Jarius Brown v. Deputy Javarrea Pouncy, John Doe 1, and John Doe 2

• Court: Louisiana Court of Appeal
• Decided: May 22, 2024
• Docket: 55,626-CA
• Status: Published

Opinion

Judgment rendered May 22, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,626-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

JARIUS BROWN Plaintiff-Appellant

versus

DEPUTY JAVARREA POUNCY, Defendants-Appellees JOHN DOE 1, AND JOHN DOE 2

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 83,478

Honorable Amy Burford McCartney, Judge

ACLU FOUNDATION OF LOUISIANA Counsel for Appellant By: Meghan Matt E. Bridget Wheeler

COVINGTON & BURLING LLP By: Michael X. Imbroscio, Pro hac vice Lauren S. Willard

COOK, YANCEY, KING & GALLOWAY Counsel for Appellee, By: James Ashby Davis Deputy Javarrea Pouncy

Before PITMAN, COX, and ELLENDER, JJ. COX, J.

This civil appeal arises from the 42nd Judicial District Court, DeSoto

Parish, Louisiana. Jarius Brown (“Brown”) appeals the district court

judgment sustaining an exception of prescription and dismissing his claim

for damages sustained following his arrest. For the reasons set forth below,

we vacate the district court’s ruling and remand with instructions.

FACTS

Brown alleges that on September 27, 2019, he was stopped by a

Louisiana State Trooper for a traffic violation and subsequently arrested for

possession of marijuana. Brown was transported to the Sheriff’s Office in

DeSoto Parish and placed in the custody of Deputy Javarrea Pouncy

(“Pouncy”) and two unnamed deputies. Brown claims that during the strip

search portion of the booking process, Pouncy and the unnamed deputies,

without provocation, brutally beat him.

On September 24, 2021, Brown filed suit in the federal district court

seeking damages under 42 U.S.C. § 1983 for the deputies’ use of excessive

force and violations of his Fourth and Fourteenth Amendment rights; Brown

also brought claims under La. R.S. 14:35 for battery. On September 29,

2022, the federal district court dismissed Brown’s federal claims as

prescribed but declined to exercise supplemental jurisdiction over his state

law claim, and dismissed the matter without prejudice.

On September 30, 2022, Brown filed suit in district court. Brown

alleged that his claim was timely filed under La. C.C. art. 3493.10, which

provides a two-year prescriptive period for delictual actions from damages

sustained as a result of an act defined as a “crime of violence.” Brown

claimed that his allegations against Pouncy and the other unnamed deputies were akin to second degree battery, which is enumerated as a “crime of

violence” under La. R.S. 14:2.

In response, Pouncy filed an exception of prescription and no cause of

action. Pouncy argued that Brown’s claims were subject to the one-year

prescriptive period under La. C.C. art. 3492, and had therefore prescribed.

Pouncy further argued that there are no delictual claims for second-degree

battery because the crime is statutorily defined and Brown lacks the

authority to declare Pouncy committed an act that constitutes a “crime of

violence”; instead, that power lies with the DeSoto Parish district attorney,

who had not brought charges against Pouncy.

On May 26, 2023, the district court granted Pouncy’s exception of

prescription and dismissed Brown’s claims. In its written reasons for ruling,

the district court, in highlighting the reasoning in Byrd v. Bossier Parish

Sheriff, et al, 54,914 (La. App. 2 Cir. 3/1/23), 357 So. 3d 582, found that

Pouncy’s actions did not constitute a crime of violence, and therefore, the

one-year prescriptive period applied. The district court noted that Pouncy

was not arrested or otherwise charged with a crime relative to Brown’s

claims. Moreover, Pouncy was the subject of a grand jury investigation but

was never charged with a crime. This appeal then followed.

On November 9, 2023, Brown filed a “Motion to Remand for

Consideration of Intervening Criminal Proceedings” with this Court. Brown

claimed that on September 6, 2023, four months after the district court

issued its ruling, Pouncy was indicted on two counts of deprivation of rights

under the color of law in federal court. Brown alleged that the charges were

based on the use of unreasonable force and deliberate indifference to serious

medical needs, and one count of falsifying records arising from the incident 2 on September 27, 2019. Brown further alleged that on September 5, 2023,

DeMarkes Grant (“Grant”), one of the unnamed deputies from Brown’s

original petition, pled guilty to one count of obstruction of justice related to

the incident.

