Edward Simmons VS Richard Stalder, Secretary, Department of Public Safety & Corrections; Warden Burl Cain, Assistant Warden Shirley Coody, Assistant Warden David Bonnette, Dora Rabalais, Johnnie Mae Johnson, Melanie Barton, Sergeant McCoy and Lieutenant Clarence Mills
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2288 EDWARD SIMMONS VERSUS RICHARD STALDER SECRETARY DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS WARDEN BURL CAIN ASSISTANT WARDEN SHIRLEY COODY ASSISTANT WARDEN DAVID BONNETTE DORA RABALAIS JOHNNIE MAE JOHNSON MELANIE SERGEANT MCCOY AND LIEUTENANT CLARENCE BfRTON t LfJt1 1 J MILLS Judgment Rendered May 8 2009 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 529 283 The Honorable Donald R Johnson Edward Simmons Angola Plaintiff Judge Presiding Appellant in Proper Person LA L Bruce Dodd Counsel for DefendantAppellee Terri L Cannon Louisiana Baton Rouge LA BEFORE Department of Public Corrections CARTER C J WHIPPLE AND DOWNING JJ Safety WHIPPLE J Plaintiff Edward Simmons inmate in the an Department of Public Safety and Corrections Penitentiary Louisiana State his petition for et Orleans Parish Prison a 30 day suspension in reimburse Simmons state issue provide claim the July on employees his property losing In response all clothing a paid by him and Department for their the warden offered to and to personal property items and Bibles at issue in the but reverse representing in completion to part court s further award Simmons Report the district granting Simmons relief a as report in affirm the administration the value of four law books that Commissioner of the administrative record the Commissioner rendered recommended that the district court were rendered lost an s On not material appeal Simmons that was for all was judgment inadequately of his lost property in allegedly contained 2 a on reimbursement 200 00 In accordance with the on recommended and otherwise argues that he fully compensated by which she additional petition for judicial review with prejudice Simmons then filed the was sought petition for judicial review for remanding for penitentiary to Simmons costs of the 86 00 for various items of his replacements of 2007 November 27 2007 legal fees and court responsible state In the claim 2003 of several named Department Simmons filed offer 8 were Dissatisfied with the reimbursement offer and administrative response After twice the property claim lost a transferred from the was for the lost property all alleged negligence to judgment dismissing a claiming that prison personnel seq losing his personal property while he compensation appeals Simmons initiated Mr confined Department under the Corrections and Administrative Procedure Act 15 1177 LSA R S Louisiana Angola review judicial LSP 2004 0011 at the custody of the Louisiana laundry bag December 21 dismissing instant the appeal reimbursed in that he specifically In legal support thereof Simmons relies upon legal material he contends estimate appeal record was attached the estimate is on we was his brief to not to contained in the Commissioner and nor for the Although the laundry bag contained in the costs this Court to on does it form part of the administrative review As noted which listing and estimate of replacement recent a by the Commissioner in her thorough and well reasoned report adopt herein as our own and attach hereto It appears that the Petitioner has filed Exhibit A as a copy of a much more replacement costs for the unidentified legal documents allegedly in the bag but this Court is bound by the administrative record alone and the Petitioner was given every opportunity by the Court to amend his complaint refile it and to recent estimate of submit any additional or excluded evidence to the Warden to have this matter fully considered by the administration so that a clean and complete administrative record could be presented to this Court for a However the administrative record fair determination two remands does of the not material legal by the administrative record and additional evidence at the appellate level The record reveals that Simmons their on remand replacement to cost July 25 App 1st Cir the legal 2007 but did can 10 6 06 the given opportunity on two prior not not on do The administrative record so July See 944 So 2d 635 639 closed Thus any evidence submitted 25 2007 be considered was Curry Thus we v Cain 2005 2251 reject La any claim related to material Furthermore we find no reimbursement ordered for his other that Simmons did valuation was consider cannot present evidence regarding the nature of these items and and submitted for consideration after after contain proper identification by the Petitioner lost or the value of any of the items lost The Court is bound occasions even of his Accordingly we not to personal Simmons items file any additional evidence personal find merit no items basis for set forth in was to complaint insufficient establish the s the considering contradict the administrative concluding the Department 3 or that record valuation was arbitrary herein capricious or by the Commissioner Finally the to Thus after careful review and for the we negligence we likewise find no merit Department 14th are confinement and a Amendment classic generic See Vincent dimensions v App 1st Cir 2002 2444 La Cain 944 So 2d argument and the failure of the employees s maintain records of the transfer of his property property claims forth reject Simmons argument that the loss of his property due of the violation of his to this reasons set at 639 640 rises to matters of prison administration lost property claim does State process or rise to Lost conditions of constitutional Department of Public Safety and Corrections 6 6 03 Thus not Department constitutional a rights and deprives him of due to 496 497 858 So 2d 494 we also find no merit