Kevin Byrd v. Bossier Parish Sheriff, Deputy Scott Nelson, Deputy H. Balkom, Officer M. Hannah, and Officer K. Hardin

Judgment rendered March 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,914-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KEVIN BYRD Plaintiff-Appellant

versus

BOSSIER PARISH SHERIFF, CITY Defendants-Appellees
OF BOSSIER CITY, DEPUTY SCOTT
NELSON, DEPUTY H. BALKOM,
OFFICER M. HANNAH, and
OFFICER K. HARDIN

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 165,790

Honorable Robert Lane Pittard, Judge

*****

NELSON W. CAMERON Counsel for Appellant

LANGLEY & PARKS, LLC Counsel for Appellees,
By: Glenn Louis Langley Bossier Parish Sheriff’s
Office, Deputy Scott
Nelson, and Deputy
Michael Balkom

WEINER, WEISS & MADISON, APC Counsel for Appellees,
By: Reid Allen Jones City of Bossier City,
Layne Andrew Clark, Jr. Officer Matthew Hannah,
and Officer Keith Hardin

*****

Before ROBINSON, MARCOTTE, and ELLENDER, JJ.

ROBINSON, J.

Kevin Byrd appeals two judgments sustaining exceptions of

prescription and dismissing his lawsuit for shoulder injuries that he allegedly

sustained during his arrest. For the following reasons, we affirm the

judgments.

FACTS

Byrd was arrested in Bossier City on August 29, 2019, for drug

offenses. He was charged by bill of information with possession with intent

to distribute methamphetamine, resisting an officer with force or violence,

and possession of drug paraphernalia-first offense.

On April 19, 2021, Byrd pled guilty to possession with intent to

distribute methamphetamine. He was sentenced to 18 months’

imprisonment. His remaining charges were nol-prossed.

On October 1, 2020, Byrd filed suit in federal court against the

Bossier Parish Sheriff, Scott Nelson, Matthew Hannah, and Keith Hardin.1

He asserted an excessive force claim under 42 U.S.C. §1983, a failure to

intervene claim under §1983, state law excessive force and failure to

intervene claims, and a state law negligence claim.

On August 24, 2021, the federal court entered an order finding that

Byrd’s federal law claims were prescribed. His federal law claims were

dismissed with prejudice. The court declined to exercise jurisdiction over

his pendent state law claims. The court noted that interpretation and

application of Louisiana’s various prescriptive periods to Byrd’s state law

1
Nelson was a deputy for the Bossier Parish Sheriff. Hannah and Hardin were
officers for the Bossier City Police.

claims remained an issue. The state law claims were dismissed without

prejudice. On August 24, 2021, a judgment was rendered in federal court in

accordance with the order, dismissing Byrd’s federal law claims with

prejudice and his state law claims without prejudice.

On September 21, 2021, Byrd filed suit in state district court against

the Bossier Parish Sheriff, the City of Bossier City, Deputy Scott Nelson,

Deputy Michael Balkom, Officer Matthew Hannah, and Officer Keith

Hardin. He alleged that while being arrested, his shoulder was unnecessarily

stretched out of socket, which caused a massive rotator cuff tear that left him

with severe and debilitating pain, a reduction in use of his shoulder, and a

deformity. He contended that the injury will require surgery and extensive

therapy. He further alleged that at the time the excessive force was used, he

was on the ground in a subdued position and was being handcuffed. Byrd

asserted that the officers and deputies committed a second degree battery or

a crime of violence against him as that term is defined under law. He

maintained that the severity of his injuries supported a finding that he was

subjected to a crime of violence. He additionally contended that the deputies

and officers committed an aggravated assault against him because they were

armed with dangerous weapons at the time.

Byrd contended that the Bossier Parish Sheriff is liable for failing to

supervise and train the deputies as well as the officers who were temporarily

assigned to a joint task force supervised by the Sheriff. He asserted that the

officers and deputies violated standards of care by using techniques with too

much force and also unauthorized techniques.

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The defendants raised the exception of prescription.2 They argued

that prescription on Byrd’s claims had expired before he filed his federal

lawsuit. They further argued that while his claims of second degree battery

and aggravated assault may be potentially actionable, they sound in ordinary

tort, and his allegations are legally insufficient to establish a crime of

violence necessary for La. C.C. art. 3493.10 to apply.

At the hearing on the exceptions, the trial court concluded that the

one-year prescriptive period found in La. C.C. art. 3492 applied. On

February 3, 2022, the trial court rendered judgment sustaining the exception

of prescription filed by the City of Bossier City defendants. On March 2,

2022, the trial court rendered judgment sustaining the exception of

prescription filed by the Bossier Parish Sheriff defendants. Byrd has

appealed the dismissal of his lawsuit.

DISCUSSION

Byrd argues on appeal that the trial court erred in dismissing his

lawsuit when it was timely filed because the actions of the officers and

deputies amounted to a crime of violence, which triggers application of the

two-year prescriptive period found in La. C.C. art. 3493.10. He further

argues that legally excessive force is a battery under Louisiana law. Byrd

asserts that he pled the crime of violence of second degree battery, and that

he made specific allegations of a battery and of a serious bodily injury in his

petition, and taken together, the allegations constitute a crime of violence.