Brown argued that these criminal proceedings “materially undermine

the rationale the district court applied when it found that the unprovoked

beating of Mr. Brown did not qualify as a crime of violence” for purposes of

applying the two-year prescriptive period in La. C.C. art. 3493.10. Brown

requests that this Court set aside the district court’s judgment and remand

the matter for consideration in light of this new evidence. In response,

Pouncy argued that the federal indictment against him has no effect on the

outcome of this proceeding and that Brown’s motion is merely an attempt to

“circumvent normal appellate procedures.” Pouncy maintained that

regardless of the federal charges, Brown’s claim is nevertheless prescribed,

and Grant’s guilty plea is of no matter because Grant is not a party to this

proceeding and was not convicted of a crime of violence.

On December 20, 2023, Brown filed a “Motion for Judicial Notice of

Intervening Criminal Proceedings,” in which he requested this Court to take

judicial notice of the federal indictment against Pouncy, Grant’s plea

agreement, and the factual basis for Grant’s plea. Brown argues that “notice

of these proceedings is essential to a full and fair adjudication of this

appeal.” Pouncy filed an “Unopposed Motion to Set Deadline for Appellee

to File an Opposition to Plaintiff-Appellant’s Motion for Judicial Notice of

Intervening Criminal Proceedings.” Pouncy claimed that Brown’s motion

should be denied because 1) there is no procedural mechanism by which this

Court can take judicial notice of new evidence, and is instead limited to the 3 evidence in the appellate record; 2) the proposed evidence is irrelevant for

purposes of prescription because he was not indicted for a “crime of

violence,” and the factual basis of Grant’s guilty plea cannot be imputed to

him because Grant is a nonparty to the matter; and 3) the evidence is hearsay

if used for the truth of the matter asserted. On January 10, 2024, this Court

referred Brown’s motion to the merits of this appeal and denied Pouncy’s

motion as unnecessary.

STANDARD OF REVIEW

Generally, the standard of review for a judgment for an exception of

prescription depends on whether evidence was introduced during the hearing

of the exception. Mitchell v. Baton Rouge Orthopedic Clinic, LLC., 21-

00061 (La. 10/10/21), 333 So. 3d 368; Anding o/b/o Anding v. Ferguson,

54,575 (La. App. 2 Cir. 7/6/22), 342 So. 3d 1138. If no evidence was

presented to support or controvert the exception, the manifest error standard

of review does not apply, and the appellate court’s role is to determine

whether the trial court’s ruling was legally correct. Anding, supra.

When evidence is introduced during the hearing on an exception of

prescription, the trial court’s findings of fact are reviewed under the manifest

error standard of review. Id. In the absence of evidence, the exception of

prescription must be decided on the facts alleged in the petition, which are

accepted as true. Id.; Johnson v. Littleton, 45,323 (La. App. 2 Cir. 5/19/10),

37 So. 3d 542. Because this particular exception of prescription involves the

interpretation of a statute, which is a question of law, we review this matter

under the de novo standard of review. Id.

4 DISCUSSION

On appeal, Brown argues that the district court erred in finding that

his claim was subject to the one-year prescriptive period of La. C.C. art.

3492, and had therefore prescribed because no formal criminal proceedings

against Pouncy occurred to invoke the two-year prescriptive period of La.

C.C. art. 3493.10. Brown alleges that in imposing such a requirement, the

district court departed from the plain text of La. C.C. art. 3493.10 and its

legislative history which has never required that criminal proceedings occur

before a plaintiff can bring a civil claim within the two-year prescriptive

period. Brown argues that La. C.C. art. 3493.10 only requires a plaintiff

seeking civil redress to sufficiently allege that he sustained damages as a

result of an act defined as a “crime of violence,” as enumerated in La. R.S.

14:2.

In this case, Brown asserts that in his petition, he alleged that he was

the victim of a “crime of violence,” namely second-degree battery, at the

hands of Pouncy and two other officers, that resulted in serious bodily

injury. Brown notes that he described the incident as being unprovoked and

that he posed no threat to the officers that would justify their actions.

