Opposition Brief — Jarius Brown, Petitioner v. Javarrea Pouncy, et al.

Supreme Court briefAug 20, 2024

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No. 23-1332

In the Supreme Court of the United States

_____________

JARIUS BROWN,

Petitioner,

v.

JAVARREA POUNCY, ET AL.,

Respondents.

_____________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

_____________

BRIEF IN OPPOSITION

____________

James Ashby Davis

Counsel of Record

James R. Sterritt

COOK, YANCEY, KING &

GALLOWAY, APLC

333 Texas St. Suite 1700

Shreveport, LA 71101

(318) 227-7826

ashby.davis@cookyancey.com

Counsel for Respondent Javarrea Pouncy

i

QUESTIONS PRESENTED

Federal law does not provide a statute of

limitations for claims under 42 U.S.C. § 1983. In

Wilson v. Garcia, 471 U.S. 261 (1985) and Owens v.

Okure, 488 U.S. 235 (1989), this Court held that,

under 42 U.S.C. § 1988, the forum state’s general or

residual statute of limitations for personal injury tort

claims applies to all Section 1983 claims. In Louisiana,

for claims arising between 1825 and July 1, 2024, that

period was one year.

Shortly after Owens, Congress passed 28 U.S.C.

§ 1658, creating a four-year limitations period for civil

actions that “arise under an Act of Congress enacted”

after December 1, 1990. This statute “alleviat[ed] the

uncertainty inherent in the practice of borrowing state

statutes of limitations” for “new claims” while “at the

same time protecting settled interests” by “leav[ing] in

place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the

difficult work already has been done.” Jones v. R.R.

Donnelley & Sons Co., 541 U.S. 369, 382 (2004).

Raising questions he did not raise below, Petitioner

Jarius Brown seeks to upset these “settled interests”

despite Congress’ intent to leave Wilson and Owens in

place, presenting the following questions:

1. Does Section 1658’s four-year statute of

limitations apply to all Section 1983 claims,

contrary to Section 1658’s plain text?

2. Is a one-year limitations period too short for

Section 1983 claims, despite substantial

statutory, precedential, and historical support for

applying one-year periods to Section 1983 claims?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 2

I.

Factual Background ............................................ 2

II. Procedural History ............................................ 2

REASONS FOR DENYING THE PETITION ............ 4

I. Brown's Petition has Vehicle Problems. ............ 4

A. Brown waived the arguments he now raises

for the first time in this Court. ...................... 4

B. Louisiana's recent adoption of a two-year

general statute of limitations for personal

injury actions presents a vehicle problem as

to Brown's first question presented. .............. 7

II. The Questions Brown Raises Do Not Warrant

the Court's Review. .................................................. 8

iii

A. The historical development of relevant law

and jurisprudence supports the holding

below. .............................................................. 8

B. The Fifth Circuit's holding is correct. .......... 20

i.

Section 1658's four-year statute of limitations

does not apply to Section 1983 claims........... 20

ii. A one-year statute of limitations is not

inconsistent with Section 1983. ................ 22

C. Stare decisis requires rejection of Brown's

arguments and weighs against taking this

case. ............................................................... 32

i.

This case involves statutory stare decisis,

where the doctrine is strongest. ................ 32

ii. The stare decisis factors weigh in favor of

denying the Petition and maintaining

existing precedent. .................................... 33

CONCLUSION .......................................................... 37

iv

TABLE OF AUTHORITIES

Cases

Bartenwerfer v. Buckley,

598 U. S. 69 (2023) ................................................. 26

Blake v. Dickason, 997 F.2d 749

(10th Cir. 1993) ............................................... 19, 28

Bd. of Regents of Univ. of State of N.Y. v. Tomanio,

446 U. S. 478 (1980) ................................... 26, 34, 35

Brown v. Pouncy,

55,626 (La. App. 2 Cir. 5/22/2024), 2024 WL

2307514 .................................................................... 4

Burge v. Parish of St. Tammany,

996 F.2d 786 (5th Cir. 1993) .................................. 31

Burnett v. Grattan,

468 U.S. 42 (1984) .....11-14, 16, 19-20, 23, 28-29, 32

Chardon v. Fernandez,

454 U. S. 6 (1981) ................................................... 24

Chardon v. Fumero Soto,

462 U. S. 650 (1983) ............................................... 24

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................................. 7

Dobbs v. Jackson Women's Health Org.,

597 U. S. 215 (2022) ............................................... 33

Felder v. Casey,

487 U. S. 131 (1988) ......................................... 26, 32

Fidelity National Title Insurance Company v.

