Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
633, 815, Sec. 24, The Honorable R. Michael Caldwell, Judge
Bourque Louisiana State Penitentiary Angola, Louisiana,
L. Cannon Angola, Louisiana, Attorney for Appellee, Louisiana
Department of Public Safety and Corrections.
BEFORE: PETTIGREW, McDONALD, AND CALLOWAY  , JJ.
Scott Bourque, an inmate in the custody of the Louisiana
Department of Public Safety and Corrections ("the
Department"), housed at the Louisiana State Penitentiary
in Angola, Louisiana, appeals the district court's
dismissal of his petition for judicial review. Based on our
review of the record, we reverse the district court's
AND PROCEDURAL HISTORY
March 17, 2014, Bourque initiated a complaint under the
Louisiana Corrections Administrative Remedy Procedure Act
("CARP"), La. R.S. 15:1171, et seq. The
warden denied Bourque's request for hip replacement
surgery, stating that surgery was not medically indicated and
that Bourque had been afforded the opportunity to have his
concerns addressed. Bourque then filed a "second-step
complaint, " which was also denied on July 21, 2014.
Bourque subsequently filed a petition for judicial review in
the Nineteenth Judicial District Court for the Parish of East
Baton Rouge seeking review of ARP No. 2014-0781. The petition
was stamped as received by the Clerk of Court on September
19, 2014, and as filed on September 25, 2014.
Department filed exceptions of peremption, no right of
action, and lack of subject matter jurisdiction, claiming
that Bourque failed to timely seek judicial review within
thirty days of the receipt of the final Department decision,
which it claimed was received by Bourque on July 29, 2014.
See La. R.S. 15:1177(A). Bourque filed an opposition
to the exceptions claiming that the petition is deemed filed
at the moment of delivery to prison authorities, which in
this case he asserted was August 28, 2014.
Commissioner ("Commissioner") issued a
recommendation pursuant to La. R.S. 15:1177(A)(5) and (9)
denying the relief sought by Bourque based on the
untimeliness of the petition. The district court adopted the
recommendation of the Commissioner after a de novo
review of the record. It is from this judgment that Bourque
Revised Statute 15:1177(A) provides that an inmate aggrieved
by an adverse decision of the Department may "within
thirty days after receipt of the decision, seek judicial
review of the decision only in the Nineteenth Judicial
District Court." In order for the jurisdiction of the
reviewing court to attach, the petition for judicial review
must be timely filed. Tatum v. Lynn, 93-1559
(La.App. 1 Cir. 5/20/94), 637 So.2d 796, 797; See also
Carter v. Lynn, 93-1583 (La.App. 1 Cir. 5/20/94), 637
So.2d 690, 691 ("Once the plaintiff failed to seek
judicial review within thirty (30) days as provided in La.
R.S. 15:1177, his right to relief ceased to exist.")
Moreover, this thirty-day period is peremptive, rather than
prescriptive, and may not be interrupted or suspended.
Evans v. Louisiana Dept. of Public Safety and
Corrections, 2013-1345 (La.App. 1 Cir. 4/25/14), 147
So.3d 195, 197.
recommending that the petition be dismissed, the Commissioner
noted that Bourque signed and dated the petition on August
21, 2015, within the thirty days allowed, but it was not
mailed off until September 18, 2014. The Commissioner noted
that a delay of filing the petition longer than thirty days
after receipt of the decision deprived the district court of
jurisdiction to review the decision. See La. R.S.
15:1177(A); Carter, 637 So.2d at 691;
Tatum, 637 So.2d at 797. It is unclear from the
record how the Commissioner determined that the petition was
mailed by prison authorities on September 18, 2014. However,
we agree with Bourque that the timeliness of the petition for
a pro se inmate is not determined by the date prison
authorities mailed the petition.
objected to the Commissioner's Report, invoking the
"mailbox rule." The "mailbox rule" states
that a pro se prisoner's petition for judicial review is
deemed filed at the time it was delivered to the prison
authorities for forwarding to the district court.
Tatum, 637 So.2d at 799 (citing Houston v.
Lack,487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245
(1988)). Bourque claimed in his opposition that he delivered
the petition to prison officials for mailing on August 28,
2014. (R. 24). At the hearing, the attorney for the
Department of Corrections argued that Bourque received the
second-step response on July 29, 2014. The petition was
signed on August 21, 2014 and notarized on August 22, 2014. A
second signature and notary signature took place on August