NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2020 CA 0093

DENNIS THOMAS fvl- VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Judgment rendered: NOV 0 9 2020

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C685062, Sec. 26

The Honorable Richard " Chip" Moore, Judge Presiding

Dennis D. Thomas In Proper Person/ Appellant Louisiana State Penitentiary Angola, Louisiana

Heather C. Hood Attorney for Defendant/Appellee Baton Rouge, Louisiana Louisiana Department of Public Safety and Corrections

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, I

Petitioner, Dennis Thomas, an inmate in the custody of the Department of Public Safety and Corrections ( the Department), appeals a judgment of the district court dismissing his petition for judicial review of ARP No. LSP -2019- 0620. For

the reasons that follow, we affirm.

DISCUSSION

On March 16, 2019, while incarcerated at Louisiana State Penitentiary, Thomas was sprayed with a chemical agent by Captain Jerry Stout for fighting with another inmate in their cell and ignoring direct verbal orders to stop. Once

the offenders complied and were separated, Thomas was seen by medical personnel and then placed in the shower for decontamination.

Thereafter, Thomas filed ARP No. LSP -2019- 0620, alleging the

decontamination procedure constituted cruel and unusual punishment in violation of his constitutional rights. Thomas sought declaratory relief and punitive, compensatory, and nominal damages. The ARP proceeded through administrative review and was denied. On July 8, 2019, Thomas filed a pro se petition for judicial review of ARP No. LSP -2019- 0620 in the Nineteenth Judicial District Court. The matter was assigned to a commissioner for evaluation and to make a

recommendation to the district court judge.'

On September 20, 2019, after screening the petition, the commissioner

issued a report recommending that the petition be dismissed with prejudice because the Department' s decision to deny relief was not arbitrary, capricious, or

manifestly erroneous, nor was it in violation of Thomas' s statutory or

The office of commissioner of the Nineteenth Judicial District Court was created by La. R.S.

13: 711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13: 713( A). The commissioner' s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them.

La. R.S. 13: 713( C)( 5); see Martinez v. Tanner, 2011- 0692 ( La. App. 1 Cir. 11/ 9/ 11), 79 So. 3d 1082, 1084 n.3, writ denied, 2011- 2732 ( La. 7/ 27/ 12), 93 So. 3d 59. constitutional rights. Further, the commissioner noted the Nineteenth Judicial

District Court was an improper venue for Thomas' s claims for monetary damages.

On November 6, 2019, after a de novo review of the record, the district court

signed a judgment that adopted the commissioner' s report as its reasons and

dismissed Thomas' s appeal with prejudice for failure to state a cause of action

upon which relief may be granted. From this judgment, Thomas appeals.

We find the commissioner' s recommendation, which we adopt herein and attach as " Appendix A," provides a correct analysis of the applicable law regarding

Thomas' s claim. Accordingly, after a thorough de novo review of the record, we conclude that the district court properly adopted the commissioner' s report and dismissed Thomas' s petition for judicial review. We note that the district court

judgment includes language stating that the appeal was dismissed due to a failure to raise a cause of action upon which relief may be granted; however, the basis for the dismissal of the appeal was, as the commissioner' s report states, that the

Department' s decision to deny relief was not arbitrary, capricious, or manifestly erroneous, nor was it in violation of Thomas' s statutory or constitutional rights.

CONCLUSION

We issue this summary opinion in accordance with Uniform Rules - Louisiana Courts of Appeal, Rule 2- 16. 2( A)(5), ( 6), ( 7), ( 8) and ( 10). The

November 6, 2019 judgment of the district court dismissing the petition of Dennis Thomas is hereby affirmed. No costs are assessed in this pauper suit.

AFFIRMED.

Appendix A"

EAST BATON ROUGE PARISH C_68506 0 111e' I' Sep 20, 2019 5: 08 PM 26 Deputy Clerk of Court J

DENNIS THOMAS ,; NUMBER: 685, o62 SECTION 26 DOC# 533237 191'" JUDICIAL DISTRICT COURT' VERSUS PARISH OF EAST BATON ROUGE DEPARTMENT' OF CORRECTIONS, ET AL. STATE OF LOUISIANA COMMISSIONER' S REPORT

Petitioner, an inmate in the custody of the Department of Public Safety and Corrections, filed this petition for judicial review of ARP No. 1, SP- 2019- o620, seeking review in accordance with R.S. 15: 1171, et seq. Petitioner states that he seeks the " sane relief as requested in [ his] initial ARP request,", which is declaratory, punitive, compensatory and nominal damages.' Upon receipt of service, the Department filed an Answer inclusive of the administrative record, which has been accepted and marked as Exhibit A in ] lobo. This report is issued on the record alone for the Court's de novo consideration and adjudication of the merits of the Petitioner's claim for relief.

AMA Ysrs or' ITI FACT$ AND I Aw The scope of this Court's review is limited by ILS. 15: 1177( A)(5) & ( 9), which states, in pertinent part, as follows:

5) The review shall be conducted by the Court without a jury and shall be confined to the record. The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level.

9) The court may reverse or modify the decision only if substantial rights ofthe appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are: a.

In violation of constitutional or statutory provisions; b.

In excess of the statutory authority of the Agency; C. Made upon unlawful procedure; d. Affected by other error oflaw; e.

Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or f. Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record."