Western Surety Company,

277 So.3d 40 (Ala. Civ. App. 2018) ........................ 10

v

Foman v. Davis,

371 U. S. 178 (1962) ............................................... 31

Fox v. Vice,

563 U. S. 826 (2011) ............................................... 30

Galloway v. State of La.,

817 F.2d 1154 (5th Cir. 1987) ................................ 27

Girdner v. Stephens,

48 Tenn. 280 (1870) ............................................... 10

Glover v. United States,

531 U.S. 198 (2001) .................................................. 4

Gozlon-Peretz v. United States,

498 U. S. 395 (1991) ............................................... 21

Hall v. United States,

566 U. S. 506 (2012) ......................................... 23, 26

Hardin v. Straub,

490 U. S. 536 (1989) ......................................... 27, 31

Harper v. Virginia Dept. of Taxation,

509 U. S. 86 (1993) ........................................... 34, 36

Hilton v. S. Car. Pub. Railways Com'n.,

502 U. S. 197 (1991) ............................................... 33

Johnson v. Railway Express Agency, Inc.,

421 U. S. 454 (1975) ............................................... 24

Jones & Preuit v. Mauldin,

876 F2d 1480 (11th Cir. 1989) ......................... 19, 28

Jones v. R. R. Donnelley & Sons Co.,

541 U.S. 369 (2004) ................i, 1, 7, 9, 16-18, 21-22,

..........................................................25-26, 32-34, 37

vi

Kimble v. Marvel Entertainment, LLC,

576 U. S. 446 (2015) ................................... 25, 32, 37

Lamie v. U. S. Trustee,

540 U. S. 526 (2004) ............................................... 21

McDougal v. County of Imperial,

942 F.2d 668 (9th Cir. 1991) ............................ 19, 28

Mitchell v. Forsyth,

472 U. S. 511 (1985) .......................................... 35-36

Newman Marchive Partnersip v. Hightower,

735 F. Supp. 2d 483 (W.D. La. 2009) ............... 34-35

Okure v. Owens,

816 F.2d 45, 48 (2nd Cir. 1987) ....................... 15, 28

O'Sullivan v. Felix,

233 U.S. 318 (1914) .............................. 10, 18, 24, 32

Owens v. Okure,

488 U.S. 235 (1989) ....................... i, 3-4, 7, 9, 14-16,

.............................................. 18-20, 22, 25-26, 32-34

Robertson v. Wegmann,

436 U.S. 584 (1978) .............................. 11, 21, 27, 32

Smith v. Reg. Trans. Auth.,

827 F.3d 412 (5th Cir. 2016) .................................. 21

Tobin v. Houston & T.C. Ry. Co.,

56 Tex. 641 (1882) .................................................. 10

Wilson v. Garcia,

471 U.S. 261 (1985) .............. i, 2-4, 6-7, 13-15, 18-20

..........................................................22, 24-26, 32-34

Woodford v. Ngo,

548 U. S. 81 (2006) ................................................. 30

vii

Woods v. Illinois Dept. of Children and Fam. Servs.,

710 F.3d 762 (7th Cir. 2013))........................... 19, 28

Statutes and Rules

28 U.S.C. § 1367 .......................................................... 3

28 U.S.C. § 1658 ........................i, 1, 6, 8, 17-18, 20-22,

..........................................................25-26, 32-34, 36

31 L.P.R.A. § 5298 ..................................................... 14

42 U.S.C. § 1983 ...................................... i, 1-16, 18-36

42 U.S.C. § 1986 ...................... 13, 15-16, 19-20, 27-29

42 U.S.C. § 1988 .............. i, 1, 3, 6, 8-11, 13-14, 20-21,

..........................................................23-28, 30, 32-33

2024 La. Sess. Law Serv. Act 423 (H.B. 315) ............. 7

Act of Feb. 5, 1841, 1841 Tex. Laws 163

https://texashistory.unt.edu/ark:/67531/metapth67

26/m1/631/ .............................................................. 10

Ala. Code 1852, § 2481(6) (1852),

https://archive.org/details/codeofalabamapre00alab/p

age/456/mode/2up................................................... 10

Cal. C.C.P. § 340(3).................................................... 14

Civil Rights Act of 1866 (14 Stat. 27, § 3)................... 8

E.D. La. Local Rule 16.1,

https://www.laed.uscourts.gov/sites/default/files/local

_rules/2022%20CIVIL%20RULES%20LAED%20w

%20Amendments%203.1.22.pdf ............................ 29

E.D. La. Local Rule 73.2,

viii

https://www.laed.uscourts.gov/sites/default/files/local

_rules/2022%20CIVIL%20RULES%20LAED%20w

%20Amendments%203.1.22.pdf ............................ 29

Federal Rule of Civil Procedure 15 ........................... 31

Ky. Rev. Stat. § 413.140(1)(a) ................................... 14

Ku Klux Klan Act of 1871 (17 Stat. 13 § 1) .......... 9, 28

La. Civil Code of 1825 art. 3501,

https://digitalcommons.law.lsu.edu/cgi/viewcontent.

cgi?article=1023&context=la_civilcode_book_iii#pa

ge=65 ........................................................................ 8

La. Civil Code of 1870, art. 3536,

https://digitalcommons.law.lsu.edu/cgi/viewcontent.

cgi?article=1023&context=la_civilcode_book_iii#pa

ge=65 ........................................................................ 9

La. Civil Code art. 3492.................................. 3-5, 9, 14

La. Civil Code art. 3493.10.......................................... 4

La. Civil Code art. 3493.11...................................... 7, 9

La. R. S. § 44.1 ........................................................... 31

La. R. S. § 44.32 ......................................................... 31

La. R. S. § 44.33 ......................................................... 31

La. R. S. § 44.35 ......................................................... 31

Louisiana Public Records Law .................................. 31

Md. Code art. 57, § 1 (1860),

https://msa.maryland.gov/megafile/msa/speccol/sc2

900/sc2908/000001/000145/html/am145--395.html

................................................................................ 10

ix

M.D. La. Local Rule 5,

https://www.lamd.uscourts.gov/sites/default/files/p

df/2019LocalRules.pdf............................................ 29

M.D. La. Local Rule 16,

https://www.lamd.uscourts.gov/sites/default/files/p

df/2019LocalRules.pdf............................................ 29

Prison Litigation Reform Act (1996) .................... 29-30

Tenn. Code § 2772 (1858),

https://books.google.com/books?id=3bgwAQAAMAA

J&pg=PA534#v=onepage&q&f=false .................... 10

T.C.A. § 28-3-104(a)(1)(A).......................................... 14

W.D. La. Local Rule 3.2,

https://www.lawd.uscourts.gov/local-rules............ 29

W.D. La. Local Rule 73.2.1,

https://www.lawd.uscourts.gov/local-rules............ 29

Other Authorities

Cong. Globe, 42nd Cong., 1st Sess. 819-820 (1871),

https://www.congress.gov/congressionalglobe/congress-42-session-1-part-2.pdf ................. 28

E.D. La. Local Form for Prisoner Complaints under

42 U.S.C. § 1983,

https://www.laed.uscourts.gov/sites/default/files/for

ms/1983.pdf ............................................................ 29

H.R. Rep. 101-734 (1990) ............................... 17-18, 34

M.D. La. Local Form for Prisoner Complaints under

42 U.S.C. § 1983,

https://www.lamd.uscourts.gov/sites/default/files/19

83COMPLAINTFORM-REVISED2014.pdf .......... 29

x

Police Executive Research Forum, 2023 Membership

Survey Results (April 1, 2023),

https://www.policeforum.org/staffing2023 ............ 36

U.S. Census Bureau,

https://www2.census.gov/prod2/statcomp/document

s/1991-02.pdf (Table No. 26, “Resident Population”

by state) .................................................................. 25

W.D. La. Local Forms,

https://www.lawd.uscourts.gov/local-forms........... 29

Other Materials

Memorandum in Opposition to Defendant's Motion to

Dismiss by Plaintiff Jarius Brown, 2022 WL

22864046 (W.D. La. March 24, 2022) .................. 3, 5

Reply Brief for Plaintiff-Appellant Jarius Brown,

2023 WL 3569947 (5th Cir. May 11, 2023) .......... 5-6

1

INTRODUCTION

Under the Court’s longstanding precedents

interpreting Section 1988, the statute of limitations

for Section 1983 claims is borrowed from the forum

state’s general or residual limitations period for

personal injury tort actions.

Brown’s Petition first asks the Court to change

the statute of limitations for all Section 1983 claims in

the entire country to a uniform four-year statute of

limitations by applying the four-year limitations

period from Section 1658 to all Section 1983 claims.

Alternatively, Brown asks the Court to hold that the

one-year general limitations period for personal injury

tort actions under Louisiana law is too short to be

applied to Section 1983 claims.

Both of Brown’s arguments are contrary to the

intent of Congress as expressed in Sections 1988 and

1658. In Jones, this Court recognized that Congress’

intent in enacting Section 1658 in 1990 was to

“alleviat[e] the uncertainty inherent in the practice of

borrowing state statutes of limitations while at the

same time protecting settled interests.” 541 U.S. at

381.

Congress did so by enacting a uniform four-year

statute of limitations for “new claims” but “leav[ing] in

place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the

difficult work already has been done.” Id. Section 1983

claims are among those “pre-existing causes of action.”

Id. Thus, Congress clearly intends for “borrowed”

state limitations periods like Louisiana’s one-year

limitations period to continue to apply to Section 1983

2

claims, as they have for well over a century under this

Court’s precedents. Furthermore, as this Court has

held, it is “most unlikely that the period of limitations

applicable to [general personal injury actions

sounding in tort under state law] ever was, or ever

would . . . be inconsistent with federal law in any

respect.” Wilson, 471 U.S. at 279.

Finally, the doctrine of stare decisis strongly

weighs against Brown’s arguments. Accepting

Brown’s arguments would require overturning

multiple precedents of this Court interpreting

statutes, as to which stare decisis is strongest.

Further, statutes of limitations create settled

expectations for plaintiffs and defendants alike.

Accepting Brown’s position would require upsetting

these concrete reliance interests, in violation of one of

the core purposes of stare decisis.

Brown’s Petition should be denied.

STATEMENT

I.

Factual Background

Brown was arrested on September 27, 2019, in

DeSoto Parish, Louisiana. During the jail booking

process, Pouncy and another deputy took Brown to the

laundry room to change into a jail jumpsuit. Brown

alleges that while in the laundry room, Pouncy and the

other deputy used excessive force on Brown, causing

him injuries. Pet App. 39a-43a.

II.

Procedural History

1. Brown filed a Section 1983 claim on

September 24, 2021, in the United States District

Court for the Western District of Louisiana – nearly

3

two years after the September 27, 2019, incident. He

asserted that during the September 27, 2019, incident,

Pouncy and another deputy used excessive force on

him in violation of the Fourth Amendment. He also

asserted a claim for battery under Louisiana law.

2. Pouncy moved to dismiss Brown’s claims as

time barred. Pouncy asserted that under Section 1988,

as interpreted by Wilson and Owens, Louisiana’s oneyear general limitations period for personal injury tort

actions that was in force for all claims that arose

before July 1, 2024, La. Civ. Code Art. 3492, applied to

all Section 1983 claims in Louisiana, including

Brown’s claim.1

In his Opposition, Brown asked that a special

exception to Wilson and Owens be made for the subset

of Section 1983 claims based on alleged “police

brutality.” 2022 WL 22864046 at *21. Brown argued

that applying Louisiana’s one-year limitations period

to the subset of Section 1983 claims based on alleged

police brutality is inconsistent with Section 1983, such

that under Section 1988, that period cannot be applied

to this subset of Section 1983 claims. See id.

