United States District Court, M.D. Louisiana
CARLWYNN J. TURNER
N. BURL CAIN, ET AL.
RULING AND ORDER
A. JACKSON CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is the United States Magistrate Judge's
Recommendation (Doc. 132) pursuant to 28
U.S.C. § 636(b)(1). The Report and Recommendation
addresses the Motion for Summary
Judgment (Doc. 118) filed by the
remaining Defendants in this case, N. Burl Cain and Leslie
Dupont. The Magistrate Judge recommended that the Motion for
Summary Judgment be granted because Plaintiffs claims are
Report and Recommendation notified the parties that, pursuant
to 28 U.S.C. § 636(b)(1), they had fourteen days from
the date they received the Report and Recommendation to file
written objections to the proposed findings of fact,
conclusions of law, and recommendations therein. (Doc. 139 at
objects to the Report and Recommendation on six grounds. The
Court addresses each below.
Plaintiffs Obligation to Prove That Prescription Was
argues that the Magistrate Judge incorrectly concluded that
he bears the burden of proving that the prescriptive period
was tolled. (Doc. 135-1 at p. 4). A defendant generally
carries the burden of establishing the elements of a
prescription defense. However, the Magistrate Judge properly
concluded that when "on the face of the petition, it
appears that prescription has run," the burden of
showing that the limitations period has been interrupted
shifts to the plaintiff. Savoy v. St Landry Parish
Council, No. 08-232, 2009 WL 4571851, at *3 (W.D. La.
Dec. 1, 2009). Plaintiff brought retaliation claims for his
removal from the Angola Rodeo on April 16, 2011 and his
transfer from Angola on April 28, 2011. (Doc. 1 at pp. 5-6)
Plaintiff filed his federal complaint on September 24, 2012.
(Doc. 1) Accordingly, the face of the complaint indicates
that more than a year passed between the events in the
complaint and the commencement of suit. The Court is
therefore satisfied that the burden of proving the tolling of
the prescriptive period is on Plaintiff, and that he failed
to satisfy the burden.
Plaintiffs Failure to Exhaust
Plaintiff objects to the Magistrate Judge's conclusion
that Plaintiffs retaliation claim arising out of his removal
from the rodeo by Dupont was subject to dismissal for a
failure to exhaust administrative remedies. (Doc. 135-1 at p.
5). The record indicates that Plaintiffs July 5, 2011
administrative remedy procedure request contained no
allegations regarding Plaintiffs removal from the Angola
Rodeo. (Doc.1-1-2 at pp. 1-3). As such, the Court is
satisfied that Plaintiff failed to exhaust his remedies
regarding this retaliation claim. Moreover, even if Plaintiff
had exhausted his administrative remedies, the Magistrate
Judge correctly concluded that the claim would still be
prescribed. (Doc. 132 at p. 10).
Plaintiffs Failure to Serve Defendants with Petition
for Judicial Review
makes four objections to the Magistrate Judge's
finding that Defendants
were not properly served with Plaintiffs Petition for
Judicial Review in state court and therefore, the petition
did not interrupt the prescriptive period. (Doc.135-1 at pp.
5-9) However, the Magistrate Judge also concluded that the
Petition for Judicial Review did not constitute a civil
action for damages which could interrupt the prescriptive
period. (Doc. 132 at p. 12). Moreover, the Court is satisfied
with the Magistrate Judge's detailed analysis of the
alleged facts and law regarding this conclusion.
(Id. at pp. 13-17). As such, even if Plaintiff had
properly served the Petition for Judicial Review, he would
still have failed to interrupt the prescriptive period.
carefully considered the underlying Complaint, the instant
motions, and related filings, the Court approves the
Magistrate Judge's Report and Recommendation, and hereby
adopts the ...