see to this also Curry v argument CONCLUSION After a thorough review of the record before supports the judgment of the district court recommendation of the Commissioner which the December 21 petition for 2007 judicial judgment find the evidence we rendered in accordance with the we of the district review of administrative us adopt herein court as our own dismissing Mr remedy procedure with Thus Simmons prejudice is hereby affirmed All costs of this appeal are assessed Simmons AFFIRMED 4 to plaintiff appellant Edward 801251150000 Exhibit A NUMBER 529 283 SEcrION 27 EDWARD SIMMONS 19th JUDICIAL DISTRICT COURT VERSUS PARISH OF EAST DEPT OF CORREcrIONS BATONIRCD5JED JAN 2 STATEOFLOUISIANA ET AL 2008 COMMISSIONER S REPORT The Petitioner The law review in accordance with RS 15 1171 et seq seeking only allows 2005 to be filed a was appealed herein of all except LSP 04 as the one in 11 1 he wanted to pursue a single suit for review and this which the Petitioner identified in open I note that one filed because the warden did the Secretary s level not as a and single Court dismissed the court on July 7 was of the administrative records noted went past the first step at the duplicate complaint but neither grievance move on to 11 LSP 03 2660 04 administrative record appeals and custody of the Department of Public Safety inmate in the claims appeal of three separate administrative Corrections filed this 04 0286 an respond to either complaint appeal time the and the Petitioner did not allowed by the Rules which would have facilitated exhaustion The complaint in LSP 04 2003 The Petitioner seeks 11 on or about July 3 for a compensation for the lost property and 30 day suspension several named DOC employees for The involves several items of property lost alleged negligence in losing record as Exh Department filed the administrative record Thereafter the Court ordered although a supplement was a supplement to include the property A the original incomplete the final agency decision and filed as Exh B it did not contain a final agency decision or any of in support of this claim The order noted indication that the Petitioner had submitted evidence that essential items were either not provided The order Department also included 2 the proof of the show items lost and the by the Petitioner or not included in the record by notice to the Petitioner that it approximate value thereof 3 The was his burden to Department belatedly for review but does filed the supplement Exh B which is marked and in the record any 2003 or the prior dated inventory sheets for evidence that is a part of this complaint Petitioner it would seem 4 as the Court requested not contain nor any Thereafter the Court issued a second the Petitioner to provide the Court with the evidence offered stay ordering the Department and in the administrative record in additional to the 1 See 2 10 days to submit support of the claim and any giving the Petitioner additional evidence of inventory sheets that he failed Department that would show what property Lightfoot v likewise he owned between July 8 an to provide 2003 and Stalder See Order dated 2 1 2006 3ld 4 See three Response to Order with attached affidavit and 6 30 06 marked as Exh B in 2005 inventory sheets which affidavit is dated globo 1 19th JUDICIAL DISTRICT COURT 80125115000 December 2003 and any proof of noted in the Order that there is what the value of each is no no The Court once property proof in the record to show precisely to be alleged final agency decision and thus value and loss of the certain s Again the what items again were lost or be Court noted that there did not appear to showing of subject matter jurisdiction a in this Court and that did not throughout the years to obtain relief he though the Petitioner had apparently attempted in that regard The Court finally the record follows the Department s rules apparently based on noted that that are essential although the inventory sheets to fairly consider this claim were the DOC if administrative record either by previously ordered to be put in the or burden Exh by the Petitioner as part of his Petitioner claimed he had B did not include the copies of and there was no explanation inventory sheets that in the ARP of why of the Court The Second Remand order notified both parties included in Exh B that it dissatisfaction with the Administrative record in by that order the items lost The Court request for remedies within to provide the 10 days and the none were s appeared to be incomplete and or itemization of property confusing and included no proof of exhaustion replacement they had copies or proof of value of then authorized the Petitioner to amend his initial Warden s office with any proof of the that the Department was to issue a cost of final decision and submit claim the final inclusive record to the Court for review of this property The administrative record to this Department submitted the final closed 25 2007 which is marked in the record as Exh C for the Court s final review on Having previously entertained oral argument early from the Petitioner right to file and are Court on July through the progress of the any additional briefs in and having received several appeal both parties were briefs finally notified of their been considered support of their positions and any filed have in the record for consideration This report is issued review and adjudication on the record alone as for the Court s de novo supplemented twice of the merits of the Petitioner s claim ANALYSIS OF THE FACfS AND THE lAW The scope of this Court s review is limited pertinent part as by RS 1S 1177 A 5 9 which states in follows 5 The review shall be conducted by the Court without a jury and shall be confined to the record The review shall be limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level 9 The