Random Miscellaneous

What amount of force is allowed when restraining an inmate?

Published on: July 22, 2023 | By Berniard Law Firm

prison_robben_island_south-scaled The burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston.

Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively.

The Impact of Timeliness in the Legal Field

Published on: July 20, 2023 | By Berniard Law Firm

time_clock_movement_motion-1-scaled Timing. We all know it’s important, but how important is it in the legal field? Properly filing documents, adhering to deadlines, and raising legal issues within specific timeframes can significantly impact the outcome of a case. In the following case, the Fifth Circuit Court of Appeal looks to the issue of timeliness in the legal field and whether the cause of actions has matured enough to be “ripe” for judicial determination.

Bayou Orthotic and Prosthetics Center, L.L.C. (“Bayou”) owned and operated a medical business that provides medical prostheses and relative equipment. In 2016, Leroy Davis needed an above-the-knee prosthetic from a prior accident, which Bayou provided. Morris Bart was representing Davis for his injuries and asked Bayou for medical treatment, providing that he would protect Bayou’s medical charges for around $29,000. Bayou treated Davis for almost ten years, racking up expenses to around $126,000.

Bart never paid, and Bayou sued. Bart filed an exception of prematurity because the commitment to pay Bayou depended on a suspensive condition – if the payment to Bart of settlement proceeds. This did not happen. Bayou disagreed and believed the agreement was based on a term, not a suspensive condition, and therefore, the payment from Bart had to have been paid within a reasonable period.

Louisiana Inmate Failed to Establish Deliberate Indifference to Serious Medical Needs

Published on: July 18, 2023 | By Berniard Law Firm

prison_prison_window_window-scaled When a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows.

In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King.

Timely Filings and the Road to Justice: The Implications of Abandonment in Civil Litigation

Published on: July 17, 2023 | By Berniard Law Firm

number_three_three_wood-scaled Navigating the intricacies of civil litigation requires strict adherence to procedural rules, as the failure to meet deadlines or follow the correct timeline can result in serious consequences for plaintiffs seeking justice. In the case of Michael Neal Rollins, an inmate who filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America, the impact of missed deadlines and abandoned filings became evident. Rollins alleged physical abuse during his transportation back to the Iberia Parish Jail, but his case was ultimately dismissed due to abandonment. This instance highlights the critical importance of timely and diligent filings within the legal system, emphasizing the need for plaintiffs to navigate the complex procedural landscape to have their claims heard.

Rollins filed a lawsuit against the State of Louisiana, Louis Ackal, Sheriff of Iberia Parish, and the Corrections Corporation of America. Rollins was an inmate incarcerated at the Iberia Parish Jail in New Iberia. In 2008, Rollins was returned to the Iberia Parish Jail from prison in Winn Parish, having been evacuated there during Hurricane Gustav. After his subsequent release, Rollins filed his suit against the State of Louisiana in 2009 for injuries he suffered while transporting back to the Iberia Parish Jail from Winn Parish. Rollins alleged that officers physically abused him on the bus and in the Iberia Parish Jail parking lot.

Over seven years later, in 2017, the State of Louisiana filed a Motion to Dismiss the suit on the grounds of abandonment. The state claimed that there had been no filings or steps taken to proceed with the case since 2014. The plaintiff filed a counter-motion, alleging that it had filed a motion requesting discovery materials from the defense. The defendants argued that one of the defendants, Sheriff Louis Ackal, never received these requests. The district court ruled in favor of the defense, stating that failure to serve the request to all the defendants negates it as a step in prosecuting the action. Thus the district court dismissed the case in its decision, from which the plaintiff appealed.

Can An Independent Medical Examiner Determine Maximum Medical Improvement in a Worker’s Compensation Case?

Published on: July 12, 2023 | By Berniard Law Firm

manzanar_relocation_center_manzanar_445-scaled Being injured at work is never what you want to deal with. What’s worse is dealing with multiple independent medical examiners making opinions on your medical state. In the following case, the Louisiana Court of Appeal First Circuit addresses whether a medical examiner’s determination of maximum medical improvement is closely related to the worker’s condition and ability to work.

