Davis v. Louisiana State University
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-3383,88-3383 |
| Parties | 54 Ed. Law Rep. 118 Veronica DAVIS, Plaintiff-Appellant, v. LOUISIANA STATE UNIVERSITY, et al., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Veronica Davis, Columbia, Tex., pro se.
Albert Dale Clary, James E. Moore, Shelby McKenzie, Baton Rouge, La., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Louisiana.
Before GEE, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
Veronica L. Davis sued Louisiana State University, its Board of Supervisors, and various individual defendants, alleging various civil rights claims pursuant to 42 U.S.C. Secs. 1981, 1982, 1983, and 1985. Davis also alleged pendent state law claims. Her claims arise out of her expulsion from Louisiana State's graduate program in psychology.
Davis originally filed her suit in the Eastern District of Texas, but, on the defendants' motion, the suit was transferred to the Middle District of Louisiana. Defendants sought summary judgment on the ground that Davis's action was prescribed by Louisiana's one-year statute of limitations. The district court granted summary judgment, and Davis appeals. She contends that the Texas, rather than the Louisiana, statute of limitations should apply; that Louisiana's one-year prescriptive period is inapplicable even if Louisiana law applies; that she has alleged a continuing tort, so that the one-year prescriptive period will not bar the suit even if that period applies; and finally, that the district court should have permitted her to amend her complaint to allege additional federal claims not barred by the one-year period. Finding no merit in any of these arguments, we affirm.
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There is no federal statute of limitations covering Sec. 1983 claims. The Supreme Court has observed that "Title 42 U.S.C. Sec. 1988 endorses the borrowing of state-law limitations provisions where doing so is consistent with federal law." Owens v. Okure, --- U.S. ----, 109 S.Ct. 573, 576, 102 L.Ed.2d 594 (1989). This Circuit's law appears to contain an ambiguity relevant to the choice of limitations statutes in cases filed in one state but arising out of events in another. We have said that "the law of the state in which the alleged action arose controls." Glover v. Johnson, 831 F.2d 99, 100 (5th Cir.1987), but the terms of 42 U.S.C. Sec. 1988 suggest that the relevant law is that of "the State wherein the court having jurisdiction of such civil or criminal cause is held." This distinction between the accrual state and the forum state was of no moment in Glover since the cause accrued in Texas and the suit was filed in Texas.
We need not resolve this ambiguity today, for we recognize Louisiana as both the forum state and the accrual state for this cause. Davis would have us apply the limitations period from Texas, the state of the transferor court. However, venue was improper in Texas, since all defendants in this suit reside in Louisiana, and the events giving rise to the cause of action took place in Louisiana. See 28 U.S.C. Sec. 1391(b). When venue is improper in the transferor court, the transferee court should apply the law of the state in which it sits. Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1109-1111 (5th Cir.1981).
We have recently reaffirmed that Louisiana's one-year prescriptive period for delictual actions governs federal civil rights claims. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). It therefore governs Davis's claims here. Nor can Davis evade the prescriptive period by contending that the University's actions amount to a continuing tort. See Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir.1985) (). Davis's claims accrued when she was expelled and barred from the campus; it matters not, for purposes of prescription, that she remains expelled and barred now.
Finally, Davis contends that the district court should have permitted her to allege contractual claims emanating from the University's alleged breach of consent decree to which it and the United States were both parties. This court reviews the district court's decision to deny the amendment for abuse of discretion. If the amendment would be futile, it may be disallowed. Emory v. Texas State Bd. of Medical Examiners, 748 F.2d 1023, 1027 (5th Cir.1984). Davis has not offered any legally sufficient theory which would enable her to escape the Louisiana prescriptive bar on her federal claims. Her argument for amendment is vague, and relies entirely upon rights under a consent decree to which she is not a party. We find no abuse of the district court's discretion.
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