Moore v. Public Safety et al

Filing 30

MEMORANDUM RULING re 16 MOTION to Dismiss For Failure to State a Claim filed by Jerry Goodwin, LA Dept of Public Safety. Signed by Chief Judge S Maurice Hicks, Jr on 2/15/2018. (crt,Reasor, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ENRIQUETA A. MOORE

CIVIL ACTION NO. 16-1463

VERSUS

JUDGE S. MAURICE HICKS, JR.

STATE OF LOUISIANA, THROUGH
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS, ET AL.

MAGISTRATE JUDGE HAYES

MEMORANDUM RULING
Before the Court is Defendants State of Louisiana, through the Louisiana
Department of Public Safety and Corrections, and Jerry Goodwin’s (collectively the
“Defendants”) “Motion to Dismiss” (Record Document 16) the First Amending and
Supplemental Complaint (Record Document 15) of Chastity Guidry, on behalf of Logan
Guidry, her minor daughter, and Amy McDonald Nobre, on behalf of Kenneth M. Cotton,
III, her minor son, all of whom were substituted as party plaintiffs for the original plaintiff,
Enriqueta A. Moore. For the reasons contained in the instant Memorandum Ruling, the
Defendants’ Motion to Dismiss is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Enriqueta A. Moore (“Moore”) filed the original petition (“Original Petition”) in this
matter in the Second Judicial District Court for the Parish of Claiborne on September 14,
2016. See Record Document 1-2. The case was timely removed to this Court on October
20, 2016, on the basis of federal question jurisdiction under 28 U.S.C. §1331. See Record
Document 1.
The Original Petition alleged that plaintiff, Moore, was the biological mother of the
deceased, Kenneth Cotton (“Cotton”), an offender in the custody of the State of Louisiana,
and was the proper party to bring this action for damages pursuant to an action for
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wrongful death pursuant to La. Civ. Code art.2315, et seq, in that she is the wrongful
death beneficiary and survival action beneficiary for Cotton. See Record Document 1-2
at 2-3.
The incident which lead to Cotton’s death is alleged to have occurred on February
11, 2016. See id. at 3. Cotton is alleged to have died on February 20, 2016. See id. at 4.
The remainder of the Original Petition goes on to state the alleged basis for liability of the
defendants, all arising from the death of Cotton, who died in the hospital while still in the
custody of the State of Louisiana, after being beaten by fellow offender and defendant,
Anthony Tellis (“Tellis”). See id. at 3-6. The relief requested is for monetary damages,
under Louisiana’s wrongful death and survival action statutes, as well as for recovery
under 42 U.S.C. §1983, for civil rights violations, including special, general and punitive
damages, attorney’s fees and costs. See id. at 6-7.
On February 7, 2017, a scheduling conference was held, and a deadline for filing
any amendment to the pleadings was set for March 9, 2017. See Record Document 12
at 3. On March 8, 2016, Moore filed an Ex Parte Unopposed Motion for Leave to
Supplement and Amend the Original Complaint for the Plaintiff, which was granted by the
Court on March 9, 2017. See Record Documents 13 and 14. The First Amending and
Supplemental Complaint (“Amended Complaint”) was filed the same day. See Record
Document 15.
The Amended Complaint removes Moore as plaintiff and replaces her with the
natural tutors, or mothers, Chastity Guidry and Amy McDonald Nobre (“Plaintiffs”), of two
minor children, Logan Guidry and Kenneth M. Cotton, III (collectively the “Children”),
alleged to be Cotton’s “biological children.” See Record Document 15 at 3. Paragraph Six

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of the Amended Complaint states that Plaintiffs, on behalf of the Children, “are
substituting the original [p]laintiff, [Moore], as the proper parties to bring this suit.” See id.
at 4.
Accordingly, the key dates for the consideration as raised by the Original Petition
and Amended Complaint are as follows:
February 11, 2016

The date of the alleged incident

February 20, 2016

The date Cotton is alleged to have died

September 14, 2016

The filing of the Original Petition

March 9, 2017

The filing of the Amended Complaint

Defendants filed the instant Motion to Dismiss on March 21, 2017, and in their
memorandum in support, argue the filing of the action by Moore, “who was never a proper
party to bring this action, did not interrupt the prescriptive period”; thus, the Plaintiffs’
action was filed too late. See Record Document 16-1 at 1. Plaintiffs responded on April
4, 2017, and contend the Amended Complaint should relate back to the date of filing of
Moore’s Original Petition. See Record Document 18 at 8. Defendants filed a reply in which
they asserted Fed. R. Civ. P. 15(c) did not allow for such relation back. See Record
Document 19 at 8.
LAW AND ANALYSIS
I.

