Timothy Dill and Mary Boudreaux v. Jeffrey Wiley

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CA 1638

TIMOTHY DILL, ET AL.

VERSUS

JEFFREY WILEY, SHERIFF, ET AL.

Judgment Rendered:
NOV 0 6 2020

On appeal from the

Twenty-third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 109, 692

Honorable Alvin Turner, Jr., Judge Presiding

iC C X

Robert Garrity, Jr. Counsel for Plaintiffs/ Appellants
Harahan, LA Timothy Dill and Mary
Boudreaux

Fred Schroeder Counsel for Defendant/ Appellee
T. Allen Usry Jeffrey Wiley
James B. Mullaly
New Orleans, LA

BEFORE: WHIPPLE, C. J., GUIDRY, AND WOLFE, JJ.

GUIDRY, J.

In this appeal, the plaintiffs challenge a judgment of the trial court that

granted the defendant' s motion for summary judgment based on prescription. For

the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 19, 2011, Mr. Timothy Dill entered a plea of guilty to the charge

of violation of a protective order, two counts. For this violation, Mr. Dill was

sentenced to two consecutive terms of six months imprisonment with credit for

time served. Thereafter, on April 2, 2014, the plaintiffs herein, Mr. Dill and his

wife, Mary Boudreaux, filed a petition for damages, naming as the defendant,

Jeffrey Wiley, sheriff of the Parish of Ascension.' Mr. Dill alleged that Sheriff

Wiley failed to give him credit for time served, which resulted in him being falsely

imprisoned for a period of 122 days. Ms. Boudreaux alleged that she suffered a

lack of consortium" because of Mr. Dill' s " excessive incarceration."

Sheriff Wiley answered the petition, generally denying the allegations.

Later, on June 28, 2019, Sheriff Wiley filed a motion for summary judgment on the

grounds of prescription. The plaintiffs opposed the motion, asserting that

prescription was interrupted on their tort suit when Mr. Dill filed an application for

post -conviction relief while he was incarcerated.'

After a hearing on September 9, 2019, the trial court granted the motion for

summary judgment in favor of the defendant, Sheriff Wiley, and dismissed the

plaintiffs' claims with prejudice. Judgment was signed on October 3, 2019. The

plaintiffs now appeal that judgment.

The plaintiffs' claims against Sheriff Wiley were fled against him in his individual capacity as
well as his official capacity as sheriff of Ascension Parish.

2 In his application for post -conviction relief, Mr. Dill requested service on the warden of the
Ascension Parish Jail and the District Attorney.

7

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full

scale trial when there is no genuine issue of material fact. M/V Resources LLC v.

Louisiana Hardwood Products LLC, 16- 0758, p. 8 ( La. App. 1st Cir. 7/ 26/ 17), 225

So. 3d 1104, 1109, writ denied, 17- 1748 ( La. 12/ 5/ 17), 231 So. 3d 624. A motion

for summary judgment is properly granted if, after an opportunity for adequate

discovery, the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law. La. C. C. P. art. 966( A)(3). In determining whether summary

judgment is appropriate, appellate courts review evidence de novo under the same

criteria that govern the trial court' s determination of whether summary judgment is

appropriate. M/V Resources LLC, 16- 0758 at p. 9, 225 So. 3d at 1109.

DISCUSSION

Prescription runs against all persons unless an exception is established by

legislation. La. C. C. art. 3467. Prescription is interrupted by the filing of a suit in

a court of competent jurisdiction and venue. La. C. C. art. 3462. An interruption of

prescription resulting from the filing of a suit in a competent court and in the

proper venue, or from service of process within the prescriptive period, continues

as long as the suit is pending. La. C. C. art. 3463. Pursuant to La. C. C. art. 3492,

delictual actions are subject to a liberative prescription of one year. This

prescription commences to run from the day injury or damage is sustained. See

Eaglin v. Eunice Police Department, 17- 1875, p. 3 ( La. 6/ 27/ 18), So. 3d

explaining that false arrest and false imprisonment claims commence on the date

of the false arrest/ false imprisonment).

Although typically asserted through the procedural vehicle of the

peremptory exception, the defense of prescription may also be raised by motion for

summary judgment. Hogg v. Chevron USA, Inc., 09- 2632, p. 6 ( La. 07/ 6/ 10), 45
3

So. 3d 991, 997. However, when prescription is raised through a motion for

summary judgment rather than through the peremptory exception, the traditional

allocation of the burden of proof is altered somewhat.' In such a case, the movant

is required to prove, based solely on documentary evidence and without the benefit

of testimony at a hearing, that there is no genuine material factual issue in dispute.

Hogg, 09- 2632 at pp. 7- 8, 45 So. 3d at 998.

