Opinion
CIVIL ACTION NO: 99-3742 C/W 99-2694, SECTION: "J"(5)
October 5, 2000
ORDER AND REASONS
Before the court is defendants' Peter Weil, Patricia Gomez, and Associated Moving Storage Company's ("the Associated defendants") motion to dismiss. plaintiff opposes the motion. The motion was originally set for hearing on briefs on June 21, 2000, but following a review of the pleadings, including the complaint, the Court determined that it was necessary for plaintiff to provide greater specificity concerning certain of his allegations, ordered him to do, and continued the motion until September 13, 2000, at which point the Court took the matter under advisement. Now, having reviewed the record, the memoranda of counsel, and applicable law, the Court finds that the defendants' motion should be GRANTED, for the reasons that follow.
FACTUAL BACKGROUND
Plaintiff's allegations stem from events in late February and early March 1997, when plaintiff, at that time working as an independent contractor/truck driver for Associated Moving Company ("Associated"), was en route to California in a loaded Associated moving van to make a delivery. Because of what the plaintiff described as "extraneous events," plaintiff was unable to meet the expected date of delivery. Following a telephone call placed by plaintiff to Associated on March 6, 1997, which concluded with Associated being uncertain as to plaintiff's whereabouts and the location of the company's vehicle, on March 7, 1997, Associated vice-president Gomez made a police report. The report was summarized by investigating officer Cavalier in the "Narrative" section of the report as follows:
On Friday, 03/07/97, at 11:17 a.m., Unit #709B, Cavalier took a report of a 67-A; (auto theft) from 7400 Townsend Place #G.
Upon arrival the officer spoke with Allied Moving's Vice-President of Customer Service, Patricia Gomez. She stated an employee, Malik Muhammad, had driven one of their trucks to California. She stated she spoke with him on 03-06-97 at about 11:00 a.m. He stated to her he was in Oakland, California, with the vehicles. He refused to give her any other information. He told her he would only speak with Peter Weil, another V.P. at the company.
The officer learned that Malik left with the truck and trailer on 02/07/97. He was to deliver the contents to a Toni Shapiro at 6696 Camino Real, Berkley, CA., on 02-14-97. He never arrived. At one point he spoke with Ms. Gomez and stated the truck was having engine trouble. That was why he was running late. Ms. Gomez states the truck was repaired and they began to page Malik but got no response for days until 03-06-97 at 11:00 a.m. He refused to tell Ms. Gomez why he did not deliver the contents of the truck to the owner. She asked him to just leave the truck, tell her where it was, and she would get another driver to pick it up. She told him whatever was going on, she just wanted the truck back. Malik refused. He only stated he was somewhere in Oakland. He would not make arrangements to give her the truck back. Ms. Gomez advised him that Peter Weil was out. At that time Malik hung up. The company has not heard from him since.
New Orleans Police Incident Report of 3/7/97, Rec. Doc. 18, Exh. 5, at 5.
Based on the report, Cavalier executed an affidavit to obtain an arrest warrant, and an arrest warrant was issued by a Criminal District Court judge in Orleans Parish that same day. Later that month, Associated recovered the vehicle. It appears from the record that the defendant abandoned the vehicle in California.
