ESTATE OF CURTIS v. CITY OF NEW ORLEANS

A.J. McNAMARA, United States District Court, Chief Judge.

The court held a non-jury Trial on the prescription issue on Monday, April 17, 2000. At this Trial, plaintiffs Diane Pitre, Robert Pitre, Sr., and Deone Briggs testified in person, and the deposition testimony of Plaintiff Ronice Lewis and Plaintiff Cintrel Robinson was admitted in lieu of their live testimony.

Plaintiff Ronice Lewis lives in Florida, and the court (with no objection from Defendants' counsel) agreed at the Pre-Trial Conference to allow Plaintiffs to submit Ms. Lewis' deposition testimony at Trial.
Plaintiff Cintrel Robinson was unable to appear at Trial on April 17, 2000 because of medical problems, and all parties subsequently agreed to submit her deposition testimony rather than reopening the Trial for the taking of her live testimony.

Having heard the testimony of Plaintiffs Diane Pitre, Robert Pitre, Sr, and Deane Briggs, who appeared before the court on April 17, 2000, having reviewed the deposition testimony of Plaintiffs Ronice Lewis and Cintrel Robinson, and having considered the Trial Exhibits and the applicable law, the court now rules.

I. procedural Background

In Civil Action No. 98-3733, the "Curtis P1aintiffs" filed their original Complaint on December 18, 1998, alleging civil rights violations against the City of New Orleans, David Singleton (an alleged New Orleans police officer), Richard Pena, Johnny Pena — and Eduardo Pena for the alleged wrongful death of Richard Curtis. ( See Complaint, soc. No. 1 in Record No. 98-3733).

On March 22, 1999, the Curtis Plaintiffs filed an Amended Complaint adding as a Defendant, Renard Smith (an alleged New Orleans police officer). (Doc. No. B). On July 28, 1999, the Curtis Plaintiffs filed a Second Amending Complaint naming Amy St. Pierre Pena as a Defendant. (Doc. No. 21)

In Civil Action No. 99-0959, the "Pitre Plaintiffs" filed their original Complaint on March 26, 1999, alleging civil rights violations against the City of New Orleans, David Singleton (an alleged New Orleans police officer), Richard Pena, Johnny Pena, Eduardo Pena, Troy Watts and Randall Watts for the alleged wrongful death of Robin Pitre. ( See Complaint, Doc. No. 1 in Record No. 99-0959).

On April 14, 1999, the Pitre plaintiffs filed a First Supplemental and Amending Complaint adding Amy St. Pierre Pena as a Defendant. (Doc. No. 12).

On April 29, 1999, the court consolidated the Curtis and Pitre cases, No. 98-3733 and No. 99-0959. The Curtis and Pitre. plaintiffs also filed a single "RICO Case Statement Pursuant to 18 U.S.C. § 1961-68". (Doc. No. 131. However, upon reviewing the plaintiffs' various Complaints and their submitted RICO Case Statement, the court found Plaintiffs' purported RICO claims to be inadequately pled, and thus ordered plaintiff s to further amend their respective Complaints to adequately allege their RICO claims, and to file a RICO Case Statement in strict conformity to the court's "RICO Standing Order". ( See Minute Entry entered on September 14, 1999, Doc. No. 28). On October 6, 1999, both the Curtis and Pitre plaintiffs moved to voluntarily dismiss their RICO claims with prejudice, and the court so ordered. (Doc. NO. 37)

On November 11, 1999, the Pitre plaintiff s voluntarily moved to dismiss their claims against Defendant Randall Watts, and the court so ordered. (Doc. No. 50). On February 2, 2000, the Clerk entered defaults against Defendants David Singleton, Troy Watts, Richard Pena, Johnny Pena, Eduardo Pena and Renard Smith (who are all presently federal inmates). (Doc. No. 63, ref. both cases)

The remaining Defendants, the City of New Orleans and Amy St. Pierre, filed Motions for Summary Judgment arguing that all claims were prescribed. The court denied these motions, but severed the issue of prescription setting it for Trial on April 17, 2000. (000. No. 59)

II. Legal Analysis

In their original Complaints, Plaintiffs allege that Defendants violated the rights of the decedents, Richard Curtis and Robin Pitre "secured by and arising under the Fourth, Fifth, Sixth, Eight (sic) and Fourteenth amendments of the Constitution of the United States of America, Title 42 U.S.C. 1981; 42 U.S.C. 1983; 42 U.S.C. 1984; 28 U.S.C. 1988; 42 U.S.C. 1331, and 28 U.S.C. 1343, and 28 U.S.C. 1367 (a)." ( See Original Curtis and Pitre Complaints, ¶¶ 17).

The court assumes that Plaintiffs meant to state "42 U.S.C. 1988" instead of "28 U.S.C. 1988", and "28 U.S.C. 1331" instead of "42 U.S.C. 1331".
The court further notes that 28 U.S.C. § 1331, 1343 and 1367(a) are purely jurisdictional in nature, and do not create causes of action. Further, 42 U.S.C. § 1984 no longer exists, and 42 U.S.C. § 1988 concerns the "Proceedings in vindication of civil rights" and provides for the recovery of attorney's fees.

