Tickle v. Smith et al

Filing 27

ORDER AND REASONS granting 11 Motion to Dismiss for Failure to State a Claim; granting 16 Motion to Dismiss for Lack of Jurisdiction; granting 16 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ivan L.R. Lemelle on 6/21/2016. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BENJAMIN TICKLE

CIVIL ACTION

VERSUS

NO. 15-6758

SERGEANT SIDNEY SMITH, ET AL.

Section “B” (3)

ORDER AND REASONS
Before the Court are the Defendant Officers’ (“Officers”)
Motion for Partial Dismissal under Federal Rule of Civil Procedure
12(b)(6)

or

Motion

for

Summary

Judgment

(Rec.

Doc.

11)

and

Defendant Charles Ballay’s (“Ballay” or “DA”) Motion to Dismiss
(Rec.

Doc.

16).

Plaintiff

Benjamin

Tickle

(“Tickle”

or

“Plaintiff”) opposes both motions. Rec. Docs. 14 and 23. The
Defendants filed replies to both Oppositions. Rec. Doc. 22 and 26.
For the reasons outlined below,
IT IS ORDERED that the Officers’ Motion for Partial Dismissal
is GRANTED.
IT IS FURTHER ORDERED that Ballay’s Motion to Dismiss is
GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that in September of 2012, he, his wife,

and a friend were attempting to take a ferry to check Plaintiff’s
property during a state of emergency related to Hurricane Isaac.
1

Rec. Doc. 5 at 3. While speaking with the Officers at the ferry
landing, Plaintiff asserts that one of the Defendant Officers
seized

Plaintiff’s

weapon.

Rec.

Doc.

5

at

3.

Plaintiff

then

allegedly told the Officers that he owned the weapon and that he
wanted it back. Rec. Doc. 5 at 3. The Officers, under alleged
“officer safety,” requested that they store the weapons in the cab
of the truck in which the Plaintiff, his wife, and his friend
arrived. Rec. Doc. 5 at 3. At this point, Plaintiff contends that
the Defendant Officers used this opportunity to search the vehicle.
Rec. Doc. 5 at 3. Throughout this encounter, the Officers allegedly
detained Plaintiff and his colleagues in heat and humidity for
ninety minutes, even though no evidence of a crime existed. Rec.
Doc.

5

at

3.

The

Defendant

Officers

then

allegedly

searched

Plaintiff’s wife’s purse and the cab of the car. Rec. Doc. 5 at 3.
During this search, the Defendant Officers found marijuana in the
purse. Rec. Doc. 5 at 3. They then arrested all parties. Rec. Doc.
5 at 5. The Defendant Officers took Plaintiff to Angola prison for
three days, where he purportedly became ill from the food and water
served. Rec. Doc. 5 at 5.
Following

these

events,

the

Plaquemine

Parish

District

Attorney, Ballay, instituted charges against Plaintiff. Rec. Doc.
5 at 5. The charges included possession of drugs and a charge
regarding concealed handguns. Rec. Doc. 5 at 5. Plaintiff’s case
2

ended in acquittal three years after the initial arrest. Rec. Doc.
5 at 6. Plaintiff filed suit against the Officers for assault,
battery, false imprisonment, intentional infliction of emotional
distress, negligent infliction of emotional distress, and for
damages under 42 U.S.C. § 1983. Rec. Doc. 5 at 7-10. Plaintiff
also included a state law claim of malicious prosecution against
Ballay in his official capacity. Rec. Doc. 5 at 13.
Plaintiff filed his initial Complaint in December of 2015.
Rec. Doc. 1. Plaintiff then amended the Complaint in March of 2016
to

include

capacity

the

Sheriff

a

defendant

as

of

Plaquemine

and

to

add

Parish
a

in

section

his

official

regarding

the

prescriptive period and contra non valentem. Rec. Doc. 5. Defendant
Officers filed the instant motion to dismiss the battery, false
arrest,

intentional

and

negligent

inflictions

of

emotional

distress, and the § 1983 claims. Rec. Doc. 11. Defendant Ballay
filed the instant motion to dismiss the malicious prosecution
claim. Rec. Doc. 16 at 1.
II.

CONTENTIONS OF MOVANTS
In the Motion for Partial Dismissal under 12(b)(6) or Motion

for

Summary

Judgment,

the

Officers

contend

that

all

of

the

Plaintiff’s claims against them have prescribed. Rec. Doc. 11-1 at
4. For claims under 42 U.S.C. § 1983, the limitations period is
the