The district court followed Wilson and Owens.

It dismissed Brown’s Section 1983 claim with

prejudice as time barred. Pet. App. 16a-28a.2

The Louisiana equivalent of a statute of limitations is a

“liberative prescriptive period;” the Louisiana equivalent of a tort

is a “delict.” For the sake of simplicity, this brief does not use the

Louisiana-specific terms.

1

The district court dismissed Brown’s state law claim without

prejudice under 28 U.S.C. § 1367(c). Brown then filed his state

2

4

3. Brown appealed. At the Fifth Circuit, Brown

again asserted that a special exception should be made

to Wilson and Owens for the subset of Section 1983

claims based on alleged police brutality. Like the

district court, the Fifth Circuit followed Wilson and

Owens and affirmed dismissal of Brown’s Section 1983

claim with prejudice as time barred. Pet. App. 1a-15a.

4. Brown now petitions this Court for a writ of

certiorari.

REASONS FOR DENYING THE PETITION

I.

BROWN’S PETITION HAS VEHICLE PROBLEMS.

A. Brown waived the arguments he now

raises for the first time in this Court.

Brown’s Petition raises two questions. Neither

question was raised or addressed below. This Court

does “not decide questions neither raised nor resolved

below.” Glover v. United States, 531 U.S. 198, 205

(2001).

Below, Brown sought a special exception to the

Wilson and Owens framework for the subset of Section

1983 claims based on alleged police brutality,

including his claim. At the district court, Brown

sought application of the two-year limitations period

in La. Civ. Code Art. 3493.10 to his Section 1983 claim,

rather than the one-year period under La. Civ. Code

Art. 3492. The two-year limitations period in La. Civ.

Code Art. 3493.10 applies only to state law claims for

law claim in state court. Brown’s state law claim remains

pending in state court. See Brown v. Pouncy, 55,626 (La. App. 2

Cir. 5/22/2024), 2024 WL 2307514.

5

“crimes of violence” as defined under Louisiana law.

See Pet. App. 16a, 23a, and 36a-37a.

In his Opposition to Pouncy’s Motion to Dismiss

at the district court, Brown argued that “the rote

application of Louisiana’s one-year prescription period

in police brutality cases rests in irreconcilable

tension with the objectives of Section 1983.” 2022 WL

22864046 at *21 (emphasis added).

As the Fifth Circuit stated in the opening

paragraph of its unanimous opinion, Brown’s

argument at the Fifth Circuit was as follows:

Brown argues that this one-year period [La. Civ.

Code Art. 3492] should not apply to police

brutality claims brought under Section

1983 and seeks reversal of the district court's

dismissal of his claims as untimely. He contends

that the one-year period both impermissibly

discriminates against Section 1983 police

brutality claims and practically frustrates

litigants' ability to bring such claims.

Pet. App. 2a (emphasis added).

Further, in Brown’s Reply Brief at the Fifth

Circuit, he asserted that:

Whether Louisiana's one-year residual statute of

limitations undermines the federal interests

underpinning Section 1983 claims as a “general”

matter, as Appellee appears to require, is a

question decidedly not before this Court.

Mr. Brown has not brought this challenge

to address every manner of Section 1983

claims.

6

2023 WL 3569947 at *12 (emphasis added).

By contrast, in his Petition in this Court, Brown

substantially broadens his arguments beyond those he

advanced below. Brown has no circuit split on which

to base his Petition. Thus, Brown broadens his

arguments to bolster his assertion that this case

presents an issue of national importance. See Sup. Ct.

R. 10.

Rather than limit his arguments to the context

of Section 1983 claims based on alleged police

brutality, like he did below, Brown now asks this

Court to apply Section 1658’s four-year statute of

limitations to all Section 1983 claims in the entire

country. Pet. 23. As the Fifth Circuit’s opinion makes

clear, Brown did not brief this sweeping argument

below. Indeed, the Fifth Circuit’s opinion does not

even mention Section 1658 – much less address

Brown’s argument in his second question presented

that Section 1658 provides a “suitable” federal statute

of limitations to apply to all Section 1983 claims under

Section 1988. Pet. App. 1a-15a.

Brown’s first question presented similarly

broadens the scope of the arguments he made below.

Rather than limit his assertion that Louisiana’s oneyear statute of limitations is too short to the context of

Section 1983 claims based on alleged police brutality,

Brown now asserts that Louisiana’s one-year statute

of limitations is too short for all Section 1983 claims.

Pet. 13-18.

Brown is bound by his choice below to ask for a

special exception for the subset of Section 1983 claims

based on alleged police brutality to the Wilson and

7

Owens framework rather than raise the arguments he

now raises for the first time in this Court. Because

Brown did not brief the arguments he asserts in this

Court to the courts below, Brown has waived those

arguments – an insurmountable vehicle problem. See

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (the

Court is “a court of review, not of first view”).

B. Louisiana’s recent adoption of a two-year

general statute of limitations for personal

injury actions presents a vehicle problem

as to Brown’s first question presented.

Louisiana recently adopted a two-year general

statute of limitations for tort claims that arise on or

after July 1, 2024. See 2024 La. Sess. Law Serv. Act

423 (H.B. 315); see La. Civ. Code Art. 3493.11.

After the enactment of La. Civ. Code Art.

3493.11, a case arising out of Louisiana is a poor

vehicle to address Brown’s first question presented, in

which he asks the Court to hold that a one-year

statute of limitations is too short for Section 1983

claims. As noted above and explained in more detail

below, both Congress and this Court have already

addressed that question. See Wilson, 471 U.S. at 279;

see Jones, 541 U.S. at 382. But even if this obstacle

could be overcome, Brown’s first question presented

will only apply to a finite number of Section 1983

claimants in Louisiana going forward. If the Court

ever chooses to address this issue again, a case arising

from a jurisdiction that still has a one-year general or

residual statute of limitations for personal injury tort

actions would be a more appropriate vehicle to address

this question.

8

II.

THE QUESTIONS BROWN RAISES DO NOT

WARRANT THE COURT’S REVIEW.

The two questions Brown’s Petition presents do

not warrant the Court’s review. Below, Pouncy traces

the historical development of relevant law and

jurisprudence in this area. This historical

development shows that the Fifth Circuit correctly

decided this case under the Court’s longstanding

precedents – precedents that correctly interpreted the

statutes at issue, Sections 1988, 1983, and 1658.

Finally, stare decisis strongly favors leaving the

Court’s longstanding precedents in place and denying

Brown’s Petition.

A. The historical development of relevant

law and jurisprudence supports the

holding below.

In 1825, the Louisiana legislature enacted the

Civil Code of 1825. Article 3501 of the Civil Code of

1825 provided that “The actions . . . for damages . . .

resulting from offences or quasi-offences . . . are

prescribed by one year.”3 Article 3501 established a

one-year limitations period applicable to all Louisiana

tort actions.

In 1866, Congress enacted what is now Section

1988 in the Civil Rights Act of 1866 (14 Stat. 27, § 3).

That Act included the same language that is contained

in Section 1988(a) today requiring federal courts to

3

Compiled Edition of the Civil Codes of Louisiana (1940),

https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1

023&context=la_civilcode_book_iii#page=65 (last accessed Aug.

7, 2024).

9

borrow and apply “state-law limitations periods where

doing so is consistent with federal law” for federal civil

rights claims that do not have their own statutes of

limitations. Owens, 488 U.S. at 239; see 42 U.S.C.

§ 1988(a).

