 (emphasis added).

See Order and Reasons, dated August 12, 1999, at pp. 9-10.

Nevertheless, when plaintiff filed his first supplemental and amended complaint approximately two weeks later, adding Robert S. Hecker, individually and in his capacity as Superintendent of the Board of Commissioners of the Port of Orleans, Joseph did not also add Sheriff Foti or Dr. Emile Riley as party defendants. Plaintiff also did not amend his petition to add any claims under Louisiana state law.

See Plaintiff's First Supplemental and Amending Complaint, adding Robert S. Hecker [Rec.Doc. No. 8].

On October 26, 1999, Corporal Stuntz of the Harbor Police answered plaintiffs original and first supplemental and amending complaints, raising "qualified immunity" as his first defense and seeking compliance with the "heightened pleading" standard as required by Schultea as his second defense. Corporal Stuntz further averred that plaintiff must identify each Amendment to the United States Constitution relied on upon, and plead facts supporting each and every element of each of his constitutional claims separately.

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc).

See Corporal Stuntz' Answer to First Supplemental and Amended Petition [Rec.Doc. No. 9].

Corporal Stuntz' Answer to First Supplemental and Amended Petition, at p. 5.

On October 26, 1999, both Hecker and Stuntz filed motions for a Rule 7 (a) Reply. Both motions were granted. On February 8, 2000, plaintiff filed one Rule 7 Reply addressing both Hecker's and Stuntz' motions, collectively. Instead of identifying each Constitutional Amendment allegedly violated, and further separately delineating the elements of each claim as well as facts supporting each alleged constitutional violation separately as required, Joseph replied as follows, in pertinent part vis a vis Corporal Stuntz, to wit:

See Stuntz' Motion for Rule 7(a) Reply [Rec.Doc. No. 13]; and Hecker's Motion for Rule 7(a) Reply [Rec.Doc. No. 12].

See Minute Entry Orders dated December 6, 1999 and December 9, 1999 [Rec.Doc. Nos. 14 and 15].

Stuntz had no reason to believe that plaintiff has committed a crime, was committing a crime, or was about to commit a crime when he approached the plaintiff and interfered with his constitutional right to be left alone. It is also apparent that Officer Stuntz exceeded the scope of his jurisdiction when he arrested the plaintiff without probable cause.

* * *

Under these circumstances, it was obvious to Stuntz that Joseph was paralyzed and immobile, which itself should clearly have set off a need for closer investigation into the circumstances. In actuality, what really happened was Stuntz chose to arrest Joseph solely because the actual culprit had escaped, and was trying to play "Kojak" because his supervision by the Harbor Police and Superintendent Hecker was so lax, and permissive, to get Harbor Policemen to strike out in to city streets to make a good name for the alert policemen of the department. Plaintiff has already plead "bad faith" on the part of Stuntz. . . . These defendants have failed to plead their good faith, an indispensable element of qualified immunity, and further they have not negated Joseph's suggestions that the actions of the Harbor Police were motivated by a kind of reckless abandon in police work to make a name for their department. What more can he plead? The ends of justice dictate that he receive the relief he seeks.

See Joseph's Rule 7(a) Reply [Rec.Doc. No. 18].

It was not until January 3, 2001, that plaintiff filed a Second Supplemental and Amending Complaint adding Sheriff Charles C. Foti, Dr. Emile Riley, and Miriam Schultz as party defendants. Plaintiff also added allegations regarding some ill-defined violation of the Americans With Disabilities Act of 1990 (ADA), citing 42 U.S.C. § 12101 (b), and the Louisiana Civil Rights Act for Handicapped Persons (LCRAHP), citing L.S.A.-R.S. 46:2251. Other than Louisiana's counterpart of the ADA, petitioner alleged no violations of Louisiana law. On February 15, 2001, Corporal Stuntz filed his answer to plaintiffs second supplemental and amended petition. On February 2, 2001, Sheriff Foti and Dr. Emile Riley filed their answer to plaintiffs second supplemental and amended complaint. On August 3, 2001, plaintiffs claims against Miriam Riley were dismissed without prejudice for failure to prosecute pursuant to FRCP Rule 4(m). Via minute entry order, the trial of this matter was fixed for the third time, for March 25, 2002. Thereafter on January 2, 2002, the case was reassigned to the undersigned. All of the remaining defendants filed dispositive motions: (1) Stuntz' motions were predicated on his qualified immunity and a complete failure of proof as to causation of damages; and (2) Sheriff Foti/Dr. Riley's motion for summary judgment sought dismissal on the basis of prescription.

See Joseph's Motion for Leave of Court to Amended Pleading and Second Supplemental and Amending Petition adding Sheriff Foti, Dr. Emile Riley (director of Orleans Parish Criminal Sheriffs Office), and Miriam Schultz (onsite supervisor of the Criminal Sheriffs medical program operations) [Rec.Doc. Nos. 29 and 30].

See Id. at paras. C (adding paras. 2a and 2b), F, and the prayer (seeking relief in the form of punitive damages under the ADA, LCRAHP and § 1983, and attorney's fees, in addition to compensatory damages)[Rec.Doc. No. 30].

See Stuntz Answer and Affirmative Defenses to Plaintiff's Second Supplemental and Amended Petition [Rec.Doc. No. 32].