same

as

the

prescriptive

period
3

for

Louisiana

delictual

actions—one year. Rec. Doc. 11-1 at 3. The Officers state that the
limitation period began to run when they arrested Plaintiff because
that was when he knew of the injury that serves as the basis of
this action. Rec. Doc. 11-1 at 3. Because the Plaintiff was
arrested in September of 2012, the limitations period expired in
September of 2013. Rec. Doc. 11-1 at 3. Therefore, the limitations
period ended two years prior to the filing of the claim. Rec. Doc.
11-1 at 4.
In the Motion to Dismiss on behalf of Charles J. Ballay,
Ballay provides multiple contentions. Rec. Doc. 16-1. The first is
that the amended Complaint fails to state a claim against Ballay
in his Official Capacity because it does not provide the official
policy or custom that led to the harm. Rec. Doc. 16-1 at 6. Next,
Ballay claims that as District Attorney he is absolutely immune
from civil suit under state law when acting in his role as the
State’s advocate. Rec. Doc. 16-1 at 7. Ballay also argues that he
is immune under the Eleventh Amendment. Rec. Doc. 16-1 at 9. Ballay
contends that the malicious prosecution claim has also prescribed
because the acts occurred more than one year prior to filing the
suit. Rec. Doc. 16-1 at 10. Finally, Ballay states that there are
no valid federal claims present because of the Officers’ Motion to
Dismiss under 12(b)(6) (Rec. Doc. 11-1), meaning there are no
claims supporting Federal jurisdiction. Rec. Doc. 16-1 at 10.q45
4

In the respective reply memoranda, both Defendant Officers and
Ballay contend that Plaintiff’s oppositions are insufficient and
lack merit. Rec. Docs. 22 and 26.
III. CONTENTIONS OF NON-MOVANT
In regards to the Officers’ Motion to Dismiss (Rec. Doc. 11),
Plaintiff contends that the exception to prescription of contra
non valentem should apply in this case. Rec. Doc. 14 at 2.
Plaintiff claims that his inability to act was brought about by
the defendant’s actions. Rec. Doc. 14 at 2. Because of the arrest
and criminal charges, he argues it was foreseeable that he would
receive poor advice regarding filing a civil suit. Rec. Doc. 14 at
3. This poor advice, allegedly caused by the Defendant Officers
actions, thus prevented Plaintiff from filing the civil suit. Rec.
Doc. 14 at 3. Alternatively, Plaintiff contends that, much like
the solidary liability of tortfeasors with doctors who commit
medical malpractice on a victim of tortious conduct, the defendants
in this case should be solidarily liable for the allegedly poor
advice of legal counsel. Rec. Doc. 14 at 3. Plaintiff contends
that if the defendants had not wrongfully arrested Plaintiff and
submitted him to criminal proceedings, the Plaintiff’s previous
criminal defense counsel would not have advised him to wait until
after the criminal proceedings to file this civil suit. Rec. Doc.
14 at 2-3. The Plaintiff further contends that this alleged advice
5

was foreseeable to the defendants when they charged him. Rec. Doc.
14 at 3. Therefore, he argues that this claim should not be
dismissed on prescription grounds.
In regards to the Motion to Dismiss on Behalf of Charles J.
Ballay, Plaintiff contends that Ballay’s argument of insufficient
allegations in the complaint is incorrect because the portion
Ballay cited was simply a more concise statement of the detailed
argument Plaintiff later provides. Rec. Doc. 23 at 2. The Plaintiff
also contends that he made no claim that required proof of a custom
or policy. Rec. Doc. 23 at 2. He further argues that the District
Attorney’s office is not immune under the Eleventh Amendment
because it fails to meet the six factor test in Clark v. Tarrant
County, 798 F.2d 736, 744-745 (5th Cir. 1986). Rec. Doc. 23 at 5.
In regards to prescription, Plaintiff states that the prescriptive
period begins to run when the criminal suit ends because this is
an element of the claim itself. Rec. Doc. 23 at 7. Finally, the
Plaintiff contends that Ballay’s statements regarding the lack of
federal claims are premature because the Motion to Dismiss on these
claims has not been ruled on. Rec. Doc. 23 at 7.
IV.

LAW AND ANALYSIS
Federal Rule of Civil Procedure 12(b)(6) allows a Defendant

to challenge whether the Plaintiff has stated a claim for relief.
It is established that such motions are rarely granted because
6

they are viewed with disfavor. Lowrey v. Tex. A & M Univ. Sys.,
177 F.3d 242, 247 (5th Cir. 1997). The court must accept as true
all well-pleaded facts and view them in the plaintiff’s favor.
Watson v. Texas, 261 F.3d 436, 441 (5th Cir. 2001) (citing Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)).

“To survive a motion

to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that ‘is plausible on
its face’.” Ashcroft v. Iqbal, 566 U.S. 662, 679 (2009)(citing
Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)).
A.

The Officer Defendants’ Motion to Dismiss

The first issue to consider is whether or not the prescriptive
period for the Plaintiff’s claims against the Officers has expired.
Section 1983 provides redress for citizens who have had their
Constitutional or legal rights, privileges, or immunities deprived
by any “person . . . under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory.” 42 U.S.C.
§ 1983. Because no limitations period is provided by the statute
we look to 42 U.S.C. § 1988, which states that “where [statutes]
. . . are deficient in the provisions necessary to furnish suitable
remedies”

the

statutes

of

the

States

will

govern.