Petitioner seeks declaratory, punitive, compensatory and norninal damages for allegedly not receiving medical attention after being exposed to chemical agents.3 According to the record, Petitioner was sprayed with a chemical agent for fighting with another offender

See Petition for Judicial Review § V. Relief at p. 4. a See Request for Administrative Remedy attached to the Department's Answer filed on September 2019.

3 See supra notes 1 and 2. See also note 1 at §. W. Statement of Claim, P. 3.

19th JUDICl/ 6 4 iTRICT COURT

and failing to follow orders.4 Petitioner filed an irlitial grievance, which was denied at both the first and second steps. Thereafter, he filed the instant Petition for Judicial Review, claiming the following: Petitioner alleges that the decontamination procedure in place at [ LSP] results in unnecessary pain and suffering. Petitioner alleges that he was not provided medical attention nor was [ he] allowed to flush the chemicals from his eyes. Petitioner alleges that he was locked inside of a shower stall and had to use water from the shower nozzle to rinse the mace from his head, face and neck areas In its Answer, the Department states that Petitioner's " ARP was properly denied" because he received proper medical treatment and decontamination." 6 LSP Directive No. 09. 002 ( C) ( 20) ( a) ( i) reads " when chemical agents ...have been used affected individuals will be permitted to wash their face, eyes or other exposed skin areas, as soon as possible after the situation has been brought under control, and the individual will be examined by qualified medical personnel." 7 The first step response stated that Petitioner was " removed from the cell and escorted to the shower for decontamination [, and was] then seen by EMT." s The Secretary of the Department completed an amended second step response to address Petitioner's medical complaint, stating therein When medical staff responded to the security staffs request for them to report to Petitioner's] housing unit, they witnessed [ Petitioner] standing in [ his] cell, refusing to conic to the bars to be restrained; [ Petitioner' s] action refusing to come to the cell bars in order to be restrained) delayed [ his] medical assessment to begin; security staff issued several more verbal orders in an attempt to get [ Petitioner] to comply, [ but he] continued to refuse; [ Petitioner] eventually laid on the floor, exposed [ his] genitals and became compliant; the medical staff was then able to begin [ the] medical assessment. The medical staff noted at the beginning of [the] assessment that [ Petitioner] ambulated with normal gait; [ his] pupils were equal and reactive to light PEARL); a 1/4 inch superficial laceration, no active bleeding was noted to Petitioner's] occipital region; [Petitioner] then began to curse the medical staff in a hostile manner; security staff was notified of [his] actions; medical staff then wrote that [ Petitioner] had no other visible signs/ symptoms of trauma; based on the results of [the] assessment, [ Petitioner] was not transported to the ATU; medical staff noted that security staff arrived and escorted [ Petitioner] to the Tiger Unit. Medical opinion is controlling. A review of the Unusual Occurrence Report indicated that after [ Petitioner] w[ as] seen by medical staff, [he] w[ as] escorted to the Tiger Unit and placed in the shower for decontamination ( washing of [his] face, eyes, body, etc.)? ( Emphasis added.)

The burden of proof in any civil administrative appeal is with the Petitioner. Here, contrary to Petitioner's claims, review of the administrative record clearly shows that he received medical attention and was allowed to decontaminate in accordance with ISP Directive 09. 002 after being exposed to the chemical agent. In view of those facts, this Commissioner finds that the Department's decision is rationally based, especially in light of See the Department's Answer at 13.

5 See supra note i at §. IV. Statement of Claim, P. 3.

6 See supra note 4 at q 4.

7 Sec LSP Directive 09. 002 attached to the Department' s Answer.

See first .Step Response From, Case Number: ISP- 2o19- o62o, dated s/ t/ 19, attached to t Department' s Answer.

9 See Amended Second Step Response Form, Case Number: LSP- 2o19- o62o, dated 8/ 31/ 19, attached the Department' s Answer.

19th JUDICL 6 rj 3TRICT COURT -

r

the Petitioner' s failure to provide any evidence, in, his petition that shows the final agency decision was arbitrary, capricious or manifestly erroneous pursuant to R.S. 1177(A) (5) & ( 9).

Without any evidence in support of his claim, this Court is bound by law to affirm the Department's decision based on the administrative record submitted. Additionally, Petitioner's claims for punitive, compensatory and nominal damages should also be dismissed because such claims must be filed as ordinary suits in the parish of the prison to which the Petitioner was assigned when the cause of action arose. Hence, the 19th Judicial District Court is an improper venue for Petitioner' s monetary damages claims. If the Court agrees with this analysis, my formal recommendation follows.

OIVIMISSIONER' S RECOMMENDATION Having carefully reviewed the administrative record herein and the law applicable, it is the recommendation of this Commissioner that the Department's decision in ARP No. LSP- 2o19- o62o to deny relief is not arbitrary, capricious, or manifestly erroneous nor was it in violation of the Petitioner's statutory or constitutional rights. Therefore, I recommend affirming the Department's decision and dismissing this appeal with prejudice, at the Petitioner' s costs.

Respectfully recommended this 20th day of September 2019, in Baton Rouge, Louisiana.

12- N 41- 1.

KI A T. KIMBLE VM) 0 COMMISSIONER, SECTION B NINETEENTH JUDICIAL DISTRICT' COURT'

191h iumci, 6 6 STRICT COURT