Carter et al v. Cain et al

Filing 46

RULING denying 24 Motion to Dismiss is hereby deniedwithout prejudice. If Plaintiffs comply with this Courts Ruling, the Defendants shall have 14 days to reurge their Motion to Dismiss. Signed by Judge Shelly D. Dick on 03/13/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
IRMA JEAN CARTER, individually
and on behalf of the deceased
TERRANCE CARTER, CHRISTA
CARTER, individually and as
Mandatary, DOES 1-5

CIVIL ACTION

VERSUS
NO. 17-00201-SDD-RLB
N. BURL CAIN, former Warden,
JAMES LEBLANC, Secretary of
the Department of Corrections, et al.
RULING
Before the Court is a Motion to Dismiss filed by Defendants, James LeBlanc,
Secretary of the Department of Corrections, Darryl Vannoy, Warden at the Louisiana
State Penitentiary, Leslie Dupont, Deputy Warden of the Louisiana State Penitentiary,
James Cruze, Assistant Warden at the Louisiana State Penitentiary, Barrett Boeker,
Assistant Warden at the Louisiana State Penitentiary, and Jonathan London, Assistant
Warden at the Louisiana State Penitentiary (collectively, “Defendants”).1 Plaintiffs, Irma
Jean Carter, Christa Carter, and Does 1-5, filed an Opposition to which Defendants have
filed a Reply.2
Plaintiffs filed this “civil rights wrongful death/survival action” under 42 U.S.C. §§
1983 and 1988 on behalf of Terrance Carter in which they assert claims on his behalf as
well as themselves.3 Plaintiff Irma Jean Carter is Mr. Carter’s mother, who allegedly “has
assigned her legal rights, including the right to bring a lawsuit, to her daughter, Christa

1

Doc. 24. These are not the only named Defendants in this suit; however, the Motion is only brought on
behalf of these six Defendants.
2
Doc. 28 and Doc. 32.
3
Doc. 1, p. 2. Plaintiffs also bring their wrongful death/survival action under 42 U.S.C. §§ 12131 and 12205,
the Eighth and Fourteenth Amendments to the United States Constitution, Section 504 of the Rehabilitation
Act of 1973, and Title II of the Americans with Disabilities Act of 1990.

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Carter.”4 Plaintiff Christa Carter is Mr. Carter’s sister, and asserts that she is bringing
claims on behalf of herself and on behalf of Irma Jean Carter as her mandatary.5
Additionally, Plaintiffs Does Carter 1-5 are also Mr. Carter’s siblings.6 The Plaintiffs assert
that their claims are brought pursuant to “Louisiana Civil Code of Procedure [sic] Articles
2315.1, 2315.2, which provide for survival, wrongful death, and negligence actions.”7
When a plaintiff brings a 42 U.S.C. § 1983 action, the courts look to state law to
determine who is entitled to recover.8 Louisiana Civil Code articles 2315.1 and 2315.2
control who has capacity to sue in survival actions and wrongful death actions,
respectively. Both statutes establish a hierarchy of classes of beneficiaries. Surviving
spouses and children have priority over all other classes of plaintiffs to recover damages
on behalf of a decedent.9 A surviving parent can only bring survival and wrongful death
actions if the decedent left no spouse or surviving child. “Louisiana courts have held that,
in order for an inferior beneficiary, i.e. parent and/or sibling, to bring a cause of action for
survival and/or wrongful death, the beneficiary must affirmatively negate the existence of
primary beneficiaries in his or her pleadings.”10 Importantly, an “inferior beneficiary’s
assertion that he or she has the capacity to recover under a survival and/or wrongful death
action is a substantive matter, rather than a mere procedural question of pleading.”11

4

Doc. 1, p. 3. 
Doc. 1, p. 3.
6
Doc. 1, p. 3.
7
Doc. 1, p. 3.
8
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004). See also, Rhyne v. Henderson Cnty., 973 F.2d 386,
391-91 (5th Cir. 1992).
9
La. C.C. art. 2315.1(A)(1); La. C.C. art. 2315.2(A)(1).
10
Briggs v. Phebus, Civil Action No. 12-2145, 2012 WL 5906873, *3 (E.D. La. Nov. 26, 2012)(citing Trahan
v. S. Pac. Co., 209 F.Supp. 334, 336-37 (W.D. La. 1962)(citing Smith v. Monroe Grocery Co., 171 So. 167
(1936); Horrell et al. v. Gulf & Valley Cotton Oil Co., 131 So. 709 (1930)).
11
Id. (citing Trahan, 209 F.Supp. 344, 336-37)(emphasis added). 
5

2

In this case, the Court finds that Plaintiffs’ Complaint fails to affirmatively negate
the existence of any primary beneficiaries (i.e., spouse or children) who can bring a
survival or wrongful death action on behalf of the decedent, Mr. Carter, or on the primary
beneficiaries’ own behalves. Accordingly, the Court finds that Plaintiffs’ Complaint is
deficient, and that the Plaintiffs have not properly stated their survival and wrongful death
claims.
The Court hereby orders Plaintiffs to file an amended complaint, solely limited to
the deficiency addressed herein, within 21 days of this Ruling. Failure to comply shall
result in the dismissal of this action.
It is further ordered that the Defendants’ Motion to Dismiss is hereby denied
without prejudice.12 If Plaintiffs comply with this Court’s Ruling, the Defendants shall have
14 days to reurge their Motion to Dismiss. From the date the Defendants re-urge their
Motion, Plaintiffs shall have 14 days to file an Opposition. From the date the Plaintiffs file
their Opposition, the Defendants shall have 7 days to file a Reply.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on March 13, 2018. 

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Doc. 24.

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