Charles Cutler v. Beth McGee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-317

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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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

Charles Cutler
In Proper Person
LADOC #322866
499 Old Columbia Road
Harrisonburg, Louisiana 71340
Plaintiff/Appellant

Elizabeth B. Hollins
Assistant Attorney General
One Lakeshore Drive, Suite 1200
Lake Charles, Louisiana 70629
(337) 491-2880
Counsel for Defendants/Appellees:
Louisiana Department of Public Safety & Corrections, Board of Parole
Beth McGee

KEATY, Judge.

Plaintiff, Charles Cutler, in proper person, appeals from a judgment granting

summary judgment in favor of defendants, Beth McGee and the State of Louisiana,

Department of Public Safety and Corrections, Board of Parole (collectively

referred to as the State). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cutler I

This matter has previously come before this court. The following factual

scenario was laid out in Cutler v. McGee, 09-1290, p. 1 (La.App. 3 Cir. 5/5/10), 38

So.3d 481, 484, writ denied, 10-1879 (La. 11/19/10), 49 So.3d 393 (hereafter

referred to as Cutler 1):

The plaintiff, an inmate in the custody of the Louisiana
Department of Public Safety and Corrections, filed suit against his
parole officer, [Beth McGee,] 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.”

More specifically, Plaintiff alleged that:

[P]ursuant 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 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 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 [the attorney he
hired to represent him at the parole revocation hearing], 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.

Id.

“The State filed exceptions of failure to exhaust administrative remedies

[and] failure to state a cause of action . . ., seeking dismissal of the plaintiff‟s

claims against it.”[1] Id. “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.” Id. at 485.

Plaintiff sought writs with this court which were denied. However, because the

appeal delays had not lapsed when the denial was issued, we considered Plaintiff‟s

application as a timely-filed motion for appeal and converted it to an appeal. See

Cutler v. McGee, an unpublished opinion bearing docket number 09-164 (La.App.

3 Cir. 3/11/09).

On the merits of Plaintiff‟s appeal in Cutler I, we reversed the trial court‟s

dismissal of Plaintiff‟s claims against the State and remanded for further

proceedings. We determined that Plaintiff‟s suit was “not a prisoner suit governed

by the [Prison Litigation Reform Act] (PLRA), La.R.S. 15:1181-1191]” because

“[P]laintiff 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.” Id. at 486. In

addition, we found that Plaintiff‟s complaints that his parole officer entered his

home and seized his property without permission “encompassed violations of

constitutionally-protected and statutorily-protected rights” not governed by the

Corrections and Administrative Remedy Procedures (CARP), La.R.S. 15:1171-

1179]. Id. Thus, we held that Plaintiff was not required to exhaust the

administrative remedies found in CARP and that the trial court erred in dismissing

his claims against the State on that basis.

1
The State also filed an exception of improper service which it later withdrew and which
is not relevant to this appeal.
2

Relying on the limitations set forth in La.R.S. 15:574.9 and 15:574.11(A),

which deal with rules of parole and the rights of parolees and which provide that

the grant or revocation of parole is a discretionary act, the State argued in Cutler 1

that Plaintiff‟s petition failed to state a cause of action against it. We again

disagreed, noting that “the plaintiff‟s claims involve traditional civil matters over

which district courts retain original jurisdiction; therefore, they are not affected by

these statutes.” Id. at 487.

The State next argued Plaintiff had no cause of action because his status as a

parolee resulted in his having a reduced expectation of privacy. In rejecting the

State‟s contention, we noted the record did not include the conditions of Plaintiff‟s

parole nor Plaintiff‟s signed agreement to those conditions. We further noted that

while the law provides for the warrantless search of a parolee‟s home where his

parole officer had “„reasonable suspicion that criminal activity [wa]s occurring,‟”

such search must pass the reasonableness test established in State v. Malone, 403

So.2d 1234 (La.1981). Id. at 488 (citation omitted). We were unable to perform

the reasonableness test in Cutler 1, however, because the record did not contain the

pertinent facts surrounding the search of Plaintiff‟s home. In addition, we noted

that despite the fact Plaintiff‟s petition stated the police were allegedly given

permission to search by a woman at his home and the police claimed to have seen

an illegal substance in plain view upon entering the home, Plaintiff‟s petition

nevertheless stated a cause of action against the State.

