V, STATE OF LOUISIANA COURT OF APPEAL

V FIRST CIRCUIT

tj 2024 CA 0533

112 .* wg!Row

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Judgment Rendered: DEC 2 7 2024

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 739306

Honorable Wilson E. Fields, Judge Presiding

Derrick Jerome Allen Plaintiff/Appellant Angie, Louisiana Pro se

Jonathan R. Vining Counsel for Defendant/ Appellee Adrienne E. Aucoin Louisiana Department of Public Safety Baton Rouge, Louisiana and Corrections

BEFORE: McCLENDON, WELCH, AND LANIER, 33.

McCLENDON,, J.

This i8@O appealfrom adistrict court judgment, dismissing 8 petition for judicial review nfBOadministrative remedy procedurefor lack nfsubject matter jurisdiction. For

the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Derrick ] erODO2 Allen, an inmate in the custody of the LOUiSi8O@ Department of Public Safety and Corrections ( Department), filed 8 petition in the 19th Judicial District COUd S22kjOO judicial [ 8VieVV of the rejection of an Administrative AempH» Procedure

ARP) he alleged he initiated. In his petition, Mr, Allen asserted that he filed his ARP, but that it was OE9/ 8[ accepted Of issued 8 OUDlhpr. Attached to MF. Allen' s petition was a one- page document titled " This TSA Request For Administrative ReO0ed«,° Although Mr.

Allen had written the date OF° D2- 10- 23" Dn the request, there is nOdate stamp Orother indication of any kind to show if the request was actually submitted or received.' Thereafter, the Commissioner of the 19th Judicial District Court2 issued a mandamus service order, OFd8[ Dg service of the order and the petition On the DeD8rtm2nt. 3TO [ 8GDOOS8, the D8O@rtOOeOf filed an " EXC8DtiOO Of Snh* t Matter

Jurisdiction for Failure to Exhaust & HD1iOiSƒF8tjV8 Remedies." Th8F2iO/ the Department alleged that if had OO record Of M[. Allen " having ever sought relief regarding an incident where he was in the visiting shed at the SaiD8 time as another inmate who [ VVaS] in his eM8DlV jacket." Citing LSA- R.S. 15: 1184(/\)[ 2) 4/ the Department explained that OO

I In the ARP he alleged he filed, Mr. Allen asserted that on January 28, 2023, he was visiting his girlfriend in the " visiting shed at Hunt's" atthe same time another inmate, Robert Harrell, and the inmate's mother in the visiting shed as well. Mr. Allen contended that Mr. Harrell was in his '"enemy' and that the two offenders were not supposed to be so close to each other, since Harrell had " burnt me up while I was inbed as|eep," resulting inaten-day hospital stay. Mr. Allen sought tohave the incident investigated and to have whoever was at fault charged with malfeasance in office and relieved of his or her duties. Mr. Allen also asked for damages, to have Harrell sent to another prison, and for no further retaliation against Mr. Allen. z The Office of the Commissioner of the 19th] DCwas created byBA-R.S. 13: 711tohear and recommend disposition ofcriminal and civil proceedingsarising out ofthe incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted bmthe district court, which may be accepted, rejected, or modified. Allen v. Louisiana Department of Publim' and Corrections, 2020- 0445( La. App. 1 Or. 2y19/ 21), 320So.3d 1175, 1177 n. 2. z The Commissioner also ordered the Department to respond to Mr. Allen' s mandamus request, wherein he alleged that the Department never responded or answered his ARP and sought to have the Department answer said ARP immediately." Louisiana Revised Statutes 15: 1184( A)( 2) provides that"[ n] o prisoner suit shall assert dmirn under state law until such administrative remedies as are available are exhausted. If prisoner suit is filed in contravention ofthis Paragraph, the court shall dismiss the suit without prejudice."

petition for judicial review may be filed in the district court without exhausting available administrative remedies and that Mr. Allen had failed to seek and exhaust administrative review of his claims pursuant to LSA- R.S. 15: 1171, etseq., and LSA- R.S. 15: 1181, etseq.

