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Lewis v. Morrell

Court of Appeals of Louisiana, Fourth Circuit

April 5, 2017

DARNELL LEWIS
v.
ARTHUR MORRELL, ET AL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-04431, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Darnell Lewis, #327412 David Wade Correctional Center, H-2/B PRO SE PLAINTIFF/APPELLANT

          David Fink BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods)

          Rosemary Ledet Judge

         This is a mandamus action seeking to obtain documents pursuant to the Louisiana Public Records Law, La. R.S. 44:1, et seq.[1] Darnell Lewis-an inmate appearing pro se-filed this mandamus action seeking various records relating to his 1998 criminal convictions. Mr. Lewis named three defendants-the Superintendent of Police of the New Orleans Police Department (the "NOPD"); the Orleans Parish District Attorney, Leon Cannizzaro (the "ODA"); and the Criminal District Court's Clerk of Court, Arthur Morrell ("Mr. Morrell") (collectively the "Defendants"). From the trial court's judgment dismissing this action, Mr. Lewis appeals. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 1998, Mr. Lewis was convicted of armed robbery and attempted second-degree murder. Thereafter, he was adjudicated a second felony offender on the armed robbery conviction and sentenced to serve 160 years at hard labor without benefit of parole, probation, or suspension of sentence on the multiple bill. On the attempted second-degree murder conviction, he was sentenced to serve 50 years at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently with each other. On appeal, Mr. Lewis' convictions and sentences were affirmed. State v. Lewis, 99-2891 (La.App. 4 Cir. 10/4/00), 771 So.2d 330 (unpub.), writ denied, 01-0102 (La. 11/21/01), 802 So.2d 626. [2]

         On April 27, 2011, Mr. Lewis filed this mandamus action in Orleans Parish Civil District Court. In his petition, Mr. Lewis averred that he has made multiple requests for the initial police report to the NOPD, in particular, and to the Defendants, in general. He averred as follows:

Movant has requested the police report of what occurred on the scene of the crime. Crime scene at 6733 Chef Hwy and Dale Street, 5 September 1997, at times 2014 [8:14 p.m.] . . . .
Movant request[s] the police report to the Unit and Officer who responde[d] and was present at the crime scene, at 6733 Chef Hwy and Dale Street at 2014.
Movant has request[ed] repeatedly for the report that was taken and written by the officer(s) whom were present at the crime scene. However, the Police Department has continually responded as follows:
Police Department has sent reports to Movant that are not requested:
[(i) Officer Neyrey's report stating he located himself to the victim's home at 8:28 P.M.; and
(ii) Detective Patrolia's report stating he too went to the victim's home later at 12:30 A.M.] . . .
Before Officer Neyrey['s] report at 8:28 at the victim['s] home, a police unit and officer had to go to the crime scene and meet with the victim and witnesses, because the dispatch log indicate[s] that a unit was at the crime scene at 2014. (emphasis in the original).

         Based on the above averments, Mr. Lewis requested that the trial court order the Defendants to produce the "on the scene report of the incident" and that it order an evidentiary hearing.[3]

         From the date of the filing of the petition-April 27, 2011-until August 26, 2015-the date of correspondence from Mr. Lewis-there was no activity in this mandamus action.[4] On August 25, 2015, correspondence from Mr. Lewis-labeled "Application for Writ of Mandamus"-was filed into the record. In his August 26, 2015 correspondence, Mr. Lewis referred to a July 23, 2015 public records request on the NOPD seeking, among other things, the initial police report from the officer who arrived on the scene at 8:14 p.m.

         On January 8, 2016, the trial court denied Mr. Lewis' request in his original petition for an evidentiary hearing on his writ of mandamus. In April 2016, a status conference was held; Mr. Lewis was allowed to participate by phone. At that conference, Mr. Lewis' sole request was for the production of the initial police report. The trial court directed the ODA to provide copies of all the police reports prepared during the course of the investigation of Mr. Lewis' criminal case. Mr. Lewis acknowledges that the ODA complied with the trial court's directive. By correspondence dated June 18, 2016, Mr. Lewis informed the trial court that the NOPD did not want to give him the initial police report and that all he was asking for in this mandamus action was his "Initial Police Report, " which would show him "what Officer or Officer(s) interviewed and investigated the victim Gerald Scott, and witness Ms. Dionne Scott, on the scene of the crime."[5]

         On July 22, 2016, the trial court set a second status conference. This conference was held on August 4, 2016; and Mr. Lewis again was allowed to participate by phone. The only defendant that participated in this conference was the ODA.[6] On September 27, 2016, the trial court, referencing the August 4, 2016 conference, rendered the following judgment:

This court previously ruled on Petitioner's motion, [7] but held the subsequent conference on August 4, 2016 and reiterated the following:
IT IS ORDERED, ADJUDGED, AND DECREED that the Petitioner's Petition for Writ of Mandamus is MOOT. The Defendants have provided the complete record request to the Petitioner, and therefore, his request has been satisfied.
This appeal followed.[8]

         DISCUSSION

         The gist of Mr. Lewis' contentions on appeal is that the trial court erred in dismissing his mandamus action.[9] An appellate court reviews a trial court's judgment denying a writ of mandamus under an abuse of discretion standard. Hatcher v. Rouse, 16-0666, p. 3, n. 2 (La.App. 4 Cir. 2/1/17), __ So.3d __, __, 2017 WL 431780 at *1 (quoting Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, p. 13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037). Additionally, this Court has noted the following:

"A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law ... to compel the delivery of the papers and effects of the office to his successor." La. C.C.P. art. 3863. A writ of mandamus is "an extraordinary remedy, to be applied where ordinary means fail to afford adequate relief." Hoag v. State, 04-0857, p. 6 (La.12/01/04), 889 So.2d 1019, 1023. The remedy "must be used sparingly ... to compel action that is clearly provided by law." Hamp's Const., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, pp. 3-4 (La.App. 4 Cir. 12/01/10), 52 So.3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4 (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153. "Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised." Hamp's, 10-0816, p. 4, 52 So.3d at 973. "The remedy is not available to command the performance of an act that contains any element of discretion, however slight." Id.

A.M.E. Disaster Recovery Servs., Inc. v. City of New Orleans, 10-1755 at p. 8 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 459; see also Humane Society of New Orleans v. Landrieu, 13-1059, p. 3 (La.App. 4 Cir. 2/26/14), 135 So.3d 1195, 1197 (quoting A.M.E. Disaster Recovery Servs., supra); see also La. C.C.P. art. 3861 (defining mandamus as "a writ directing a public officer or a corporation or an officer ...


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