     Case: 14-30751      Document: 00513856636         Page: 1    Date Filed: 01/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 14-30751                                FILED
                                                                           January 31, 2017
                                                                             Lyle W. Cayce
ANGELO A. GONZALEZ,                                                               Clerk

              Plaintiff - Appellant

v.

RONNIE SEAL, Captain; DOUGLAS BROOKS, Corrections Sergeant
Master; JONATHAN TYNES, Corrections Sergeant Master; DARRELL
PETERS, Lieutenant; LARRY WEARY, CSM; BRUCE FORBES, EMT;
MICHAEL HARRELL, Major; ROBERT C. TANNER, RCC Warden; JERRY
P. MILLER, Assistant Warden; RONALD BRANCH, Assistant Warden;
KEITH BICKHAM, Deputy Warden; JEFFREY TRAVIS, DPSC Operations
Chief; JAMES LEBLANC, DPSC Secretary,

              Defendants - Appellees




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:13-CV-34


Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Angelo A. Gonzalez appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 action for excessive force as barred by Louisiana’s one-year limitations


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30751
period. Because we conclude that the district court erred in determining
Gonzalez’s complaint is time barred, we vacate and remand on that issue; and
in all other respects, we affirm.
                   FACTS AND PROCEDURAL HISTORY
        On December 2, 2009, Gonzalez filed a pro se civil rights complaint
against employees of the Louisiana Department of Corrections (DOC),
asserting that he suffered an excessive use of force on November 11, 2009. The
defendants moved for summary judgment on the basis that Gonzalez filed his
federal lawsuit before exhausting the prison grievance process under the
Prison Litigation Reform Act (PLRA). See Gonzalez v. Seal, 702 F.3d 785, 786
(5th Cir. 2012).    The district court declined to dismiss the complaint and
instead exercised its discretion to excuse Gonzalez’s failure to exhaust. Id. at
787.     On interlocutory appeal, this court held that “the PLRA pre-filing
exhaustion requirement is mandatory and non-discretionary,” irrespective of
whether exhaustion is achieved during the federal proceeding. Id. at 787-88;
see 42 U.S.C. § 1997e(a). Accordingly, the court reversed the district court’s
order and remanded for entry of judgment dismissing the complaint. Gonzalez,
702 F.3d at 786-88. The district court then ordered Gonzalez’s complaint
dismissed without prejudice.
        On December 20, 2012, which was eight days after this court’s prior
decision, Gonzalez filed a pro se, in forma pauperis (IFP) civil rights complaint
alleging the use of excessive force by Captain Ronnie Seal, Lieutenant Blandon
Smith, Corrections Sergeant Master (CSM) Douglas Brooks, and CSM
Jonathan Tynes. Gonzalez alleged that Seal, Brooks, and Tynes beat and
kicked him, resulting in bruises on his knees and ankles, and that Smith was
instrumental in the abuse. Gonzalez claimed that he was beaten by several
officers, including Smith, in July 2006; that he was hospitalized twice in 2007
and 2008 after being kicked by officers; and that while shackled and naked on
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                                 No. 14-30751
the floor, he was beaten again in November 2009. Gonzalez alleged that this
history of beatings has made him paranoid and schizophrenic.
      Gonzalez also indicated that he wanted to raise the same claims he
raised in the 2009 action. According to Gonzalez, he was on extended lockdown
between 2006 and 2009 and suffered many abuses by officers during that time.
He also claimed that officers searched his cell and stripped him naked; that he
was anally searched by Seal; and that Seal caused him to be shackled and
handcuffed every day and destroyed his legal papers, all to humiliate him. In
a supplement to his complaint, Gonzalez repeated his claims that he was
beaten by the defendants and other officers between 2006 and 2009.
      The defendants responded with a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), on the basis of qualified immunity. Gonzalez
objected to the motion, arguing that between July 2006 and November 2009,
the defendants used excessive force against him while he was in full restraints.
He also sought to amend his complaint to add additional defendants.
      The district court granted in part and denied in part the defendants’
motion to dismiss.     Specifically, the court dismissed with prejudice the
following claims: Gonzalez’s excessive force claim against Smith; his
retaliation claims against Smith and Seal; and his denial of access to the courts
claim against Seal. In addition, Gonzalez was granted leave to supplement his
complaint to include additional claims of excessive force, denial of adequate
medical care, failure to protect, and denial of due process and to add the
following defendants: Lieutenant Darrell Peters, CSM Larry Weary,
Emergency Medical Technician (EMT) Bruce Forbes, Captain Mike Harrell,
Warden Robert Tanner, Assistant Warden Jerry Miller, Assistant Warden
Ronald Branch, Deputy Warden Keith Bickham, Operations Chief Jeffrey
Travis, and DOC Secretary James LeBlanc.


