The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
A. J. DAVIES, CIVIL ACTION
Plaintiff
VERSUS NO. 17-12575
JAMES LEBLANC, ET AL., SECTION: “E”(5)
Defendants
ORDER AND REASONS
Before the Court is a motion to dismiss, or in the alternative a motion for summary
judgment, filed by Defendant Jonathan Silberstein.1 For the following reasons,
Defendant’s motion for summary judgment is DENIED. A ruling on Defendant’s motion
to dismiss is DEFERRED, and Plaintiff is GRANTED LEAVE TO FILE AN
AMENDED COMPLAINT.
BACKGROUND
Plaintiff A.J. Davies is currently incarcerated at the Louisiana State Penitentiary
(“LSP”) in Angola, Louisiana.2 On April 28, 2017, Davies filed a complaint in federal court
under 42 U.S.C. § 1983 alleging various individuals connected with LSP violated his
constitutional right to appropriate medical care.3 Over the next year and a half, Davies
filed three amended complaints in a pro se capacity.4 Davies was then appointed counsel
and on November 27, 2019, with the assistance of counsel, filed what is designated as a
Third Amended Complaint.5 On December 27, 2019, also with the assistance of counsel,
1 R. Doc. 73. Davies opposed the motion. R. Doc. 76. Silberstein filed a reply R. Doc. 78. Davies filed a sur-
reply.
2 R. Doc. 52 ¶ 12.
3 R. Doc. 1.
4 R. Doc. 4; R. Doc. 17; R. Doc. 21.
5 R. Doc. 44.
Davies filed what is designated as a Fourth Amended Complaint.6 The following facts are
stated as set forth in Davies’ Fourth Amended Complaint.
In March 2016, Davies began experiencing pain in his genital area and observed
an area of hardness on or around the head of his penis.7 Davies’ condition worsened over
the next several months as he underwent unsuccessful courses of treatment at LSP.8 On
September 2, 2016, LSP personnel told Davies he was being transported to University
Medical Center in New Orleans (UMC) for a biopsy of his genitals.9
At UMC, Davies was told he would undergo a biopsy and that a tissue sample would
be taken.10 No medical provider discussed a potential penectomy (penis amputation) with
Davies.11 On September 3, 2016, after undergoing sedation, Davies awoke to discover
approximately 75% of his penis had been amputated and a catheter had been installed at
the base of his penis.12 Defendant Silberstein performed the surgery.13 Davies never
received a formal diagnosis for his medical issues.14
On September 5, 2016, Davies saw a medical provider at LSP.15 The provider
informed him “they had run into cancer” and that is why his penis had been amputated.16
This was the first time Davies was told he had cancer.17 On November 14, 2016, Davies
6 R. Doc. 52.
7 Id. ¶ 20.
8 Id. ¶¶ 21–43.
9 Id. ¶ 44.
10 Id. ¶ 45.
11 Id.
12 Id. ¶ 46.
13 Id. ¶ 47.
14 Id. ¶ 46.
15 Id. ¶ 48.
16 Id.
17 Id.
filed a formal grievance with LSP based on the amputation of his penis without his
consent.18 Davies’ request for relief was denied, as was his appeal of the denial.19
Davies lists five causes of action in his Fourth Amended Complaint, but only two
of those causes of action are against Silberstein. First, under 42 U.S.C. § 1983, Davies
alleges Silberstein violated his Fourteenth Amendment due process right to refuse
medical treatment by performing a penectomy on Davies to which Davies alleges he did
not provide informed consent.20 Second, Davies alleges Silberstein breached his standard
of care and was medically negligent under Louisiana Civil Code article 2315 by failing to
obtain Davies’ consent to the penectomy performed on him.21
Defendant Silberstein seeks to dismiss Davies’ Fourth Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6), or in the alternative seeks summary judgment,
both based on Davies’ failure to bring his article 2315 claim before a medical review panel
and the prescription of Davies’ § 1983 and article 2315 claims.22
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief.23 “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”24
18 Id. ¶ 49.
19 Id.
20 Id. ¶ 72–73.
21 Id. ¶ 81.
22 R. Doc. 73.
23 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”25 The court, however, does not accept as true legal conclusions or mere
conclusory statements, and “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.”26 “[T]hreadbare
recitals of elements of a cause of action, supported by mere conclusory statements” or
“naked assertion[s] devoid of further factual enhancement” are not sufficient.27
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.”28 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
show[n]’—that the pleader is entitled to relief.”29 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’”30
LAW AND ANALYSIS
I. Silberstein’s Motion for Summary Judgment on Davies’ § 1983 and
Article 2315 Claims Is Premature.
