Summary Calendar )))))))))))))))))))))))))) JOSEPH THOMAS BARTUCCI, JR v. Michael Jjackson

* Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
))))))))))))))))))))))))))
No. 06-31001
Summary Calendar
))))))))))))))))))))))))))
JOSEPH THOMAS BARTUCCI, JR,
Plaintiff–Appellant,
v.
MICHAEL J JACKSON,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:04-CV-2977
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Before the court is an appeal by Plaintiff-Appellant Joseph
Thomas Bartucci (“Bartucci”) of the district court’s grant of
summary judgment on his claims against Defendant-Appellee Michael
Jackson (“Jackson”). Because Bartucci’s claims are prescribed
under Louisiana law, we AFFIRM the judgment of the district
court.

-- 1 of 10 --

2
I. BACKGROUND
The allegations in this suit concern Bartucci’s claim that
he was imprisoned, molested, and assaulted by Jackson. According
to Bartucci, on May 19, 1984, Jackson and his handlers forced
Bartucci into Jackson’s white limousine while in New Orleans. He
was driven to California and held there for nine days, during
which time he was sexually assaulted by Jackson, beaten, and
drugged. Bartucci asserts that he was cut with razor blades and
had steel wires shoved into his chest. He also claims that one
of Jackson’s handlers “bashed” Bartucci’s head into some
concrete. Bartucci states that he bears the scars from the
assault to this day.
Bartucci claims that he repressed all memories of this
occurrence until November 2003, when he saw a Court TV special on
Jackson, at which time Bartucci’s memories of the events
returned. Bartucci filed suit against Jackson on November 1,
2004, bringing claims of sexual assault, battery, false
imprisonment, and intentional infliction of emotional distress.
According to Bartucci, he suffered permanent and debilitating
injuries as a result of the incident, including heart and
eyesight problems, scarring, and psychological trauma. Jackson
filed a motion to dismiss for failure to state a claim and,
alternatively, motion for summary judgment on December 29, 2005,
arguing that Bartucci’s claims were prescribed under Louisiana

-- 2 of 10 --

3
law because they occurred twenty years ago. Following subsequent
hearings and briefing, Jackson’s motion also came to include the
argument that Bartucci could not create a genuine issue of
material fact that Jackson was in New Orleans on the dates in
question.
The district court ultimately granted summary judgment on
the ground that Bartucci had no evidence that Jackson was in New
Orleans on May 19, 1984. Bartucci filed a motion to reconsider,
pointing out that his sworn interrogatory responses created a
fact issue on that point. The district court denied the motion,
and Bartucci now appeals to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1291, as a final judgment has been
entered.
II. DISCUSSION
A. Standard of Review
We review a district court’s order granting summary judgment
de novo. Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460,
464 (5th Cir. 2006). Summary judgment is appropriate when, after
considering the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits, “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th
Cir. 2006). A genuine issue of material fact exists when the

-- 3 of 10 --

1 Bartucci also produced several affidavits from other
individuals that the district court determined were insufficient
to create a genuine issue of material fact. We do not need to
consider those affidavits on appeal, as Bartucci’s interrogatory
4
evidence is such that a reasonable jury could return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In considering a summary judgment motion, all
facts and evidence must be taken in the light most favorable to
the non-movant. United Fire & Cas. Co. v. Hixson Bros., Inc.,
453 F.3d 283, 285 (5th Cir. 2006).
B. Jackson’s Presence in New Orleans
On appeal, Bartucci contends that the district court erred
when it determined that Bartucci failed to create a genuine issue
of material fact that Jackson was present in New Orleans at the
time Bartucci claims the false imprisonment and assault occurred.
We agree.
The evidence relied upon by Jackson to demonstrate that he
was not in New Orleans in May 1984 consists of two affidavits.
The first is from Wayne Nagin, an assistant to Jackson in May
1984, who identified a calendar listing Jackson’s appointments
and rehearsals in California during the time period in question.
The second affidavit is from Charilette Sweeney, who remembered
speaking with Jackson at a church in California on May 13, 17,
and 20, 1984.
In response, Bartucci relied on his own sworn interrogatory
responses, which placed Jackson in New Orleans on May 19, 1984.1

-- 4 of 10 --

responses are sufficient to create a fact issue.
5
Specifically, Bartucci swore that:
Approximately May 19th and thereafter for 9 days, Michael
Jackson and his handlers placed Mr. Bartucci in a white
limousine in what is generally known as the central
business district area of New Orleans and kept him in
this white limousine for 9 days and 10 1/2 hours of total
time with them.
Rule 56(c) of the Federal Rules of Civil Procedure permits the
court to consider answers to interrogatories in ruling on a
motion for summary judgment, so Bartucci’s responses are
competent summary judgment evidence.
Here, the district court discounted Bartucci’s sworn
responses because Bartucci did not produce any other
contemporaneous evidence of the alleged incident and his
allegations were “severe and extraordinary . . . .” Jackson
argues that Bartucci’s testimony is conclusory and self-serving
and should be disregarded for that reason. However, this is not
a case in which a party makes a self-serving statement about his
mental state in the face of evidence to the contrary, see In re
Hinsley, 201 F.3d 638, 643 (5th Cir. 2000), contradicts
previously sworn testimony without explanation, see S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir.
1996), or speculates about the intentions of others, see Grizzle
v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.
1994), in which case his testimony might have been properly
rejected. Instead, Bartucci provided clear, sworn testimony

