Opinion
NO. 2020 CA 0478
12-30-2020
William J. HERRINGTON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Jonathan R. Vining, Baton Rouge, LA, Attorney for Plaintiff-Appellee, Louisiana Department of Public Safety and Corrections William J. Herrington, Jackson, LA, Defendant-Appellant, In Proper Person
Jonathan R. Vining, Baton Rouge, LA, Attorney for Plaintiff-Appellee, Louisiana Department of Public Safety and Corrections
William J. Herrington, Jackson, LA, Defendant-Appellant, In Proper Person
BEFORE: HIGGINBOTHAM, THERIOT, AND WOLFE, JJ.
HIGGINBOTHAM, J.
William J. Herrington is an inmate in the custody of the Louisiana Department of Public Safety and Corrections (the Department), housed at Dixon Correctional Institute. On November 13, 2019, Mr. Herrington filed a petition for judicial review of Administrative Remedy Procedure (ARP) No. DCI-2019-699, seeking review in accordance with La. R.S. 15:1171, et seq. Mr. Herrington's complaints involve allegations that while serving a fifty-year sentence, he was improperly released on parole for a three-year period under Good Time Act 138 instead of Act 848. He claims that he was required to pay $2,613.00 in parole fees from June 2012 through September 2015, which amounted to "slavery" and "punishment ... above and beyond" his sentence and, therefore, he sought reimbursement of the fees. After the Commissioner of the Nineteenth Judicial District Court initially screened the appeal for failure to exhaust administrative remedies, the trial court adopted the recommendation of the Commissioner and dismissed the petition with prejudice. Mr. Herrington, pro se, appeals to this court.
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. 13:711(A). The Commissioner's written findings and recommendations are submitted to a trial court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5). Pursuant to La. R.S. 15:1178 and La. R.S. 15:1188, the trial court is required to screen all prisoner suits prior to requiring service on the Department to determine if the court has subject matter jurisdiction.
In the Commissioner's screening report, it is noted that Mr. Herrington previously filed the same grievance in ARP No. DCI-2018-394. The record confirms that the Department denied ARP No. DCI-2018-394 on August 30, 2018, finding no merit to the complaint and that Mr. Herrington was placed under the correct Good Time Act. Rather than appealing the rejection of his initial ARP, almost a year later, Mr. Herrington filed a second ARP, No. DCI-2019-699. The second ARP was rejected by the Department on October 9, 2019, because the issue had already been addressed in the first ARP. At that point, Mr. Herrington filed a petition for judicial review in the trial court, only referencing the second ARP No. DCI-2019-699.
Louisiana Revised Statute 15:1172(C) states that if "an offender fails to timely initiate or pursue his administrative remedies ..., his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice ." (Emphasis added.) Further, La. R.S. 15:1177(A) provides that any "offender who is aggrieved by an adverse decision, ... by the Department... may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court[.]" The thirty-day period provided by La. R.S. 15:1177(A) is peremptive rather than prescriptive. Carter v. Lynn, 93-1583 (La. App. 1st Cir. 5/20/94), 637 So.2d 690, 691. The record reflects that Mr. Herrington's second step on his first ARP, No. DCI-2018-394, was denied on August 30, 2018. Mr. Herrington did not pursue judicial review of that decision; therefore, his complaint is deemed abandoned, and his right to relief for that particular grievance ceased to exist. Id.
When the Commissioner recommended that the trial court dismiss Mr. Herrington's petition for judicial review of the Department's rejection of the same grievance in ARP No. DCI-2019-699 for failure to exhaust his administrative remedies, the trial court did not abuse its discretion in dismissing the petition with prejudice. Mr. Herrington's abandonment of his grievance in the first ARP resulted in his failure to exhaust his administrative remedies. Nothing in the record refutes this fact. In his traversal of the Commissioner's screening recommendation, Mr. Herrington actually acknowledges that he did not seek judicial review for his first ARP, No. DCI-2018-394. Therefore, after considering the entire record of the proceedings, this court is required to affirm the trial court's judgment that dismissed Mr. Herrington's petition for judicial review for lack of subject matter jurisdiction.
The trial court and this court do not have subject matter jurisdiction over Mr. Herrington's claim, because he failed to exhaust administrative remedies available to him. See Collins v. Vanny, 2014-0675 (La. App. 1st Cir. 1/15/15), 169 So.3d 405, 407.
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CONCLUSION
For the above reasons, we affirm the trial court's screening judgment, dismissing William J. Herrington's petition for judicial review with prejudice. All costs of this appeal are assessed to plaintiff-appellant, William J. Herrington.