Derrick Jerome Allen v. Louisiana Department of Public Safety and Corrections

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0532

DERRICK JEROME ALLEN

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

Judgment Rendered. - DEC 2 7 2024

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 693381

The Honorable Ronald Johnson, Judge Presiding

Derrick Jerome Allen Plaintiff/Appellant
Angie, Louisiana Pro Se

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

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

THERIOT, J.

In this case, Derrick Jerome Allen appeals the dismissal of his petition for

judicial review, which was related to a request under Louisiana' s Administrative

Remedy Procedure (" ARP"). For the reasons set forth herein, we vacate the trial

court' s April 12, 2024 judgment and affirm the trial court' s March 14, 2024

judgment.

On January 29, 2020, Derrick Jerome Allen, an inmate in the custody of the

Louisiana Department of Public Safety and Corrections (" DPSC"), filed a petition

in the 19" Judicial District Court (" JDC") seeking judicial review of the rejection

of his Administrative Remedy Procedure No. LSP -2019- 3131 (" ARP 3131") in

accordance with La. R.S. 15: 1177.

Allen filed ARP 3131 in December 2019, alleging that DPSC failed to

investigate sexual assault allegations made by Allen against Lieutenant Freda Gee,
an employee of DPSC. Allen also alleged in ARP 3131 that DPSC employee

Lieutenant Colonel William Rosso made certain statements about the sexual

assault investigation that conflicted with a subsequent response received by Allen.
Based upon the purportedly conflicting statements, Allen alleged that Lt. Col.

Rosso was guilty of malfeasance in office, obstruction of justice, and falsifying
documents.

The statements referred to are contained within DPSC' s responses to two of

Allen' s previously -filed ARPs, ARP. No. LSP -2019- 0827 (" ARP 0827") and ARP

No. LSP -2019- 1085 (" ARP 1085"). Relevantly, ARP 0827 involved Allen' s

sexual assault allegations against Lt. Gee. DPSC investigated Allen' s sexual

assault allegations pursuant to the Prison Rape Elimination Act' (" PREA"), after

which DPSC concluded that Allen' s allegations were unsubstantiated. The other

See LAC 22: 1. 325( D)( 2).

I

relevant ARP, ARP 1085, related to certain claims made by Allen against another
DPSC employee, Colonel Luke Rheams.2

DPSC rejected ARP 3131, which is at issue in this appeal, at the first step of
the ARP process on December 23, 2019. DPSC provided the following reason for
the rejection, "
Your [ application] is being rejected [ because] you [ cannot] file an

ARP on an incident that you have filed on previously. The incident has already
been addressed and will not be addressed again."

On January 29, 2020, Allen filed his petition for judicial review of DPSC' s

rejection of ARP 3131. Allen alleged that DPSC improperly rejected ARP 3131

so they wouldn' t have to address the issues" contained within ARP 3131.

DPSC, through James M. LeBlanc,
filed an answer denying Allen' s
allegations on November 4, 2020. DPSC alleged that Allen filed several different

AR Ps
- relating to his allegations against Lt. Gee. DPSC asserted that it had fully

investigated Allen' s allegations against Lt. Gee and found them to be meritless.

DPSC further asserted that Allen refused to cooperate with the PREA investigation

or provide any evidence to substantiate his allegations.

On February 7, 2022, the Commissioner of the 19t1i JDC3 issued an order

staying the matter for ninety days and remanding the matter to allow Allen to
proceed through the ARP process. On August 24, 2022, DPSC filed a notice of

compliance and its first step response to ARP 3131. In its first step response,

DPSC pointed out that the two allegedly conflicting responses cited by Allen were

2 Allen specifically refers to Lt. Col. Rosso' s statement regarding ARP 1085 that "[ a] fter a
thorough investigation[,] it was found that [ Allen' s] claims were false[.]" Allen alleges that this

statement conflicts with an ARP response prepared by Assistant Warden Shirly Coody, wherein
she stated that "[
i]nsufficient information was found to prove whether the incident did or did not
occur."
However, Assistant Warden Coody' s statement was in response to a different ARP,
ARP 0827.

3 The office of the Commissioner of the 19t1i JDC 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. The Commissioner' s written findings and recommendations are submitted to a district
judge, who may accept, reject, or modify them. Hakim-El-Mumit v. Stalder, 2003- 2549 ( La.
App. 1 Cir. 10/ 29/ 04), 897 So. 2d 112, 113 n. 1.

