Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Abshire v. Crump

Court of Appeals of Louisiana, Second Circuit

August 14, 2019

CLIFFORD CLAUDE ABSHIRE, III Plaintiff-Appellant
v.
SHREVEPORT POLICE CHIEF ALLEN CRUMP, FORMER CHIEF OF POLICE CHIEF, WILLIE SHAW, JR., SHREVEPORT CITY POLICE DEPARTMENT, CITY OF SHREVEPORT, ABC INSURANCE Defendants-Appellees

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 610, 185 Honorable Craig Marcotte, Judge.

          CLIFFORD C. ABSHIRE, III In Proper Person.

          STROUD, CARMOUCHE & BUCKLE, PLLC By: Nichole M. Buckle Counsel for Appellees

          Before WILLIAMS, MOORE, and McCALLUM, JJ.

          MOORE, J.

         Clifford C. Abshire III appeals a judgment that sustained exceptions of no cause of action, prescription, and lack of procedural capacity, and dismissed his claim for wrongful arrest and malicious prosecution. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2011, Abshire was charged with possession of child pornography. In January 2012, he pled guilty to the lesser included offense of indecent behavior with juveniles, and received a sentence of 10 years at hard labor, including two years without benefits. He did not appeal. He is now serving his time at Raymond Laborde Correctional Center, in Cottonport.

         In July 2018, Abshire filed this pro se petition for damages against Willie Shaw, former Shreveport Police Department ("SPD") chief; Allen Crump, current SPD chief; SPD; the City of Shreveport; and these entities' unnamed insurer. He alleged that only in November 2017, pursuant to a Public Records Act request, did he receive his "complete file." This disclosed to him, for the first time, various acts of official misconduct, such as allowing civilians to handle the evidence, destroying evidence that was exculpatory, unlawful search and seizure of his cellphone, and obstruction of justice by refusing to turn over a video for 6½ years. He also alleged that he was totally free from fault, and that as a result of this police misconduct he suffered "extreme prejudice." He demanded the "entire amount of plaintiff's damages which will be proven in trial of this matter" plus legal interest and all general and equitable relief. Finally, he requested pauper status, which the district court granted.

         The defendants filed an exception of no cause of action, prescription, and lack of procedural capacity. They showed that any tort claim is subject to one-year prescription, La. C.C. art. 3492, but that this suit came 6½ years after Abshire's conviction, and was facially prescribed. They also showed that under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), before a claimant can recover damages for a claim that impugns the validity of his underlying conviction or sentence, he must prove that his conviction or sentence has been reversed on appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal ruling on habeas corpus. The defendants contended that Abshire did not allege, and could not prove, that any of these things ever happened; thus, he had no cause of action. Finally, they showed that a police department is not an entity capable of suing or being sued, Dugas v. City of Breaux Bridge Police Dept., 1999-1320 (La.App. 3 Cir. 2/2/00), 757 So.2d 741, writ denied, 2000-0671 (La. 4/20/00), 760 So.2d 1159. Hence, they contended a lack of procedural capacity.

         By a second peremptory exception, the defendants urged that even if the discovery rule applied to Abshire's claim and suspended prescription until he "discovered" the operative facts, there was still no cause of action because of Heck v. Humphrey, supra.

         By a subsequent memorandum, the defendants added that the rationale of Heck was not limited to federal § 1983 claims, but applied to any claim of false imprisonment or false arrest, Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5 Cir.), writ denied, 560 So.2d 11 (1990).

         The court fixed the hearings on all exceptions "on briefs only, no oral argument."

         Abshire then filed a motion for change of venue, which the defendants opposed on grounds that no cause was shown, La. C.C.P. art. 122; the record does not show any ruling on this. Abshire also filed a "motion for interlocutory judgment," essentially for a declaration that Heck did not apply to his claim. The district court denied this summarily. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.