Charles Cutler v. Beth McGee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1290

CHARLES CUTLER

VERSUS

BETH MCGEE, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2008-3397
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain,
Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED FOR FURTHER PROCEEDINGS.

Charles Cutler
Pine Prairie Correctional Center
Post Office Box 650
Pine Prairie, Louisiana 70576
(337) 527-0587
Plaintiff/Appellant, In Proper Person

Gregory W. Belfour
Jones, Tete, Fonti & Belfour, L.L.P.
Post Office Box 1930
Lake Charles, Louisiana 70602
(337) 439-8315
Counsel for Defendant/Appellee:
City of Sulphur

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Elizabeth B. Hollins
Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
One Lakeshore Drive, Suite 1200
Lake Charles, Louisiana 70629
(337) 491-2880
Counsel for Defendant/Appellee:
State of Louisiana, Department of Public Safety & Corrections
Beth McGee
State of Louisiana, Probation & Parole Board

Leah White
Attorney at Law
1827 Ryan Street
Lake Charles, Louisiana 70601
(337) 439-9900
Defendant/Appellee, In Proper Person

CHATELAIN, Judge Pro Tempore.

The plaintiff, an inmate in the custody of the Louisiana Department of Public

Safety and Corrections, filed suit against his parole officer, the State of Louisiana,

through the Department of Public Safety and Corrections, Board of Parole, as her

employer (the State), and police officers employed by the City of Sulphur along with

the City of Sulphur as their employer (the City), complaining that his parole officer

and the police officers engaged in negligent and criminal acts that resulted in his

parole being revoked, which caused him to suffer “hardship and money loss.” The

plaintiff also named the attorney he hired to represent him in the parole revocation

proceeding as a defendant, complaining that she was negligent in her representation

of him, that he was damaged by her negligence, and that he should be compensated

for his damages.

All the defendants filed exceptions. The trial court granted exceptions in favor

of each defendant and dismissed all of the plaintiff’s claims against them; however,

the plaintiff was granted leave to amend his claims against his attorney.

The plaintiff appeals all the dismissals the trial court granted. For the reasons

discussed below, we dismiss the plaintiff’s appeal of the dismissal of his claims

against the City and his attorney, reverse the trial court’s dismissal of the plaintiff’s

claims against the State, and remand this matter for further proceedings.

FACTS

The plaintiff alleged in his petition for wrongful acts that pursuant to a false

complaint his girlfriend made to the City’s police department, police officers

employed by the City and Beth McGee, his parole officer, illegally entered his home

on January 6, 2008, engaged in illegal, criminal, and negligent acts therein, and

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illegally seized property belonging to him. He further alleged that as a result of the

City’s and his parole officer’s actions, a parole revocation proceeding was instituted

against him and illegally-seized evidence was used against him at the hearing. The

plaintiff also alleged that the attorney he hired to represent him in the revocation

proceeding, Leah White, failed to properly represent him in the proceeding, resulting

in his parole being revoked and his incarceration. The plaintiff claimed that the

actions of all the defendants caused him mental pain and suffering, hardship, loss of

personal property, and loss of wages. He sought to recover compensation, return of

the fees he paid to Ms. White, another preliminary hearing, another parole hearing,

and an admission by the defendants that they illegally obtained evidence from his

home and used it against him in violation of his rights.

The State filed exceptions of failure to exhaust administrative remedies, failure

to state a cause of action, and improper service, seeking dismissal of the plaintiff’s

claims against it because: 1) the plaintiff failed to exhaust administrative remedies

required for “prisoner suits”; 2) the plaintiff failed to state a cause of action for

mental or emotional injury suffered while in custody, as he did not allege that he

suffered physical injury, that his right to a revocation hearing was denied, or that the

procedural due process protection required in parole revocation proceedings was

violated; and 3) service of process was not properly effected on the State.

On November 18, 2008, a hearing was held on the State’s exceptions. The trial

court granted the exception of failure to exhaust administrative remedies and

dismissed the plaintiff’s claims against the State without prejudice; it declared the

State’s remaining exceptions moot. On January 29, 2009, the plaintiff filed a writ

application with this court regarding the trial court’s dismissal of his claims against

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the State. The writ application was denied; however, when the denial was issued, the

time delays for appeal had lapsed. Therefore, this court considered the application

as a timely-filed motion for appeal and ordered that the writ application be converted

to an appeal. See Cutler v. McGee, an unpublished opinion bearing docket number

09-164 (La.App. 3 Cir. 3/12/09).1

Ms. White filed a dilatory exception of vagueness and ambiguity in which she

urged that the allegations in the plaintiff’s petition were vague and ambiguous

because he failed to specify the details of the contract between them, including the

period of the relationship and the duties she was hired to perform. She also filed a

peremptory exception, urging that the plaintiff’s allegations failed to state a cause of

action against her.

