United States District Court, W.D. Louisiana, Alexandria Division
PEREZ-MONTES, MAGISTRATE JUDGE
H.L. Perez-Montes United States Magistrate Judge
the Court is a civil rights complaint (42 U.S.C. § 1983)
filed by pro se Plaintiff Joshua Keaton Barber
(“Barber”). Barber is a pretrial detainee at the
Concordia Parish Jail. Barber was granted leave to proceed
in forma pauperis. (Doc. 9). Barber complains he was
subjected to excessive force by an officer at the Jefferson
Davis Parish Jail, and that officers at the Concordia Parish
Correctional Center failed to protect him from harm inflicted
by other inmates.
alleges that, on May 2, 2016, he was threatened with a knife
by Officer Lanier at the Jefferson Davis Parish Jail. Barber
also claims that Officer Lanier cut his shirt with the knife.
(Doc. 1, p. 3).
alleges that, on November 2, 2016, he was attacked by other
inmates at the Concordia Parish Correctional Center. (Doc. 1,
p. 4). At some point, Barber was transferred or released.
(Doc. 1-2, p. 1).
April 4 and 17, 2017, after being transferred back to the
Concordia Parish Correctional Facility, Barber was attacked
by other inmates. (Doc. 1, p. 4; Doc. 1-2, p. 1).
Instructions to Amend
statute of limitations for a § 1983 action is borrowed
from state law. See Alford v. United States, 693
F.2d 498, 499 (5th Cir. 1982). Louisiana tort law provides a
one-year prescriptive period. See La. Civ. Code art.
3492; Gaspard v. United States, 713 F.2d 1097, 1102
n. 11 (5th Cir. 1983). Federal law, however, determines when
a § 1983 cause of action accrues. See United Klans
of America v. McGovern, 621 F.2d 152, 153 n. 1 (5th Cir.
1980). Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury which is
the basis of the action. Such knowledge encompasses both: (1)
the existence of the injury; and (2) the connection between
the injury and the defendant's actions. See Brown v.
Nationsbank Corp., 188 F.3d 579, 589-90 (5th Cir. 1999).
Actual knowledge is not necessary for the limitations period
to commence “if the circumstances would lead a
reasonable person to investigate further.”
Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th
claims that he was attacked or threatened by Officer Lanier
at the Jefferson Davis Parish Jail on May 2, 2016, and
attacked by inmates at the Concordia Parish Correctional
Center on November 2, 2016. (Doc. 1, pp. 3-4). The two
incidents are unrelated and occurred at different facilities.
Barber had one year from May 2, 2016, within which to file
suit against Officer Lanier, and one year from November 2,
2016, within which to file suit with the respect to the first
attack at the Concordia Parish Correctional Facility.
Barber's suit is postmarked February 7, 2018. (Doc. 1, p.
18). Thus, it is likely that Barber's claims regarding
the incident at the Jefferson Davis Parish Jail and the first
attack at the Concordia Parish Correctional Center are
if Barber properly filed a grievance regarding each incident,
the claims may be equitably tolled while the administrative
remedy process was pending. See Clifford v. Gibbs,
298 F.3d 328, 333 (5th Cir. 2002). If Barber did not properly
or timely file administrative grievances regarding either
incident, then Barber is not entitled to equitable tolling.
Barber should amend his complaint and provide a copy of any
grievance filed regarding the incidents of May 2, 2016, and
November 6, 2016, as well as any responses received at each
Barber's claim regarding the attacks in April of 2017,
Barber must amend his complaint to provide allegations of the
attacks. Specifically, Barber shall state the name of each
Defendant that violated his rights on April 4 and 17, 2017.
Barber should also allege how each of those Defendants acted
with deliberate indifference with respect to the two attacks.
That is, Barber must show that each official knew of and
disregarded a substantial risk of serious harm. See
Domino v. Tex. Dep't of Criminal Justice, 239 F.3d
752, 755 (5th Cir. 2001).
Barber must amend to state what, if any, injuries he suffered
as a result of each incident about which he complains.