Kenan Allen v. Louisiana Department of Public Safety & Corrections

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

DO FIRST CIRCUIT

NO. 2020 CA 0748

KENAN ALLEN

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS

Judgment Rendered: FEB 1 9 2021

On Appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
No. C684439

The Honorable Donald R. Johnson, Judge Presiding

Kenan Allen Plaintiff/Appellant,
Angola, Louisiana In Proper Person

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

BEFORE: THERIOT, WOLFE, AND RESTER, JJ.

WOLFE, J.

Kenan Allen, an inmate in the custody of the Louisiana Department of Public

Safety and Corrections (DPSC), appeals the district court' s judgment that dismissed

his petition for judicial review of DPSC' s denial of his request for administrative

remedy numbered LSP -2019- 0708. We affirm.

FACTS AND PROCEDURAL HISTORY

Allen filed his petition for judicial review pursuant to Louisiana' s Corrections

Administrative Procedure Act ( CARP), La. R. S. 15: 1171 et seq., after exhausting

his administrative remedies. Allen complains that DPSC unlawfully charged his

inmate account for the costs of sending and receiving legal mail and the cost of

receiving a legal supply package, causing his account to reflect a debt of $507. 51.

Allen asked that DPSC' s department regulation B- 09- 004, which DPSC cited as

authority for its actions, be declared unconstitutional, that the amounts charged to

his account be refunded, and that his account balance be corrected.

The Commissioner assigned to the matter issued a report to the district court

noting, " The point of contention in this request for judicial review is what appears

to be [ Allen' s] belief that he is indigent due to his incarcerated status and that this

indigent status absolves him from having to pay for supplies and mail service." The

Commissioner reviewed the regulation at issue, which allows indigent inmates to

receive certain items with the costs showing as a debit against their accounts to be

collected if and when money is available. The Commissioner found no merit in

Allen' s claims that the regulation is unconstitutional and found that DPSC' s decision

denying him reliefwas not arbitrary, capricious, manifestly erroneous, or in violation

of Allen' s statutory or constitutional rights. The district court adopted the

Commissioner' s reasoning and dismissed Allen' s petition. This appeal followed.

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DISCUSSION

Judicial review of a CARP claim is governed by La. R.S. 15: 1177. On appeal

of the district court' s judgment, the appellate court reviews the administrative

record de novo under the criteria of La. R.S. 15: 1177( A)(9), owing no deference to

the factual findings or legal conclusions of the district court. Johnson v. Louisiana

Dep' t of Pub. Safety & Corr., 2019- 1244 ( La. App. 1st Cir. 5/ 11/ 20), 304 So. 3d

426, 433, writ denied, 2020- 00839 ( La. 12/ 8/ 20). Thus, a reviewing court may

reverse or modify the administrative decision only if substantial rights of the

appellant have been prejudiced because the administrative decisions or findings are:

1) in violation of constitutional or statutory provisions; ( 2) in excess of the statutory

authority of the agency; ( 3) made upon unlawful procedure; ( 4) affected by other

error of law; ( 5) arbitrary, capricious, or characterized by an abuse of discretion or

clearly unwarranted exercise of discretion; or ( 6) manifestly erroneous in view of

the reliable, probative, and substantial evidence on the whole record. La. R. S.

15: 1177( A)(9).

A threshold issue in any appeal governed by CARP is whether a substantial

right is implicated. See La. R.S. 15: 1177 ( A)(9); Wallace v. Louisiana Dep' t of

Pub. Safety & Corr., 2017- 0287 ( La. App. 1st Cir. 9/ 28/ 17), 232 So. 3d 663,

665, writ denied, 2018- 0047 ( La. 1/ 8/ 19), 260 So. 3d 588. A substantial right is one

in which the inmate has a liberty interest protected by the Due Process Clause.

Dorsey v. Louisiana Dep' t of Pub. Safety & Corr., 2017- 1651 ( La. App. 1st Cir.

11/ 2/ 18), 265 So. 3d 925, 927. Prisoners have a property interest in funds in their

inmate banking accounts that is entitled to due process protection. Anderson v.

