White v. Gusman , 347 F. App'x 66 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2009
No. 08-31137 Charles R. Fulbruge III
Summary Calendar Clerk
THOMAS LEE WHITE
Plaintiff-Appellant
v.
MARLIN GUSMAN, Criminal Sheriff, Orleans Parish;
PAT BOOK, Warden, Catahoula Correctional Center;
LEON A. CANNIZZARO, JR., In His Official Capacity as Successor to the
Former District Attorney, Eddie Jordan, Jr.
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-5779
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Appellant Thomas Lee White (“White”) was misidentified and wrongfully
imprisoned for 12 months. He sued, in their official capacities, the criminal
sheriff of Orleans Parish; the warden of the Catahoula Correctional Center; and
the district attorney of New Orleans under 42 U.S.C. § 1983, claiming that the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-31137
imprisonment violated his constitutional rights. The district court denied relief,
holding the claim barred by Louisiana’s prescriptive period. Finding the same,
we AFFIRM.
I. BACKGROUND
White was arrested on August 25, 2005, for public drunkenness. The
arresting officers confused him with a parole violator who shared the same
name, and he was booked for a probation violation. White was incarcerated at
Orleans Parish Prison and transferred to the Catahoula Correctional Center
following Hurricane Katrina. He told authorities at both prisons that he had
been misidentified.
White was released from custody on August 18, 2006, by order of the
Orleans Parish Court. On September 21, 2007, he filed this lawsuit, alleging a
civil rights violation under 42 U.S.C. § 1983 for wrongful imprisonment.
The district court entered summary judgment against White, finding that
the Louisiana’s one-year prescriptive period had begun to run, at the latest, on
the date that White was released from prison. The court subsequently denied
White’s motion for a new trial in which he argued that the defendants had
concealed from White the fact of his improper detention, thereby tolling
prescription.
II. DISCUSSION
We review “a grant of summary judgment de novo, applying the same legal
standard as the district court.” Miller v. Gorski Wladyslaw Estate, 547 F.3d 273,
277 (5th Cir.2008).
The prescriptive period for a claim brought under § 1983 is provided by
the law of the state in which the claim arose. Pete v. Metcalfe, 8 F.3d 214, 217
(5th Cir.1993). Under Louisiana law, this period is one year. L A. C IV. C ODE A NN.
art. 3492; Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). The date that a
claim accrues, however, is governed by federal law. Id. Specifically, “[l]imitations
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begin to run against an action for false imprisonment when the alleged false
imprisonment ends.” Wallace v. Kato, 549 U.S. 384, 389, 127 S. Ct. 1091, 1096
(2007) (internal quotation marks omitted).
Because White filed this lawsuit more than one year after his release from
prison, his claim is time-barred unless there is a basis for tolling the prescriptive
period. He offers two theories: first, that prescription was “interrupted” by his
earlier habeas corpus lawsuit seeking release from prison; and second, that
prescription was tolled by the defendants’ concealment of the reason for White’s
incarceration.
As a preliminary and dispositive matter, both of these claims are
foreclosed because White failed to raise them before the district court in his
response to the motion for summary judgment. Generally, arguments not raised
in the district court are waived. Great Plains Trust Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 317 (5th Cir.2002). We will consider an issue raised
for the first time on appeal only if it is purely a legal issue and doing so is
necessary to avoid the miscarriage of justice. In re Goff, 812 F.3d 931, 933 (5th
Cir.1987).
No miscarriage occurs here, because both theories fail on their merits.
State tolling law is applicable in a § 1983 action so long as it is not inconsistent
with federal law or policy. Hardin v. Straub, 490 U.S. 536, 542, 109 S. Ct. 1998,
2002 (1989). Louisiana law, like federal law, allows an “amended petition” to
“relate[] back” to the date of filing of the initial pleading, effectively tolling the
limitations period. L A. C ODE C IV. P ROC. A NN. art. 1153. Such a relation back is
barred, however, “after an original petition has resulted in a final judgment.”
Three Rivers Farm Supply, Inc. v. Webber, 617 So.2d 1220, 1223 (La. Ct. App.
1993); Hayes v. Muller, 183 So.2d 310, 312–13 (La. 1966). White argues that his
present complaint should relate back to his habeas petition, but his habeas
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petition resulted in a final judgment on August 18, 2006, when White was
ordered released from state custody.
Louisiana law also embraces the principle contra non valentem agere non
currit praescriptio—that is, “prescription does not run against one unable to act.”
Corsey v. Louisiana, 375 So.2d 1319, 1321–22 (La. 1979). Contra non valentum
operates, among other circumstances, when a party is ignorant that a cause of
action has accrued, but only when such ignorance is the result of some cause
foreign to the party, such as another party’s concealment of material facts. Id.
at 1323. White argues that the defendants concealed from him the fact that he
had been wrongfully imprisoned. Yet White was aware of, and actively protested,
his wrongful imprisonment well before the date of his release, when the
prescriptive period began to run. Because he can point to no material fact that
was concealed from him, contra non valentem provides no relief from
prescription.
Rather than filing suit at any time before he was released on August 18,
2006, White chose to sit on his claim until September 21, 2007, more than one
month after it prescribed. He raises no issue on appeal that disturbs that result.
For these reasons, we AFFIRM the district court’s grant of summary
judgment.
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