Korey Bossier v. Mark Garber

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-349

KOREY BOSSIER

VERSUS

MARK GARBER, ET AL.

************

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20164510
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John
D. Saunders, Elizabeth A. Pickett, Billy H. Ezell, Shannon J. Gremillion, Phyllis M.
Keaty, John E. Conery, D. Kent Savoie, Van H. Kyzar, and Candyce J. Perret Judges.
Judge Marc T. Amy, Recused.

REVERSED. JUDGMENT VACATED, REMANDED FOR
FURTHER PROCEEDINGS.

Saunders, J., dissents for reasons assigned by Judge Conery.
Ezell, J., concurs and assigns reasons.
Conery, J., dissents and assigns reasons.
Kyzar, J., dissents for the reasons expressed in the dissent by Judge Conery.
Perret, J., concurs for the reasoning asserted by Judge Ezell in his
concurrence.

Blaine Barrilleaux
David F. Rutledge
330 Settlers Trace, Suite B
Lafayette, LA 70508
(337) 406-8759
COUNSEL FOR PLAINTIFF/APPELLANT: Korey Bossier

Oats & Marino
Todd Swartzendruber
Stephen J. Oats
Gordon Square, Suite 400
100 E. Vermilion Street
Lafayette, LA 70501
(337) 233-1100
COUNSEL FOR DEFENDANTS/APPELLEES:
Sheriff Mark Garber, Rob Reardon and Berkley Insurance Company

COOKS, Judge.

ON REMAND

In accordance with an order from the Louisiana State Supreme Court, Korey

Bossier v. Mark Garber, Et al., 18-541(La. 6/15/18), __So.3d__ , and after additional

briefing and oral argument, we have considered this case en banc.

FACTS AND PROCEDURAL HISTORY
Korey Bossier (Plaintiff) filed suit against Mark Garber, Sheriff of Lafayette

Parish and others (Defendants) alleging he was injured when he slipped and fell in

his jail cell while incarcerated at the Lafayette Parish Correctional Center (LPCC).

Plaintiff alleges his injuries occurred on two occasions, August 31, 2015 and

September 17, 2015. He alleges he fell in his cell “as a result of water running freely

from the nearby showers into [his] cell.” Plaintiff allegedly received a copy of the

2012 version of the LPCC Handbook containing the procedure for filing a

“grievance” as an inmate when he arrived at the facility. Defendants admit that the

Handbook was revised on September 8, 2015. Plaintiff asserts he did not receive a

copy of the revised Handbook. Defendants maintain that the change in the rule was

a minor change to its grievance procedure requiring inmates to submit their

grievance electronically rather than on paper. Regardless of the change in the

procedure, Plaintiff asserts the Handbook as first presented, and as revised, does not

provide any administrative procedure for filing a complaint regarding personal

injury. Defendants maintain the Handbook language under their interpretation

covers such complaints and requires Plaintiff to timely pursue a remedy under

administrative procedures in accordance with state laws. Defendants filed an

exception of prematurity and prescription asserting Plaintiff failed to timely exhaust

his administrative remedy before filing suit. The trial court granted Defendants’

exceptions dismissing Plaintiff’s claims with prejudice at his cost. Plaintiff appeals

asserting the “trial court erred in granting Defendants’ Exceptions of Prematurity

and Abandonment.”

LEGAL ANALYSIS

The dilatory exception of prematurity provided in La.Code Civ.
Proc. art. 926 questions whether the cause of action has matured to the
point where it is ripe for judicial determination, because an action will
be deemed premature when it is brought before the right to enforce it
has accrued.” LaCoste v. Pendleton Methodist Hosp., L.L.C., 07–8, 07–
16, p. 5 (La.9/5/07), 966 So.2d 519, 523. The function of an exception
of prematurity is to determine whether a judicial cause of action is not
available yet because of some unmet prerequisite condition. Rico v.
Cappaert Manufactured Hous., Inc., 05–141 (La.App. 3 Cir. 6/1/05),
903 So.2d 1284. When the determination of whether an exception of
prematurity should have been granted involves a question of law, then
the appellate court must determine whether the trial court was legally
correct or incorrect. Id. Interpretation of statutes involves a question of
law. Thibodeaux v. Donnell, 08–2436 (La.5/5/09), 9 So.3d 120.

Crooks v. Louisiana Pac. Corp., 14-724 p. 3 (La.App. 3 Cir. 12/10/14), 155 So.3d

686, 688.

