United States District Court, M.D. Louisiana
RULING AND ORDER
JOHN W. DeGRAVELLES, District Judge.
Before the Court is Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 19.) Plaintiff opposes the motion. (Doc. 21.) The Court has jurisdiction under 28 U.S.C. § 1331 because Plaintiff brought suit pursuant to 48 U.S.C. § 1983.
After carefully considering the law, facts, and arguments of the parties, the motion to dismiss is granted.
I. Factual Allegations and Background
Plaintiff David Carter, Jr., brought suit against Defendants Sheryl L. Ranatza, Jim Wise, Matthew Hardy, Henry Powell, Greta W. Jones and Jerrie Ledoux, all in their Official Capacities as Members of the Committee on Parole; the Committee on Parole; and James M. LeBlanc, in his official capacity as Secretary of the Louisiana Department of Public Safety and Corrections ("Department"). (Doc. 14, P. 1-2.) Plaintiff alleges that Defendants applied an ex post facto law to him in violation of Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution of 1974. (Doc. 14, P. 6-7 ¶ 18.)
In his Amended Complaint, Plaintiff pleads that on December 11, 1973, he was charged with first degree murder for the death of Lionel T. Reab, who was killed on November 30, 1973. (Doc. 14, P. 4 ¶ 7.) Plaintiff alleges that on February 12, 1974, he plead guilty to the reduced charge of second degree murder as a result of a plea bargain. (Doc. 14, P. 4 ¶ 8.) Plaintiff alleges that in exchange for the guilty plea, he was told that his sentence would be life imprisonment but that, after twenty years, he would be eligible for parole in accordance with La. R.S. 14:30.1 as it read at the time of the offense and of his guilty plea. (Doc. 14, P. 4 ¶ 9.) Plaintiff asserts that at the time of his offense and guilty plea, La. R.S. 14:30.1 contained the following provision: "[w]hoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years." (Doc. 14, P. 3 ¶ 6.) Plaintiff claims that the parole eligibility was the gravamen of the plea bargain and that the parole eligibility was why he pleaded guilty. (Doc. 14, P. 4 ¶ 9.)
Plaintiff alleges that prior to accepting his guilty plea, he spoke to his attorney, Ralph Barnett; the prosecutor Marion Edwards; and the trial judge, the Honorable Charles Gaudin. (Doc. 14, P. 4 ¶ 9.) Plaintiff claims that Ralph Barnett told him he "was eligible for parole in twenty years" (Doc. 14, P. 4 ¶ 9.) Plaintiff claims that Marion Edwards told him "you will not have the benefit of parole, probation or suspension of sentence for a period of twenty years. You understand that?" (Doc. 14, P. 4 ¶ 9.) Plaintiff claims that he responded, "Yes, sir." (Doc. 14, P. 4 ¶ 9.) Furthermore, Plaintiff asserts that Judge Gaudin told him the following:
Let the Court explain this to you Mr. Carter. In as much as the District Attorney has agreed to a second degree murder charge, the Court is obliged to sentence you to prison for life, you shall not be eligible for parole or suspension of sentence for a period of twenty years. That doesn't mean that after twenty years you will be released because you may not be released after twenty years. Do you understand that?
(Doc. 14, P. 4 ¶ 9.)
Plaintiff claims that he responded "yes, " and that Judge Gaudin also said "[t]hat is the soonest you will be able to get out but it may be longer than that." (Doc. 14, P. 4-5 ¶ 9.)
Plaintiff alleges that, after the entry of his guilty plea, Judge Gaudin signed a Commitment Order sentencing him to imprisonment at hard labor for life without benefit of parole, probation or suspension of sentence for a period of twenty years. (Doc. 14, P. 5 ¶ 10.) The order purportedly gave him credit for time served from December 7, 1973, through the date of the Order. (Doc. 14, P. 5 ¶ 10.)
Plaintiff claims that in 1975, La. R.S. 14:30.1 was amended to "[increase] the penalty for second degree murder, " by increasing the period during which an offender was eligible for parole, probation or suspension of sentence from twenty to forty years. (Doc. 14, P. 5 ¶ 11.) Plaintiff further alleges that in 1979, La. R.S. 14:30.1 was amended again, removing any benefit of parole from the statute. (Doc. 14, P. 5 ¶ 12.) Plaintiff asserts that after serving twenty years of his sentence, he applied for parole in 1993, but was "advised by the then existing parole board that he was not eligible for parole despite the language of the statue governing his sentence and the language of his Commitment Order." (Doc. 14, P. 5 ¶ 13.)
