Barber v. Jefferson Davis Parish et al

Filing 11

MEMORANDUM ORDER: Directing plaintiff to amend complaint. Pro Se Response due by 6/7/2018. Signed by Magistrate Judge Joseph H L Perez-Montes on 5/8/2018. (crt,Haik, K)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
JOSHUA KEATON BARBER,
Plaintiff

CIVIL ACTION NO. 1:18-CV-170-P

VERSUS

JUDGE DEE D. DRELL

SHERIFF LANIER, ET AL.,
Defendants

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is a civil rights complaint (42 U.S.C. § 1983) filed by pro se
Plaintiff Joshua Keaton Barber (“Barber”). Barber is a pretrial detainee at the
Concordia Parish Jail. Barber was granted leave to proceed in forma pauperis. (Doc.
9). Barber complains he was subjected to excessive force by an officer at the Jefferson
Davis Parish Jail, and that officers at the Concordia Parish Correctional Center failed
to protect him from harm inflicted by other inmates.
I.

Background
Barber alleges that, on May 2, 2016, he was threatened with a knife by Officer

Lanier at the Jefferson Davis Parish Jail. Barber also claims that Officer Lanier cut
his shirt with the knife. (Doc. 1, p. 3).
Barber alleges that, on November 2, 2016, he was attacked by other inmates
at the Concordia Parish Correctional Center. (Doc. 1, p. 4). At some point, Barber
was transferred or released. (Doc. 1-2, p. 1).

On April 4 and 17, 2017, after being transferred back to the Concordia Parish
Correctional Facility, Barber was attacked by other inmates. (Doc. 1, p. 4; Doc. 1-2,
p. 1).
II.

Instructions to Amend
The statute of limitations for a § 1983 action is borrowed from state law. See

Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982). Louisiana tort law provides
a one-year prescriptive period. See La. Civ. Code art. 3492; Gaspard v. United States,
713 F.2d 1097, 1102 n. 11 (5th Cir. 1983). Federal law, however, determines when a
§ 1983 cause of action accrues. See United Klans of America v. McGovern, 621 F.2d
152, 153 n. 1 (5th Cir. 1980). Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury which is the basis of the action.
Such knowledge encompasses both: (1) the existence of the injury; and (2) the
connection between the injury and the defendant’s actions.

See Brown v.

Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999). Actual knowledge is not
necessary for the limitations period to commence “if the circumstances would lead a
reasonable person to investigate further.” Piotrowski v. City of Houston, 51 F.3d 512,
516 (5th Cir. 1995).
Barber claims that he was attacked or threatened by Officer Lanier at the
Jefferson Davis Parish Jail on May 2, 2016, and attacked by inmates at the Concordia
Parish Correctional Center on November 2, 2016. (Doc. 1, pp. 3-4). The two incidents
are unrelated and occurred at different facilities. Barber had one year from May 2,
2016, within which to file suit against Officer Lanier, and one year from November 2,

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2016, within which to file suit with the respect to the first attack at the Concordia
Parish Correctional Facility. Barber’s suit is postmarked February 7, 2018. (Doc. 1,
p. 18). Thus, it is likely that Barber’s claims regarding the incident at the Jefferson
Davis Parish Jail and the first attack at the Concordia Parish Correctional Center
are prescribed.
However, if Barber properly filed a grievance regarding each incident, the
claims may be equitably tolled while the administrative remedy process was pending.
See Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir. 2002). If Barber did not properly or
timely file administrative grievances regarding either incident, then Barber is not
entitled to equitable tolling. Barber should amend his complaint and provide a copy
of any grievance filed regarding the incidents of May 2, 2016, and November 6, 2016,
as well as any responses received at each level.
As to Barber’s claim regarding the attacks in April of 2017, Barber must amend
his complaint to provide allegations of the attacks. Specifically, Barber shall state
the name of each Defendant that violated his rights on April 4 and 17, 2017. Barber
should also allege how each of those Defendants acted with deliberate indifference
with respect to the two attacks. That is, Barber must show that each official knew of
and disregarded a substantial risk of serious harm. See Domino v. Tex. Dep’t of
Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001).
Finally, Barber must amend to state what, if any, injuries he suffered as a
result of each incident about which he complains.

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III.

Conclusion
IT IS ORDERED that Barber amend and supplement his complaint as

instructed within 30 days of the filing of this Order.
Failure to comply with this Order may result in dismissal of this action under
Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Petitioner is further
required to notify the Court of any change in his address under Rule 41.3 of the Local
Rules for the Western District of Louisiana.
THUS DONE AND SIGNED in chambers in Alexandria, Louisiana, this
8th
_______ day of May, 2018.

____________________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

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