2
The Bossier Parish Sheriff and the two deputies also raised the exception of res
judicata.

3

Byrd also contends there is no requirement that tortfeasors be arrested,

charged, or prosecuted before the two-year period in art. 3493.10 is applied.

Police officers have a duty to act reasonably in effecting an arrest, and

the force used must be limited to that required under the totality of the

circumstances. Hall v. City of Shreveport, 45,205 (La. App. 2 Cir. 4/28/10),

36 So. 3d 419. The reasonableness of an officer’s use of force depends upon

the totality of the facts and circumstances in each case. Id.

The burden of proving prescription ordinarily lies with the party

raising the exception; however, when prescription is evident from the face of

the petition, the burden shifts to the plaintiff to show the action has not

prescribed. Mitchell v. Baton Rouge Orthopedic Clinic, L.L.C., 21-00061

(La. 10/10/21), 333 So. 3d 368; Hogg v. Chevron USA, Inc., 09-2632 (La.

7/6/10), 45 So. 3d 991.

When no evidence is submitted at the hearing on the exception, the

exception of prescription must be decided upon the facts alleged in the

petition with all of the allegations accepted as true. Mitchell, supra. In that

case, the reviewing court simply assesses whether the trial court was legally

correct in its finding. Id.

Delictual actions are subject to a liberative prescription of one year.

This prescription commences to run from the day injury or damage is

sustained. La. C.C. art. 3492. However, La. C.C. art. 3493.10 provides:

Delictual actions which arise due to damages sustained as a
result of an act defined as a crime of violence under Chapter 1
of Title 14 of the Louisiana Revised Statutes of 1950, except as
provided in Article 3496.2, are subject to a liberative
prescription of two years. This prescription commences to run
from the day injury or damage is sustained.

4

La. R.S. 14:2(B) defines a crime of violence as “an offense that has,

as an element, the use, attempted use, or threatened use of physical force

against the person or property of another, and that, by its very nature,

involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense or an offense

that involves the possession or use of a dangerous weapon.” A list of

offenses follows, and the commission or attempt to commit any of those

offenses are included as crimes of violence. Among those enumerated

offenses are second degree battery and aggravated assault.

A battery is defined as “the intentional use of force or violence upon

the person of another; or the intentional administration of a poison or other

noxious liquid or substance to another.” La. R.S. 14:33. Second degree

battery is a battery committed when the offender intentionally inflicts

serious bodily injury. La. R.S. 14:34.1.

An assault is an attempt to commit a battery, or the intentional placing

of another in reasonable apprehension of receiving a battery. La. R.S. 14:36.

Aggravated assault is an assault committed with a dangerous weapon. La.

R.S. 14:37.

Generally, prescription statutes are strictly construed against

prescription and in favor of the claim sought to be extinguished by it. Wells

v. Zadeck, 11-1232 (La. 3/30/12), 89 So. 3d 1145. In the absence of clear,

contrary legislative intent, prescriptive statutes that can be given more than

one reasonable interpretation should be construed against the party asserting

prescription. Correro v. Ferrer, 16-0861 (La. 10/28/16), 216 So. 3d 794;

Maltby v. Gauthier, 506 So. 2d 1190 (La. 1987). If there are two possible

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constructions, the one which favors maintaining an action, as opposed to

barring it, should be adopted. Carter v. Haygood, 04-0646 (La. 1/19/05),

892 So. 2d 1261.

The nature of a cause of action must be determined before it can be

decided which prescriptive period is applicable. O’Neal v. Succession of

Wells, 33,915 (La. App. 2 Cir. 12/6/00), 774 So. 2d 1084.

In the unpublished opinion of Vallery v. City of Baton Rouge, 2011-

1611 (La. App. 1 Cir. 5/3/12), 2012 WL 2877599, __ So. 3d __, writ denied,

12-1263 (La. 9/28/12), 98 So. 3d 837, Vallery alleged that his arm was

broken when a police officer struck it with a police baton, and that his face

and skin were damaged when the officer sprayed him with mace. Following

the dismissal of his claims as prescribed, Vallery argued on appeal that his

claims were subject to the two-year prescriptive period found in La. C.C. art.

3493.10 because the officer’s actions were a crime of violence. The

appellate court concluded that Vallery’s petition did not sufficiently allege

an act defined as a crime of violence.

The Vallery court noted that the officer’s actions occurred during a

police arrest. The court cited La. C. Cr. P. art. 220, which states that an

individual shall submit peaceably to a lawful arrest. That article further

states that “[t]he person making a lawful arrest may use reasonable force to

effect the arrest and detention, and also to overcome any resistance or

threatened resistance of the person being arrested or detained.” The Vallery

court added:

It is well-settled that under Louisiana law, excessive force may
transform ordinarily protected use of force into an actionable
battery, rendering the officer and his employer liable for

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damages. See Perm3 v. St. Tammany Parish Sheriff's Office,
02-0893 (La. App. 1 Cir. 4/2/03), 843 So. 2d 1157, 1161.
However, those damages sound in tort, and it does not
necessarily follow that the alleged use of excessive force
equates to the commission of a crime of violence so as to
invoke the two-year prescriptive period of Article 3493.10.

