AMY, Judge.
After he was arrested and charged with intimidation of a public official, the plaintiff filed suit against several people involved in his arrest and prosecution, alleging malicious prosecution, false imprisonment, and intentional infliction of emotional distress. The defendants filed various requests with the trial court, including exceptions of prescription, no cause of action, and insufficiency of service of process. After a hearing, the trial court sustained the exceptions and entered judgment dismissing the plaintiff's suit. The plaintiff appeals. For the following reasons, we affirm.
Factual and Procedural Background
The plaintiff, Mason Godfrey, was arrested and charged in a separate criminal case with intimidation of a public official, a violation of La.R.S. 14:122, in connection
Alleging malicious prosecution, false imprisonment, and intentional infliction of emotional distress, the plaintiff filed this civil suit against Calcasieu Parish District Attorney John DeRosier, Assistant District Attorney Paul Reggie,
In 2009, a hearing was held on the exceptions. The plaintiff, who was incarcerated at that time, was transported to the courthouse but was not brought to the courtroom. The record indicates that the trial court conducted the hearing in the plaintiff's absence. The trial court entered judgment granting the defendants' exceptions and dismissing the plaintiff's suit. Based on the plaintiff's absence from the courtroom, a panel of this court reversed the trial court's grant of the exceptions and remanded the matter to the trial court. Godfrey v. Reggie, 10-914 (La.App. 3 Cir. 2/2/11), 55 So.3d 1015.
On remand, the plaintiff filed a motion to compel certain discovery. Mr. DeRosier and Mr. Reggie subsequently filed a motion to set a hearing date on the exceptions and requesting that the trial court stay discovery until the exceptions were resolved. That request was granted and a hearing date was set. At the hearing on the exceptions, the plaintiff objected to the order staying discovery and filed a motion to recuse Judge Planchard from the case.
The plaintiff now appeals. Although he does not designate any "assignments of
Discussion
Motion to Recuse
The plaintiff first complains that the trial court erred in failing to grant his motion to recuse Judge A.J. Planchard from this case. The plaintiff filed his motion to recuse Judge Planchard at the exceptions hearing. In his motion, the plaintiff contends that the judge was a witness to the incident underlying his conviction for intimidation of a public official. According to the plaintiff's brief, he filed a motion to recuse Judge Planchard from his criminal case. However, the record indicates that that motion was denied.
The record indicates that this case was allotted to Judge David Ritchie. On April 29, 2011, Judge Planchard, sitting pro tempore, signed an order granting Mr. DeRosier and Mr. Reggie's "Motion to Fix Hearing Date for Peremptory Exceptions of Prescription and, Alternatively, No Cause of Action and Motion for Suspension of Discovery." At the hearing, Judge Ritchie stated "Judge Planchard is not assigned this case. He was here for a couple of days taking my place" while Judge Ritchie attended a conference. Judge Ritchie also explained that, even if Judge Planchard were recused, it would not affect the validity of any actions he took before his recusal. Accordingly, Judge Ritchie denied the motion as moot.
Under these circumstances, we find no error in the trial court's denial of the plaintiff's motion to recuse Judge Planchard. La.Code Civ.P. arts. 151; 154.
Discovery Issues
The plaintiff further asserts that the trial court erred in failing to rule on his motion to compel discovery and in granting the defendants' motion to stay discovery. Further, the plaintiff asserts that it was error for the trial court to
At the hearing on the exceptions, the plaintiff objected to the stay of discovery. The trial court gave the plaintiff an opportunity to explain why additional discovery was necessary for the hearing on the exceptions. However, according to the record, the trial court found that the discovery was immaterial to the issues immediately before the court.