In determining whether or not Plaintiffs' civil rights claims are prescribed, the court borrows Louisiana's general personal injury limitations period. Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Under Louisiana Civil Code Article 3492, "[d]elictual actions are subject to a liberative prescription of one year." La. Civ. Code Ann. Art. 3492; Jacobsen v. Osborne, 133 F.3d 315, 318-19 (5th Cir. 1998) (applying Louisiana's one-year period to a § 1983 action).

Here, the court finds that the Plaintiffs' claims are prescribed on the face of their Complaints. In the Curtis matter, the death of Richard Curtis was known to the Curtis plaintiffs in the Fall of 1995, when the funeral of Richard Curtis was held following discovery of his dismembered remains in Mississippi on or about October 29, 1995. However, the Curtis Complaint was not filed until over three years later, on December 18, 1998. Similarly, in the Pitre matter, the death of Robin Pitre was known on February 3, 1997, but the Pitre Complaint was not filed until more than two years later, on March 26, 1999.

Because plaintiffs' claims are prescribed on their face, Plaintiffs bear the burden of proving interruption or suspension of prescription. Lima v. Schmidt, 595 So.2d 624, 628 (La. 1992). In support of their contention that their claims have not prescribed, plaintiffs rely on the doctrine of contra non valentum. This doctrine may suspend the running of prescription when "the cause of action is not known or reasonably knowable to the plaintiff, even though his ignorance is not induced by the defendant." Eldredge v. Martin Marietta Corp., 207 F.3d 737, 2000 WL 297667 *4 (5th Cir. March 22, 2000), quoting Landreneau v. Fruge, 598 So.2d 658, 662 (La.Ct.App. 1992) (citing Corsey v. State Dep't of Corrections, 375 So.2d 1319, 1321-22 (La. 1979))

"As a judicial exception to the statutory rule of prescription, Louisiana courts strictly construe this doctrine and only extend its benefits up to `the time that the plaintiff has actual or constructive knowledge of the tortious act.'" Eldredge, 2000 WL 297667 *4, quoting Bergeron v. Pan American Assurance Co., 731 So.2d 1037, 1042 (La.Ct.App. 1999)

Constructive notice is found at the point at which "the plaintiff has information sufficient to excite attention and prompt further inquiry." Id. (quotation and citation omitted, emphasis added). It "includes knowledge or notice of everything to which that inquiry might lead." Adams v. First Nat. Bank of Commerce, 644 So.2d 219, 223 (La.App. 4th Cir. 1994) (citation omitted)

The doctrine is of no avail to a plaintiff whose delay in filing suit results from his own neglect. Adams, 644 So.2d at 224. In other words, "a plaintiff will be deemed to know what he could by reasonable diligence have learned." McGregor v. Louisiana State University, 3 F.3d 850, 865 (5th Cir. 1993), quoting Corsey v. State, 375 So.2d 1319, 1322 (La. 1979). The focus under this doctrine is not what the defendants did but what the plaintiffs could have done. McGregor, 3 F.2d at 865.

If an opportunity is afforded to a party to know and to learn about a certain matter bearing on his interest and he fails or refuses to profit by it, if he closes his eyes to the notice spread before him and shuts his ears to oral information directly imparted to him, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted and of the notice given.

Hosp. Serv. Dist. No. 1 v. Alas, 657 So.2d 1378, 1383 (La.App. 5th Cir. 1995), quoting Dory v. Knox, 38 La.Ann. 379 (La. 1886) (emphasis added).

In the Curtis matter, the Plaintiffs allege in their original Complaint (filed on December 18, 1998) that they "learned the defendants were responsible for the death of . . . Richard Curtis from the Times Picayune in December of 1998." (Curtis original Complaint. ¶ 23). However, the Curtis plaintiffs knew or should have known that Richard Curtis was missing in August 1995, and that his dismembered remains were found in the Fall of 1995. Thus, the Curtis plaintiffs were alerted of the reasonable probability of tortious conduct in the Fall of 1995.

In the Pitre matter, the Pitre Plaintiffs allege in their original Complaint (filed on March 26, 1999) that they "learned that the defendants were responsible for the death of Robin Pitre from the Times Picayune in March of 1999." (Pitre original Complaint, ¶ 36). However, the Pitre Plaintiffs knew that Robin Pitre was murdered on February 3, 1997. Thus, the Pitre Plaintiffs were alerted to the reasonable probability of tortious conduct on February 3, 1997.

Based on the testimony of the Plaintiffs and the evidence admitted at Trial (on the prescription issue), the court concludes that Plaintiffs may not receive the benefits of contra non valentum. Both the Curtis and Pitre plaintiffs utterly failed to show that they exercised reasonable diligence to learn the identity of the parties responsible for injuring them.