On March 13, 1998, a little over a year later, plaintiff was arrested in Virginia on an unrelated charge involving a domestic dispute. Noting the outstanding warrant in a background check, Virginia authorities detained plaintiff and contacted officials in Louisiana. Four days later, on March 17, 1998, plaintiff was given an extradition hearing, and then released on bond. On March 19, 1998, Assistant New Orleans District Attorney ("ADA") Melanie Talia assigned the plaintiff's file to then ADA Brad Naccari for his review, and on April 15, 1998, Talia approved Naccari's recommendation for plaintiff's extradition. On the same day, First ADA Tim McElroy signed an Application for Requisition seeking plaintiff's extradition, upon recommendation of the New Orleans Police Department. The Governor of Louisiana then issued the request for plaintiff's extradition, which was transmitted to the Governor of Virginia. On May 7, plaintiff received written notification from the State of Louisiana that he was to be extradited. Plaintiff surrendered to Virginia authorities on June 15, 1998 and was transported to Louisiana by defendant Transcor, the company with which the State of Louisiana had contracted for the extradition. Plaintiff's transfer to Louisiana by defendant Transcor took approximately two weeks, and on July 7, 1998, plaintiff arrived in New Orleans and was arraigned on an unauthorized use of a vehicle charge. He was released two days later and flew back to Virginia on July 10, 1998. The New Orleans district attorney refused the charges on December 10, 1998. Plaintiff learned of the refusal following entry of the refusal of charges on December 17, 1998.
While the original warrant charged plaintiff with theft in violation of La. R.S. 14:67, the New Orleans District Attorney's screening form classified the violation as unauthorized use of a vehicle. Rec. Doc. 21, Exh. 8.
PROCEDURAL HISTORY
On April 8, 1999, plaintiff filed suit in the United States District Court for the Eastern District of Virginia, Alexandria division, against Associated and its officer/employees, Peter Weil and Patricia Gomez, alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985 (3), and 42 U.S.C. § 1981, in addition to pleading several pendent state law claims. The gist of plaintiff's allegations is that Associated knowingly and maliciously filed a false police report, which initiated a conspiracy among all of the defendants to maliciously prosecute him, and to deprive him of his civil rights and commit various state law torts against him. It is plaintiff's contention that the defendants' actions amounted to a civil conspiracy, actionable under 42 U.S.C. § 1985 (3), that sought to discriminate against plaintiff based upon his race, actionable under 42 U.S.C. § 1983, 1981.
Also named as defendants were the State of Louisiana, Governor Murphy J. Foster, Attorney General Richard Ieyoub, Assistant Attorney General Mary Ellen Hunley, other unnamed Louisiana state personnel, the City of New Orleans, Mayor Marc Morial, District Attorney Harry Connick, Assistant District Attorneys Timothy McElroy, Camille Buras, Brad Naccari, Melanie Talleria [sic], investigator Lisa Marie, other unnamed City of New Orleans personnel, Criminal Sheriff Charles Foti, unnamed New Orleans police officers, Police Superintendent Richard Pennington, sheriffs M. Cooney and J. Beckmeyer, New Orleans police officers S. Cottrell and E. Dominick Cavalier, Transcor America, Inc. and Transcor employees John C. Zierdt, Jr. and Gene Fouts. All of the state and city employees were sued in both their individual and official capacities.
While the Complaint is captioned "Complaint for Damages for Violation of 42 U.S.C. § 1983 for Unlawful Arrest, Unlawful Extradition, False Arrest, Malicious Prosecution, Abuse of Process, and Conspiracy to Commit the Same, and for Declaratory and Injunctive Relief," in fact, the only § 1983 claims specifically alleged against these defendants are for violations of 42 U.S.C. § 1981 and 1985 (3). In response to the Court's order requesting specificity on plaintiff's claims, plaintiff averred that his malicious prosecution claim was being brought as a constitutional tort, which is therefore cognizable under § 1983;
Plaintiff's complaint alleges the following state law claims against all defendants: false arrest, false imprisonment, abuse of process, defamation, malicious prosecution, intentional infliction of emotional distress, and tortious interference with business relations.
On April 19, 1999, plaintiff attempted service on the Associated defendants. On July 14, 1999, the Virginia court granted the Associated defendants' motion to dismiss for lack of personal jurisdiction/motion to transfer case, and this matter was transferred to the Eastern District of Louisiana where it was docketed on September 2, 1999 as civil action 99-2694. On December 15, 1999, plaintiff ref lied suit against defendant Associated Moving Company and the other defendants in the Eastern District of Louisiana, in a civil action docketed as number 99- 3742, renewing his allegations made in the Virginia suit. On January 12, 2000, this court ordered that the cases be consolidated.
