Filed: Jun. 01, 2017
Latest Update: Jun. 01, 2017
Summary: ORDER AND REASONS SUSIE MORGAN , District Judge . Before the Court is a motion to dismiss for failure to state a claim filed by Anthony Giovingo. 1 The Plaintiffs did not file an opposition to the motion to dismiss. For the following reasons, the motion to dismiss is GRANTED. In their complaint, the Plaintiffs make claims under 42 U.S.C. 1983 against "Anthony G," a deputy with the St. John the Baptist Parish Sheriff's Office, in his official capacity. 2 On January 5, 2017, a member
Summary: ORDER AND REASONS SUSIE MORGAN , District Judge . Before the Court is a motion to dismiss for failure to state a claim filed by Anthony Giovingo. 1 The Plaintiffs did not file an opposition to the motion to dismiss. For the following reasons, the motion to dismiss is GRANTED. In their complaint, the Plaintiffs make claims under 42 U.S.C. 1983 against "Anthony G," a deputy with the St. John the Baptist Parish Sheriff's Office, in his official capacity. 2 On January 5, 2017, a member o..
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ORDER AND REASONS
SUSIE MORGAN, District Judge.
Before the Court is a motion to dismiss for failure to state a claim filed by Anthony Giovingo.1 The Plaintiffs did not file an opposition to the motion to dismiss. For the following reasons, the motion to dismiss is GRANTED.
In their complaint, the Plaintiffs make claims under 42 U.S.C. § 1983 against "Anthony G," a deputy with the St. John the Baptist Parish Sheriff's Office, in his official capacity.2 On January 5, 2017, a member of the clerical staff at the St. John the Baptist Parish Sheriff's Office accepted service for Deputy Anthony G, believing the defendant to be a current employee, Anthony Giovingo.3
The Plaintiffs allege "St. John the Baptist Parish Sheriff's Office Detective Maurice Rodrigue along with Detective Vernon Bailey, [and Deputy] Anthony G . . . executed a search warrant of plaintiff, Shawanda Nevers Alex, and [her] husband Daryl Alex['s] dwelling."4 The Plaintiffs further allege defendant "Anthony G" "violated Code of Criminal procedure art. 18:06" because "the warrant was executed 2 months after the Judge sign [sic] the warrant."5
Deputy Giovingo argues he is not the person identified as "Deputy Anthony G" in the Plaintiffs' complaint, and therefore should be dismissed from this action.6 Deputy Giovingo further argues any Section 1983 claims against him are barred by the applicable prescriptive period.
Section 1983 cases are governed by the prescriptive period for personal injury actions of the state in which the conduct occurred.7 Louisiana Civil Code article 3492 provides that delictual actions are subject to a liberative prescription period of one year.8 The Plaintiffs allege Deputy Anthony Giovingo illegally executed a search warrant on June 19, 2014.9 Therefore, the Plaintiffs must have brought their Section 1983 claims against Deputy Anthony Giovingo on or before June 19, 2015. The Plaintiffs, however, did not file suit until December 9, 2016.10 As a result, the Plaintiffs' claims against Deputy Anthony Giovingo have prescribed.
Accordingly, the Plaintiffs' claims under 42 U.S.C. § 1983 against Deputy Anthony Giovingo are hereby DISMISSED WITH PREJUDICE, and Deputy Anthony Giovingo is dismissed as a defendant in this action.