3

contained in two different ARPs, ARP Nos. 0827 and 1085, which involved

different complaints and different findings. DPSC asserted that there were no

conflicting responses because each response related to a different ARP containing
different claims.

On December 13, 2022, the Commissioner issued an order staying the matter

for fifteen days to allow DPSC to supplement the administrative record with a copy
of its second step response to ARP 3131. On August 24, 2023, DPSC filed a

notice of compliance and its second step response to ARP 3131, wherein it

reiterated that the complained -of statements were from two separate grievances

and that no evidence of misconduct had been found when Allen' s sexual assault

allegations were investigated.

On February 16, 2024, the Commissioner issued a report on Allen' s petition

for judicial review of ARP 3131. The Commissioner found that DPSC thoroughly
investigated Allen' s sexual assault allegations. The Commissioner further found

that DPSC was not arbitrary, capricious, manifestly erroneous, or in violation of

Allen' s rights when it found the evidence in the record insufficient to warrant relief

to Allen. Accordingly, the Commissioner recommended that Allen' s petition for

judicial review be dismissed with prejudice at Allen' s cost due to Allen' s failure to

state a cause of action for which relief could be granted.

On March 14, 2024, the 19th JDC signed a judgment wherein it adopted the

Commissioner' s recommendation and dismissed Allen' s petition for judicial

review with prejudice for Allen' s failure to state a cause of action for which relief

could be granted. On April 12, 2024, the 19th JDC signed a second judgment,

which again dismissed Allen' s petition for judicial review but contained different

language than the March 14, 2024 judgment.

On April 22, 2024, Allen appealed the March 14, 2024 judgment. On April

24, 2024, Allen was granted a devolutive appeal of the March 14, 2024 judgment

and the April 12, 2024 judgment. Allen primarily argues on appeal that the trial

court erred in dismissing his petition for judicial review of ARP 3131. 4

STANDARD OF REVIEW

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 of appeal. La. R.S. 15: 1171( B); La. R.S.

15: 1177( A)( 10); LAC 22: 1. 325; Harper v. Louisiana Department of Public Safety

Corrections, 2014- 1320 ( La. App. 1 Cir. 3/ 12/ 15), 166 So. 3d 1078, 1080.

Offenders may request administrative remedies to situations arising from policies,

conditions,
or events within the institution that affect them personally. LAC

22: I.325( F)( 1); Allen v. Louisiana Department of Public Safety & Corrections,

2021- 1238 ( La. App. 1 Cir. 6/ 14/ 24), 2024 WL 2988979 at * 2 ( unreported).

Once an offender initiates the formal ARP process, the grievance is screened

prior to being assigned to the first step in the two-step ARP process. LAC

22: I.325( I)( 1). Through the screening process, the grievance is either accepted and

processed or rejected for one of the reasons enumerated in LAC

22: I.325( I)(1)( c)( i)(a)-( 1); Allen v. Louisiana Department of Public Safety &

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

Although initially rejected, the Commissioner remanded this matter to DPSC to be

considered on its merits.

4 Allen also argues that he knows the trial court judge personally and that the trial court judge
should have recused as a result. However, Allen failed to cite any law or authority or develop an
argument in support of this assignment of error. All assignments of error and issues for review
must be briefed, and the appellate court may consider as abandoned any assigned error or issue
for review that has not been briefed. Uniform Rules Courts of Appeal 2- 12. 4( B)( 4).
Accordingly, we find this assignment of error to be abandoned. See State v. Howard, 2018- 1296
La. App. 1 Cir. 5/ 9/ 19), 2019 WL 2051800 at * 3 ( unreported).

E

On appellate review of a district court' s judgment in a suit for judicial

review under La. R.S. 15: 1177, no deference is owed by the court of appeal to the

factual findings or legal conclusions of the district court, just as no deference is

owed by the Louisiana Supreme Court to factual findings or legal conclusions of

the court of appeal. As such, the de novo standard of review shall be applied.

Richard v. Louisiana Department ofPublic Safety & Corrections, 2019- 1501 ( La.

App. 1 Cir. 7/ 24/ 20), 309 So. 3d 392, 396.

DISCUSSION

Before addressing the merits of this appeal, we note that there are two

judgments at issue — the March 14, 2024 judgment and the April 12, 2024

judgment. Although Allen specifically appealed the March 14, 2024 judgment, he

was granted an appeal of both judgments.

