Larry Allen v. State of La, Dept. of Public Safety & Corrections

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-430

LARRY ALLEN, ET AL.

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY &
CORRECTIONS, ET AL.

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2009-4146-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

James E. Calhoun
Assistant Attorney General
Victoria R. Murry
Assistant Attorney General
Leanne Broussard
Post Office Box 1710
Alexandria, LA 71308-1710
(318) 487-5944
COUNSEL FOR DEFENDANTS/APPELLEES:
Office of Risk Management
State of Louisiana, Department of Public Safety and Corrections
Terry J. Bordelon

Otha Curtis Nelson, Sr.
Nelson & Nelson, L.L.P.
1606 Scenic Highway
Baton Rouge, LA 70802
(225) 383-3675
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Larry Allen, et al.

Daniel G. Brenner
R. Preston Mansour, Jr.
Bolen, Parker, Brenner, Lee & Engelsman, LTD.
Post Office Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANTS/APPELLEES:
John Doe, Deputy, Rapides Parish
Charles F. Wagner, Jr., Sheriff, Rapides Parish

AMY, Judge.

The plaintiffs filed suit, initially against the Department of Public Safety and

Corrections as well as one of its employees, alleging that the employee was negligent

in causing an automobile accident and that the plaintiffs suffered damages as a result.

After the plaintiffs amended their suit to name the Rapides Parish Sheriff and an

unknown deputy as defendants, the defendants filed an exception of prescription and

an exception of improper venue. The trial court granted the exception of prescription

as to four of the five plaintiffs and dismissed those plaintiffs’ claims against all

defendants. Further, the trial court granted the exception of improper venue and

ordered that the remaining plaintiffs’ claims be transferred. The plaintiffs appeal. For

the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiffs in this case, Larry Allen, Victor Jones,

Evan Peter Roy, Fred Allen Wesley, and Maurice Johndell Wright, are all inmates in

the custody of the Louisiana Department of Public Safety and Corrections (DPSC) at

the Avoyelles Correctional Center. According to the petition, on January 9, 2007, the

plaintiffs were passengers in a van owned by DPSC and driven by one of its

employees, Terry Bordelon (the “State defendants”). The plaintiffs allege that Mr.

Bordelon negligently drove the van off the roadway, striking two mailboxes. As a

result, the plaintiffs allege that they received physical injuries and that the State

defendants failed to ensure adequate medical treatment of those injuries.

On January 9, 2008, the plaintiffs filed suit in East Baton Rouge Parish. The

record indicates that DPSC was served through the Attorney General’s office on

January 22, 2008 and Mr. Bordelon was served via domiciliary service on January 24,

2008. Thereafter, the State defendants filed exceptions of improper venue and

prematurity, alleging that La.R.S. 15:1184(F) requires that prisoner suits be filed in

“the parish where the prison is situated to which the prisoner was assigned when the

cause of action arose.” After a hearing, the East Baton Rouge Parish trial court

granted the exception of improper venue and ordered that the case be transferred to

Avoyelles Parish.

The State defendants filed their answer, asserting that an unknown Rapides

Parish Sheriff’s deputy made a sudden U-turn causing traffic to stop suddenly and

placing the defendants’ van in a position of imminent peril. The plaintiffs

subsequently filed a supplemental and amended petition, adding Charles Wagner, the

Sheriff of Rapides Parish, and a John Doe deputy sheriff (the “Rapides defendants”)

as defendants.

Thereafter, the State defendants filed exceptions of lack of subject matter

jurisdiction and prescription. In response, the plaintiffs filed a supplemental and

amended petition asserting that the Corrections Administrative Remedy Procedure

(CARP), La.R.S. 15:1171—1179, is unconstitutional. The plaintiffs asserted that this

amendment removed any objection to their suit. Further, the Rapides Parish

defendants filed another exception of improper venue, asserting that pursuant to

La.R.S. 13:5104(B), suits against political subdivisions must be filed in the parish

where the subdivision is located.

After hearings on the exception of prescription and exception of improper

venue, the trial court found that with the exception of the claims of Evan Peter Roy

the plaintiffs’ claims had prescribed. Further finding that the claims against the

Rapides Parish defendants must be heard in Rapides Parish, the trial court ordered the

remaining plaintiff’s claims transferred to that parish.

2

The plaintiffs now appeal, asserting that the trial court erred in granting the

exception of prescription.1

Discussion

Prescription & Improper Venue

The exception of prescription is a peremptory exception which may be “pleaded

at any stage of the proceeding in the trial court prior to a submission of the case for a

decision[.]” La.Code Civ.P. arts. 927 and 928. The party asserting the exception

typically bears the burden of proof at the trial of the peremptory exception. Carter v.

Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261. Further, if evidence is introduced at

the hearing on the exception of prescription, the district court’s factual findings are

reviewed under the manifest error-clearly wrong standard of review. Id. (citing

Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993)).

“Delictual actions are subject to a liberative prescription of one year. This

prescription commences to run from the day injury or damage is sustained.”

La.Civ.Code art. 3492. However, “[p]rescription is interrupted when . . . the obligee

commences action against the obligor, in a court of competent jurisdiction and venue.

If action is commenced in an incompetent court, or in an improper venue, prescription

is interrupted only as to a defendant served by process within the prescriptive period.”

La.Civ.Code art. 3462. In their petition, the plaintiffs allege that they were injured in

an automobile accident that occurred on January 9, 2007. Accordingly, they had one

year from that date to file suit.

Initially, on January 9, 2008, the plaintiffs filed suit against the State defendants

in East Baton Rouge Parish. See La.R.S. 13:5104(A). However, the State defendants

filed an exception of improper venue, alleging that venue was only appropriate in

1
The plaintiffs do not assign as error the trial court’s grant of the exception of improper
venue and subsequent transfer of the case to Rapides Parish. Accordingly, that issue will not be
addressed herein. Uniform Rules—Courts of Appeal, Rule 1-3.
3

Avoyelles Parish pursuant to the Prison Litigation Reform Act (PLRA), La.R.S.

15:1181—1191. After a hearing, the East Baton Rouge trial court granted the

exception and transferred the case to Avoyelles Parish.

Louisiana Revised Statutes 15:1184(F) provides, in part, that “[t]he exclusive

venue for delictual actions for injury or damages shall be the parish where the prison

is situated to which the prisoner was assigned when the cause of action arose.” We

observe, however, that La.R.S. 15:1184(F) must be read within the context of the

PLRA, which defines a “[c]ivil action with respect to prison conditions” or “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,

but does not include post conviction relief or habeas corpus proceedings challenging

the fact or duration of confinement in prison.” La.R.S. 15:1181(2).

Here, the plaintiffs seek damages in tort for injuries they suffered as a result of

the alleged negligence of Mr. Bergeron, an employee of DPSC. “Under the post-Pope

[v. State, 99-2259 (La. 6/29/01), 792 So.2d 713] statutory scheme, all complaints and

grievances, including traditional tort claims seeking monetary relief, are subject to

administrative procedures.” Wood v. Martin, 37,856, p. 5 (La.App. 2 Cir. 12/10/03),

862 So.2d 1057, 1060. 2 See also La.R.S. 15:1172 and La.R.S. 15:1184. Further, the

2
In Pope, 792 So.2d 713, the supreme court held that portions of CARP were
unconstitutional as they deprived the trial court of original jurisdiction in tort actions. Thereafter,
the legislature enacted 2002 La. Acts, 1st Extraordinary Session, No. 89 (Act 89), which, in part,
amended La.R.S. 15:1172 and La.R.S. 15:1184 to:

provide with respect to the initiation and limitation of administrative
remedies; . . . to provide liberative prescription for certain actions; to provide for
judicial review; to exempt delictual actions from judicial review under the
Corrections Administrative Remedy Procedure Act; to provide proper venue for
prisoner suits; . . . and to provide for related matters.

In Cheron v. LCS Corr. Servs., 04-703, p. 10 (La. 1/19/05), 891 So.2d 1250, 1257, the
supreme court, in addressing whether the provisions of Act 89 applied retroactively to an inmate’s
negligence action, stated that “[DPSC] has instituted a two-step system of review to address
inmates’ formal grievances. If dissatisfied, the inmate pursing a tort claim may file suit in district
court. Thus, original jurisdiction of tort claims following Act 89 remains with the district court.”
4

plaintiffs contend that the State defendants failed to provide them with proper medical

care. We find that this claim relates to the plaintiffs’ “conditions of confinement.”

La.R.S. 15:1181(2).3 Accordingly, transfer of venue under the PLRA was proper.

The record indicates that, although the plaintiffs initially filed suit on January 9,

2008, DPSC was not served until January 22, 2008 and Mr. Bordelon was not served

until January 24, 2008. Thus, because the defendants were not served within the

prescriptive period, the filing of suit in an improper venue failed to interrupt

prescription. La.Civ.Code art. 3462. Accordingly, with regard to plaintiffs Larry

Allen, Victor Jones, Fred Allen Wesley, and Maurice Johntrell Wright, because the

State defendants were not served until after the prescriptive period for delictual

actions had run, their claims had prescribed. See also Charles v. First Fin. Ins. Co.,

97-1185 (La.App. 3 Cir. 3/6/98), 709 So.2d 999, writ denied, 98-933 (La. 5/15/98),

719 So.2d 466.

However, the parties concede that one plaintiff, Evan Peter Roy, pursued his

administrative remedies pursuant to CARP. Accordingly, the prescriptive period for

his cause of action was suspended from the time he filed his grievance until a final

agency decision was rendered. La.R.S. 15:1172(E). In its reasons for ruling, the trial

court states that a final agency decision was rendered with regard to Roy’s grievance

on April 4, 2007. Accordingly, Mr. Roy’s claims have not prescribed.

