Anthony Jo Edwards v. Officer Jim Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-56

ANTHONY JO EDWARDS

VERSUS

OFFICER JIM LEWIS, ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 99,640 B
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, Chief Judge, John E. Conery, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Mary K. Beaird
Attorney at Law
303 East Texas Street
Leesville, Louisiana 71446
(337) 944-0299
COUNSEL FOR PLAINTIFF/APPELLANT:
Anthony Jo Edwards

Randall Brian Keiser
Matthew L. Nowlin
Keiser Law Firm, PLC
P. O. Box 12358
Alexandria, Louisiana 71315
(318) 443-6168
COUNSEL FOR DEFENDANTS/APPELLEES:
City of Leesville
Officer Jim Lewis

Joy C. Rabalais
H. Edward Barousse, III
Jordon John Henagan
Grant R. Schexnailder
Borne, Wilkes & Rabalais, L.L.C.
200 West Congress Street, Suite 1000
Lafayette, Louisiana 70502
(337) 232-1604
COUNSEL FOR AMICUS CURIAE:
Lousiana Municipal Association
Risk Management, Inc.

Craig E. Frosch
Jason P. Wixom
Frosch Rodrigue Arcuri, LLC
1615 Poydras Street, Suite 1250
New Orleans, Louisiana 70112
(504) 592-4600
COUNSEL FOR AMICUS CURIAE:
The Louisiana Sheriff’s Association

CONERY, Judge.

This case comes before the court on an appeal by Anthony Jo Edwards (Mr.

Edwards), of the trial court’s judgment of October 29, 2021, which granted the

peremptory exception of prescription filed on behalf of Officer Jim Lewis and his

employer, the City of Leesville (Defendants). 1 After a hearing on Defendants’

exception, the trial court dismissed Mr. Edwards’ claims with prejudice based on the

application of the one-year prescriptive period of La.Civ.Code art. 3492. For the

following reasons, we affirm.

PROCEDURAL HISTORY AND FACTS

Mr. Edwards was arrested on February 2, 2019 and was booked into the

Leesville City Jail in Vernon Parish, Louisiana. During the booking process he

admitted taking his shoestrings and wrapping them around his neck. A still shot of

Mr. Edwards attempting to strangle himself with the shoestrings was attached to

Defendants’ “Memorandum In Support Of The Exception of Prescription.” The

original photograph of the incident is contained in the record and was discussed with

the trial court during the hearing.2

On February 1, 2021, two years later, Mr. Edwards filed a Petition For

Damages under La.Civ.Code art. 3493.10, claiming that he had been injured during

1
The case was initially removed to federal court, where the Federal District Court Judge
dismissed Mr. Edwards’ federal claims, concluding that pursuant to La.Civ.Code art. 3492, a one-
year prescriptive period applied, and not as claimed by Mr. Edwards, the two year prescriptive
period found in La.Civ.Code art. 3493.10. Mr. Edwards’ state court claims were remanded to the
30th JDC on a motion filed on behalf of Mr. Edwards.
2
Although counsel for Mr. Edwards states in her briefing to this court that a “video” was
offered into evidence at the hearing, no “video” is contained in the record. Counsel for Defendants
states, “[T]he only photographic evidence was the ‘still shot’ in the Memorandum in Support filed
by the Defendants/Appellees.” There was no other evidence offered by either party at the hearing,
except for the three exhibits, offered by Mr. Edwards, which were not a “video,” but a copy of
La.Civ.Code art. 3493.10, the “Definitions” of La.R.S. 14:2, and the Amended Petition For
Damages filed in Federal District Court.

the February 2, 2019 incident. Mr. Edwards’ suit named the City of Leesville

through Mayor Rick Allen, as the employer of Officer Jim Lewis.3

Mr. Edwards’ petition alleged that Officer Lewis had committed second

degree battery on him while assisting the arresting/booking officer in removing the

shoelaces from around Mr. Edwards’ neck by using a taser “in excess of 30 seconds,

which should be confirmed in the use of force and taser reports, as more than 25

seconds longer than the recommended tase length.” Defendants contend that the

actions by Officer Lewis and the arresting/booking officer prevented Mr. Edwards

from harming himself.

Mr. Edwards also claimed violations of the Fourth, Eighth and Fourteenth

Amendments to the United States Constitution, the Civil Rights Act of 1871 (42

U.S.C. § 1983), La.Civ.Code art. 2315 and La.Civ.Code art. 3493.10 in his petition.

Personal service was made on the City of Leesville on February 4, 2021.

On March 4, 2021, Defendants timely filed a Notice of Removal, pursuant to

federal question jurisdiction. See 28 U.S.C. § 1331. Based on the request for

removal, the case was transferred from the 30th Judicial District Court, Vernon

Parish, Louisiana, to the United States District Court for the Western District of

Louisiana, Lake Charles Division. Upon removal, Defendants filed a Motion to

Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), based on Mr. Edwards’ “failure to state

a claim upon which relief can be granted.”