Davies requests the Court deny Silberstein’s motion for summary judgment on
Davies’ § 1983 and article 2315 claims as premature because more discovery is needed for
Davies to obtain the facts needed to oppose the motion.31 Under Federal Rule of Civil
Procedure Rule 56(d),32 if a party opposing a motion for summary judgment shows, by
25 Id.
26 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
27 Iqbal, 556 U.S. at 663, 678 (citations omitted).
28 Twombly, 550 U.S. at 555.
29 Id. (quoting FED. R. CIV. P. 8(a)(2)).
30 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).
31 R. Doc. 76, at 5.
32 On December 1, 2010, the provisions of former subdivision (f) of Rule 56 were carried forward, without
substantial change, to subdivision (d). Accordingly, while case law prior to this change references Rule 56(f)
way of affidavit or declaration, that for some specific reason it cannot present facts
essential to justify its opposition, the Court may defer consideration of the summary
judgment motion, deny it, allow time for the non-moving party to obtain affidavits or
declarations or to take discovery, or issue any other appropriate order.33 The rule is
“designed to safeguard against a premature or improvident grant of summary
judgment.”34
“[T]o justify a continuance, the [Rule 56(d)] motion must demonstrate (1) why the
movant needs additional discovery, and (2) how the additional discovery will likely create
a genuine issue of material fact.”35 In requesting a Rule 56(d) motion, a plaintiff “may not
simply rely on vague assertions that additional discovery will produce needed, but
unspecified, facts.”36 Rather, the plaintiff “must set forth a plausible basis for believing
that specified facts, susceptible of collection within a reasonable time frame, probably
exist and indicate how the emergent facts, if adduced, will influence the outcome of the
pending summary judgment motion.”37 “Rule 56(d) motions for additional discovery are
broadly favored and should be liberally granted.”38
The Court finds Davies has justified his need for a continuance to allow additional
time to conduct discovery before being required to oppose a motion for summary
judgment. Davies’ counsel has set forth, by way of a declaration, the specific reasons he
cannot at this time present facts essential to his opposition.39 Counsel for Davies has
instead of Rule 56(d), those pre-2010 cases still hold precedential and persuasive value and are fully
applicable to this case.
33 FED. R. CIV. P. 56(d).
34 Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
35 Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534–35 (5th Cir. 1999) (citing Krim v. BancTexas
Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993)).
36 Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and citation omitted).
37 Id. (internal quotation marks and citation omitted).
38 Am. Family Life Assur. Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013).
39 R. Doc. 76-1.
received no formal discovery from Defendant Silberstein, except for an exchange of
medical disclosures, and there is currently no deadline for the completion of discovery as
the Court’s original scheduling order has been vacated.40
Counsel for Davies also has identified the additional facts Davies needs to obtain
regarding, among other things,
a) Defendant Jonathan Silberstein’s relationships with University Medical
Center, the State of Louisiana and/or any entities thereof;
b) The relationship between University Medical Center and the State of
Louisiana;
c) Any contractual agreements governing the delivery of medical care to
inmates at University Medical Center, by Jonathan Silberstein specifically,
or by Tulane providers generally;
d) The Resident Supervision Agreement pursuant to which Jonathan
Silberstein purports to treat patients at University Medical Center;
e) When Jonathan Silberstein either was or should have been aware that
Plaintiff had taken legal action based on surgery performed on him by Dr.
Silberstein;
f) When prescription began to accrue as to Plaintiff's claims (under the
discovery rule, or contra non valentem); and
g) Whether Jonathan Silberstein obtained Plaintiffs informed consent to
the penectomy at issue in this lawsuit.41
The Court finds Davies has demonstrated sufficiently that: (1) he needs additional
discovery to oppose Silberstein’s motion for summary judgment and (2) the additional
discovery will likely create a genuine issue of material fact.42 Accordingly, the Court denies
Silberstein’s motion for summary judgment as premature.
II. Silberstein’s Motion to Dismiss Davies’ § 1983 and Article 2315 Claims
Silberstein moves to dismiss the claims against him for two reasons. First,
Silberstein asserts Davies did not present his Louisiana Civil Code article 2315 claims to
a medical review panel as required by Louisiana law before bringing a negligence claim
40 Id.
41 Id. ¶ 14.
42 See Stearns Airport Equip. Co., 170 F.3d at 534–35.
against a medical provider in court.43 Second, Silberstein argues Davies’ § 1983 and article
2315 claims against him are prescribed.44
A. Davies has alleged facts, which, if true, would relieve him of the
requirement under Louisiana Law to present his negligence
claim against Silberstein to a medical review panel.