The City filed a declinatory exception of insufficiency of service of process and

an alternative motion for involuntary dismissal, seeking dismissal of the plaintiff’s

claims against it because he did not request that service be made on it within ninety

days of suit being filed as required by La.R.S. 13:5107(D).

On December 15, 2008, the trial court heard and granted Ms. White’s and the

City’s exceptions. However, with regard to Ms. White’s exceptions, the trial court

granted the plaintiff fifteen days to amend his petition. The plaintiff amended his

petition in accordance with the trial court’s judgment as to Ms. White’s exceptions,

and, on February 10, 2009, Ms. White filed another dilatory exception of vagueness

and ambiguity and a peremptory exception no cause of action.

1
Upon receipt of this court’s ruling on the plaintiff’s writ application, the clerk of court for
the Fourteenth Judicial District Court issued a notice of appeal which identified the judgment being
appealed as “the judgment of January 12th, 2009,” but the judgment at issue in the plaintiff’s writ
application was dated December 8, 2008. No party made an issue of this discrepancy herein;
therefore, it is not addressed.

3

On April 3, 2009, before the trial court conducted a hearing or ruled on

Ms. White’s second set of exceptions, the plaintiff filed a notice of appeal and

appealed “the above docket number.” After the appeal was lodged with this court,

the City filed a motion to dismiss the appeal or in the alternative to supplement the

appellate record in which it asserted that the plaintiff had dismissed the City from this

litigation; in the alternative, the City sought to have the record supplemented with

correspondence to the clerk of court for the Fourteenth Judicial District Court which

establishes the merits of its declinatory exception of insufficiency of service of

process and motion for involuntary dismissal. The motion was referred to the merits

of this appeal.

DISCUSSION

The State of Louisiana

The plaintiff appeals the trial court’s dismissal of his claims against the State

for his failure to exhaust administrative remedies. The State contends that this is a

“prisoner suit,” as provided by the Prison Litigation Reform Act (PLRA),

La.R.S. 15:1181-1191, which is governed by the Corrections and Administrative

Remedy Procedures (CARP), La.R.S.15:1171-1179, and that the plaintiff’s failure to

exhaust the administrative remedies provided by CARP requires that his claims

against it be dismissed without prejudice. See La.R.S. 15:1172(B) and

15:1184(A)(2).2

2
Louisiana Revised Statutes 15:1172(B)(1) provides: “An offender shall initiate his
administrative remedies for a delictual action for injury or damages within ninety days from the day
the injury or damage is sustained,” and La.R.S. 15:1184(A)(2) provides: “No prisoner suit shall
assert a claim under state law until such administrative remedies as are available are exhausted. If
a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without
prejudice.”

4

The PLRA was enacted to “curtail baseless or nuisance suits by prisoners.”

Pope v. State, 99-2559, p. 12 (La. 6/29/01), 792 So.2d 713, 720 n.16. It defines

“prisoner suit” as “any civil proceeding with respect to the conditions of confinement

or the effects of actions by government officials on the lives of persons confined in

prison.” La.R.S. 15:1181(2). “Prisoner” is defined to include “any person subject to

incarceration . . . who is accused of . . . or adjudicated delinquent for a violation of

criminal law or the terms or conditions of parole. . . . Status as a ‘prisoner’ is

determined as of the time the cause of action arises.” La.R.S. 15:1181(6). The

plaintiff was not a “prisoner” at the time the actions he complains of occurred, and

his complaints do not pertain to the conditions of his confinement or the effects of the

State’s actions on him while confined in prison. Accordingly, this suit is not a

prisoner suit governed by the PLRA. See Bernard v. La. Dep’t of Pub. Safety &

Corr., 00-1912 (La.App. 1 Cir. 11/9/01), 835 So.2d 470, rev’d on other grounds on

reh’g, 00-1912 (La.App. 1 Cir. 9/20/02), 843 So.2d 413.