Moreover, Brown highlights that Pouncy did not dispute this account of the

incident or provide evidence to contradict those statements as alleged.

Given this, Brown maintains that the district court should have accepted the

facts of his petition as true for the purpose of prescription.

Pouncy likewise argues that the text of the statute and the legislative

intent is clear; however, he proposes that for a plaintiff to avail himself of

the two-year prescriptive period, a defendant, particularly law enforcement

officers, must first be convicted of a “crime of violence.” In support of this 5 argument, Pouncy references proposed Senate Bill 156 brought during the

1999 Regular Session, in which former Senator Arthur Lentini stated of the

bill, “What this does is, it sets a two-year prescriptive period, the time within

which you can file a suit for damages when the damages arise from a crime

that is defined as a crime of violence in the criminal code.”

Pouncy maintains that this remark “clearly shows that the intent of the

legislature was for the two-year prescriptive period to only apply in the

limited subset of cases in which an actual criminal proceeding against the

defendant resulted in a conviction” for a “crime of violence.” To this point,

Pouncy notes that although he was the subject of a grand jury investigation,

he was not charged or convicted of a “crime of violence.” Pouncy further

looks to the heading of La. C.C. art. 3493.10, titled “Delictual actions; two-

year prescription; criminal act.” He contends that the heading refers to a

criminal act, which supports his assertion that the statute requires that the

defendant commit and be convicted of a “crime of violence.” As such,

Pouncy argues that the trial court correctly determined that Brown’s claim

was subject to the one-year prescriptive period of art. 3492.

However, after a review of the text of La. C.C. art. 3493.10, this Court

declines to adopt Pouncy’s interpretation that a defendant must first be

prosecuted, or otherwise charged, of a “crime of violence” before a plaintiff

can invoke the article’s two-year prescriptive period. 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 of injury or damage is sustained. (Emphasis added). 6 La. R.S. 14:2(B) defines a “crime of violence” as:

“[A]n 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 legislature designated a list of certain enumerated offenses and attempts

to commit any of those offenses as “crimes of violence.” Included in that

list is second degree battery, which is defined as a battery committed when

the offender intentionally inflicts serious bodily injury. La. R.S. 14:34.1.

In interpreting statutes, La. C.C. art. 9 and La. R.S. 1:4 provides that

“[w]hen a law is clear and unambiguous and its application does not lead to

absurd consequences, it shall be applied as written, with no further

interpretation made in search of the legislative intent.” Here, the language

of the article is clear: it requires an act that would be defined as a “crime of

violence” under La. R.S. 14:2. Through a plain reading of the article, it is

clear that the text does not impose formal criminal proceedings for conduct

to qualify as a “crime of violence” for purposes of prescription. Moreover,

as noted by the Third Circuit in Green v. Dauphinet, 23-521 (La. App. 3 Cir.

2/7/24), 380 So. 3d 169, such a “suggestion would read a substantive

element into the legislation that is not reflected by the unambiguous wording

of the [a]rticle.”

Pouncy references three previous appellate court decisions in which

the circuit courts considered the interpretation of La. C.C. art. 3493.10.

Specifically, Pouncy cites Vallery v. City of Baton Rouge, 11-1611 (La. App.

1 Cir. 5/3/12), 2012 WL 2877599, writ denied, 12-1263 (La. 9/28/12), 98

7 So. 3d 837; Edwards v. Lewis, 22-56 (La. App. 3 Cir. 9/28/22), 348 So. 3d

269; and this Court’s decision in Byrd v. Bossier Parish Sheriff, 54,914 (La.

App. 2 Cir. 3/1/23), 357 So. 3d 582. In the unpublished Vallery opinion, the

plaintiff filed a state tort claim against officers more than one year after the

incident, but less than two years after the two-year prescriptive period under

La. C.C. art. 3493.10. The plaintiff asserted that this claim fell under the

two-year prescriptive period because his claim was based on a “crime of

violence.”

