United States District Court, M.D. Louisiana
IRMA JEAN CARTER, individually and on behalf of the deceased TERRANCE CARTER, CHRISTA CARTER, individually and as Mandatary, DOES 1-5
N. BURL CAIN, former Warden, JAMES LEBLANC, Secretary of the Department of Corrections, et al.
D. DICK, UNITED STATES DISTRICT COURT JUDGE
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”). Plaintiffs, Irma
Jean Carter, Christa Carter, and Does 1-5, filed an
Opposition to which Defendants have filed a
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. 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 Carter.” 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.Additionally, Plaintiffs Does Carter 1-5
are also Mr. Carter's siblings. 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
plaintiff brings a 42 U.S.C. § 1983 action, the courts
look to state law to determine who is entitled to
recover. 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. 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.” 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.”
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.
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.
further ordered that the Defendants' Motion to
Dismiss is hereby denied without
prejudice. 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.
IS SO ORDERED.
 Doc. 24. These are not the only named
Defendants in this suit; however, the Motion is only brought
on behalf of these six Defendants.
 Doc. 28 and Doc. 32.
 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 ...