Perkins v. Malonsain, et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS - the Court finds that plaintiff's claim is barred by the limitations period. IT IS ORDERED that plaintiff's complaint is DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Signed by Judge Sarah S. Vance on 8/21/2017.(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEONARD PERKINS

CIVIL ACTION

VERSUS

NO. 17-3971

JUDGE JON JO MALONSIAN,
ET AL.

SECTION “R” (5)

ORDER
Before the Court are Plaintiff Leonard Perkins’s pro se civil rights
complaint 1 under 42 U.S.C. § 1983 and his objections 2 to the Magistrate
Judge’s Report and Recommendation that the complaint be dismissed with
prejudice.3 The Court, having reviewed de novo the complaint, the record,
the applicable law, the Magistrate Judge’s Report and Recommendation, and
the plaintiff’s objections, hereby approves the Magistrate Judge’s Report and
Recommendation and adopts it as its opinion.
In his objections, plaintiff argues that the Supreme Court’s decision in
Skinner v. Switzer, 562 U.S. 521 (2011), permits his § 1983 claim for
production of DNA evidence.4

1
2
3
4

R. Doc. 3-1.
R. Doc. 7.
R. Doc. 6.
R. Doc. 7 at 2.

Skinner recognized a cognizable post-

conviction § 1983 claim against state officials with custody of DNA evidence
for testing of that evidence. Id. at 525, 529. Plaintiff alleges that the DNA
evidence he wishes to test is in the possession of Jefferson Parish Coroner
Dr. Gerry Cvitanovich. 5
Plaintiff’s § 1983 claim is nevertheless barred by the statute of
limitations. 6 Plaintiff alleges that Cvitanovich, through his attorney, denied
plaintiff’s claim for production of DNA evidence.7 All the allegations in
plaintiff’s complaint relate to events in 2013 and 2014, and the exhibit
attached to the complaint indicates that Cvitanovich denied plaintiff’s
request in May 2014. 8 Plaintiff did not file his complaint until April 24,
2017. 9 As the Magistrate Judge found, plaintiff’s claim is therefore untimely
under the one-year statute of limitations applicable to § 1983 claims in
Louisiana. See La. Civ. Code. art. 3492; Burge v. Parish of St. Tammany,
996 F.2d 786 (5th Cir. 1993). Plaintiff did not object to the Magistrate
Judge’s finding on the statute of limitations and his complaint does not

R. Doc. 3-1 at 4; R. Doc. 7 at 2.
The Magistrate Judge suggested that plaintiff’s complaint could be
construed as a petition for habeas corpus. See R. Doc. 6 at 1-3. Given
plaintiff’s representation that he wishes to bring a § 1983 suit and is not
seeking habeas relief, the Court will not construe his complaint as a petition
for a writ of habeas corpus. See R. Doc. 7 at 1.
7
R. Doc. 3-1 at 4.
8
Id. at 4, 23.
9
R. Doc. 1.
2
5

6

include any allegations that suggest tolling would be warranted in this case.10
Accordingly, the Court finds that plaintiff’s claim is barred by the limitations
period.

IT IS ORDERED that plaintiff’s complaint is DISMISSED WITH
PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

21st
New Orleans, Louisiana, this _____ day of August, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

10

R. Doc. 7; R. Doc. 3-1.
3