We review the trial court’s ruling on the exception of prematurity under the

de novo standard of review as this ruling is based upon the interpretation of an

administrative rule that affects Plaintiff’s right to file suit. In Ngo v. Estes, 04-186

p. 3 (La.App. 3 Cir. 9/29/04), 882 So.2d 1262, 1264 this court, relying on the

decision in Cheron v. LCS Corrections Servs., Inc., 02-1049 (La.App. 1 Cir.

2/23/04), 872 So.2d 1094, writ granted, 04-703 (La.5/14/04), 872 So.2d 532,

(emphasis in original and added) recognized that:

The party that raises the objection of
prematurity has the burden of showing that an
administrative remedy is available, by reason of which the
judicial action is premature. Once the existence of an
administrative remedy is established, the burden shifts
to the plaintiff to show that the specified administrative
remedies or procedures have been exhausted or that the
present situation is one of the exceptional situations where

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the plaintiff is entitled to judicial relief because any
administrative remedy is irreparably inadequate.

The present Defendants have the burden to prove that an administrative

process and remedy was in fact available to Plaintiff. Only then will the burden shift

to Plaintiff to show he exhausted the administrative process before filing suit. We

find three distinct reasons why Defendants fail to prove the existence of an

administrative process under which Plaintiff could seek redress for his alleged

injuries: (1) the recited Handbook provision is ambiguous; (2) the Handbook does

not provide meaningful notice to an inmate that the recited grievance provision

includes the manner in which he would be required to file a complaint for personal

injury; and (3) Defendants failed to abide by the very procedure they assert applies,

instead, by their own admission, they created a procedure involving participation by

a risk manager empowered to offer settlement terms to resolve Plaintiff’s claim

which went far beyond the recited grievance procedure.

The pertinent language in both versions of the LPCC handbook reads the same

except as to part (b) which was changed in a later version of the Handbook to provide

for filing to be done “through the Telmate [computer] system” rather then

handwritten and placed in the Administrative Remedy Procedure Box (ARP box) as

earlier instructed.

A grievance is a complaint. It must concern a rule or procedure,
complaint of expression or misconduct by a deputy in administering
such rules or operation of the LPCC. A personal dispute between an
offender and an employee is not considered grounds for a grievance.

1) If you have a grievance, you must follow these procedures:

a) Attempt to resolve the grievance with the deputy.

b) If unsuccessful, submit a grievance form in the
Administrative Remedy Procedure (A.R.P.) box within
thirty (30) days of the incident. All grievances must be

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legible and must provide specific dates, times and persons
involved.

Defendants assert the phrase “operation of the LPCC” covers Plaintiff’s

allegations concerning the allegedly dangerous condition that injured him. They

maintain the provision should be read as though a period appears after the word

“rules” making the phrase “or operation of the LPCC” disjunctive, standing alone,

rather than referring to the actions of “a deputy” as plainly written. But even under

such a strained reading of the provision it cannot be cogently argued that this

language includes the filing of a complaint seeking redress for damages resulting

from a personal injury allegedly occurring in the jail as a result of Defendants’

negligence. Filing a complaint regarding a dangerous condition that might lead to

injury is not the same as filing a claim alleging one has suffered a personal injury as

the result of an allegedly dangerous condition. Moreover, the recited provision

simply cannot be read to mean that an inmate would be expected to submit his

personal injury claim to a deputy and attempt to first resolve his claim with a deputy.

That is quite simply an absurd proposition.

Plaintiff asserts the language is, at best, ambiguous and/or simply does not

provide any administrative procedure by which an inmate can assert, or seek redress

for, a personal injury claim. We agree with Plaintiff. We find the language relied

on by Defendants to invoke the provisions of La.R.S. 15:1171,1 La.R.S.

1
A. The Department of Public Safety and Corrections and each sheriff may
adopt an administrative remedy procedure at each of their adult and juvenile
institutions, including private prison facilities.

B. The department or sheriff may also adopt, in accordance with the
Administrative Procedure Act, administrative remedy procedures for receiving,
hearing, and disposing of any and all complaints and grievances by adult or juvenile
offenders against the state, the governor, the department or any officials or
employees thereof, the contractor operating a private prison facility or any of its
employees, shareholders, directors, officers, or agents, or a sheriff, his deputies, or

4

15:1172(B)(1) and (C) is at the very least, ambiguous and does not adequately place

a potential claimant on notice that these procedures are intended to apply to filing

a complaint with LPCC regarding a slip-and-fall injury allegedly sustained while

incarcerated in the facility.