In 1870, the Louisiana legislature enacted the

Civil Code of 1870. Like the Civil Code of 1825, the

Civil Code of 1870 included a general one-year

limitations period for tort actions. Article 3536 of the

Civil Code of 1870 provided that “The following actions

are also prescribed by one year: That . . . for damages

. . . resulting from offenses or quasi offenses.”4

When Louisiana’s Civil Code of 1870 was

revised in 1983, this same one-year limitations period

was continued in Article 3492 of the Louisiana Civil

Code. See La. C.C. Art. 3492, cmt. (a). Louisiana’s oneyear limitations period for personal injury tort claims

did not change until July 1, 2024, with the repeal of

La. C.C. Art. 3492 and the enactment of La. Civ. Code

Art. 3493.11 for claims accruing on or after that date.

In 1871, Congress passed the Ku Klux Klan Act

of 1871 (17 Stat. 13, § 1), which included the operative

language of what is now Section 1983. Congress did

not include in that Act a specific limitations period for

Section 1983 claims, nor has Congress enacted such a

specific limitations period since 1871. See Owens, 488

U.S. at 239; Jones, 541 U.S. at 378-382.

4https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=

1023&context=la_civilcode_book_iii#page=65 (last accessed Aug.

12, 2024).

10

Thus, when both Section 1988 and Section 1983

were enacted in 1866 and 1871, respectively,

Louisiana had a general one-year limitations period

for personal injury tort claims. Alabama, Maryland,

Tennessee, and Texas also had general or residual

one-year limitations periods for personal injury tort

claims when Sections 1988 and 1983 were enacted.5

This Court has long applied Louisiana’s oneyear limitations period for tort claims to federal civil

rights claims that do not have their own limitations

periods – including Section 1983 claims. See

O’Sullivan v. Felix, 233 U.S. 318, 319-325 (1914)

(Louisiana’s one-year limitations period applied to bar

a claim under what is now Section 1983 that was filed

more than one year after the incident at issue, even

though the defendants had already been convicted of

Alabama – See Ala. Code 1852, § 2481(6) (1852);

https://archive.org/details/codeofalabamapre00alab/page/456/mo

de/2up (last accessed Aug. 10, 2024); Fidelity National Title

Insurance Company v. Western Surety Company, 277 So.3d 40,

43-44 (Ala. Civ. App. 2018).

5

Maryland – See Md. Code, art. 57, § 1 (1860);

https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/0

00001/000145/html/am145--395.html (last accessed Aug. 7,

2024).

Tennessee

–

See

Tenn.

Code

§ 2772

(1858);

https://books.google.com/books?id=3bgwAQAAMAAJ&pg=PA53

4#v=onepage&q&f=false (last accessed Aug. 7, 2024); Girdner v.

Stephens, 48 Tenn. 280, 282 (1870).

Texas - See Act of Feb. 5, 1841, 1841 Tex. Laws 163,

https://texashistory.unt.edu/ark:/67531/metapth6726/m1/631/

(last accessed Aug. 7, 2024); Tobin v. Houston & T.C. Ry. Co., 56

Tex. 641, 642 (1882).

11

federal criminal civil rights violations against the

plaintiff for their conduct during that incident).

Under Section 1988, the Court has also applied

other state laws to Section 1983 claims even though

they result in the complete extinguishment of a

timely-filed Section 1983 claim. In Robertson v.

Wegmann, 436 U.S. 584, 591 (1978), this Court applied

a Louisiana state law providing that tort actions other

than those for damage to property survived only in

favor of a spouse, children, parents, or siblings to a

Section 1983 claim – even though it automatically

extinguished the Section 1983 claim at issue.

The Court found that “Section 1988 quite

clearly instructs us to refer to state statutes” in the

absence of a federal law addressing a particular issue

in Section 1983 claims. Id. at 593. The Court rejected

the plaintiff’s contention that application of this state

law rule to Section 1983 claims was inconsistent with

federal law. See id. (“A state statute cannot be

considered ‘inconsistent’ with federal law merely

because the statute causes the plaintiff to lose the

litigation.”).

In Burnett v. Grattan, 468 U.S. 42, 45 (1984),

the district court applied a six-month state statute of

limitations for filing an employment discrimination

complaint with a state administrative body to an

employment discrimination claim brought under 42

U.S.C. §§ 1981 and 1983. The Fourth Circuit reversed.

See id. at 45-46.

This Court granted certiorari and affirmed. See

id. at 46. First, it stated that under Section 1988, there

is a “three-step process” to determine the appropriate

12

limitations period for claims under Section 1981,

Section 1983, or other similar federal civil rights

statutes that do not have specific limitations periods.

Id. at 48.

At the first step, courts “look to the laws of the

United States.” But “[i]t is now settled that federal

courts will turn to state law for statutes of limitations

in actions brought under [Sections 1981 and 1983],”

since no specific federal limitations period exists. Id.

at 49 (emphasis added). Second, courts apply the law

of the forum state by selecting the “most appropriate”

state statute of limitations, which is “the state law of

limitations governing an analogous cause of action.”

Id. Third, courts only apply the forum state’s rule if it

is not “inconsistent with the Constitution and laws of

the United States.” Id. at 48.

The Court agreed with the Fourth Circuit at the

second step of this test and affirmed. “The functional

differences between the federal causes of action and

the state administrative law make [the 6-month state

administrative

statute

of

limitations]

an

inappropriate analog from which to borrow to

effectuate Congress’ purpose in enacting the Civil

Rights Acts.” Id. at 50. Because the 6-month

limitations period was the inappropriate state statute

of limitations to apply to Section 1981 or 1983 claims,

“[t]he step three inquiry – whether a state rule of

decision is inconsistent with the Constitution or

federal law – [was] not necessary to resolve [that]

case.” Id. at 53 n.15.

Notably, in a concurring opinion in Burnett,

then-Justice Rehnquist addressed the third step from

13

the Burnett framework of what makes a state law

“inconsistent with the Constitution and laws of the

United States” under Section 1988. Justice Rehnquist

stated that, “if the state statute of limitations [to be

applied to a federal civil rights claim] fails to afford a

reasonable time to the federal claimant, then state

legislative intent can also be disregarded.” 468 U.S. at

61. Brown relies heavily on this statement in support

of his second question presented. But Justice

Rehnquist also stated that “The willingness of

Congress to impose a 1–year limitations period in 42

U.S.C. § 1986 [another post-Civil War federal civil

rights statute creating a cause of action for damages]

demonstrates that at least a 1–year period is

reasonable” – a conclusion that Brown simply ignores.

Id.

In Wilson v. Garcia, 471 U.S. 261 (1985), this

Court addressed the second step from Burnett

described above to resolve the “conflict, confusion, and

uncertainty” that resulted from the then-existing rule

for determining which state statute of limitations

should apply to claims under Section 1983 at that

second step. Id. at 266. This required the Court to

decide “whether all § 1983 claims should be

characterized in the same way, or whether they should

be evaluated differently depending upon the varying

factual circumstances and legal theories presented in

each individual case.” Id. at 268.

The Court held that Section 1988 is “a directive

to select, in each State, the one most appropriate

statute of limitations for all § 1983 claims,” which is

the statute of limitations governing “the tort action for

the recovery of damages for personal injuries.” Id. at

14

275. This holding was largely based on “practical

considerations,” particularly the fact that picking a

state statute of limitations to apply to a Section 1983

claim based on “an analysis of the particular facts of

each claim . . . inevitably breeds uncertainty and timeconsuming litigation that is foreign to the central

purposes of § 1983.” Id. at 272.

Finally, the Court then addressed the third step

from the Burnett framework derived from Section

1988’s text. The Court found that it was “most

unlikely that the period of limitations

applicable to [general personal injury actions

sounding in tort under state law] ever was, or

ever would be, fixed in a way that would

discriminate against federal claims, or be

inconsistent with federal law in any respect.” Id.

at 279. (emphasis added). At the time the Court

reached this conclusion in Wilson in 1985, Louisiana,

Tennessee, Kentucky, California, and Puerto Rico had

one-year statutes of limitations for personal injury

tort actions.6

In Owens, the district court and Second Circuit

applied Wilson to find that New York’s three-year

6 California – See Cal. C.C.P. § 340(3) (version effective through

December 31, 2002).

Kentucky – See Ky. Rev. Stat. § 413.140(1)(a) (version effective

from June 21, 1974, through July 14, 2000).