Sheriff Foti and Dr. Riley's Answer [Rec.Doc. No. 31].

Order, dated August 3, 2001 [Rec.Doc. No. 38].

Minute Entry Order entered November 27, 2001 [Rec.Doc. No. 40].

III. ANALYSIS

A. Standards of Review 1. FRCP. Rule 12(b)(6) Motion to Dismiss Standard

A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is viewed with disfavor and is rarely granted. A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "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" In reviewing a Rule 12(b)(6) motion, the court must accept all of the well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. In ruling on such a motion, the court cannot look beyond the face of the pleadings.

Lowrey v. Texas A M University System, 117 F.3d 242, 247 (5th Cir. 1997).

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (9 Cir. 1995).

Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000).

The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal.

Lowrey,, 117 F.3d at 247.

See Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).

Dismissal is warranted if a plaintiff has (1) been given the opportunity to plead his best case, (2) made specific and detailed allegations constituting his best case, and (3) still fails to state a claim. In this case the plaintiff has had four such opportunities, and failed to do so in connection with Corporal Stuntz.

See Jacquez v. Procunier, 801 F.2d 789, 792-793 (5th Cir. 1986) (recognizing that dismissal is required if a plaintiff has had a fair opportunity to make his case, but has failed); Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (assuming that the specific allegations of the amended complaint constitute the plaintiffs best case).

2. FRCP Rule 56 Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "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(c). "The moving party 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, 76 F.3d 651, 656 (5th Cir. 1996).

If the movant meets the aforesaid burden, then "nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) ( en banc). To meet this burden, the nonmovant must "identify specific evidence in the record, and articulate the "precise manner in which that evidence supports its claims." Stults, 76 F.3d at 656 (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 115 S.Ct. 195 (1994)).

Whereas here, 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." See Tubacex, Inc., 45 F.3d at 954. Finally, the Court notes that the 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).

As to the defendant Corporal Stuntz, there is a complete failure of proof as to the issue of causation as to both the plaintiffs federal claims and any state law claims, and thus all other disputed facts are immaterial. Corporal Stuntz in entitled to summary judgment dismissing plaintiffs claims against him as a matter of law. There are also no disputed issues of material fact, regarding Sheriff Foti's and Dr. Riley's defense of prescription.

B. Plaintiff's Claims against Corporal Stuntz

1. Qualified Immunity

Corporal Stuntz filed a Shultea qualified immunity motion. Plaintiffs Rule 7(a) Reply reiterated above in pertinent part is far from adequate. His opposition to the instant motion is also not sufficient to preclude entry of judgment as a matter of law. Plaintiffs argues that "this case is a little bit like pornography . . . hard to define but [you] know it when [you] see it." Hence, this Court conducted an oral hearing with respect to Corporal Stuntz's motion on February 20, 2002.

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995). In Schultea, the Fifth Circuit recognized the right of a public official, sued for alleged violation of Constitutional rights, who asserts the affirmative defense of qualified immunity, to require the plaintiff to reply to the qualified immunity defense in detail directed specifically to the qualified immunity defense.

See Plaintiff's Opposition to Officer Stuntz's Motion for Summary Judgment [Rec.Doc. No. 62 at para. III].

Section 1983 provides that "[e]very person who, under color of any statute ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law." A defendant state actor sued in his individual capacity under § 1983 is entitled to invoke the defense of qualified immunity.

42 U.S.C. § 1983.

Burns-Toole v. Byrne, 11 F.3d 1270, 1273 (5th Cir. 1994), cert. denied, 512 U.S. 1207, 1114 S.Ct. 1280 (1994).

A public official performing a discretionary function enjoys qualified immunity in a civil action for damages, provided his conduct does not "violate clearly established federal, statutory, or Constitutional rights of which a reasonable person would have known." It is clear that the immunity afforded by the qualified immunity defense is immunity from suit rather than a mere defense to liability." The shield of "qualified" or "good faith" immunity is generally available to government officials performing discretionary functions, such as Corporal Shane Stuntz here, sued under 42 U.S.C. § 1983 in his individual capacity. The qualified immunity defense was intended to balance the need to stem abuses of office with the expense of litigation, the diversion of official energy from pressing public issues, and deterrence from government service. It protects these competing interests while allowing trial courts to resolve "insubstantial claims" before trial.

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034 (1987); Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985).

See Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000); see also Anderson v. Chreighton, 483 U.S. 635, 640 (1987).

Harlow, 457 U.S. at 818; see also Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683 (1974).

Harlow, 457 U.S. at 818.

Most recently in Saucier v. Katz, the Supreme Court reiterated the sequence in which a trial court is to consider the qualified immunity defense issues. In a suit against an officer for an alleged violation of a Constitutional right, the requisites of a qualified immunity defense must be considered in the proper sequence early in the proceedings so that the costs and expenses of trial are avoided when the defense is dispositive. The threshold inquiry is to determine whether the plaintiff has alleged the deprivation of an actual constitutional right. If this threshold inquiry is not met, there is no need for further inquiry. If the plaintiff alleges the deprivation of a constitutional right, the court must then decide whether that right was clearly established at the time of the alleged violation. If the plaintiff is successful, the Court must then determine whether the defendant's conduct was objectively reasonable in the light of the clearly established law at the time of the alleged violation. Qualified immunity gives ample room for mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001).

