The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KAYLA MORRIS et al. CIVIL ACTION
VERSUS NO. 22-380
DAVID HEDRICKS et al. SECTION: “G”(3)
ORDER AND REASONS
In this litigation, Plaintiffs Kayla Morris (“Morris”) and Christopher M. Broussard
(“Broussard”), individually and on behalf of the decedent Leslie Fernandez (collectively
“Plaintiffs”), bring excessive force claims pursuant to 42 U.S.C. §§ 1983, 1988 against Defendants
David Hedricks (“Hedricks”), Fred Middleton (“Middleton”), and an Unknown Deputy, in their
official capacities as a the Sheriff of Concordia Parish and employees of the Concordia Parish
Sheriff’s Department (collectively “Defendants”).1 Pending before the Court is Defendants’
unopposed “Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(3).”2 Pursuant to Local Rule 7.5,
any opposition to a motion must be filed eight days before the noticed submission date.3 The
instant motion was noticed for submission on August 10, 2022.4 Thus, Plaintiffs’ opposition to
Defendants’ motion was due on August 2, 2022. Plaintiffs have not filed an opposition to this
motion, and therefore the motion is deemed to be unopposed. This Court has authority to grant a
1 Rec. Doc. 1 at 1-2.
2 Rec. Doc. 13.
3 EDLA Local Rule 7.5.
4 Rec. Doc. 13-2.
motion as unopposed, although it is not required to do so.5 Having considered the motion, the
memorandum in support of the motion, the record, and the applicable law, the Court grants the
motion.
I. Background
In the Complaint, Plaintiffs allege that they were beaten and threatened as pretrial detainees
in the Concordia Parish Jail “on or about February 12th, 13th, 14th, 2021.”6 Plaintiffs contend that
surveillance footage of the Concordia Parish Jail premises document these allegations.7 Plaintiffs
allege that one surveillance video shows an unidentified deputy entering into a cell and using a
closed fist to strike Morris after a verbal altercation.8 Plaintiffs contend that a separate video shows
a male deputy physically punch Morris after a verbal altercation occurred between inmates waiting
in the line to receive medication.9 Plaintiffs allege that Morris received a shattered orbital socket
from these instances of physical abuse.10 Plaintiffs further allege that a family member of the
Sherriff tasked with transferring Morris to the Natchitoches Parish Detention Center made
inappropriate sexual advances and rendered improper medical care, including giving Morris an
illegal drug, Tramadol.11
5 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 330, 356 (5th Cir. 1993).
6 Rec. Doc. 1 at 2–3.
7 Id. at 3.
8 Id.
9 Id. at 4.
10 Id.
11 Id.
Plaintiffs allege that both Morris and another inmate, Takela Rachel (“Rachel”), had been
transported to the Natchitoches Parish Detention Center by March 9, 2021.12 Plaintiffs assert that
after Morris and Rachel were moved to the Natchitoches Parish Detention Center, Defendants
detained Fernandez in the male population unit in the Concordia Parish Jail.13 Plaintiffs contend
that Defendants did so to get Fernandez to testify against Morris and Rachel.14 Plaintiffs aver that
after Fernandez’s coerced cooperation, both Rachel and Morris were charged with battery upon a
corrections officer and Morris was also charged with simple escape in relation to the above-
mentioned incidents.15
On February 14, 2022, Plaintiffs filed the instant suit against Defendants.16 Plaintiffs bring
claims of assault and battery under Louisiana law and further claim that Hedrick, Middleton, and
the Unidentified Deputy violated Plaintiffs’ constitutional rights through the use of excessive
force.17 Plaintiffs contend that Hedrick, as Sherriff, is liable for the tortious conduct of the deputies
and staff beneath him under the doctrine of respondeat superior and for negligent hiring and/or
supervision.18
On July 13, 2022, Defendants filed the instant motion to dismiss with prejudice for
improper venue and because Plaintiffs’ claims have prescribed.19 The motion was noticed for
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id. at 7.