Louisiana – See La. C.C. Art. 3492 (in effect until July 1, 2024).

Puerto Rico – See 31 L.P.R.A. § 5298.

Tennessee – See T.C.A. § 28-3-104(a)(1)(A) (version effective

from 1972 to 1990, which was previously identified as § 28-304).

15

general statute of limitations for personal injury

actions, rather than New York’s one-year statute of

limitations for assault and battery, applied to a

Section 1983 claim based on the alleged use of

excessive force by police officers. 488 U.S. at 237-238.

The Second Circuit so held because it found that

(1) Wilson required the selection of a “general”

limitations period rather than one taken from a

“precisely drawn analogy” to a particular type of state

law tort claim; and (2) the one-year limitations period

was not “long enough to effectuate the policies

embedded in section 1983.” Okure v. Owens, 816 F.2d

45, 48 (2nd Cir. 1987). As to the second ground, a

dissenting judge found that a one-year limitations

period is not too short, especially since Congress itself

established a one-year statute of limitations for

federal civil rights claims under Section 1986. See id.

at 52 (Van Graafeiland, J., dissenting).

The Supreme Court granted certiorari to

address “what limitations period should apply to a

§ 1983 action where a State has one or more statutes

of limitations for certain enumerated intentional torts,

and a residual statute for all other personal injury

actions,” an issue that had divided federal courts of

appeals since its decision in Wilson. Owens, 488 U.S.

at 236. The Court sought to “provide courts with a rule

for determining the appropriate personal injury

limitations statute that can be applied with ease and

predictability in all 50 States.” Id. at 243. The Court

held that “where state law provides multiple statutes

of limitations for personal injury actions, courts

considering § 1983 claims should borrow the general

16

or residual statute for personal injury actions.” Id. at

249-250.

In a footnote, the Court found that it “need not

address [the] argument that applying a 1-year

limitations period to § 1983 actions would be

inconsistent with federal interests,” since the Court

had already held that the three-year statute of

limitations applied for a different reason. Id. at 251

n.13. In other words, because the Court had agreed

with one of the rationales for the Second Circuit’s

holding, it did not need to address the Second Circuit’s

other rationale.

In the same footnote, the Court cited Justice

Rehnquist’s concurring opinion in Burnett. As stated

above, in that concurring opinion, Justice Rehnquist

stated that “The willingness of Congress to impose a

1–year limitations period in 42 U.S.C. § 1986

demonstrates that at least a 1–year period is

reasonable.” Burnett, 468 U.S. at 61. Thus, contrary to

Brown’s arguments, this footnote cannot be read as an

“express[ion] [of] skepticism” as to whether a one-year

statute of limitations is sufficient for Section 1983

claims. Pet. 31.

After Owens, the Federal Courts Study

Committee (“FCSC”), a body created by Congress to

study and recommend changes to federal statutes,

“recommended the enactment of a retroactive, uniform

federal statute of limitations” for federal claims that

did not already have statutes of limitations. Jones, 541

U.S. at 380.

17

But Congress only partially accepted this

proposal. Instead, Congress enacted Section 1658.

Section 1658 states, in pertinent part, as follows:

Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted

after the date of the enactment of this

section [i.e., December 1, 1990] may not be

commenced later than 4 years after the cause of

action accrues. 28 U.S.C. § 1658(a) (emphasis

added).

In 2004, the Court addressed Section 1658 in

depth in Jones. That case presented the question of

what the phrase “arising under” means in Section

1658. The Court found that this phrase was

ambiguous, and thus the Court had to “look beyond

the bare text of § 1658 to the context in which it was

enacted and the purposes it was designed to

accomplish” to interpret this phrase, including review

of the legislative history of the statute. Jones, 541 U.S.

at 377.

As the Court stated in Jones, the House

Committee on the Judiciary’s report regarding what

became Section 1658 states that, in partially rejecting

the recommendation of the FCSC, Congress was

concerned that “retroactively imposing a four year

statute of limitations on legislation that the courts

have previously ruled is subject to [other limitations

periods] would threaten to disrupt the settled

expectations of a great many parties.” H.R. Rep. 101734, at 24 (1990); see id. at 378-382. Since “settling the

expectations of prospective parties is an essential

purpose of statutes of limitations,” Congress decided

18

not to change the statute of limitations for existing

federal claims. Id.

As this Court unanimously held in Jones,

Congress’ intent in enacting Section 1658 was to

“alleviat[e] the uncertainty inherent in the practice of

borrowing state statutes of limitations while at the

same time protecting settled interests.” 541 U.S.

at 381 (emphasis added). Congress did so by enacting

a uniform four-year statute of limitations for “new

claims” but “leav[ing] in place the ‘borrowed’

limitations periods for pre-existing causes of

action, with respect to which the difficult work

already has been done.” Id. (emphasis added).

Given these purposes, in Jones the Court held that

Section 1658’s four-year statute of limitations applies

prospectively to new federal claims that are “made

possible” by federal statutes enacted after December

1, 1990, but it does not apply to federal claims that

existed before that date (like Section 1983 claims).

Jones, 541 U.S. at 382.

In other words, in enacting Section 1658,

Congress left in place Wilson, Owens, and other

“borrowing” precedents addressing the applicable

statutes of limitations for existing federal claims that

do not have their own specific limitations periods. As

the courts held below, under Wilson and Owens,

Louisiana’s “borrowed” one-year general limitations

period for tort claims applies to Section 1983 claims

like Brown’s that arose before July 1, 2024 – as it has

for over a century since the Court’s decision in

O’Sullivan.

19

Since Owens in 1989, the Fifth Circuit has

uniformly and repeatedly applied the general or

residual limitations period for personal injury actions

in the relevant state, including Louisiana’s one-year

period, to Section 1983 claims. See Pet. App. 13a. This

uniform application of Louisiana’s one-year

limitations period to Section 1983 claims under Wilson

and Owens shows that the Court’s holdings in those

cases has accomplished precisely what the Court

sought – “uniformity, certainty, and the minimization

of unnecessary litigation.” Wilson, 471 U.S. at 275;

Owens, 488 U.S. at 240.

Since this Court decided Wilson and Owens, at

least four federal circuits have addressed and rejected

arguments like the arguments Brown asserts in his

Petition. In Jones & Preuit v. Mauldin, 876 F.2d 1480,

1484 (11th Cir. 1989) and McDougal v. County of

Imperial, 942 F.2d 668, 672-673 (9th Cir. 1991), the

Eleventh and Ninth Circuits rejected arguments that

one-year general or residual statutes of limitations for

personal injury actions under state law were too short

for Section 1983 claims. Notably, in McDougal, the

Ninth Circuit found Justice Rehnquist’s concurring

opinion in Burnett persuasive, holding that “Congress

has also demonstrated its belief that a one-year period

is reasonable in the civil rights context, providing for

such a period in 42 U.S.C. § 1986.” 942 F.2d at 673.

Further, in Blake v. Dickason, 997 F.2d 749, 751

(10th Cir. 1993) and Woods v. Illinois Dept. of Children

and Fam. Servs., 710 F.3d 762, 766-769 (7th Cir. 2013)

the Tenth and Seventh Circuits rejected arguments

that two-year state statutes of limitations were too

short to be applied to Section 1983 claims. Both

20

circuits agreed with and relied upon Justice

Rehnquist’s conclusion that “[t]he willingness of

Congress to impose a 1–year limitations period in 42

U.S.C. § 1986 demonstrates that at least a 1–year

period is reasonable.” Burnett, 468 U.S. at 61.

B. The Fifth Circuit’s holding is correct.

The Fifth Circuit correctly decided this case.

The arguments Brown makes in support of both of his

questions presented are wrong.

i.

Section 1658’s four-year statute of

limitations does not apply to Section

1983 claims.

In his second question presented, Brown asks

the Court to apply Section 1658(a)’s four-year statute

of limitations to his Section 1983 claim and to all

Section 1983 claims in the entire country. Brown

asserts that, at the first step of the Burnett

framework, Section 1658’s four-year statute of

limitations provides a federal law that is “suitable to

carry [Section 1983] into effect” – one that was not

available when Burnett, Wilson, and Owens were

decided. Pet 22.

