APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2015-00330, DIVISION "M"
Honorable Paulette R. Irons, Judge
Leonard Levenson, Christian Helmke, Donna Barrios COUNSEL FOR
composed of Judge Rosemary Ledet, Judge Regina
Bartholomew-Woods, Judge Paula A. Brown
Rosemary Ledet, Judge.
pro se inmate's tort suit is before us on remand
from the Louisiana Supreme Court for briefing and a full
opinion. The narrow question before us is
whether the "prison mailbox rule" applies in
the present context-a pro se inmate filing a tort
suit in Louisiana state court. Answering that question in the
negative, we grant the Relators' writ application,
reverse the trial court's judgment denying the
Relators' peremptory exception of prescription, and
dismiss the suit.
AND PROCEDURAL BACKGROUND
January 5, 2014, the Gretna Police Department (the
"Department") responded to a 911 call regarding an
armed robbery in progress at a local convenience store. The
Relator, Dale Brown, the driver of the vehicle believed to be
involved in the armed robbery, exited the vehicle and
attempted to flee. Mr. Brown was apprehended and arrested. In
connection with his arrest, Mr. Brown was shot in the leg by
one of the Department's officers and bitten in the leg by
one of the Department's canines. On August 26, 2014, a
jury convicted Mr. Brown of armed robbery and aggravated
flight from an officer; his conviction and sentence were
affirmed on appeal. State v. Brown, 15-96 (La.App. 5
Cir. 9/15/15), 173 So.3d 1262.
incarcerated at Louisiana State Penitentiary (Angola), Mr.
Brown commenced this suit against the Relators-David Heintz;
Steven Verrett; and Arthur Lawson, in his official capacity
as the Chief of Police for the City of Gretna (collectively
the "Defendants"). In his petition, Mr. Brown
asserted state tort claims-assault and battery claims-and
federal constitutional claims-civil rights violations of
unlawful seizure and use of excessive force. He averred that
his petition was "filed within one (1) year after the
claim[s] accrued, as required by law." Mr. Brown
signed and verified his petition on December 30, 2014.
According to Mr. Brown, he delivered his petition to prison
officials for mailing on that date.
Clerk of Court of Orleans Parish Civil District Court (the
"Clerk") stamped Mr. Brown's petition as being
filed on January 13, 2015. In response to the petition,
Defendants filed a peremptory exception of prescription,
contending that Mr. Brown's suit had prescribed pursuant
to La. C.C. art. 3492, because it was filed more than one
year after the events complained of in the petition-Mr.
Brown's January 5, 2014 apprehension and arrest.
traversal (memorandum in opposition) to the exception (the
"Traversal"), Mr. Brown argued, based upon the
prison mailbox rule, that the date on which he presented his
petition to prison officials for mailing was the date that
should be used for prescription purposes, not the date that
the Clerk stamped the petition as being filed. See
a hearing, the trial court denied Defendants'
prescription exception. From that ruling, Defendants filed a
writ application, which this court denied. As noted at
the outset of this opinion, this matter is now before us on
remand from the Louisiana Supreme Court for briefing and a
standard of review applicable to a trial court's ruling
on a peremptory exception of prescription hinges on whether
evidence is introduced at the hearing on the exception.
See La. C.C.P. art. 931 (providing that evidence may
be introduced to support or to controvert an exception of
prescription). When evidence is introduced, the trial
court's findings of fact are reviewed under the
manifestly erroneous-clearly wrong standard of
review; when no evidence is introduced, a
de novo standard of review applies.
standard controlling review of a peremptory exception of
prescription requires that this Court strictly construe the
statute against prescription, and in favor of the claim that
is said to be extinguished." Reggio v. E.T.I.,
07-1433, p. 4 (La. 12/12/08), 15 So.3d 951, 954 (citing
Louisiana Health Serv. and Indem. Co. v. Tarver,
93-2449, pp. 11-12 (La. 4/11/94), 635 So.2d 1090, 1098;
Fontaine v. Roman Catholic Church of Archdiocese of New
Orleans, 625 So.2d 548, 551 (La.App. 4th Cir.1993)).