In finding that the plaintiff’s claim in Vallery had prescribed, the First

Circuit held that “[f]or [art.] 3493.10 to apply, the petition must sufficiently

allege an act defined as a crime of violence,” and that under the facts alleged

in the plaintiff’s petition, the officer’s “acts were undertaken in the context

of a police arrest.” The court then recognized that the plaintiff resisted arrest

and highlighted that “excessive force may transform ordinarily protected use

of force into an actionable battery, rendering the officer and his employer

liable for damages,” but such 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 to invoke the two-year prescriptive

period of art. 3493.10.”

Similarly, in the Edwards opinion, the Third Circuit found that the

plaintiff’s claim for excessive force was prescribed, and rejected the

argument that the two-year prescriptive period for a “crime of violence”

applied to the claim. The court noted that during the plaintiff’s post-arrest

detention, he attempted to strangle himself with his shoelaces, which then

prompted officers to tase the plaintiff in order to remove the shoelaces. The

court held that “[i]t is undisputed that under Louisiana law, excessive force 8 may transform ordinarily protective use of force into an actionable battery[.]

Nonetheless, as urged by the Defendants, it does not necessarily follow that

claims of excessive force equate to the commission of a “crime of violence”

to invoke the two-year prescriptive period found in [art.] 3493.10.”

Finally, in this Court’s opinion in Byrd, the plaintiff similarly filed

suit for excessive force under La. C.C. art. 3493.10. The facts of the case

indicate that the plaintiff resisted arrest and this Court held:

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 officers.

Accordingly, this Court found that the plaintiff’s claims were prescribed.

However, this Court finds that the cited cases are distinguishable from

the present matter. In Vallery, Edwards, and Byrd, the courts noted that the

plaintiffs either resisted arrest or that the plaintiffs’ conduct necessitated

officer intervention to prevent injury. From this, the courts considered

whether the officers’ actions, in response to the plaintiffs’ conduct, were

reasonable in light of La. C. Cr. P. art. 220 and whether such actions were

excessive. Under such circumstances, the courts respectively concluded that

alone, excessive force did not equate to the commission of a “crime of

violence” to invoke the two-year period of La. C.C. art. 3493.10. Byrd,

supra; Edwards, supra; Vallery, supra.

9 It does not follow that the decisions in Vallery, Edwards, and Byrd

were entirely predicated on whether criminal proceedings had begun; rather

the courts considered whether the officers’ use of excessive force, in the

context of an arrest or post-arrest detention, can necessarily be considered a

“crime of violence” merely because the officer’s actions were excessive. It

appears that any mention of whether officers were charged, arrested, or

otherwise prosecuted for the incident was done to consider whether any

evidence existed to show whether the alleged conduct could reflect if the

actions could be considered a “crime of violence.” In finding that the

officers’ actions were neither excessive and no formal criminal proceedings

were filed, the courts rejected the plaintiffs’ arguments that the two-year

prescriptive period applied.

In the present case, we find that the absence of formal criminal

proceedings does not negate the unambiguous text of La. C.C. art. 3493.10,

and therefore, there is no imposition that a defendant must be prosecuted for

a plaintiff to avail himself of the two-year prescriptive period. This Court,

however, declines to determine whether Pouncy’s actions equate to a “crime

of violence” to invoke the two-year prescriptive period.

We note that on November 9, 2023, Brown filed a “Motion to

Remand for Consideration of Intervening Criminal Proceedings” with this

Court based on a ruling from the federal court, which indicted Pouncy on

two counts of deprivation of rights under the color of law in federal court.

Because this is new evidence and this Court is a court of record, we may not

receive new evidence or consider evidence not in the appellate record.

Jackson v. European Serv. Inc., 51,844 (La. App. 2 Cir. 2/28/18), 246 So. 3d

743. This new evidence was not available for the district court to consider 10 before rendering its ruling and could substantially bear upon the district

court’s decision; therefore, in consideration of the lower court and its

factfinding role, we vacate the district court’s judgment and remand this

matter in light of this Court’s interpretation of La. C.C. art. 3493.10.

CONCLUSION

For the foregoing reasons, the district court’s ruling sustaining

Pouncy’s exception of prescription is vacated and this matter is remanded

for further proceedings in consideration of this Court’s interpretation of La.

C.C. art. 3493.10. Costs of this appeal are assessed to Pouncy.

VACATED and REMANDED.