Walter Johnson, Jr. v. Joe Lamartiniere, et al

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Walter Johnson, Jr. v. Joe Lamartiniere, et al

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Case: 09-30631

Document: 00511177880

Page: 1

Date Filed: 07/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30631 S u m m a r y Calendar July 19, 2010 Lyle W. Cayce Clerk

W A L T E R EDWARD JOHNSON, JR., P la in t if f -A p p e lla n t v. J O E LAMARTINIERE, Assistant Warden, Louisiana State Penitentiary; J B O L D E N , Master Sergeant, Louisiana State Penitentiary; K DAVIS, Master S e r g e a n t , Louisiana State Penitentiary, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:09-CV-176

B e fo r e KING, STEWART and HAYNES, Circuit Judges. P E R CURIAM:* W a lt e r Edward Johnson, Jr., Louisiana prisoner # 104558, appeals the d is t r ic t court's dismissal of his 42 U.S.C. § 1983 complaint as frivolous. The d is t r ic t court found that Johnson's complaint was barred by the Louisiana oney e a r prescriptive period, or statute of limitations. Johnson argues that the d is t r ic t court erred in making this determination because his current complaint

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-30631

Document: 00511177880 Page: 2 No. 09-30631

Date Filed: 07/19/2010

s h o u ld relate back, pursuant to FED. R. CIV. P. 15(c), to the April 2008 filing of a different complaint that was dismissed in July 2008 for lack of subject matter ju r is d ic t io n . Johnson does not contest that the events giving rise to his

c o m p la in t occurred on May 25, 2007, or that he filed the instant complaint on M a r c h 21, 2009, which is outside of the prescriptive period established by L o u is ia n a law. T h e appellees argue that plain error review is applicable because Johnson fa ile d to file objections to the magistrate judge's report. Although Johnson did n o t file objections to the report, he filed an amended complaint wherein he a r g u e d that the instant complaint should be considered timely filed because it r e la t e d back to the complaint filed in April 2008. The district court considered J o h n s o n 's amended complaint before dismissing it as frivolous. Thus, review is n o t limited to plain error. See Morin v. Moore, 309 F.3d 316, 320 (5th Cir. 2002). Rather, this court will review the district court's dismissal for abuse of d is c r e t io n . See Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). Because there is no federal statute of limitations for actions brought p u r s u a n t to § 1983, federal courts borrow the forum state's general personal in ju r y limitations period. Wallace v. Kato, 549 U.S. 384, 387 (2007); Owens v. O k u r e , 488 U.S. 235, 249-50 (1989). Louisiana Civil Code article 3492's one-year p r e s c r ip t iv e period applies to Johnson's § 1983 action. See Elzy v. Roberson, 868 F .2 d 793, 794-95 (5th Cir. 1989). U n d e r Louisiana law, the filing of a lawsuit "in a competent court and in t h e proper venue" interrupts prescription as long as the suit is pending. LA. CIV. C ODE ANN. art. 3463. If prescription is interrupted, the time that has run is not c o u n t e d and prescription starts over from the last day of interruption. LA. CIV. C ODE ANN. art. 3466. However, if suit is filed in a court lacking jurisdiction or p r o p e r venue, prescription is not interrupted unless the defendant is served w it h in the prescriptive period. See LA. CIV. CODE ANN. art. 3462; Washington v. B r e a u x , 782 F.2d 553, 554-55 (5th Cir. 1986); Breavx v. Vicknair, 507 So. 2d 2

Case: 09-30631

Document: 00511177880 Page: 3 No. 09-30631

Date Filed: 07/19/2010

1 2 4 2 , 1243 (La. 1987); LaFargue v. St. Amant, 433 So. 2d 1061, 1062-63 (La. A p p . 1983). J o h n s o n 's 2008 complaint was dismissed for lack of subject matter ju r is d ic t io n , and the defendants were not served. Thus, prescription was not in t e r r u p te d by the April 2008 filing of the prior complaint. See LA. CIV. CODE A NN. art. 3462; Washington, 782 F.2d at 554-55. Moreover, the 2008 judgment is not subject to attack in this case. See Darlak v. Bobear, 814 F.2d 1055, 1064 (5 t h Cir. 1987). Johnson's argument that the instant complaint relates back to a complaint w h ic h was filed in April 2008 and dismissed in July 2008 is unavailing. FED. R . CIV. P. 15(c) allows for an amendment to a current pleading to relate back to t h e date of the filing of the original, pending pleading. It does not contemplate a subsequent complaint to relate back to a prior complaint that has been d is m is s e d . See FED. R. CIV. P. 15(c). Johnson provides no legal support for his a r g u m e n t in this regard. The district court's judgment did not constitute an a b u s e of discretion. See Norton, 122 F.3d at 291. A c c o r d in g ly , the judgment of the district court is AFFIRMED. Johnson's m o t io n s for appointment of counsel are DENIED.

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