Dodge v. USA ( 2022 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION CODI DODGE DOCKET NO. 21-CV-02271 REG. # 20396-035 SECTION P VERSUS JUDGE ROBERT R. SUMMERHAYS USA, ET AL MAGISTRATE JUDGE WHITEHURST ORDER In response to this Court’s June 10, 2022 Order, Plaintiff Codi Dodge filed “Objections to Magistrate Judge’s Dispositive Order,” arguing numerous reasons why he should be able to proceed in his tort claims against the United States pursuant FTCA as well as his claims against the individuals named in his original and amended complaints pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Rec. Doc. 18 The Court finds that regardless of whether or not plaintiff’s objections to the November 12, 2021 Report and Recommendation were timely, and without commenting on whether or not plaintiff’s claims arise in a Bivens context, any claims raised under Bivens would be time-barred.1 Thus, the Court has determined that this matter will proceed as a tort claim against the United States pursuant to the FTCA. 1 Section 1983 and Bivens actions are governed by Louisiana's one year prescriptive period. La.C.C. art 3492; Wilson v. Garcia, 471 U.S. 261 (1985); McGregor v. LSU Bd. of Supervisors, 3 F.3d 850, 864 (5th Cir. 1993), cert. den., 510 U.S. 1131 (1994); Gaspard v. U.S., 713 F.2d 1097, 1102 (5th Cir. 1983), cert. den., 466 U.S. 975 (1984). This prescriptive period commences to run from the date injuries or damages are sustained, Washington v. Breaux, 782 F.2d 553, 554 (5th Cir. 1986), or from the time the plaintiff knew or could reasonably have known he had a cause of action, under the doctrine of contra non valentum, McGregor, 3 F.3d at 865. Also, Corsey v. State Dept. of Corrections, 375 So.2d 1319, 1322 (La. 1979). As Dodge’s complaint asserts that the excessive force complained of occurred on Accordingly, IT IS ORDERED that this matter will proceed in accordance with this Court’s previous rulings, as a tort claim against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”). IT IS FURTHER ORDERED that that the United States through the United States Attorney for the Western District of Louisiana and the United States through the United States Attorney General file a response within sixty (60) days after the date of this Order. After all of the responsive pleadings are filed, an additional sixty (60) days is allowed for the parties to complete all appropriate discovery. Thereafter, if deemed appropriate, Dodge and/or the United States may file a motion for summary judgment within thirty (30) days, to include material and relevant affidavits, certified records, interrogatories and answers, admissions, and depositions, if any, and a supporting memorandum brief. Any party not filing a motion for summary judgment SHALL FILE a Statement of Issues, within the same period, which shall enumerate each genuine issue of material fact perceived by that party which is relevant to this matter, or state that there are none. This statement will be used by the court to determine the necessity of an evidentiary hearing. IT IS FURTHER ORDERED that, as a condition to their acceptance by the Clerk, all future filings by Dodge or the defendants shall include a certificate indicating that a December 15, 2017, and the instant suit was not filed until July 29, 2021, any Bivens claim related to the incident that occurred 2017 is clearly time-barred. copy thereof has been furnished to the other party, specifically stating the name and address of each party or his attorney to whom a copy of the pleading was sent. THE CLERK IS DIRECTED to serve a copy of this Order by CERTIFIED MAIL on the United States Attorney for the Western District of Louisiana. Dodge’s failure to comply with this order or to apprise the court of any change in his address shall be considered grounds for dismissal under LR 41.3. THUS DONE AND SIGNED in Chambers this 6 day of September, 2022. & Carol B. Whitehurst United States Magistrate Judge