LEGAL STANDARDS
A. Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure governs the requirements for
pleadings that state a claim for relief, requiring that a pleading contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." The standard for the

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adequacy of complaints under Rule 8(a)(2) changed from the old, more plaintiff-friendly
"no set of facts" standard to a "plausibility" standard found in Bell Atlantic v. Twombly and
its progeny. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Under this standard, "factual
allegations must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id.
at 555-556, 127 S.Ct. at 1965. If a pleading only contains "labels and conclusions" and
"a formulaic recitation of the elements of a cause of action," the pleading does not meet
the standards of Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949
(2009).
In deciding a Rule 12(b)(6) motion to dismiss, a court generally "may not go outside
the pleadings." 1 Colle v. Brazos County, Texas, 981 F.2d 237, 243 (5th Cir. 1993). Courts
must also accept all allegations in a complaint as true. See Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949. However, courts do not have to accept legal conclusions as facts. See id.
Courts considering a motion to dismiss under Rule 12(b)(6) are only obligated to allow
those complaints that are facially plausible under the Iqbal and Twombly standard to

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“Generally, a court ruling on a motion to dismiss may rely on only the complaint and its proper
attachments.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). However, courts may
rely upon “documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.” Id. Federal Rules of Evidence rule 201(b) states, “A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Additional documents also are considered “part of the pleadings,” if plaintiff
refers to them in his complaint, and they are central to his claim. See Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 499 (5th Cir. 2000) (citations omitted). Plaintiffs have gone outside of their pleadings and
attached an exhibit, Exhibit A, to their memorandum in opposition. See Record Document 18-1. Exhibit A
contains the personal file of Cotton from David Wade Correctional Center (“DWCC”) which shows Cotton
had two children. See id. at 3. However, the Court will not take judicial notice of this exhibit because the
fact that Cotton had two children is subject to reasonable dispute: the Defendants contend there is no proof
that these children are filiated to Cotton. Also, this exhibit was not referenced in the Amended Complaint,
so the Court cannot consider these documents to be “part of the pleadings.” Therefore, the Court will not
consider Exhibit A in its ruling.

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survive such a motion. See id. at 678-679, 129 S.Ct. at 1949-1950. If the complaint does
not meet this standard, it can be dismissed for failure to state a claim upon which relief
can be granted. See id. Such a dismissal ends the case "at the point of minimum
expenditure of time and money by the parties and the court." Twombly, 550 U.S. at 558,
127 S.Ct. at 1966.
II.

Analysis

Because Congress did not establish a statute of limitations applicable to Section
1983 actions, federal district courts must “borrow” state laws of limitations governing
analogous state causes of actions. See Board of Regents v. Tomanio, 446 U.S. 478, 48385, 100 S.Ct. 1790 (1980), citing 42 U.S.C. § 1988 and numerous cases. Specifically,
courts must apply the state statute of limitations for personal injury cases. See Wilson v.
Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938 (1985) (Section “1983 claims are best
characterized as personal injury actions”); 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”).
In Louisiana, Louisiana Civil Code Article 2315 sets forth the recovery scheme for
wrongful death and survival actions in Louisiana. The Code provision does not state the
period of limitations for a wrongful death action. Instead, the applicable limitations period,
one year from the date of death, is the general one year prescription rule for delictual
actions under Civil Code Article 3492. Accordingly, under Louisiana law, one must bring
a wrongful death or survival action within one year of the alleged victim's death unless
the limitations period is interrupted. See Ayo v. Johns–Manville Sales Corp., 771 F.2d
902, 906 (5th Cir. 1985).