The Louisiana suit mirrors the Virginia suit, but does not name as defendants Charles Foti, Transcor, and Transcor employees Zierdt, Fouts, and Piere.
The Associated defendants have moved for dismissal, or in the alternative, for summary judgment, arguing that plaintiff's allegations fail to sufficiently state a claim against them, and also that plaintiff's claims are time-barred because plaintiff did not file suit until over a year from the date his cause of action accrued, and that no material facts existed to preclude a finding that Gomez' report to the police was accurate.
Plaintiff's opposes the motion, arguing that his claim has not prescribed because: (1) his initial filing in Virginia interrupted the limitations period, since his action accrued on the date he surrendered to authorities; and (2) plaintiff's action did not accrue until upon the district attorney refused the charges against him, on December 17, 1998, and thus his suit filed on December 5, 1999 is timely. For the sake of convenience, the Court considers each of plaintiff's federal claims in turn, followed by consideration of the pendent state law claims.
DISCUSSION
I. Federal claims A. Section 1985(3) claim
Plaintiff alleges that the defendants conspired to deprive him of his civil rights in violation of § 1985(3). The relevant allegation is as follows: "That the concerted actions of the Defendants brought about the false arrest, imprisonment[,] extradition and defamation of Plaintiff. That these concerted actions constituted a civil conspiracy in violation of 42 U.S.C. § 1985 (3), and 42 U.S.C. § 1983." Complaint, 99-3742, ¶ 388; see also Complaint, 99-2694, ¶ 478.
42 U.S.C. § 1985 (3) provides:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
Having been cautioned by the Court that this bare and conclusory allegation appeared insufficient to state a claim, in response to the Court's request for specificity, plaintiff provided the following:
Minute Entry of August 8, 2000, Rec. Doc. 33.
[I]t is plaintiff's position that it was the concerted actions of each and every defendant that ultimately brought about the arrest, incarceration and extradition of Mr. Muhammed. No one of these actors acting alone could have achieved the results that brought about the harm inflicted upon Mr. Muhammad. Specifically, upon information and belief, it was defendant Gomez that directly facilitated the arrest of Mr. Muhammad. Namely, defendant Gomez made the allegations to the police and it is plaintiff's belief that Gomez made the allegations because she has a spouse or boyfriend on the New Orleans Police Department. It was this relationship that allowed the charges to be brought and furthered the malicious prosecution of Mr. Muhammed. Plaintiff . . . should be allowed to conduct discovery and explore this relationship, and what if any impact it had on a conspiracy between the Associated Moving Storage defendants and the New Orleans Police Department defendants.
Plaintiff's Brief in Response, 5.
To state a cause of action for a conspiracy between private defendants (like the Associated defendants), and public defendants, to deprive someone of civil rights, a plaintiff "must allege facts that suggest: 1) an agreement between the private and public defendants to commit an illegal act, Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982), and 2) an actual deprivation of constitutional rights, Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir. 1984). Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189 (1994); see also Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999).
Notwithstanding the fact that plaintiff's two complaints number 487 and 395 paragraphs respectively, and that plaintiff was granted the opportunity to provide more specificity in support of his § 1985(3) claim, plaintiff's pleading with respect to his conspiracy claim is defective because he has entirely failed to allege an essential element of the claim — facts suggesting an agreement, either tacit or express, to deprive him of his rights. While plaintiff has alleged that the combined actions of several individuals or entities were required to bring about the deprivation he complains of, in the absence of any agreement between the alleged conspirators, that is not enough to support a conspiracy claim. A conspiracy requires that the individuals involved intended to bring about a specific event through their actions and coordinated them accordingly. Cinel v. Connick, supra; see also, Kerr v. Lyford, supra.
