Kelsey John Benoit VS James M. Leblanc and Mark Delaune
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL i FIRST CIRCUIT NUMBER 2009 CA 1567 W KELSEY JOHN BENOIT VERSUS JAMES M LEBLANC MARK DELAUNE Judgment Rendered March 26 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 576 153 The Honorable William Morvant Judge Presiding Kelsey Benoit Cottonport LA PlaintiffAppellant in Proper Person Kelsey Benoit William Kline Baton Rouge LA Counsel for Defendant Appellee Louisiana Department of Corrections BEFORE WHIPPLE HUGHES AND WELCH JJ WHIPPLE J Plaintiff Kelsey John Benoit an inmate in the custody of the Louisiana Department of Public Safety and Corrections the Department housed at Avoyelles Correctional Center challenges the district court dismissal of his s petition for judicial review and request for declaratory and mandamus reliefon an exception of lack of subject matter jurisdiction raised by the district court For the following reasons we affirm PROCEDURAL HISTORY On March 6 2009 plaintiff filed a petition for judicial review seeking 1 ajudgment declaring that his complaint involving the actions ofa probation and parole agent which he averred did not involve a prison condition had been properly filed when submitted to the Internal Affairs Division of the Office of Adult Services and 2 an order instructing the Department to respond within fifteen days A commissioner screened the petition prior to service on the Department pursuant to the requirements of LSAR 15 and 15 and issued a S 1178 1188 recommendation noting that although plaintiff did not make any specific allegations regarding the nature ofhis complaint he contended that his complaint does not concern a condition of confinement Thus the commissioner noted plaintiffs complaint regarding his supervision while out of the physical custody of the Department is outside the scope of the Corrections Administrative Remedy Procedure Act CARP and LSAR 15 which grants the district court S 1177 appellate jurisdiction to review a decision denying a request for administrative relief under CARP Specifically the commissioner noted that the court does not have subject matter jurisdiction over an inmate complaint filed outside the We recognize that pursuant to Pope v State 99 2559 La 6 792 So 2d 713 01 29 LSAR 15 through 15 of the Corrections Administrative Remedy Procedure S 1171 1179 have been held unconstitutional if applied to tort actions 2 Administrative Remedy Procedure directly with the Department and thus the district court had no authority to exercise subject matter jurisdiction over s plaintiff complaint raised in this manner The commissioner further noted that even if plaintiff request were considered as a request for mandamus relief s directed to a State agency headquartered in the parish plaintiff failed to show any statutory or regulatory requirement that the Department issue a response to his complaint much less within a specific time period Thus the commissioner recommended that the petition for judicial review be dismissed on an exception of lack of subject matter jurisdiction as raised by the district court After being served with the commissioner screening report plaintiff filed s a traversal Therein plaintiff claimed that he had instituted an Administrative Remedy Procedure against his probation officer for his abusive sic of discretion and authority and that the Department of Probation and Parole had refused to respond to his complaints Plaintiff did not identify an ARP number or provide documentation evidencing the commencement of an underlying administrative procedure On June 3 2009 the district court rendered judgment dismissing plaintiff s request for declaratory and mandamus relief on an exception of lack of subject matter jurisdiction without prejudice and prior to service in accordance with the s commissioner recommendation From this judgment plaintiff appeals now contending that an administrative remedy request pertaining to the actions of a probation and parole agent is within the scope of CARP and that the district court erred in finding that it lacked subject matter jurisdiction DISCUSSION As the commissioner correctly noted plaintiff does not identify or allege any administrative procedure from which his appeal to the district court was taken Moreover while plaintiff alleges in his petition that he presented the facts 3 relating to his complaint to the prisoner grievance procedure plaintiff also s acknowledges therein that he was never assigned a number for his prisoner grievance claiming that s the request involved the action of a probation ince s and parole agent and not a prison condition it was properly filed with the Office of Adult Services Pursuant to LSAR 15 if an administrative remedy process is S 1172 C not completed at the time the petition is filed the suit shall be dismissed without prejudice Where an inmate fails to exhaust available administrative remedies the district court and the appellate court lack subject matter jurisdiction to review the claim See Lewis v Rogers 2005 1138 La App V Cir 6 938 So 2d 06 9 1025 1026 Further to the extent that plaintiff is seeking mandamus relief we likewise find that the district court correctly determined that it lacked subject matter jurisdiction to review plaintiff scomplaint CONCLUSION Accordingly the June 3 2009 judgment of the district court is affirmed All costs associated with this appeal are assessed to the plaintiff Kelsey appellant John Benoit 2 AFFIRMED Although 2 plaintiff s suit was brought in formapauperis the costs of an unsuccessful appeal may be assessed against him See Hull v Stalder 20002730 La App i Cir 02 15 2808 So 2d 829 833 n 3 El
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