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Bossier v. Garber

Court of Appeals of Louisiana, Third Circuit

December 28, 2018



          Blaine Barrilleaux David F. Rutledge COUNSEL FOR PLAINTIFF/APPELLANT: Korey Bossier

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

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, Van H. Kyzar, and Candyce J. Perret Judges. Judge Marc T. Amy, Recused.

          Saunders, J., dissents for reasons assigned by Judge Conery.

          Kyzar, J., dissents for the reasons expressed in the dissent by Judge Conery.

          Perret, J., concurs for the reasoning asserted by Judge Ezell in his concurrence.


         ON REMAND

         In accordance with an order from the Louisiana State Supreme Court, Korey Bossier v. Mark Garber, Et al., 18-541(La. 6/15/18), So.3d, and after additional briefing and oral argument, we have considered this case en banc.


         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 under their interpretation covers such complaints and requires Plaintiff to timely pursue a remedy under administrative procedures in accordance with 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.

         The present Defendants have the burden to prove that an administrative process and remedy was in fact available to Plaintiff. Only then will the burden shift to Plaintiff to show he exhausted the administrative process before filing suit. We find three distinct reasons why Defendants fail to prove the existence of an administrative process under which Plaintiff could seek redress for his alleged injuries: (1) the recited Handbook provision is ambiguous; (2) the Handbook does not provide meaningful notice to an inmate that the recited grievance provision includes the manner in which he would be required to file a complaint for personal injury; and (3) Defendants failed to abide by the very procedure they assert applies, instead, by their own admission, they created a procedure involving participation by a risk manager empowered to offer settlement terms to resolve Plaintiff's claim which went far beyond the recited grievance procedure.

         The pertinent language in both versions of the LPCC handbook reads the same except as to part (b) which was changed in a later version of the Handbook to provide for filing to be done "through the Telmate [computer] system" rather then handwritten and placed in the ...

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