Appeal from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CA91 2321 E. JUDGE Marcel Livaudais
Before Smith, Duhe, and Wiener, Circuit Judges.
Gerald Burge appeals the dismissal of his civil rights action. The district court concluded that Burge's claims were barred by the applicable one-year statute of limitations. We conclude that Appellant's pursuit of state habeas remedies tolled the prescriptive period. Accordingly, we reverse and remand for further proceedings.
Appellant was convicted of murder and sentenced to life imprisonment. His counsel then began an inquiry into the disappearance of the police file compiled during the murder investigation. Burge's counsel had previously requested that any exculpatory evidence in the possession of the St. Tammany Parish Sheriff's Office be disclosed so that Burge could prepare his defense. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Sheriff's Office replied that there was no exculpatory evidence; later, it conceded that the police investigatory file was "lost or misplaced."
The investigatory file was ultimately discovered. It contained statements from the decedent's mother and others which cast serious doubt on Burge's guilt. Having previously exhausted his direct appeals, Burge filed a petition in state court for post-conviction relief. This petition alleged that the prosecution's failure to comply with the Brady rule impermissibly violated Burge's right to a fair trial. The state court agreed, and ordered a new trial. In the second trial, Burge was acquitted.
In June 1991, Appellant filed a civil rights action against St. Tammany Parish, the St. Tammany District Attorney's Office, the Sheriff's Office and Sheriff Patrick Canulette, and Detective Gary Hale. 42 U.S.C. §§ 1983, 1985 (1981). The claims against the District Attorney's Office were dismissed on the basis of prosecutorial immunity. The remaining defendants moved to dismiss on the basis of prescription, arguing that Burge's claims accrued, at the latest, on September 1, 1989, when he filed his initial habeas corpus petition alleging a Brady violation.*fn1 Because there is no federal statute of limitations for § 1983 and 1985 actions, the district court applied Louisiana's liberative prescription (statute of limitations) for tort actions. La.Civ.Code Ann. art 3492 (Supp.1992); see Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989) (approving application of art. 3492 to § 1983 claim). The court held that Burge's claims were prescribed based on this one-year statute of limitation.
On appeal, Burge argues that the prescriptive period was tolled while he exhausted his state remedies. This contention finds support in Fulford v. Klein, 529 F.2d 377 (5th Cir.1976), adhered to en banc, 550 F.2d 342 (5th Cir.1977).
We hold that a § 1983 action for damages based on the withholding at trial of possible exculpatory evidence by state officials in violation of Brady v. Maryland..., cannot be prosecuted while the state case is on appeal and before all state remedies have been exhausted in seeking relief from the conviction allegedly obtained in violation of the federal Constitution and law.
529 F.2d at 378; see Serio v. Louisiana State Bd. of Pardons, 821 F.2d 1112, 1117 (5th Cir.1987).
Consistent with the practice of borrowing state statutes of limitations for § 1983 claims, federal courts also look to state law for its tolling provisions. See Hardin v. Straub, 490 U.S. 536, 538-39, 109 S. Ct. 1998, 2000, 104 L. Ed. 2d 582 (1989); Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir.1992). Accordingly, we must assess whether Louisiana law would hold the liberative prescription period ...