United States Court of Appeals,

Fifth Circuit.

No. 92-3659.

Gerald BURGE, Plaintiff-Appellant,

v.

PARISH OF ST. TAMMANY, et al., Defendants-Appellees.

Aug. 2, 1993.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

DUHÉ, Circuit Judge:

Gerald Burge appeals the dismissal of his civil rights action. The district court concluded that

Burge's claims were prescribed by the applicable one-year statute of limitations. We conclude that

Appellant's pursuit of state habeas remedies tolled the prescriptive period. Accordingly, we reverse

and remand for further proceedings.

I.

Appellant was convicted of murder and sentenced t o life imprisonment. His counsel then

began an inquiry into the disappearance of the police file compiled during the murder investigation.

Burge's counsel had previously requested that any exculpatory evidence in the possession of the St.

Tammany Parish Sheriff's Office be disclosed so that Burge could prepare his defense. S ee Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Sheriff's Office replied that

there was no exculpatory evidence; later, it conceded that the police investigatory file was "lost or

misplaced."

The investigatory file was ultimately discovered. It contained statements from the decedent's

mother and others which cast serious doubt on Burge's guilt. Having previously exhausted his direct

appeals, Burge filed a petition in state court for post-conviction relief. This petition alleged that the

prosecution's failure to comply with the Brady rule impermissibly violated Burge's right to a fair trial.

The state court agreed, and ordered a new trial. In the second trial, Burge was acquitted.1 Although state law governs the limitations period and tolling exceptions, see discussion infra

at § II, federal law governs when a civil rights action accrues. Jackson v. Johnson, 950 F.2d 263,

265 (5th Cir.1992). Under federal law, such actions accrue "when the plaintiff knows or has

reason to know of the injury which is the basis of the action." Id. (internal citations omitted). In June 1991, Appellant fil ed a civil rights action against St. Tammany Parish, the St.

Tammany District Attorney's Office, the Sheriff's Office and Sheriff Patrick Canulette, and Detective

Gary Hale. 42 U.S.C. §§ 1983, 1985 (1981). The claims against the District Attorney's Office were

dismissed on the basis of prosecutorial immunit y. The remaining defendants moved to dismiss on the

basis of prescription, arguing that Burge's claims accrued, at the latest, on September 1, 1989, when

he filed his init

ial habeas corpus petition alleging a Brady violation. 1 Because there is no federal

statute of limitations f

o r § 1983 and 1985 actions, the district court applied Louisiana's liberative

prescription (statute of limitations) for tort actions. La.Civ.Code Ann. art 3492 (Supp.1992); s ee

Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989) (approving application of art. 3492 to § 1983

claim). The court held that Burge's claims were prescribed based on this one-year statute of

limitation.

II.

On appeal, Burge argues that the prescriptive period was tolled while he exhausted his state

remedies. This contention finds support in Fulford v. Klein, 529 F.2d 377 (5th Cir.1976), adhered

to en banc, 550 F.2d 342 (5th Cir.1977).

We hold that a § 1983 action for damages based on the withholding at tri al of possible

exculpatory evidence by state o fficials in viola tion of B rady v. Maryland

..., cannot be

prosecuted while the state case is on appeal and before all state remedies have been exhausted

in seeking relief from the conviction allegedly obtained in violation of the federal Constitution

and law.

529 F.2d at 378; s ee Serio v. Louisiana State Bd. of Pardons, 821 F.2d 1112, 1117 (5th Cir.1987).

Consistent with the practice of borrowing state statutes of limitations for § 1983 claims,

federal courts also look to state law for its tolling provisions. S ee Hardin v. Straub, 490 U.S. 536,

538-39, 109 S.Ct. 1998, 2000, 104 L.Ed.2d 582 (1989); J ackson v. Johnson, 950 F.2d 263, 265 (5th

Cir.1992). Accordingly, we must assess whether Louisiana law would hold the liberative prescription

period in abeyance pending the outcom e of Burge's state habeas proceedings. S ee id. (applying Texas2 See also Johnson v. Railw ay Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d

295 (1975). The Johnson Court held that timely filing an employment discrimination charge with

the Equal Employment Opportunity Commission did not toll the limitation period for filing a civil

rights (42 U.S.C. § 1981) action. The Court did acknowledge that state law could have provided

a tolling mechanism. However, no provisions in Tennessee's statutes were applicable. Id. at 463,

95 S.Ct. at 1721. law). 2

III.

