Samuel Galbraith VS James M. Leblanc, Secretary, Department of Public Safety & Corrections, N. Burl Cain, Terri L. Cannon and Trish Foster
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1841 SAMUEL K GALBRAITH VERSUS JAMES M LEBLANC SECRETARY DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS N BURL CAIN TERRI L CANNON AND TRISH FOSTER 4 Judgment Rendered May 7 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 569 141 The Honorable William Morvant Judge Presiding Samuel K Galbraith PlaintiffAppellant in Proper Person Angola LA Samuel K Galbraith Terri L Cannon Counsel for Defendant Appellee Baton Rouge LA Louisiana Department of Public Safety Corrections BEFORE WHIPPLE HUGHES AND WELCH JJ WHIPPLE J Plaintiff Samuel K Galbraith an inmate in the custody of the Louisiana Department of Public Safety and Corrections the Department housed at Louisiana State Penitentiary challenges the district court dismissal of his s petition for judicial review requesting that Louisiana State Penitentiary issue a new smoking policy that completely bans smoking within the institution For the following reasons we amend and affirm as amended PROCEDURAL HISTORY On April 25 2008 plaintiff filed an Administrative Remedy Procedure complaining that the smoking policy implemented by Louisiana State ARP Penitentiary as set forth in Directive No 01 violates the provisions of the 017 Louisiana Smoke Free Air Act the Act codified in LSAR 40 et S 1300 251 seq in that it conflicted with the Act mandatory prohibition of smoking in any s state local or private correctional facility after August 15 2009 Plaintiff thereby requested that the policy be revised and reissued to implement a ban on smoking throughout the institution starting on or before August 15 2009 In the s Department First and Second Step Responses it determined that plaintiff s request was premature noting that plaintiff could resubmit his request after August 15 2009 if he believed that the institution was not complying with the terms of the Act In support the Department relied upon Regulation No B 05 005 which states when an inmate files a grievance concerning an action not yet taken the grievance is to be rejected On July 24 2008 plaintiff filed a petition for judicial review requesting that the policy be rescinded and that a new policy completely prohibiting smoking throughout the institution be implemented On May 31 2009 the Commissioner issued a recommendation noting that n i spite of the s petitioner acknowledgement in his initial request for relief that the Department is required 2 by statute to enforce a no smoking ban at all correctional facilities by August 15 2009 the petitioner seeks to compel the Department to enact a total ban on smoking prior to the date mandated by statute The Commissioner further determined that since plaintiff could point to no authority that would require the Department to enforce the mandated policy prior to the mandatory date as specified by the Legislature the Department had the authority and discretion to implement the mandatory ban at any chosen time prior to the mandatory date i e August 15 2009 Thus the Commissioner recommended that the agency decision be affirmed and that plaintiff spetition for judicial review be dismissed with prejudice at plaintiff costs s On June 29 2009 the district court rendered judgment adopting the s Commissioner Recommendation and dismissed plaintiff request for judicial s review with prejudice at plaintiff costs s Plaintiff filed the instant appeal contending that the district court erred in finding that his request for relief was premature and that Directive No 01 complied with the provisions of the 017 Louisiana Smoke Free Air Act On appeal plaintiff contends that he never suggested or implied that the correctional facility had to implement a total ban on smoking prior to the date mandated by statute rather he contends that he has sought all along to have the s facility directive be revised to issue a total ban as of August 15 2009 in compliance with the Act Plaintiff argues that the current version of Directive No 017 01 permits smoking after August 15 2009 in direct contravention ofthe Act which provides in pertinent part that a August 15 2009 smoking shall be fter prohibited in any state local or private correctional facility 14 B 256 1300 40 3 LSA R S In purported accordance with the Act Louisiana State Penitentiary issued Directive No 01 entitled Smoking Policy which provides that on August 017 15 2009 the following procedures shall be applicable H Smoking in inside areas is prohibited for all employees visitors and inmates I Where smoking is prohibited No smoking signs or the intemational No Smoking symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it shall be clearly and conspicuously posted in every public building and place of employment J An individual person entity or business subject to the smoking prohibitions of this policy shall not discriminate or retaliate in any manner against a person for making a complaint regarding a violation of this policy or for furnishing information concerning a violation to an enforcement authority K Violations of this policy will be subject to disciplinary action pursuant to Department Regulations No A02 001 and B 05 001 and such penalties as enumerated in La R 1300 S 262 Plaintiff contends that the correctional facility directive seemingly s permits smoking in certain areas and that the question is does this prohibition of smoking as set forth in the Act call for a full prohibition or will smoking still be allowed in correctional facilities in designated areas By plaintiff own s admission this question cannot be answered until the directive is implemented On review we find that although plaintiff may have a valid complaint in the future conceming the correctional facility interpretation of the Act s s smoking prohibitions as set forth in Directive No 01 017 to the extent that plaintiff is seeking an interpretation of and ruling on the facility smoking s prohibitions prior to their application and implementation we agree that his request is premature Accordingly we must affirm the June 29 2009 judgment of the district court However because plaintiff can reurge his claim subsequent to the implementation of the directive on August 15 2009 we amend the judgment of the trial court to reflect that his claim is dismissed without prejudice CONCLUSION After a thorough review ofthe record and relevant jurisprudence the June 29 2009 judgment of the district court is hereby amended to provide that plaintiff s claim is dismissed without prejudice and as amended the judgment is affirmed Each party shall bear hisits own costs AMENDED AND AS AMENDED AFFIRMED In his brief on appeal plaintiff contends that since the implementation of the directive on August 15 2009 smoking is allowed outdoors and that smoking occurs in unauthorized areas on a daily basis at Louisiana State Penitentiary Because however the facts that form the basis for these complaints were not known at the time plaintiff filed his ARP and thus were not brought before the Department or the Commissioner we find no authority to review such complaints in this appeal 5
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