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Bourque v. Louisiana Department of Public Safety and Corrections

Court of Appeals of Louisiana, First Circuit

April 12, 2017

SCOTT BOURQUE
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

         On 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 Presiding.

          Scott Bourque Louisiana State Penitentiary Angola, Louisiana, Appellant/Pro Se.

          Terri L. Cannon Angola, Louisiana, Attorney for Appellee, Louisiana Department of Public Safety and Corrections.

          BEFORE: PETTIGREW, McDONALD, AND CALLOWAY [1] , JJ.

          CALLOWAY, J.

         Plaintiff, 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 judgment.

         FACTS AND PROCEDURAL HISTORY

         On 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.

         The 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.

         The Commissioner[2] ("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 appeals.

         LAW AND DISCUSSION

         Louisiana 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.

         In 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.

         Bourque 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 26, ...


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