According to Brown, the enactment of Section

1658 “calls for a reevaluation of the central analysis

under Section 1988, and conducting that analysis

demonstrates that Section 1658 provides the

limitations period for all Section 1983 claims across

the Nation.” Pet. 23. According to Brown, “[i]t is far

more consistent with the federal interests of Section

1983 to fill its missing gap with a uniform federal

catchall statute of limitations than to borrow from a

patch-work of fifty different states’ residual personal

21

injury limitations periods providing wildly divergent

time periods for bringing suit.” Id.

This argument is contrary to common sense and

the way statutes must be interpreted under this

Court’s precedent. “The starting point in discerning

congressional intent is the existing statutory text.”

Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004). “It is

well established that when the statute's language is

plain, the sole function of the courts—at least where

the disposition required by the text is not absurd—is

to enforce it according to its terms.” Id. (internal

quotations omitted). Further, a “specific provision

controls over one of more general application.” GozlonPeretz v. United States, 498 U.S. 395, 407 (1991).

Section 1658 clearly states that its four-year

statute of limitations only applies to “civil action[s]

arising under an Act of Congress enacted after the

date of the enactment of this section [i.e., December 1,

1990].” (emphasis added).

Section 1983 claims existed before December 1,

1990. Section 1983 claims were not made possible by

a federal statute enacted after December 1, 1990. See

Jones, 541 U.S. at 382; Smith v. Reg. Trans. Auth., 827

F.3d 412, 421 n.2 (5th Cir. 2016). Section 1658’s text

contains Congress’s specific intent as to the

application of the four-year statute of limitations it

created. By contrast, Section 1988, the statute on

which Brown bases his argument, is generally

applicable to multiple federal civil rights claims and to

issues beyond statutes of limitations alone. See, e.g.,

Robertson, 436 U.S. at 591-593.

22

Thus, under the plain text of Section 1658,

which specifically addresses the claims to which its

four-year statute of limitations applies, the four-year

statute of limitations in that section does not apply to

Section 1983 claims and cannot be applied to Section

1983 claims. Applying Section 1658(a)’s four-year

limitations period to a Section 1983 claim would

violate Congress’ intent, as expressed in the plain text

of Section 1658. As this Court held in Jones,

Congress’s intent in enacting Section 1658 was for its

four-year statute of limitations to only apply to “new

claims” while “leav[ing] in place the ‘borrowed’

limitations periods for pre-existing causes of action”

like Brown’s Section 1983 claim. 541 U.S. at 382. Since

the Court’s decisions in Wilson and Owens, followed by

the enactment of Section 1658 in 1990, Congress has

not reversed course. Instead, Congress has left Section

1658 in place for new claims and the borrowed statute

of limitations under Wilson and Owens in place for

Section 1983 claims.

Congress gets to decide which statute of

limitations is “suitable” for Section 1983 claims.

Congress has expressly chosen to (1) reject a uniform

four-year national statute of limitations for Section

1983 claims and (2) leave in place the “borrowed” state

limitations periods that apply to Section 1983 claims

under Wilson and Owens, like the one-year limitations

period at issue here.

ii.

A one-year statute of limitations is

not inconsistent with Section 1983.

In his first question presented, Brown asserts

that application of Louisiana’s one-year limitations

23

period for personal injury tort actions to Section 1983

claims is so short that it is “inconsistent with the

Constitution and laws of the United States” at the

third step of the Burnett framework interpreting

Section 1988. Pet. 13-21. This argument is wrong.

First, as stated above, Louisiana had a one-year

general limitations period for personal injury tort

actions from 1825 to July 1, 2024. Thus, when (1)

Congress enacted what is now Section 1988 in 1866

and (2) Congress enacted what is now Section 1983 in

1871, Louisiana had a general one-year limitations

period for personal injury tort actions. Congress is

presumed to be “aware of existing law when it passes

legislation.” Hall v. United States, 566 U.S. 506, 516

(2012). Accordingly, applying a one-year limitations

period to Section 1983 claims in Louisiana is not

inconsistent with Congress’ intent in enacting Section

1988 and Section 1983, because that is the same

general limitations period for personal injury tort

actions that existed under Louisiana law at the time

Congress enacted those statutes.

Further, as stated above, Alabama, Maryland,

Tennessee, and Texas also had one-year statutes of

limitations for personal injury tort actions in 1866 and

1871. It could not have escaped Congress’s attention

(and Congress is presumed to have known) that five of

the states had one-year statutes of limitations for

personal injury tort actions that, under Section 1988,

would apply to the federal civil rights claims it had

created that did not have their own statutes of

limitations.

24

Notably, all five of the states with one-year

limitations period for personal injury tort actions in

1866 and 1871 were former slave states, four of the

five had just rebelled against the Union, and

Tennessee was the birthplace of the Ku Klux Klan.

Those states and government officers in them were

among the original primary targets of Section 1983 –

making it even clearer that it could not have escaped

Congress’s attention that under Section 1988, these

one-year statutes of limitations would apply to Section

1983 claims.

Second, as set forth above, this Court has

applied Louisiana’s one-year general limitations

period for personal injury tort claims to Section 1983

claims arising from Louisiana since at least 1914. See

O’Sullivan, 233 U.S. at 321-325. The Court has also

applied borrowed one-year limitations periods to

federal civil rights claims in multiple other cases

without ever suggesting that doing so was

“inconsistent with the Constitution and laws of the

United States” under Section 1988. See Johnson v.

Railway Express Agency, Inc., 421 U.S. 454, 462-467

(1975); Chardon v. Fernandez, 454 U.S. 6, 6-8 (1981);

Chardon v. Fumero Soto, 462 U.S. 650, 654-662

(1983).

In Wilson, this Court stated that it is “most

unlikely that the period of limitations

applicable to [general personal injury actions

sounding in tort under state law] ever was, or

ever would be, fixed in a way that would

discriminate against federal claims, or be

inconsistent with federal law in any respect.” Id.

at 279. (emphasis added).

25

As set forth above, at the time Wilson was

decided in 1985, Louisiana, Tennessee, Kentucky,

California, and Puerto Rico all had one-year statutes

of limitations for personal injury tort actions. Thus, in

so holding in Wilson, it could not have escaped the

Court’s attention that this holding applied to one-year

statutes of limitations in five jurisdictions that, at the

time, encompassed a population of over 39 million

people.7

Further, since the Court’s decisions in Wilson

and Owens in 1985 and 1989, it has become even

clearer that the one-year limitations period applies to

Section 1983 claims in Louisiana. Congress could have

changed this result at any time if the Court had

interpreted Sections 1988 and 1983 incorrectly. See

Kimble v. Marvel Entertainment, LLC, 576 U.S. 446,

456 (2015).

But Congress did not do so. In fact, as stated

above, Congress rejected a uniform, retroactive fouryear federal statute of limitations for Section 1983

claims. Instead, Congress enacted Section 1658,

“leav[ing] in place the ‘borrowed’ limitations periods

for pre-existing causes of action” like Section 1983

claims. Jones, 541 U.S. at 382.

Congress is presumed to be aware that this

meant the continued application of one-year

limitations periods to Section 1983 claims in the

jurisdictions that have such limitations periods. See

U.S. Census Bureau,

https://www2.census.gov/prod2/statcomp/documents/1991-02.pdf

(Table No. 26, “Resident Population” by state) (last accessed

Aug. 10, 2024).

7

26

Hall, 566 U.S. at 516. As such, “the unmistakable

implication” of Congress’s enactment of Section 1658

after Wilson and Owens “is that Congress embraced

[Wilson and Owens’s] holding[s],” approving the

application of borrowed state limitations periods to

Section 1983 claims, including one-year periods in

jurisdictions with one-year limitations periods for

personal injury tort actions. Bartenwerfer v. Buckley,

598 U.S. 69, 81 (2023); see Jones, 541 U.S. at 382.

Third, applying a one-year limitations period to

Section 1983 claims does not eliminate the ability to

assert such claims. Instead, it merely imposes a

deadline by which a plaintiff must assert such claims.

