                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         August 22, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                            No. 06-31001
                          Summary Calendar

                       ))))))))))))))))))))))))))

JOSEPH THOMAS BARTUCCI, JR,

                Plaintiff–Appellant,

     v.

MICHAEL J JACKSON,

                Defendant–Appellee.


           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. 2:04-CV-2977



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Before the court is an appeal by Plaintiff-Appellant Joseph

Thomas Bartucci (“Bartucci”) of the district court’s grant of

summary judgment on his claims against Defendant-Appellee Michael

Jackson (“Jackson”).   Because Bartucci’s claims are prescribed

under Louisiana law, we AFFIRM the judgment of the district

court.



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
                            I. BACKGROUND

     The allegations in this suit concern Bartucci’s claim that

he was imprisoned, molested, and assaulted by Jackson.     According

to Bartucci, on May 19, 1984, Jackson and his handlers forced

Bartucci into Jackson’s white limousine while in New Orleans.      He

was driven to California and held there for nine days, during

which time he was sexually assaulted by Jackson, beaten, and

drugged.    Bartucci asserts that he was cut with razor blades and

had steel wires shoved into his chest.      He also claims that one

of Jackson’s handlers “bashed” Bartucci’s head into some

concrete.   Bartucci states that he bears the scars from the

assault to this day.

     Bartucci claims that he repressed all memories of this

occurrence until November 2003, when he saw a Court TV special on

Jackson, at which time Bartucci’s memories of the events

returned.   Bartucci filed suit against Jackson on November 1,

2004, bringing claims of sexual assault, battery, false

imprisonment, and intentional infliction of emotional distress.

According to Bartucci, he suffered permanent and debilitating

injuries as a result of the incident, including heart and

eyesight problems, scarring, and psychological trauma.     Jackson

filed a motion to dismiss for failure to state a claim and,

alternatively, motion for summary judgment on December 29, 2005,

arguing that Bartucci’s claims were prescribed under Louisiana



                                  2
law because they occurred twenty years ago.        Following subsequent

hearings and briefing, Jackson’s motion also came to include the

argument that Bartucci could not create a genuine issue of

material fact that Jackson was in New Orleans on the dates in

question.

     The district court ultimately granted summary judgment on

the ground that Bartucci had no evidence that Jackson was in New

Orleans on May 19, 1984.    Bartucci filed a motion to reconsider,

pointing out that his sworn interrogatory responses created a

fact issue on that point.    The district court denied the motion,

and Bartucci now appeals to this court.        We have jurisdiction

pursuant to 28 U.S.C. § 1291, as a final judgment has been

entered.

                            II.   DISCUSSION

A.   Standard of Review

     We review a district court’s order granting summary judgment

de novo.    Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460,

464 (5th Cir. 2006).   Summary judgment is appropriate when, after

considering the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, “there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.”        FED. R. CIV. P.

56(c); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th

Cir. 2006).   A genuine issue of material fact exists when the



                                    3
evidence is such that a reasonable jury could return a verdict

for the non-movant.   Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).   In considering a summary judgment motion, all

facts and evidence must be taken in the light most favorable to

the non-movant.    United Fire & Cas. Co. v. Hixson Bros., Inc.,

453 F.3d 283, 285 (5th Cir. 2006).

B.   Jackson’s Presence in New Orleans

     On appeal, Bartucci contends that the district court erred

when it determined that Bartucci failed to create a genuine issue

of material fact that Jackson was present in New Orleans at the

time Bartucci claims the false imprisonment and assault occurred.

We agree.

     The evidence relied upon by Jackson to demonstrate that he

was not in New Orleans in May 1984 consists of two affidavits.

The first is from Wayne Nagin, an assistant to Jackson in May

1984, who identified a calendar listing Jackson’s appointments

and rehearsals in California during the time period in question.

The second affidavit is from Charilette Sweeney, who remembered

speaking with Jackson at a church in California on May 13, 17,

and 20, 1984.

     In response, Bartucci relied on his own sworn interrogatory

responses, which placed Jackson in New Orleans on May 19, 1984.1

     1
        Bartucci also produced several affidavits from other
individuals that the district court determined were insufficient
to create a genuine issue of material fact. We do not need to
consider those affidavits on appeal, as Bartucci’s interrogatory

                                 4
Specifically, Bartucci swore that:

     Approximately May 19th and thereafter for 9 days, Michael
     Jackson and his handlers placed Mr. Bartucci in a white
     limousine in what is generally known as the central
     business district area of New Orleans and kept him in
     this white limousine for 9 days and 10 1/2 hours of total
     time with them.

Rule 56(c) of the Federal Rules of Civil Procedure permits the

court to consider answers to interrogatories in ruling on a

motion for summary judgment, so Bartucci’s responses are

competent summary judgment evidence.

     Here, the district court discounted Bartucci’s sworn

responses because Bartucci did not produce any other

contemporaneous evidence of the alleged incident and his

allegations were “severe and extraordinary . . . .”    Jackson

argues that Bartucci’s testimony is conclusory and self-serving

and should be disregarded for that reason.   However, this is not

a case in which a party makes a self-serving statement about his

mental state in the face of evidence to the contrary, see In re

Hinsley, 201 F.3d 638, 643 (5th Cir. 2000), contradicts

previously sworn testimony without explanation, see S.W.S.

Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir.

1996), or speculates about the intentions of others, see Grizzle

v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.

1994), in which case his testimony might have been properly

rejected.   Instead, Bartucci provided clear, sworn testimony


responses are sufficient to create a fact issue.

                                 5
about a specific factual issue--whether Jackson was in New

Orleans on May 19, 1984.

     Bartucci has, therefore, met his burden on this summary

judgment issue.     While his allegations may be sensational, we are

not at liberty to make credibility determinations at this stage.

