Eddie Armstrong v. Ronal Serpas , 670 F. App'x 851 ( 2016 )

Case: 15-30801 Document: 00513767558 Page: 1 Date Filed: 11/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30801 FILED
Summary Calendar November 21, 2016
Lyle W. Cayce
Clerk
EDDIE F. ARMSTRONG,
Plaintiff - Appellant
v.
RONAL SERPAS; LESTER C. MARSHALL,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-808
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Proceeding pro se and in forma pauperis, Louisiana prisoner Eddie F.
Armstrong appeals the dismissal of his 42 U.S.C. § 1983 action, pursuant to
Federal Rule of Civil Procedure 12(b)(6), as time-barred. Rule 12(b)(6)
dismissals are reviewed de novo, “accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the plaintiff”. Groden v. City
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 15-30801
of Dallas, 826 F.3d 280, 283 (5th Cir. 2016) (quoting Hines v. Alldredge, 783
F.3d 197, 200–01 (5th Cir. 2015)).
Armstrong contends a New Orleans police officer violated his
constitutional rights by using excessive force in the course of arresting him.
For § 1983 claims, the statute of limitations is “‘the forum state’s personal-
injury limitations period,’ which in Louisiana is one year”. Smith v. Reg’l
Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016). Armstrong’s claims accrued
12 February 2013, the date he alleges he was subjected to excessive force. See
Price v. City of San Antonio, 431 F.3d 890, 893 (5th Cir. 2005). He did not file
his complaint, however, until January 2015 — well after the applicable one-
year prescriptive period had run. See Smith, 827 F.3d at 421. Before the
magistrate judge, Officer Marshall and Superintendent Serpas sought
dismissal based, inter alia, on the running of that period. (Armstrong only
appeals his claims against Officer Marshall, the arresting officer, and not as to
Serpas, the police-department superintendent.) In response, Armstrong
asserted the period was tolled under the equitable-tolling doctrine of contra
non valentum, maintaining he was not able to file this action because of the
recovery time for his injuries and inadequate legal resources in prison. The
magistrate judge recommended dismissal, and the district court adopted the
magistrate judge’s report and recommendation.
Armstrong re-urges his contra non valentum contentions. Under
Louisiana law, however, the doctrine applies only in four circumstances:
(1) where there was some legal cause which prevented the courts
or their officers from taking cognizance of or acting on the
plaintiff’s action;
(2) where there was some condition coupled with a contract or
connected with the proceedings which prevented the creditor from
suing or acting;
(3) where the debtor himself has done some act effectually to
prevent the creditor from availing himself of his cause of action; or
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(4) where the cause of action is neither known nor reasonably
knowable by the plaintiff even though plaintiff’s ignorance is not
induced by the defendant.
Marin v. Exxon Mobil Corp., 48 So.3d 234, 245 (La. 2010). The facts pleaded
by Armstrong do not meet these criteria, and analogous contentions have been
deemed insufficient by our court. See Felder v. Johnson, 204 F.3d 168, 171–72
(5th Cir. 2000) (equitable tolling in the AEDPA context); see also Boswell v.
Claiborne Par. Detention Ctr., 629 F. App’x 580, 582 (5th Cir. 2015) (equitable
tolling of § 1983 claims by a Louisiana prisoner).
AFFIRMED.
JUDGE HAYNES concurs only in the judgment.
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