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                                 No. 14-30751
      The defendants responded to the supplemented complaint with two Rule
12(b)(6) motions to dismiss. The first motion, filed by Forbes, Tanner, Harrell,
Travis, LeBlanc and Bickham, sought dismissal on the basis of qualified
immunity.
      The second motion, filed by Seal, Brooks, Tynes and Weary, sought
dismissal of Gonzalez’s claims as time barred.
      The district court subsequently dismissed Gonzalez’s claims “with
prejudice as frivolous for failing to state a cognizable claim upon which relief
may be granted, or else for prescription.” Specifically, the court found that the
official capacity claims failed as such relief was barred by the Eleventh
Amendment immunity doctrine; that the due process claims against Tanner,
Miller, Harrell, Travis and LeBlanc were frivolous; and that the remaining
claims against Seal, Brooks, Tynes, Weary, Peters, Forbes, Bickham and
Branch were time-barred under Louisiana’s one-year prescription. The court
also found that the filing of the prior action did not toll the running of the
prescription because the claim was “premature.” In addition, the court denied
as moot the two Rule 12(b)(6) motions filed by the defendants. Gonzalez then
filed this appeal.
      This court granted Gonzalez’s IFP motion and ordered the parties to
brief whether the district court erred in its determination that the following
individual-capacity claims were prescribed under § 1983: Gonzalez’s excessive
force claims against Seal, Brooks and Tynes; his failure to protect claims
against Weary, Peters, Bickham and Branch; and his deliberate indifference
claim against Forbes. Because Gonzalez raised no argument concerning the
remainder of his claims against Smith, Seal, Tanner, Miller, Harrell, Travis,
LeBlanc and Branch, any challenge to the district court’s certification decision
with regard to those claims was deemed abandoned.


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                                       No. 14-30751
                               STANDARD OF REVIEW
      We review de novo a district court’s dismissal of a § 1983 action as time-
barred. See Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir. 2005).
Federal courts look to federal law to ascertain when a § 1983 action accrues
and the limitations period begins to run, but “state law supplies the applicable
limitations period and tolling provisions.” Harris v. Hegmann, 198 F.3d 153,
156-57 (5th Cir. 1999). 1 In Louisiana, the applicable limitations period is one
year. See Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002); LA. CIV. CODE
ANN. art. 3492.
                                      DISCUSSION
      Gonzalez maintains that under Louisiana Civil Code articles 3462 and
3463, the one-year prescriptive period was tolled from 2009 through 2012 while
his first lawsuit was pending, and therefore his current claims are not time
barred. The defendants-appellees, in response, urge this court to uphold the
district court’s time-bar determination, including the conclusion that
Gonzalez’s first lawsuit was premature and therefore did not interrupt




