Opinion
2022 CA 0462
11-04-2022
JASON SPIKES v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
Jason Spikes, Pro se Plaintiff/Appellant, Jonathan Vining Counsel for Defendant/Appellee, Louisiana Department of Public Safety and Corrections
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number C714S59, Section 26; Honorable Richard "Chip" Moore, Judge Presiding
Jason Spikes, Pro se
Plaintiff/Appellant,
Jonathan Vining
Counsel for Defendant/Appellee,
Louisiana Department of Public
Safety and Corrections
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
Jason Spikes, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (LDPSC) housed, at Rayburn Correctional Center in Washington Parish, appeals the judgment of the trial court, dismissing his suit and denying his request for judicial review. For the following reasons, we affirm.
DISCUSSION
On December 30, 2021, plaintiff filed a petition for judicial review of Administrative Remedy Procedure (ARP) No. RCC-2021-17, seeking review in accordance with LSA-R.S. 15:1171, et seq. Plaintiff claims that his sentence was vacated by the Eastern District of Louisiana docket number 18-0844, and that "they" were only worried about "the hair on [his] head" and not that he "could catch [COVID-19] and... die [while] wrongfully convicted." Plaintiff specifically requested relief in the form of "Civil, Criminal, and Administrative Liabilities." Attached to his petition was a "Motion to Compel Discovery Fed.R.Civ.P. 37(a)," requesting (Review Board footage) from December 30, 2020 and information regarding a Disciplinary Board hearing on January 5, 2021, wherein he was disciplined for his hair.
On January 10, 2022, the Commissioner issued a Rule to Show Cause why plaintiffs suit should not be dismissed for lack of subject matter jurisdiction based on a failure to timely seek judicial review pursuant to LSA-R.S. 15:1177, which provides for a thirty-day peremptory period on all appeals, which runs from the date the inmate received the final agency decision. The Commissioner noted that the final agency decision was issued on April 7, 2021, but his petition was not received by the Clerk of Court until December 30,2021.
The office of the Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711. The Commissioner's duties include the hearing and recommendation of disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them, in whole or in part, and also may receive further evidence or recommit the matter to the Commissioner with instructions. LSA-R.S. 13:713.
In response, plaintiff did not provide proof of the date he received the final agency decision, but instead filed a "Motion to Produce Documents" on January 25, 2022, contending that the correctional facility in which he was housed would not provide him with a copy of the ARP documents he needed in order to respond to the rule to show cause. Plaintiff requested that the court provide him with copies of the first and second step responses to the ARP that he previously filed with his petition. Thereafter, on February 14, 2022, plaintiff filed a "Response for Rule to Show Cause," wherein he stated that he "was not trying to appeal the decision that the [LDPSC] made," but was seeking relief due to the alleged deprivation of his rights at a Review Board hearing on December 30, 2020 and a disciplinary hearing on January 5, 2021. In this response, plaintiff made allegations concerning statements made by two different prison officials at the hearings and contended that the officials and the Twenty-Second Judicial District Court were "conspiring" with each other to keep him wrongfully incarcerated.
Thereafter, the Commissioner's report recommended that plaintiffs petition be dismissed for lack of subject matter jurisdiction due to the untimely nature of his filing. The Commissioner noted that although plaintiff did respond to the rule to show cause, he did not provide the court with proof of when he received the final agency decision. The Commissioner found that plaintiffs suit was perempted under LSA-R.S. 15:1177(A)(1)(a) and that accordingly, the court did not have jurisdiction to hear the matter. The reviewing judge adopted the Commissioner's recommendation and dismissed plaintiffs suit with prejudice in a judgment signed March 23, 2022. Plaintiff appeals the judgment.
In his pro se brief, plaintiff does not list any specific assignments of error, but raises the same complaints he raised in his filings to the trial court, namely that prison officials did not care that he was wrongfully convicted and could catch COVID-19 and die while imprisoned, but were only worried about "a black man with an afro."
Louisiana Revised Statutes 15:1177(A) provides that any "offender who is aggrieved by an adverse decision, ... by the [LDPSC] ... 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 LSA-R.S. 15:1177(A) is peremptive rather than prescriptive. Herrington v. Department of Public Safety and Corrections. 2020-0478 (La.App. 1st Cir. 12/30/20), 318 So.3d 164, 166. The record reflects that the final agency decision on plaintiffs ARP was issued on April 7, 2021. However, plaintiff did not pursue judicial review of that decision until December 30, 2021, and failed to establish or provide proof of the date he received the agency's decision as required in response to the Commissioner's rule to show cause. Plaintiff's petition for judicial review was neither signed nor dated, although he did submit a notarized verification with the petition, which was signed by the notary on October 18, 2021. Thus, plaintiff has failed to establish that he filed his petition within the applicable peremptive period.
The "mailbox rule" states that a, pro se prisoner's petition for judicial review is deemed filed at the time it was delivered to the prison authorities for forwarding to the district court. Bourque v. Louisiana Department of Public Safety & Corrections. 2016-1342 (La.App. 1st Cir. 4/12/17), 218 So.3d 1041, 1043.
After a thorough review of the record, we find no error in the trial court's determination that plaintiffs petition for review was untimely filed, thus requiring dismissal of the petition for lack of subject matter jurisdiction. Accordingly, we hereby affirm the March 23, 2022 judgment of the trial court. Costs of this appeal are assessed to the plaintiff/appellant, Jason Spikes.
AFFIRMED.