FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20164510, HONORABLE KRISTIAN EARLES, DISTRICT
Barrilleaux, COUNSEL FOR PLAINTIFF/APPELLANT: Korey Bossier.
& Marino Todd Swartzendruber Stephen J. Oats Gordon
Square, COUNSEL FOR DEFENDANTS/APPELLEES: Sheriff Mark
Garber, Rob Reardon and Berkley Insurance Company.
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks and Shannon J. Gremillion, Judges.
R. COOKS JUDGE.
AND PROCEDURAL HISTORY
Bossier (Plaintiff) filed suit against Mark Garber, Sheriff
of Lafayette Parish and others (Defendants) alleging he was
injured when he slipped and fell in his jail cell while
incarcerated at the Lafayette Parish Correctional Center
(LPCC). Plaintiff alleges his injuries occurred on two
occasions, August 31, 2015 and September 17, 2015. He alleges
he fell in his cell "as a result of water running freely
from the nearby showers into [his] cell." Plaintiff
allegedly received a copy of the 2012 version of the LPCC
Handbook containing the procedure for filing a grievance as
an inmate when he arrived at the facility. Defendants admit
that the Handbook was revised on September 8, 2015. Plaintiff
asserts he did not receive a copy of the revised Handbook.
Defendants maintain that the change in the rule was a minor
change to its grievance procedure requiring inmates to submit
their grievance electronically rather than on paper.
Regardless of the change in the procedure, Plaintiff asserts
the Handbook as first presented, and as revised, does not
provide any administrative procedure for filing a complaint
regarding personal injury. Defendants maintain the Handbook
language covers such complaints and requires Plaintiff to
timely pursue his administrative remedy under state laws.
Defendants filed an exception of prematurity and prescription
asserting Plaintiff failed to timely exhaust his
administrative remedy before filing suit. The trial court
granted Defendants' exceptions dismissing Plaintiff's
claims with prejudice at his cost. Plaintiff appeals
asserting the "trial court erred in granting
Defendants' Exceptions of Prematurity and
The dilatory exception of prematurity provided in La.Code
Civ. Proc. art. 926 questions whether the cause of action has
matured to the point where it is ripe for judicial
determination, because an action will be deemed premature
when it is brought before the right to enforce it has
accrued." LaCoste v. Pendleton Methodist Hosp.,
L.L.C., 07-8, 07-16, p. 5 (La.9/5/07), 966 So.2d 519,
523. The function of an exception of prematurity is to
determine whether a judicial cause of action is not available
yet because of some unmet prerequisite condition. Rico v.
Cappaert Manufactured Hous., Inc., 05-141 (La.App. 3
Cir. 6/1/05), 903 So.2d 1284. When the determination of
whether an exception of prematurity should have been granted
involves a question of law, then the appellate court must
determine whether the trial court was legally correct or
incorrect. Id. Interpretation of statutes involves a
question of law. Thibodeaux v. Donnell, 08-2436
(La.5/5/09), 9 So.3d 120.
Crooks v. Louisiana Pac. Corp., 14-724 p. 3 (La.App.
3 Cir. 12/10/14), 155 So.3d 686, 688.
review the trial court's ruling on the exception of
prematurity under the de novo standard of review as this
ruling is based upon the interpretation of an administrative
rule that affects Plaintiff's right to file suit. In
Ngo v. Estes, 04-186 p. 3 (La.App. 3 Cir. 9/29/04),
882 So.2d 1262, 1264 this court, relying on the decision in
Cheron v. LCS Corrections Servs., Inc., 02-1049
(La.App. 1 Cir. 2/23/04), 872 So.2d 1094, writ
granted, 04-703 (La.5/14/04), 872 So.2d 532, (emphasis
in original and added) recognized that:
The party that raises the objection of prematurity
has the burden of showing that an administrative remedy
is available, by reason of which the judicial
action is premature. Once the existence of an administrative
remedy is established, the burden shifts to the plaintiff
to show that the specified administrative remedies or
procedures have been exhausted or that the present
situation is one of the exceptional situations where the
plaintiff is entitled to judicial relief because any
administrative remedy is irreparably inadequate.
here have the burden to prove that "an administrative
remedy" was available to Plaintiff. Only then will the
burden shift to Plaintiff to show he exhausted such remedy
before filing suit. We find Defendants fail to prove the
existence of an administrative remedy under which Plaintiff
could seek redress for his alleged injuries. The pertinent
language in both versions of the LPCC handbook reads the
A grievance is a complaint. It must concern a rule or
procedure, complaint of expression or misconduct by a deputy
in administering such rules or operation of the LPCC. A
personal dispute between an offender and an ...