A panel of this court discussed the trial court's authority when dealing with discovery issues in Rozas v. Montero, 05-484, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 444, 447, stating:
Louisiana Code of Civil Procedure Article 1426(A) addresses protective orders relating to discovery. It states, in relevant part:
Nonetheless, the Louisiana Supreme Court has found that it was error to stay discovery prior to an exceptions hearing where the discovery requests were relevant to the exceptions at issue. Bridges v. Hertz Equip. Rental Corp., 08-400 (La.6/20/08), 983 So.2d 1256.
Here, the issues being addressed at the hearing on the exceptions were an exception of prescription, which concerned the timing of the plaintiff's in forma pauperis application; an exception of insufficiency
With regard to the plaintiff's contention that the trial court erred in failing to rule on his motion to compel discovery, we first observe that, although plaintiff filed a brief in support of his motion to compel, no motion to compel is contained within the record. See La.Code Civ.P. arts. 961, 962. However, even assuming that the plaintiff filed a motion to compel, we decline to rule on this issue as it was rendered moot by the grant of the defendants' motion to stay discovery. See Suire v. Lafayette City-Parish Consol. Gov't, 04-1459, 04-1460, 04-1466, p. 25 (La.4/12/05), 907 So.2d 37, 55 (quoting La. Associated Gen. Contractors, Inc. v. State of La., 95-2105, p. 10 (La.3/8/96), 669 So.2d 1185, 1193) ("An issue is `moot' where it `has been deprived of practical significance and made abstract or purely academic.'"). Further, with regard to the plaintiff's contention that the defendants were required to file a separate motion in order to request that discovery be stayed, we observe that the plaintiff has failed to brief this issue. Thus, we treat it as abandoned pursuant to Uniform Rules — Courts of Appeal, Rule 2-12.4.
Accordingly, we find no error in the trial court's rulings with regard to discovery issues.
Exception of Prescription
Alleging that he filed an in forma pauperis affidavit concurrently with his petition, the plaintiff also asserts that the trial court erred in sustaining the exception of prescription. In their exceptions, all of the defendants asserted that the plaintiff's suit had prescribed because he failed to pay the required filing fees or file an in forma pauperis application before the date of prescription.
In Board of Com'rs v. Estate of Smith, 03-1949, 03-1950, p. 5 (La.App. 4 Cir. 9/2/04), 881 So.2d 811, 815, writ denied, 04-2696 (La.1/7/05), 891 So.2d 689, the fourth circuit discussed the exception of prescription, stating:
The plaintiff's claims for false imprisonment and/or arrest and intentional infliction of emotional distress are subject to a one-year prescriptive period.
Louisiana Civil Code Article 3462 states, in part, that "[p]rescription is interrupted... when the obligee commences action against the obligor, in a court of competent jurisdiction and venue." This court has previously found that, where the plaintiff did not submit a filing fee or in forma pauperis application within the one-year prescriptive period, the filing of a petition does not interrupt prescription. Gant v. Alexander, 04-27 (La.App. 3 Cir. 5/12/04), 872 So.2d 1280. But see Trusclair v. Hill, 05-1908 (La.App. 1 Cir. 9/15/06), 943 So.2d 1127.
An indigent litigant may prosecute a civil suit "without paying the costs in advance or as they accrue or furnishing security therefor." La.Code Civ.P. art. 5181(A). However, in seeking this privilege, the litigant must file certain documents with the court, as delineated in La. Code Civ.P. art. 5183. Article 5183(A) states:
According to the record, the plaintiff's complaint is filemarked October 12, 2006. The incident which is the basis of this lawsuit occurred on October 17, 2005. At the hearing, the defendants introduced several letters from the Clerk of Court's office, dated November 30, 2006, and February 15, 2007. The November 30, 2006 letter from the Clerk's office states "[w]e
Although the plaintiff contends that he filed an in forma pauperis application from the United States District Court — Western District of Louisiana concurrently with his petition, such a filing is not contained in the record. We note that Mr. DeRosier and Mr. Reggie's attorney stated at the hearing that the plaintiff did file such an application with his petition but that he included neither the Fourteenth Judicial District Court form nor an accompanying order. The transcript of the exceptions hearing indicates that the plaintiff showed the trial court these documents, but failed to submit them into evidence. An appellate court cannot review evidence that is not in the record and cannot receive new evidence. Hover v. Farber, 05-613 (La. App. 5 Cir. 1/31/06), 922 So.2d 637.
