Louis Stemley VS Robert Henderson, Deputy Warden, Phelps Correctional Center; JoAnn Peshoff, Assistant Warden; Jim Rogers, Warden and Department of Corrections
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0181 rM L LOUIS STEMLEY @ VERSUS ROBERT HENDERSON DEPUTY WARDEN PHELPS CORRECTIONAL CENTER JOANN PESHOFF ASSISTANT WARDEN JIM ROGERS WARDEN AND DEPARTMENT OF CORRECTIONS Judgment Rendered Appealed from November 2 2007 the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Docket Number 527 139 Honorable Donald R Johnson Louis Stemley Judge Presiding Plaintiff Appellant pro se Kinder LA Debra A Counsel for Defendant Baton Richard Stalder Rutledge Rouge LA Louisiana Safety BEFORE Appellee Secretary of the Department of Public and Corrections WHIPPLE GUIDRY AND HUGHES JJ WHIPPLE J This is an appeal Court in East Baton the from a of the Nineteenth Judicial District Plaintiff Louis Rouge Parish Stemley is an imnate in custody of the Department of Public Safety and Conections the DPSC By motion dated August 2 disciplinary reports against him had judgment never a violation of contending that his appeals certain disciplinary reports on he not sought to appeal was appeal was Plaintiff 6 appealed the August assigned Disciplinary denied 6 22 2004 theft of those reports defendant on was the basis that receiving appeal decisions regarding seeking material gain by submitting false Plaintiff August Disciplinary Rule plaintiff had not told the truth about of several plaintiff sought dismissal Thereafter been answered written up for 2004 Board have dismissed and thus was information disciplinary report and the 2004 Appeal No PCC 2004 196 His by both the warden and the secretary of the DPSC signed for receipt of the adverse final agency decision on October 29 2004 Thereafter signed Court on on plaintiff prepared petition for judicial a review which he November 30 2004 and filed in the Nineteenth Judicial District December 8 2004 After secretary of the DPSC filed basis that it was agency decision in filed more Appeal a being motion than to served with dismiss thirty days plaintiff s petition after his receipt on the of the final No PCC 2004 196 In his recommendation the Commissioner concluded that petition for judicial review his the plaintiff s petition was not timely given that he did not plaintiff s even sign petition until after the thirty day peremptive period had expired Accordingly the Commissioner recommended that plaintiffs petition judicial review be dismissed with prejudice 2 In accordance for with the Commissioner July 1 2005 s recommendation the district suit with dismissing plaintiffs court rendered judgment From this prejudice on judgment plaintiff appeals Louisiana aggrieved by an Revised 15 1177 A seek judicial Nineteenth Judicial District Court reviewing 797 court to Tatum filed This v attach the Lynn within only in the jurisdiction In order for the La of the 1st Cir 5 20 94 App La 1st Cir 5 20 94 App As stated above No PCC 2004 196 on must neither the district appeal Lay v 1 court 30 2004 more than not this court Stalder 99 0402 La has 637 So 2d 796 App Carter v 691 thirty days jurisdiction timely Appeal sign his petition for Accordingly plaintiff s petition nor be agency decision in October 29 2004 but he did judicial review until November of the agency decision 637 So 2d 690 plaintiff received the final inmate thirty days after review of the decision petition for judicial review 93 1559 an thirty day period is peremptive rather than prescriptive 93 1583 Lynn provides that adverse decision of the DPSC may of the decision receipt Statute was after untimely to enteliain 1st Cir 3 31 00 receipt and plaintiff s 757 So 2d 916 919 Thus in accordance with Uniform Rules 16 1 B we IWlule affirm the judgment of the district his petition for judicial District COUli until December 8 2004 inmate unable to the hands 15 1177 A of personally file prison officials review was Courts of court Appeal Rule 2 dismissing plaintiff s not filed with the Nineteenth Judicial by an incarcerated Ius petition in court is considered timely filed if placed in within the thirty day period mandated by LSA R S a petition See Tatum 637 So 2d at 799 for However judicial review giving plaintiff the benefit of the doubt the earliest he could have given the prison officials his completed petition for mailing was November 30 2004 immediately after signing it In fact this is the date that plaintiff avers he placed the petition in the hands of prison officials However this date is more than thiIiy days after his October 29 2004 receipt of the final agency decision 3 even appeal of the final agency 2004 196 Costs of this opinion appeal are in Disciplinary assessed AFFIRMED 4 Board Appeal No PCC against plaintiff Louis Stemley
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