The

only

potential prescriptive period for a § 1983 claim is Louisiana Civil
Code article 3492. Jacobsen v. Osborne, 133 F.3d 315, 319 (5th
Cir. 1998). Article 3492 states: “Delictual actions are subject to
7

a liberative prescription of one year. This prescription commences
to run from the day injury or damage is sustained.” LA. CIV. CODE
ANN. Art. 3492. Additionally, for the battery, false arrest, and
intentional and negligent infliction of emotional distress claims
the prescriptive period is one year because they are all delictual
actions. See 12 WILLIAM E. CRAWFORD, LA. CIV. L. TREATISE, TORT LAW §
12:6, 7-9; § 28:3. A cause of action under § 1983 accrues when the
plaintiff “knows or has reason to know of the injury which is the
basis of the action.” Jackson v. Johnson, 950 F.2d 263, 265 (5th
Cir. 1992).
In this case, there is no dispute that the Plaintiff knew or
had reason to know of the injury at the time of the arrest and
other

events

in

September

of

2012.

Therefore,

the

typical

prescriptive period for all of the claims against the Officers
would be one year from this date. See LA. CIV. CODE ANN.

ART.

3492

(1992). However, the Plaintiff claims that the defense of contra
non valentem should apply here. Rec. Doc. 14 at 2. Contra non
valentem arises “where plaintiff’s inability to act is due to the
defendant’s
Department

willful
of

or

negligent

Corrections,

375

conduct.”

So.2d

1319,

Corsey
1321

v.

State,

(La.

1979).

Plaintiff claims that he couldn’t file the civil suit within the
prescriptive period because of the actions of the defendant. Rec.
Doc.

14

at

3.

Plaintiff’s

criminal
8

defense

counsel

gave

him

allegedly poor advice to not file this civil claim until the end
of the criminal case. Rec. Doc. 14 at 3. Additionally, Plaintiff
has little or no knowledge of legal practice. Rec. Doc. 14 at 2.
Plaintiff believes that if the Officers had not arrested Plaintiff,
then the attorney would not have given him allegedly poor advice.
Rec. Doc. 14 at 2-3.
The advice of Plaintiff’s previous counsel dealt with the
timing of the filing of suit, not the possibility or ability of
the Plaintiff to do so. 1 It is clear that Plaintiff was capable of
filing suit during the criminal period, but his previous counsel
advised against it. Further, there are neither facts nor law to
support Plaintiff’s contention that the Defendant Officers should
have foreseen or even be held accountable for Plaintiff’s own
counsel’s

advice.

Because

this

situation

did

not

involve

Plaintiff’s inability to act, contra non valentem does not apply.
See Coursey, 375 So.2d at 1321.
Alternatively, Plaintiff claims that the officer should be
solidarily liable with his previous attorney based upon an ease of
association between the parties’ conduct. Rec. Doc. 14 at 3.
Plaintiff supports this theory by analogizing to a similar doctrine
holding

tortfeasors

solidarily

liable

for

injuries

caused

by

1 Plaintiff’s previous counsel allegedly advised against filing the civil suit
“during the pendency of the criminal matter.” Rec. Doc. 14 at 2.

9

medical malpractice. Rec. Doc. 14 at 3-4. Plaintiff provides no
law that supports extension, and the court sees no merit in
extending

this

submitted

a

doctrine

legal

here.

malpractice

Moreover,
claim

with

Plaintiff
which

to

has

not

hold

the

Defendant Officers solidary liable, making the analogy inapt.
Accordingly,
considers

this

all

court

claims

finds

no

prescribed.

merit

to

this

Therefore,

argument

they

must

and
be

dismissed.
B.

Defendant Ballay’s Motion to Dismiss

In regards to Ballay’s Motion to Dismiss, the initial inquiry
is

the

effect

supplemental

dismissal

jurisdiction.

of

all

Federal

federal
courts

law
have

claims

has

on

“supplemental

jurisdiction over all other claims that are so related” to the
federal claims that they “form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. §
1367(a).
In this case, the § 1983 claim was the only claim with
original jurisdiction. Rec. Doc. 5 at 10. All other claims were
state law claims that were part of the same case or controversy.
Rec. Doc. 5 at 7-13. Further, the District Attorney is immune from
§ 1983 liability for prosecutorial conduct where, as here, the
actions taken were part of the prosecution’s role as advocate.
Additionally, this court recognizes that it is not obvious that
10

malicious prosecution is part of the same case or controversy of
the original claims. District courts can decline supplemental
jurisdiction over state claims if the court has dismissed all
claims over which it has original federal jurisdiction. 28 U.S.C.
§ 1367(c)(3). That discretion is exercised here over any remaining
state based claims, which are best left for disposition in the
state court system.
V.

CONCLUSION
For the reasons enumerated above,
IT IS ORDERED that the Officers’ Motion for Partial Dismissal

is GRANTED as to all federal and state claims because prescription
has run for all claims against these Defendants.
IT IS FURTHER ORDERED that Ballay’s Motion to Dismiss is
GRANTED on all federal claims; all state law claims against Ballay
are DISMISSED WITHOUT PREJUDICE to Plaintiff’s right to seek
available state court relief.
New Orleans, Louisiana, this 21st day of June, 2016.

____________________________
UNITED STATES DISTRICT JUDGE

11