The closest thing that plaintiff alleges in this regard is to speculate that one of the private defendants may somehow be related to a New Orleans police officer, and if so, this somehow facilitated the alleged injury to plaintiff. The allegation that "this relationship . . . allowed the charges to be brought" implies that the speculative relationship was a "but/for" cause of his alleged injuries. In addition to the fact that the allegation is flawed because it rests on a speculative premise (a possible relationship between an Associated employee and a New Orleans police officer), this allegation is impermissibly conclusory. It is well-settled that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993) Thus, plaintiff's recitation of the legal conclusion that "this relationship . . . allowed the charges to be brought" will not suffice to withstand dismissal of the conspiracy claim.
Further, the Court observes that the allegations recited above comprise the entirety of plaintiff's § 1985(3) allegations against all of the defendants, and that they do not attribute any specific acts to any of the other defendants. "A District Court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of the moving defendants . . ." Silverton v. Dept. of the Treasry, 644 F.2d 1341, 1345 (9th Cir. 1981). Accordingly, the reasoning requiring dismissal of the conspiracy claim against the Associated defendants requires the dismissal of the conspiracy claims as to all defendants.
B. Section 1981 claim
Plaintiff has also filed suit against these defendants under 42 U.S.C. § 1981. To state a prima facie case under § 1981, "the plaintiff must show that (1) he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute." Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997).
42 U.S.C.A. § 1981 provides as follows:
Equal rights under the law
(a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) "Make and enforce contracts" defined For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
In support of his 1981 claims, plaintiff has made the following allegation: "That the plaintiff is a black male, and the Defendants are of the Caucasian race, with the exception of the Mayor and Superintendent of Police. That due to and because of the Plaintiff's race, Defendants maliciously and intentionally falsely arrested, extradited, imprisoned and defamed the Plaintiff, all in violation of his rights." Complaint, 99-3742, ¶ 390. This allegation mirrors that made in the transferred Virginia action. Complaint, 99-2694, ¶ 481.
Because the Court considered this allegation inadequate to support the § 1981 claim, it ordered plaintiff to furnish more specific allegations in support of his race discrimination claim. The plaintiff replied by memorandum as follows: "Concerning the discrimination count brought pursuant to 42 U.S.C. § 1981, the Plaintiff would ask this Court for latitude to present evidence obtained through discovery. Plaintiff asserts that Mr. Weil has been known to file charges against other African Americans who has (sic) become disgruntled about concerning the work relationship." Rec. Doc. 38, Plaintiff's Brief in Response, 5. In addition to the fact that these conclusory allegations entirely fail to state a claim, the Court finds that with respect to the Associated defendants, they are prescribed.
1. Prescription
No statute of limitations is provided in 42 U.S. § 1981. However, when a federal statute provides for a cause of action but offers no specific statute of limitations, federal courts generally look to state law for an analogous statute of limitations period, usually that for personal injuries. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985);Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Under Louisiana state law, a plaintiff has one year from the time an action accrues to bring a personal injury suit. La. Civ. Code art. 3492. Thus, the applicable limitations period for plaintiff's § 1981 claim is one year.
Deciding when the limitations period actually begins to run, however, remains governed by a federal standard. Simply stated, under federal law, an action accrues when a plaintiff has actual or constructive knowledge of the injury he alleges to be caused by the defendant. Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1986). An action brought after the expiration of the limitations period will be dismissed as prescribed, assuming the limitations period has not been interrupted or tolled.
With respect to plaintiff's § 1981 discrimination claim against the Associated defendants, the Court finds that it accrued on March 17, 1998, the date he was released on bond in Virginia following his arrest arising out of the domestic dispute. At that time, the Court finds that the plaintiff was in a position to know of the facts underlying his § 1981 claim, because he knew or should have known of the Louisiana arrest warrant, and that it was based upon a report made by the Associated defendants, which plaintiff alleges was racially motivated. Accordingly, suit on this claim must have been filed not later than March 17, 1999, unless the limitations period was tolled.