In Seigert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789 (1991), the United States Supreme Court set forth the analytical framework for determining the sufficiency of the plaintiffs allegations vis a vis a defendant's defense of qualified immunity.

Saucier v. Katz, 121 S.Ct. at 2156.

Id.; Siegert v. Gilley, 500 U.S. 226, 232 (1991).

See Bazan v. Hildalgo County, 246 F.3d 481, 490 (5th Cir. 2001).

See Anderson v. Creighton, 483 U.S. 635, 641 (1987); Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092 (1986); and Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).

"Objective reasonableness" is a matter of law for the court to decide. The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law. Therefore, "even law enforcement officials who `reasonably but mistakenly commit a constitutional violation,' are entitled to immunity." The burden is on the plaintiff to overcome a defendant's defense of qualified immunity.

See Goodson, 202 F.3d at 736.

Id.

Id.; see also Anderson v. Creighton, 483 U.S. at 639.

See Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994); and Burns-Toole v. Byrne, 11 F.3d at 1274.

2. 42 U.S.C. § 1983

To state a claim under § 1983, plaintiff must allege a violation of either a federal statute or federal constitutional right. Over the period of the last two and a half years, plaintiff has attempted but failed to meet "heightened pleading" requirements with respect to his Fourth Amendment, Eighth Amendment, Franks claim and his supplemental handicap discrimination claims under both the Americans with Disabilities Act of 1990 (ADA) and the Louisiana Civil Rights Act for Handicapped Persons (LCRAHP). Presumably these are the rights Joseph seeks to enforce via § 1983. Plaintiff has failed to plead facts regarding Corporal Stuntz' actions which implicate each such separately alleged constitutional violation or violation of a federal law. As discussed below, plaintiff has failed to separately set forth the elements of each such alleged violation, for the purpose of demonstrating that each and every element of his claims is met with respect to the liability of Corporal Stuntz.

3. Unlawful Arrest, Detention, and Excessive Force

Individuals have a federally protected right to be free from unlawful arrest and detention resulting in a significant restraint of liberty, and violation of this right can be grounds for suit under Section 1983. The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief stop short of traditional arrest. The constitutional standard for justifying such an intrusion demands that a police officer must be able to point to "specific and articulable facts" which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

Dennis v. Warren, 779 F.2d 245, 247 (5th Cir. 1985).

Id.

All claims that a law enforcement officer used excessive force in the course of an arrest are analyzed under the Fourth Amendment's "reasonableness" standard. The elements of the claim are (1) an injury which (2) resulted directly and only from the use of force that was clearly excessive to the need, and the excessiveness of which was (3) objectively unreasonable. The amount of injury necessary to satisfy the Fifth Circuit's requirement of "some injury" and establish a constitutional violation is directly related to the amount of force that is constitutionally permissible under the circumstances. Therefore, the injury must be more than a de minimis injury, evaluated in a context in which the force was deployed.

Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995 (1992).

Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir. 1996); see Gomez v. Chandler, 163 F.3d 921, 9223 (5th Cir. 1999) (explaining that "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm" has played an important role in determining whether an injury is more than de minimis).

Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).

The Fourth Amendment requires that an arrest be supported by either a properly issued arrest warrant or probable cause. Probable cause exists "when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person conclude that the suspect had committed or was committing an offense." Simply stated, a finding of probable cause does not require an actual showing of criminality. Plaintiffs argument that probable cause must be tantamount to proof of guilt beyond a reasonable doubt finds no support in the law.

Id. at 313.

Spiller v. City of Texas, 130 F.3d 162, 165 (5th Cir. 1997).

In the case at bar, there are no underlying historical facts in dispute that are material to the resolution of the question of whether the defendant Stuntz acted in an objectively reasonable manner. Plaintiff admits that Stuntz approached him, acting upon "reasonable suspicion" to investigate. It is uncontroverted that further investigation revealed that Joseph, albeit wheelchair bound, was in possession of a stolen vehicle and had been joy-riding in that stolen vehicle with an acquaintance. When Stuntz approached, Joseph was seated on ground next to the stolen vehicle, and his wheelchair remained in the stolen car. The only charge noted by Stuntz in his report made at the time of plaintiffs arrest was that of possession of a stolen vehicle in violation of L.R.S. 14:69. Stuntz did not charge Joseph with either theft of the vehicle or operating a stolen vehicle.

See Plaintiff's Opposition to Stuntz's Motion for Summary Judgment, at p. 6.

Plaintiff has failed to come forward with any evidence of malicious, cruel, or unusual treatment by Corporal Stuntz. Plaintiff disavows that Stuntz employed any force in effecting his arrest, and admits that the officer Stuntz picked him up off the ground in same manner as his mother would have handled him.

