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
WILLIAMS, MOORE, and McCALLUM, JJ.
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.
AND PROCEDURAL BACKGROUND
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
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.
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.
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.
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
court fixed the hearings on all exceptions "on briefs
only, no oral argument."
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.