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Cook v. Louisiana Department of Public Safety and Corrections

Court of Appeals of Louisiana, First Circuit

December 18, 2018

DEMOND F. COOK
v.
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

          Demond F. Cook Angola, LA Plaintiff/Appellant In Proper Person

          Mary 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 Dennis Grimes

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          GUIDRY, J.

         Plaintiff, 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 affirm.

         FACTS AND PROCEDURAL HISTORY

         On 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.)

         Thereafter, 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).[1]

         On 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.

         The 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.

         Following 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.[2]

         DISCUSSION

         A party 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 ...


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