Kenyon Budwine v. Offender Alton Marks

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1238

KENYON BUDWINE

VERSUS

OFFENDER ALTON MARKS

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2013-325
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, Elizabeth A. Pickett, Billy
Howard Ezell, and Shannon J. Gremillion, Judges.

REVERSED AND REMANDED.

Gremillion, J., dissents and assigns written reasons.

Kenyon Budwine
DOC #50211
Allen Correctional Center - Jupiter A1
3751 Lauderdale Woodyard Road
Kinder, LA 70648
IN PROPER PERSON

PETERS, J.

The plaintiff, Kenyon Budwine, an inmate of the Allen Correctional Center,

appeals the trial court’s dismissal of his tort action against the private corporation

operating that prison as well as several of its employees. For the reasons that

follow, we reverse the trial court judgment dismissing Mr. Budwine’s suit against

the named defendants and remand this matter to the trial court for further

proceedings.

DISCUSSION OF THE RECORD

On September 5, 2013, Mr. Budwine filed a tort suit in the Thirty-Third

Judicial District Court against GEO, Inc., the operator of the Allen Correctional

Center in Allen Parish, Louisiana, several GEO employees, and Alton Marks, a

fellow inmate. Mr. Budwine’s tort claim arises from a physical attack on him by

Mr. Marks during a September 4, 2012 recreation break in the prison yard.

According to Mr. Budwine’s allegations in his petition, on that day, Mr. Marks was

allowed by the GEO employees to enter the recreation area despite being restricted

from participating in the recreation break due to a disciplinary matter. Mr.

Budwine asserted in his petition that toward the end of the break while the inmates

were returning to their cells, Mr. Marks attacked him with a piece of aluminum

wire taken from the prison fencing. Mr. Budwine claims to have sustained cuts to

his face and neck as a result of the attack. Mr. Budwine’s petition is silent

concerning his compliance with any administrative remedies he might have had

available to him.

The day after Mr. Budwine filed his suit, and before service was had on any

of the defendants, the trial court issued a judgment dismissing Mr. Budwine’s

claims against GEO and its employees based on its conclusion that Mr. Budwine

failed to timely comply with the administrative remedies provided by the

Correctional Administrative Remedy Procedure Act, La.R.S. 15:1171-1179.1

On appeal, 2 Mr. Budwine seeks reversal of the trial court’s judgment

dismissing his claims against GEO and the employee defendants.

OPINION

The trial court based its decision to dismiss Mr. Budwine’s suit against GEO

and its employees without allowing issue to be joined on La.R.S. 15:1172 and the

judicial screening provisions of La.R.S. 15:1184(B). We find that the trial court

erred in relying on these statutes to dismiss Mr. Budwine’s suit.

Louisiana Revised Statutes 15:1172(A) provides, in pertinent part, that:

Upon adoption of the administrative remedy procedure, in
accordance with the Administrative Procedure Act, and the
implementation of the procedure within the department or by the
sheriff, this procedure shall constitute the administrative remedies
available to offenders for the purpose of preserving any cause of
action they may claim to have against . . . the contractor operating a
private prison facility or any of its employees[.]

With regard to the time limitations for filing a claim for an administrative

remedy, La.R.S. 15:1172(B)(1) (emphasis added) provides that “[a]n 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.” The penalty

for failure to timely initiate administrative remedies is found in La.R.S. 15:1172(C),

which states:

If an offender fails to timely initiate or pursue his
administrative remedies within the deadlines established in Subsection
B of this Section, his claim is abandoned, and any subsequent suit

1
With regard to the remaining claim against Mr. Marks, the trial court rejected Mr.
Budwine’s application for forma pauperis status, finding that he had used an inappropriate form
in his application. Mr. Budwine initially raised this issue on appeal, but subsequent to filing his
motion for appeal, he was granted the right to proceed in forma pauperis. Therefore, this issue
has been rendered moot and we will not consider it on appeal.
2
Mr. Baldwin couches his assignments of error in the form of “Questions and Issues
Presented.”
2

asserting such a claim shall be dismissed with prejudice. If at the time
the petition is filed the administrative remedy process is ongoing but
has not yet been completed, the suit shall be dismissed without
prejudice.

