Derrick Allen v. Lt. Freda Gee; State of Louisiana through Louisiana Department of Public Safety and Corrections Louisiana State Penitentiary

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2024 CA 0063
DERRICK ALLEN
VERSUS
LT. FREDA GEE; STATE OF LOUISIANA THROUGH LOUISIANA

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, LOUISIANA
STATE PENITENTIARY

Judgment Rendered: SEP 27 2024

OR Ok OR ok

\ On Appeal from the
= Twentieth Judicial District Court
In and for the Parish of West Feliciana
State of Louisiana
No. 23693, Sec. A

The Honorable Kathryn E. “Betsy” Jones, Judge Presiding

% Ok ok Ok oe
Derrick Allen Plaintiff/Appellant
Rayburn Correctional Center Self Represented Litigant
Angie, LA
Liz Murrill Attorneys for Defendants/Appellees
Attorney General Lt. Freda Gee and State of Louisiana
Phyllis E. Galzer Through Louisiana Department of
Steven P. Abide Public Safety and Corrections,
Assistant Attorney Generals Louisiana State Penitentiary
Baton Rouge, LA

* Ke RK &

Lp? BEFORE: GUIDRY, C.J., PENZATO, AND STROMBERG, JJ.
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STROMBERG, J.

An inmate appeals a judgment of the district court denying his motion to
recuse. The district court dismissed the motion upon finding that the inmate failed
to state grounds justifying a recusal under La. C.C.P. art. 151. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The plaintiff, Derrick Allen, an inmate at Rayburn Correctional Center, filed
this action on November 13, 2019, against the defendants, Lieutenant Freda Gee and
the State of Louisiana, through the Department of Public Safety and Corrections
(DPSC), alleging that he was sexually abused by Lieutenant Gee, a guard at the
Louisiana State Penitentiary in Angola, Louisiana.' The plaintiff filed a motion to
proceed in forma pauperis and attached to the motion an affidavit attesting that he
did not have sufficient funds for court costs. The motion was granted on November
14, 2019. On January 8, 2020, the matter was stayed and service of process was
recalled in accordance with La. R.S. 15:1186(B)(2)(a).?

On May 26, 2023, the defendants answered the plaintiffs petition denying the
majority of the allegations. After various pleadings were filed by the plaintiff, on
September 29, 2023, the defendants filed a motion to traverse the plaintiff's affidavit
of poverty and dismiss, or in the alternative, revoke the plaintiffs pauper status. On
October 19, 2023, the district court judge in this matter filed a “RESPONSE TO
LETTER and ORDER OF TRANSPORT FOR HEARING” that stated, in pertinent
part:

By letter dated September 9, 2023, mailed directly to the

undersigned judge, and received on [sic] by her on September 20, 2023,
the petitioner in the above entitled case, Derrick Allen DOC #29511,

' At the time of Mr. Allen’s alleged cause of action, he was incarcerated at the Louisiana State
Penitentiary.

* The motion to stay was allegedly lifted once the filing fees were paid in full.

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complains to the undersigned of multiple prior rulings in this case. No

direct substantive response to that letter will be made because a letter

to the court is not a legal pleading filed in compliance with the

Louisiana Code of Civil Procedure.

The district court judge attached the plaintiffs letter to her response letter. In the
plaintiff's letter, he requested that the district court judge recuse herself from his
case because she was not being impartial.

On November 2, 2023, the plaintiff filed a “Motion to Recuse Judge,” wherein
he alleged that the district court judge in this matter lied and conspired with the Clerk
of Court and the defendants’ counsel to get his case dismissed by having ex parte
communications without the plaintiff's knowledge. The plaintiff further alleged that
he was being prejudiced because the district court judge included in her response
letter that “it [was] noted that [the plaintiff] ha[d] filed in excess of fifteen civil cases
against the State of Louisiana spanning over two decades, just in the District Court
of West Feliciana Parish.” The plaintiff asserted that “it sound[ed] like the [jJudge
[was] helping counsel for [the] defendants defend [the] motion[.]” Therefore, the
plaintiff prayed that his motion to recuse be granted.

On November 15, 2023, the district court held a hearing on the plaintiff's
motion to recuse and the defendants’ motion to traverse the plaintiff's affidavit of
poverty and dismiss the suit, or in the alternative, revoke the plaintiffs pauper status.
After hearing arguments from the parties, the district court denied the motion to
recuse for failing to state a ground justifying recusal under La. C.C.P. art. 151 and

dismissed the plaintiff's case with prejudice at the plaintiffs cost. The district court

also granted the defendants’ motion to revoke the plaintiff's pauper status. On

December 12, 2023, the district court signed a judgment in accordance with its oral
ruling.’ The plaintiff subsequently appealed.

After the appeal was lodged with this court, the plaintiff filed a Motion to
Strike Defendants’ Brief. This court denied the motion on June 20, 2024.

