FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20164510 HONORABLE KRISTIAN EARLES, DISTRICT
Barrilleaux David F. Rutledge COUNSEL FOR
PLAINTIFF/APPELLANT: Korey Bossier
& Marino Todd Swartzendruber Stephen J. Oats COUNSEL FOR
DEFENDANTS/APPELLEES: Sheriff Mark Garber, Rob Reardon and
Berkley Insurance Company
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.
J., dissents for the reasons expressed in the dissent by
Perret, J., concurs for the reasoning asserted by Judge Ezell
in his concurrence.
R. COOKS JUDGE.
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.
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
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
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.
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
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 ...