We believe a fair reading of the provision leads us to conclude that it largely

speaks to actions of deputies and their conduct or misconduct concerning their

actions in implementing the rules, procedures and operations of the facility. The

provision instructs the inmate to first attempt to resolve their “grievance” with the

deputy that they have the problem with, and further instructs if that attempt is

unsuccessful to submit a written complaint which includes identifying the “persons

involved,” i.e. the person or persons who are the subject of the complaint. The

written procedure then provides how the written complaint will be handled. It is first

employees, which arise while an offender is within the custody or under the
supervision of the department, a contractor operating a private prison facility, or a
sheriff. Such complaints and grievances include but are not limited to any and all
claims seeking monetary, injunctive, declaratory, or any other form of relief
authorized by law and by way of illustration includes actions pertaining to
conditions of confinement, personal injuries, medical malpractice, time
computations, even though urged as a writ of habeas corpus, or challenges to rules,
regulations, policies, or statutes. Such administrative procedures, when
promulgated, shall provide the exclusive remedy available to the offender for
complaints or grievances governed thereby insofar as federal law allows. All such
procedures, including the adult and juvenile offender disciplinary process,
promulgated and effective prior to June 30, 1989, shall be deemed to be the
exclusive remedy for complaints and grievances to which they apply insofar as
federal law allows.

C. The department or sheriff may also adopt procedures for adult or juvenile
offenders to discover and produce evidence in order to substantiate their claims and
promulgate rules and regulations governing the recommendation, review, and
approval of an award for monetary relief.

D. For the purposes of this Part, status as an “offender” is determined as of the time
the basis for a complaint or grievance arises. Subsequent events, including posttrial
judicial action or release from custody, shall not affect status as an “offender” for
the purposes of this Part.

La. R.S. 15:1171.

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reviewed by the designated ARP officer who then sends it on to the “appropriate

staff member” who then investigates the complaint. The inmate is to receive a

written reply within fourteen days after the staff member receives the complaint. If

the inmate is dissatisfied with the outcome of that decision, he can submit his

grievance to the assigned Section Lieutenant who can further investigate the matter.

The Lieutenant has fourteen days from the time he receives the complaint to respond.

If the inmate is still dissatisfied with the handling of his complaint he may resubmit

his grievance to the Jail Commander or his designee, who must reply within fourteen

days. All of these provisions make it clear that the grievance procedure as written

does not contemplate the manner or procedure for reporting a personal injury

suffered by an inmate. Neither a deputy nor any of the persons listed in the chain of

command have any authority to resolve a personal injury claim or award any

compensation to the inmate for his injuries.

Plaintiff’s attorney points out that Plaintiff reported his injury to deputies who

took photographic evidence and turned this over to the risk manager. Defendants

admitted in oral argument that Plaintiff’s attorney and the risk manager engaged in

an effort to resolve Plaintiff’s claim and the risk manager made an offer to settle the

matter. Defendants also informed the court at oral argument that they terminated the

services of the risk manager after the filing of this matter and now such matters are

referred directly to the sheriff. All of which belies Defendants’ assertion that the

recited “grievance procedure” was intended or designed to include reporting

personal injury claims and provided an administrative mechanism to resolve them.

Further, Defendants admit they knowingly and intentionally deviated from

prescribed procedure in this case. They do not dispute the then employed risk

manager was engaged in negotiation with Plaintiff’s attorney without Plaintiff first

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initiating the process it now alleges was sacrosanct. We have repeatedly held that a

defendant’s failure to follow its own administrative procedure “cannot and should

not enure to [their] benefit.” Pete v. State, Dep’t of Corr., 17-1131 p. 13 (La. App.

3 Cir. 5/9/18), 247 So. 3d 1084, 1093.

Our state constitution guarantees that: “All courts shall be open, and every

person shall have an adequate remedy by due process of law and justice,

administered without denial, partiality, or unreasonable delay, for injury to him in

his person, property, reputation, or other rights.” La. Const. art. I, § 22 (1974)

(emphasis added).

The Louisiana Supreme Court in Wilson v. City of New
Orleans, 479 So.2d 891, 894 (La.1985) also expressed:

[The] central meaning of procedural due process is well
settled. Persons whose rights may be affected are entitled
to be heard; and in order that they may enjoy that right,
they must first be notified.