The record provides adequate support for the trial court's conclusion that, while the plaintiff may have submitted his petition to the Clerk of Court prior to the expiration of the one-year prescriptive period, he failed to submit either costs or an in forma pauperis application until April 3, 2007. Accordingly, there is sufficient evidence to support a finding that the plaintiff's filing was not complete for the purposes of interrupting prescription. Gant, 872 So.2d 1280. Further, the plaintiff's in forma pauperis application was not submitted until April 3, 2007, more than five months after prescription had occurred.
Thus, we find no error in the trial court's grant of the exception of prescription.
Exception of Insufficiency of Service of Process
The plaintiff also complains that the trial court erred in granting Deputy Thibodeau's exception of insufficiency of service of process.
Insufficiency of service of process, "including failure to request service of citation on the defendant within the time prescribed by Article 1201(C)" is a declinatory exception which may be raised pursuant to La.Code Civ.P. art. 925.
See also La.R.S. 13:5107. Further, La. Code Civ.P. art. 1672(C) addresses the appropriate remedy when an exception of insufficiency of service of process is sustained. It states:
At the hearing, Deputy Thibodeau submitted evidence which indicated that, despite several notices from the Clerk of Court's office, the plaintiff did not request service until September 5, 2008, and did not provide service instructions until September 30, 2008. Thus, the record indicates that the plaintiff did not request service within 90 days of filing the petition. Further, there is no indication that the plaintiff attempted to show good cause why service was not requested. Boyd v. Picayune, 11-119 (La.App. 5 Cir. 11/15/11), 82 So.3d 298; Bolner v. Daimler Chrysler Corp., 01-1285 (La.App. 5 Cir. 6/26/02), 820 So.2d 1252, writ denied, 02-2263 (La.11/15/02), 829 So.2d 430.
The plaintiff also complains that the trial court erred in failing to find that this was a prisoner suit pursuant to the Louisiana Prison Litigation Reform Act (PLRA)
The plaintiff's suit does not, as contemplated by La.R.S. 15:1181, challenge the conditions of his confinement or the effects of actions by government officials on his life. Accordingly, we find no merit to the plaintiff's argument concerning the applicability of the PLRA to his suit. See Colquitt v. Claiborne Parish, La., 36,260 (La.App. 2 Cir. 8/14/02), 823 So.2d 1103 (An inmate's lawsuit contending that the district attorney violated his right to speedy trial was not subject to the PLRA). Cf. McCoy v. State ex rel. Jones, 39,323 (La.App. 2 Cir. 2/17/05), 901 So.2d 1109, writ denied, 05-960 (La.2/3/06), 922 So.2d 1161. (An inmate's suit alleging unnamed state tort law claims directly correlated to the conditions of his confinement or effects of actions by government officials on his life as a person confined in prison and was subject to the PLRA).
Therefore, we find no error in the trial court's grant of Deputy Thibodeau's exception of insufficiency of service of process.
Exception of No Cause of Action
The plaintiff also contends that the trial court erred in granting Mr. DeRosier's and Mr. Reggie's exception of no cause of action. Mr. DeRosier and Mr. Reggie asserted that they were entitled to absolute prosecutorial immunity for their actions in prosecuting the plaintiff.
In Knapper v. Connick, 96-434, p. 10 (La.10/15/96), 681 So.2d 944, 950, the supreme court addressed the issue of whether prosecutors are entitled to absolute immunity, concluding:
The plaintiff's allegations concern Mr. DeRosier's and Mr. Reggie's actions in charging and prosecuting the plaintiff with obstruction of justice. There is sufficient evidence in the record to support a determination by the trial court that these activities were within the scope of the prosecutor's role as an advocate for the State and sustained the exception of no cause of action. Based on our review of the record, we find no error in the trial court's grant of the exception of no cause of action in favor of Mr. DeRosier and Mr. Reggie.