DISCUSSION

On appeal, the plaintiff asserts that he is only appealing the denial of his
motion to recuse. In his brief, the plaintiff argues that the district court judge erred
when she allegedly denied the motion to recuse after she dismissed the plaintiff's
case. The plaintiff further argues that the district court judge erred when she refused
to recuse herself from the case or refer the motion to another ad hoc judge to hear
the matter. The plaintiff also argues that the district court judge improperly
disregarded his letter, dated September 9, 2023, that he sent to the district court judge
requesting that she recuse herself from his case.’

The defendants counter argue that the district court judge properly denied the
plaintiff's motion to recuse because the plaintiff failed to set forth a ground for
recusal under La. C.C.P. art. 151. The defendants assert that during the November
15, 2023 hearing, the district court judge denied the plaintiff's motion to recuse
before she granted the defendants’ motion to traverse and dismissed the case.
Therefore, the defendants argue that any argument from the plaintiff that the district
court improperly denied the plaintiff's motion to recuse after she dismissed the
plaintiff's case lacks merit. The defendants further argue that many of the plaintiff's

allegations are conclusory and unsubstantiated. Specifically, the defendants argue

> The district court signed an order on November 20, 2023, that denied the plaintiff's motion to
recuse because the plaintiff failed to sufficiently assert any of the grounds for mandatory recusal
under La. C.C.P. art. 151.

* The plaintiff's letter to the court is not a certified pleading recognized by La. C.C.P. art. 852. As
provided in La. C.C.P. art. 852, pleadings allowed in civil actions consist of “petitions, exceptions,
written motions, and answers.” Hicks v. Steve R. Reich, Inc., 38,424 (La. App. 2 Cir. 5/12/04),
873 So.2d 849, 852.

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that the plaintiff's allegations as to why his motion to recuse should be granted are
merely his disagreements with prior rulings of the district court judge. Therefore,
the defendants argue that the district court did not err when it found that the plaintiff
failed to allege a valid ground for his motion to recuse under La. C.C.P. art. 151.
Recusal of a judge is governed by La. C.C.P. arts. 151 through 159.

Succession of Brown, 2023-1137 (La. App. 1 Cir. 6/4/24), 2024 WL 2822728, *2.

Louisiana Code of Civil Procedure article 154° specifically requires that a party
desiring to recuse a judge of a district court “shall” file a written motion, assigning
the ground for recusation “no later than thirty days after discovery of the facts
constituting the ground upon which the motion is based[.]” Louisiana Code of Civil
Procedure article 154(B) provides that if the motion to recuse sets forth a ground for
recusal under La. C.C.P. art. 151, the judge shall either recuse herself or make a
written request to the supreme court for the appointment of an ad hoc judge. The
grounds for recusal of a judge are set forth in La. C.C.P. art. 151, which states:

A. A judge of any trial or appellate court shall be recused upon any of
the following grounds:

(1) The judge is a witness in the cause.

(2) The judge has been employed or consulted as an attorney in
the cause or has previously been associated with an attorney
during the latter’s employment in the cause, and the judge
participated in representation in the cause.

(3) The judge is the spouse of a party, or of an attorney employed
in the cause or the judge’s parent, child, or immediate family
member is a party or attorney employed in the cause.

> Louisiana Code of Civil Procedure article 154(A) states:

A party desiring to recuse a judge of a district court shall file a written motion
therefor assigning the ground for recusal under Article 151. This motion shall be
filed no later than thirty days after discovery of the facts constituting the ground
upon which the motion is based, but in all cases prior to the scheduling of the matter
for trial. In the event that the facts constituting the ground upon which the motion
to recuse is based occur after the matter is scheduled for trial or the party moving
for recusal could not, in the exercise of due diligence, have discovered such facts,
the motion to recuse shall be filed immediately after such facts occur or are
discovered.

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(4) The judge is biased, prejudiced, or interested in the cause or
its outcome or biased or prejudiced toward or against the
parties or the parties’ attorneys or any witness to such an
extent that the judge would be unable to conduct fair and
impartial proceedings.

B. A judge of any trial or appellate court shall also be recused when
there exists a substantial and objective basis that would reasonably
be expected to prevent the judge from conducting any aspect of the
cause in a fair and impartial manner.

C. In any cause in which the state or a political subdivision thereof is
interested, the fact that the judge is a citizen of the state or a resident
of the political subdivision, or pays taxes thereto, is not a ground for
recusal. In any cause in which a religious body or religious
corporation is interested, the fact that the judge is a member of the
religious body or religious corporation is not alone a ground for
recusal.

When a party seeks recusation of a judge based on allegations of bias or
prejudice, our jurisprudence requires not only a finding of actual bias or prejudice,
but that the bias or prejudice must be of a substantial nature and based on more than

conclusory allegations. Covington v. McNeese State University, 2010-0250 (La.