An equal concomitant to this right, thus, is ‘the right to notice and
opportunity to be heard’ which must be extended at a meaningful
time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 92
S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545,
85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)…

As stated in Wilson “due process is not a technical concept with
a fixed content unrelated to the time, place and circumstances.” Rather,
it requires the implementation of flexible rules which may yield to the
demands of the particular situation. Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Louisiana Supreme Court
in Wilson very aptly articulated:

The constitutional right to be heard is a basic
aspect of the duty of government to follow a fair process of
decision making when it acts to deprive a person of his
possessions. The purpose of this requirement is to protect
a person’s use and possession of property from arbitrary
encroachment—to minimize substantially unfair or
mistaken deprivations of property.

Wilson, 479 So.2d at 894 (citations omitted and emphasis
added).

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Rubin v. Lafayette Par. Sch. Bd., 93-473 p. 9 (La. App. 3 Cir. 12/14/94), 649 So. 2d

1003, 1010-11, writ denied, 95-0845 (La. 5/12/95), 654 So. 2d 351(emphasis

added).

In Wallace v. GEO Group, Inc., 11-863 (La. App. 3 Cir. 2/1/12), 84 So. 3d

750, this court recognized that prison facilities have “[a] duty to inform [inmates] of

the procedure necessary to move through the administrative review process.” Id. at

756. And as mentioned earlier, this court recently held that not only must the

administrative provisions provide meaningful notice to the inmate of how to proceed

to file a claim for personal injury, the sheriff must also comply with the procedural

requirements provided in the Handbook. The failure of LPCC to promulgate

administrative procedures for redress of injuries sustained while in custody, in a

manner that clearly and in plain language informs an inmate, i.e. puts him on notice

that if he is hurt while in jail he must make a claim within a specified period of time

and in a specified manner, cannot inure to the benefit of LPCC. We note that

LPCC’s Handbook contains detailed instructions and procedures for inmates to

report a sexual assault on their person. This injury to an inmate is not left to an

ambiguous provision. Thus, it appears LPCC is capable of promulgating a clear

administrative policy and procedure detailing how, when and where to file a claim

for personal injury if it intends to affect an inmate’s constitutional right to seek

compensation for his injuries as provided by law.

Further, even if the grievance procedure can be read to refer to the generic

overall operation of the facility including, for example, bad food, leaky pipes, or

fights in the jail, complaints seeking redress for injuries to one’s person is not easily

associated. Moreover, it is absurd to suggest that a deputy, Section Lieutenant, or

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Jail Commander has any authority to resolve Plaintiff’s, or any inmates, claim for

damages resulting from injuries alleged to have occurred as a result of LPCC’s

negligence. And yet, were we to accept Defendants’ reading of the Handbook

provision such would be the result.

Defendants assert Plaintiff understood the meaning of the grievance provision

because he filed three other grievances in accordance with the Handbook

instructions. We have reviewed those complaints contained in the record and

conclude that all three complaints are further evidence supporting our conclusion

concerning the type of complaint Plaintiff understood the grievance procedure to

cover. In Inmate Request #001767543 Plaintiff’s “Description of Problem” stated

“Deputy Harris was very disrespectful threatened my life and Lock me down for

nunin she said if I was on the street was going to shot my ass. I scared for my life

not known wat she capable of.” His requested “Action(s) to Remedy Grievance”

states: “I think she should be revaluated an see if she fit for this job caused it all was

a problem.” And in his third grievance, Request # 001768318 Plaintiff described his

“Problem” as: “Deputy Harris wrongful wrote me up an had me move. She also

threatin my life by stating she was goin to shoot me in the ass if we were in the street

don’t kwon her capabilitys. I’m afraid for my life.” Again he suggested the

“Action(s) to Remedy Grievance” would be “She need to be reevaluate an see if she

really fit for dis job cause Im goin to the news people with this upon my release.” In

Inmate Request #001770592, Plaintiff’s complaint was that he “received a tray just

a sausage an bread a cookie dat no way to feed a grown man.” His requested

“Action(s) to Remedy Grievance” was that he would like the deputies to bring him

a proper meal. These grievances reported by Plaintiff in accordance with the

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Handbook policy further demonstrate the type of complaints Plaintiff understands

the provision includes.

We emphasize the Handbook, as presented here, is silent regarding any other

step in the alleged administrative process by which an inmate may notify LPCC of

a negligent injury tort claim. Defendants point us to no other provision in their

Handbook. We find, the statutory provisions relied upon by the trial court and

Defendants are not applicable.2 LPCC failed to promulgate an administrative

2
A. Purpose--to constitute the department's “administrative remedy procedure” for
offenders as a regulation.
B. Applicability--deputy secretary, chief of operations, regional wardens, wardens, and sheriffs or
administrators of local jail facilities. Each unit head is responsible for ensuring that all unit written
policies and procedures are in place to comply with the provisions of this regulation.