      1   See Smith v. Regional Transit Authority, 827 F.3d 412, 421 n.6 (5th Cir. 2016):

      The “borrowed” state statute is applied where there is no federal statute of
      limitations. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). The catchall
      four-year federal statute of limitations applies “for actions arising under
      federal statutes enacted after December 1, 1990.” Jones v. R.R. Donnelley &
      Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). “[I]f the
      plaintiff's claim against the defendant was made possible by a post–1990
      enactment,” the four-year statute of limitations applies. Id. at 382, 124 S.Ct.
      1836. Here, Plaintiffs' claims were not “made possible” by a post–1990 federal
      statute. The only post–1990 amendment to Section 1983 merely limited claims
      against judicial officers. See Campbell v. Forest Pres. Dist. of Cook Cnty., Ill.,
      752 F.3d 665, 668 (7th Cir. 2014). As such, we have previously concluded that
      the catchall statute of limitations does not apply to Section 1983. Garrett v.
      Thaler, 560 Fed. App’x. 375, 383 (5th Cir. 2014) (citing Walker v. Epps, 550
      F.3d 407, 411 (5th Cir. 2008)).
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                                 No. 14-30751
prescription. Alternatively, the defendants assert that this court should affirm
the dismissal on the basis of qualified immunity.
      There is no dispute that Gonzalez’s cause of action with regard to the
events of November 11, 2009, accrued on that date. Further, there is no
dispute that under Louisiana law, the prescriptive period was suspended
during the time that the administrative remedy process (ARP) was pending,
and that without the application of some other tolling provision, the instant
complaint was untimely. The question is whether the prescriptive period was
tolled by Gonzalez’s filing of his § 1983 complaint in December 2009 even
though he had not exhausted his administrative remedies as mandated by the
PLRA.
      Under Louisiana law, “prescription statutes are intended to protect
defendants against stale claims and the lack of notification of a formal claim
within the prescriptive period.” Woods v. State, Dep’t of Health & Hosps., 992
So. 2d 1050, 1052-53 (La. Ct. App. 2008). Article 3462 provides that
Louisiana’s applicable one-year prescription is “interrupted” when an action is
commenced “in a court of competent jurisdiction and venue.” La. Civ. Code
Ann. art. 3492, 3462.    Even in an “incompetent court, or in an improper
venue,” prescription is interrupted if the defendant is served with process
during the prescriptive period. Id. art. 3462. An “incompetent court” is not
limited only to a court lacking subject matter jurisdiction, but also includes
instances where a court is statutorily precluded from rendering judgment
against a party. See Glasgow v. PAR Minerals Corp., 70 So. 3d 765, 768-69
(La. 2011) (finding that the district court was “incompetent” to hear a claim for
tort liability against an employer where the employer was immune from tort
liability under Louisiana’s worker compensation statute).
      The interruption “continues as long as the suit is pending.” LA. CIV.
CODE ANN. art. 3463. Further, “[i]f prescription is interrupted, the time that
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                                      No. 14-30751
has run is not counted. Prescription commences to run anew from the last day
of interruption.”      LA. CIV. CODE ANN. art. 3466.                   Moreover, “if an
interruption results and the action is dismissed without prejudice, the period
during which the action was pending does not count toward the accrual of
prescription. The plaintiff then has the full prescriptive period within which to
bring a new action.” LA. CIV. CODE ANN. art. 3463, cmt. (b) (citing Hebert v.
Cournoyer Oldsmobile-Cadillac-G.M.C., Inc., 405 So.2d 359, 360 (La.App. 4th
Cir. 1981)).
       This court has not considered this issue in a published opinion, but it
was considered in the unpublished decision of McKnight v. Canulette, 1999 WL
642844 (5th Cir. 1999). As this court stated there, “Louisiana law provides
that if a properly filed lawsuit is dismissed without prejudice, prescription
commences anew from that time.”               Id. at *1.     The court concluded that
McKnight’s original action, which was dismissed without prejudice,
interrupted the prescriptive period and prescription ran anew from then.
Thus, the court vacated the dismissal of McKnight’s §1983 complaint and
remanded for further proceedings.
       Here, the original lawsuit was brought in the Eastern District of
Louisiana, which was the proper venue for the case because the cause of action
arose in Washington Parish. See 28 U.S.C. §§ 1391(b), 98(a). The defendants
concede that the 2009 action was filed in a court of competent subject matter
jurisdiction and venue. Further, the district court docket reveals that the
defendants involved in this appeal were served with process within the
prescriptive period. 2 The exhaustion requirement is not jurisdictional, but