See Bledsoe v. City of Horn Lake, 449 F.3d 650, 652-53 (5th Cir.

2006) (“When the facts are disputed, the court does not determine

the credibility of the evidence and draws all justifiable

inferences in favor of the nonmovant.”).    Consequently, the

district court erred when it granted summary judgment for Jackson

on this ground.

     Our discussion does not end here, though, as we may affirm

the grant of summary judgment on any ground raised below, even if

it was not the basis for the district court’s decision.

Performance Autoplex II, Ltd. v. Mid-Continent Cas. Co., 322 F.3d

847, 853 (5th Cir. 2003) (per curiam).    Therefore, we next

consider Jackson’s argument that prescription bars Bartucci’s

suit against him.

C.   Prescription

     In his motion before the district court, Jackson argued that

Bartucci’s claim was prescribed, as it was more than twenty years

old when Bartucci filed suit.    Pursuant to Louisiana law,2

“[d]elictual actions are subject to a liberative prescription

     2
        The parties do not dispute that Louisiana law applies to
this case.

                                   6
period of one year,” which begins to run the day the injury is

sustained.   LA. CIV. CODE ANN. art. 3492 (1994 & Supp. 2007).   When

a complaint reveals on its face that the prescriptive period has

lapsed, the plaintiff bears the burden of establishing a

suspension or interruption of the prescriptive period.     In re

Brewer, 934 So. 2d 823, 826 (La. Ct. App. 2006); Martin v. Comm-

Care Corp., 859 So. 2d 217, 220 (La. Ct. App. 2003).    Here,

Bartucci’s claim is clearly prescribed on its face; therefore, he

bears the burden of establishing an exception to prescription.

     Bartucci relies on his claim of repressed memories and the

doctrine of contra non valentum to rescue his lawsuit from

prescription.   Louisiana courts have used the doctrine of contra

non valentum to suspend the running of prescription when the

cause of action is not known or reasonably knowable by the

plaintiff, even though his ignorance is not induced by the

defendant.   In re Jenkins, 945 So. 2d 814, 818 (La. Ct. App.

2006); Watkins v. St. Martin Parish Sch. Bd., 929 So. 2d 846, 853

n.5 (La. Ct. App. 2006).   The reason behind the rule is the

equitable principle that prescription should be suspended when a

plaintiff is effectively prevented from enforcing his rights for

reasons external to his own will.    Doe v. Archdiocese of New

Orleans, 823 So. 2d 360, 366 (La. Ct. App. 2002).    Bartucci

asserts that he repressed the memories of Jackson’s alleged

assault for twenty years and presents the testimony of his


                                 7
expert, Dr. L. Mulry Tetlow, who found Bartucci credible.

     However, the running of prescription is not suspended

indefinitely.     Rather, prescription is suspended as long as the

plaintiff’s ignorance of his rights is not “willful, negligent,

or unreasonable.”      Stevens v. Bruce, 878 So. 2d 734, 739 (La. Ct.

App. 2004) (internal quotation marks omitted).     The prescriptive

period begins to run on the date that the plaintiff discovers or

should have discovered the facts upon which his cause of action

is based.      Hughes v. Olin Corp., 856 So. 2d 222, 225 (La. Ct.

App. 2003).     Stated differently, “Prescription commences when a

plaintiff obtains ‘actual or constructive knowledge of facts

indicating to a reasonable person that he or she is the victim of

a tort.’” Babineaux v. State ex rel. Dep’t of Transp. & Dev., 927

So. 2d 1121, 1123 (La. Ct. App. 2005).     “An injured party has

constructive notice when he or she possesses information

sufficient to incite curiosity, excite attention, or put a

reasonable person on guard to call for inquiry, and includes

knowledge or notice of everything to which that inquiry might

lead.”   Id.

     We now turn to Bartucci’s allegations in this case. Assuming

his claims are true, Bartucci was an adult at the time of the

alleged incident.     He emerged from Jackson’s limousine on May 27,

1984, with cuts from razor blades and wounds from having steel

wires shoved into his chest--injuries serious enough to leave

scars to this day.     He also had his head slammed into concrete

                                    8
with sufficient force so as to cause eye problems.    Further, he

was missing nine days of his life.    These facts would certainly

put a reasonable person on notice that he had been the victim of

a tort.    At the very least, the facts are of the type that would

“incite curiosity, excite attention, or put a reasonable person

on guard to call for inquiry.”    Yet, there is no evidence that

Bartucci took any efforts to discover what had happened to him.3

     We have found only one case in Louisiana in which the court

found a fact issue that might permit the tolling of the

prescriptive period based on repressed memories.     See Doe v.

Archdiocese of New Orleans, 823 So. 2d 360, 366-67 (La. Ct. App.

2002).    Doe, however, is distinguishable in that the sexual abuse

of Doe occurred while he was a child, and there were no overt

indicators (such as severe physical injuries or loss of time)

that would have put Doe on notice earlier that he had been

abused.    See id. at 362.

     Consequently, Bartucci has not met his burden of showing an

exception to prescription under Louisiana law.    His severe and

permanent injuries, as well as his loss of nine days of memory,

would have caused a reasonable person to inquire further into

what happened.    Because Bartucci’s failure to investigate the


     3
        We do not know if Bartucci could have uncovered his
memories had he attempted to do so in 1984; however, his failure
to even try to discover what happened to him demonstrates a lack
of diligence which precludes him from establishing an exception
to prescription.

                                  9
alleged torts committed against him was unreasonable, the

prescriptive period is not tolled, and Bartucci’s claims against

Jackson are barred.   Therefore, we AFFIRM summary judgment for

Jackson, although on different grounds than those articulated by

the district court.

                          III. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.

     AFFIRMED.




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