L.R.S. 34:26 provides in pertinent part that:

The port and harbor police shall have, under the direction and control of the board of commissioners, the same power to make arrests, in and upon the property within the jurisdiction of the board and approaches thereto, and to execute and return all criminal warrants and processes, as sheriffs of this state have, and shall under the same direction and authority, have all powers of sheriffs as peace officers in all places and on all premises under the jurisdiction and control of the board, and the streets and approaches thereto. Any persons arrested by officers of the board and the return of all warrants or processes served by said officers shall be forthwith surrendered or delivered to the criminal sheriff of the Parish of Orleans

La.Rev.Stat. 34:26. That the 3400 block of Charters Street is a street and approach to premises under the jurisdiction and control of the Board of Commissioners for the Port of Orleans cannot reasonably be the subject of any genuine dispute. Based upon the submissions of record to date, the Court can take judicial notice of that fact Charters Street constitutes an approach to premises under the jurisdiction of the Board of Commissioners for the Port of Orleans. In any event, and assuming arguendo that Stuntz was acting outside of his jurisdiction, at best such would constitute a violation of state law. A violation of state law is not actionable under Section 1983.

F.R.E. Rule 201 provides that the district court may take judicial notice of adjudicative facts, which are not subject to reasonable dispute, are generally known, or are capable of accurate and ready determination by resort to sources whose accuracy is not reasonably questioned. A court may do so at any stage of the proceedings, whether or not a party requests. See Fed.R.Evid. 201; see also United States v. Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir. 2001) (the geographical location of prison was an adjudicative fact); United States v. Schmitt, 748 F.2d 249 (5th Cir. 1984), cert. denied, 105 S.Ct. 2333 (1985) (error not to take judicial notice of state statute); State v. Bowers, 660 F.2d 527 (5th Cir. 1981) (permissible to notice location of army base).

4. Franks Claim

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1997), the Supreme Court established that a search violates the Fourth Amendment if it was conducted pursuant to a warrant issued by a magistrate who was misled by information in an affidavit, provided that the affiant knew that the information was false or would have known it was false except for his reckless disregard for the truth. 438 U.S. at 171.

The Court now addresses plaintiffs argument that Corporal Stuntz is liable for delaying the decision not to prosecute ( i.e., to "nolle prosse") the charge of possession of stolen property levied against Joseph. The plaintiff has attempted to state a Franks claim. However, plaintiff has failed to identify any scurrilous lies or malicious information included in Stuntz' report relevant to the charged violation (possession of a stolen vehicle). Additionally, there is not so much as a scintilla of evidence that, after plaintiffs arrest on August 5, 1998, Stuntz had any interaction with either the plaintiff or the pending criminal proceedings. There is no dispute that plaintiff remained in the custody of Sheriff Foti between the period of August 5, 1998 and September 2, 1998 only because it took that length of time (i.e., less than 30 days), for his mother post a bond to secure his release from custody.

The decision to initiate a prosecution, proceed with the prosecution, and the timing of all such matters are within the purview of the District Attorney, acting as advocate to carry out these functions. Acting in this role (i.e., advocate rather than an investigator or administrator), a district attorney would enjoy absolute immunity for claims arising out these functions.

See Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 507 (1997) (emphasizing the functional approach to determining absolute immunity, and explaining that it protects the proscutor's role as an advocate).

The line between prosecutor as advocate and prosecutor as investigator, administrator and/or complaining witness rests, in turn, in part on the policy interest in enabling [the prosecutor] to exercise independent judgment when "deciding which suits to bring and in conducting them in court.'" Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); see also Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir. 1999).

The plaintiff has failed to cite any authority which stands for the proposition that a law enforcement officer has any duty to stay in touch with the prosecutor of a particular case, to monitor the criminal proceedings against a detainee, or to monitor the conditions of confinement of an arrestee/detainee, once he is no longer in the law enforcement officer's custody. Plaintiff has failed to plead facts detailing conduct of Corporal Stuntz in contravention of Franks in any significant particular. In the case at bar the defendant went above and beyond the call of Franks, by including all relevant or material exculpatory information in his report ( i.e., the facts that Joseph was wheelchair bound and that he denied knowing that the vehicle was stolen). The undisputed facts in this case do not permit the inference of either recklessness or maliciousness in filling out the incident report. Moreover, Joseph has failed to make any showing that Stuntz made a false material statement. For the same reasons noted above, the plaintiff has failed to state a claim for malicious prosecution under the Fourth Amendment. More particularly, Joseph has failed to adduce any evidence which tends to suggest that Stuntz was involved in the decision to prosecute the charge against Joseph, and under the undisputed facts, maliciousness and recklessness cannot be inferred.

The Franks holding has been extended to cover alleged omissions in a supporting affidavit, as well as false statements. See United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995).

5. Americans with Disabilities Act (ADA)

The relevant portions of the ADA provide that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." The term "public entity" means any State or local government, any department, agency, special purpose district, or other instrumentality of a State or States or local government.

Id. at § 12132.

Id. at § 12131.

Corporal Stuntz is sued in his individual capacity. The majority of courts that have addressed the issue have held that the ADA does not permit claims against persons in their individual capacities. Stuntz is not subject to suit under Title II of the ADA, since by its terms the statute is applicable only to public entities. The municipal entities, however, have been dismissed.

See Hanson v. Medical Board of California, 2002 WL 4206414 (9th Cir.) (finding no error in dismissing the individuals sued in their personal capacities); Gray v. Wilburn, 264 F.3d 999, 1006 (10th Cir. 2001) (Title II of the ADA covers discrimination by government entities); Garcia v. S.U.N.Y. Health Services Center of Brooklyn, 2001 WL 159970 (2nd Cir.) (Title II applies to state and municipal governments); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999); Hallett v. New York State Department of Correctional Services, 109 F. Supp.2d 190, 199 (5. D. N. Y. 2000); and Montez v. Romer, 32 F. Supp.2d 1235, 1240-41 (D. Colo. 1999).