The only action taken by the Associated defendants in connection with this lawsuit was the filing of the police report in March, 1997, which plaintiff necessarily had knowledge of in March, 1998. Because the Court has already found that plaintiff has failed to state a conspiracy claim, there is no question that an overt act by some other defendant at a later date could be imputed to the Associated defendants with the result that the running of the statute of limitations would begin later.
Plaintiff argues that his April 8, 1999 filing in the Eastern District of Virginia tolled the limitations period. Under Louisiana state law, in order to adequately toll a limitations period, plaintiff must either file within the allotted time period in a court of competent jurisdiction or venue or serve the defendant within that period. La. Civ. Code art. 3462. The Virginia court found that personal jurisdiction was lacking over the Associated defendants, therefore, suit against them was not filed in a court of competent jurisdiction. Moreover, because plaintiff did not file suit until April 8, 1999, it could not have been served upon the Associated defendants during the one year limitations period. Thus, the filing of the Virginia suit did not toll the running of the prescriptive period — indeed, plaintiff's suit had prescribed even before that suit was filed — and plaintiff's subsequent suit, filed on December 15, 1999 was filed nine months beyond the prescriptive period. Accordingly, defendants Gomez, Weil, and Associated are entitled to dismissal with prejudice of plaintiff's § 1981 claims.
The record reflects that Gomez was personally served on April 14, 1999. However, instead of personal or domiciliary service on Weil, service was attempted by serving Gomez at Weil's place of work. Even if the attempted service was timely, this does not meet the requirements of La. Code Civ. P. art. 1234, which requires domiciliary service to be made at the domiciliary establishment. Service on Associated was also attempted by serving Gomez; however, Associated had designated Weil as its registered agent for service of process, so that too, was ineffective. La. Code Civ. P. art. 1261.
2. Failure to State a Claim
Moreover, even if timely, the Court finds that the claims must be dismissed under Rule 12(b)(6) for failure to state a claim. In addition to the fact that plaintiff has failed to allege an essential element of the claim because he has not specifically alleged discrimination concerning an activity enumerated in the statute, the allegations of race discrimination are conclusory and not supported by any facts. When asked to provide specificity on this issue, plaintiff requested time for discovery to unearth facts, stating that he has heard that defendant Weil has filed charges, in the past, against other African-Americans.
Plaintiff's Brief in Response, 5.
Under Rule 8(a), a plaintiff must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." While the lenient Rule 8 standard requires only that a plaintiff set forth a generalized factual statement sufficient for a defendant to be able to frame a responsive pleading, and while as commentators have observed, it is the rare case indeed when this liberal standard is not met — the instant action provides an example of that rare case.
See 5A WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1357 at 323 (West 1990)
Plaintiff's conclusory allegations that he was discriminated against because he is black, some defendants are white, and that he has heard one defendant has filed charges against blacks in the past, are woefully inadequate to state a § 1981 claim. Fernandez-Montes v. Allied Pilots Association, 987 F.2d 278, 284 (5th Cir. 1993). Further, the Court declines to grant plaintiff additional time to conduct a fishing expedition to develop a discrimination case when he has not been able to state one in two complaints, numbering 487 and 395 paragraphs, and was granted the opportunity to replead after being specifically alerted to the deficiencies in his pleadings. Accordingly, in addition to the fact that plaintiff's 1981 claims are prescribed, he has entirely failed to state a claim, and the claims are also subject to dismissal on that ground. As with his § 1985(3) claim, the § 1981 allegations addressed herein comprise the entirety of the § 1981 allegations made against all defendants, and the reasoning requiring dismissal of the claim against the Associated defendants mandates dismissal of the claim against all defendants.
The Court notes that plaintiff's memorandum does not even allege the other charges were wrongfully filed. As will be borne out by this order, it is simply not illegal to file charges against an individual who has violated the law.
