Delcambre v. Whittington

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 7, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-31113
Summary Calendar
KENNETH E. DELCAMBRE,
Plaintiff-Appellant,
versus
WILLIAM R. WHITTINGTON, etc.; ET. AL.,
Defendants,
WILLIAM R. WHITTINGTON, individually & in his capacity as a law
enforcement officer of the State of Louisiana, Louisiana State
Police and Superintendent of the Louisiana State Police, Deputy
Secretary of the State of Louisiana, Department of Public Safety
& Corrections,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(No. 00-CV-243)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges
PER CURIAM:*
One year after entering a guilty plea to a misdemeanor
offense, Kenneth E. Delcambre filed this action against those

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involved with his prosecution, presenting state and federal claims.
The district court dismissed this action, holding: the wrongful
discharge and intentional interference claims were barred by
prescription; the malicious prosecution claims, by the guilty plea.
A Federal Rule of Civil Procedure 12(b)(6) dismissal is reviewed de
novo. Thompson v. Goetzmann, 315 F.3d 457, 459 (5th Cir. 2002).
Delcambre maintains the claims are not time-barred. The
termination of his employment, three years before filing this
action, however, ends any continuous tort. See Bustamento v.
Tucker, 607 So.2d 532, 542 (La. 1991). Further, Delcambre contends
his 42 U.S.C. §1983 malicious prosecution claim is not barred by
Heck v. Humphrey, 512 U.S. 477 (1994), because it was rendered
invalid by a state tribunal. Though his conviction was expunged
and an order of acquittal entered, expunction under La. Rev. Stat.
Ann. § 44:9 does not render a prior conviction invalid.
AFFIRMED

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