On March 10, 2021, Mr. Edwards filed a Motion to Remand asserting he was

not making a claim for any relief under a federal cause of action. On March 11,

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Amicus Curiae briefs were filed in this case on behalf of the Louisiana Municipal
Association and Risk Management, Inc., as well as The Louisiana Sheriff’s Association. This
court reviewed these exceptional briefs in making its determination in this case.

2

2021, Mr. Edwards filed an Amended Complaint, allegedly striking the allegations

giving rise to a federal claim. On March 21, 2021, Defendants filed an opposition

to the Motion to Remand and the Magistrate Judge found that despite Mr. Edwards’

amendment, the complaint still allowed the federal court to maintain federal question

jurisdiction.

On July 15, 2021, Magistrate Judge Kay issued a Report and

Recommendation which denied the Motion to Remand Mr. Edwards’ federal claims,

more specifically Mr. Edwards’ 42 USC § 1983 claim, and recommended that his

federal claims be denied and dismissed with prejudice, based on the fact that they

were prescribed, having not been filed within the one-year prescriptive period

required for a 42 USC §1983 claim, pursuant to La.Civ.Code art. 3492.

Although Mr. Edwards contended in his argument to the Magistrate Judge

“that Louisiana’s two-year prescriptive period for delictual actions involving a

‘crime of violence’ should apply to his § 1983 action,” the Magistrate Judge found

that “the Supreme Court has ruled that ‘where state law provides multiple statutes of

limitations for personal injury actions, courts considering § 1983 claims should

borrow the general or residual statute for personal injury actions.’” Quoting Owens

v. Okure, 488 U.S. 235, 250, 109 S.Ct. 573, 582 (1989) (footnote omitted).

Accordingly, the Magistrate Judge found, “For §1983 actions, the forum state’s

general personal injury statute of limitations applies.” Citing Perez v. Physician

Assistant Bd., 765 F. App’x 960 (5th Cir. 2019) (unpublished), cert. denied, _ U.S.

_, 140 S.Ct. 133 (2019). See also La.Civ.Code art. 3492.

The Magistrate Judge ultimately recommended that the federal court decline

jurisdiction over Mr. Edwards’ remaining state law claims, and granted his Motion

to Remand his state law claims to the 30th Judicial District Court, Parish of Vernon,

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State of Louisiana. On August 2, 2021, the United States District Judge issued an

Order remanding the case to state court.

Mr. Edwards had alleged that Officer Lewis perpetrated a “crime of violence,”

second degree battery and or aggravated battery against him. Therefore, by filing a

claim pursuant to La.Civ.Code art. 2315 based on this alleged “crime of violence,”

he was entitled to the two-year prescriptive period pursuant to La.Civ.Code art.

3493.10.

Defendants filed a Peremptory Exception of Prescription in state court seeking

to dismiss Mr. Edwards’ claim that he was a victim of a “crime of violence” and was

therefore entitled to a two-year prescriptive period pursuant La.Civ.Code art.

3493.10.

The trial court granted Defendants’ exception of prescription with oral reasons

given from the bench, stating, “Okay. I am going to grant Mr. Keiser’s exception of

prescription. I believe he’s met all the burdens he needs to meet and it’s a one year

prescription . . . .”

A “Judgment On Exception Of Prescription” was signed by the trial court on

October 29, 2021. The trial court found that “Exceptors have met their burden and

that the applicable prescriptive period for the claims of Plaintiff is one year, and that

all claims are prescribed.” The trial court then dismissed all of Mr. Edwards claims

against Defendants with prejudice and at his sole cost. Mr. Edwards filed a timely

appeal of the trial court’s judgment on November 8, 2021, which was granted on

November 10, 2021.

ASSIGNMENT OF ERROR & ISSUE PRESENTED FOR REVIEW

Mr. Edwards urges the following assignment of error on appeal and has

combined it with the Issue Presented for Review: “Whether the trial court erred in

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granting Jim Lewis and the City of Leesville, defendants’[,] peremptory exception

of prescription.”

LAW AND DISCUSSION

Standard of Review

When reviewing peremptory exceptions of prescription on appeal, the

appellate standard of review depends on whether evidence was adduced at the trial

court. N. G. v. A. C., 19-307 (La.App. 3 Cir. 10/2/19), 281 So.3d 727. If no evidence

was submitted, “the judgment is reviewed simply to determine whether the trial

court’s decision was legally correct.” Id. at 733 (quoting Arton v. Tedesco, 14-1281,

p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065 (La.

