     Case: 16-30160      Document: 00513585419         Page: 1    Date Filed: 07/11/2016




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

                                    No. 16-30160
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             July 11, 2016
                                                                              Lyle W. Cayce
DARRELL CRANE,                                                                     Clerk


              Plaintiff - Appellant

v.

CARL CHILDERS; CAPTAIN ALDEN THOMASSON; ST. HELENA
POLICE DEPARTMENT,

              Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-552


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       On August 19, 2015, Plaintiff–Appellant Darrell Crane filed suit against
Defendants–Appellees Carl Childers, Captain Alden Thomasson, and the St.
Helena Police Department, seeking damages under 42 U.S.C. § 1983 and
Louisiana state law. Crane alleged that, on August 14, 2014, Defendants
entered his residence with the intention of arresting him and released a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30160
trained K-9 police dog to attack him, resulting in severe injuries to his legs.
Defendants subsequently moved to dismiss Crane’s complaint under Federal
Rule of Civil Procedure 12(b)(6), arguing that the complaint was not timely as
it had been filed outside of the one-year prescriptive period for delictual (tort)
actions under Louisiana law. The district court granted Defendants’ motion to
dismiss, finding that the complaint was not timely and that no other remedy
excused Crane from not filing within the prescriptive period. On appeal, Crane
contends that the district court erred in dismissing his complaint as untimely
given the Louisiana remedy of contra non valentem. For the reasons herein,
we find that the district court did not err in dismissing Crane’s complaint as
untimely, and we AFFIRM the judgment of the district court.
       “We review a district court’s dismissal under Rule 12(b)(6) de novo,
‘accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.’” King-White v. Humble Indep. Sch. Dist., 803
F.3d 754, 758 (5th Cir. 2015) (quoting Gonzalez v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009)). Under our precedent, a cause of action under 42 U.S.C. § 1983
accrues “when [the] plaintiff knows or has reason to know of the injury which
is the basis of the action.” Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980)
(quoting Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). But we “borrow the
forum state’s general personal injury limitations period” when determining
whether such actions are time barred following the date of accrual. Burrell v.
Newsome, 883 F.2d 416, 418 (5th Cir. 1989). As such, both Crane’s state law
claims and § 1983 claim are subject to the one-year prescriptive period for
delictual actions under Louisiana law. 1 See La. Civ. Code Ann. art. 3492.



      1   Crane alleged that the incident providing the basis for his action occurred in
Greensburg, Louisiana, and also asserted claims for assault, battery, negligence, negligent
infliction of emotional distress, and intentional infliction of emotional distress under
Louisiana law.
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                                 No. 16-30160
      Crane does not dispute that this prescriptive period applies, and he does
not dispute that the prescriptive period would typically have run on August 18,
2015, thereby making his suit—filed on August 19, 2015—one day late and
thus time-barred. However, Crane argues that the prescriptive period for his
claims was suspended for a day and did not start running until August 19,
2014, under the Louisiana state law doctrine of contra non valentem.           In
particular, he argues that, because he underwent surgery and was
anesthetized for a day following his alleged injuries, he was unable to avail
himself of any judicial remedies against Defendants in this day-long period.
      The Louisiana Supreme Court has held that, under Louisiana law, a
prescriptive period may be suspended or interrupted under “the principle that
prescription does not run against a party who is unable to act (a principle often
denoted by the maxim Contra non valentem agere nulla currit praescriptio).”
Corsey v. State, 375 So. 2d 1319, 1321 (La. 1979) (emphasis added). Generally,
this doctrine applies in four categories of cases, see Wimberly v. Gatch, 635 So.
2d 206, 211 (La. 1994), including where a defendant has engaged in “some
conduct . . . prevent[ing the plaintiff] from availing himself of his judicial
remedy.” Corsey, 375 So. 2d at 1322. We have noted, however, that “Louisiana
courts strictly construe this doctrine,” Eldredge v. Martin Marietta Corp., 207
F.3d 737, 743 (5th Cir. 2000), and that “Louisiana [caselaw] has generally
given the contra non valentem doctrine a narrow interpretation,” Wilson v.
Hargroder, No. 93-03886, 1995 WL 29339, at *3 (5th Cir. Jan. 19, 1995) (per
curiam) (unpublished); see also Doe v. Ainsworth, 540 So. 2d 425, 426 (La. Ct.
App. 1989) (noting that the doctrine is “rarely accepted” in application).
      We agree with the district court that the prescriptive period for Crane’s
complaint was not suspended under the doctrine of contra non valentem.
Although Crane argues that he falls within the third category of cases where
the doctrine applies—injuries caused by Defendants rendered him incapable
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                                       No. 16-30160
of availing himself of his remedies—the circumstances of Crane’s alleged
injury do not justify the “exceptional remedy” of contra non valentem. Harsh
v. Calogero, 615 So. 2d 420, 422 (La. Ct. App. 1993). Crane argues that his
case is analogous to that of the plaintiff in Corsey who, due to a defendant’s
negligence, suffered brain injuries that left him “so mentally incapacitated . . .
that he lacked any understanding of what happened to him and of his possible
legal remedies” until over a year after the injury was sustained. Corsey, 375
So. 2d at 1320. While the Louisiana Supreme Court found that those facts
justified suspension of the prescriptive period, Corsey involved a plaintiff’s
extreme failure to understand that he had been injured by the defendant, to
the extent that the plaintiff only became aware of his rights once the
prescriptive period had ended. See id. at 1320, 1324. By contrast, Crane does
not allege the same extreme facts, but rather that he was unaware of the extent
of his injury for a day and unable to file suit in that period. As the district
court noted, Crane’s argument, taken to its logical conclusion, suggests that
the prescriptive period must be suspended in other instances of hospitalization,
surgery, or medication. But this result would directly contravene the principle
that contra non valentem is to be strictly construed and limited to exceptional
circumstances. The instant case does not involve exceptional circumstances. 2
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       2 Crane also points to Cipriano v. Pulitzer, 959 So. 2d 558, 561 (La. Ct. App. 2007) as
support for his argument that contra non valentem can suspend the prescriptive period for
one day. However, as another Louisiana court later recognized, Cipriano involved an extreme
instance where, as a result of Hurricane Katrina, all courts of competent jurisdiction had
been closed and the plaintiff’s attorney was unable to organize his affairs. Felix v. Safeway
Ins. Co., 183 So. 3d 627, 634–35 (La. Ct. App. 2015).
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