"Prescription runs against all persons unless an exception is established by legislation." M inor

v. Casten, 521 So.2d 465, 467 (La.Ct.App.1988). However, Louisiana's jurisprudence recognizes

a limit ed exception to codified prescriptions: C ontra non valentem agere nulla currit praescriptio,

i.e. prescription does not run against a party who is unable to bring an action. P laquemines Parish

Comm'n Council v. Delta Dev. Co., 502 So.2d 1034, 1055-56 (La.1987); M inor, 521 So.2d at 467;

see also Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 907 (5th Cir.1985) (applying Louisiana

law). There are four recognized situations where the doctrine of contra non valentem might apply

to toll the prescriptive period:

(1) [W]here there was a legal cause which prevented the courts or their officers from taking

cognizance of or acting on the plaint iff's action; (2) where some condition coupled with the

proceedings prevented the creditor from suing or acting; (3) where the debtor has done an

act to prevent the creditor from using the cause of action; (4) where the cause of action is

not known or reasonably knowable by the plaint iff, even though he is not induced by the

defendant.

Minor, 521 So.2d at 467 (citing Corsey v. State Dep't of Corrections, 375 So.2d 1319 (La.1979);

Gover v. Bridges, 486 So.2d 1117 (La.Ct.App.), af f'd, 497 So.2d 1364 (La.1986)). It is the first

situation, prevention by a legal impediment, that guides the resolution of the instant dispute.

Burge could not have prosecuted his civil rights claim for damages against the Appellees until

he exhausted available state habeas remedies. Serio, 821 F.2d at 1117; F ulford, 529 F.2d at 378,

381, adhered to en banc, 550 F.2d 342 (5th Cir.1977). This was a "legal cause which prevented the

courts or their officers from taking cognizance of or acting on the plaint iff's action ." M inor, 521

So.2d at 467. Because he could not have prosecuted the § 1983 and § 1985 claims until the state

habeas proceedings were exhausted, Burge's June 1991 filing o f his civil rights claims was not3 On April 12, 1991 the Louisiana Supreme Court denied writs in the state proceeding. The

judgment which granted Burge's habeas relief was final at that time. However, Burge was

released from custody on July 13, 1990. At this time no further habeas relief, either from the state

or federal courts, was possible. Using either of these dates, it is evident that Burge's June 1991

filing of his civil rights actions was timely. prescribed. 3 S ee Rodriguez v. Holmes, 963 F.2d 799, 805 (5th Cir. 1992) (applying Texas tolling

provision, and noting that federal courts have equitable power to fashi o n tolling provisions in

exceptional circumstances); Jackson, 950 F.2d at 266 (Texas law).

While Burge may have been stymied in prosecuting his civil rights claims, he could have tolled

the prescriptive period by filing suit in federal court and simultaneously requesting that the action be

stayed pending the outcom e of his state proceedings. S ee, e.g., Jewell v. County of Nassau, 917 F.2d

738, 740-41 (2nd Cir.1990) (New York's statutory tolling provisions inapplicable; judicial stay was

"only means by which bar of limitations may be avoided.") (citing Board of Regents v. Tomanio, 446

U.S. 478, 486-87, 100 S.Ct. 1790, 1796-97, 64 L.Ed.2d 44 0 ) (1980)). We have recognized that

district courts retain discretion to t ake such a step to protect plaintiffs against the running of a

limitations period. See Borning v. Cain, 754 F.2d 1151, 1152-53 (5th Cir.1985); R ichardson v.

Fleming, 651 F.2d 366, 375 (5th Cir.1981); F ulford, 529 F.2d at 382, adhered to en banc, 550 F.2d

342 (5th Cir.1977). Nevertheless, in light of Louisiana's jurisprudential tolling mechanism discussed

above, we see no purpose in requiring this plaintiff to perform the hollow act of filing a premature

complaint pending the exhaustion of his state remedies.

IV.

Louisiana's liberative prescription period was tolled because Burge faced a legal impediment

which pr ecluded him from prosecuting his federal civil rights action. His § 1983 and 1985 claims

were, therefore, timely filed. We REVERSE the dismissal of his claims and REMAND the matter

for further proceedings.