Cheron v. LCS Corrections Services, Inc., No. 2002 CW 1049 R2 (La. App. 2/23/2004)

Citation872 So.2d 1094
Decision Date23 February 2004
Docket NumberNo. 2002 CW 1049 R2.,2002 CW 1049 R2.
CourtCourt of Appeal of Louisiana (US)


FERDINAND J. KLEPPNER, Metairie, Louisiana, Counsel for Plaintiff/Respondent, Patrick R. Cheron.

CHRISTOPHER A. EDWARDS, Lafayette, Louisiana, Counsel for Defendant, LCS Corrections Services, Inc.

ANNETTE R. SENG, And WENDELL WOODS, Baton Rouge, Louisiana, Counsel for Defendant/Relator, State of Louisiana, Department of Public Safety and Corrections.


KUHN, Judge.

This writ application filed by defendant-relator, the State of Louisiana, through the Department of Public Safety and Corrections ("the Department"), is before us on remand from the Louisiana Supreme Court. In determining whether the trial court properly denied the Department's exceptions, we address whether pertinent provisions of the Louisiana Corrections Administrative Remedy Procedure ("CARP"), as amended by Acts 2002, 1st Extraordinary Session, No. 89 ("Act 89"), are retroactive. Because we find that retroactive application of Act 89 would operate to divest respondent, Patrick R. Cheron, of a vested right, i.e., the right to litigate his tort claim, we conclude the trial court properly denied the Department's exceptions, and we deny the Department's writ application.


On July 20, 2001, Cheron filed a personal injury suit against the Department for injuries he allegedly sustained during the late summer of 2000, during his incarceration at the Pine Prairie Correctional Facility ("the Facility").1 Cheron alleges that while incarcerated, he experienced severe symptoms of fever, blurred vision, vomiting, sore throat, and constant headaches. He contends that he contracted a potentially fatal kidney disease known as "F.S.G.S," which was allegedly caused by inadequate cleanliness and improper food preparation utilized by the Facility. He maintains that Facility authorities, personnel, and employees ignored his repeated requests for medical attention. He asserts that if they had timely responded to his requests for medical attention, his illness could have been arrested or cured. He claims that the Department's negligence has caused severe physical pain and emotional damage and has substantially reduced his life expectancy.

Responding to the petition, the Department filed a dilatory exception raising the objection of prematurity, asserting that Cheron failed to exhaust administrative remedies as required by Louisiana Revised Statutes 15:1172 and 15:1184. The Department also later filed another dilatory exception, which raised the objection of vagueness or ambiguity, urging that the petition failed to specify the applicable procedure number assigned to Cheron's request for an administrative remedy. After trial of the exceptions, the trial court signed a judgment denying both exceptions on April 15, 2002.

Thereafter, the Department filed a writ application. On March 10, 2003, this court addressed the merits of the application and denied the writ. The Department then filed a writ application with the supreme court that was granted.2 The supreme court later remanded the matter to this court for "briefing, argument and opinion." Cheron v. LCS Corrections Services, Inc., 2003-1029 (La. 6/20/03), 847 So.2d 1246.

In its brief, the Department urges that the district court erred in finding that Pope v. State, 1999-2559 (La. 6/29/01), 792 So.2d 713, eliminated the mandatory-exhaustion requirement of Louisiana Revised Statutes 15:1184. The Department posits that even under the language of the Pope decision, an inmate must continue to exhaust administrative remedies pursuant to Louisiana Revised Statutes 15:1184 prior to filing a tort suit against prison authorities. The basis for the Department's claim is that Pope did not address a challenge to Louisiana Revised Statutes 15:1184 and did not declare it unconstitutional as applied to inmate tort claims. In making these arguments, the Department does not address the applicability of Act 89, recent legislation addressing a variety of matters pertinent to prisoner litigation. The Department merely states that Cheron's cause of action arose prior to its April 18, 2002 effective date.


