The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-30795
_______________________
PERRY LEE FORD,
Plaintiff-Appellant,
versus
JOHN SCALLEN, Deputy of the St. Tammany Parish Sheriff’s Offices;
UNIDENTIFIED PARTIES;
PATRICK J. CANULETTE, Sheriff, of St. Tammany Parish Sheriff’s
Office;
ST. TAMMANY PARISH SHERIFF’S OFFICE
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-843-T)
_________________________________________________________________
September 3, 1997
Before JONES, STEWART, and DENNIS, Circuit Judges*
JONES, EDITH H, Circuit Judge:
Plaintiff-Appellant Perry Lee Ford (“Ford”) appeals the
district court decision partially granting Defendants’ Rule
12(b)(6) motion to dismiss for failure to state a claim for which
relief can be granted, and the decision of a subsequent district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court on transfer granting the Defendants’ motion for summary
judgment. Finding no error, we affirm.
I.
BACKGROUND
These facts are recited consistently with Ford’s
allegations. In the vicinity of two to four weeks before March 12,
1993, Ford was driving his vehicle when he was stopped, allegedly
without probable cause, by some deputies from the St. Tammany
Parish Sheriff’s Office. The deputies, one of whom was Deputy John
Scallen (“Scallen”),1 found some crack cocaine on the floor of
Ford’s car. Rather than arrest Ford, the deputies urged Ford to
work for them as an undercover agent. Ford alleges the deputies
knew Ford had previously been arrested, and that this was a
conspiracy to extort Ford’s cooperation in exchange for dropping a
potential drug possession charge. Ford was subjected to subsequent
telephone calls regarding his cooperation, and Scallen threatened
over the phone to arrest Ford for possession of the crack cocaine
found in his car if he did not arrange to buy drugs. At one point,
Ford alleges, Scallen exposed Ford to danger by discussing his
participation as an undercover agent for the Sheriff’s Office
1
Scallen’s name is spelled both “Scallen” and “Scallan” in the
appellate briefs and court record. This opinion will use
“Scallen,” as his name is listed in the style of the case on
appeal.
2
within the hearing range of the public in the “high crime area”
where Ford was eventually shot, and that an individual who Scallen
knew was involved in the local drug business overheard this
conversation.
Ford apparently told Scallen that this individual had
overheard the discussion of their arrangement, and expressed fear
to Scallen that he would be exposed to danger as the result of
setting up a drug purchase. Nevertheless, Scallen allegedly
dismissed this individual as a “snitch” for the government, and
insisted that Ford set up a drug purchase or face arrest, so Ford
agreed to arrange a buy. The last face-to-face contact between
Deputy Scallen (or anyone from the Sheriff’s Office) and Ford
occurred several days prior to March 12, 1993.
According to Ford, the agreement with Scallen was that
Ford would drive up to a cocaine dealer’s residence and purchase
cocaine while Scallen hid, witnessed the purchase, and conducted a
drug raid. Scallen apparently wanted Ford to purchase the cocaine
at a certain apartment complex. Ford testified that he was afraid
that Scallen would go ahead and arrest him for possession of the
crack cocaine found in his car if Ford notified Scallen that a
purchase had been arranged, but failed to procure drugs at the time
of the raid. Consequently, on his own initiative and without
telling anyone at the Sheriff’s Office, Ford decided to make a
warm-up purchase outside of the presence of any law enforcement
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personnel in order to gain the trust of local drug dealers, thereby
ensuring that when he set up a purchase for the Sheriff’s Office to
witness and raid the other party would have drugs to sell.
In pursuing this plan, Ford made at least two
unsuccessful attempts to purchase cocaine. Finally, Ford arranged
for a purchase to take place on the night of March 12, 1993 at an
apartment complex other than the one mentioned by Scallen. Ford
admitted in his deposition that he never informed the Sheriff’s
Office of this scheme.
When Ford went to the apartment complex on the night of
March 12, 1993 to purchase some cocaine, something went wrong and
Ford was shot. Ford alleges that the individual who he claims
overheard a conversation between Ford and Scallen approached Ford’s
car after he pulled up to the apartment complex, but before the
shooting. The details of the shooting incident which later
followed are not clear from the record. Ford is now permanently
paralyzed.