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Here, Defendants assert that dismissal is proper because Moore is not the proper
party to bring this action, and thus, “the filing of the [Original Petition] … did not interrupt
the prescriptive period.” Record Document 16-1 at 1. Plaintiffs do not dispute that the
one-year prescriptive period applies to their Section 1983 claims. Rather, Plaintiffs
suggest that “the Amended Complaint should relate back to the date of filing of Moore’s
[Original Petition].” Record Document 18 at 8.
“As a threshold matter, any party bringing suit must have standing to do so.” Howell
v. Hillcorp Energy Co., 2013 WL 1455758, *3 (E.D. La. 2013); see also Pluet v. Frasier,
355 F.3d 381, 383 (5th Cir. 2004) (“Standing under the Civil Rights Statutes is guided by
42 U.S.C. § 1988, which provides that state common law is used to fill the gaps in
administration of civil rights suits. Therefore, a party must have standing under the state
wrongful death or survival statutes to bring a claim under 42 U.S.C. §§ 1981, 1983, and
1988”) (citations omitted). Under Louisiana Civil Code Articles 2315.1 and 2315.2, the
right of a survival or wrongful death action is afforded to four exclusive categories of
survivors in those articles. However, the statutes do not allow for all of the classes of
survivors to bring actions. The existence of a person qualifying within a higher class
prevents a person in a lower class from filing suit. The primary category under both 2315.1
and 2315.2 includes the surviving spouse and/or children of the decedent. Thus, pursuant
to Articles 2315.1 and 2315.2, a surviving mother or father may only recover in the event
that the decedent was not survived by a spouse or child.
Here, Moore conceded that she was not the proper party to bring this action by
filing the Amended Complaint; however, she suggests that substituting the children into
this action is proper under Federal Rule of Civil Procedure 15(c), relying almost

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exclusively on the Louisiana case Giroir v. S. Louisiana Med. Ctr., Div. of Hosps., 475
So.2d 1040 (La. 1985). See Record Document 18 at 4-8. Defendants believe the question
of tolling is a federal one; therefore, “the plaintiffs’ reliance upon Louisiana jurisprudence
in interpreting La. Code Civ. Proc. art. 1153 is irrelevant.” Record Document 19 at 5. While
there is jurisprudence that supports Defendants’ argument, see Pappion v. Dow Chem.
Co., 627 F. Supp. 1576, 1580 (W.D. La. 1986) (stating federal courts are not bound by
the interpretation of the Louisiana court of its own procedural rule, “[r]ather, we look to the
decisions of other federal circuits, and our own analysis, in ruling on the scope of Rule
15(c)”), federal district courts in Louisiana routinely apply the Giroir factors to a Rule 15(c)
analysis of relation back. See Herrin v. E. Baton Rouge Sheriff's Office, 2015 WL
4898489, at *6 (M.D. La. 2015), citing Jackson v. Ace American Ins. Co., 2010 WL 451062
(W.D. La. 2010); Zurich American Ins. Co. v. Queens Machinery Co., Ltd., 2005 WL
6074914 (E.D. La. 2005); Mcentee v. State Farm Fire and Cas. Co., 543 F.Supp.2d 554
(E.D. La. 2008); see also Kumasi v. Cochran, 2015 WL 4429192, at *3 (M.D. La. 2015).
Out of an abundance of caution, the Court will analyze this matter under Giroir and federal
procedural law pursuant to Rule 15(c).
In Giroir, the Louisiana Supreme Court allowed a widower to amend his original
complaint, which had included his own wrongful death claim, to add the wrongful death
claims of his two major children, even though the applicable one-year prescriptive period
for bringing wrongful death claims had expired three days before he sought the
amendment. See id. at 1041-42. The court ruled that Louisiana's relation back rule, La.
Code Civ. P. art. 1153, allowed the untimely amendment because it sufficiently related
back to the husband's timely wrongful death claim. See id. at 1043-44. Specifically, the

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Giroir court held that an amendment adding or substituting a plaintiff should be allowed
to related back if:
(1) the amended claim arises out of the same conduct, transaction,
or occurrence set forth in the original pleading;
(2) the defendant either knew or should have known of the existence
and involvement of the new plaintiff;
(3) the now and the old plaintiffs are sufficiently related so that the
added or substituted party is not wholly new or unrelated;
(4) the defendant will not be prejudiced in preparing and conducting
his defense.
See id. at 1043, citing Ray v. Alexandria Mall, 434 So.2d 1083, 1085 (La. 1983). The
jurisprudence supporting Giroir and Ray is unequivocal in requiring that all four elements
be met. See Delmore v. Hebert, 1999-2061 (La. App. 1 Cir. 9/22/00), 768 So. 2d 251,
253.
A. Giroir Factors
The Court is satisfied that three of the Giroir factors (1), (3), and (4) are met, and
they are not seriously disputed by Defendants. First, the children’s claims clearly arise
out of the same conduct, transaction, or occurrence as alleged by Moore in her Original
Petition. The crux of this lawsuit is the circumstances surrounding Cotton's death while in
the custody of the State of Louisiana. Second, substituting Cotton's children in for his
mother does not alter the nature of the claims. Indeed, the only difference between the
alleged biological children serving as the plaintiffs as compared to Moore lies in the
possible damages to be awarded, if the claims are proven. The claims are otherwise
identical. The difference between a decedent's mother and a decedent's son suing is
relatively inconsequential such that substituting the children in at this stage cannot be