Id. at 2.

In Edwards v. Lewis, 2022-56 (La. App. 3 Cir. 9/28/22), 348 So. 3d

269, Edwards wrapped his shoelaces around his neck while he was being

booked following his arrest. He alleged that the defendant officer

committed second degree battery against him by using a taser for an

excessive period of time while assisting another officer in removing the

shoelaces from around his neck. In opposition to an exception of

prescription, Edwards maintained that his claims constituted a crime of

violence and he was entitled to the two-year prescriptive period in La. C.C.

art. 3493.10.

In affirming the judgment granting the exception of prescription, the

Edwards court recognized that in order for art. 3493.10 to apply, Edwards’

petition had to sufficiently allege an act defined as a crime of violence in La.

R.S. 14:2. Referencing La. C. Cr. P. art. 220, the court noted that the taser

was used after Edwards attempted to choke himself while he was in police

custody following an arrest and was being booked. Furthermore, the

Edwards court noted that the record did not contain a criminal complaint,

bill of information, or indictment against the officer who had used the taser.

Our research reveals this Court’s decision in Lewis v. Parish, 51,064

(La. App. 2 Cir. 1/11/17), 212 So. 3d 1186, writ not cons., 17-0852 (La.

3
“Penn” is the correct spelling of the plaintiff’s last name in that case.

7

9/21/18), 252 So. 3d 494. Lewis filed a tort suit alleging that he had been

subjected to aggravated kidnapping at gunpoint and false imprisonment at

gunpoint while incarcerated following his allegedly illegal convictions for

drug offenses. Lewis appealed the judgment dismissing his lawsuit as

prescribed. This Court considered that aggravated kidnapping was a crime

of violence and applied La. C.C. art. 3493.10. However, this Court decided

that even under the most generous interpretation, the longest prescriptive

period that could apply to Lewis’s claim was two years. Lewis was last in

custody in 2008, but did not file suit until 2012; thus, his claim was clearly

prescribed on its face.

Lewis v. Parish, supra, can be readily distinguished on a couple of

grounds. First, other than the defendants’ argument that, at most, Lewis had

two years from his last day of confinement to bring his suit, there was no

discussion in the opinion as to why claims by an inmate regarding his

“aggravated kidnapping at gunpoint” and “false imprisonment at gunpoint”

would even trigger the application of art. 3493.10 in the first place:

Most delictual actions are covered by the one-year prescriptive
period in La. C.C. art. 3492 . . . .

However, La. C.C. art. 3493.10 provides . . . .

According to La. R.S. 14:2(B)(15), aggravated kidnapping is a
crime of violence.

Under the most generous interpretation, the longest prescriptive
period that could possibly apply to Lewis’s claim is two years.
As alleged in his petition, he was last in the custody of the
RPDC on April 27, 2008. Lewis did not file this suit until June
2012. His claim has clearly prescribed on its face. No evidence
was presented to the contrary. The trial court did not err in
granting the exception and dismissing the claim with prejudice.

8

Id. at 8-9, 212 So. 3d at 1190-1191. Second, Lewis dealt with complaints

arising from an imprisonment and not from an arrest or detention. As noted

earlier, La. C. Cr. P. art. 220 provides that reasonable force to effect an

arrest and detention may be used during a lawful arrest. Lewis’s complaints

stemmed from the basis for his incarceration, not from what actions officers

took during his arrest.

In Anding o/b/o Anding v. Ferguson, 54,575 (La. App. 2 Cir. 7/6/22),

342 So. 3d 1138, a store patron died while being apprehended by a police

officer who was working a private security detail at a department store. A

wrongful death and survival action was brought more than 15 months after

the incident. The plaintiffs argued their suit was timely because the use of

force was considered a crime of violence, making their claim subject to the

two-year prescriptive period found in La. C.C. art. 3493.10. This Court

rejected that argument, recognizing that wrongful death and survival actions

are governed by specific prescriptive periods of one year.

The mere fact that Byrd contends the actions of the deputies and

officers were crimes of violence does not make it so. La. C. Cr. P. art. 220

permitted the deputies and officers to use “reasonable force to effect the

arrest and detention, and also to overcome any resistance or threatened

resistance” of Byrd. The injuries allegedly sustained by Byrd do not

automatically transform the defendants’ permitted actions into crimes of

violence. There is no evidence that the deputies or officers were charged

with a crime or even subjected to disciplinary action from their departments.

Thus, the damages allegedly suffered by Byrd were not the result of a crime

of violence perpetrated by the Bossier Parish deputies or the Bossier City

9

officers. Accordingly, we conclude that the facts alleged in Byrd’s petition

are insufficient to state claims that constitute crimes of violence. He had one

year under La. C.C. art. 3492 to file his suit, which he failed to do.

For the foregoing reasons, we conclude that the trial court did not err

in sustaining the exceptions of prescription.

DECREE

At Byrd’s appeal costs, the judgments dismissing his lawsuit with

prejudice are AFFIRMED.

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