Fulford v. Phelps

• Court: Court of Appeal of Louisiana
• Writing for the Court: CHIASSON
• Citation: Fulford v. Phelps, 365 So.2d 575 (La. App. 1978)
• Decision Date: 20 November 1978
• Docket Number: No. 12273,12273
• Parties: John FULFORD v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.

Page 575

365 So.2d 575

John FULFORD v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.

No. 12273.

Court of Appeal of Louisiana, First Circuit.

Nov. 20, 1978.

John Fulford, in pro. per.

William J. Guste, Jr., Atty. Gen., Richard Rudolph, Staff Atty., Baton Rouge, counsel for defendant-appellee, C. Paul Phelps et al.

Before SARTAIN, CHIASSON and EDWARDS, JJ.

CHIASSON, Judge.

John Fulford, appellant, on August 1, 1977 filed suit against C. Paul Phelps, Secretary, Louisiana Department of Corrections (Department) asking that he be released from Close Cell Restriction (CCR) where he has been confined since June of 1976. Appellant was already confined in CCR when he was brought before a disciplinary board for a rule violation on June 21, 1976, which related to an escape plan that Fulford was alleged to be involved in. The information concerning the alleged escape plan was received from both inmate informers and a report by an FBI agent.

The disciplinary board's decision of July 9, 1976 states that, "The Board took no punitive action on the report except to send him back to his quarters which he now has." Fulford appealed the disciplinary board's decision to the Secretary of the Department of Corrections. On September 27, 1976, C. Paul Phelps, Secretary, granted the appeal in part, requiring that Fulford be given a new incident report and that a new hearing be held within ten days.

A new disciplinary board hearing on Fulford's case was held and on October 8, 1976, Fulford was sentenced to CCR by the disciplinary board. Fulford again appealed to the Secretary who denied the appeal on December 31, 1976.

Fulford, by his suit dated August 1, 1977, sought a judicial review of all of these proceedings and specifically asserts that he is being confined in CCR on an anonymous inmate informer's word and an unverified FBI agent's report.

The case was tried on December 6, 1977 and on December 21, 1977 the trial court ruled in Fulford's favor and ordered that he be transferred from CCR to the general population of Louisiana State Penitentiary. However, on December 21, 1977 the trial court granted the appellee's (Department's) motion for new trial.

On January 16, 1978 a new trial was held. On February 8, 1978 the trial court gave written reasons for judgment and on April 17, 1978 the trial court signed a judgment dismissing Fulford's suit. The trial court denied two motions by Fulford for a new trial, one on March 8, 1978 and the other on April 17, 1978. From the judgment dismissing his suit, Fulford has taken a devolutive appeal.

The Louisiana Supreme Court in its recent decision of October 10, 1978, In Re: Armistead, Jr. v. Phelps, Secretary, Department of Corrections, 365 So.2d 468, clarified the proper procedure and the standard of review for applications for review of administrative proceedings held under the Louisiana Department of Corrections' "Adult Rules, Regulations and Disciplinary Procedures" (January, 1977).

The correct procedure, as specified in the Armistead case, has been substantially complied with in the instant case.

We adopt as our own the finding of facts and reasons for judgment of the trial court, as follows:

"John Fulford, inmate at Louisiana State Penitentiary, seeks his release from Close Cell Restriction (CCR) at Angola, where he has been confined since June of 1976.

"The facts indicate that Fulford was placed in CCR following information received from inmate informers that Fulford and others were involved in an escape plot. This information was verified by Mr. Phil Petley, an FBI agent, who contacted prison officials and apparently described in detail the alleged escape plot. Fulford...