The Curtis plaintiffs contend that prescription did not begin to run against them until they read the December 9, 1998 newspaper article in the Times Picayune which sets forth who was responsible for the murder of Richard Curtis. ( See Exhibit No. 37). Further, the Pitre plaintiffs contend that prescription did not begin to run against them until they read the January 15, 1999 newspaper article-in the Times Picayune which sets forth who was responsible for the murder of Robin Pitre. ( See Exhibit No. 36).

However, not only did the Plaintiffs admit that they failed to follow the investigations carried out by the various law enforcement departments, they incredibly testified that they did not read and were unaware of numerous local newspaper articles, which were dated more than one year before the Curtis and/or Pitre original Complaints were filed, and which clearly described the circumstances surrounding the deaths of Richard Curtis and/or Robin Pitre and identified some if not all of the Defendants. Many of these newspaper articles were even on the front page of the entire newspaper or on the front page of the "Metro" Section! Similarly, the Plaintiffs testified that they did not view and were unaware of local news-television stories which also dealt with the facts and circumstances surrounding the murders of Richard Curtis and Robin Pitre.

Re "Curtis" matter, see: Exhibit No. 7, Times-Picayune article dated August 31, 1997 entitled "Murder added to case against family"; Exhibit No. 8, Times-Picayune article dated September 11, 1997 entitled "Farmer N.O. cop accused of plotting assault"; Exhibit No. 9, Times-Picayune article dated September 24, 1997 entitled "Ex-cop to plead guilty in assault"; Exhibit No. 10, Times-Picayune article dated September 25, 1997 entitled "Ex-cop gave man to his alleged killer's; Exhibit No. 12, Times-Picayune article dated October 26, 1997 entitled "Cocaine King"; Exhibit No. 13, Gambit Weekly article dated September 30, 1997.
Re Pitre' matter, see Exhibit No. 35, Times-Picayune article dated December 19, 1997 entitled "Alleged drug kingpin tied to 7 more killings". This article includes a photograph which is described as:

Family and friends comfort each other as New Orleans police investigate Robin Pitre's murder on Feb. 3. The shooting death of Pitre, who was gunned down in the driveway next to her house, is one of seven additional murders cited in an indictment against suspected drug lord Richard Pena.

See Exhibit Nos. 7, 8, 9, 10, 12 and 35.

See Exhibit No. 15, video tape and log from local television station, WWL-TV, broadcast story airing on 12/10/97 re: Richard Curtis; Exhibit No. 16, video tape and log from local television station, WDSU-TV, broadcast story airing in December 1997 re: Robin Pitre; and Exhibit No. 18, video tape and log from local television station, WVUE-TV, broadcast stories airing on 9/23/97 and 9/24/97 re: Richard Curtis.

Several of the Curtis Plaintiffs (including Deone Briggs and Cintrel Robinson), and the Pitre plaintiffs (Diane Pitre and Robert Pitre, Sr.) testified that they either received or "sometimes" read various portions of the Time Picayune during the relevant times at issue. Further, these plaintiffs admitted to having working television sets and "sometimes" watching television during the relevant times at issue. Finally, most if not all of the Plaintiffs who testified have at least a high school education (some even have a college background), and most of these Plaintiffs testified that they are gainfully employed. Thus, the court finds that reasonable persons in the plaintiff s' positions would have read about, heard about, or discussed with others "information sufficient to excite [their] attention and prompt further inquiry" more than a year before their original Complaints were filed. Eldredge, 2000 WL 297667 *4.

The court also notes that at Trial Deone Briggs testified inconsistently with her previous deposition testimony. At Trial, Ms. Briggs was asked if she recalled seeing Exhibit No. 7, the Times-Picayune article dated August 31, 1997 entitled "Murder added to case against family". She responded that she did not recall, but during her deposition which was taken on October 22, 1999, Ms. Briggs answered that she did recall seeing this article.
Similarly, with regard to Exhibit No. 10, the Times-Picayune article dated September 25, 1997 entitled "Ex-cop gave man to his alleged killer", Ms. Briggs testified at Trial that she did not recall seeing this article, but in her deposition she did recall seeing the article "on the news."

In failing to file their Complaints more than a year before they did, the Plaintiffs "close[d] [their] eyes to [the earlier] notice spread before [them] and shut [their] ears to oral information directly imparted to [them]." Hosp. Serv. Dist. No. 1, 657 So.2d at 1383, quoting Bory v. Knox, 38 La.An.n. 379 (La. 1886) Thus, the court "will hold [them] as bound by the same, and as fully notified as if [they] had taken thorough personal cognizance at the time of the information imparted and of the notice given." Id.

Simply put, both the Curtis and Pitre Plaintiffs failed to meet their burden of showing why their claims against Defendants are not prescribed. Accordingly;

IT IS ORDERED that all of the claims asserted by both the Curtis and Pitre plaintiffs against all Defendants be and are hereby DISMISSED AS PRESCRIBED.