There are two statutory schemes dealing with medical malpractice actions in
Louisiana: the Medical Malpractice Act (MMA)45 and the Medical Liability for State
Services Act (MLSSA).46 The MLSSA applies to medical malpractice committed by a “state
health care provider.”47 The MLSSA provides various categories of the “state health care
providers” it covers. Those categories include:
• “[O]fficers, officials, and employees" of universities, hospitals, or university
health centers "when acting within the course and scope of their duties in
providing health care in connection with such state entity,”48
• “A person acting in a professional capacity in providing health care services,
by or on behalf of the state, including but not limited to a physician . . . who
is either (aa) Acting within the course and scope of his employment
pursuant to a contract with the state, which contract specially names that
health care provider and designates him to render such health care services,
pursuant to a staff appointment to a state hospital or other state health care
facility, or pursuant to an assignment to render such health care services for
or on behalf of the state, without regard to where the services are performed,
whether or not he is paid for such services [or] (bb) Performing voluntary
professional or telemedicine services in a health care facility or institution
for or on behalf of the state,”49 and
• “A physician, surgeon, dentist, or hospital, and any employee of a physician,
surgeon, dentist, or hospital not otherwise included in Item (i), (ii), or (iii)
of this Subparagraph who gratuitously treats or provides services to any
patient referred to him from a state hospital or other state facility without
43 R. Doc. 73, at 6.
44 Id. at 11, 14.
45 LA. STAT. § 40:1231.1
46 Id. § 40:1237.1.
47 Id. § 40:1237.2.
48 Id. § 40:1237.1(A)(9)(a)(i).
49 Id. § 40:1237.1(A)(9)(a)(ii).
compensation or reimbursement from Medicaid or from any type of state or
federal public assistance program.”50
Under both the MMA and the MLSSA, a claimant generally must invoke a medical
review panel before filing suit in court.51 The MLSSA, however, contains an exception for
medical malpractice claims of prisoners.52 Section 40:1299.39.1(A)(1) of the MLSSA
provides:
All malpractice claims against the state, its agencies, or other persons
covered by this Part, other than claims wherein the patients are prisoners
and claims compromised or settled by the claimant and the division of
administration with the concurrence of designated legal counsel for the
state, shall be reviewed by a state medical review panel established as
provided in this Section, to be administered by the commissioner of
administration, hereinafter referred to as commissioner.
As put by the Louisiana Third Circuit, “[a] clear interpretation of this phrase [other than
claims wherein the patients are prisoners] is that claims, where the patient is a prisoner,
are exempted from going through a medical review panel.”53 For patients who are
prisoners, § 40:1299.39.1(E)(1) of the MLSSA provides:
The medical malpractice claims of prisoners relating to health care rendered
in a correctional facility and arising under this Part shall be submitted to
correctional administrative review procedures established for
administrative hearings in the correctional environment or established in
accordance with express law, including R.S. 15:1171 et seq., R.S. 49:964, and
the administrative rules and regulations pertaining thereto.
Davies did not allege he presented his negligence claim against Silberstein to a
medical review panel. Instead, Davies asserts his negligence claim against Silberstein is
not premature because (1) it falls within the MLSSA’s exception for medical malpractice
claims of prisoners, (2) it was required to be submitted for correctional administrative
50 Id. § 40:1237.1(A)(9)(a)(iv).
51 Id. § 40:1237.2(E)(1); LA. STAT. § 40:1231.8 (A)(1)(a).
52 Id. § 40:1237.1(E)(1).
53 Yen v. Avoyelles Par. Police Jury, 2003-603 (La. App. 3 Cir. 11/5/03), 858 So. 2d 786, 789.
review, and (3) he complied with this requirement. Silberstein, however, argues the
MLSSA’s exception does not apply to this case because Davies received treatment from
Silberstein at a hospital outside the correctional facility and because Silberstein is not
qualified under the MLSSA.
