Cross v. Lucius

• Decision Date: 02 September 1983
• Docket Number: No. 82-3159,82-3159
• Parties: V.L. CROSS, et al., Plaintiffs-Appellants, v. Howell K. LUCIUS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 153

713 F.2d 153

V.L. CROSS, et al., Plaintiffs-Appellants, v. Howell K. LUCIUS, et al., Defendants-Appellees.

No. 82-3159.

United States Court of Appeals, Fifth Circuit.

Sept. 2, 1983.

Paul Henry Kidd, Paul Kidd, Jr., Monroe, La., for plaintiffs-appellants.

Watson, Murchison, Crews, Arthur & Corkern, Arthur C. Watson, Natchitoches, La., Edgar Perkins, Jr., DeQuincy, La., Blanchard, Walker, O'Quin & Roberts, John T. Cox, Jr., Shreveport, La., for Lucius et al.

William J. Guste, Jr., Atty. Gen., Charles E. Welsh, Shreveport, La., for Guste, Burges and Pickett.

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

Before CLARK, Chief Judge, THORNBERRY and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

On appeal, the plaintiffs challenge the district court's dismissal of their case with prejudice for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, we affirm.

Because the district court dismissed this case under Fed.R.Civ.P. 12(b)(6), we must accept all of the plaintiffs' well-pleaded allegations as true and give them the benefit of all reasonable inferences for the purposes of this review. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983). The events giving rise to this litigation are already nearly half a century old. In the 1920s, R.J. Lucius, Jr., allegedly forged several deeds naming himself as vendee in the sale of the disputed land from the Cross ancestors. Most of the deeds carry the crudely affixed "x" marks of the vendors even though other official records show that the purported vendors knew how to write their names out in full. Four years later, in 1934, R.J. Lucius, Jr., caused the local sheriff to arrest a certain Irving Cross, who was the last of the plaintiffs' ancestors to live on the disputed property. Cross was handcuffed and allowed to languish in jail for five days until he and his family agreed to leave the property. After the passage of nearly fifty years, the descendants of R.J. Lucius, Jr., still occupy the disputed acreage.

Plaintiffs V.L. Cross and Rufus Cross, for themselves and on behalf of all of their similarly situated relatives, have sued six of the descendants of R.J. Lucius, Jr., (the "Lucius defendants") for $400,000 in damages and a declaration that the allegedly fraudulent deeds conveying the property from the Crosses to Lucius are null and void. The plaintiffs maintain that the wrongful deprivation of their ancestors' land was accomplished in violation of 42 U.S.C. §§ 1983, 1985(3) (Supp. V 1981). The plaintiffs have also requested declaratory and injunctive relief against Louisiana district court judges Burgess and Pickett, Louisiana Governor David Treen and Attorney General William Guste (the "state defendants") should the court find that the plaintiffs' action against the Lucius defendants is barred by the Louisiana prescriptive statutes. In that event, the plaintiffs asked the court to declare the statutes unconstitutional and to enjoin the Louisiana judges from enforcing the statutes without first appointing counsel to inquire into the circumstances which prevented the plaintiffs from bringing suit.

The district court dismissed the plaintiffs' action against the Lucius defendants on the ground that R.J. Lucius, Jr.'s descendants could not be held liable for his wrongful taking of the property from the plaintiffs' ancestors:

The only allegation is that defendants were denied their rights to equal protection under the law and to due process of law by Mr. R.J. Lucius Jr. when he took the subject property from the plaintiffs' ancestors in title .... Under no theory of law of which this court is aware may the descendants of Mr. Lucius be held liable for his actions.

Record at 64-65. In essence, the court concluded that the sins of the fathers would not be visited upon the children. ¹ In legal parlance, it concluded that the Cross ancestors' cause of action against the Lucius ancestor for his tortious conduct did not survive the deaths of the original parties. The problem with the court's approach, a problem caused at least in part by the plaintiffs' inartfully drawn pleadings, is in its assumption that this is indeed an action sounding in tort. The case may also be characterized as a suit by the Cross heirs about the present deprivation of their property. Viewed in this way, the suit is not a survivors' action at all, but an action analogous to the Louisiana petitory action to obtain recognition of the plaintiffs' ownership of the land. Cf. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (analogous state survivorship statute applied in section 1983 action as long as state statute is not inconsistent with federal policies). The Lucius descendants would be the proper defendants in such an action since they are in present possession of the land. La.Code Civ.Proc.Ann. art. 3651 (West 1961), amended by La.Code Civ.Proc.Ann. art. 3651 (Supp.1983). ²