9/11/15), 176 So.3d 1043). If evidence was introduced, the trial court’s factual

findings are reviewed under the manifest error/clearly wrong standard of review.

Smith v. Vick Invs., LLC, 19-622 (La.App. 3 Cir. 6/3/20), 298 So.3d 288, writ denied,

20-00830 (La. 10/14/20), 302 So.3d 1114.

In this case, counsel for Mr. Edwards asked that the entire suit record be

placed into evidence, which is not reflected in the hearing record. In addition, Mr.

Edwards’ counsel introduced Exhibits A, B, and D, which consisted of the law relied

upon to support his claim of a “crime of violence” as properly brought under the

two-year prescriptive period of La.Civ.Code art. 3943.10. The Peremptory

Exception of Prescription and all Exhibits attached filed on behalf of Defendants are

contained in the record before this court.

We review this case under the de novo standard of review because the

exception raises a legal question. In re Benoit, 17-0802 (La.App. 4 Cir. 4/11/18),

244 So.3d 44, writ denied, 18-761 (La. 9/21/18), 252 So.3d 898 (citing Scott v.

Zaheri, 14-0726 (La.App. 4 Cir. 12/03/04), 157 So.3d 779). “In a case involving no

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dispute over material facts, but only the determination of a legal issue, such as the

present matter, the de novo review standard is applied, under which the district

court’s legal conclusions are not entitled to deference.” Benoit, 244 So.3d at 49

(citing Felix v. Safeway Ins. Co., 15-0701 (La.App. 4 Cir. 12/16/15), 183 So.3d 627).

Excessive Force Cases - Prescription

In order to circumvent the one-year prescriptive period that applies to state

law “civil rights” excessive force claims pursuant to La.Civ.Code art. 3492, Mr.

Edwards alleged that his claims constituted a “crime of violence” and were therefore

subject to the two-year prescriptive period pursuant to La.Civ.Code art. 3493.10:

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,[4] are subject to a liberative prescription of two years. This
prescription commences to run from the day injury or damage is
sustained.
In order for Article 3493.10 to apply, the petition must sufficiently allege an

act, which in this case is second degree battery, defined as a “crime of violence,” in

La.R.S. 14:2:

(B) In this Code, “crime of violence” means 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. The following enumerated offenses and attempts to commit
any of them are included as “crimes of violence”:

....

(6) Second degree battery.

The alleged actions of Officer Lewis’s use of a taser were undertaken while Mr.

4
Louisiana Civil Code Article 3496.2 has a prescriptive period of three years and involves
sexual exploitation, which is not applicable to this case.

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Edwards was in police custody after an arrest and was undergoing the booking

process in the Leesville City Jail, when he began choking himself with his shoelaces.

Louisiana Code of Criminal Procedure Article 220 applies to an arrest and detention

by a police officer and provides, “A person shall submit peaceably to a lawful arrest.

The 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.” (Emphasis added.)

It is undisputed that under Louisiana law, excessive force may transform

ordinarily protective use of force into an actionable battery, rendering the officer and

his employer liable for damages. See Penn v. St. Tammany Par. Sheriff’s Office, 02-

0893 (La.App. 1 Cir. 4/2/03), 843 So.2d 1157. Nonetheless, as urged by Defendants,

it does not necessarily follow that claims of excessive force equate to the commission

of a “crime of violence” so as to invoke the two-year prescriptive period found in

La.Civ.Code art. 3493.10.

Defendants argue that Mr. Edwards alleges in his petition that Officer Lewis

committed second degree battery on his person. Further, Mr. Edwards alleges that

Officer Lewis “has not been arrested for second degree battery, despite his alleged

actions[,]” yet the record does not contain a criminal complaint made against Officer

Lewis, nor does it contain a bill of information or indictment.

As alleged in Mr. Edwards’ petition, the police officers were well acquainted

with Mr. Edwards’ “severe mental infirmities.” Defendants allege that between the

incident at issue on February 2, 2019 and the filing of Mr. Edwards’ petition on

February 1, 2021, he had at least one additional arrest for drug and weapons charges.

Defendants further argued in their memorandum in support of the exception of

prescription that “[t]he [c]ourt can take notice (based on the allegations) that the

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officers were faced with an untenable situation. Had they stood idly by and let

Edwards choke himself to death [with his shoestrings] they and the City would have

surely faced a claim for inadequate care. Because they intervened, they face an

excessive force lawsuit.”