C. Section 1983 Malicious Prosecution claim
Plaintiff also alleges a claim against the Associated defendants for malicious prosecution. Because malicious prosecution implicates Fourth Amendment rights, it is actionable under § 1983. Piazza v. Mayne, 217 F.3d 239, 245 (5th Cir. 2000). Nevertheless, upon review of plaintiff's complaints, it was unclear to the Court whether he was alleging his malicious prosecution under state law or as a federal constitutional tort. In his Brief in Response, plaintiff stated that plaintiff's malicious prosecution claim is indeed brought as a constitutional tort, pursuant to 42 U.S.C. § 1983. The Court addresses it as such.
While the complaints alluded to the malicious prosecution claim solely as a pendent common law claims, plaintiff's initial opposition to defendants' motion to dismiss made reference to a line of cases discussing malicious prosecution as a constitutional tort.
1. Prescription
A malicious prosecution claim does not accrue until there has been a final disposition of the charges against the plaintiff in the criminal action. Evans v. Ball, 168 F.3d 856 (5th Cir. 1999). In this case, the District Attorney's refusal of charges was entered on December 17, 1998. Accordingly, his malicious prosecution claim would not have prescribed until December 17, 1999. Thus, plaintiff's suit filed on December 5, 1999 is timely.
2. Summary judqment
In considering a § 1983 claim for malicious prosecution, the Court looks to state law. Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999) (defining malicious prosecution under Texas state law). Under Louisiana law, a plaintiff must establish the following elements to state a claim for malicious prosecution:
(1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff.Piazza, 217 F.3d at 245, citing Miller v. East Baton Rouge Parish Sheriff's Dept., 511 So.2d 446, 452 (La. 1987).
"Chief among these elements is the requirement that the plaintiff must sustain the burden of proof that the criminal proceeding was initiated or continued without probable cause." Miller, 511 So.2d at 452. Because the Court finds that probable cause existed for the proceedings against plaintiff, defendants are entitled to summary judgment on plaintiff's malicious prosecution claim.
While the Associated defendants' alternative motion for summary judgment does not address the probable cause issue, in its Minute Entry of August 8, 2000, in which the Court required plaintiff to come forward with more specific allegations in support of his claims, the Court "tilted its hand" and indicated that it appeared that plaintiff could not withstand summary judgment on probable cause, and directed plaintiff to point to any factual or legal bases which would indicate otherwise. Accordingly, plaintiff has had adequate notice and an opportunity to demonstrate why summary judgment should not be granted, and the Court may therefore grant summary judgment on this issue in the absence of a Rule 56 motion by a party. See 10A WRIGHT, KANE MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2720 at 339 (West, 1998)
"Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense." Id., citing Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, (1964) (further citations omitted). It is not required that the belief that an offense was committed be correct or more likely true than false; rather, for probable cause to be found to have existed, a court need only determine that there was a basis for an officer to believe to a "fair probability" that a violation occurred. Piazza, 217 F.3d 239, 245-46. "To the extent that the underlying facts are undisputed, we may resolve questions of probable cause as questions of law." Id. at 246.
In this case, considering the facts as reported in the Narrative section of the police report, the conclusion by Officer Cavalier that a crime had been committed or was being committed was entirely reasonable. In fact, even in his "Statement of Material Facts in Dispute," plaintiff has not denied that, without authorization, he commandeered Associated's moving truck and its contents and abandoned it in California, refusing to either return the vehicle or to let the rightful owner know of its exact whereabouts. Thus, not only does it appear reasonable for Officer Cavalier to assume a crime had been committed, hindsight bears out that a crime had in fact occurred.
