     Case: 19-30071      Document: 00515307396         Page: 1    Date Filed: 02/12/2020




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

                                                                               FILED
                                                                          February 12, 2020
                                      No. 19-30071
                                                                            Lyle W. Cayce
                                                                                 Clerk
LASQUES VASQUES PRUDHOMME, on behalf of Brandon Jamal Reed,

               Plaintiff - Appellant

v.

JAY RUSSELL, Sheriff; PATRICK JOHNSON, Warden; DONNA NORMAN,
Medical Director; WILLIAM K. MCCONNELL, Owner; JOHN CREED,
Owner; RICHWOOD CORRECTIONAL CENTER, L.L.C.; RAY HANSON,
Warden, incorrectly named as Warden Ray Henson; MYRA RUSS, incorrectly
named as Myra Ross,

               Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:17-CV-1344


Before DAVIS, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
       In October of 2017, two men filed wrongful death suits pursuant to 42
U.S.C. § 1983, both claiming to be the father of a young pretrial detainee who
died while in custody. The magistrate judge consolidated the two actions, held
a hearing to resolve the paternity dispute, and ultimately determined that




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Appellant’s avowal action 1 was untimely and also a failure on the merits. The
district court adopted the magistrate judge’s reasoning and analysis and
dismissed Appellant’s wrongful death suit on grounds that he was not a real
party in interest. For the following reasons, we AFFIRM.
                     I. Factual & Procedural Background
       Appellant Lasques Vacques Prudhomme filed a civil rights suit on
October 19, 2017, against various local government entities and officials
(“Appellees” or “Ouachita Appellees”), claiming their liability for the death of
Brandon Jamal Reed (“Brandon”). In his complaint, Prudhomme referred to
Brandon as his son. Brandon died on October 26, 2016 in Appellees’ custody as
a pretrial detainee at the Richwood Correctional Center in Ouachita Parish. 2
Prudhomme asserted claims for wrongful death, deliberate indifference, and a
survival action under 42 U.S.C. § 1983 for violations of the Fourth, Eighth, and
Fourteenth Amendments.
       About a week after Prudhomme sued, Leslie Reed (“Reed”) and Otis
McGinnis filed a separate wrongful death and survival action under § 1983,
wherein they represented themselves to be Brandon’s mother and father. On
January 11, 2018, the Ouachita Parish Appellees filed a motion to dismiss
Prudhomme’s complaint for failure to state a claim pursuant to Rule 12(b)(6).
The matter was referred to Magistrate Judge Karen L. Hayes who consolidated
the two pending actions for purposes of resolving the paternity conflict.




       1 An avowal action is one to establish paternity. See LA. CIV. CODE art. 198.
       2  Prudhomme alleged that officials at the correctional facility failed to provide
adequate and necessary medical care to Brandon, ultimately leading to his death. Brandon
died in custody after he contracted sepsis due to pneumonia from ongoing, underlying chronic
health problems.
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       On October 8, 2018, Prudhomme filed a motion for paternity/filiation 3
requesting to be acknowledged as Brandon’s biological father. He attached as
an exhibit an affidavit executed by Reed where she attested that Prudhomme
was Brandon’s biological father. The Ouachita Appellees responded to
Prudhomme’s motion on October 15, 2018, arguing that he failed to establish
his paternity of Brandon and requesting that his wrongful death and survival
suit not be permitted to proceed.
       The district court held a hearing on the paternity matter on October 24,
2018. Nine witnesses testified. McGinnis did not attend the hearing. Reed
testified that Brandon was born in 1988 and that she had a sexual relationship
with Prudhomme at the time Brandon was conceived. She also stated that she
had a sexual relationship with McGinnis but she could not remember if it was
before or after she began her sexual relationship with Prudhomme. She
married McGinnis in 1990—two years after Brandon was born. She stated that
she signed an affidavit of paternity in favor of Prudhomme on September 6,
2018, but that she was actually unsure about who Brandon’s real father was.
She further detailed that she had McGinnis sign Brandon’s birth certificate
because when she told Prudhomme she was pregnant, he asked her to get an
abortion. She also explained that McGinnis continued to provide for her and
Brandon from Brandon’s birth to his death. She conceded that she never asked
either man to submit to a DNA test.
       Prudhomme also testified during the hearing and detailed the extent of
his relationship with Brandon. He explained that he first met Brandon when