The provisions of CARP, Louisiana Revised Statutes 15:1171-1179, were enacted in 1985 in response to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997-1997j (1980), which provided standards for the voluntary development and implementation by states of a system for resolution of disputes and grievances raised by prisoners. Pope v. State, 1999-2559, p. 4, 792 So.2d at 715. Pursuant to the provisions of CARP, the Department adopted an administrative remedy procedure for receiving, hearing, and disposing of any and all complaints and grievances by offenders against the state, the department, or its employees that arise while an offender is within the custody or under the supervision of the department. La. R.S. 15:1171(B). As originally enacted, no state court could entertain an offender's grievance or complaint that fell under the purview of the administrative remedy procedure unless and until the offender had exhausted the remedies provided by the procedure. La. R.S. 15:1172(B). The purpose of requiring exhaustion of administrative remedies is to reduce the quantity and improve the quality of prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524-525 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (addressing the federal Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e ("FPLRA")). Also, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Another benefit is that the internal review process may filter out frivolous claims. Porter v. Nussle, 534 U.S. at 525, 122 S.Ct. at 988. Operating in conjunction with CARP, the Louisiana Prison Litigation Reform Act ("LPLRA") curtails baseless or nuisance suits by prisoners.3

As originally enacted, Section 1171 of the CARP provisions encompassed "complaints and grievances" without any reference to tort actions. Pope v. State, 1999-2559, pp. 4-5, 792 So.2d at 716. However, in 1989, the Legislature amended Section 1171 to expressly include personal injury and medical malpractice within the type of claims encompassed by CARP and to add a provision authorizing monetary damage awards. Pope v. State, 1999-2559, p. 5, 792 So.2d at 716. The procedures authorized by Louisiana Revised Statutes R.S. 15:1171(B) and 15:1172(A) constituted the administrative remedies available to offenders for the purpose of preserving any cause of action claimed against the state, the department, or its employees. Prior to its amendment by Act 89, Section 1172(B) further provided in pertinent part:

No state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative remedy procedure unless and until the offender shall have exhausted the remedies as provided in said procedure. If the offender has failed timely to pursue administrative remedies through this procedure, any petition he files shall be dismissed.

Pursuant to Section 1177A (before its amendment by Act 89), an offender who was aggrieved by a decision in favor of the Department in an administrative remedy procedure was entitled to seek judicial review in the Nineteenth Judicial District Court within thirty days of receipt of the decision. The review was confined to the record made during the administrative remedy proceeding, although the court could order that additional evidence be taken. Section 1177(A)(5). The review was further limited to "the issues presented in the petition for review and the administrative remedy request filed at the agency level." Id. Section 1177 further provided that the court may reverse or modify the decision only for the limited reasons enumerated in the statute, including arbitrary or capricious behavior, abuse of discretion and manifest error. Section 1177(A)(8).

In Pope v. State, our supreme court addressed whether CARP (prior to its amendment by Act 89), violated La. Const. art. V, §16(A), which vests the district courts with original jurisdiction over "all civil and criminal matters." Michael W. Pope, a former inmate, brought a personal injury action against the Department in district court, alleging he was seriously injured while incarcerated. Pope, who had not first presented his claim to the warden via CARP, claimed the procedure was unconstitutional as applied to his personal injury action because it divested the district courts of original jurisdiction over a tort action. After the tort action was dismissed with prejudice by the court of appeal, the supreme court granted certiorari to consider Pope's claim.

Recognizing tort actions as being clearly civil matters, the court found that the CARP legislation violated the Constitution by allowing the Department to exercise original jurisdiction in tort actions and was "an invalid attempt to alter the original jurisdiction of the district courts by legislative act." Pope v. State, 1999-2559, p. 11, 792 So.2d at 719. Although the court broadly held that the statutory provisions of CARP were unconstitutional "to the extent that the statutes are applied to tort actions," the court explained that the existence of the administrative remedy procedure was not by itself prohibited by the constitution:

[T]he problem with La. Rev. Stat. 15:1171-1179 is not that the statutes completely eliminate the district courts . . . from taking part in any manner in a certain category of civil cases . . . or...

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