II.
PROCEDURAL HISTORY
On March 14, 1994, Ford filed suit against Deputy John
Scallen, Sheriff Patrick Canulette, and two unnamed deputies (the
“Defendants”) in federal district court. Ford’s suit was brought
under 42 U.S.C. §§ 1983, 1985, and 1988, based on alleged
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constitutional deprivations under color of law, including
violations of the right to due process, the privileges and
immunities clause, the commerce clause, and the First, Third,
Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments.
The Defendants filed a Rule 12(b)(6) motion to dismiss
for failure to state a claim upon which relief can be granted.
Following Ford’s response and oral argument, District Judge Peter
Beer granted the motion in part and denied it in part. The court
dismissed all claims except a potential procedural due process
ground for a Section 1983 action, based on the allegation that the
Defendants confronted Ford with an improper choice of alternatives-
-work undercover for the defendants or go to jail for drug
possession. Ford appealed this ruling to the Fifth Circuit, but
his appeal was dismissed for lack of jurisdiction. The case was
subsequently reassigned to District Judge G.T. Porteous, Jr. on
November 2, 1994.
The Defendants next filed a motion for summary judgment,
alleging that Ford’s claims that were not based on the March 12th
shooting had prescribed under Louisiana’s one year prescription
period for civil rights actions,2 or alternatively, that the
2
Louisiana has a general one year prescription period for personal injury actions. See LA. CIV.
CODE ANN. Art. 3492 (West 1997).
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Defendants were entitled to qualified immunity, on all of Ford’s
claims.
Following Ford’s response, on June 28, 1996, the trial
court issued its order and judgment granting the Defendants’ motion
for summary judgment based on the prescription of Ford’s remaining
due process action, and declined to reconsider the Rule 12(b)(6)
dismissal of the other claims. The court found that all of the
Defendants’ acts occurred more than one year from the filing of
Ford’s complaint, and therefore, that all of Ford’s claims not
arising from the shooting itself had prescribed.
On July 26, 1996, Ford filed his notice of appeal.
III.
STANDARD OF REVIEW
This court reviews a decision granting a Rule 12(b)(6)
motion to dismiss de novo, upholding the decision only where it
appears that relief would be denied under any provable set of facts
consistent with the plaintiff’s allegations. Barrientos v.
Reliance Standard Life Ins. Co., 911 F.2d. 1115, 1116 (5th Cir.
1990), cert. denied, 498 U.S. 1072, 111 S. Ct. 795 (1991). Although
the court must accept all of the plaintiff’s factual allegations as
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true, it need not construe unclear issues of law in the plaintiff’s
favor. Kansa Reinsurance Co., Ltd. v. Congressional Mortgage
Corp., 20 F.3d 1362, 1366 (5th Cir. 1994).
A decision granting summary judgment is reviewed de novo,
applying the same standards as the district court. Duffy v.
Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c). The moving party must show
the absence of any genuine material fact issue, but once it has met
this burden, the non-movant “must go beyond the pleadings and
designate specific facts showing that there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). The evidence is viewed in the light most favorable to the
nonmoving party, Duffy, 44 F.3d at 312. Nevertheless, conclusional
“allegations unsupported by concrete and particular facts will not
prevent an award of summary judgment.” Duffy, 44 F.3d at 312.
IV.
ANALYSIS
When Congress has not specified a statute of limitations
for a congressionally created substantive claim, courts apply the
analogous state statute of limitations. Board of Regents v.
Tomanio, 446 U.S. 478, 488, 100 S. Ct. 1790, 1797 (1980). A
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federal civil rights action in Louisiana is governed by the one
year prescription period applicable to Louisiana personal injury
actions. See Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989);
LA. CIV. CODE ANN. art. 3492 (West 1997).
Ford does not allege that the Defendants took any
affirmative action after the last meeting between Ford and Scallen
several days before the shooting. Ford was shot on March 12, 1993,
and filed suit on March 14, 1994, the last day to fall within the
one year prescription period that followed this injury.3 Because
Ford only alleges conduct by the Defendants occurring before March
12, 1993, all of Ford’s possible claims against the Defendants have
prescribed unless the shooting on March 12th can be attributed to
them.