Finally, because the record did not contain evidence regarding service of

process on the State, we were unable to address the State‟s exception of improper

service, and we remanded that issue to the trial court. As mentioned previously,

the supreme court denied writs in Cutler 1.

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The Current Appeal

In September of 2011, after the case was remanded to the trial court, the

State filed a motion for summary judgment on the basis that, in his parole

agreement, Plaintiff agreed to searches (of his person, property, residence, vehicle,

and personal effects) at any time and without a warrant by his probation or parole

officer if she reasonably suspected he was engaged in criminal activity. It also

claimed Plaintiff offered no evidence to show it had taken his legal documents or

medication without his permission. Attached to the motion as “Exhibit A” was an

affidavit from Beth McGee who stated she was an agent with the Louisiana

Department of Public Safety and Corrections, Division of Probation and Parole,

working in the Lake Charles District Office at the time of the alleged incident. She

certified that the attached records were true copies kept in the normal course of

business at her office. Exhibit B contained Plaintiff‟s 2004 pre-parole

investigation, including his Louisiana rap sheet. Plaintiff‟s Certificate of Parole

was attached to the motion as Exhibit C. Exhibits D and E contained Plaintiff‟s

2007 and 2008 parole violations, respectively. Documents pertaining to Plaintiff‟s

2008 parole revocation were attached as Exhibit F. Exhibit G was another

affidavit from Beth McGee wherein she stated the following:

1. On January 7, 2008, she received a call from Detective Trent
Hansen, Combined Anti-Drug Taskforce, advising that they were
searching Charles Cutler‟s residence located at 305 W. Carlton Street,
Sulphur, Louisiana because of numerous complaints in reference to
narcotic activity at that location.

2. Detective Hansen advised her that the Combined Anti-Drug
Taskforce received permission to search Charles Cutler‟s residence
from another resident and during the search, marijuana and other
items of interest were located.

3. While in Charles Cutler‟s residence, four (4) prescription bottles
were located verifying that Charles Cutler traveled to Texas to have
prescriptions filled while on parole.

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4. She located a contract, drawn up by Charles Cutler, showing Amy
Bruney (DOC#526860) agreed to have sex and reside with him in
exchange for Charles Cutler bonding her out of jail.

The State‟s motion for summary judgment came for hearing on October 31,

2011. Counsel for the State was present and Plaintiff was present via the internet.

At the start of the hearing, the State offered into evidence its motion for summary

judgment, along with its memorandum in support, and the exhibits attached thereto,

which the trial court received into evidence as State‟s Exhibit No. 1.

Plaintiff confirmed that he was served with the State‟s motion, memorandum,

and exhibits and that he had filed a response to the State‟s motion. The trial court

allowed Plaintiff to fax over the documents that Plaintiff had allegedly attempted

to file through inmate counsel, but which were not received by either the trial court

or by counsel for the State. After reviewing all of the documents filed by Plaintiff,

the trial court remarked that it had found nothing “that would suffice as an

affidavit” to oppose the affidavits and evidence offered by the State in support of

its motion for summary judgment. With respect to Plaintiff‟s alleged attempt to

subpoena Beth McGee and himself,2 the trial court explained that because no live

testimony can be offered in conjunction with motions for summary judgment, it

would have denied the subpoena requests had they been timely received. The trial

court denied Plaintiff‟s Motion to Rescind the State‟s Exhibit C, in which Plaintiff

claimed that the document was “too degraded to read and/or comprehend,” noting

that it had reviewed the document and found it to be legible. The trial court

rejected Plaintiff‟s claim that summary judgment should not be granted because

both he and the State requested a jury trial, explaining that summary judgment was

a mechanism that could end litigation before a trial. At the conclusion of the

2
We have examined the record in its entirety and can find no documents indicating that
Plaintiff tried to subpoena anyone to appear at the summary judgment hearing.
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hearing, the trial court ordered the clerk to file into the record the documents faxed

by Plaintiff that morning. It then stated in open court that it was granting summary

judgment in favor of the State and dismissing Cutler‟s suit, with prejudice, at his

cost. Written judgment was signed on November 21, 2011.

