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Batieste Ex Rel. Braziel Baptist Church v. United States , 100 F. App'x 959 ( 2004 )


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  •                                                    United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT                      June 9, 2004
Charles R. Fulbruge III
Clerk
No. 03-30887
c/w No. 03-31003
Summary Calendar
JOHN BATIESTE, on Behalf of the Braziel Baptist Church;
MARY PAYTON; OCTAVIA PAYTON; ELOISE STEPHENS; GAIL LOCKETT;
EVELYN SMITH; ALVIN LOCKETT; JOHNNY LOCKETT; MICHAEL LOCKETT;
TYRONE LOCKETT; MARYANN BROWNFIELD; NOAH LOCKETT, JR.; NORRIS
LOCKETT; VALERIE LOCKETT,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA; ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
****************************************
JOHN BATIESTE, on behalf of the Braziel Baptist Church;
MARY PAYTON; OCTAVIA PAYTON; ELOISE STEPHENS; GAIL LOCKETT;
EVELYN SMITH; ALVIN LOCKETT; JOHNNY LOCKETT; MICHAEL LOCKETT;
TYRONE LOCKETT; MARYANN BROWNFIELD; NOAH LOCKETT, JR.; NORRIS
LOCKETT; VALERIE LOCKETT,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA; ET AL.,
Defendants,
ATCHAFALAYA BASIN LEVEE DISTRICT,
Defendant-Appellee.
Appeals from the United States District Court
Middle District of Louisiana
(02-CV-99)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges
PER CURIAM:*
Plaintiffs appeal both the dismissal of their claims against
the United States (lack of subject matter jurisdiction) and the
summary judgment awarded the Atchafalaya Basin Levee District
(prescription).        (Although Plaintiffs’ notice of appeal from the
dismissal    of   claims     against    the    United    States    was   filed
prematurely, we have jurisdiction over that appeal.               See Young v.
Equifax Credit Info. Servs. Inc.,
    294 F.3d 631
    , 634 n.2 (5th Cir.
2002).   We sua sponte consolidate the appeals.               FED. R. APP. P.
3(b)(2).)
Contrary     to    Plaintiffs’    contentions,     the   district   court
determined correctly that R. Christopher Goodwin and Associates was
an independent contractor under the Federal Tort Claims Act, 28
U.S.C. § 1346(b).        The scope of work document did not give the
United States the requisite control in order for Goodwin to be
considered an employee under the Act.          See Logue v. United States,
    412 U.S. 521
    , 529-30 (1973).               Moreover, the majority of the
remaining factors we must consider under Linkous v. United States,
*
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.
2
    142 F.3d 271
    , 276 (5th Cir. 1998), weigh in favor of independent-
contractor status.           Because the United States has waived its
sovereign immunity under the Act only as to acts of employees, not
independent contractors, and the claimed wrongful acts were not
committed by Government employees, the district court properly
dismissed the claims against the United States for lack of subject
matter jurisdiction.
    Id. at 275. 
    Plaintiffs contend, for the first time on appeal, that the
district court failed to consider their claim of “independent
negligence” on the part of the United States.             Because Plaintiffs
do not present any extraordinary reason why they should be allowed
to present this claim for the first time in this appeal, we decline
to consider it.       Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    ,
342 (5th Cir. 1999).
Even if the United States and the District were solidary
obligors    as   to    the    1999    excavation,   the   timely   filing   of
Plaintiffs’ claims against the United States does not interrupt
prescription as to the District.              As stated, the district court
correctly    dismissed       the     claims   against   the   United   States.
Plaintiffs acknowledge:        “Filing suit against a party who is later
determined to be without obligation to the plaintiff does not
interrupt prescription against a purported solidary obligor who was
not timely sued”.       Etienne v. National Auto. Ins. Co.,
    759 So. 2d 51
    , 56 (La. 2000).
3
Finally, the doctrines of equitable tolling and contra non
valentem do not suspend the running of prescription for Plaintiffs’
claims against the District.      Plaintiffs do not claim that it
misled them regarding their ownership and maintenance of the levee,
nor do they claim they were prevented in some extraordinary way
from asserting their rights against the District.    See Cousin v.
Lensing,
    310 F.3d 843
    , 848 (5th Cir. 2002), cert. denied,
    123 S. Ct. 2277 
    (2003).     Furthermore, Plaintiffs’ claims against the
District were reasonably knowable, because a search of the public
records would have revealed the District’s involvement in the Bayou
Goula Bend Levee.     See Wimberly v. Gatch,
    635 So. 2d 206
    , 210-11
(La. 1994).
AFFIRMED
4