     Case: 09-31050     Document: 00511174617          Page: 1    Date Filed: 07/15/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                FILED
                                                                                July 15, 2010
                                     No. 09-31050
                                                                               Lyle W. Cayce
                                   Summary Calendar
                                                                                    Clerk


LAWRENCE MILLER,

                                                   Plaintiff - Appellant

v.

ANTHONY MANCUSO, individually and in his official capacity as Sheriff of
Calcasieu Parish; BRENT CLOUD; MIKE AYMOND; ST. PAUL FIRE &
MARINE INSURANCE CO.,

                                                   Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CV-1131


Before JONES, Chief Judge, and DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
        Reverend Lawrence Miller appeals the dismissal of his claims against two
Sheriff’s deputies and an insurance company which the district court held were
untimely filed. On August 5, 2008, Miller filed suit claiming that on August 6,
2007 “two unknown” deputies unlawfully arrested him and used excessive force.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-31050

His complaint named Sheriff Mancuso, “two unknown deputies,” and “XYZ
Insurance Company.” On March 10, 2009, Miller identified Deputies Cloud and
Aymond and St. Paul Fire & Marine Insurance Company in a motion to amend
his complaint. The district court dismissed the claim against Sheriff Mancuso,
a ruling that Miller does not appeal. Following Sheriff Mancuso’s dismissal, the
remaining three defendants moved to dismiss, asserting that Miller had not filed
timely claims against them. The district court granted the motion to dismiss
and Reverend Miller appeals.
      Section 1983 does not provide for a statute of limitations; rather, the forum
state’s personal injury statute of limitation applies. Moore v. McDonald, 30 F.3d
616, 620 (5th Cir. 1994). In Louisiana, there is a one-year prescription period for
delictual actions. See Elzy v. Roberson, 868 F.2d 703, 794 (5th Cir. 1989); L A.
C IV. C ODE A NN. art. 3492. Filing suit against one alleged tortfeasor interrupts
prescription against all joint tortfeasors. L A. C IV. C ODE A NN. art. 2324(c).
However, “where no liability is found on the part of a timely sued alleged
tortfeasor, then prescription is not interrupted as to untimely sued tortfeasors,
as no joint or solidary obligation exists.” Gallina v. Hero Lands Company, 859
So.2d 758, 767 (La. App. Ct. 4th Cir. 2003). “Prescription is not interrupted as
to an actual defendant when only a fictitious defendant is named in a petition,
unless prescription is interrupted by some other means.” Id. at n.6 (quoting Hill
v. Shell Oil Co., 760 So.2d 511, 512-13 (La. Ct. App. 5th Cir. 2003)). Thus, the
dismissal of Sheriff Mancuso eliminated his status as an anchor for interruption
of prescription against the deputies.
      Miller alternatively asserts that his March 10, 2009 amendment to his
complaint should relate back to his initial pleading on August 5, 2008, which
would make his suit timely against the deputies.           Federal Rule of Civil
Procedure 15(c) allows an amendment to a complaint to relate back to the date
the original complaint was filed. F ED. R. C IV. P. 15(c). However, Rule 15(c) “is

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                                  No. 09-31050

meant to allow an amendment changing the name of a party to relate back to the
original complaint only if the change is the result of an error, such as a misnomer
or misidentification.” Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998)
(citation omitted) (emphasis added). “[F]ailing to identify individual defendants
cannot be characterized as a mistake.” Id. (citing Barrow v. Wethersfield Police
Dept., 66 F.3d 466, 469 (2d Cir. 1995)).
      The record shows that Reverend Miller knew the identities of the “two
unknown deputies” long before he filed his initial complaint. In a deposition,
Miller revealed that he learned Deputy Aymond’s name a couple days after the
incident and learned Deputy Cloud’s name on the night of the incident. Further,
Miller’s wife filed a citizen’s complaint with the Calcasieu Parish Sheriff’s Office
of Internal Affairs and specifically named Deputies Cloud and Aymond
on August 13, 2007, one week after the lawful arrest. Consequently, there was
no mistake about their identities and no reason to either interrupt prescription
under Louisiana law or allow the March 10, 2009 amendment to relate back to
the original complaint. The district court correctly held that Miller’s claims are
untimely.
                                                                      AFFIRMED




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