18 Id. at 7–8.
19 Rec. Doc. 13 at 1.
submission on August 10, 2022.20 Thus, Plaintiffs’ opposition to Defendants’ motion was due on
August 2, 2022. Plaintiffs have not filed an opposition to this motion, and therefore the motion is
deemed to be unopposed.
II. Defendants’ Arguments
Defendants allege that this Court is an improper venue for this suit pursuant to 28 U.S.C.
§ 1391.21 Specifically, Defendants argue that because the Complaint states that all the named and
unnamed defendants are domiciled in the Western District of Louisiana, this Court is an improper
venue.22 Defendants further argue that because the Complaint states that all relevant actions at
issue occurred in Concordia Parish, which is in the Western District of Louisiana, this Court must
dismiss or transfer Plaintiffs’ suit.23 Defendants argue that 28 U.S.C. §1406(a) provides that a
district court shall dismiss a case brought in the wrong venue, unless it is in the interest of justice
to transfer the case to another district were venue would be proper.24 Although Defendants admit
that a district court generally does not dismiss a case with prejudice for improper venue,
Defendants nonetheless argue that dismissal with prejudice is appropriate in this case because this
suit has also prescribed.25
Defendants assert that the statute of limitations for a §1983 action is the same as the general
statute of limitations for a personal injury action in the state in which the claim accrues.26
20 Rec. Doc. 13-2.
21 Rec. Doc. 13-1 at 2.
22 Id. at 3.
23 Id.
24 Id. at 4.
25 Id.
26 Id.
Defendants quote Louisiana Civil Code article 3462, arguing that, when a suit is filed in an
improper venue, “prescription is interrupted only as to a defendant served by process within the
prescriptive period.”27 Defendants assert that where a plaintiff files suit in an improper venue
before the prescriptive period has run, only the act of serving the defendant with process will
interrupt the prescriptive period before it expires.28 Defendants aver that Plaintiff’s claim
prescribed on February 14, 2022, at the latest, because Plaintiffs’ claim arises from events that
allegedly occurred on or about February 12, 13, or 14, 2021.29 Defendants argue that because
Plaintiffs initiated this suit in an improper venue and did not properly serve Defendants before the
running of the applicable prescriptive period,30 prescription has not been interrupted, and thus the
claim is time-barred.31 Therefore, Defendants argue that the Court should dismiss the case with
prejudice.32
III. Legal Standard
A motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure
12(b)(3) generally requires a district court to determine whether venue is supported by 28 U.S.C.
§ 1391.33 Pursuant to 28 U.S.C. § 1406(a), “[t]he district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,
27 Id. at 4–5 (quoting La. Civ. Code art. 3462).
28 Id.
29 Id.
30 This Court notes that Plaintiffs did not serve Defendants until June 22, 2022. See Rec. Docs. 9, 11, 12.
31 Rec. Doc. 13-1 at 5–6.
32 Id. at 5–6.
33 See Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 55 (2013).
transfer such case to any district or division in which it could have been brought.”34 Once a
defendant has raised the improper venue issue by motion, the plaintiff bears the burden to establish
that the district he chose is the proper venue.35 When ruling on a Rule 12(b)(3) motion, “the court
must accept as true all allegations in the complaint and resolve all conflicts in favor of the
plaintiff.”36 However, Rule 12(b)(3) permits the Court to look at all evidence in the record beyond
simply those facts alleged in the complaint and its proper attachments.37 A district court’s dismissal
for improper venue is reviewed for abuse of discretion.38
28 U.S.C. § 1391 states that a civil action may, except as otherwise provided by law, be
brought only in:
(1) a judicial district in which any defendant resides, if all defendants residents of
the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
by 28 U.S.C. § 1391, a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced.39
The Court will address each of these three options enumerated in 28 U.S.C. § 1391 to determine
whether venue is proper in the Eastern District of Louisiana. Because the Court finds that venue is
not proper in the Eastern District of Louisiana, it will then determine whether dismissal or transfer
is appropriate pursuant to 28 U.S.C. § 1406(a).
34 28 U.S.C. § 1406(a).