This Court has recognized both (1) the

importance of state statutes of limitations and the

substantive policies served by them; and that (2)

Congress deems such policies important by deferring

to state law for statutes of limitations for federal civil

rights claims in Section 1988. See Bd. of Regents of

Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487488 (1980) (“Statutes of limitations . . . have long been

respected as fundamental to a well-ordered judicial

system”); Wilson, 471 U.S. at 271 (“A federal cause of

action brought at any distance of time would be utterly

repugnant to the genius of our laws.”) (internal

quotations and citations omitted); Felder v. Casey, 487

U.S. 131, 139-140 (1988) (“Because statutes of

limitation are among the universally familiar aspects

of litigation considered indispensable to any scheme of

justice, it is entirely reasonable to assume that

Congress did not intend to create a right enforceable

in perpetuity,” so the Court has long applied state

statutes of limitations to federal civil rights claims

27

that do not have their own limitations periods under

Section 1988).

If completely extinguishing a timely-filed

Section 1983 claim pursuant to a state law governing

survival of actions is not inconsistent with Section

1983, then merely imposing a one-year statute of

limitations to file a Section 1983 action cannot be

inconsistent with Section 1983. See Robertson, 436

U.S. at 591-593; see also Hardin v. Straub, 490 U.S.

536, 544 (1989) (though state tolling provisions for

statutes of limitations also apply to Section 1983

claims, if a state does not have a tolling provision

applicable to toll the statute of limitations for claims

by prisoners while incarcerated, that is not

inconsistent with Section 1983); Pet App. 12a-13a.

Fourth, Congress has itself enacted a one-year

statute of limitations for certain federal civil rights

claims in Section 1986. Section 1986 claims are

complex, because they require (1) a violation of a

federal civil right, (2) a conspiracy of persons to engage

in the violation, and (3) an individual who has the

power to stop or help stop the conspiracy and knows of

the conspiracy but fails to stop or help stop it. See

Galloway v. State of La., 817 F.2d 1154, 1159 n.2 (5th

Cir. 1987). Thus, Section 1986 claims are much more

complex than any Section 1983 claim, because they

require proof of both a violation of a federal civil right

(as any Section 1983 claim requires) and two

additional, complex elements over and above the

violation of the right itself.

Nonetheless, Congress set a one-year

limitations period for such claims. If Congress set a

28

one-year limitations period for filing much more

complex federal civil rights claims than Section 1983

claims, Louisiana’s one-year limitations period is not

so short that it is “inconsistent with the Constitution

and laws of the United States” under Section 1988

such that it cannot be applied to Section 1983 claims.

As discussed above, multiple Supreme Court justices

and federal circuit courts have agreed. See Burnett,

468 U.S. 61 (Rehnquist, J., concurring); McDougal,

942 F.2d at 673; Blake, 997 F.2d at 751; Woods, 710

F.3d at 767; Okure, 816 F.2d at 52-53 (Van

Graafeiland, J., dissenting); see also Jones & Preuit,

876 F.2d at 1484.

Brown may argue that Section 1986’s one-year

statute of limitations does not have any bearing on

whether a one-year limitations period is “inconsistent

with the Constitution and laws of the United States”

under Section 1988 such that it cannot be applied to

Section 1983 claims. Brown may so argue because

what is now Section 1986 was the ultimate result of

debate and compromise over the proposed Sherman

Amendment to the Ku Klux Klan Act of 1871.8

But this argument does not make sense. A oneyear limitations period apparently was the shortest

period that competing factions in Congress found

acceptable for Section 1986 claims after extensive

debate and compromise. Thus, the fact that the oneyear limitations period in Section 1986 was a product

of extensive debate and compromise actually supports

Cong. Globe, 42nd Cong., 1st Sess. 819-820 (1871),

https://www.congress.gov/congressional-globe/congress-42session-1-part-2.pdf (last accessed Aug. 10, 2024).

8

29

the conclusion that “at least a 1-year period is

reasonable” for federal civil rights claims, including

Section 1983 claims that are substantially less

complex than Section 1986 claims. Burnett, 468 U.S.

at 61 (Rehnquist, J., concurring).

Fifth, the reality of Section 1983 litigation in

federal courts in Louisiana also disproves Brown’s

argument. The dockets of all three federal district

courts in Louisiana and the Fifth Circuit are filled

with Section 1983 actions that, unlike the instant

action, were filed within the applicable limitations

period. Many of those cases involve allegations of

excessive force by law enforcement officers. Section

1983 actions by incarcerated prisoners are so plentiful

in Louisiana’s three federal district courts that they

have adopted multiple specific rules, forms, and

procedures to address the volume of such cases in an

efficient manner.9 Congress itself recognized this fact

by enacting the Prison Litigation Reform Act (“PLRA”)

See W.D. La. Local Rules 3.2 and 73.2.1 at

https://www.lawd.uscourts.gov/local-rules (last accessed Aug. 10,

2024); see https://www.lawd.uscourts.gov/local-forms (last

accessed Aug. 10, 2024).

9

See E.D. La. Local Rules 16.1 and 73.2(a) at

https://www.laed.uscourts.gov/sites/default/files/local_rules/2022

%20CIVIL%20RULES%20LAED%20w%20Amendments%203.1.

22.pdf (last accessed Aug. 10, 2024); see

https://www.laed.uscourts.gov/sites/default/files/forms/1983.pdf

(last accessed Aug. 10, 2024).

See M.D. La. Local Rules 5(d) and 16(a) at

https://www.lamd.uscourts.gov/sites/default/files/pdf/2019Local

Rules.pdf (last accessed Aug. 10, 2024); see

https://www.lamd.uscourts.gov/sites/default/files/1983COMPLA

INTFORM-REVISED2014.pdf (last accessed Aug. 10, 2024).

30

in 1996, which was expressly intended to curtail the

volume of Section 1983 litigation by prisoners across

the country. See Woodford v. Ngo, 548 U.S. 81, 84

(2006).

Thus, the fact that there is a high volume of

Section 1983 claims in federal courts in Louisiana

despite the application of Louisiana’s one-year

limitations period rebuts any notion that a one-year

limitations period is inadequate for Section 1983

claims. Congress’s adoption of a statute that imposes

additional procedural burdens upon incarcerated

individuals who wish to file Section 1983 claims also

disproves Brown’s assertion that procedural burdens,

even onerous ones like those imposed under the PLRA,

are inconsistent with Congress’s intent for Section

1983 claims.

Brown and his amici’s arguments about how

purportedly difficult it is to prepare and file civil rights

lawsuits and to obtain counsel willing to do so are

exaggerated. These arguments ignore numerous facts

that undermine their claims.

Brown and his amici ignore the provision in

Section 1988 allowing for the recovery of attorneys’

fees for prevailing parties in Section 1983 litigation.

This provision allows successful plaintiffs to almost

always receive an award of attorneys’ fees, while

successful defendants can only receive attorneys’ fees

awards for defending against frivolous claims. Thus,

Congress has provided plaintiffs a strong incentive to

file Section 1983 claims, with little risk of being held

liable for the defendant’s attorney’s fees. See Fox v.

Vice, 563 U.S. 826, 832-841 (2011).

31

Louisiana’s

tolling

provision,

the

jurisprudential doctrine of contra non valentem,

applies to Section 1983 claims. See Hardin, 490 U.S.

at 527-544; Burge v. Parish of St. Tammany, 996 F.2d

786, 788-789 (5th Cir. 1993). Though this doctrine

does not apply to Brown’s claim and Brown has not

attempted to argue that it does, it can provide Section

1983 plaintiffs with an extension of the limitations

period for their claims.

State public records laws provide plaintiffs with

access to numerous state and local government

records that can be used by plaintiffs in preparation

for filing a Section 1983 suit – both for obtaining facts

relevant to their claims and for obtaining the

identities of potential defendants. In Louisiana, for

example, the Louisiana Public Records Law (LPRL)

provides access to numerous records, with short

response deadlines for public entities to respond to

public records requests, summary proceedings for

resolving suits based on the LPRL, and available

awards of attorneys’ fees, costs, and damages for

requesting parties who prevail in recovering

improperly withheld materials in such suits. See La.