Louisiana Dep' t of Pub. Safety & Corr., 2017- 0987 ( La. App. 1st Cir. 2/ 7/ 18),

242 So. 3d 614, 618. As the Commissioner correctly observed, Allen' s claims

regarding his inmate account implicate a substantial right; therefore, we proceed to

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consideration of his claim that DPSC' s actions are in violation of constitutional

provisions.

DPSC handled Allen' s inmate account according to Regulation B- 09- 004,

which sets forth DPSC' s procedures for providing indigent services and supplies to

indigent offenders.' For purposes of the regulation, indigent services and supplies

include "[ t]hose services and/ or supplies that are deemed necessary to be provided

at state expense if the offender does not have sufficient funds to purchase them

himself," and specifically includes the cost of postage for legal mail and the cost of

legal supplies. " Indigent offenders" are defined as "[ t]hose who do not have

sufficient funds in the appropriate account( s) at the time of their request for indigent

services and/or supplies to fully cover the cost of the requested services or supplies."

Pertinent to Allen' s claims, Regulation B- 09- 004 provides the following

procedures for DPSC to recoup the costs of indigent services:

C. A record in the form of medical co -payment, canteen sale or

offender banking withdrawal slip shall be kept of access to
indigent services and/or supplies made by indigent offenders. The
transaction shall be recorded in the Centralized Offender Banking
system and shall reflect the cost of the service and/ or supply in the
offender' s account( s).

D. In accordance with Department Regulation Nos. B- 06- 001 " Health
Care" and B- 09- 003 " Offender Banking," indigent offenders shall
be assessed all current funds available to support payment for
indigent services and/ or supplies and will owe the difference. This
amount shall be reflected as a debt owed in the offender' s
account( s). Deductions shall be made from deposits to the
offender' s drawing or savings account until the debt is satisfied.

Allen contends these procedures violate his constitutional rights to receive the

materials at no cost to him, citing Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491,

52 L.Ed.2d 72 ( 1977).

The regulation was provided to Allen in connection with DPSC' s responses to his request
for administrative remedy and is contained in the administrative record before us on appeal.

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In Bounds, 97 S. Ct. at 1494, the United States Supreme Court acknowledged

inmates' well- established constitutional right of access to the courts. See Lewis v.

Casey, 518 U.S. 343, 350, 116 S. Ct. 2174, 2179, 135 L.Ed.2d 606 ( 1996).

Hence, " indigent inmates must be provided at state expense with paper and pen to

draft legal documents, with notarial services to authenticate them, and with stamps

to mail them." Bounds, 97 S. Ct. at 1496. However, Bounds does not prohibit the

state from tracking the costs of items provided to indigent inmates at state expense

and attempting to recoup those amounts if and when funds are available in the

inmate' s account. Cf. Schenker v. Rowley, 3: 12 -CV -00174 -LRH, 2013 WL

321688, at * 3 ( D. Nev. Jan. 28, 2013). Allen' s argument to the contrary is legally

incorrect.

It is undisputed that DPSC provided the legal supplies to Allen at the State' s

expense. After de novo review, we find no merit to Allen' s arguments that DPSC

violated his constitutional rights in attempting to recoup the cost of those supplies

pursuant to Regulation B- 09- 004. In reaching this decision, we note that this court

previously upheld the constitutionality of DPSC' s department regulation B- 09- 003,

which provides procedures for DPSC to credit debts against inmate accounts. See

Netter v. Louisiana Dep' t of Pub. Safety & Corr., 2017- 0397 ( La. App. 1 st Cir.

2/ 25/ 19)( unpublished), 2019 WL 927140, * 3, writ denied, 2019- 00667 ( La.

12/ 10/ 19), 285 So. 3d 487. Further, this court has found no merit to an inmate' s

complaints about amounts deducted from his inmate account pursuant to Regulation

B- 09- 003 for payment of court costs that accrued while the inmate proceeded in

forma pauperis. See Lewis v. Louisiana Dep' t of Pub. Safety & Corr., 2016- 1560

La. App. 1st Cir. 6/ 2/ 17) ( unpublished), 2017 WL 2403016, * 3, writ denied, 2016-

474 ( La. 10/ 27/ 17), 228 So. 3d 1226.

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CONCLUSION

The judgment of the district court that dismissed Allen' s petition for judicial

review with prejudice is affirmed. Costs of this appeal are assessed to Kenan Allen.

AFFIRMED.

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