United States District Court, W.D. Louisiana, Shreveport Division
CURT L. CHAMBERS, II.
B. BOUGHTON, ET AL.
REPORT AND RECOMMENDATION
L. Hornsby, U.S. Magistrate Judge.
accordance with the standing order of this court, this matter
was referred to the undersigned Magistrate Judge for review,
report and recommendation.
claims that on December 14, 2017, Agents B. Boughton and
James Cisco used excessive force against him during a police
investigation. He claims Boughton fired shots at him as he
drove away. He claims he was struck in the right elbow by a
bullet. Plaintiff claims Cisco kicked and punched him in the
face while he was handcuffed and face down on his stomach. He
claims he did not resist the officers. He claims he lost
consciousness and his face was swollen. Plaintiff claims he
had to go to the hospital for medical treatment.
claims the gunshot wound caused numbness, nerve damage,
mental anguish, and depression. He also claims he has back
and neck problems and pain. He claims that after he was shot,
he feared driving a vehicle and police officers. He claims
his car was also totaled.
Plaintiff seeks monetary compensation, therapy, and the
termination of Defendants.
Wilson v. Garcia, 471 U.S. 261 (1985), the Court
articulated the guidelines to be used in determining what
prescriptive period should apply to Section 1983 claims. The
Court determined "§ 1983 claims are best
characterized as personal injury actions" and the forum
state's statute of limitations applicable to such claims
should be used. Id. at 280. In Gates v.
Spinks, 771 F.2d 916 (5th Cir. 1985), the Fifth Circuit
Court of Appeals phrased the test as: "The state statute
governing the general tort remedy for personal injuries
should apply to 1983 actions . . ." Gates, 771
F.2d at 919.
Louisiana Civil Code provides a general prescriptive statute
that governs tort actions. The article subjects delictual
actions to a liberative prescription of one year.
See La. C.C. art. 3492. The Fifth Circuit qualified
this prescriptive period, however, when it held that "a
section 1983 action accrues and the statute of limitations
begins to run when the plaintiff knows or has reason to know
of the injury which is the basis for the action."
Watts v. Graves, 720 F.2d 1416, 1417 (5th Cir.
1983). Finally, prescription on the claim is tolled while the
administrative remedy procedure is pending. See Harris v.
Hegmann, 198 F.3d 153 (5th Cir. 1999).
claims his civil rights were violated by Defendants on
December 14, 2017. Thus, prescription began to run as to
these claims in December of 2017. The above entitled and
numbered complaint was not signed by Plaintiff until February
11, 2019, and it was not filed by the Clerk of Court until
February 13, 2019. Plaintiff's claims are therefore
prescribed. Accordingly, Plaintiff's civil rights
complaint should be dismissed as frivolous.
Plaintiff filed this proceeding in forma pauperis
("IFP"), if this court finds Plaintiff's
complaint to be frivolous, it may dismiss the complaint as
such at any time, before or after service of process, and
before or after answers have been filed. See 28
U.S.C. § 1915(e); Green v. McKaskle, 788 F.2d
1116, 1119 (5th Cir. 1986); Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985). District courts are vested with
extremely broad discretion in making a determination of
whether an IFP proceeding is frivolous and may dismiss a
claim as frivolous if the IFP complaint lacks an arguable
basis either in law or in fact. See Hicks v. Garner,
69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d
114 (5th Cir. 1993); Neitzke v. Williams, 490 U.S.
319 (1989). See also Gartrell v. Gaylor, 981 F.3d
254, 256 (5th Cir. 1993) ("Where it is clear from the
face of a complaint filed in forma pauperis that the
claims asserted are barred by the applicable statute of
limitations, those claims are properly dismissed pursuant to
reasons stated above, the court finds that the IFP complaint
of Plaintiff lacks an arguable ...