       3 “Filiation is the legal relationship between a child and his parent.” LA. CIV. CODE
art. 178. “Filiation is established by proof of maternity or paternity or by adoption.” Id. art.
179.
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                                    No. 19-30071
he was six years old. 4 He became convinced at that time that he was Brandon’s
father because Reed told him he was and also because he and Brandon
resembled each other. He began paying for Brandon’s school tuition, took him
to family functions, provided some financial support, and employed him at a
restaurant Prudhomme owned. Prudhomme also paid for Brandon’s funeral
expenses and was listed on the obituary as Brandon’s father. Prudhomme
admitted that he never got a DNA test or filed an avowal action claiming to be
Brandon’s father prior to Brandon’s death. Three of Prudhomme’s family
members also testified at the hearing and all three stated that they believed
that Brandon was Prudhomme’s biological son.
      Prudhomme filed a post-hearing motion for sanctions on November 7,
2018 against Reed on the basis that she had provided fraudulent and perjured
testimony at the hearing when she claimed that she did not know for sure
whether Prudhomme was Brandon’s biological father.
      The Ouachita Appellees filed a post-hearing memorandum arguing that
Prudhomme failed to carry his burden of proving by a preponderance of the
evidence that he was Brandon’s biological father. They conceded that
Prudhomme’s testimony was credible and revealed that he truly believed that
he was Brandon’s father. However, they argued that his belief was mistaken
and arose from the false representations of Reed, who had managed to convince
two different men that they were Brandon’s father. Appellees argued that
because Prudhomme failed to file an avowal action within one year of meeting
Brandon for the first time when he was six years old, his right to do so was
extinguished upon the expiration of the preemptive period. See LA. CIV. CODE
art. 3458.


      4 Other parts of the record state that Prudhomme met Brandon when he was eight or
nine years old. For purposes of this appeal, the exact age Brandon was when he met
Prudhomme is not overly significant.
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      Reed and McGinnis filed a post-hearing memorandum arguing that
Prudhomme’s avowal action was untimely. They also argued that the domestic
relations exception to federal court jurisdiction prevented the federal court
from adjudicating Prudhomme’s avowal action.
      Magistrate Judge Hayes issued her Report and Recommendation on
December 17, 2018. Prudhomme v. Russell, No. 17-1344, 2018 WL 6928918
(W.D. La. Dec. 17, 2018). She noted that “under [Louisiana Civil Code] Article
198, Prudhomme needed to file an avowal action: 1) within one year from
Brandon’s birth (absent the mother’s bad faith)–if Brandon is presumed to be
the child of another man, or 2) no later than one year from Brandon’s death.
Prudhomme, however, failed to file an avowal action within either deadline.”
Id. at *4. She continued that under Article 195, “[a] man who marries the
mother of a child not filiated to another man and who, with the concurrence of
the mother, acknowledges the child by authentic act is presumed to be the
father of that child.” Id. at *5. She reasoned that McGinnis married Reed in
1990, signed Brandon’s birth certificate, and there was never any evidence that
Brandon was filiated to another man at the time. Id. On this basis she
concluded that a presumption was established that Brandon was McGinnis’s
child. Id. Because Prudhomme did not file an avowal action within one year of
Brandon’s birth, his right to do so was preempted and no longer existent. Id.
She further observed that Prudhomme also failed to file an avowal action
within one year of Brandon’s death on October 16, 2016, so any attempt to do
so now using that method is untimely. Id.
      She continued that even if Prudhomme’s avowal action had been timely
he nevertheless failed to meet his burden of proof at the hearing. Id. at *6. She
explained that although it was clear that Prudhomme had a good faith belief
he was Brandon’s father, the evidence he presented was not enough to prove
that he was. Id. at *7–8. She noted that Reed was clearly confused as to who
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                                     No. 19-30071
the father was. Id. at *8. For this reason, the magistrate judge declined to
award civil sanctions against Reed. Id. She ultimately recommended that the
two matters be unconsolidated and that Prudhomme’s wrongful death and
survival action be dismissed since he failed to show he was a real party in
interest in the litigation by proving his paternity/filiation of Brandon. Id. at *9.
      The district court adopted the magistrate judge’s Report and
Recommendation and dismissed Prudhomme’s case without prejudice.
Prudhomme v. Russell, No. 17-1344, 2019 WL 97825, at *1–2 (W.D. La. Jan. 2,
2019) (emphasis added). As recommended, the district court unconsolidated
the two cases, denied Prudhomme’s motions for paternity/filiation and
sanctions, and dismissed his federal and state law claims against all
defendants without prejudice. Id. at *2. Prudhomme noticed his appeal on
January 29, 2019.
                                II. Standard of Review
      We review the district court’s legal conclusions de novo and its findings
of fact for clear error. See Guzman v. Hacienda Records & Recording Studio,
Inc., 808 F.3d 1031, 1036 (5th Cir. 2015) (citation omitted). We review mixed
questions of law and fact de novo. See Dickerson v. Lexington Ins. Co., 556 F.3d
290, 294 (5th Cir. 2009).