In order to establish a claim under the ADA, the plaintiff must show that (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits or discrimination was by reason of the plaintiffs disability.

See Badillo-Santiago v. Andreu-Garcia, 70 F. Supp.2d 84, 89 (D. P. R. 1999);

In Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000), the court held that a mentally ill plaintiff who had been shot by police as he walked toward them with a knife despite their orders to stop did not have a cause of action under the ADA, stating that "Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer securing the scene and ensuring that there is no threat to human life." In dicta, the court observed that once an area was secure and there was no threat to human safety, the deputies would have been under a duty to reasonably accomodate the arrestee's disability in handling him and transporting him.

Hainze v. Richards, 207 F.3d 795, 797, 801 (9 Cir. 2000), cert. denied, 531 U.S. 959, 121 S.Ct. 384 (2000).

Id. at 802.

Moreover, the plaintiff has come forward with not a shred of evidence of any injury sustained during his August 5, 1998 arrest and transport to Sheriff Foti's prison. There is no allegation that Stuntz failed to accommodate the plaintiffs disability in handing him and transporting him to OPP. Even assuming the plaintiff suffered emotional distress, embarrassment, fear and anxiety about the brief patrol car ride to the OPP, petitioner has made no attempt to show how these feelings differ from those that would be experienced by a non-paraplegic person. Humiliation and embarrassment are emotions experienced by almost every person arrested.

See Rosen v. Montgomery County Maryland, 121 F.3d 154 (4th Cir. 1997) (noting that plaintiff was unable to point to any tangible adverse consequences of his arrest and resting its decision on the even more fundamental infirmity of lack of any discernible injury).

It is also the plaintiffs burden of proving discriminatory motive (i.e., disability discrimination). Handicap discrimination, as a motivating force, is not mentioned once in plaintiffs Rule 7 Reply.

6. Louisiana Civil Rights Act for Handicapped Persons (LCRAHP)

L.S.A.-R.S. 46:2251 et seq.

In a claim under the LCRAHP, the plaintiff is required to prove by a preponderance of the evidence that intentional handicap discrimination was a motivating factor, and must show some nexus between the defendant's conduct and the plaintiffs disability. Random conduct or remarks concerning matters unrelated to handicaps or disabilities will not suffice. The focus of the Court is Joseph's Rule 7 Reply. It simply reiterates the plaintiffs subjective belief that Stuntz had no reason to believe Joseph committed a crime. In his Rule 7 Reply, Joseph goes on to characterize the motivating force behind Stuntz' conduct in arresting him as something other than handicap discrimination. The plaintiff avers: "In actuality, what really happened was Stuntz chose to arrest Joseph solely because the actual culprit escaped, and was trying to play "Kojak' because his supervision by the Harbor Police and Superintendent Robert Hecker was so lax. . . ." [emphasis added]. Plaintiff does not even pretend that handicap discrimination played any part in motivating Corporal Stuntz' conduct. The summary judgment record is uncontrovertedly to the effect that Stuntz did in fact reasonably accommodate Joseph in effecting his arrest and in transporting him to OPP.

See e.g., Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 357-58 (5th Cir. 1995).

See Stuntz' Motion for Summary Judgment, at Exhibit "1".

See Stuntz' Motion for Summary Judgment, at Exhibit "1" at p. 3.

7. Objective Reasonableness

Even assuming plaintiffs arrest on August 5, 1998 on the charge of possession of a stolen vehicle violated one of his federal constitutional or statutory rights that were clearly established at the time, this Court cannot find that Stuntz acted unreasonably under the circumstances. The Fifth Circuit's precedents are clear in pointing out that the question of "objective reasonableness" is a matter for the district court to decide. This Court has already found that probable cause existed at the time of the plaintiffs arrest, specifically noting the material facts cited in the narrative section of the harbor policeman's report that were in fact admitted. The only element of the crime which was denied by the plaintiff was "knowing" possession. The "knowing" element was easily discerned from the condition of the steering column of the vehicle and the presence of a screw driver in plain view in the front seat of the vehicle. That was observed by Stuntz before he called in the vehicle's license plate number to determine if it was, in fact, stolen vehicle. In summary, Stuntz was more than adequately justified in believing, to a "fair probability," that a crime had occurred, and in fact, one had (i.e., the Ford Taurus was a stolen vehicle). Accordingly, Stuntz is entitled to qualified immunity from plaintiffs federal and state law claims. Assuming without deciding that Stuntz violated state law in any of the particulars alleged, he would still be entitled to qualified immunity, in light of the Court's finding of the existence of probable cause to arrest.

See Goodson, 202 F.3d at 736.

See Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000).

See Knapper v. Connick, 681 So.2d 944, 947 (La. 1996) (noting that the Louisiana Supreme Court had previously harmonized the state's own immunity rules with the federal immunity principles); see also Moresi v. Dept. of Wildlife Fisheries, 567 So.2d 1081 (La. 1990).