plaintiff in his memoranda quibbles over the distinction between theft of a vehicle and unauthorized use of a vehicle, apparently suggesting that the police report was false and the warrant invalid because it charged him with theft rather than unauthorized use when he did not intend to permanently deprive Associated of its vehicle. However, the probable cause inquiry does not focus on what plaintiff's subjective intentions were at the time the police report was made and the warrant issued, but on the "facts and circumstances within the knowledge of the arresting officer of which he has reasonable and trustworthy information." Miller, 511 So.2d at 452. At the time Gomez made the report to the police, she did not know that Muhammad was going to abandon the truck — to the contrary, when she told him she wanted the truck back, he refused, stating he was somewhere in Oakland and would not make arrangements to return the truck. Likewise, at the time Officer Cavalier made out his affidavit in support of the warrant, he had no way of knowing plaintiff's plans for the vehicle. The reasonable and trustworthy information (which later turned out to be entirely true) available to Officer Cavalier suggested that plaintiff had committed a crime (which he had in fact done). Accordingly, the Court finds that at the time the warrant was issued, probable cause existed for plaintiff's arrest. Thus, "the record does not establish that the prosecution was wanting in probable cause, nor does it establish a genuine, material factual dispute regarding this element." Kerr, 171 F.3d at 340. Therefore, the Court finds that on the undisputed facts of this case plaintiff cannot demonstrate a required element of his malicious prosecution claim, and the Associated defendants are entitled to summary judgment on this claim. Because plaintiff has alleged a § 1983 malicious prosecution claim against all defendants based on the same arrest warrant, the Court finds that the remaining defendants are also entitled to summary judgment on this issue.
II. State claims
In addition to the federal claims, plaintiff has alleged state law claims for false arrest, false imprisonment, abuse of process, defamation, malicious prosecution, intentional infliction of emotional distress, and tortious interference with business relations. Since all of the state claims are delictual in nature, they are subject to the statute of limitations for personal injury actions, and must have been filed within a year of their accrual. La. Civ. Code art. 3492.
With the exception of plaintiff's malicious prosecution claim, all of plaintiff's claims accrued upon plaintiff's release from custody on March 17, 1998. The only allegedly wrongful action taken by the Associated defendants occurred on March 7, 1997, when the police report was filed. Upon his release from custody following arrest for the theft charge, plaintiff was on notice of facts required to state his claims against the Associated defendants for abuse of process, false arrest, false imprisonment, intentional infliction of emotional distress, and tortious interference with business relations. While the ill effects of the police report may have continued beyond that date, the statute of limitations is triggered not by the cessation of ill effects, but by the cessation of the unlawful act(s). "A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act."Crump v. Sabine River Authority, 737 So.2d 720, 728 (La. 1999)
With respect to plaintiff's state malicious prosecution claim, applying state law to the federal claim, the Court has already found that all of the named defendants are entitled to summary judgment, since probable cause existed for issuing the arrest warrant. Accordingly, the defendants are likewise entitled to summary judgment on plaintiff's state law malicious prosecution claim. Therefore;
IT IS ORDERED that the Associated defendants' Motion to Dismiss and/or for Summary Judgment (Rec. Doc.18) is hereby GRANTED, and plaintiff's claims against Peter Weil, Patricia Gomez, and Associated Moving Company, in civil actions 99-2694 and 99-3742, should be and are hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that plaintiff's claims brought pursuant to 42 U.S.C. § 1985 (3), in civil actions 99-2694 and 99- 3742, against all defendants should be and are hereby DISMISSED with prejudice; IT IS FURTHER ORDERED that plaintiff's claims brought pursuant to 42 U.S.C. § 1981, in civil actions 99-2694 and 99-3742, against all defendants should be and are hereby DISMISSED with prejudice;
Because the Court's order requiring greater specificity essentially granted plaintiff the opportunity to replead, the Court finds that the 12(b)(6) dismissal of this claim should be with prejudice. See 5A WRIGHT MILLER, FEDERAL PRACTICE PROCEDURE, § 1357 at 367 (West, 1990)
IT IS FURTHER ORDERED that plaintiff's claims for malicious prosecution brought pursuant to 42 U.S.C. S 1983, in civil actions 99-2694 and 99-3742, against all defendants should be and are hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that plaintiff's pendent state law claim for malicious prosecution, in civil actions 99-2694 and 99-3742, against all defendants should be and are hereby DISMISSED with prejudice;