Plaintiff now appeals, in proper person, assigning the following errors: 1)

summary judgment was erroneously granted because material facts remained and

because he is entitled to a jury trial; 2) the trial court showed bias in favor of

summary judgment over a jury trial because the parties had requested a jury trial

long before the summary judgment motion was filed; 3) there should have been a

jury trial since Plaintiff objected to the motion for summary judgment; 4) subpoena

errors; and 5) the trial court should have granted his motion to impeach Beth

McGee‟s credibility.

DISCUSSION

Summary judgment is a procedural tool “designed to secure the just, speedy,

and inexpensive determination of every action, except those disallowed by Article

969. The procedure is favored and shall be construed to accomplish these ends.”

La.Code Civ.P. art. 966(A)(2). If the motion for summary judgment and

supporting affidavits show that there is no genuine issue of material fact, the mover

is entitled to a judgment as a matter of law. La.Code Civ.P. art. 966(B).

In Schultz v. Guoth, 10-343, pp. 6-7 (La.1/19/11), 57 So.3d
1002, 1006, the supreme court explained:

[Louisiana Code of Civil Procedure Article
966(C)(2)] initially places the burden of producing
evidence at the hearing on the motion for summary
judgment on the mover, who can ordinarily meet that
burden by submitting affidavits or by pointing out the
lack of factual support for an essential element in the
opponent‟s case. Samaha v. Rau, 07-1726, p. 4
[(La.2/26/08)], 977 So.2d [880] at 883. “At that point,
the party who bears the burden of persuasion at trial
(usually the plaintiff) must come forth with evidence

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(affidavits or discovery responses) which demonstrates
he or she will be able to meet the burden at trial. . . .
Once the motion for summary judgment has been
properly supported by the moving party, the failure of the
non-moving party to produce evidence of a material
factual dispute mandates the granting of the motion.” Id.
(quoting Wright v. Louisiana Power & Light, 06-1181, p.
16 (La.3/9/07), 951 So.2d 1058, 1069-70).

Atherton v. Palermo, 11-256, p. 5 (La.App. 3 Cir. 10/26/11), 76 So.3d 1253, 1256.

“Appellate courts review summary judgments de novo, using the same

criteria that govern the district court‟s consideration of whether summary judgment

is appropriate.” Broussard v. La. Farm Bureau Cas. Ins. Co., 12-15, p. 2 (La.App.

3 Cir. 5/9/12), 91 So.3d 537, 539.

Assignments of Error 1, 2, and 3

In his first three assignments or error, Plaintiff contends that the trial court

erred in not allowing his case to proceed to a jury trial because the parties had

timely prayed for such before the State filed its motion for summary judgment,

because “there are issues and controversy over material facts,” and because he

opposed the State‟s motion for summary judgment. Plaintiff fails to cite any case

law or jurisprudence in support of these assignments of error.

“[T]here is no constitutional due process right to trial by jury in a civil case

in Louisiana . . . [a]nd the mere fact that a party has requested trial by jury does

not preclude rendition of summary judgment, as somehow violative of the party‟s

right to access to the courts.” Judson v. Davis, 04-1699, pp. 23-24 (La.App. 1 Cir.

6/29/05), 916 So.2d 1106, 1121-22, writ denied, 05-1998 (La. 2/10/06), 924 So.2d

167 (citation omitted). Accordingly, the trial court did not err by granting

summary judgment where the parties had previously prayed for trial by jury.

Plaintiff‟s next contention is that summary judgment should not have been

granted because he opposed the motion and because issues of material fact

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remained. We disagree. Once the State supplied the trial court with affidavits and

documents to support its claim that Plaintiff had agreed to searches of his property

at any time and without a warrant if his parole officer reasonably suspected that he

was engaged in criminal activity, it satisfied its burden of proof on summary

judgment. It was incumbent upon Plaintiff to produce evidence of a material

factual dispute in order to defeat the grant of summary judgment against him.

Rather than doing so, Plaintiff relied on the mere allegations contained in his

petition and in his opposition to summary judgment, without offering specific

factual support that he would be able to satisfy his evidentiary burden of proof at

trial.

