Cook v. Lamotte et al

Filing 20

RULING AND ORDER Adopting the 6 Report and Recommendation of the U.S. Magistrate Judge. The above captioned matter be DISMISSED as legally frivolous and malicious, pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff's pending motions to relate back and to amend (Docs. 3, 4) be DENIED. Signed by Chief Judge Brian A. Jackson on 1/21/2015. (LLH) Modified on 1/21/2015 replace doc (LLH).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DEMOND COOK

CIVIL ACTION

VERSUS
WADE T. LAMOTTE, ET AL.

NO.: 3:14-cv-00428-BAJ-RLB

RULING AND ORDER
On July 22, 2014, the United States Magistrate Judge issued a Report and
Recommendation, pursuant to 28 U.S.C. § 636(b)(1), recommending that Plaintiff
Desmond Cook’s (“Plaintiff”) Complaint (Doc. 1) be dismissed as legally frivolous
and malicious, and that Plaintiff’s pending motions to “relate back” and “to
amend” (Docs. 4, 5) also be denied. (Doc. 6).
The Magistrate Judge’s Report and Recommendation specifically notified
Plaintiff that, pursuant to 28 U.S.C. § 636(b)(1), he had fourteen (14) days from
the date he received the Report and Recommendation to file written objections to
the proposed findings of fact, conclusions of law, and recommendations therein.
(Doc. 6 at p. 1). A review of the record indicates that Plaintiff did timely file
objections to the Magistrate Judge’s Report and Recommendation. 1

(Doc. 8).

Plaintiff also filed supplemental objections a few days later. (Doc. 9). 2
In his first set of objections, Plaintiff relies on Rumberg v. Weber Aircraft Corp., 424 F. Supp.
294 (C. D. Cal. 1976). (Doc. 8 at p. 1-2). However, Rumberg applied California’s Code of Civil
Procedure, which is not applicable here. The Louisiana Civil Code and the attendant rules of
prescription apply. Further, Plaintiff attempts to draw parallels between cases wherein courts
1

Having carefully considered the Plaintiff’s Complaint and related filings,
the Court approves the Magistrate Judge’s Report and Recommendation, and
hereby adopts its findings of fact, conclusions of law, and recommendation.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s Report (Doc. 6) is
ADOPTED as the Court’s opinion herein.
IT IS FURTHER ORDERED that the above captioned matter be
DISMISSED as legally frivolous and malicious, pursuant to 28 U.S.C. §§ 1915(e)
and 1915A.

permitted amending of the complaint in the same lawsuit; here, Plaintiff has effectively filed the
same complaint three separate times. (See Doc. 6 at p. 3) (listing the citations of three prior
cases). Finally, as Plaintiff highlights in his objections, the Court must apply state law in
determining the statute of limitations, specifically applying the state statute of limitations for
personal injury cases. See Wilson v. Garcia, 471 U.S. 261 (1985). Accordingly, Plaintiff’s
objections are without merit.
2 In his second set of objections, Plaintiff focuses on the Court’s characterization of his claim and
the timing of his filings. However, what Plaintiff’s objections fail to acknowledge is the
inapplicability of the two-year prescriptive period outlined in Louisiana Civil Code Article
(“Article”) 3493.10. As already discussed, “§ 1983 claims are best characterized as personal injury
actions.” Wilson, 471 U.S. at 280. See also Gates v. Spinks, 771 F.2d 916, 919 (5th Cir. 1985)
(“the state statute governing the general tort remedy for personal injuries should apply to 1983
actions”). The Louisiana Civil Code provides a general one-year prescriptive period for tort
actions. See La. C.C. art. 3492 (“Delictual actions are subject to a liberative prescription of one
year.”). Plaintiff has failed to present a decision of the Louisiana Supreme Court, the Fifth
Circuit, or the United States Supreme Court that would serve as authority for his assertion that
his claims are subject to the two-year prescriptive period under Article 3493.10. Indeed, there is
authority supporting the contrary. See Owens v. Okure, 488 U.S. 235 (1989) (holding that district
courts are directed to apply the “residual or general personal injury statute of limitations” even if
a state has different statute of limitations for enumerated intentional torts). Thus, under Owens,
even if the conduct alleged could be characterized as a crime of violence, Article 3493.10 is
inapplicable, and the applicable prescriptive period for Plaintiff’s claims is the one-year period
outlined in Article 3492.

2

IT IS FURTHER ORDERED that Plaintiff’s pending motions to
“relate back” and “to amend” (Docs. 3, 4)3 be DENIED.

Baton Rouge, Louisiana, this 21st day of January, 2015.
____

______________________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

The Magistrate Judge’s Report and Recommendation mistakenly lists the pending motions as
Record Docket Numbers 4 and 5. The correct Record Docket Numbers are 3 and 4.

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