Further, we find that the plaintiff's petition fails to state a cause of action for malicious prosecution. On its own motion, an appellate court may notice the failure of a petition to state a cause of action. La.Code Civ.P. art. 927; Eubanks v. State, Dept. of Transp. & Dev., 620 So.2d 954 (La.App. 3 Cir.), writs denied, 629 So.2d 353 (La.1993). One of the requirements of a malicious prosecution charge is the bona fide termination of the criminal proceedings in favor of the plaintiff.
The plaintiff's complaints concerning the exception of no cause of action are without merit.
Contempt
Finally, the plaintiff complains that the trial court inappropriately found him in contempt of court. A contempt judgment is generally an interlocutory judgment not subject to appeal; however, "some cases have permitted a review on appeal where the appellate court was reviewing other related appealable matters." Taylor v. Johnson, 532 So.2d 557, 558 (La. App. 3 Cir.1988) (quoting State v. Sampson, 498 So.2d 1145, 1147 (La.App. 3 Cir. 1986)). Thus, we will address the merits of the plaintiff's claim.
The trial court's authority to hold a person in contempt for actions committed in the immediate view and presence of the court is contained within La.Code Civ.P. art. 222, which states, in relevant part:
Louisiana Revised Statutes 13:4611(1)(d), defines the permissible punishment "[f]or any other contempt of court ... by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both."
Louisiana Code of Civil Procedure Article 223 provides that a person who has committed a direct contempt of court may be found guilty and punished by the court without any trial other than an opportunity to be heard orally by way of defense or mitigation. Because the facts constituting direct contempt are within the knowledge of the trial court, procedural safeguards such as the right to a hearing and the right to counsel do not attach. Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143. However, in a criminal contempt, i.e., one which is designed to punish the offender for "contemptuous behavior in the presence of the court[,]" the accused is entitled to certain constitutional safeguards, including "the presumption of innocence, the right to proof of guilt beyond a reasonable doubt, and the right not to be compelled to testify against himself." In re Milkovich, 493 So.2d 1186, 1188-89 (La. 1986). Accordingly, when an appellate court reviews a criminal contempt conviction,
The record indicates that, despite the plaintiff's contentions to the contrary, the trial court gave the plaintiff, who was representing himself, substantial leeway in making his arguments to the court and in making objections. Further, the record reveals that the trial court warned the plaintiff at least seven times that he should not interrupt when the court was speaking. The plaintiff also made several statements that can be construed as disparaging the integrity of the trial court, the Clerk of Court's office, and the judicial system as a whole. After the plaintiff interrupted the trial court again, the trial court found that the plaintiff was in contempt of court and imposed a sentence of three months in the parish jail, consecutive to any sentence that the plaintiff might already be serving. The record also indicates that the plaintiff contended that he "wasn't arguing" and that he "simply ask[ed the trial court] a question that I didn't understand."
Based on this evidence, we find no error in the trial court's finding that the plaintiff was in contempt of court.
DECREE
For the foregoing reasons, the judgment of the trial court sustaining the exceptions filed by Calcasieu Parish District Attorney John DeRosier, and Assistant District Attorney Paul Reggie, and Deputy Eugene Thibodeau of the Calcasieu Parish Sheriff's Office is affirmed in all respects. Further, the trial court's order holding the plaintiff, Mason Godfrey, in contempt is affirmed. Costs of this proceeding are assessed to Mason Godfrey.
FootNotes
St. Agnes Health/Rehab. Ctr. v. Ledet, 00-2023, pp. 2-3 (La.App. 3 Cir. 3/21/01), 782 So.2d 1145, 1146-47.
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