Attached to its memorandum in support of the exception, the Department attached the affidavit of Kelly Stone Liebert, an Administrative Coordinator 4 for the Department, Legal Services, Office of the Secretary. Ms. Liebert attested that after a review of the entire administrative proceedings, as maintained in the normal course of business by the Department, she was unable to locate an ARP filed by Mr. Allen in connection with this matter. The affidavit was dated November 15, 2023.

After Mr. Allen opposed the exception, the Commissioner issued a screening report on January 9, 2024, recommending that the district court dismiss Mr. Allen's petition without prejudice for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies. On February 1, 2024, Mr. Allen filed a traversal to the

Commissioner's findings, arguing that his petition should not be dismissed for lack of subject matter jurisdiction because once he filed the ARP and the ARP was never answered or responded to, the administrative remedies regarding the ARP should be deemed exhausted. 5

On February 20, 2024, after a de novo consideration of the pleadings, together with Mr. Allen's traversal, the district court issued a Screening Judgment, adopting the written recommendation of the Commissioner and dismissing Mr. Allen's Petition for Judicial Review of an unnamed ARP without prejudice and at Mr. Allen' s costs. Mr. Allen appealed.

DISCUSSION

The procedures set forth in the Corrections Administrative Remedy Procedure provide the exclusive remedy available to inmates for receiving, hearing, and disposing of complaints and grievances that arise while the inmate is within the custody or under the supervision of DPSC, with appellate review first in the district court and then the court

5 We note that on February 1, 2024, Mr. Allen also filed a Motion to Declare Commissioners in the 19th Judicial District Court Unconstitutional. The matter was set for hearing on April 22, 2024, and the April 22, 2024 minute entry reflects that at the hearing before the district court, Mr. Allen stated that he mailed to the clerk of court a motion to recuse the court. The court "passed this matter due to said motion to recuse." The record before us does not contain a motion to recuse.

of appeal. See LSA- R. S. 15: 1171( 6); LSA- R. S. 15: 1177( A)( 10); Allen v. Louisiana

Department of Public Safety & Corrections, 2023- 1238 ( La. App. I Cir. 6/ 14/ 24), 2024 WL 2988979, * 2 ( unpublished). The rules and procedures governing the ARP process are set forth in LAC 22: 1. 325. Allen v. Louisiana Department of Public

Safety and Corrections, 2020- 0445 ( La. App. 1 Cir. 2/ 19/ 21), 320 So. 3d 1175, 1177.

Offenders are required to use and complete all steps in the ARP properly, including obeying all rules of the procedural process. LAC 22: I. 325. D. 1; Allen, 320 So. 3d at 1178.

The district court is precluded from entertaining an inmate' s ARP complaint until he has exhausted the remedies provided to him by the ARP process. Allen, 2024 WL 2988979, at * 2. If suit is filed prior to exhaustion of administrative remedies, the district

court lacks jurisdiction over the matter, and the suit shall be dismissed without prejudice.

See LSA- R. S. 15: 1184( A)( 2) and LSA- R. S. 15: 1172( C), 6 Allen, 2024 WL 2988979, at * 2.

Proper exhaustion of administrative remedies only occurs when an offender flies a timely and procedurally proper request for remedy, which after it is accepted, is addressed on the merits at both the first and second step. Allen, 2024 WL 2988979, at * 2.

In this matter, Mr. Allen flied his petition for judicial review, but failed to attach a final agency decision. Upon receipt of the mandamus service order, the Department filed its exception, asserting a lack of subject matter jurisdiction and stating that there is no record of Mr. Allen having ever sought relief and exhausting his administrative remedies.

Because this is a complaint that is subject to the administrative process, it must be submitted through the entire process before the district court has jurisdiction to consider it. See Allen, 320 So. 3d at 1178. Accordingly, the district court did not have subject matter jurisdiction to consider Mr. Allen' s petition for judicial review.

CONCLUSION

For the above reasons, the February 20, 2024 screening judgment of the district court, dismissing Mr. Allen' s petition for judicial review without prejudice for lack of

6 Louisiana Revised Statutes 15: 1172( C) provides: If an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

11. subject matter jurisdiction, is affirmed. Costs of this appeal are assessed to Derrick Jerome Allen.