The Lucius defendants requested dismissal of the plaintiffs' action on the ground that it was barred by the Louisiana prescriptive statutes, as well as on the grounds that there were no allegations of tortious conduct for which relief could be granted and that the complaint failed to state a claim upon which relief could be granted. Because the statute-of-limitations defense provides a more well-marked path to a resolution of this case, we have chosen to take that route rather than the district court's. ³ In so doing, however, we do not hold or mean to imply that the plaintiffs have stated a cause of action under 42 U.S.C. §§ 1983, 1985(3).

A statute-of-limitations defense may be raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(6), but the defense is subject to the traditional rule that the motion cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Abdul-Alim Amin v. Universal Life Insurance Co., 706 F.2d 638, 640 (5th Cir.1983) (quoting Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir.1977)). Because sections 1983 and 1985 contain no limitation provisions, we look to analogous state statutes to determine whether the action is time-barred, as long as application of the statutes is not inconsistent with federal policies. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). While we are again confronted with the difficulty of determining which state statute is analogous, we hold that the case is barred by the prescription statutes, regardless of which one is deemed to apply.

Under Louisiana law, an action for an "offense or quasi offense" against the person or property must be brought within one year. La.Civ.Code Ann. art. 3536 (West 1953); see, e.g., Madden v. Madden, 353 So.2d 1079 (La.App.1977) (wrongful seizure of personal property). Similarly, article 3536 requires a person to bring an action to "restore possession of the property" within one year, and the owner of land or other property "injured, cut, damaged or destroyed" has one year to bring an action from the "date knowledge of such damage is received." La.Civ.Code Ann. art. 3537 (West 1953). We have previously upheld the application of the general tort prescriptive statute, article 3536, supra, in a number of civil rights cases. See, e.g., Jones v. Orleans Parish School Board, 688 F.2d 342, 344 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2420, 76 L.Ed.2d ---- (1983) (job discrimination). Even if the plaintiffs could not have obtained a lawyer to represent them until the 1960s or 1975, as they allege in their complaint, if their action concerns R.J. Lucius' tortious conduct against the Cross ancestors, it would have prescribed under article 3536 irrespective of the applicability of the doctrine of contra non valentem, infra, since the plaintiffs did not file their action until June 9, 1981.

The plaintiff's claim could also be analogized to a petitory action for the recognition of ownership of the property. See art. 3651, supra. A party's ability to maintain a petitory action is governed by the "acquisitive" prescription statutes rather than the "liberative" prescription statutes. Article 3474 provides: "Immovables are prescribed for by ten years, when the possessor has been in good faith and held by a just title during that time." La.Civ.Code Ann. art. 3474 (West 1953 & Supp.1983). Article 3475 provides: "Immovables are prescribed for by thirty years without any title on the part of the possessor, or whether he be in good faith or not." La.Civ.Code Ann. art. 3475 (West 1953 & Supp.1983). If the plaintiff has not been in possession of the property for more than thirty years, his or her petitory action is "barred by effect of law" and should be dismissed. Montgomery v. Breaux, 297 So.2d 185, 187 (La.1974); but see Yount v. Copellar, 374 So.2d 726, 728 n. 1 (La.App.1979) (criticizing rule); Suire v. Primeaux, 363 So.2d 963, 967 (La.App.1978) (Culpepper, J., concurring) (same).

The plaintiffs argue, however, that the ancient rule that "statutes of limitation do not run against those incapable of acting" should apply, thereby tolling the running of the statutes. The gist of this argument is that blacks in northern Louisiana have been incapable of bringing suits against whites for the past fifty years because racial prejudice, allegedly built into northern Louisiana society, prevented them from obtaining financial backing and legal representation.

The Louisiana doctrine suspending the statutes of limitation for those incapable of acting--contra non valentem agere nulla currit praescriptio --generally applies only in extremely limited circumstances. Section 3521 of the Civil Code expressly provides that "[p]rescription runs against all persons, unless they are...