Sheriff Wiley asserts in his motion for summary judgment that the plaintiffs'

tort claims are prescribed and time- barred as a matter of law. In support of his

motion, Sheriff Wiley filed court minutes and documentation from the Ascension

Parish Sheriffs Office that showed Mr. Dill was arrested on June 10, 2011,

convicted on October 19, 2011, and released on May 31, 2012. 4 As pointed out by

Sheriff Wiley in his motion, the plaintiffs filed suit on April 2, 2014, nearly two

years after Mr. Dill was released from custody, and clearly more than a year after

any false imprisonment could have occurred. Accordingly, the plaintiffs' claims

are prescribed unless there is merit in the plaintiffs' contention that prescription

was interrupted. See La. C. C. P. art. 966 ( D)( 1).

Relying on La. C. C. art. 3466, 5 the plaintiffs, in their opposition to the

motion for summary judgment, contend that the application for post -conviction

relief, filed by Mr. Dill on May 16, 2012, and denied on November 13, 2013,

interrupted the prescriptive period for their false imprisonment claim. The

plaintiffs further argue that an application for supervisory writs to this court, which

Ordinarily, the party pleading the exception of prescription bears the burden of proving a claim
has prescribed. However, when the face of the petition reveals that the plaintiff' s claim has
prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg, 09-
2632 at p. 7, 45 So. 3d at 998.

4 No objection was made pursuant to La. C. C. P. art. 966( D)( 2); therefore, the trial court was
required to consider the documents in deciding the motion for summary judgment. See Pottinger
v. Price, 19- 0183, p. 4 ( La. App. 1st Cir. 10/ 23/ 19), 289 So. 3d 1047, 1052.

s Louisiana Civil Code article 3466 provides: " If prescription is interrupted, the time that has run
is not counted. Prescription commences to run anew from the last day of interruption."
S

was filed on January 30, 2014, and denied on April 8, 2014, interrupted the

prescriptive period once more.

We have reviewed the record herein to determine whether a genuine issue of

material fact exists on the issue of prescription. In doing so, we note that "[ p] ost

conviction relief, which is procedural in nature, and speaks to matters of remedy, is

not criminal litigation per se; rather, post conviction relief proceedings, which are

designed to allow petitioners to challenge the legality of their confinement,

are hybrid, unique, and have both criminal and civil legal characteristics." State v.

Harris, 18- 1012, p. 5 ( La. 7/ 9/ 20), So. 3d ; State ex rel. Glover v. State, 93-

2330, p. 12 ( La. 9/ 5/ 95), 660 So. 2d 1189, 1197. Post -conviction relief is based on

the identification of specific constitutional errors in the proceedings leading to the

petitioner' s conviction and sentence. See Pierre v. East Baton Rouge Parish Clerk

of Court, 17- 0688, pp. 3- 4 ( La. App. 1st Cir. 11/ 1/ 17), 233 So. 3d 92, 94, writ

denied, 18- 0078 ( La. 1/ 14/ 19), 260 So. 3d 1216.

In his application for post -conviction relief, Mr. Dill asserted that his Sixth

and Eighth Amendment rights under the U.S. Constitution were violated because

he was deprived of a jury trial and sentenced by a court lacking jurisdiction. Mr.

Dill also argued in his application that he " would have completed serving this

invalid sentence but for the Ascension Sheriff refusing to award [ him] credit for

time served." We must emphasize, however, that a review of credit for time served

is not within the exclusive grounds for granting post -conviction relief. See La.

C. Cr.P. art. 930. 3. 6 We further note that La. C. Cr.P. art. 930. 3 provides no basis

for the review of claims of excessiveness or other sentencing error post -conviction.

6 Louisiana Code of Criminal Procedure article 930. 3 provides the exclusive grounds for
which post -conviction relief may be granted to include: ( 1) the conviction was unconstitutional;
2) the court exceeded its jurisdiction; ( 3) double jeopardy was involved; ( 4) prosecution of the
offense was instituted after the limits had expired; ( 5) the statute creating the offense is
unconstitutional; ( 6) a finding of an ex post facto application of law violation; and ( 7) the results

of DNA testing proves by clear and convincing evidence that the petitioner is innocent of the
crime for which he was convicted.
5

See State ex rel. Melinie v. State, 93- 1380 ( La. 1/ 12/ 96), 665 So. 2d 1172 ( per

curiam).

The application for post -conviction relief, governed by La. C. Cr.P. art.

930. 3, cannot be based on a claim of failure to apply credit for time served.

Therefore, the filing of Mr. Dill' s application for post -conviction relief did not

place the defendant on notice of any potential tort claim, and did not and could not

interrupt prescription on that tort claim. Accordingly, we find no merit in the

assertion that the trial court erred in granting the defendant' s motion for summary

judgment.

CONCLUSION

For the foregoing reasons, we affirm the October 3, 2019 summary judgment

of the trial court, which was granted in favor of the defendant, Jeffrey Wiley,

dismissing the claims of the plaintiffs, Timothy Dill and Mary Boudreaux. All

costs of this appeal are assessed to the plaintiffs/ appellants, Timothy Dill and Mary

Boudreaux.

AFFIRMED.

D