       2Defendants   concede that the prescriptive period ran until September 6, 2011, due to
being tolled while Gonzalez pursued his administrative remedies. Defendants also stated in
their brief that service of process “was perfected on each defendant-appellee within the
limitations period.”
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                                    No. 14-30751
rather is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). 3
Thus, the prescriptive period was interrupted because Gonzalez’s complaint
was filed in a court with subject matter jurisdiction. Moreover, the defendants
were notified of the complaint through service of process within the
prescriptive period. See 28 U.S.C. § 1331; see also La. Civ. Code Ann. art.
3462. Even if we were to conclude that Gonzalez’s failure to exhaust his
administrative remedies rendered the district court “incompetent” to hear
Gonzalez’s claim, the timely service of process (which occurred here) would
nevertheless interrupt the prescriptive period. See Glasgow, 70 So. 3d at 768-
69; see also La. Civ. Code Ann. art. 3462; cf. Flagg v. Stryker Corp., 819 F.3d
132, 139-40 (5th Cir. 2016) (en banc) (finding that failure to exhaust
administrative remedies meant plaintiff “had no possibility of recovery against
the [non-diverse defendants]” at the time the case was removed to the federal
court and affirming the district court’s dismissal of the improperly joined non-
diverse defendants).       Louisiana case law supports a determination that
Gonzalez’s first action interrupted the running of prescription. See Glasgow,
70 So. 3d at 769 (“By commencing a tort lawsuit against and effectuating
service upon [defendants] within the prescriptive period of one year, [plaintiff]
thereby successfully interrupted prescription as to [defendants] even though
[defendants] ultimately proved to be immune to a tort claim.”); Jones v.
Hartford Ins. Co., 560 So. 2d 442, 443-44 (La. 1990) (prescriptive period
interrupted by filing of lawsuit in court of competent jurisdiction prior to
exhaustion of administrative remedies in worker’s compensation action).
      Gonzalez’s prescription began to run on November 12, 2009.                     His
complaint filed in December 2009 interrupted the prescriptive period. His



      3 Thus, we need not, and do not, decide the question of whether the result would be
the same if a jurisdictional exhaustion statute were involved.
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                                       No. 14-30751
prescription ran anew from the dismissal of that action. Thus, the instant
lawsuit was timely. Accordingly, we conclude that the district court erred in
dismissing Gonzalez’s claims on the basis of prescription. 4
       However, in the alternative, the defendants assert that the dismissal of
Gonzalez’s action can be affirmed as to the claims against Forbes, Weary,
Peters, Branch and Bickham on the basis of qualified immunity.                       As the
defendants assert, “this court may affirm a judgment upon any basis supported
by the record.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). Here, these
defendants raised the issue of qualified immunity in their motion to dismiss,
yet the district court did not consider the issue and instead denied the motion
as moot. Because the district court has not yet explained whether the record
supports the grant or denial of qualified immunity with respect to the
aforementioned defendants, we conclude that the district court should conduct
the qualified immunity analysis in the first instance. See, e.g., Jones v. City of
Houston, 1994 WL 574739, *4 (5th Cir. Oct. 14, 1994) (vacating dismissal of
IFP complaint based on frivolousness and remanding for further proceedings
where, inter alia, “the quality of any qualified immunity defense has not yet
been determined”). Moreover, Seals, Brooks and Tynes have asserted that
further development of the record is necessary to demonstrate their
entitlement to qualified immunity or other relief.
       Gonzalez’s remaining claims have either previously been deemed by this
court to be abandoned due to a failure to brief or are raised for the first time
on appeal. Thus, we decline to address them. See Brinkmann v. Dallas Cty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (appellant abandons a
claim on appeal when he fails to identify any error in the district court’s



       4We decline the defendants’ request to instruct the district court to order any motions
or on how to proceed with its docket.
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                                  No. 14-30751
analysis); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999)
(this court will not allow a party to raise a claim for the first time on appeal).
                                CONCLUSION
      For these reasons, we VACATE the order of dismissal as to prescription
and REMAND for further proceedings; we do not reach the qualified immunity
issue; and in all other respects, the judgment is AFFIRMED.




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