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Ballard v. Louisiana Department of Public Safety & Corrections

Court of Appeals of Louisiana, First Circuit

November 1, 2017

JOSEPH BALLARD
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS

         On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C628123 Sec. 27 The Honorable Todd Hernandez, Judge Presiding

          Joseph Ballard Louisiana State Penitentiary Angola, LA Plaintiff/ Appellant In Proper Person

          James W. Craig New Orleans, LA Attorney for Plaintiff/ Appellant Joseph Ballard

          Terri L. Cannon Legal Programs Department Louisiana State Penitentiary Angola, LA Attorney for Defendant/ Appellee Louisiana Department of Public Safety and Corrections

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.

          HOLDRIDGE, J.

         Joseph Ballard, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC) appeals a judgment dismissing his petition for judicial review in this administrative remedy proceeding. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         On September 29, 2006, while incarcerated, Ballard filed a tort suit seeking personal injury damages against the Louisiana State Penitentiary. (R37) The civil case was assigned to Division B of the 20th Judicial District Court for the Parish of West Feliciana (sometimes hereafter referred to as "the tort suit"). On October 2, 2006, the trial court permitted Ballard to proceed in forma pauperis in the litigation and ordered that Ballard make monthly payments of 20% of the preceding month's income credited to his prison account. DPSC's Centralized Inmate Banking Section was ordered to automatically forward monthly payments to the court for DPSC without further action by Ballard. The pauper order further instructed DPSC's inmate banking section to forward monthly payments from Ballard's prison account to the clerk of court each time the amount in Ballard's prison account exceeded $10.00 until the initial advance deposit of $900.00 and all costs accruing after the filing had been paid.

         On May 9, 2013, the Attorney General filed an ex parte motion to dismiss Ballard's tort suit on the basis of abandonment pursuant to La. R.S. 15:1186(B)(2)(c), which provides that if a prisoner does not pay full court costs within three years of the date they are incurred, the court "shall enter a formal order of dismissal as of the date of the abandonment." The Attorney General submitted the affidavit of a 20th JDC employee who attested that Ballard was required to pay costs in the amount of $900.00, and that accounting records showed those costs were satisfied on April 3, 2013, more than three years from the date they were incurred, which was October 2, 2006, when the pauper order was entered. The Attorney General also sought to have the lawsuit dismissed pursuant to article 561 of the Louisiana Code of Civil Procedure, which provides that a case is abandoned when a party fails to take a step in its prosecution or defense for a period of three years. In support thereof, the Attorney General submitted an affidavit of a state's attorney who attested that the state had been served on April 8, 2013, and that prior to the service on the state, there had been no activity in the case since the pauper order was entered, on October 2, 2006.

         On May 9, 2013, the trial court signed an order dismissing Ballard's tort suit without prejudice and casting Ballard with costs in the mater pursuant to Articles 561 and 5188 of the Code of Civil Procedure. Ballard filed a motion to set aside the dismissal under La. R.S. 15:1186(B)(2)(c), which gives a prisoner whose lawsuit has been dismissed for failure to pay court costs thirty days from the date of service of the order of dismissal to move to set the dismissal aside. In the motion, Ballard insisted that DPSC had deliberately withheld payments from his prison account in the first three years after he incurred the filing fee to ensure dismissal of the case pursuant to La. R.S. 15:1186. He maintained that had DPSC actually paid the proper percentage of the funds that had been deposited into his prison account to the clerk of court, as required by law, the filing fee would have been satisfied within the three year statutory time period set forth in La. R.S. 15:1186(B)(2)(c). Ballard requested that the court hold a contradictory hearing on his motion.

         On June 3, 2013, the trial court issued an order stating that the hearing on Ballard's motion to set aside the dismissal on the basis of abandonment would be set after costs were paid. Several days later, Ballard wrote a letter to inmate banking services referencing the order and requesting that he be provided with the amount of money owed in the tort suit so he could arrange to pay the court costs immediately. The following day, Ballard was informed by DPSC that the prison's debt screen showed that $860.00 in costs had been paid, leaving no balance owed. Ballard also wrote a letter to the 20th JDC on June 14, 2013, requesting that he be informed of the amount he owed in court costs so he could get them paid and have his hearing without further delay. He noted that offender banking services had informed him that he did not owe anything for costs in the tort suit.

         On July 15, 2013, Ballard initiated the administrative remedy procedure (ARP) forming the basis for the instant appeal. Therein, he asserted that he had been informed that a motion in his tort suit would not be heard until he paid all costs that were owed, and that while inmate banking services told him he did not owe anything in court costs, the 20th JDC informed him that he did owe costs and that it was deferring a hearing in his tort suit until costs were paid. Ballard demanded to know how much he owed the 20th JDC in costs and stated that his complaint was that the prison banking system was not up-to-date with current costs owed by offenders, resulting in unreasonable delays for inmates to have their day in court. Ballard asserted that at the very least, offenders should have access to information regarding costs through the internet. Ballard sought the following relief:

That I immediately be provided an up-to-date listing of the amount of money I currently owe [as of the filing date of this ARP], in [the tort suit] so I may arrange to pay the fee and get a hearing date in Court ...

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