In support of their position that a one-year prescriptive period applies,

Defendants cite the case of Savoy v. St. Landry Parish Council, No. 08-CV-232,

2009 WL 4571851 (W.D. La. 12/1/09), wherein the trial court determined that the

two-year statute of limitations in La.Civ.Code art. 3493.10 was inapplicable to

“excessive force claims” alleging “crimes of violence” in that case. In Savoy, the

City of Eunice and the Chief of Police were sued for both federal and state law claims

in a suit originally filed in federal court. In Savoy, the federal court concluded that

the one-year statute of limitations applied to all claims in the complaint, both state

and federal. The trial court was fully aware that the state law claims had been made

pursuant to La.Civ.Code arts. 2315, 2315.1 and 2315.2. The trial court concluded

that, “Excessive force” is not synonymous or interchangeable with a “crime of

violence,” and held that the two-year prescriptive period of La.Civ.Code art. 3493.10

did not apply. The court dismissed all of plaintiff’s claims, both state and federal,

with prejudice as prescribed.

Counsel for Mr. Edwards argues that the cases from federal court should not

be considered. However, it is undisputed that the federal cases claiming excessive

force pursuant to 42 U.S.C. § 1983 are evaluated using the Graham factors. See

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865 (1989). Excessive force claims

under Louisiana state law are evaluated using the Kyle factors. See Kyle v. City of

New Orleans, 353 So.2d 969 (La.1977).

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The United States Fifth Circuit in the case of Deville v. Marcantel, 567 F.3d.

156, 172 (5th Cir. 2009), cert. denied, 559 U.S. 1048, 130 S.Ct. 2343 (2010) found

that “Louisiana’s excessive force tort mirrors its federal counterpart.” The court in

Deville, further stated, “These considerations are sufficiently similar to the Graham

factors that our decision on this claim mirrors our decision of plaintiff’s § 1983

excessive force claim[.]” Id. at 173.

Additionally, Defendants argue that a two-year prescriptive period for

“excessive force” claims has also been rejected in Vallery v. City of Baton Rouge,

11-1611 (La.App. 1 Cir. 5/3/12) (unpublished opinion),5 writ denied, 12-1263 (La.

9/28/12), 98 So.3d 837. In Vallery, a plaintiff filed suit on May 26, 2009, for injuries

he allegedly received in an altercation with a police officer in December of 2007.

The plaintiff claimed that baton strikes from the police officer resulted in a broken

arm. He further claimed that he had also been sprayed with mace at the time of his

arrest.

The trial court in Vallery sustained the exception of prescription, finding that

the suit had been filed more than one year after the alleged incident. The plaintiff

appealed, urging that he had been the victim of a “crime of violence,” and that the

trial court had erred by not applying the two-year prescriptive period in La.Civ.Code

art. 3493.10. The court of appeal, albeit in an unpublished opinion, affirmed the

district court’s ruling granting the peremptory exception of prescription dismissing

the plaintiff’s claims as prescribed pursuant to the one-year prescriptive period in

La.Civ.Code art. 3492. Id.

5
2012 WL 2877599.

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At the close of his argument in this case, counsel for Defendants argued to the

trial court, and in his brief to this court, that, “[N]o Louisiana Supreme Court and no

Louisiana Court of Appeal case has ever applied a two year [‘]crime of violence[’]

prescriptive period to a suit involving an excessive force claim against a police

officer or involving injuries allegedly sustained at the hands of law enforcement.”

Counsel for Mr. Edwards, however, argued at the hearing that there were:

[M]any, many, many, cases across the State of Louisiana that have had
judgments wherein it’s been held that even though the perpetrator was
a police officer that there was a crime of violence and the two year
prescriptive period was held good and I can produce some of those for
you, Judge.

The trial court responded:

So, my question is do you have any case law? Because I’ve got
case law from Mr. Keiser supporting his position and then also[,] he
stated on the record that no such case law exists where this statute has
been applied in this way. So, do you have any case law that supports
your position?

Counsel for Mr. Edwards responded, “Judge, if you give me 24 hours I can get you

some specific cases with judges up here - - I mean, with judgments up here on these

specific cases.”

The trial court then ruled from the bench in favor of Defendants and stated:

“Okay, I am going to grant Mr. Keiser’s exception of prescription. I believe he’s

met all the burdens he needs to meet and it’s a one year prescription . . . .”

The hearing on Defendants’ exception of prescription was held on October 14,

2021 and the trial court’s judgment was issued on October 29, 2021. Counsel for

Mr. Edwards did not file a motion for a new trial in order to present the court with

any of the promised case law. Likewise, counsel for Mr. Edwards also did not cite

any case law supporting the proposition that a two-year prescriptive period was

applicable to the facts of this case.

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CONCLUSION

For the foregoing reasons, we affirm the October 29, 2021 judgment of the

trial court in its entirety, thereby granting Defendants, Officer Jim Lewis and City

of Leesville’s, peremptory exception of prescription based on Anthony Jo Edwards’

failure to file his claim within the applicable one-year prescriptive period pursuant

to La.Civ.Code art. 3492. All costs of this appeal are assessed to Plaintiff Anthony

Jo Edwards.

AFFIRMED.

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