-- 5 of 10 --

2 The parties do not dispute that Louisiana law applies to
this case.
6
about a specific factual issue--whether Jackson was in New
Orleans on May 19, 1984.
Bartucci has, therefore, met his burden on this summary
judgment issue. While his allegations may be sensational, we are
not at liberty to make credibility determinations at this stage.
See Bledsoe v. City of Horn Lake, 449 F.3d 650, 652-53 (5th Cir.
2006) (“When the facts are disputed, the court does not determine
the credibility of the evidence and draws all justifiable
inferences in favor of the nonmovant.”). Consequently, the
district court erred when it granted summary judgment for Jackson
on this ground.
Our discussion does not end here, though, as we may affirm
the grant of summary judgment on any ground raised below, even if
it was not the basis for the district court’s decision.
Performance Autoplex II, Ltd. v. Mid-Continent Cas. Co., 322 F.3d
847, 853 (5th Cir. 2003) (per curiam). Therefore, we next
consider Jackson’s argument that prescription bars Bartucci’s
suit against him.
C. Prescription
In his motion before the district court, Jackson argued that
Bartucci’s claim was prescribed, as it was more than twenty years
old when Bartucci filed suit. Pursuant to Louisiana law,2
“[d]elictual actions are subject to a liberative prescription

-- 6 of 10 --

7
period of one year,” which begins to run the day the injury is
sustained. LA. CIV. CODE ANN. art. 3492 (1994 & Supp. 2007). When
a complaint reveals on its face that the prescriptive period has
lapsed, the plaintiff bears the burden of establishing a
suspension or interruption of the prescriptive period. In re
Brewer, 934 So. 2d 823, 826 (La. Ct. App. 2006); Martin v. Comm-
Care Corp., 859 So. 2d 217, 220 (La. Ct. App. 2003). Here,
Bartucci’s claim is clearly prescribed on its face; therefore, he
bears the burden of establishing an exception to prescription.
Bartucci relies on his claim of repressed memories and the
doctrine of contra non valentum to rescue his lawsuit from
prescription. Louisiana courts have used the doctrine of contra
non valentum to suspend the running of prescription when the
cause of action is not known or reasonably knowable by the
plaintiff, even though his ignorance is not induced by the
defendant. In re Jenkins, 945 So. 2d 814, 818 (La. Ct. App.
2006); Watkins v. St. Martin Parish Sch. Bd., 929 So. 2d 846, 853
n.5 (La. Ct. App. 2006). The reason behind the rule is the
equitable principle that prescription should be suspended when a
plaintiff is effectively prevented from enforcing his rights for
reasons external to his own will. Doe v. Archdiocese of New
Orleans, 823 So. 2d 360, 366 (La. Ct. App. 2002). Bartucci
asserts that he repressed the memories of Jackson’s alleged
assault for twenty years and presents the testimony of his

-- 7 of 10 --

8
expert, Dr. L. Mulry Tetlow, who found Bartucci credible.
However, the running of prescription is not suspended
indefinitely. Rather, prescription is suspended as long as the
plaintiff’s ignorance of his rights is not “willful, negligent,
or unreasonable.” Stevens v. Bruce, 878 So. 2d 734, 739 (La. Ct.
App. 2004) (internal quotation marks omitted). The prescriptive
period begins to run on the date that the plaintiff discovers or
should have discovered the facts upon which his cause of action
is based. Hughes v. Olin Corp., 856 So. 2d 222, 225 (La. Ct.
App. 2003). Stated differently, “Prescription commences when a
plaintiff obtains ‘actual or constructive knowledge of facts
indicating to a reasonable person that he or she is the victim of
a tort.’” Babineaux v. State ex rel. Dep’t of Transp. & Dev., 927
So. 2d 1121, 1123 (La. Ct. App. 2005). “An injured party has
constructive notice when he or she possesses information
sufficient to incite curiosity, excite attention, or put a
reasonable person on guard to call for inquiry, and includes
knowledge or notice of everything to which that inquiry might
lead.” Id.
We now turn to Bartucci’s allegations in this case. Assuming
his claims are true, Bartucci was an adult at the time of the
alleged incident. He emerged from Jackson’s limousine on May 27,
1984, with cuts from razor blades and wounds from having steel
wires shoved into his chest--injuries serious enough to leave
scars to this day. He also had his head slammed into concrete

-- 8 of 10 --

3 We do not know if Bartucci could have uncovered his
memories had he attempted to do so in 1984; however, his failure
to even try to discover what happened to him demonstrates a lack
of diligence which precludes him from establishing an exception
to prescription.
9
with sufficient force so as to cause eye problems. Further, he
was missing nine days of his life. These facts would certainly
put a reasonable person on notice that he had been the victim of
a tort. At the very least, the facts are of the type that would
“incite curiosity, excite attention, or put a reasonable person
on guard to call for inquiry.” Yet, there is no evidence that
Bartucci took any efforts to discover what had happened to him.3
We have found only one case in Louisiana in which the court
found a fact issue that might permit the tolling of the
prescriptive period based on repressed memories. See Doe v.
Archdiocese of New Orleans, 823 So. 2d 360, 366-67 (La. Ct. App.
2002). Doe, however, is distinguishable in that the sexual abuse
of Doe occurred while he was a child, and there were no overt
indicators (such as severe physical injuries or loss of time)
that would have put Doe on notice earlier that he had been
abused. See id. at 362.
Consequently, Bartucci has not met his burden of showing an
exception to prescription under Louisiana law. His severe and
permanent injuries, as well as his loss of nine days of memory,
would have caused a reasonable person to inquire further into
what happened. Because Bartucci’s failure to investigate the

-- 9 of 10 --

10
alleged torts committed against him was unreasonable, the
prescriptive period is not tolled, and Bartucci’s claims against
Jackson are barred. Therefore, we AFFIRM summary judgment for
Jackson, although on different grounds than those articulated by
the district court.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.

-- 10 of 10 --