court may reverse or modify the decision mlIY if of e substantial righ ap llan have been prejudiced be e decISIOns 5 See Order dated 12 the admmistrative findings mferences conclusions or are 18 06 f 2 19th JUDICIAL DISTRICT COURT 80125115000 b In violation of constitutional or statutory provisions In excess of the statutory authority ofthe Agency c Made upon unlawful d Affected by other e Arbitrary a procedure error oflaw capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion or or Manifestly f substantial and in view of the reliable probative evidence on the whole record erroneous emphasis added IN this on or about the claim is that several items of property were lost by the prison personnel case July 7 Parish for Court and his 2003 when the Petitioner returned from Orleans property had been stored in the voluminous and rather some or it appears clear that the prison confusing record if not all of the property that lies in the lack of proof ostensibly in Camp J of the prison at Angola Through his absence was stored identification of the time in 2003 what was actually lost from his item lost particular the Frankly only reason that this property was lost is almost that date when the property finally as non can existent and is 6 property was transferred from Gator or cost of each some property is by 2 following to Bass items were stored storage shirts tee shirts 2 2 3 under shorts 8 towels 7 8 5 items of cosmetics 30 letters 9 28 10 1 11 Miscellaneous 1 2 socks booksjbibles photographs scarf Ordinarily the inventory sheet contains The what the value That sheet shows the 5 6 to have Petitioner owned at that dependent entirely on the single inventory 3 4 seems problem the evidence in the record of what property existed and 2 return 2003 However the find that personnel lost 1 signs for July 7 particular property the Court sheet of 7 8 03 in the administrative record on about was their own admission in the record what on or personnel lost laundry bag legal material and an intake date and of his property but in this case there is no a 4 law books 7 date that the prisoner delivery date at all and the property disappeared Department s promulgated rules about lost property claims state the following in part The purpose of this Section is to establish a uniform procedure for handling lost property claims filed by individuals in the custody of the Department All wardens are responsible for implementing and advising offenders and affected employees of its contents 1 6 The claim must include an offender suffers aloss he may submit a claim the date the loss occurred a full statement of the circumstances which resulted in the loss a list of the items which are missing the value of each lost item and any proof When See Exh C 7Id 3 19th JUDICIAL DISTRICT COURT 80125115000 of ownership or value ofperson property 10 days of discovery of the loss investigation report If a loss offender value for the lost person The warden will recommend a reasonable for certain classes of items is property The maximum liability are case following property bibles the Petitioner a 2 sheets never the inventory sheets of July in 2007 and the in 2004 and apparently affirmed an additional 9 80 photos 1 scarf that July to personnel not in 1o items the 8 inventory which 2003 were lost through fault 50 to cover all inventory sheet the 30 letters 6 93 losses of cosmetics 5 and the maximum of assigned to the reason to 15 as 28 legal materials which were not There is no indication in the administrative record was derived from but since the Petitioner did not file believe that this valuation is However the Court notes that there is inventory sheet part of Rules the Warden then offered the Property 36 for itemized 86 complaint on the administrative record as ordered authorized any additional valuation in Court has no a which is 2003 replace all of the clothing items listed in itemized in the administrative record where the value allegation of value and which became 8 2003 inventory of March 8 that the items listed In accordance with the Petitioner state issued items to well as no personal 30 again in 2007 after final remand for consideration the exceed those listed in the Petitioner s initial prison personnel9 5 cosmetics 4 law books s been offered into the administrative record to the Court knowledge investigation administration 22 items only state issue where state issued scarf He offered tee shirts and 1 2 only regulation 30 had lost the initially complained that the administration laundry bag oflegal material the administrative record After 50 per DOC 8 available proof of ownership on record and has warden its employee the through negligence of the institution and or with the following procedures s claim may be processed in accordance Non Monetary The offender is entitled to i b based his investigate and recommendation to the established at 2 selling occurs i letters the warden within Monetary a In this to who will submit his assign an employee to will The warden 3 be submitted for an Under no circumstances will an offender be compensated unsubstantiated loss or for any loss resulting from bartering trading to or gambling with other offenders a 2 must no In the initial decision and offer arbitrary or manifestly compensation for the by the Warden Court the erroneous 4 law books in 2004 See lost property claims in Exh A dated 12 12 03 and January 12 2004 See Warden s first decision dated 12 20 04 and the final decision dated 6 affirming the Warden s recommendation by the exh A ll listed on the the Warden 8 9 10 20 2007 by the Secretary rd a copy of a much more recent estimate of replacement costs for unidentified legal documents allegedly in the bag but this Court is bound by the administrative record the alone and the P itioner wasgiven ev ry opportunity by the Court to amend