Ella Hamilton injured her neck and shoulders while moving trash bags into a dumpster while working as a custodian for GCA Services. Hamilton filed a workers’ compensation claim, and GCA Services paid indemnity and medical benefits to and on behalf of Hamilton in connection with her workers’ compensation claim. A dispute arose between the doctors that reviewed Hamilton’s alleged injuries and whether or not he could return to work.

Dr. Charles Bowie, a neurosurgeon, diagnosed Hamilton with a cervical disc disorder and opined that she required cervical fusion surgery. He believed her injuries prevented her from working. On the other hand, Dr. David Ferachi, an orthopedic surgeon representing GCA Services, agreed with Dr. Bowie but stated that Hamilton could return to work as a custodian with certain limitations.

The Importance of Changing a Life Insurance Beneficiary After Divorce

Published on: July 10, 2023 | By Berniard Law Firm

car_divorce_netherlands_joke-scaled Divorce can be tumultuous, marked by significant stress and numerous life changes. Amidst the emotional and practical adjustments, it is crucial not to overlook a critical task: updating the beneficiary of your life insurance policy. In Claiborne Parish, a compelling case serves as a cautionary tale, underscoring the paramount importance of understanding and verifying your designated beneficiary on all insurance plans. The story unravels the unsettling reality that the proceeds from your life insurance policy may not end up in the hands of the intended recipient.

In this case, Hillie Patrick Cox took out a whole-life insurance policy with Southern Farm Bureau, where he listed his mother, Ruby G. Cox, as a beneficiary. Later, he amended the beneficiary to list his wife, Connie Gonzales Cox. Seven years later, however, Hillie and Connie obtained a divorce judgment. Hillie then died approximately 14 years later without executing another change of beneficiary form.

Southern Farm Bureau subsequently filed a petition for concursus in the 2nd Judicial District Court for the Parish of Claiborne, claiming that a judgment of possession awarded Ruby usufruct over the entire estate and recognized Debra Cox Diffey, Hillie’s sister as the sole surviving heir. As a result of the judgment, Ruby, Debra, and Connie all presented claims for the insurance proceeds.

Understanding the Impact of Settlement on Workers’ Compensation Benefits in Louisiana

Published on: July 9, 2023 | By Berniard Law Firm

money_pay_money_making-scaled Suppose you are considering settling a lawsuit related to injuries on the job. In that case, it is essential to understand how a potential settlement of a related claim could affect your workers’ compensation benefits. What happens to your workers’ compensation benefits if you settle a related lawsuit without written approval from your employer and their workers’ compensation insurer? The following case helps answer that question.

While working at Mouton Plumbing, Terrell Talbot was involved in a car accident. Mouton Plumbing and its workers’ compensation insurer accepted Talbot’s claim under La. R.S. 23:1021. He received $69,265.02, consisting of workers’ compensation indemnity benefits of $23,487.86 and medical expenses of $45,777.16. Talbot filed a lawsuit against the other individual involved in the car accident and her insurer. Pursuant to La. R.S. 23:1102(A), Talbot notified Mouton Plumbing and its insurer in writing about the lawsuit. They intervened in Talbot’s case. Talbot settled the lawsuit for $107,389,73 but did not obtain written approval from Mouton Plumbing or its insurer. As a result, the insurer ended Talbot’s workers’ compensation benefits.

Under La. R.S. 23:1102(B), a worker is not entitled to workers’ compensation benefits if he does not obtain the employee or insurer’s approval to settle a related lawsuit. However, an employee can reclaim his workers’ compensation benefits through a “buy-back provision.” When Talbot’s benefits were terminated, a lien from Mouton Plumbing’s insurer was not satisfied. As a result, the $28,730.84 due to Talbot from the settlement, after deducing attorney’s fees and costs, was paid directly to the insurer to satisfy the lien.