Louisiana courts have not limited the MLSSA’s review panel exception to claims
based on treatment provided to prisoners only at a correctional facility. For example, in
Yen v. Avoyelles Parish Police Jury, a prisoner was treated at the Huey P. Long Medical
Center in Pineville, Louisiana, and died there.54 The Louisiana Third Circuit held not only
the prisoner but also his heirs were exempted under the MLSSA from the submitting their
malpractice claim to a medical review panel.55 It is clear from the opinion that the
prisoner’s treatment occurred at a hospital rather than in a correctional facility.56
Similarly, in Wells v. Louisiana Department of Public Safety & Corrections, the Louisiana
Second Circuit held the MLSSA’s medical review panel exception for prisoners applied to
a claim based on care a prisoner received at an outside medical facility.57
The Court finds the MLSSA’s exception applies, and Davies was not required to
present his negligence claim to a medical review panel before bringing his article 2315
claim in court. Davies alleges Silberstein treated him pursuant to a contract with the State,
the Department of Corrections, or LSP.58 Davies further alleges Silberstein is covered by
the MLSSA as a “person acting in a professional capacity in providing health care services,
by or on behalf of the state, . . . [a]cting within the course and scope of his employment
54 Yen v. Avoyelles Par. Police Jury, 2007-225 (La. App. 3 Cir. 12/5/07), 971 So. 2d 536, 537, writ granted,
cause remanded sub nom. May Yen v. Avoyelles Par. Police Jury, 2008-0261 (La. 11/14/08), 996 So. 2d
1080.
55 Yen, 858 So. 2d at 789.
56 Id.
57 46,428 (La. App. 2 Cir. 8/24/11), 72 So. 3d 910, 918, writ denied, 2011-2637 (La. 2/10/12), 80 So. 3d 474.
58 R. Doc. 52 ¶ 74.
pursuant to a contract with the state.”59 Under these factual allegations, accepted as true,
Davies is not required to present his claims to a medical review panel, and Davies has
complied with the requirement of the MLSSA that he submit his claim for correctional
administrative review.60 As a result, Silberstein is not entitled to dismissal of Davies’
article 2315 claim based on prematurity.
B. Davies is granted leave to amend his complaint to provide a basis
for applying the doctrine of contra non valentem as to his § 1983
and article 2315 claims.
“Although defenses are generally not the proper subject of Rule 12(b)(6) motions,
certain affirmative defenses that clearly appear on the face of the plaintiff's complaint—
most commonly that the statute of limitations has run—may properly be asserted in a
Rule 12(b)(6) motion.”61 “A statute of limitations may support dismissal under Rule
12(b)(6) where it is evident from the plaintiff’s pleadings that the action is barred and the
pleadings fail to raise some basis for tolling or the like.”62
The limitations period for a § 1983 action is determined by the state’s personal
injury limitations law.63 In Louisiana, that period is one year.64 The limitations period for
Davies’ Louisiana Civil Code article 2315 medical negligence claim also is one year.65
“Prescriptive statutes are strictly construed against prescription.”66 If the defendant
59 LA. STAT. § 1237.1(A)(9)(a)(ii).
60 R. Doc. 52 ¶ 49.
61 Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 n.3 (5th Cir. 1997) (citing Kansa
Reinsurance Co. v. Cong. Mortgage Corp. of Texas, 20 F.3d 1362, 1366 (5th Cir. 1994)).
62 Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); see also Kansa Reinsurance, 20 F.3d at 1366–70
(affirming the dismissal, under Rule 12(b)(6), of a claim as time barred in which the claim was clearly filed
after the applicable statute of limitations had run and in which it was evident from the pleadings that the
plaintiff was not entitled to the benefit of the discovery rule).
63 Whitt v. Stephens Cnty., 529 F.3d 278, 282 (5th Cir. 2008).
64 Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989).
65 LA. STAT. § 9:5628.
66 Landry v. Blaise, Inc., 1999-2617 (La. App. 4 Cir. 8/2/00), 774 So. 2d 187, 190, writ denied, 2000-2820
(La. 12/8/00), 776 So. 2d 469.
proves the action has prescribed on its face, the burden then shifts to the plaintiff to prove
an exception to prescription.67
Davies’ penectomy occurred on September 3, 2016. Accordingly, Davies had until
September 3, 2017, to file suit. Davies, acting pro se, did file his initial complaint68 and
first amended complaint69 within that time frame, but neither complaint named
Silberstein as a defendant. Davies’ first amended complaint, filed on June 27, 2017,
named “unknown” doctors at UMC, which may have been an attempt to reference
Silberstein.70 Silberstein did not appear as a named defendant, however, until the Third
Amended Complaint, filed on November 27, 2019—well over one year after the surgery.71
All of the facts needed to determine whether Davies’ claims against Silberstein are
prescribed (i.e. the date of Davies’ injury and the date he filed suit against Silberstein) are
apparent on the face of Davies’ complaint. As a result, Silberstein has shown Davies’
claims against him are prescribed on their face and the burden shifts to Davies to show
the claims are in fact not prescribed.