      “Even though federal subject matter jurisdiction of [this case] is not
grounded in diversity of citizenship, we nonetheless apply the rules of
interpretation that have evolved since Erie Railroad v. Tompkins[5] to the
controlling state law here under examination.” F.D.I.C. v. Abraham, 137 F.3d
264, 267 (5th Cir. 1998). “When adjudicating claims for which state law
provides the rules of decision . . . we are bound to apply the law as interpreted
by the state’s highest court.” Id. at 267–68. If the “state’s highest court has not


      5   304 U.S. 64 (1938).
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spoken on an issue, our task is to determine as best we can how that court
would rule if the issue were before it.” Id. at 268. In that scenario, “we are
bound by an intermediate state appellate court decision only when we remain
unconvinced by other data that the highest court of the state would decide
otherwise.” Id. (internal quotations marks omitted).

                                III. Discussion
      Under Federal Rule of Civil Procedure 17, only a “real party in interest”
may bring suit in federal court. United States v. 936.71 Acres of Land, 418 F.2d
551, 556 (5th Cir. 1969). In the context of a suit for wrongful death resulting
from an unconstitutional use of force, a “real party in interest” is defined by
state law. Id. In Louisiana, to recover on a claim for survival or wrongful death,
a plaintiff must fall within the defined hierarchy of beneficiary classes under
Civil Code Articles 2315.1 and 2315.2, which prescribe the decedent’s surviving
father and mother as the proper beneficiaries to bring a wrongful death or
survival action when the decedent has no surviving spouse or child. See
Udomeh v. Joseph, 103 So. 3d 343, 346 (La. 2012).
      Civil Code Article 198 defines the time period within which a putative
father must file an avowal action to establish paternity for purposes of
asserting a wrongful death or survival claim as: 1) within one year of the child’s
birth if the child is presumed to be the child of another man, or 2) no later than
one year from the child’s death. Additionally, Article 195 provides that “[a] man
who marries the mother of a child not filiated to another man, and who, with
the concurrence of the mother, acknowledges the child by authentic act is
presumed to be the father of that child.”
      Here, the magistrate judge initially determined that the one-year-from-
birth deadline applied to Prudhomme because another man, McGinnis, was
presumed to be Brandon’s father. See LA. CIV. CODE arts. 195, 198. Citing
Article 196, Prudhomme argues on appeal that the presumption that McGinnis
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                                  No. 19-30071
is Brandon’s father can only operate to the benefit of the child (Brandon), and
not to any other party’s benefit (here, McGinnis). See LA. CIV. CODE art. 196
(“The presumption can be invoked only on behalf of the child. . . . [T]he
acknowledgment does not create a presumption in favor of the man who
acknowledges the child.”); see also Udomeh, 103 So. 3d at 347 n.1.
Prudhomme’s reliance on Article 196 is misplaced because the magistrate
judge afforded the presumption to McGinnis under Article 195 on grounds that
he signed Brandon’s birth certificate and married Brandon’s mother. See LA.
CIVIL CODE art. 195 (“A man who marries the mother of a child not filiated to
another man and who, with the concurrence of the mother, acknowledges the
child by authentic act is presumed to be the father of that child.”). Article 196
in contrast, only applies when a man only signs the child’s birth certificate.
Further, Article 195 does not contain the limitation found in Article 196 that
the presumption can only operate to the benefit of the child.
      Accordingly, the district court properly concluded that Prudhomme’s
avowal action was perempted on grounds that it was not filed within a year
after Brandon’s birth or within one year of his death. See LA. CIVIL CODE art.
198 (“If the child is presumed to be the child of another man, the action shall
be instituted within one year from the day of the birth of the child . . . . [or] no
later than one year from the day of the death of the child.”).
      Because we hold that the district court correctly resolved this case on
peremption grounds under Article 195, we need not discuss its alternative
merits-based conclusions.
                                 IV. Conclusion

      The district court’s judgment is AFFIRMED.




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