DEMOND F. COOK
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, &T. WADE LAMOTTE, LT. LEONARD FIARRIS, DEPUTY JOHNATHAN MALVEAUX, DEPUTY ALFRED GLASPER, AND WARDEN DENNIS GRIMES
Appealed from the Nineteenth Judicial District Court In and
for the Parish of East Baton Rouge State of Louisiana Suit
number C624379 Honorable Todd Hernandez, Presiding
F. Cook Angola, LA Plaintiff/Appellant In Proper Person
G. Erlingson Tara L. Johnston Baton Rouge, LA Counsel for
Defendants/Appellees Sgt. Wade Lamotte, Lt. Leonard Harris,
Deputy Johnathan Malveaux, Deputy Alfred Glasper, and Warden
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
Demond F. Cook, appeals from a trial court judgment
dismissing his petition for tort action against defendants,
Sargent Wade Lamotte, Lieutenant Leonard Harris, Deputy
Johnathan Malveaux, Deputy Alfred Glasper and Warden Dennis
Grimes, with prejudice. For the reasons that follow, we
AND PROCEDURAL HISTORY
November 30, 2009, Cook, while an inmate in East Baton Rouge
Parish Prison, filed a grievance asserting that on November
28, 2009, Sgt. Lamotte tased him with a taser gun. In a
January 3, 2010 response to Cook's grievance, the prison
determined that the grievance was unfounded. Cook
subsequently filed a petition for judicial review of the
prison's response in the Nineteenth Judicial District
Court (19th JDC) on April 10, 2010. However, in addition to
seeking review of the prison's response to his grievance,
he also sought relief in the amount of $250, 000 for the
injury, $100, 000 for mental anguish, and requested that Sgt.
Lamotte be charged with attempted murder for attempting to
end his life.)
on May 31, 2011, Cook filed a federal civil rights complaint
in the U.S. District Court, Middle District of Louisiana,
against the same parties asserting that his state court
action was dismissed without prejudice on April 13, 2011,
allowing him to file his suit "in the proper format and
desired court." Cook sought monetary damages and
requested criminal charges against Sgt. Lamotte for second
degree attempted murder and/or termination from his job.
Following a hearing on cross motions for summary judgment,
the federal district court granted the defendants' motion
for summary judgment, finding that Cook's federal claims
were time barred by the applicable statute of limitations.
The federal district court further declined to exercise
supplemental jurisdiction over Cook's state law claims.
See Cook v. Lamont No. 11-00358, 2013 WL 325557
(M.D. La. Jan. 28, 2013).
September 5, 2013, Cook filed a petition for tort action,
alleging that on November 28, 2009, Sgt. Lamotte maliciously
tased him without provocation while Lt. Harris, Deputy
Malveaux, Deputy Glasper, and Deputy Don Williams stood and
watched the assault and failed to intervene or restrain a
non-violent inmate. Cook sought punitive damages for the
defendants' criminal conduct as well as damages for
deliberate indifference and mental anguish. Cook subsequently
requested service on the defendants on September 6, 2016.
defendants responded by filing an exception raising the
objection of prescription on February 8, 2017, asserting that
Cook's delictual action is subject to a one-year
prescriptive period, and the action, filed over three years
following the alleged date of injury, is prescribed.
Defendants further asserted that Cook is unable to establish
that the prescriptive period was interrupted by his filing of
a 2010 petition for judicial review in the 19th JDC.
a hearing on the defendants' exception, the trial court
signed a judgment sustaining the defendants' exception
and dismissing Cook's claim with prejudice. Cook now
appeals from the trial court's judgment.
urging an exception raising the objection of prescription has
the burden of proving facts sufficient to support the
exception. Cichirillo v. Avondale Industries, Inc.,
04-2894, 04-2918, p. 5 (La. 11/29/05), 917 So.2d 424, 428.
However, when the face of the plaintiffs petition shows that
the prescriptive period has run, the burden shifts to the
plaintiff to demonstrate that prescription was suspended or