35 Perez v. Pan Am. Life Ins. Co., 70 F.3d 1268, 1995 WL 696803, at *3 (5th Cir. 1995).
36 Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 448–49 (5th Cir. 2008) (quoting
Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 F. App’x 612, 615 (5th Cir. 2007)).
37 Lighthouse MGA, LLC v. First Premium Ins. Grp., Inc., 448 F. App’x 512, 514 (5th Cit. 2011).
38 See McClintock v. Sch. Bd. of East Feliciana Parish, 299 F. App’x 363, 365 (5th Cir. 2008).
39 28 U.S.C. § 1391(b).
IV. Analysis
A. Whether Venue is Proper Pursuant to 28 U.S.C. § 1391(b)
Under 28 U.S.C. § 1391(b)(1), a suit may be brought in a judicial district in which any
defendant resides if all defendants reside in the state in which the district is located. In the
Complaint, Plaintiffs assert that all Defendants are “adult citizen[s] of the State of Louisiana and
domiciled in the Western District of Louisiana.”40 Further, Plaintiffs filed no opposition to
Defendants’ motion and assert no other basis for this Court to find that venue is proper in the
Eastern District of Louisiana. Therefore, the Court finds that the record indicates that none of the
Defendants reside in the Eastern District of Louisiana, and venue is not proper in this Court
pursuant to 28 U.S.C. § 1391(b)(1).
Pursuant to 28 U.S.C. § 1391(b)(2), a civil action may be brought in a judicial district in
which “a substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated.”41 Here, Plaintiffs do not
allege that any of the events or omissions giving rise to these claims occurred in the Eastern District
of Louisiana or that any property that is the subject of the action is situated in the district. Plaintiffs
allege that all injuries sustained from purported uses of excessive force by employees of the
Concordia Parish Sherriff’s Office occurred at the Concordia Parish Jail.42 This Court
acknowledges that Concordia Parish lies in the Western District of Louisiana. Thus, the Court
finds that venue is not proper in the Eastern District of Louisiana under 28 U.S.C. § 1391(b)(2).43
40 Rec. Doc. 1 at 2.
41 28 U.S.C. §1391(b)(2).
42 Rec. Doc. 1 at 2.
43 Id.
Pursuant to 28 U.S.C. § 1391(b)(3), “if there is no district in which an action may otherwise
be brought” under the venue statute, then a civil action may be brought “in any judicial district in
which any defendant is subject to the court’s personal jurisdiction with respect to such action.”44
This third option is not applicable in this case, because there exists another district in which this
action may otherwise be brought.45 Plaintiffs’ action could have been brought in the Western
District of Louisiana, where all Defendants are domiciled.46 Therefore, the Court finds that venue
is not proper in the Eastern District of Louisiana pursuant to 28 U.S.C. § 1391(b)(3).47 Here,
Plaintiffs’ filed suit in the Eastern District of Louisiana.48 Because all Defendants are domiciled
in the Western District of Louisiana49 and because all relevant actions occurred in the Western
District of Louisiana,50 this Court finds that venue is not proper in this district under any of the
three options enumerated in the federal venue statute.
B. Whether the Action Should be Dismissed or Transferred Pursuant to 28 U.S.C. § 1406(a)
Pursuant to 28 U.S.C. §1406(a), when a plaintiff selects an improper venue, a court “shall
dismiss [the action], or if it be in the interest of justice, transfer such case to any district or division
in which it could have been brought.”51 In McClintock v. School Board of East Feliciana Parish,
the Fifth Circuit affirmed the district court’s order dismissing the case with prejudice because the
44 28 U.S.C. § 1391(b)(3).