Ford concedes that the only remaining cause of action
before Judge Porteous after Ford’s case had been transferred from
Judge Beer’s court, a procedural due process action for the
allegedly improper set of alternatives initially presented to Ford
after crack cocaine was found in his car, had prescribed. Ford
argues, however, that Judge Beer erred in dismissing Ford’s other
claims, and he asserts that his allegations in support of these
claims established a “continuing tort” that extended to the only
3
The prescription period commenced on March 13, 1993, the day following the day of the
shooting. March 13, 1994 fell on a Sunday; therefore, the last day to fall within the prescription
period was Monday, March 14th.
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act not barred by prescription--the March 12th shooting of Ford.
Thus, Ford contends that, but for Judge Beer’s erroneous decision
dismissing the bulk of Ford’s claims, Judge Porteous on transfer
would have been presented with a substantive due process
“continuing tort” claim that had not prescribed. See La. Civ. Code
art. 3492; Branch v. Willis-Knighton Medical Center, 636 So.2d 211,
217 (1994)(determining that prescription does not run until the
plaintiff has “discovered the damage, the delict and their
relationship”).
Rather than address Ford’s continuing tort analysis, this
court simply notes that Ford has failed to state a viable claim
arising from the damages he sustained on March 12, 1993. The
problem with Ford’s theory of constitutional and other claims is
the question of causal connection. At a hearing with the parties
on the Defendants’ 12(b)(6) motion, Judge Beer specifically
addressed what conduct could be attributed to the defendants,
noting: “The extent of the plaintiff’s right to any damages exist
(sic) only with respect to the confrontational aspect of that
choice. That is, did that rise to the level of a constitutional
tort, to say to him either you do this or we will arrest you. And
the events that flowed thereafter as far as I am concerned, are no
longer viable issues in this litigation.” The court went on to
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observe: “To a certain extent it’s kind of the old issue of the
Palsgraf case that discusses foreseeability, et cetera.”
Judge Beer was correct in finding a
foreseeability/causation problem with Ford’s allegations. Ford
complains of a traffic stop, the initial choice he was presented to
serve as an undercover agent for the police or face prosecution,
and some conversations with one or more deputies by phone and in
person that followed. Ford does not allege, however, that he was
in the care, custody, or control of the defendants on the night he
was shot, nor does he allege that the Defendants were aware of
Ford’s plan to purchase drugs on his own or present at the time and
place of Ford’s injury. Thus, Ford’s allegations fail to show that
the Defendants knew of or could foresee Ford’s independent
decision, never discussed with the Defendants, to purchase drugs on
a certain night at an apartment complex without police
surveillance. Even assuming that Scallen negligently revealed
Ford’s potential status as an undercover agent to the underworld
and that this constituted an actionable state-created danger,4 the
4
Ford was not in state custody when the harm occurred. Ford relies, however, on this court’s
discussion of potential government liability for harm caused by a private actor when the victim is not
in state custody in Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992). Salas observed that “[i]f the
state actor has a requisite mental state, a due process deprivation could occur under two sets of
circumstances. First, a procedural or substantive due process violation could occur if a state official
causes injury by arbitrarily abusing governmental power. Second, a substantive due process violation
could occur if uncommon circumstances create a duty for the state to protect a particular person.”
Id. at 307. Salas indicated the “requisite mental state” might be satisfied by a showing of reckless or
grossly negligent conduct on the part of the state actor. Id. Ford’s complaint essentially alleges that
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causal connection between the Defendant’s actions and Ford’s injury
is under these facts so highly attenuated that Ford has failed to
show causation as a matter of law.
Because of Ford’s inability to assert causation, we do
not need to go beyond the parameters of this discussion and address
the Defendants’ qualified immunity argument.
V.
CONCLUSION
For the reasons discussed above, the decisions of the
district courts granting partial dismissal of Ford’s claims, and
granting summary judgment in favor of Defendants, are AFFIRMED.
the Sheriff’s Office acted with recklessness or gross negligence by placing him in danger and failing
to protect him. In any case, this court has not yet sustained a cause of act ion based on the state-
created danger theory, and Fo rd’s inability to assert causation obviates the need for any further
discussion.
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