Korey Bossier v. Mark Garber

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-349

KOREY BOSSIER

VERSUS

MARK GARBER, ET AL.

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

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Shannon J. Gremillion, Judges.

REVERSED. JUDGMENT VACATED, REMANDED FOR
FURTHER PROCEEDINGS.

Blaine Barrilleaux
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.

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 covers such complaints and

requires Plaintiff to timely pursue his administrative remedy under 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 the plaintiff is entitled to judicial relief because
any administrative remedy is irreparably inadequate.

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Defendants here have the burden to prove that “an administrative remedy”

was available to Plaintiff. Only then will the burden shift to Plaintiff to show he

exhausted such remedy before filing suit. We find Defendants fail to prove the

existence of an administrative remedy under which Plaintiff could seek redress for

his alleged injuries. The pertinent language in both versions of the LPCC

handbook reads the same:

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.

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

allegations concerning the allegedly dangerous condition that injured him.

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. 15:1172(B)(1)

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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,1 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 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.

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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 are bolstered in this conclusion by the very language of the

“Grievance Procedures” provided in both versions of the Handbook. Following

the definition of a “grievance,” as contemplated by LPCC in its Handbook, a party

asserting a “grievance” is instructed to first“[a]ttempt to resolve the grievance with

the deputy” (emphasis added). This instruction indicates in our view that this

“grievance procedure” refers only to grievances concerning the behavior of

deputies and not to the generic overall operation of the facility including, for

example, leaky pipes or the negligent creation of hazardous conditions that result

in injury to an incarcerated inmate. It is absurd to suggest that a deputy 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 in how it

maintains its facility. And yet, were we to accept Defendants’ reading of the

Handbook provision such would be the result.

We further find the Handbook, as presented here, is silent regarding any

administrative process by which an inmate may notify LPCC of a negligent injury

tort claim and Defendants point us to no other provision in its Handbook. Thus,

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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the statutory provisions relied upon by the trial court and Defendants are not

applicable.2 We find LPCC failed to promulgate an administrative process through

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

allegedly sustained while incarcerated at Defendants’ facility. Consequently,

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

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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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.

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