Louisiana Revised Statutes 15:1177 provides a special form of judicial

review for decisions related to non-delictual complaints rendered through the

administrative process established in La.R.S. 15:1172. With regard to the judicial

review of these complaints, La.R.S. 15:1177(A) provides that the inmate

dissatisfied with an adverse decision involving a complaint against a contractor

operating a private-prison facility “may, within thirty days after receipt of the

decision, seek judicial review of the decision only in the Nineteenth Judicial

District Court or, if the offender is in the physical custody of the sheriff, in the

district court having jurisdiction in the parish in which the sheriff is located[.]”

Thereafter, La.R.S. 15:1177(A) sets forth the specific and exclusive steps that may

be taken in the judicial-review process for non-delictual complaints.

Additionally, these non-delictual complaints are subject to a special initial

judicial screening process pursuant to La.R.S. 15:1178 (emphasis added):

A. When a clerk of court receives a petition for judicial review
filed under the provisions of R.S. 15:1177, the clerk shall transmit the
petition to the appropriate division or official of the court prior to
taking any action on the petition.

B. The court, as soon as practicable after receiving the petition,
shall review the petition to determine if the petition states a
cognizable claim or if the petition, on its face, is frivolous or
malicious, or fails to state a cause of action, or seeks monetary
damages from a defendant who is immune from liability for monetary
damages.

C. If the court determines that the petition states a cognizable
claim, the court shall return the petition to the clerk of court for
service of process.

D. If the court determines that the petition, on its face, is
frivolous, or fails to state a cause of action, or seeks monetary
damages from a defendant who is immune from liability for monetary

3

damages, the court may dismiss the petition, or any portion of the
petition, without requiring the exhaustion of administrative remedies.

In fact, La.R.S. 15:1179 prohibits the clerk of court from effecting service of

process of a petition filed under the provisions of La.R.S. 15:1177 “until the

petition has been reviewed by the court and has been found to state a cognizable

claim.”

However, La.R.S. 15:1177(C) makes it clear that the special form of judicial

review for non-delictual complaints handled through the administrative process

and the judicial screening process of La.R.S. 15:1178 does not apply to delictual

complaints initiated through the administrative review process. Louisiana Revised

Statutes 15:1177(C) (emphasis added) provides, in pertinent part, 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.” Thus, instead of the step-by-step judicial-review procedure

mandated by La.R.S. 15:1177(A) for non-delictual complaints first subject to the

administrative-remedy procedure, delictual complaints are treated the same as any

other civil action.

In Mr. Budwine’s case, the trial court did not review his petition under

La.R.S. 15:1178. Instead, it reviewed the petition pursuant to the authority

provided in La.R.S. 15:1188. While La.R.S. 15:1188 contains judicial screening

language similar to that in La.R.S. 15:1178, it is not a part of the Correctional

Administrative Remedy Procedure Act. Instead, it comprises a part of the Prison

Litigation Reform Act, La.R.S. 15:1181-1191. Unlike the Correctional

Administrative Remedy Procedure Act, the Prison Litigation Reform Act provides

the authority for inmates to seek remedies with respect to prison conditions.

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La.R.S. 15:1182. Thus, we find that judicial review process of La.R.S. 15:1182 is

not applicable to Mr. Budwine’s suit.

Having found that neither the judicial screening provisions of La.R.S.

15:1178 nor the judicial screening provisions of La.R.S. 15:1182 are applicable to

Mr. Budwine’s suit and because, pursuant to the explicit terms of La.R.S.

15:1177(C), any inmate action seeking damages based on a delictual or tort action

should be filed in the district court, as an original civil action and subject to the

procedure applying in all civil actions, we find that the trial court erred in

dismissing Mr. Budwine’s suit without allowing issue to be joined with the named

defendants.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court

dismissing GEO, Inc. and its employees from the suit filed by Kenyon Budwine

and remand the matter to the trial court for further proceedings. We decline to

assess costs at this time because Kenyon Budwine’s suit was dismissed before

issue was joined with GEO, Inc. and its employees. Costs of this appeal are to be

assessed by the trial court at the termination of this litigation.