"[T]hus, of two possible constructions, that which
favors maintaining, as opposed to barring, an action should
be adopted." Lima v. Schmidt, 595 So.2d 624,
629 (La 1992).
a copy of the transcript of the hearing on Defendants'
exception is not included in the record and because the trial
court's judgment is silent on the issue, we cannot
discern whether either party introduced any evidence at the
hearing on the exception. Although Mr. Brown attached
exhibits to the Traversal, "'[d]ocuments
attached to memoranda do not constitute evidence and cannot
be considered as such on appeal.'" Felix v.
Safeway Ins. Co., 15-0701, pp. 6-7 (La.App. 4 Cir.
12/16/15), 183 So.3d 627, 631-32 (quoting Denoux,
07-2143 at p. 6, 983 So.2d at 88 (collecting cases)).
"'Evidence not properly and officially offered and
introduced cannot be considered, even if it is physically
placed in the record.'" Id. Hence, we apply
a de novo standard of review here.
(generally a defendant) urging an exception of prescription
has the burden of proving facts to support the exception
unless the petition is prescribed on its face. Winford v.
Conerly Corp., 04-1278, p. 8 (La. 3/11/05), 897 So.2d
560, 565. "[I]f prescription is evident on the face of
the pleadings, the burden shifts to the plaintiff to show
that the action has not prescribed." Id.
noted elsewhere in this opinion, the one-year tort
prescription period applies here. La. C.C. art. 3492
(providing that "[t]his [one-year] prescription [period]
commences to run from the day injury or damage is
sustained"). In his petition, Mr. Brown alleges that he
sustained damages during his apprehension and arrest, which
occurred on January 5, 2014. The Clerk marked the suit as
having been filed on January 13, 2015-eight days after the
one-year period elapsed. Thus, the petition is prescribed on
negate prescription, a plaintiff must establish that one of
the following three theories applies: interruption,
renunciation, or suspension. Mr. Brown contends that
prescription was interrupted, under the prison mailbox rule,
when he delivered his petition to prison officials for
mailing within the one-year prescriptive period. The gist of
Mr. Brown's counter argument is that the defense of
interruption, by filing suit, applies here. See La.
C.C. art. 3462 (providing that "[p]rescription is
interrupted when the owner commences action against the
possessor, or when the obligee commences action against the
obligor, in a court of competent jurisdiction and
on the other hand, contend that Mr. Brown failed to present
any competent, legal defense-suspension, interruption, or
renunciation-to negate prescription. Defendants further
contend that Mr. Brown's petition was not timely filed
pursuant to the prison mailbox rule because the claims in his
petition do not involve a request for judicial review of an
adverse administrative procedure, but rather involve a
personal injury claim unrelated to his incarceration.
emphasize that the Louisiana Supreme Court has declined the
opportunity to extend the prison mailbox rule to all civil
filings in Skipper v. Boothe, 08-1292 (La. 10/3/08),
991 So.2d 462. Defendants also cite a trio of Louisiana
appellate court decisions, from three other circuits (the
First, Second, and Third)-Richardson v. Say, 31, 989
(La.App. 2 Cir. 7/22/99), 740 So.2d 771; Knockum v.
Waguespack, 12-0277 (La.App. 1 Cir. 11/2/12), 111 So.3d
370; and Cutler v. City of Sulphur, 10-690 (La.App.
3 Cir. 12/8/10) (unpub.), 2010 WL 5027144-for the
proposition that the prison mailbox rule repeatedly has not
been applied in civil matters that are unrelated to judicial
review of adverse administrative procedures. Finally,
Defendants contend that allowing an extension of the prison
mailbox rule to all civil filings is contrary to the four
cases they cite, in particular, and Louisiana law on
prescription, in general.
provide a background for addressing the issue of whether Mr.
Brown's interruption defense, based on the prison mailbox
rule, has merit, we first review the four cases that