Our de novo review of the State‟s motion for summary judgment, with its

accompanying affidavits and exhibits, convinces us that the State was entitled to

summary judgment as a matter of law. Accordingly, Plaintiff‟s first three

assignments of error lack merit.

Assignment of Error 4

Plaintiff‟s fourth assignment of error is that the trial court erred in denying

his request to subpoena Beth McGee. Plaintiff fails to cite any case law or

jurisprudence in support of this assignment of error. As mentioned previously,

there are no documents in the record indicating that Plaintiff tried to subpoena

anyone to appear at the summary judgment hearing. Likewise, no subpoena

requests are contained in the documents Plaintiff faxed to the trial court during the

summary judgment hearing or in the appellant brief or reply brief that Plaintiff

filed with this court. Nevertheless, even assuming that Plaintiff had timely filed

any subpoena requests, the trial court did not err in denying those requests because

the Louisiana Code of Civil Procedure provides that summary judgment should be

decided upon “the pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any.” La.Code Civ.P. art. 966(B).

Accordingly, the courts of this state have long held that “[t]estimony should neither

be received nor considered, even with consent of counsel, to decide a motion for

summary judgment.” Urban Mgmt. Corp. v. Burns, 427 So.2d 1310 (La.App. 2

Cir. 1983), 427 So.2d 1310, 1311. There is no merit to Plaintiff‟s fourth

assignment of error.

Assignment of Error 5

In his fifth assignment of error, Plaintiff argues that the trial court should

have granted his motion to impeach Beth McGee‟s credibility. Again, Plaintiff

fails to cite any case law or jurisprudence in support of this assignment of error.

The transcript from the summary judgment hearing shows that the trial court did

not receive the motion to impeach Beth McGee‟s credibility until it was faxed over

during the pendency of the hearing. Nevertheless, the trial court stated that it read

all of the documents Plaintiff submitted in opposition to the State‟s motion and that

it found nothing “that would suffice as an affidavit” to oppose the State‟s properly

supported motion for summary judgment.

The affidavits of Beth McGee, which the State offered in support of its

motion for summary judgment, comported with the requirements of La.Code Civ.P.

art. 967. They are based on her personal knowledge gained in the course of her

employment as an agent with the Louisiana Department of Public Safety and

Corrections, Division of Probation and Parole, and they set forth facts that would

be “admissible in evidence.” La.Code Civ.P. art. 967(A). See Butzman v. La.

Power & Light Co., Inc., 96-2073 (La.App. 4 Cir. 4/30/97), 694 So.2d 514.

On the other hand, the motion to impeach McGee‟s credibility contains

Plaintiff‟s allegations that Beth McGee made false statements in her affidavits.

Plaintiff did not, however, support those allegations with affidavits, deposition
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testimony, or answers to interrogatories. See La.Code Civ.P. art. 967(A). The law

is clear that once a properly supported motion for summary judgment is made, “an

adverse party may not rest on the mere allegations or denials of his pleading[s], but

his response, by affidavits or otherwise . . . must set forth specific facts showing

that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B). “If he does not

so respond, summary judgment, if appropriate, shall be rendered against him.” Id.

As mentioned previously, our de novo review of the State‟s motion for summary

judgment, with its accompanying affidavits and exhibits, convinces us that the

State met its burden of proving that it was entitled to summary judgment as a

matter of law. Thus, even if Plaintiff‟s allegations that Beth McGee made false

statements in her affidavits had been contained in an affidavit, “an affidavit in

opposition which contains hearsay statements and is aimed at impeaching the

credibility of mover‟s affidavit does not create a material issue of fact to defeat

summary judgment.” Butzman, 694 So.2d at 517. The trial court did not err in

refusing to grant Plaintiff‟s late-filed motion to impeach Beth McGee‟s credibility

in the face of the State‟s properly supported motion for summary judgment.

Plaintiff‟s fifth assignment of error has no merit.

DECREE

For the foregoing reasons, we affirm the grant of summary judgment in

favor of defendants, Beth McGee and the State of Louisiana, Department of Public

Safety and Corrections, Board of Parole, dismissing Charles Culter‟s suit against

them with prejudice. Costs of this appeal are assessed against Charles Culter.

AFFIRMED.

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