8. Causation

The Court here notes, and plaintiffs pleadings and affidavit testimony demonstrate beyond cavil, that Corporal Stuntz' arrest of the plaintiff on August 5, 1998 was completely unrelated to any injuries plaintiff allegedly suffered thereafter in the custody of the Orleans Parish Prison Sheriffs deputies. The alleged "willful indifference to the plaintiffs medical needs" after his bond was revoked on December 3, 1998, cannot reasonably be attributed to the August 5, 1998 arrest. Plaintiffs Second Supplemental and Amending Complaint adding Sheriff Foti and Dr. Riley parallels the plaintiffs affidavit testimony, specifically alleging the failure to monitor his medical needs for the four month period between December 3, 1998 and March 25, 1999 as the real culprit. Plaintiff's allegations of wrongdoing by Stuntz bear no proximate, direct, or any relation whatsoever to the injuries which are the subject of his complaint.

See Affidavit of Ida Joseph dated February 12, 2002 [Exhibit "3" to Opposition to Sheriff Foti's Motion for Summary Judgment]; see also Affidavit of George Joseph dated February 12, 2002 [Exhibit "1" to Opposition to Sheriff Foti's Motion for Summary Judgment].

See Plaintiff's Second Supplemental and Amended Complaint, at p. 8 [Rec.Doc. No. 30].

Causation is an essential element of each and every one of the plaintiffs claims for damages, whether under federal or state law. Insofar as the liability of Corporal Stuntz is concerned, proof of causation is wholly absent.

In summary, regarding the plaintiffs "pleading stew," even the broadest reading reveals no actionable conduct on the part of Stuntz. It is clear on the face of the summary judgment record that his actions were taken in good faith and were within the scope of his discretionary authority and the Commissioner's jurisdiction. Plaintiff has failed to meet his burden pursuant to Schultea and his mere conjecture and surmise fail for lack of specificity. Stuntz is entitled to "qualified immunity." Alternatively, summary judgment is warranted on account of a complete failure of proof of many essential elements of the various claims noted above, not the least of which is causation.

C. Prescription of Remaining Claims against Sheriff Foti and Dr. Riley

Defendants argue that summary judgment is appropriate here because the plaintiffs claims have prescribed. Because there is no federal statute of limitations for § 1983 claims, the district court looks to forum state's statute of limitations for personal injury claims. The prescriptive period for personal injury actions under Louisiana law is one year.

See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998) (citing Moore v. McDonald, 80 F.3d 616, 620 (5th Cir. 1994)).

See id. (citing Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989)).

On the other hand, federal law determines when a § 1983 action claim accrues. In the context of "a claim for wrongful arrest and confinement, it is the plaintiffs knowledge of those two events that triggers the limitations period." Accordingly, plaintiffs federal claims accrued at the latest on September 2, 1998, regarding any claim against Stuntz. As to Sheriff Foti and Dr. Riley, however, his claims accrued at the latest on the occasion of his release on March 26, 1999, after having had his bond revoked for five months on account of his failure to appear for the December 2, 1998 motion hearing. It is uncontroverted that plaintiff did not file suit against Sheriff Foti and Dr. Riley until January 3, 2001. That is more than twenty months after the plaintiff was released from jail.

Id. at 319.

Id. (emphasis added).

See Plaintiff's Motion for Leave to Amend to File Second Supplemental and Amended Petition, filed December 12, 2000 [Rec.Doc. No. 29]; and Plaintiff's Second Supplemental and Amending Petition, filed January 13, 2001 (filed with leave of court and actually adding Sheriff Foti and Dr. Riley as party defendants) [Rec.Doc. No. 30].

As a prisoner, Joseph's cause of action for disability discrimination arises under Title II of the ADA, which does not contain a specific statute of limitations. The most analogous state statute of limitations applies. Thus, Louisiana's one year statute of limitations for personal injury actions applies to plaintiffs cause of action under the ADA. Because all of the denials of privileges about which Joseph complains ended on March 26, 1999, and he filed no complaint against Sheriff Foti and Dr. Riley until January 3, 2001, plaintiffs claims under the ADA are also time-barred.

See Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 1955 (1998).

See Holmes v. Texas A M University, 145 F.3d 681, 683-84 (5th Cir. 1998).

La. Civ. Code art. 3492.

Plaintiffs claims under the Louisiana Civil Rights Act for Handicapped Persons are also prescribed. The LCRAHP provides that "[w]hen any handicapped person believes that any person has engaged or is engaging in discriminatory practices, as defined in this chapter, he shall have one year from the date of the alleged discriminatory act to file a complaint in the appropriate civil district court." The same rationale discussed regarding plaintiffs time-barred disability discrimination under the ADA is applicable to plaintiffs claims pursuant to the LCRAHP. Thus, plaintiffs disability discrimination claims against Sheriff Foti and Dr. Riley under the LCRAHP are time-barred.

L.S.A.-R.S. 46:2256(A).

Under Louisiana law, prescription may be interrupted by the filing of suit in a competent court. Moreover, the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. Plaintiff argues that because he sued Stuntz within the applicable one-year statute of limitations periods, prescription as to all of his claims is interrupted as to both Sheriff Foti and Dr. Riley, because they are joint tortfeasors with the original defendants. The Court is not persuaded by the plaintiffs argument for the reasons discussed below.

See La. Civ. Code art. 3463.

See La. Civ. Code. art. 2324(C).