C. Policy. It is the secretary’s policy that all offenders and employees have reasonable access to
and comply with the department's “administrative remedy procedure” through which an offender
may seek formal review of a complaint relating to most aspects of his incarceration. Offenders
housed in local jail facilities shall also be afforded reasonable access to a grievance remedy
procedures.

D. Administrative Remedy Procedure—Purpose

1. On September 18, 1985, the Department of Public Safety and Corrections installed in all
of its adult institutions a formal grievance mechanism for use by all offenders committed
to the custody of the department. The process bears the name Administrative Remedy
Procedure (ARP). Offenders are required to use the procedure before they can proceed with
a suit in federal and state courts.
2. Corrections Services has established the administrative remedy procedure through
which an offender may seek formal review of a complaint which relates to any aspect of
his incarceration if less formal methods have not resolved the matter. Such complaints and
grievances include, but are not limited to any and all claims seeking monetary, injunctive,
declaratory or any other form of relief authorized by law and by way of illustration,
includes actions pertaining to conditions of confinement, personal injuries, medical
malpractice, time computations, even though urged as a writ of habeas corpus, or
challenges to rules, regulations, policies or statutes, including grievances such as offender
requests for accommodations under the Americans with Disabilities Act and for complaints
of sexual abuse under the prison rape elimination act.

3. Through this procedure, offenders shall receive reasonable responses and where
appropriate, meaningful remedies.

22 La. Admin.Code Pt I, § 325

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process through which inmates may make a claim for damages as a result of personal

injury allegedly sustained while incarcerated at Defendants’ facility. Defendants

could easily have included language in the policy handbook plainly setting forth the

procedure to be followed when an inmate is injured in the facility. Constitutional

due process requires no less. An inmate must be clearly put on notice of how and

when to make a claim if he gets hurt while incarcerated in a facility. Ambiguous

language of the sort used by Defendants here does not amount to clear notice

sufficient to meet the test of due process. If the reasonable minds of twelve jurists

sitting en banc can differ as to the meaning of the word “operations” found in the

provision in question, how can an obviously uneducated incarcerated inmate be

expected to interpret “operations” as including personal injury claims.

We must hold, Plaintiff’s right to seek redress for alleged tort claims in district

court within the one-year period of prescription provided by Louisiana law has not

been pre-empted. See La.Civ.Code arts. 2315, 2317, and 2317.1 and La. Civ.Code

art. 3492. See also Stokes v. Strain, 99-1150 (La. App. 1 Cir. 6/23/00), 768 So. 2d

619, holding that “[i]f a sheriff does not adopt and implement procedures pursuant

to the CARP, an inmate’s access to the courts is procedurally unaffected.” Id. at 621

(citation omitted).

The judgment of the trial court is hereby reversed, vacated and set aside. The

matter is remanded to the trial court for further proceedings consistent with this

ruling. All costs on appeal are assessed against Defendants.

REVERSED. JUDGMENT VACATED,
REMANDED FOR FURTHER PROCEEDINGS.

11

NUMBER CA 17-349
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KOREY BOSSIER

VERSUS

MARK GARBER, ET AL.

Ezell, J., concurs and assigns reasons.

It is clear that this case and the case which I authored are similar but are not

the same factually.

In Barlow v. Garber, 17-401 (La.App. 3 Cir. 11/2/17), 230 So.3d 1002, no

action was taken by the plaintiff at all, to express his grievance or complaint. The

plaintiff in Barlow was familiar with the procedure as he used it to file another

complaint.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-349

KOREY BOSSIER

VERSUS

MARK GARBER, ET AL.

Conery, J., dissents and assigns reasons. I would adhere to this court’s opinion in

Barlow v. Garber, 230 So.3d 1002 (2017).

The majority recognizes that the grievance procedure applies to the generic

operations of the jail, and gives as an example “leaking pipes”. This is the exact

allegation here, as plaintiff claims water from the nearby showers was allowed to

leak into his cell and he slipped in the water. While the majority makes excellent

points in its opinion, the simple, uncontested fact is that plaintiff did not follow the

administration procedures act.

I would submit that the administrative procedures act is clear and

unambiguous. Plaintiff did not follow the act. His suit is premature. I would grant

the exception.