R.S. §§ 44:1(A)(2)(a), 44:32, 44:33, and 44:35.

Federal Rule of Civil Procedure 15(a)(1)

guarantees plaintiffs at least two chances to plead

their case against a defendant. FRCP 15(a)(2) also

provides for a liberal policy of permitting additional

amendments thereafter. See Foman v. Davis, 371 U.S.

178, 182 (1962). Brown and his amici’s arguments

regarding the purported difficulty of pleading Section

1983 claims ignore the fact that this liberal

amendment policy often provides plaintiffs numerous

32

opportunities to attempt to plead their case before a

court will make a final ruling on a defendant’s motion

testing the sufficiency of the complaint.

C. Stare decisis requires rejection of Brown’s

arguments and weighs against taking this

case.

As set forth above, the district court and the

Fifth Circuit correctly decided this case under this

Court’s existing, longstanding precedents that have

correctly interpreted Sections 1988, 1983, and 1658.

Accepting Brown’s arguments would require

overturning multiple precedents of this Court,

including but not limited to O’Sullivan, Robertson,

Burnett, Wilson, Felder, Owens, and Jones.

Because accepting Brown’s arguments would

require overturning the longstanding precedents of

this Court under which the lower courts decided this

case, stare decisis considerations are also relevant to

whether the Court should take this case.

i.

This case involves statutory stare

decisis, where the doctrine is

strongest.

The precedents that would be abrogated if

Brown’s arguments were accepted are statutory

precedents because they are interpretations of Section

1988, Section 1983, and Section 1658.

Stare decisis is at its strongest in this context.

Stare decisis “carries enhanced force when a decision .

. . interprets a statute [because] critics of [the Court’s]

ruling can take their objections across the street, and

Congress can correct any mistake it sees.” Kimble, 576

33

U.S. at 456. Under statutory stare decisis, the Court’s

decisions interpreting statutes “effectively become

part of the statutory scheme, subject (just like the rest)

to congressional change.” Id. Unless there is “special

justification [to overturn them], they are balls tossed

into Congress’s court, for acceptance or not as that

branch elects.” Id.

As stated above, the “ball” of the Court’s

borrowing precedents under Section 1988 was “tossed”

to Congress shortly after Wilson and Owens in the

form of the FCSC’s recommendation to do away with

those precedents. Id. But Congress expressly rejected

that recommendation and left those precedents in

place by enacting Section 1658. See Jones, 541 U.S. at

382.

ii.

The stare decisis factors weigh in

favor of denying the Petition and

maintaining existing precedent.

Under stare decisis, there are multiple factors

to consider in deciding whether to overturn precedent.

See Dobbs v. Jackson Women’s Health Org., 597 U.S.

215, 263-290 (2022).

The most important of these factors is the

reliance factor. See id. This factor asks whether

overturning precedent “would dislodge settled rights

and expectations,” such as when parties “have been

acting on the assumption that they are protected” by

existing precedent. Hilton v. S. Car. Pub. Railways

Com’n., 502 U.S. 197, 202-203 (1991).

The Court’s existing, longstanding “borrowing”

precedents under Section 1983 that require

application of Louisiana’s one-year prescriptive period

34

to Section 1983 claims in Louisiana have created

substantial reliance interests that would be disturbed

by overturning those precedents. Statutes of

limitations are “fundamental to a well-ordered judicial

system,” and they create “settled expectations that a

substantive claim will be barred without respect to

whether it is meritorious.” Tomanio, 446 U.S. at 487.

Congress agreed in rejecting a retroactive, uniform

four-year statute of limitations for Section 1983

claims. Again, Congress was concerned that doing so

“would threaten to disrupt the settled expectations of

a great many parties.” H.R. Rep. 101-734, at 24 (1990).

That led Congress to enact Section 1658 as a uniform

federal statute of limitations only for new claims and

leave in place borrowed state statutes of limitations

like Louisiana’s one-year statute of limitations for

Section 1983 claims under Wilson and Owens. See

Jones, 541 U.S. at 382.

Accepting Brown’s arguments would resurrect

old, stale claims that government entities and officers

have thought – with good reason – were time-barred.

See Harper v. Virginia Dept. of Taxation, 509 U.S. 86,

97 (1993) (the Court’s decisions must be given “full

retroactive effect” as to “all events, regardless of

whether such events predate or postdate [the Court’s

decision]”). This would lead to an influx of new,

previously time-barred Section 1983 litigation.

One consequence would be a major negative

effect on the ability of state and local governments to

accurately budget for the future and on their existing

budgets. Government entities often engage in detailed

budgeting processes for their projected potential

liability resulting from litigation. See, e.g., Newman

35

Marchive Partnership v. Hightower, 735 F. Supp. 2d

483, 488-490 (W.D. La. 2009) (describing the City of

Shreveport’s budgeting process for potential claims

and judgments).

Obviously, resurrecting up to three years of

Section 1983 claims that government entities

previously thought were time-barred would have a

negative impact on government budgeting processes

and reasonable expectations for potential litigation

liability for the hundreds of local government entities

in Louisiana and the many thousands of others across

the country in other states. Ultimately, taxpayers

would be forced to shoulder this unexpected burden,

and the sudden influx of new, unliquidated potential

liabilities for government entities would impair their

ability to perform their governmental functions. Of

course, such an influx of additional Section 1983

litigation would also impose a substantial burden on

the federal courts.

Another consequence would be the impairment

of individual government officers’ ability to perform

their jobs. Both the prospect of potential litigation

liability and the process of litigation itself result in

“distraction of officials from their governmental duties

[and] inhibition of discretionary action.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). These burdens

would be even greater in the context of claims

regarding which there were “settled expectations” that

such claims were time-barred. See Tomanio, 446 U.S.

at 487.

Accepting Brown’s position would also worsen

an existing retention and hiring crisis in the law

36

enforcement profession – a profession that already

faces the major retention and hiring deterrent that it

requires risking one’s life every day. According to a

2023 survey of law enforcement agencies across the

country by the Police Executive Research Forum, law

enforcement “agencies are losing officers faster than

they can hire new ones,” with resignations and

retirements of existing officers substantially spiking

in recent years.10 Subjecting officers to the burdens of

litigation and trial results in “deterrence of able people

from public service.” Mitchell, 472 U.S. at 526.

Accepting Brown’s arguments and generating an

influx of new Section 1983 litigation would exacerbate

this disturbing trend, to the detriment of public safety.

Accepting Brown’s argument that Section

1658’s four-year statute of limitations applies to all

Section 1983 claims would also result in the

immediate extinction of Section 1983 claims in the

three states (Maine, Missouri, and North Dakota) that

have general or residual limitations periods for

personal injury tort actions that are longer than four

years. Pet. App. 44a-48a; see Harper, 509 U.S. at 97.

Thus, any Section 1983 claimant in those states who

relied upon the Court’s longstanding precedents in

waiting to file suit until more than four years after

their claims accrued would have their claims

immediately extinguished.

There is no “special justification” for

overturning the statutory precedents of this Court on

Police Executive Research Forum, 2023 Membership Survey

Results (April 1, 2023), https://www.policeforum.org/staffing2023

(last accessed Aug.. 8, 2024).

10

37

which many parties (both potential plaintiffs and

potential defendants) have relied – particularly when

Congress has expressly decided to leave those

precedents in place. Kimble, 576 U.S. at 456; see Jones,

541 U.S. at 382.

CONCLUSION

Brown’s Petition should be denied.

Respectfully submitted,

James Ashby Davis

Counsel of Record

James R. Sterritt

COOK, YANCEY, KING & GALLOWAY, APLC

333 Texas St. Suite 1700

Shreveport, LA 71101

(318) 221-6277

ashby.davis@cookyancey.com

Counsel for Respondent Javarrea Pouncy

August 20, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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