In his petition, the plaintiff complained that Ms. McGee committed criminal

acts when she entered his home and seized privileged personal property without his

permission. These complaints encompassed violations of constitutionally-protected

and statutorily-protected rights. For example, the plaintiff complained that

Ms. McGee entered and searched his home when he was not home without

“adequate” permission from a bystander and that she reviewed legal documents and

prescription or medical information she found in his home in violation of the

attorney-client and physician-patient privileges provided by La.Code Evid. arts. 506

and 510, respectively. He also complained that she acted unethically in connection

with his parole revocation proceeding because she used this illegally-obtained

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information to construct a “non-criminal parole violation” against him in conjunction

with his parole revocation proceeding, because she did not adequately explain the

options available to him for the preliminary hearing of the revocation proceeding, and

because she did not make favorable recommendations for him during the revocation

proceeding.

Complaints similar to the plaintiff’s complaints regarding the State’s alleged

violations of his constitutionally-protected rights against illegal search and seizure

have been held to concern traditional civil matters “over which the district court

retains original jurisdiction,” which are not governed by CARP. Ferrington v. La.

Bd. of Parole, 03-2093, p. 5 (La.App. 1 Cir. 6/25/04), 886 So.2d 455, 458, writ

denied, 04-2555 (La. 6/24/05), 904 So.2d 741. See also Bernard v. La. Dep’t of Pub.

Safety & Corr., 00-1912 (La.App. 1 Cir. 9/20/02), 843 So.2d 413, writ denied, 02-

2613 (La. 1/9/04), 862 So.2d 975; Madison v. Ward, 00-2842 (La.App. 1 Cir. 7/3/02),

825 So.2d 1245; Hull v. Stalder, 00-2730 (La.App. 1 Cir. 2/15/02), 808 So.2d 829.

Therefore, the trial court’s dismissal of the plaintiff’s claims against the State for

failing to comply with CARP’s requirements was error.

The State urges this court to conduct a de novo review of the plaintiff’s claims

against it and consider the merits of its exception of no cause of action. Louisiana

Code of Civil Procedure Article 927(B) provides that an appellate court can notice

the peremptory exception of no cause of action on its own motion, so we now

consider whether the plaintiff has stated a cause of action against the State. In

Ferrington, 886 So.2d at 458-59 (citations omitted), the court discussed the exception

of no cause of action:

The function of the peremptory exception of no cause of action is
to question whether the law extends a remedy against the defendant to

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anyone under the factual allegations presented. No evidence may be
introduced to support or controvert the objection that the petition fails
to state a cause of action. Therefore, the court reviews the petition and
accepts the well-pleaded allegations of fact as true, and the issue at trial
of the exception is whether, on the face of the petition, the plaintiff is
legally entitled to the relief sought.

The State relies on the limitations contained in La.R.S. 15:574.11(A) and

La.R.S. 15:574.9 for its contention that the plaintiff’s petition does not state a cause

of action against it. Louisiana Revised Statutes 15:574.11(A) provides that parole is

an administrative device for rehabilitating prisoners and that granting or revoking

parole is a discretionary act of the Board of Parole. It further provides that a parolee

does not have a right of appeal from a decision revoking his parole, “except for the

denial of a revocation hearing under R.S. 15:574.9.”3 As discussed above, the

plaintiff’s claims involve traditional civil matters over which district courts retain

original jurisdiction; therefore, they are not affected by these statutes. Ferrington,

886 So.2d 455; Bernard, 843 So.2d 413; Madison, 825 So.2d 1245; Hull, 808 So.2d

829.

Finally, the State contends that no cause of action exists in the plaintiff’s claims

because, as a parolee, he had a reduced expectation of privacy. Its argument is

threefold: (1) the provisions of La.R.S. 15:574.4 illuminate the plaintiff’s reduced

expectations of privacy; (2) the jurisprudence shows the warrantless search of the

plaintiff was reasonable; and (3) various statements in the plaintiff’s petition establish

its claim that the plaintiff has failed to state a cause of action. For reasons which

follow, the record fails to support any of these contentions.

3
Louisiana Revised Statutes 15:574.9 outlines the process to be utilized in revocation
proceedings.

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First, the bases for this assertion are the provisions of La.R.S. 15:574.4, which

outline the conditions the Board of Parole can impose on parolees, and cases

expounding on those limitations. See U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587

(2001); State v. Malone, 403 So.2d 1234 (La.1981); State v. Perry, 39,644 (La.App.

2 Cir. 4/13/05), 900 So.2d 313; State v. Epperson, 576 So.2d 96 (La.App. 2 Cir.), writ

denied, 580 So.2d 920 (La.1991).