Davies asserts two reasons his claims against Silberstein are not prescribed. First,
Davies argues that, under Federal Rule of Civil Procedure 15, his claims against
Silberstein relate back to his timely filed complaint. Second, Davies argues his claims are
not prescribed based on the doctrine of contra non valentum.
1. Davies’ amended complaint naming Silberstein does not
relate back under Federal Rule of Civil Procedure 15.
Federal Rule of Civil Procedure 15(c)(1) provides:
67 Eldridge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000) (citing Dixon v. Houck, 466 So. 2d
57, 60 (La. Ct. App. 1985)).
68 R. Doc. 1.
69 R. Doc. 4.
70 Id.
71 R. Doc. 44.
An amendment to a pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of limitations allows relation
back;
(B) the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out--or attempted to be set out--in the
original pleading; or
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and complaint, the
party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's
identity.
“Rule 15(c)’s relation back doctrine, though it has the ultimate effect of ‘tolling’
limitations, is considered by [the Fifth Circuit] to be purely procedural and is thus
governed by federal law.”72
The particular subsection under which Davies argues his claims against Silberstein
“relate back” to the date of his First Amended Complaint is Rule 15(c)(1)(C).73 To show an
amended complaint relates back to a previous, timely filed complaint under Rule
15(c)(1)(C), “a plaintiff must show the added defendant received adequate notice of the
original lawsuit and that the defendant knew that, but for a mistake concerning the
identity of the defendant, the action would have originally been brought against the
defendant.”74 Rule 15(c)(1)(C) is meant to “correct a mistake concerning the identity of
the party.”75 “The Advisory Committee Notes to [Rule 15(c)(1)(C)] state that this
subsection cures the problems that arise, for example, when a defendant mistakenly sues
an agency of the government without knowing that the cause of action requires the
72 Kansa Reinsurance Co. v. Cong. Mortg. Corp. of Texas, 20 F.3d 1362, 1367 n.4 (5th Cir. 1994).
73 R. Doc. 76, at 16.
74 Jacobsen v. Osborne, 133 F.3d 315, 319-22 (5th Cir. 1998).
75 Id. at 321.
defendant to sue an agency head.”76 However, “Rule [15(c)(1)(C)] does not allow an
amended complaint adding new defendants to relate back if the newly-added defendants
were not named originally because the plaintiff did not know their identities.”77 “This
result is necessitated by the goals of relation-back and Rule [15(c)(1)(C)]: to correct
a mistake concerning the identity of a party.”78 For unidentified defendants, “there [i]s no
‘mistake’ in identifying the correct defendant; rather, the problem was not being able to
identify that defendant.”79 The Fifth Circuit “has clearly held that ‘an amendment to
substitute a named party for a John Doe does not relate back under Rule 15(c).’”80
In this case, Davies did not make a mistake concerning the identity of Silberstein
in his timely filed complaints. Instead, he simply failed to identify Silberstein. His first
amended complaint named the “unknown” doctors at UMC who performed his
penectomy but did not name Silberstein as one of those doctors.81 Because Rule
15(c)(1)(C) permits a later amended complaint to relate back to a timely filed complaint
only to correct a mistake concerning the identity of a party, and not to correct an inability
to identify a party, Davies’ later amended complaints do not relate back to his timely filed
complaints. Rule 15(c)(1)(C) does not render his claims against Silberstein timely.
Davies asserts the Court should draw a distinction between his timely filed
complaint, which named “unknown” doctors at UMC, and complaints that merely identify
a defendant as “John Doe.” The Fifth Circuit, however, has not drawn such a distinction.
For example, in Winzer v. Kaufman County, the Fifth Circuit held, “to the extent
76 Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 469 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir.
1996).
77 Jacobsen, 133 F.3d at 321 (quoting Barrow, 66 F.3d at 470).
78 Id. at 320–22 (5th Cir. 1998).
79 Id. at 321.
80 Winzer v. Kaufman County, 916 F.3d 464, 471 (5th Cir. 2019).
81 R. Doc. 4, at 1.
Appellants sued ‘unknown officers,’ they cannot use these ‘John Doe’ claims to now
substitute in [new defendants] after the limitations period.”82 Similarly, in Jacobsen v.
