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Joseph v. Louisiana Department of Corrections

United States District Court, E.D. Louisiana

November 3, 2017

JERRY JOSEPH AND MERLINE JOSEPH
v.
LOUISIANA DEPARTMENT OF CORRECTIONS, TANGIPAHOA PARISH SHERIFF'S OFFICE, SHERIFF DANIEL EDWARDS, OFFICER BROCK, LT. BRANDON PINON, LT. SHIRRA FINN, PRISON MEDICAL SERVICES, COLUMBIA CASUALTY COMPANY, AND ALISON L. THORNHILL, N.P.

         SECTION: "S" (4)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE

         IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. #69) is GRANTED, and plaintiffs' claims against them are DISMISSED.

         IT IS FURTHER ORDERED that the Motion for Leave to Substitute Proper Party Plaintiff filed by non-party, Murinda Luella Perez (Doc. #81), is DENIED.

         BACKGROUND

         This matter is before the court on a motion for summary judgment filed by defendants, Sheriff Daniel Edwards; Officer Brock; Alison Thornhill, N.P.; and, Columbia Casualty Company. The defendants argue that the plaintiffs, the decedent's parents, do not have a cause of action against them under Louisiana law because the decedent has a surviving child. It is also before the court on a motion for leave to substitute the proper party plaintiff filed by non-party Murinda Luella Perez. Perez seeks to be added as the plaintiff in this matter as the mother and natural tutrix of the decedent's surviving minor child.

         On March 9, 2015, plaintiffs, Jerry and Merline Joseph, filed this action alleging claims arising under 42 U.S.C. § 1983 against various defendants related to the death of their son, Keith Joseph, on March 11, 2014, while he was in the custody of the Tangipahoa Parish Sheriff's Office. In their discovery responses, plaintiffs denied that the decedent had any surviving children. Merline Joseph and her daughter, Tameka Joseph, both testified at their depositions that they were not aware of the decedent having any children.

         On May 31, 2017, defendants received the decedent's medical records from North Oaks Health Systems. Upon examination of those records, defendants learned that the decedent may have had a fiancée when they noticed an individual named "Anne Soles" listed as the decedent's relative with the relationship of "other." Defendants attempted to contact Soles through her employer, Berryland Campers. Because Berryland Campers would not provide any information about Soles, defendants subpoenaed her employment records to determine her relationship with the decedent. Soles contacted defense counsel when she learned of the subpoena, and told defense counsel that the decedent is the father of her grandson, DJJ. Soles put defense counsel in contact with the child's mother, her daughter, Perez.

         On June 24, 2017, Perez provided defense counsel with a copy of DJJ's birth certificate and the decedent's funeral program. On July 10, 2017, Perez executed a sworn affidavit in which she stated that DJJ is her son, and that the decedent is DJJ's father. Perez also stated that she lived with the decedent and Merline Joseph while she was pregnant with DJJ, and that Merline Joseph and Tameka Joseph both knew that DJJ was the decedent's child. Attached to the affidavit are DJJ's birth certificate, which lists the decedent as DJJ's father, and the decedent's funeral program, which lists DJJ as his son.

         On July 18, 2017, defendants filed the instant motion for summary judgment arguing that plaintiffs, the decedent's parents, do not have a cause of action against them because the decedent has a surviving child. Plaintiffs argue that the birth certificate is not sufficient evidence of DJJ's paternity because it is not signed. Plaintiffs also argue that the motion should be deemed moot because they filed a motion to amend the complaint to add Perez as a plaintiff because she is DJJ's mother and natural tutrix. In this argument, plaintiffs admit that DJJ is the decedent's surviving son.

         On July 24, 2017, plaintiffs filed a motion to amend their complaint to add Perez as a plaintiff as the mother and natural tutrix of DJJ. On August 10, 2017, the United States Magistrate Judge denied that motion finding that DJJ's claim was prescribed and would not relate back to the filing of the complaint because there was no showing that the defendants knew or should have known of DJJ's existence considering that plaintiffs denied he existed and defendants discovered DJJ's existence through careful examination of the decedent's medical records and follow up investigation. The United States Magistrate Judge also found that neither Perez nor plaintiffs put forth any evidence demonstrating that the doctrine of contra non valentem applied. Thus, the United States Magistrate Judge found that the motion to amend the complaint was futile because DJJ's claim was prescribed.

         On August 11, 2017, Perez filed the instant motion to substitute the proper party plaintiff. She argues that she should be substituted as the proper plaintiff as DJJ's mother and natural turtix. Perez states that the motion is made pursuant to Rule 25 of the Federal Rules of Civil Procedure. She argues that DJJ's claim is not prescribed because she was not aware of the decedent's death until late in the calendar year of 2016. Perez also states that the doctrine of contra non valentem applies, without providing analysis to support this statement. Defendants argue that Perez does not have standing to file a motion in this case because she is not a party. They also argue that Rule 25 is inapplicable, and Perez is re-hashing arguments that plaintiffs made in their motion to amend their complaint, which was denied by the United States Magistrate Judge.

         On August 20, 2017, plaintiffs filed a motion before the United States Magistrate Judge to reconsider her August 10, 2017, Order denying their motion to amend the complaint. Plaintiffs argued that they did not expect prescription to be an issue at the oral argument on the motion to amend and attached an affidavit executed by Perez in which she swears she did not know about the decedent's death until 2016.

         On October 12, 2017, the United States Magistrate Judge denied the motion to reconsider finding that Perez's affidavit was not new evidence, but rather "a regurgitation of what Counsel argued during oral argument, which is that Perez did not attend the funeral and was not aware of the Deceased's death until late 2016." The United States Magistrate Judge noted that Perez's affidavit directly contradicted "Plaintiffs' initial representation in their Motion for Leave to File Third Supplemental and Amending Complaint that Perez did not learn of the Deceased's death until 2017, June 2017 at the latest[, ]" and that "the affidavit lacks credibility because Perez had a copy of the funeral program from 2014 in her file, which she provided to Defense Counsel as proof that the Plaintiffs were aware that their son had a child." The United States Magistrate Judge also found that plaintiffs could have obtained Perez's affidavit prior to the first hearing and that she "is not convinced that Plaintiffs did not anticipate that prescription would be substantively addressed during oral argument, considering Defendants timely addressed the issue of prescription in their opposition to Plaintiffs motion for leave." Finally, the United States Magistrate Judge found that Perez's ...


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