Pursuant to La.R.S. 15:574.4(H), the Board of Parole has the authority to make

rules and conditions to which parolees must conform. There is one mandatory

condition: parolees must not engage in criminal conduct, La.R.S. 15:574.4(H)(1), but

there are eighteen additional permissive conditions, which the Board of Parole “may

also require” a parolee to obey, including allowing “searches of his person, his

property, his place of residence, . . . with or without a search warrant, when the . . .

parole officer has reasonable suspicion to believe that the person . . . is engaged in or

has been engaged in criminal activity.” La.R.S. 15:574.4(H)(4), (H)(4)(r). The

conditions of parole must be explained to a parolee, and he must “agree in writing to

such conditions.” La.R.S. 15:574.4(F). In the present case, our careful review of the

record shows that the conditions of the plaintiff’s parole are not part of the record.

Second, a parolee’s agreement to allow his parole officer to investigate his

activities, as provided in La.R.S. 15:574.4(H), reduces his expectation of “freedom

from governmental intrusion into his affairs” below that of an ordinary citizen. Perry,

900 So.2d at 318. Nevertheless, this reduced expectation does not provide the parole

officer free license to ignore the freedoms and rights to which the parolee is otherwise

entitled. Id.; see also, Knights, 534 U.S. 112, 122 S.Ct. 587; Epperson, 576 So.2d 96.

Pursuant to La.R.S. 15:574.4(H)(4)(r), a parole officer is allowed to conduct a

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warrantless search of a parolee’s home,4 if the parole officer has a “reasonable

suspicion that criminal activity is occurring” and believes “that the search is

necessary in the performance of his duties and reasonable in light of the total

circumstances.” Perry, 900 So.2d at 318. Such a warrantless search cannot be a

“subterfuge for criminal investigation.” Id. (quoting Malone, 403 So.2d at 1238).

To determine whether a warrantless search of a parolee was reasonable, our

supreme court has adopted a four-part test which requires consideration of “(1) the

scope of the particular intrusion, (2) the manner in which it was conducted, (3) the

justification for initiating it and (4) the place in which it was conducted.” Malone,

403 So.2d at 1239 (citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)). In the

present case, we are unable to apply this test because the pertinent facts surrounding

the search are simply not in the record.

Lastly, the State argues that a review of the plaintiff’s petition establishes that

the petition fails to state a cause of action against it, claiming that the petition states

two critical facts: (1) that a bystander gave the officers permission to search the

plaintiff’s house; and (2) that an illegal substance was in plain view of the officers

when they entered the home. Again, our careful review of the plaintiff’s petition fails

to find such forthright statements. To the contrary, the paragraphs of the petition

which address these claims question the validity of the permission to search and the

evidence seized therein, stating in pertinent part, “[a]llegedly the police officers got

a woman” at the plaintiff’s house to give permission for the search and “[p]eace

officers claim they found a marijuana butt in [an] ashtray.” Rather than the forthright

statements the State relies upon in support of its contentions, the plaintiff’s petition

4
This statement assumes the parolee’s conditions of parole provide for searches of his home.

9

makes only qualified alleged statements and alludes to peace officer claims about the

presence of marijuana. For these reasons and the reasons discussed above, we

conclude that the plaintiff’s petition does state a cause of action against the State.

Notwithstanding, the State further asserted in its exception of improper service

that the plaintiff did not comply with the provisions of La.R.S. 39:1538; accordingly,

it contends the plaintiff’s petition should be dismissed. This provision requires that

suits against the State, any state agencies, or any employees of those agencies “be

served upon the head of the department concerned, the office of risk management,

and the attorney general, as well as any others required by R.S. 13:5107.” La.R.S.

39:1538(4). Although there may be merit to the State’s contention, we are

constrained to find that this issue cannot be addressed because there is no evidence

in the record regarding service of process on the State. Therefore, we must remand

this matter to the trial court to consider the State’s exception of improper service.

Leah White

In its judgment dated December 29, 2008, the trial court granted Ms. White’s

exceptions of vagueness and no cause of action but also granted the plaintiff time to

amend his petition as provided in La.Code Civ.P. arts. 933 and 934,5 which he did.

5
Louisiana Code of Civil Procedure Article 933(B) provides:

When the grounds of the other objections pleaded in the dilatory exception
may be removed by amendment of the petition or other action by plaintiff, the
judgment sustaining the exception shall order plaintiff to remove them within the
delay allowed by the court; and the action, claim, demand, issue or theory subject to
the exception shall be dismissed only for a noncompliance with this order.