Plaintiff claims that in 2013, he retained counsel in an effort to withdraw his guilty plea because he had not received what he bargained for, i.e., eligibility for parole after twenty years. (Doc. 14, P. 6 ¶ 14.) Plaintiff asserts he was denied this relief by the Louisiana courts. (Doc. 14, P. 6 ¶ 14.)
Plaintiff alleges that he recently applied for parole to the Parole Committee, which was created in 2012 to replace the previously exiting Parole Board. (Doc. 14, P. 6 ¶ 15.) Plaintiff alleges that the Parole Committee, in a letter dated August 28, 2013, advised him that its records "show you are not eligible for parole." (Doc. 14, P. 6 ¶ 15.)
Plaintiff claims that "[t]he Parole Committee represents that the [Department], rather than the Committee, has the sole authority to determine a Louisiana inmate's eligibility for parole." (Doc. 14, P. 6 ¶ 16.) Further, according to the complaint, "[t]he Committee further maintains that pursuant to that authority the [Department] through the person of its Secretary, defendant LeBlanc, has determined that plaintiff is not eligible for parole." (Doc. 14, P. 6 ¶ 16.)
Plaintiff asserts that the Committee and/or LeBlanc are applying to him the 1979 amendment to La. R.S. 14:30.1, which removed parole eligibility for those who commit second degree murder and which therefore increased his punishment. (Doc. 14, P. 6-7 ¶ 18.) Plaintiff claims that applying the 1979 amendment to him is an ex post facto law in violation of Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution of 1974. (Doc. 14, P. 6-7 ¶ 18.)
Plaintiff seeks a preliminary and permanent injunction to restrain and enjoin the defendants and their agents, officers, successors and assigns from applying the 1979 amendment to La. R.S. 14:30.1 to him and thereby denying him parole consideration. (Doc. 14, P. 6-7 ¶ 19.) Plaintiff also seeks a declaratory judgment holding that the retrospective application of the 1979 amendment to La. R.S. 14:30.1 is in violation of Article I, § 10 of the United States Constitution and Article I, § 23 of the Louisiana Constitution. (Doc. 14, P. 6-7 ¶ 19.)
II. Present Motion
Defendant LeBlanc now moves for dismissal of all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argues that: (1) "Plaintiff failed to exhaust administrative remedies with respect to any and all claims presented to the Court" as required by the Prison Litigation Reform Act (herein, "PLRA"), and (2) that Plaintiff has failed to state a claim upon which relief can be granted because "Plaintiff fails to understand that he is denied eligibility for parole consideration due to La. R.S. 15:574.4(B)(1)-in effect since 1968- whereby no individual with a life sentence can be eligible for parole consideration until said sentence is commuted to a fixed number of years[.]" (Doc. 19, P. 1.)
In his Memorandum in Opposition, Plaintiff makes two arguments: (1) that the PLRA does not apply to Plaintiff's pending action because it is not related to "prison conditions" or "prison life, " and (2) that La. R.S. 15:574.4(B)(1) is not controlling and that the Louisiana Supreme Court has not resolved the issue presented in this case. (Doc. 21, P. 7, 9.)
A. Procedural Issues
First, it must be determined whether Defendant properly brought his Motion to Dismiss pursuant to Rule 12(b)(6). While Defendant claims to bring this motion pursuant to Rule 12(b)(6), Defendant attaches to his Memorandum in Support an Affidavit by Rhonda Z. Weldon to show that Plaintiff has not exhausted his administrative remedies because he filed no administrative remedy procedure. (Doc. 19-2.) Rule 12(d) provides, in pertinent part, that "[i]f, on a motion under Rule 12(b)(6)... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."
In Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir. 2010), the Fifth Circuit addressed this issue and explained:
[F]actual disputes concerning exhaustion may be resolved by judges. However, we also conclude that when courts rule on exhaustion on the basis of evidence beyond the pleadings, the nonmoving party should be granted the protections of Rule 56.
Thus, the Court must determine whether Defendant's Affidavit is properly before the Court to determine if the motion must be converted to a summary judgment.
Rule 56(c)(4) provides that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4) (emphasis added). Defendant's affidavit does not provide that any information contained within it is based on "personal knowledge." Defendant's affidavit contains the following: "The above is true and correct to the best of her information and belief." (Doc. 19-2, P. 2.)
The Fifth Circuit has explained that summary judgment evidence is required "to be based on personal knowledge and not based on information and belief." Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir.2003); see also Richardson v. Oldham, 12 F.3d 1373, 1378 (5th Cir.1994) (holding that statements based on information and belief are insufficient to meet the personal knowledge requirement.); Jameson v. ...