his complaint refile it and to subD l1 any dditional or excluded eVldence to the Warden to have this matter fully considered by the inistrative record could be presented to this Court for a a mmlStra IOn so that a clean and co p ete a 11 It appears that the Petitioner has filed aIr d er mation Ho ver the a mlStrative ec rd even after two remands does not contain proper IdentIficatIOn by the PetitIOner ofthe legal matenal lost of the value of any of the items lost The Court is bound by the administrative record and cannot consider additional evidence at the appellate level or 4 19th JUDICIAL DISTRICT COURT 80125115000 the prison Mail Room that the Petitioner had found then that since there was no record by received any law books them even through the mail while though obviously 4 law books were lost property was stored and inventory 12 bibles were Bibles because he refused to offer any recompense for at Angola in his possession in July 2003 them in prison personnel specifically logged state issue or he would have the Chaplain personal no mention record that the bibles were other than state issue whether the Petitioner that the Warden the s by the Petitioner in the anministrative 13 as there is the Petitioner and offer of recompense was ever accepted by A is clear that items of property precisely identify The record does not general as above quoted and apparently items The burden of proof in as it is The was the items lost as never some record evidence in administrative stored on behalf the Petitioner of the only listed the provided proof of value of any particular in the administrative record what he the Petitioner to show on poor lost when it were no oral argument in 2005 This Court is bound by the administrative record record in Exh it is unknown from the record Additionally at least following 2 replace them with State issue from the Chaplain feceived or accepted the Bibles the record that he refused the offer items in on did not state whether the Also the Warden noted that because the Petitioner The Warden is correct that there is Petitioner when the has shown that he owned certain items owned what he lost and the value of each item lost He legal material but has failed of clothing and books and owned some unidentified value of any items lost or even what precise items of legal material he lost but the record continues to show that he has failed to do administrative record in Exh C includes Trish Foster property purchase an so affidavit by prison administrative program wherein she states that she lost and or to given The final expansion to the requested from personnel the records and banking records to determine identify the legal items was assign if there any value to them based was on Petitioner s any evidence to his payment for them Mr Simmons She found that there is no record of any 2002 inventory of property upon to Angola and no record of any March 8 2003 inventory sheet She stated that LSP Programs Department is tasked with 2002 the date he shows came to 12 See Exh C the July 13 See memos log no Angola 14 coming Legal accepting and sending Court transcripts to inmates logging their requests for copies of transcripts and returning these documents to the that her review of that the the record and resubmit proper evidence to the Warden opportunities by this Court to expand manager He to show receipt or delivery Court and of any transcripts to the Petitioner from until the date ofloss in July 2003 This was confirmed by inventory sheet dated May 27 2004 in Exh A as well as a handwritten statement of David Jones prison employee 14 See Exh C affidavit dated July 16 2007 5 19th JUDICIAL DISTRICT COURT 801251750 05 her finding from inmate banking that there during that period either Therefore decision to offer material or was no record 15 given the dearth of evidence to support with state issue recompense I also find that the decision to refuse to and Bibles is not arbitrary court However in addition to that give recompense for the 4 law books when clearly owned four on the July 2003 date of inventory is arbitrary and capricious and violates the Petitioner of his own While there is was claim for more the administrative replacement of all clothing items manifestly erroneous and should be affirmed by this the Petitioner a personal property and unidentified generic legal 86 for the itemized together of payments for any legal materials it is reasonable to s right to be recompensed for personal property no evidence assume that each book would have cost at least recommend that the Department be of the four books 200 in the record to show what the value or no fault condition of each 50 and thus I required to pay him the maximum under in addition to the clothing and bibles Should the lost through its rules for each 86 and state issue replacements of prior offer of Court agree my recommendation follows COMMISSIONER S RECOMMENDATION Having carefully considered the entire administrative record as supplemented and the arguments of the parties and finding that the administrative records are for an accurate determination of the issues for the reasons stated hereinabove I recommend that the Court affirm in part and reverse in part the Secretary s decision that the Court issue judgment in favor of the Petitioner Petitioner the total inventory and sum of 286 00 and to ordering the I further recommend Department to pay to the replace all clothing items listed on the July 8 two bibles with State issue items dismissed with less than satisfactory Finally 2003 I recommend that this appeal be prejudice at the Department s costs fh Respectfully recommended this 2 day of November 2007 in Baton Rouge Louisiana RA COMMISSIO R SECfION A NINETEENTH JUDICIAL DISTRlCf COURT J7 4 J 15Id 6 19th JUDICIAL DISTRICT COURT
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