"When no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or solidary obligation exists." Plaintiff has voluntarily dismissed the municipal defendants, Hecker and the Port of Orleans. This Court has dismissed the plaintiffs claims against Corporal Stuntz, finding the doctrine of "qualified immunity" applicable, and alternatively, that there is a complete failure of proof as to causation, inter alia. Stuntz, Hecker, and the Port of Orleans are not liable to the plaintiff as a matter of law; therefore, there is no joint or solidary liability with Sheriff Foti and Dr. Riley.

See Harris v. Advance Transformer Company, 2000 WL 762889 (E. D. La.) (Vance, J.); and Gioustover v. Progressive American Insurance Company, 561 So.2d 961, 964 (La.App. 4th Cir. 1990) (holding prescription not interrupted as to alleged joint tortfeasor under article 2324(C) when timely sued defendants are found free from fault and dismissed from the lawsuit as a matter of law, since no joint or solidary obligation exists)).

See Harris v. Advance Transformer Company, 2000 WL 726889 (E. D. La. 2000) (Vance, J.) (rejecting argument under 2324(C) that timely suit filed against other defendant interrupted prescription as to the movant, when other defendant was dismissed without liability having been imposed upon it); Blanco v. Continental Oil Company, 2000 WL 575935 (E. D. La. 2000) (rejecting argument under article 2324(C); and Smith v. Xerox Corporation, 718 F. Supp. 494, 495-96 (E. D. La. 1989) (Arceneaux, J.) (Louisiana law's exception to prescription for solidary obligor against whom plaintiff timely filed suit did not apply when timely sued defendant was dismissed from suit).

Plaintiffs contention that his claims against Sheriff Foti and Dr. Riley are timely because his second supplemental and amending complaint "relates back" to the original filing date under Federal Rule of Civil Procedure 15(c) is also without merit. Rule 15(c) provides that an amendment of the pleading relates back to the date of the original pleading when:

(1) relation back is permitted by law that provides that statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and(B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Federal Rule of Civil Procedure 15(c).

The time period provided by Rule 4(m) for service of summons and complaint is 120 days. Even assuming arguendo that plaintiffs second supplemental and amended claims against Sheriff Foti and Dr. Riley arose out of the same transaction as set forth in the original petition ( i.e., Corporal Stuntz' arrest of the plaintiff on August 5, 1998), Rule 15(c)(3) does not apply because the defendants, Sheriff Foti and Dr. Riley, did not receive notice until after January 3, 2001, when service of the summons and complaint was effected. Sheriff Foti and Dr. Riley are not related to nor do they share the same counsel with either the dismissed municipal defendants or with Stuntz. Moreover, it is uncontroverted that Stuntz had no further contact with Joseph or any facet of his case subsequent to the August 5, 1998 arrest. Plaintiffs allegations of concerted action have no basis in fact at all.

Federal Rule of Civil Procedure 4(m).

See Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (inferring notice if "there is an identity of interest between the original defendant and the defendant sought to be added or substituted").

The record is devoid of evidence which would suggest that Sheriff Foti or Dr. Riley knew or should have known that, but for an error in identifying the correct defendant, the action would have been brought against them. To the contrary, the record rather admits but one conclusion (i.e., that early on in the proceedings, plaintiff made a conscious decision not to sue Sheriff Foti and Dr. Riley). Accordingly, because the "notice" and "mistake" provisions in Rule 15 (c)(3) have not been satisfied, the second supplemental and amended complaint against Sheriff Foti and Dr. Riley does not relate back to plaintiffs original petition for damages.

See Order and Reasons, dated August 12, 1999 [Rec.Doc. No. 7 at pp. 9-10].

In Jacobsen, the Fifth Circuit addressed the issue whether relation back should be permitted under the circumstances similar to those presented in the case at bar, and held it should not. The court explained that the stated purpose of Rule 15(c) is "`to allow amendment changing the name of the party to relate back to the original complaint only if the change is the result of error, such as a misnomer or misidentification.'"

See Jacobsen, 133 F.3d at 320-21.

Jacobsen, 133 F.3d at 320 (quoting Barrow v. Wethersfield Police Department, 66 F.3d 466, 469 (2nd Cir. 1995), modfied by, 74 F.3d 1366 (2nd Cir. 1996)); see also Taylor v. City of Winnfield, 191 F.R.D. 511, 514-14 (W.D.La. 2000) (relation back doctrine of Rule 15(c) unavailable to plaintiff who failed to name John Doe defendants within 120 days after filing complaint due to lack of knowledge as to their identity).

Failing to identify individual defendants Sheriff Foti and Dr. Riley cannot be characterized as a mistake which can be cured by Rule 15(c). It is clear on the face of the record that the plaintiff meant to sue Corporal Stuntz, and that naming him as a party defendant was no mistake. Relation back under Rule 15(c) is not permitted when the plaintiff simply lacks knowledge of the proper party.

See Jacobsen, 133 F.3d at 321.

Id.

"Relation back" is also not proper under Rule 15(c)(1) and Louisiana law. The Louisiana Supreme Court has interpreted article 1153 of the Louisiana Code of Civil Procedure, FRCP 15(c)'s state law counterpart. In Ray v. Alexandria Mall, the Louisiana Supreme Court construed article 1153, holding that it permits relation back under the same circumstances as its counterpart in FRCP Rule 15(c)(3). For the reasons previously stated supporting this Court's decision that relation back is improper under Rule 15(c)(3), application of the parallel provision under Louisiana law (article 1153), is likewise precluded.