4/5/10), 32 So.3d 223, 224-225. Adverse rulings alone do not show bias or

prejudice. Earles v. Ahlstedt, 591 So.2d 741, 746 (La. App. 1 Cir. 1991). Further,

alleged bias or prejudice which “emanates from testimony and evidence set forth in
the proceedings” is not of an “extrajudicial nature” and is therefore insufficient to

merit recusal. Augman v. City of Morgan City, 2003-396 (La. App. 1 Cir. 12/31/03),

864 So.2d 248, 249.

The record reveals that the plaintiff filed a motion to recuse on November 2,
2023, and the district court considered the motion during the November 15, 2023
hearing. The record further reveals that after the district court judge heard from the
plaintiff on the motion to recuse, she dismissed the motion and stated that “[s]imply
disagreeing with a [j]udge’s ruling is not a valid ground for recusal.” The district

court judge then proceeded to dismiss the plaintiff's case with prejudice. The district

court judge followed the proper procedure in denying the plaintiff's motion to recuse
without requesting the appointment of an ad hoc judge in accordance with La. C.C.P.
art. 154(B) because she found that the plaintiff failed to state a valid ground for
recusal as mandated by La. C.C.P. art. 151. Where the motion to recuse does not

contain a valid ground for recusation, the district court judge may deny the motion

without referring it to another judge for determination. David v. David, 2014-999
(La. App. 3 Cir. 2/4/15), 157 So.3d 1164, 1168, writ denied, 2015-0494 (La.
5/15/15), 170 So.3d 968.

Although the plaintiff has a multitude of allegations in his motion to recuse
the district court judge in this matter, it appears that his recusal request is largely
premised on his disagreements with the district court judge’s prior rulings in his

case. Adverse rulings alone do not show bias or prejudice. Cave v. Cave, 2020-

0240, 2020-0550 (La. App. 1 Cir. 3/25/21), 2021 WL 1134946, *12 (unpublished).
A judge is presumed to be impartial. The grounds for recusal enumerated in La.
C.C.P. art. 151 are exclusive and do not include a “substantial appearance of the
possibility of bias” or even a “mere appearance of impropriety” as causes for
removing a judge from presiding over a given action. Louisiana Code of Civil
Procedure article 151 requires a finding of actual bias or prejudice, which must be
of a substantial nature and based on more than conclusory allegations. Slaughter v.

Board of Sup’rs of Southern University and Agr. and Mechanical College, 2010-

1114 (La. App. 1 Cir. 8/2/11), 76 So.3d 465, 471, writ denied, 2011-2112 (La.

1/13/12), 77 So.3d 970.

Accordingly, after a thorough review of the record, we find no error in the
district court’s denial of the plaintiff's motion to recuse.° Therefore, the plaintiff's

assignment of error lacks merit.
CONCLUSION
For the reasons stated above, the December 12, 2023 judgment of the district
court is affirmed. All costs of this appeal are assessed to the plaintiff, Derrick Allen.

AFFIRMED.

° We recognize that the plaintiff was a self-represented litigant in the proceedings before the district
court and that these litigants should generally be given more latitude than litigants represented by
counsel because of the lack of formal training in the law and rules of procedure. In re Medical
Review Panel Claim of Scott, 2016-0145 (La. App. 4 Cir. 12/14/16), 206 So.3d 1049, 1058, writ
denied, 2017-0063 (La. 2/17/17), 216 So. 3d 53. However, we also recognize that the plaintiff, a
self-represented litigant, assumes responsibility for his lack of knowledge of the law, and must
carry his burden of proof to be entitled to relief. Burton v. Belt, 2021-0571 (La. App. 4 Cir.
5/18/22), 340 So.3d 1176, 1183, n.2.

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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2024 CA 0063
DERRICK ALLEN
VERSUS
LT. FREDA GEE; STATE OF LOUISIANA THROUGH LOUISIANA

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, LOUISIANA
STATE PENITENTIARY

(bp penzaro. J., concurring.

I respectfully concur in this matter. Mr. Allen’s appeal concerns only the
portion of the December 12, 2023 judgment denying his motion to recuse. Mr. Allen
does not assign error to the trial court’s ruling on the State’s motion, which resulted
in the dismissal of his suit with prejudice. A judgment denying a motion to recuse
is interlocutory and may be appealed only upon a showing of irreparable injury.
Augman v. City of Morgan City, 2004-1746 (La. App. Ist Cir. 9/23/05), 914 So.2d
583, 585. An interlocutory judgment may not be appealed after a final judgment is
rendered without seeking review of the final judgment as well. Marco Outdoor
Advertising, Inc. v. Department of Transportation & Development By & Through
Wilson, 2021-0123 (La. App. Ist Cir. 7/13/21), 329 So.3d 288, 297-298, writ denied,
2021-01195 (La. 11/10/21), 326 So.3d 1247; Palmisano v. Nauman-Anderson,
2017-511 (La. App. 5th Cir. 12/27/17), 236 So.3d 1275, 1277. Mr. Allen filed a
petition for appeal within the delay to file a writ application; therefore, in the interest
of judicial economy, I would convert the appeal to a writ application and exercise
our supervisory jurisdiction to consider the merits of Mr. Allen’s arguments. See La.
C.C.P. art. 1914; Uniform Rules of Louisiana Courts of Appeal, Rule 4-3. See also
Matter of Succession of Pierre, 2023-1322 (La. App. 1st Cir. 5/31/24) --- So.3d ---,

2024 WL 2969200, *3.