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said to be wholly new or unrelated. This rationale is heavily connected to the last factor—
prejudice to the Defendants in preparing and conducting their defense. The only issue
presented by substituting the children in for Moore is the possibility of additional or
alternative damages, which should require minimal, if any, additional discovery. With that
said, the Plaintiffs must still satisfy the second Giroir factor.
i.

Defendants Neither Knew Nor Should Have Known of the
Children

The Court finds (from reading only the pleadings), the Defendants neither knew,
nor should have known of the existence of Cotton’s children. Plaintiffs argue Defendants
should have known of the Children from the facts of the Original Petition. See Record
Document 18 at 7. However, after reading the Original Petition, the Court does not agree.
The petition clearly states Moore is the “biological mother of the deceased [Cotton] …
Moore is the proper party to bring this action….” Record Document 1-2 at 2-3. The petition
does not mention Cotton’s children nor does it even reference the possibility that he might
have children. The Petition in no way could have given “[d]efendants notice of the
reasonable possibility that a surviving child of the deceased would be entitled to recover”
as the Plaintiffs contend. Record Document 18 at 7. Put simply, there is nothing in the
Original Petition that could have given the Defendants notice that Cotton had any children.
Plaintiffs have attempted to introduce Cotton’s personal file from DWCC (Exhibit
A) to show Defendants’ had actual knowledge of Cotton’s two children, but as previously
explained, in a motion to dismiss pursuant to Rule 12(b)(6), the Court is bound to consider
only the complaint and its proper attachments. Therefore, the Court concludes the
Defendants neither knew, nor should have known, of the children. Accordingly, under
Giroir, the Amended Complaint cannot relate back to the filing of the Original Petition. The
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claims asserted by the children in the Amended Complaint filed March 9, 2017, more than
one year after Cotton’s death, have prescribed.
B. Federal Law Pursuant to Rule 15(c)
Looking to the decisions of the Fifth Circuit and other federal law, as directed by
the court in Pappion, in ruling on the scope of Rule 15(c), the Court comes to the same
conclusion as it did under Giroir – the Amended Complaint substituting the new Plaintiffs
cannot relate back. Under Fed. R. Civ. P. 15(c)(1)(A-C), there are only three ways an
amended pleading shall relate back to the original pleading. 2 They are when:
A.

the law that provides the applicable statute of limitations allows
relation back;

B.

the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading; or

C.

the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i)

received such notice of the action that it will not be prejudiced
in defending on the merits; and

(ii)

knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
party’s identity.

The Plaintiffs’ only argument can be based on Rule 15(c)(1)(C). After reviewing the
parties’ briefs and the relevant case law, the Court believes Rule 15(c) does not extend
to the Amended Complaint.

2

Although Rule 15(c) by its express language addresses changing defendants, the Advisory Committee's
Note of 1966 indicates that “the attitude taken in revised Rule 15(c) toward change of defendants extends
by analogy to amendments changing plaintiffs.”

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The Fifth Circuit decision of Williams v. United States, 405 F.2d 234 (5th Cir.1968),
although a decision which allowed an amendment adding a new plaintiff, supports the the
Court’s conclusion. In Williams, a 13-year old boy was injured from the explosion of an
Army firecracker, and brought suit against the government. See id. at 235. The boy's
mother sought leave to amend the complaint, after the applicable period of limitations had
run, to appear as party plaintiff in her own right for recovery for loss of services due to her
son's injuries. See id. The mother had been in the lawsuit from its inception as next friend
of her minor son. See id. The district court refused to allow the amendment because the
mother had filed it after the applicable period of limitations had run. See id. at 235-36. The
Fifth Circuit reversed, holding that her claim related back to the date of the original
pleading under Rule 15(c), and it was therefore timely.
After first stating, “The doctrine of relation back under Rule 15(c) is liberally applied
today in the Federal Courts, especially if no disadvantage will accrue to the opposing
party,” the court in Williams said that notice is the critical element in Rule 15(c)
determinations. See id. at 236. When a late amendment attempts to introduce a new
party, not only must the adversary have had notice about the operational facts, “but it
must have had fair notice that a legal claim existed in, and was in effect being asserted
by, the party belatedly brought in.” Id. at 238. The court stated that the defendant in that
case had notice not only of the mother's existence, but also had notice that the mother
was already involved in the lawsuit. See id. at 239. Thus, because the defendant already
had notice both of the mother's existence and her involvement in the action prior to the
amendment which added her as a plaintiff, the untimely amendment related back to the