Time Limitations for Lawsuits: Paternity Claims in Succession Cases

Published on: July 8, 2023 | By Berniard Law Firm

time_clock_movement_motion-scaled Although there is a common saying, “good things come to those who wait,” that is not true in the context of filing lawsuits, especially if they involve establishing paternity after your purported father passed away. Louisiana law has strict requirements that establish the time by which you must file a lawsuit. Your lawsuit will be dismissed if you do not comply with these requirements. What happens if the law governing how long you have to bring your lawsuit changes?

William Dalton Pelt died without a will at his Vernon Parish, Louisiana home. His brothers and sisters filed a petition to have Barbara Lee Pelt Cooley appointed as administratrix of his succession. In the petition, they claimed Pelt had never been married and had no children. The trial court signed an order appointing Cooley as administratrix of his succession. Later, Kristina Wright petitioned to intervene in Pelt’s succession, claiming he was her father. Wright claimed her mother had had an affair with Pelt, and she was conceived during their relationship. She wanted recognition for her rights to Pelt’s estate and to have Cooley removed as the administratrix.

Pelt’s brothers and sisters filed an exception of prescription. At a hearing, the trial court agreed with Pelt’s brothers and sisters and dismissed Wright’s petition. Wright appealed, claiming the trial court erred in not correctly applying La. C.C. art. 197 to establish paternity.

Police Officer’s Due Process Not Violated In Termination Due To Multiple Infractions

Published on: July 7, 2023 | By Berniard Law Firm

bellingham_police-scaled Being a classified civil servant provides certain protections, including the right to due process before termination. The following case revolves around a police officer who claimed his due process rights were violated when he was terminated following multiple infractions. It highlights the importance of adequate notice and an opportunity to be heard in cases involving the termination of classified civil servants.

Uletom Hewitt had been working for the Lafayette Police Department for approximately four years when he saw what he thought was evidence of a bomb at the mall food court where he was working as off-duty security. He then proceeded to evacuate the people visiting the mall. Hewitt was disciplined by the police department for his “over-exuberant” handling of the event and for disobeying an order from a superior not to evacuate the mall. He was suspended for five days without pay after a pre-determination hearing.

Hewitt appealed this decision to the Lafayette Municipal Fire and Police Civil Service Board (the “Board”). The Board upheld the decision and the corresponding punishment given to Hewitt. Subsequently, Hewitt was involved in various other acts of misconduct, which resulted in him being placed on administrative leave. These infractions included failing to use his in-dash camera system properly; failing to complete an off-duty request form, working as an off-duty security detail while on administrative leave; failing to provide an updated address to the police department; failing to return calls from internal affairs investigators. Hewitt never returned to duty and was informed he would be terminated. The reasons for his termination included misconduct while he was out on administrative leave.

Supermarket Not Liable For Slip-and-Fall Because Of Lack Of Constructive Notice

Published on: July 4, 2023 | By Berniard Law Firm

accident_injury_risk_banana_0-scaled When you make a quick run to the store, the last thing you expect is to be injured while shopping. If you slip and fall at a store, you might expect the store to be responsible for any injuries you might have suffered. However, Louisiana law requires that a store have actual or constructive knowledge of the hazardous condition to be held liable. Therefore, if you are considering filing a lawsuit against a store for a slip-and-fall accident, it is essential to provide evidence of the store’s knowledge so your claim does not get dismissed.

Quentella Batiste was shopping with her granddaughter at Vernon’s Supermarket in Lutcher, Louisiana. Batiste slipped and fell in a puddle of water in the beer and beverage aisle as she was headed to check out at the front of the store. She injured her shoulder, which required surgery. Batiste and her husband filed a lawsuit against Vernon’s Supermarket and its insurer.

Vernon’s Supermarket filed a summary judgment motion, arguing the Batistes could not prove Vernon’s Supermarket created or actual or constructive knowledge of the hazardous condition of the purported water on the floor, as required under the Louisiana Merchant Liability Statute, La. R.S. 9:2800.6. Vernon’s Supermarket provided deposition testimony where Baptiste said she did not know where the substance she slipped on came from, how long it had been there, or whether anyone at the store knew the substance was present before she fell. They also provided surveillance footage and testimony from several employees to support Vernon Supermarket’s claim no one knew about the substance before Batiste’s fall.