REVERSED AND REMANDED.

5

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1238

KENYON BUDWINE

VERSUS

OFFENDER ALTON MARKS

GREMILLION, JUDGE, dissenting.

I respectfully dissent from the majority’s decision and would affirm the trial

court.

Mr. Budwine is an inmate at the Allen Correctional Center in Kinder,

Louisiana. He alleged in his petition that he was attacked by another inmate, Alton

Marks, on September 4, 2012. Mr. Budwine sought administrative relief by filing

a request for same on January 23, 2013. His relief was denied by the Secretary of

the Department of Public Safety and Corrections on March 11, 2013. Mr.

Budwine filed suit on September 5, 2013, in the Thirty-Third Judicial District

Court in which he named Marks and several employees of GEO, Inc., and GEO

itself1 as defendants. Mr. Budwine attempted to file the matter in forma pauperis.

In accordance with La.R.S. 15:1188, the trial court reviewed Mr. Budwine’s

petition. The trial court found that Mr. Budwine failed to allege that he followed

the Correctional Administrative Remedy Procedure Act (CARP), La.R.S. 15:1171

et seq., and specifically, that he did not pursue administrative remedies within

ninety days of the tort, as is required by La.R.S. 15:1172(B)(1). Further, the trial

court found that Mr. Budwine’s petition failed to state a claim upon which relief

1
GEO, Inc. manages the prison.

could be granted as to his demands for punitive damages and injunctive relief. The

trial court also denied the motion to allow Mr. Budwine to proceed in forma

pauperis, because he had not used the correct form in his application.2 This appeal

ensued.

In dismissing Mr. Budwine’s demands for injunctive relief and punitive

damages, the trial court relied upon the Prison Litigation Reform Act, La.R.S.

15:1181, et seq. Section 1188 of the Prison Litigation Reform Act provides for

judicial screening of all prisoner suits in no event before service on the defendants

and to dismiss the petition or any portion thereof if the petition is frivolous,

malicious, fails to state a cause of action, seeks money damages from an immune

entity or person, or, redundantly, “fails to state a claim upon which relief can be

granted.” Also before service can be initiated, a prisoner is required by the Act to

comply with requirements if he is proceeding in forma pauperis. La.R.S. 15:1186.

The Louisiana Supreme Court in Pope v. State, 99-2559 (La. 6/29/01), 792

So2d 717, declared that CARP was unconstitutional as applied to tort claims. The

Louisiana Constitution vests original jurisdiction of civil claims with the district

court, and CARP impermissibly divests those courts of that jurisdiction. The court

determined that this divestiture was effected by virtue of the fact that under CARP,

the matter would be tried by the administrative agency, and the district court was

then limited to determining whether the agency had manifestly erred. However,

the court also stated, “The Legislature, of course, is free to enact procedures for

initial submission of tort claims by prison inmates to an administrative agency for

review, for example, of frivolous claims, as long as the action of the administrative

2
Mr. Budwine later filed the proper application to proceed in forma pauperis and his
application was granted on September 23, 2013.

2

agency does not constitute the exercise of original jurisdiction.” Id. at 720. The

quoted language was footnoted, and that footnote endorsed the procedure adopted

in the Prison Litigation Reform Act that requires that the district court review the

petition and dismiss it or portions thereof, as noted above.

Following the decision in Pope, the legislature responded by amending

La.R.S. 15:1172(B) to address the supreme court’s decision. See 2002 La. Acts

First Ex. Sess. No. 89, §2. Pope indicates that the trial court did not err in

dismissing the plaintiff’s petition. The legislature can require that an inmate

initiate his demand by seeking administrative review. Mr. Budwine initiated

administrative review, but well after the ninety-day period prescribed by La.R.S.

15:1172(B)(1); thus, the trial court properly dismissed it as to GEO and its

employees. The other contentions in Mr. Budwine’s appeal concerning whether he

stated a cause of action against the GEO defendants and regarding whether he

should be allowed to proceed in forma pauperis are rendered moot.

The judgment of the trial court in favor of all defendants except Alton Marks

and against Appellant, Kenyon Budwine, should be affirmed.

3