Lawrence Miller v. Anthony Mancuso, et al

Filing

Lawrence Miller v. Anthony Mancuso, et al

Doc. 0

Case: 09-31050

Document: 00511174617

Page: 1

Date Filed: 07/15/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 15, 2010 N o . 09-31050 S u m m a r y Calendar Lyle W. Cayce Clerk

L A W R E N C E MILLER, Plaintiff - Appellant v. A N T H O N Y MANCUSO, individually and in his official capacity as Sheriff of C a lc a s ie u Parish; BRENT CLOUD; MIKE AYMOND; ST. PAUL FIRE & M A R I N E INSURANCE CO., Defendants - Appellees

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 2:08-CV-1131

B e fo r e JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges. P E R CURIAM:* R e v e r e n d Lawrence Miller appeals the dismissal of his claims against two S h e r iff's deputies and an insurance company which the district court held were u n t im e ly filed. On August 5, 2008, Miller filed suit claiming that on August 6, 2 0 0 7 "two unknown" deputies unlawfully arrested him and used excessive force.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 09-31050

Document: 00511174617

Page: 2

Date Filed: 07/15/2010

No. 09-31050 H is complaint named Sheriff Mancuso, "two unknown deputies," and "XYZ I n s u r a n c e Company." On March 10, 2009, Miller identified Deputies Cloud and A y m o n d and St. Paul Fire & Marine Insurance Company in a motion to amend h is complaint. The district court dismissed the claim against Sheriff Mancuso, a ruling that Miller does not appeal. Following Sheriff Mancuso's dismissal, the r e m a in in g three defendants moved to dismiss, asserting that Miller had not filed t im e ly claims against them. The district court granted the motion to dismiss a n d Reverend Miller appeals. Section 1983 does not provide for a statute of limitations; rather, the forum s t a t e 's personal injury statute of limitation applies. Moore v. McDonald, 30 F.3d 6 1 6 , 620 (5th Cir. 1994). In Louisiana, there is a one-year prescription period for d e lic t u a l actions. See Elzy v. Roberson, 868 F.2d 703, 794 (5th Cir. 1989); LA. C IV. CODE ANN. art. 3492. Filing suit against one alleged tortfeasor interrupts p r e s c r ip t io n against all joint tortfeasors. LA. CIV. CODE ANN. art. 2324(c). However, "where no liability is found on the part of a timely sued alleged t o r t fe a s o r , then prescription is not interrupted as to untimely sued tortfeasors, a s no joint or solidary obligation exists." Gallina v. Hero Lands Company, 859 S o .2 d 758, 767 (La. App. Ct. 4th Cir. 2003). "Prescription is not interrupted as t o an actual defendant when only a fictitious defendant is named in a petition, u n le s s prescription is interrupted by some other means." Id. at n.6 (quoting Hill v . Shell Oil Co., 760 So.2d 511, 512-13 (La. Ct. App. 5th Cir. 2003)). Thus, the d is m is s a l of Sheriff Mancuso eliminated his status as an anchor for interruption o f prescription against the deputies. Miller alternatively asserts that his March 10, 2009 amendment to his c o m p la in t should relate back to his initial pleading on August 5, 2008, which w o u ld make his suit timely against the deputies. Federal Rule of Civil

P r o c e d u r e 15(c) allows an amendment to a complaint to relate back to the date t h e original complaint was filed. FED. R. CIV. P. 15(c). However, Rule 15(c) "is 2

Case: 09-31050

Document: 00511174617

Page: 3

Date Filed: 07/15/2010

No. 09-31050 m e a n t to allow an amendment changing the name of a party to relate back to the o r ig in a l complaint only if the change is the result of an error, such as a misnomer o r misidentification." Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (c it a t io n omitted) (emphasis added). "[F]ailing to identify individual defendants c a n n o t be characterized as a mistake." Id. (citing Barrow v. Wethersfield Police D e p t., 66 F.3d 466, 469 (2d Cir. 1995)). The record shows that Reverend Miller knew the identities of the "two u n k n o w n deputies" long before he filed his initial complaint. In a deposition, M ille r revealed that he learned Deputy Aymond's name a couple days after the in c id e n t and learned Deputy Cloud's name on the night of the incident. Further, M ille r 's wife filed a citizen's complaint with the Calcasieu Parish Sheriff's Office o f Internal Affairs and specifically named Deputies Cloud and Aymond o n August 13, 2007, one week after the lawful arrest. Consequently, there was n o mistake about their identities and no reason to either interrupt prescription u n d e r Louisiana law or allow the March 10, 2009 amendment to relate back to t h e original complaint. The district court correctly held that Miller's claims are u n tim e ly . AFFIRMED

3