Osborne, the Fifth Circuit relied on a Seventh Circuit case in which “the plaintiff sued
‘unknown named police officers’” and the Seventh Circuit held his “failure to name [the
correct officers] was due to a lack of knowledge as to their identity, and not a mistake in
their names, [which] prevented [him] from availing himself of the relation back doctrine
of Rule 15(c).”83
2. Davies is granted leave to allege facts in his complaint
showing his § 1983 and article 2315 claims against
Silberstein are timely under the doctrine of contra non
valentum.
The doctrine of contra non valentem is a judicially created exception to the rules
of prescription.84 The doctrine suspends prescription
when the plaintiff is prevented from acting under one of four scenarios: (1)
where there was some legal cause which prevented the courts or their
officers from acting or taking cognizance of the plaintiff's action; (2) where
there was some condition or matter coupled with the contract or connected
with the proceedings which prevented the plaintiff from availing himself of
his cause of action; (3) where the defendant has done some act effectually
to prevent the plaintiff from availing himself of his cause of action; and (4)
where the cause of action is not known or reasonably knowable by the
plaintiff, even though this ignorance is not induced by the defendant.85
In his opposition to Silberstein’s motion to dismiss, Davies contends the fourth
category (also known as the “discovery rule”) applies to both of his claims against
Silberstein because his causes of action against Silberstein were not known or reasonably
knowable by him and he was reasonably diligent in his efforts to identify Silberstein. In
82 916 F.3d at 471.
83 133 F.3d 315, 321 (5th Cir. 1998) (citing Worthington v. Wilson, 8 F.3d 1253, 1257 (7th Cir. 1993)).
84 Bergeron v. Pan Am. Assurance Co., 98-2421, p. 9 (La. App. 4 Cir. 4/7/99), 731 So.2d 1037, 1042.
85 Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., 15-0487, pp. 12-13 (La. App. 4 Cir. 7/21/16), 197 So.3d 797,
806.
his Fourth Amended Complaint, however, Davies does not provide any basis for the
application of the discovery rule as to his claims against Silberstein. This is potentially
problematic.
In Jones v. Alcoa, Inc. the Fifth Circuit stated the plaintiffs’ amended complaint
did not “even remotely suggest[]” the plaintiffs were unaware of the discrimination being
practiced against them.”86 The court went on to state, “[a] statute of limitations may
support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings
that the action is barred and the pleadings fail to raise some basis for tolling or the like.”87
Accordingly, the court held tolling did not apply to plaintiffs’ claims and dismissal of the
plaintiffs’ complaint was warranted.88 Davies has requested, in the event the Court finds
dismissal may be warranted because he did not raise a basis for the application of the
discovery rule, an opportunity to amend his complaint.
Rule 15(a) “requires the trial court to grant leave to amend freely, and the language
of this rule evinces a bias in favor of granting leave to amend.”89 A district court must
possess a “substantial reason” to deny a motion under Rule 15(a).90 In deciding whether
to grant leave under Rule 15(a), courts may consider factors such as “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, and futility of the amendment.”91
86 Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
87 Id.
88 Id.
89 Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002) (internal quotation marks
omitted).
90 Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004).
91 Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005).
In this case, the Court has granted Davies leave to amend his complaint several
times. Each previous amendment, however, sought to remedy issues not identified in the
motion to dismiss now under review, and Davies has filed only two amended complaints
with the assistance of counsel. The parties are engaged in the early stages of discovery and
no scheduling order is in place. If Davies fails to file an amended complaint providing a
sufficient basis for the Court to apply the discovery rule to this case, adequate time will
remain for Silberstein to bring a motion to dismiss or motion for summary judgment.
Accordingly, Silberstein will not be unduly prejudiced by virtue of allowance of an
amendment.
CONCLUSION
IT IS ORDERED, for the foregoing reasons, that Defendant Silberstein’s motion
for summary judgment on Davies’ § 1983 and article 2315 claims is DENIED. A ruling
on Defendant Silberstein’s motion to dismiss Davies’ § 1983 and article 2315 claims is
DEFERRED.°? Plaintiff is granted leave to file a superseding, amended complaint,
incorporating all allegations and prayers for relief, by June 22, 2020. If Plaintiff timely
files a superseding, amended complaint, incorporating all allegations and prayers for
relief, the pending motion to dismiss filed by Silberstein will be denied as moot without
prejudice.93
New Orleans, Louisiana, this 12th day of June, 2020.
Sie —
SUSIE oat
UNITED STATES DISTRICT JUDGE
92 R. Doc. 73.
93 Id.
16