Louisiana Code of Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may
be removed by amendment of the petition, the judgment sustaining the exception
shall order such amendment within the delay allowed by the court. If the grounds of
the objection raised through the exception cannot be so removed, or if the plaintiff
fails to comply with the order to amend, the action, claim, demand, issue, or theory
shall be dismissed.

10

Thereafter, Ms. White filed another dilatory exception of vagueness and ambiguity

and a peremptory exception of no cause of action. On February 10, 2009, the trial

court signed an order setting a hearing on Ms. White’s exceptions for April 22, 2009.

Thereafter, on April 3, 2009, the trial court signed an order allowing the plaintiff’s

appeal of “the above docket number.” As a result, Ms. White’s second declinatory

exception and peremptory exception had not been heard or ruled on when the appeal

order was signed.

Louisiana Code of Civil Procedure Article 1911 provides that “every final

judgment shall be signed by the judge” and that an appeal cannot be taken from a

final judgment until it has been signed. No signed, final judgment against Ms. White

is in the record before us. Hence, the appeal of that judgment is premature and must

be dismissed. Id.; see also Rourke v. Coursey, 334 So.2d 480 (La.App. 3 Cir. 1976);

Fogleman v. Crowley Bldg. & Loan Ass’n, 200 So.2d 790 (La.App. 3 Cir. 1967).

City of Sulphur

In its motion to dismiss appeal or in the alternative to supplement the appellate

record, the City urges that the plaintiff acquiesced in the January 12, 2009 judgment

which dismissed his claims against it. The City cites the plaintiff’s notice of intent

to seek appeal for this claim.

In his notice of intent to seek appeal, the plaintiff sought to appeal “the above

docket number” and requested that the court reporter and clerk of court be ordered “to

prepare the proper documents” for the appeal. The plaintiff then dismissed his claims

against the City, stating in part, “[p]laintiff hereby dis-misses [sic] the City of Sulphur

from the above[-]mentioned suit because Honorable Judge Savoie was employed by

the Defendant, City of Sulphur.”

11

The plaintiff assigned errors with the trial court’s dismissal of the City of

Sulphur and briefed those errors as though he had not dismissed his appeal against

the City; yet, we cannot ignore the plain language in his notice of intent to seek

appeal and hereby dismiss the plaintiff’s appeal against the City of Sulphur.6

We acknowledge that the plaintiff urged in various pleadings that he is not an

attorney and does not know all that is required for him to proceed with his claims and

that he is at a disadvantange because of his lack of knowledge; therefore, his lack of

knowledge should not be held against him. Notwithstanding that “[a] layman who

represents himself cannot be held to the same standards of skill and judgment which

must be attributed to an attorney, . . . he assumes responsibility for his own

inadequacy and lack of knowledge of both procedural and substantive law. Gray v.

State, 05-617, p. 13 (La.App. 3 Cir. 2/15/06), 923 So.2d 812, 821 (quoting Rader v.

Dep’t of Health and Hosps., Office of Pub. Health, Eng’g Servs., 94-763, p. 3

(La.App. 1 Cir. 3/3/95), 652 So.2d 644, 646 (citations omitted)). See also, Murray

v. Town of Mansura, 06-355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied,

06-2949 (La. 2/16/07), cert. denied, 552 U.S. 915, 128 S.Ct. 270 (2007).

DISPOSITION

For the reasons discussed herein, the trial court’s judgment dismissing the

plaintiff’s suit against Beth McGee, the State of Louisiana, through the Department

of Public Safety and Corrections, Board of Parole for his failure to comply with the

administrative remedies provided by the Prison Litigation Reform Act,

La.R.S. 15:1181-1189, and the Corrections and Administrative Remedy Procedures,

La.R.S.15:1171-1179, is reversed. The State’s exception of failure to state a cause

6
Because of our disposition of the plaintiff’s claims against the City, the motion of the City
to supplement the record is denied as moot.

12

of action is denied, and the matter is remanded for the trial court to consider the

merits of the State’s declinatory exception of improper service. The plaintiff’s appeal

of the trial court’s dismissal of his claims against Leah White and the City of Sulphur

are also dismissed.

Costs associated with the plaintiff’s claims against the City of Sulphur and his

appeal of the judgment dismissing his claims against the City of Sulphur are assessed

to the plaintiff. Costs associated with the plaintiff’s claims against Beth McGee, the

State of Louisiana, through the Department of Public Safety and Corrections, Board

of Parole, and Leah White are to be assessed upon completion of this litigation.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR
FURTHER PROCEEDINGS.

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