45 Id.
46 See id.
47 Id.
48 Rec. Doc. 1 at 1.
49 Rec. Doc. 1 at 2.
50 Id.
51 28 U.S. § 1406(a) (emphasis added).
case was filed in an improper venue and the plaintiff’s claims were time-barred. 52 The plaintiff in
McClintock filed a cause of action under state tort law and 42 U.S.C. § 1983 in the improper federal
district court several days before the running of the prescriptive period.53
Regarding § 1983 claims, the Fifth Circuit noted that federal courts borrow the limitations
period from state “tort action[s] for the recovery of damages for personal injuries.”54 In Louisiana,
state law tort claims have a one-year prescriptive period.55 Additionally, the Fifth Circuit noted
that Louisiana Civil Code article 3462 provides that prescription is not interrupted by the filing of
a suit in an improper venue unless the “defendant is served with process within the prescriptive
period.”56 Considering that it was undisputed that the plaintiff had not served the defendant until
after the running of the prescriptive period, the Fifth Circuit found that the plaintiff’s claims were
time-barred because the filing of the suit in an improper venue did not interrupt prescription.57
Accordingly, “[b]ecause re-filing in a court with proper venue would be futile,” the Fifth Circuit
concluded that “the district court did not abuse its discretion in dismissing the suit with
prejudice.”58
As a general rule, prescription is interrupted by the filing of a claim “in a court of competent
jurisdiction and venue.”59 However, when a suit is filed in an improper venue, “prescription is
52 McClintock, 299 F. App’x at 366.
53 Id. at 364.
54 Id. at 366.
55 Id. (quoting La. Civ. Code art. 3692).
56 Id. (quoting La. Civ. Code art. 3462).
57 Id.
58 Id.
59 La. Civ. Code art. 3462.
interrupted only as to a defendant served by process within the prescriptive period.”60 Therefore,
where a plaintiff files suit in an improper venue before the prescriptive period has run, only the act
of serving the defendant with process will interrupt the prescriptive period before it expires. Here,
Defendants have correctly asserted that because Plaintiffs initiated this suit in an improper venue
and did not properly serve Defendants before the running of the applicable prescriptive period,61
prescription has not been interrupted, and thus the claim is time-barred.62 Therefore, the Court
must dismiss the case with prejudice.63
McClintock controls the resolution of the instant motion. Just as the plaintiff in McClintock,
Plaintiffs here assert causes of action under 42 U.S.C. § 1983 and state tort law. The events giving
rise to Plaintiffs’ claims occurred on February 12, 13, or 14, 2021.64 Therefore, Plaintiff had until
February 14, 2022 to file suit.65 Plaintiff filed this action in the Eastern District of Louisiana on
February 14, 2022.66 For the reasons discussed above, the Eastern District of Louisiana is an
improper venue. Because Plaintiffs filed the Complaint in an improper venue, the act of filing did
not interrupt the prescription. Furthermore, Defendants were not served with process until months
after the prescriptive period ran.67 Thus, this Court finds that Plaintiffs’ claims are prescribed, and
60 Id.
61 This Court notes that Plaintiffs did not serve Defendants until June 22, 2022. Rec. Docs. 9, 11, 12.
62 Rec. Doc. 13-1 at 5–6.
63 Id. at 5–6.
64 Rec. Doc. 1 at 2.
65 Id.
66 The Complaint also references events that occurred in March and May 2021. Id. at 3. Even assuming that
the prescriptive period did not begin to run until May 2021, the claims would nevertheless be time-barred
because Defendants were not served until June 22, 2022.
67 See Rec. Docs. 9, 10, 11.
transferring the case to the Western District of Louisiana would be futile.© Accordingly, this Court
must dismiss Plaintiffs’ claims with prejudice.™
V. Conclusion
This Court finds that venue is improper in the Eastern District of Louisiana because the
record shows that: (1) pursuant to 28 U.S.C. § 1391(b)(1), Defendants do not reside in the Eastern
District of Louisiana; (2) pursuant to 28 U.S.C. § 1391(b)(2), a “substantial part” of the events
giving rise to Plaintiffs’ claims did not occur in this District; and (3) pursuant to 28 U.S.C. §
1391(b)(3), the action could have been brought in the Western District of Louisiana. Because the
Plaintiffs’ claims have prescribed and transferring the case to the appropriate venue would be
futile, the Court finds that it must dismiss Plaintiffs’ suit.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is GRANTED and
Plaintiffs claims in the above captioned matter are DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA this 28th day of September, 2022.
NANNETTE JQLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
6 McClintock, 299 F. App’x at 366.
6 Td.
1]