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Brown v. Heintz

Court of Appeals of Louisiana, Fourth Circuit

May 2, 2018



          Leonard Levenson, Christian Helmke, Donna Barrios COUNSEL FOR THE RELATORS

          Dale Brown, RESPONDENT/PRO-SE

          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew-Woods, Judge Paula A. Brown

          Rosemary Ledet, Judge.

         This pro se inmate's tort suit is before us on remand from the Louisiana Supreme Court for briefing and a full opinion.[1] The narrow question before us is whether the "prison mailbox rule"[2] 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.


         On 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.

         While 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."[3] 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.

         The 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.

         In his 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 Houston, supra.

         Following a hearing, the trial court denied Defendants' prescription exception. From that ruling, Defendants filed a writ application, which this court denied.[4] 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 full opinion.


         The 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;[5] when no evidence is introduced, a de novo standard of review applies.[6]

         "The 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).

         Because 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, [7]"'[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.[8]

         A party (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.

         As 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 its face.

         To negate prescription, a plaintiff must establish that one of the following three theories applies: interruption, renunciation, or suspension.[9] 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 venue").

         Defendants, 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.

         Defendants 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.

         To 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 ...

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