See Ray v. Alexandria Mall, 434 So.2d 1083, 1085-87 (La. 1983) (permitting relation back when Rule 15(c)(3) criteria are met and purported substitute defendant is not a wholly new or unrelated defendant, because such a substitution would be tantamount to the assertion of a new cause of action which would have otherwise prescribed). The Louisiana Supreme Court overruled the exceptions in the Ray case, finding it pellucid on the basis of the record that plaintiff meant to sue "Alexandria Mall Company," but made the mistake of suing "Alexandria Mall," noting that there was only one Alexandria Mall in Alexandria, Louisiana. Id. at 1087. The Ray court further noted that the amended claim clearly arose out of the same transaction as her original complaint and that the substituted defendant named in the amended petitions clearly knew or should have known that but for the plaintiffs misnomer, the suit would have been brought against it. The substituted defendant's insurer had been paying plaintiffs hospital and medical bills all along, and the defendant's operating manager had been served with a copy of the petition before prescription had run. Indeed, Alexandria Mall waited silently until prescription had run before revealing its true identity by filing exceptions. Id.

See Findley v. City of Baton Rouge, 570 So.2d 1168, 1170-71 (La. 1990) (applying federal precedent to determine the propriety of relation back under Louisiana Code of Civil Procedure article 1153).

The law of the case obviates any argument that contra non valentum agere non currit prescriptio should enure to the benefit of the plaintiff in this case. non valentum prevents the running of liberative prescription in only four factual situations: (1) when a legal cause prevented the courts from taking cognizance of the claim; (2) when some condition prevented the plaintiff from suing; (3) when a debtor does something to prevent a creditor from suing; or (4) when the cause of action is not known or reasonably knowable by the plaintiff. Because contra non valentum is a judicial exception to the statutory rule of prescription, Louisiana courts strictly construe the doctrine, extending its benefits only up to the time that the plaintiff either has actual or constructive knowledge of the tortious act.

Prescription does not run against one unable to act." See Cartwright v. Chrysler Corp., 232 So.2d 285, 287 (1970).

See Judge Duval's Order and Reasons, dated August 12, 1999 (denying the municipal defendants' Rule 19 motion, holding that the plaintiff in this case is the architect of his own lawsuit, and explaining that the court will not force the plaintiff to sue the Sheriff Foti, when the plaintiff does not wish to do so and there is no likely prejudice to the party defendants)[Rec.Doc. No. 7, at p. 9-10].

See Richardson v. Penzoil Production Company, 896 F.2d 919, 922 (5th Cir. 1990) (citing Matthews v. Sun Exploration Production Company, 521 So.2d 1192, 1197 (La.App. 2nd Cir. 1988)).

See Eldridge v. Martin Marietta Corporation, 207 F.3d 737, 743 (5th Cir. 2000) (citing Bergeron v. Pan American Assurance Co., 731 So.2d 1037, 1042 (La.App. 4th Cir. 1999)); In re Medical Review Panel Proceeding Vaidyanathan, 719 So.2d 604, 607 (La.App. 4th Cir. 1998), cert. denied, 732 So.2d 1238 (La. 1998).

Suffice it to say, "a plaintiff will be deemed to know what he could by reasonable diligence have learned. Plaintiff dwells upon the what the defendants allegedly did and the severity of his own injuries. However, the appropriate focus is not on what the defendants did, but rather on what the plaintiff could have done.

See McGregor v. Louisiana State University, 3 F.3d 850, 865 (5th Cir. 1993), cert. denied, 114 S.Ct. 1103 (1994) (quoting Corsey v. State, 375 So.2d 1319, 1322 (La. 1979)).

Id.

In the case at bar, it is not disputed that the plaintiff had knowledge of his injury in May of 1999. Nothing prevented the plaintiff from filing suit within a year of his release from custody. There was no mistake in this case. The record is uncontrovertedly to the effect that the plaintiff chose not to sue Sheriff Foti early on in the proceedings. Judge Duval left the plaintiff, the architect of his lawsuit, to his own designs, noting the absence of prejudice to the existing party defendants.

See August 12, 1999 Order and Reasons, at p. 9 [Rec.Doc. No. 7].

Plaintiffs invocation of the doctrines of "relation back" and contra non valentum rings hollow in the shadow of that ruling issued soon after the inception of the lawsuit. Since plaintiff filed suit more than a year after his release, all of his claims including § 1983, illegal/wrongful detention, deliberate indifference to medical needs, and disability discrimination under state and federal law are prescribed.

Accordingly,

IT IS ORDERED that the defendant Corporal Shane Stuntz' Motion for Summary Judgment seeking dismissal of the plaintiffs claims against him is GRANTED.

IT IS FURTHER ORDERED that the Motion for Summary Judgment filed on behalf of Sheriff Charles Foti and Dr. Emile Riley seeking dismissal of the plaintiffs claims against them on the basis of prescription is GRANTED.

IT IS FURTHER ORDERED that the defendants' Motion in Limine is DISMISSED AS MOOT.