Restrepo v. Fortunato, No. 89-CA-609
| Court | Court of Appeal of Louisiana (US) |
| Writing for the Court | GOTHARD |
| Citation | 556 So.2d 1362 |
| Parties | Pedro RESTREPO v. Sgt. John FORTUNATO, et al. 556 So.2d 1362 |
| Docket Number | No. 89-CA-609 |
| Decision Date | 14 February 1990 |
Page 1362
v.
Sgt. John FORTUNATO, et al.
Fifth Circuit.
Writ Denied April 16, 1990.
Page 1363
Pedro Restrepo, Angie, pro se.
Daniel R. Martiny, Metairie, for defendants/appellees.
Before KLIEBERT, WICKER and GOTHARD, JJ.
GOTHARD, Judge.
This appeal arises from a suit brought in proper person by a convicted felon against the sheriff of Jefferson Parish and eight officers of the sheriff's department. The suit, alleging personal injuries and false imprisonment, was dismissed on an exception of prescription.
Pedro Restrepo was convicted on a guilty plea of possession of cocaine in 1987, having been arrested in September, 1986. See State v. Restrepo, 527 So.2d 473 (La.App. 5th Cir.1988); State v. Restrepo, 538 So.2d 1130 (La.App. 5th Cir.1989). While awaiting sentencing, on October 9, 1987, 1 he was arrested at his body repair shop and charged with possession and distribution of cocaine. He was tried and convicted of those offenses. The Court of Appeal upheld the conviction but remanded the case for resentencing. State v. Restrepo, 544 So.2d 512 (La.App. 5th Cir.1989).
The civil suit before us concerns the arrest on or about October 9, 1987 by Jefferson Parish officers. The petition alleges that the officers, without warrants, "falsely imprisoned and kidnapped petitioner from his domicile." The plaintiff alleges further that they assaulted him and tried to kill him "by striking him repeatedly with a tire iron or other tool, by beating him, and forcefully striking him with various objects meant to permanently disable him and causing grievous injury to his back, kidneys, liver and other body areas." He alleges that he had also been beaten and kidnapped during the September, 1986 arrest.
False Imprisonment Claim
The tort of false imprisonment, or false arrest, has two essential elements, detention of a person and the unlawfulness of such detention. Touchton v. Kroger Co., 512 So.2d 520 (La.App. 3rd Cir.1987). As Restrepo was convicted of the crime for which he was arrested and indicted, and the conviction was affirmed by this court, he cannot show that his detention was unlawful. Accordingly, this court of its own motion notices that the plaintiff has no cause of action for false imprisonment. We shall not consider his opposition to the exception of prescription except to point out that prescription of one year begins to run when the...
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Kelly v. West Cash & Carry Bldg. Materials, No. 99-CA-0102.
...reference to these cases, false arrest is not distinguished as a separate tort from false imprisonment. See also Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5 Cir.), writ denied 560 So.2d 11 Actions for malicious prosecution have never been favored, and hence, in order to sustain them, a......
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Williams v. DiVittoria, Civ. A. No. 90-491.
...he was convicted because such a plaintiff, as a matter of law, cannot prove that his detention was unlawful. See Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La.App. 5 Cir.), writ denied, 560 So.2d 11 Essentially, defendant argues that the question is not one of issue preclusion, but one of......
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Burdeaux v. Cline, No. 25219-CA
...or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5th Cir.1990), writ denied, 560 So.2d 11 (La.1990); Tranum and Arabie, both On the face of the petition, appellants' action has prescribed.......
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Robinson v. Lipps, CASE NO. 6:18-CV-01062
...the second element of a false arrest claim. Thomas v. Pohlmann, 681 Fed.Appx. 401, 408 (5th Cir. 2017) (citing Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La. Ct. App. 1990)). Because Robinson cannot show his detention was unlawful without challenging the validity of his conviction, his st......
-
Kelly v. West Cash & Carry Bldg. Materials, No. 99-CA-0102.
...reference to these cases, false arrest is not distinguished as a separate tort from false imprisonment. See also Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5 Cir.), writ denied 560 So.2d 11 Actions for malicious prosecution have never been favored, and hence, in order to sustain them, a......
-
Williams v. DiVittoria, Civ. A. No. 90-491.
...he was convicted because such a plaintiff, as a matter of law, cannot prove that his detention was unlawful. See Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La.App. 5 Cir.), writ denied, 560 So.2d 11 Essentially, defendant argues that the question is not one of issue preclusion, but one of......
-
Burdeaux v. Cline, No. 25219-CA
...or interruption of prescription, the burden is on the plaintiff to prove the suspension or interruption. Restrepo v. Fortunato, 556 So.2d 1362 (La.App. 5th Cir.1990), writ denied, 560 So.2d 11 (La.1990); Tranum and Arabie, both On the face of the petition, appellants' action has prescribed.......
-
Robinson v. Lipps, CASE NO. 6:18-CV-01062
...the second element of a false arrest claim. Thomas v. Pohlmann, 681 Fed.Appx. 401, 408 (5th Cir. 2017) (citing Restrepo v. Fortunato, 556 So.2d 1362, 1363 (La. Ct. App. 1990)). Because Robinson cannot show his detention was unlawful without challenging the validity of his conviction, his st......