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date of the original pleading under Rule 15(c). However, if the mother was not already a
party in the lawsuit, the result would have been different. The Fifth Circuit noted:
Notwithstanding this apparent liberality of approach, the rule is generally
stated to be that relation back will not apply to an amendment that
substitutes or adds a new party for those named initially in the earlier timely
pleadings. E.g., Longbottom v. Swaby, 5 Cir., 1968, 397 F.2d 45. The
reasoning apparently is that such an addition amounts to the assertion of a
‘new cause of action,’ and if an amendment were allowed to relate back in
that situation, the purpose of the statute of limitations would be defeated. 3
Moore, Federal Practice P15.15(4.-1), and cases cited therein.
Id. at 237.
Likewise, in Longbottom v. Swaby, 397 F.2d 45, 48 (5th Cir. 1968), cited in
Williams, the Fifth Circuit allowed an amendment to change the capacities of current
plaintiffs in the lawsuit, but would not have allowed the substitution of wholly new plaintiffs,
stating:
As to identity of parties plaintiff, Rule 15(c) does not apply to an amendment
which substitutes a new party or parties. But amendment in the description
of the party plaintiff, and relation back, is allowed after limitations have run
if what is involved is mere change in the description of the capacity in which
plaintiff sues.
Unlike the defendant in Williams, the Defendants in the instant matter had no notice that
any claims of the children were in any way involved in the lawsuit before the Amended
Complaint.
Plaintiffs only cite one Fifth Circuit case in support of their argument, Williams.
However, as explained above, Williams is distinguishable; and, applied to the facts in this
case, actually hurts the Plaintiffs’ argument. Plaintiffs also cite cases from various federal
courts in support, but they are all distinguishable and not persuasive. See Paskuly v.
Marshall Field & Co., 494 F.Supp. 687 (N.D. Ill. 1980), aff’d per curiam, 646 F.2d 1210
(7th Cir. 1980), cert. denied, 454 U.S. 863, 102 S.Ct. 321 (1981) (court allowed relation
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back where plaintiff sought class action by adding similarly situated females as plaintiffs);
Staren v. American Nat. Bank & Trust Co. of Chicago, 529 F.2d 1257 (7th Cir. 1976)
(plaintiff, the president of Staren and Company, Inc, was allowed to amend his complaint
to substitute the corporation as plaintiff in his place); Unilever (Raw Materials) Ltd. v. M/T
Stolt Boel, 77 F.R.D. 384 (S.D. N.Y. 1977) (subsidiary company allowed to substitute its
parent company as plaintiff); Metro. Paving Co. v. Int'l Union of Operating Engineers, 439
F.2d 300 (10th Cir. 1971) (amendment allowed to designate the corporations, rather than
the joint venture, as party plaintiffs).
According to Fifth Circuit jurisprudence, the untimely Amended Complaint cannot
relate back to the date of the Original Petition under Rule 15(c) since the Defendants
were not on notice to either the Children's existence or their involvement in the action
prior to the amendment which added them as plaintiffs. Therefore, the Children’s claims
have prescribed.
CONCLUSION
Under Louisiana Civil Code Articles 2315.1 and 2315.2, Moore was not the proper
party to bring this action. This fact was conceded by Moore when she filed the Amended
Complaint. Additionally, Plaintiffs’ contention that Fed. R. Civ. P. 15(c) allows the untimely
Amended Complaint to relate back to filing of the Original Petition is incorrect. Under
Giroir, Plaintiffs are unable to show how Defendants either knew or should have known
of the existence of the Children. Furthermore, Plaintiffs cannot show the Defendants were
put on notice of both the Children’s existence and their involvement in the action by the
Original Petition. Therefore, the Amended Complaint filed March 9, 2017, nineteen days
after the prescriptive period ended, is untimely. Accordingly, the Defendants’ Motion to

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Dismiss is GRANTED and Plaintiffs’ claims, on behalf of the children, are DISMISSED
WITH PREJUDICE.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 15th day of February,
2018.

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