See also Mosley v. Louisiana Dept. of Pub. Safety & Corr., 07-1501 (La.App. 3 Cir. 4/2/08), 980
So.2d 836; Gray v. State, 05-617 (La.App. 3 Cir. 2/15/06), 923 So.2d 812.
3
Compare Zeitoun v. City of New Orleans, 11-479 (La.App. 4 Cir. 12/7/11), 81 So.3d 66 (In
the context of an improper cumulation of actions exception, finding that an inmate’s suit alleging, in
part, lack of medical care, was a prisoner suit pursuant to the PLRA.), writ denied, 12-426 (La.
4/9/12), 85 So.3d 704, with Poullard v. Pittman, 39,549 (La.App. 2 Cir. 4/13/05), 900 So.2d 310
(An inmate’s medical malpractice action against treating doctor and hospital was not subject to the
PLRA), writ denied, 05-1507 (La. 1/13/06), 920 So.2d 237.
5

Addition of the Constitutionality Claims

The plaintiffs contend that, even if their claims had prescribed, that deficiency

was cured by filing their second supplemental and amended petition, which alleges

that CARP is unconstitutional “because it deprives [the plaintiffs] of due process of

law and the equal protection of law that other guest passengers involved in an

automobile accident have the legal right to file a petition for damages in tort under the

provisions of” La.Civ.Code art. 2315. The plaintiffs also point to La.Code Civ.P. art.

934, which permits amendment of the petition after a peremptory exception is

sustained in order to cure the basis for the objection.

Unlike the typical assertion that a claim made in an amended petition pursuant

to La.Code Civ.P. art. 1153 relates back to claims made in a previous timely filed

petition, see Bethea v. Modern Biomedical Servs., Inc., 97-332 (La.App. 3 Cir.

11/19/97), 704 So.2d 1227, writs denied, 97-3169, 97-3170 (La. 2/13/98), 709 So.2d

760-61, the plaintiffs claim that their amended petition cures the defects in their

untimely filed petition by alleging a new constitutionality claim. However, “an

untimely filed original petition does not support the relation-back of a new cause of

action[.]” Smith v. Cutter Biological Servs., 99-2068, p. 37 (La.App. 4 Cir. 9/6/00),

770 So.2d 392, 413.

The Rapides defendants, in brief, contend that even if CARP is

unconstitutional, “it does not change the fact that plaintiffs’ claim has prescribed.

Even without [CARP], Larry Allen, Victor Jones, Fred Allen, and Maurice Johndell

Wright filed their cause of action in a court [of] improper venue and did not serve a

single defendant within the prescriptive period. Here, an unconstitutional statute

would not extend the prescriptive period.”

In this case, the plaintiffs’ claims prescribed because they filed suit in an

improper venue pursuant to La.R.S. 15:1184(F) and failed to serve the defendants
6

prior to the expiration of the prescriptive period for delictual actions found in

La.Civ.Code art. 3492, not because the administrative procedures delineated in

CARP, La.R.S. 15:1171—1179, allegedly deprive them of the right to file a petition

for damages in tort. To the contrary, La.R.S. 15:1177(C) states that “[t]his Section

shall not apply to delictual actions for injury or damages, however styled or captioned.

Delictual actions for injury or damages shall be filed separately as original civil

actions.” See also Todd v. Tate, 04-2754 (La.App. 1 Cir. 12/22/05), 928 So.2d 113,

writ denied, 06-158 (La. 4/26/06), 926 So.2d 542 (finding no error in the trial court’s

grant of exceptions of improper venue and prescription where the plaintiff attempted

to cure a defect as to venue, and thus revive his delictual action, by adding his

uninsured motorist insurer as a defendant).

Accordingly, we find no error in the trial court’s grant of the exception of

prescription.

DECREE

For the foregoing reasons, we affirm the January 18, 2012 judgment of the trial

court. Costs of this appeal are allocated to the plaintiffs, Larry Allen, Victor Jones,

Evan Peter Roy, Fred Allen Wesley, and Maurice Johndell Wright.

AFFIRMED.

7