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Atkins v. Louisiana Department of Public Safety and Corrections

Court of Appeals of Louisiana, First Circuit

June 2, 2017

JERMAINE ATKINS
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS

         Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C640856 The Honorable R. Michael Caldwell, Judge Presiding

          Jermaine Atkins Homer, Louisiana Plaintiff/ Appellant Pro Se

          Terri L. Cannon Angola, Louisiana Counsel for Defendant/ Appellee Louisiana Department of Public Safety and Corrections

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          THERIOT, J.

         The appellant, Jermaine Atkins, appeals the judgment of the Nineteenth Judicial District Court in favor of the Louisiana Department of Public Safety and Corrections (LDPSC). For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Mr. Atkins, an inmate in LDPSC's custody, filed a petition for judicial review by the 19th JDC on July 16, 2015, In the petition, Mr. Atkins claimed he had exhausted his administrative remedy action and included his disciplinary board appeal number. He also claimed he never received a response on the appeal.[1]

         On August 4, 2015, the district court determined that Mr. Atkins's petition failed to show an exhaustion of his appeal remedy, and ordered him to show compliance within fifteen days of the issuance of the order by supplying the district court a final decision of the appeal. In a handwritten letter received by the district court on August 26, 2015, Mr. Atkins claimed that all his efforts to receive a final decision on his appeal had failed. The district court then issued a service order to LDPSC and requested that LDPSC file in response any final decision on the appeal.

         LDPSC filed a motion to dismiss Mr. Atkins's petition for failure to exhaust administrative remedies, claiming that Mr. Atkins received a final decision to his appeal on October 27, 2015, and that Mr. Atkins had appealed his complaint to the Secretary of LPDSC. LPDSC claimed that since that appeal was pending, Mr. Atkins had not exhausted his administrative remedies. A receipt of Mr. Atkins's request for second step review was attached to LDPSC's motion.[2]

         With the Secretary's final decision pending, the district court held a video status conference between the parties on March 17, 2016. At that conference, the district court granted LDPSC extra time to issue the Secretary's final decision. The Secretary's final decision was eventually issued, in which it upheld the disciplinary action against Mr. Atkins, except for reducing the loss of canteen privileges from 24 weeks to 12 weeks. The commissioner's recommendation stated that Mr. Atkins failed to raise a violation of a substantial right, and that his appeal should be dismissed without prejudice.

         Mr. Atkins filed a motion and order to traverse the commissioner's report and recommendation, seeking judicial review of his sentence by the district court. The district court signed a screening judgment on August 10, 2016, dismissing Mr. Atkins's appeal with prejudice for failing to raise a substantial right violation. Mr. Atkins has appealed this judgment.

         ASSIGNMENTS OF ERROR

         Mr. Atkins's pro se brief does not contain any assignments of error; however, in his "issues presented" section, it is apparent that Mr. Atkins contends that the district court erred in not finding that one of his substantial rights had been violated by the Secretary's decision, and that his right to due process was ...


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