Nix v. King

• Decision Date: 09 October 1984
• Docket Number: No. 83,83
• Parties: Kirksey M. NIX, Jr. v. John KING, Ross Maggio, et al. CA 1084.
• Court: Court of Appeal of Louisiana — District of US

Page 805

457 So.2d 805

Kirksey M. NIX, Jr. v. John KING, Ross Maggio, et al.

No. 83 CA 1084.

Court of Appeal of Louisiana,

First Circuit.

Oct. 9, 1984.

Kirksey M. Nix, Jr., pro se.

Houston T. Penn, La. Dept. of Justice, Baton Rouge, for defendants-appellees, John King, Ross Maggio, Col. Robert Bryant.

Before WATKINS, CRAIN and ALFORD, JJ.

ALFORD, Judge.

This is an appeal from the granting of a peremptory exception of no cause of action against plaintiff-appellant, Kirksey M. Nix, Jr., and in favor of defendants-appellees, John T. King, Ross Maggio, Jr., Colonel Robert Bryant, Major E. Booker and Captain Billy Travis. Appellant is a prisoner in Angola State Penitentiary. On July 30, 1982, appellant was brought before the Louisiana Department of Corrections Disciplinary Board on the charge of dealing in narcotics and subsequently was found guilty of the charge. Next, appellant appealed the board's finding to the Secretary of the Department of Corrections, Mr. John King. Appellant received notice on November 16, 1982, that the board's finding had been affirmed. On that same day, appellant notified Mr. King by letter of his intention to seek judicial review of the action taken.

Appellant's Petition for Judicial Review was received by the Clerk of Court for the Nineteenth Judicial District Court on December 22, 1982, but not formerly filed until February 25, 1983, due to appellant's failure to perfect his right to proceed in forma pauperis until that date. Appellees responded to the petition with peremptory exceptions of no cause and no right of action. The basis of these exceptions was that appellant had failed to timely file his petition for judicial review under the Administrative Procedure Act, LSA R.S. 49:950, et seq. After a hearing conducted by the Commissioner for the Nineteenth Judicial District Court, the matter was submitted to the trial court which maintained the exceptions. We affirm.

We are of the opinion that appellees were in reality urging a peremptory exception of prescription, and thus, we will consider the issues raised in this appeal from that perspective. The Administrative Procedure Act is applicable to an agency adjudication proceeding of the Louisiana Department of Corrections. State ex rel. Armistead v. Phelps, 365 So.2d 468 (La.1978). Additionally, for the reviewing court to have jurisdiction in administrative determinations, it is essential that the request for judicial review or appeal be timely filed. West v. La. Dept. of Public Safety, 432 So.2d 273, 275 (La.App. 1st Cir.1982); Baloney v. DHHR, Office of Family Services, 364 So.2d 203 (La.App. 1st Cir.1978).

The time delay for filing a petition for judicial review of an agency determination under the Administrative Procedure Act is found in Section 964 which provides in part,

B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency, or if rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.

Appellant admits that he received the notice of the agency's final determination on November 16, 1982. The Commissioner found that the notice would have had to be mailed on or before November 15, 1982, to have reached appellant on November 16, 1982. Therefore, the Commissioner determined that appellant's petition would have had to be filed on or before December 14, 1982, to have been timely. In his brief, appellant maintains that the notice was hand delivered on November 16, 1982. Assuming this to be true, the thirty day delay would have begun on November 17, 1982, and would have expired on December 16, 1982. See State ex rel. Armistead v. Phelps, supra at 469.

Appellant maintains that he placed his petition for judicial review in the prisoner's mail box on December 15, 1982. The Commissioner noted in his report that the envelope which contained the petition was postmarked December 17, 1982. Regardless of when the petition was mailed, the fact remains that it was not received by the clerk's office until December 22, 1982, and not filed until February 25, 1983. Therefore, even if we assume that appellant's delay expired on December 16, 1982, it is apparent that his petition was not even received by the clerk's office within the delay allowed.

Appellant maintains that due to certain delays faced by prisoners in having access to legal materials, in having prison accounts verified for forma pauperis qualification and in having mail picked up by prison officials rather than the U.S. postal system, the application of LSA R.S. 49:964 denies him equal protection, due process and access to the courts. We disagree.

As noted by this Court in the recent case of Williams v. Lallie Kemp Charity Hosp., 428 So.2d 1000, 1009 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1093 (La.1983),

The Louisiana and federal constitutions both require equal protection of the laws. U.S. Const.Amend. XIV; La. Const. art. I, Sec. 3. When a claim is made that a law violates these provisions, and the claimant belongs to a class receiving disparate treatment, a determination must be made as to whether the law impinges on a "fundamental right" or operates to the disadvantage of some "suspect class." If the law does either of the above, it will be subject to strict scrutiny and be declared invalid unless it is shown that a "compelling governmental interest" exists; if neither a suspect class nor a fundamental right is involved, the test is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it. Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Bazley v. Tortorich, 397 So.2d 475 (La.1981); Everette v. Goldman, ¹ supra.

We are simply of the opinion that appellant does not belong to a class receiving disparate treatment under the Administrative Procedure Act. Appellant...