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Bossier v. Garber

Court of Appeals of Louisiana, Third Circuit

January 11, 2018



          Blaine Barrilleaux, COUNSEL FOR PLAINTIFF/APPELLANT: Korey Bossier.

          Oats & Marino Todd Swartzendruber Stephen J. Oats Gordon Square, COUNSEL FOR DEFENDANTS/APPELLEES: Sheriff Mark Garber, Rob Reardon and Berkley Insurance Company.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Shannon J. Gremillion, Judges.



         Korey 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 Abandonment."


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.

         We 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.

         Defendants 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 same:

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 ...

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