The April 12, 2024 judgment includes additional language not contained

within the March 14, 2024 judgment —namely, that the trial court " declines to rule

on issues not presented in the petition for review and the administrative remedy
request filed at the agency level." Further, the April 12, 2024 judgment does not

include the March 14, 2024 judgment' s language stating that Allen failed to state a
cause of action for which relief could be granted. When a trial court substantively
amends a judgment without recourse to the proper procedure, the amended

judgment is an absolute nullity. When this court notices such an absolute nullity,

we must vacate the judgment on our own motion. Thus, when a judgment has been

improperly amended, the amending judgment is annulled and set aside, and the
original judgment is reinstated. Locke v. Nfadcon Corp., 2021- 0382 ( La. App. 1

Cir. 12/ 30/ 21), 340 So. 3d 946, 949- 50.

The March 14, 2024 judgment was signed by the trial court and appears to
be a valid final judgment from which this appeal was taken. It is unclear from the

record why the trial court then signed a second judgment in the matter, because the

on

record does not contain a motion to alter the judgment by either the trial court or

one of the parties. Nevertheless, the April 12, 2024 judgment alters the substance

of the first judgment in violation of La. Code Civ. P. art. 1951, which makes the

April 12, 2024 judgment an absolute nullity.s Therefore, we find that the April 12,

2024 judgment is null and void, and we hereby vacate the April 12, 2024

judgment. See Mack v. Wiley, 2007- 2344 ( La. App. 1 Cir. 5/ 2/ 08), 991 So. 2d 479,

486, writ denied, 2008- 1181 ( La. 9/ 19/ 08), 992 So. 2d 932.

We now turn to Allen' s appeal of the March 14, 2024 judgment. Allen

primarily argues that the trial court erred in dismissing his petition for judicial

review of ARP 3131, wherein he alleged that DPSC failed to investigate Allen' s

sexual assault allegations against Lt. Gee. However, the record indicates that

DPSC did conduct a PREA investigation of Allen' s sexual assault allegations. It

appears that Allen refused to cooperate with this investigation, as he attended a

related health screening on April 26, 2019, but refused to make a statement

regarding his PREA complaint and refused a PREA assessment.

DPSC concluded that Allen' s allegations were unsubstantiated. Allen then

filed ARP 0827 in relation to his sexual assault allegations, which was denied at

the first and second step. Although ARP 0827 is not at issue in the instant appeal,

ARP 0827 and DPSC' s responses to same demonstrate that Allen' s sexual assault

allegations were in fact investigated. Further, having reviewed the record, it is

clear that the purportedly conflicting statements which caused Allen to file ARP

3131 do not conflict with one another; rather, the statements are responses to two

5 Louisiana Code of Civil Procedure article 1951 provides:

On motion of the court or any party, a final judgment may be amended at any
time to alter the phraseology of the judgment or to correct deficiencies in the
decretal language or errors of calculation. The judgment may be amended only
after a hearing with notice to all parties, except that a hearing is not required if all
parties consent or if the court or the party submitting the amended judgment
certifies that it was provided to all parties at least five days before the amendment
and that no opposition has been received. A final judgment may not be
amended under this Article to change its substance. (Emphasis added.)

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different ARPs ( ARP 0827 and ARP 1085). Accordingly, we find that the district

court' s dismissal of ARP 3131 — wherein Allen alleged that his sexual assault

allegations contained within ARP 0827 were not investigated —was not in error.'

DECREE

For the reasons set forth herein, we vacate the 19" Judicial District Court' s

April 12, 2024 judgment, which substantively changed the March 14, 2024

judgment. We affirm the 191h Judicial District Court' s March 14, 2024 judgment

dismissing Derrick Jerome Allen' s petition for judicial review with prejudice.

Costs of the appeal are assessed to Appellant, Derrick Jerome Allen.

APRIL 12, 2024 JUDGMENT VACATED; MARCH 14, 2024
JUDGMENT AFFIRMED.

6 Allen further argues that the Commissioner ruled against him in retaliation for Allen
challenging the constitutionality of the Commissioner' s job in a different proceeding. Because
we find that the trial court' s March 14, 2024 judgment adopting the Commissioner' s Report was
proper,
we decline to address Allen' s claim that the Commissioner ruled against him in
retaliation for him challenging the constitutionality of the Commissioner' s position.