Donald Brown VS James LeBlanc, Secretary of Corrections and Louisiana Board of Parole
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0491 DONALD BROWN VERSUS 1 JAMES LEBLANC SECRETARY OF CORRECTIONS AND LOUISIANA STATE BOARD OF PAROLE Judgment Rendered October 29 2010 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 577 DIVISION 23 385 THE HONORABLE WILLIAM A MORVANT JUDGE Donald Brown Kinder Louisiana PlaintiffAppellant In Proper Person Patricia H Wilton Attorney for Defendant Appellee Baton Rouge Louisiana Louisiana State Board of Parole BEFORE WHIPPLE McDONALD AND McCLENDON JJ McDONALD J In the present case the district court dismissed the suit brought by the plaintiff Donald Brown for lack of subject matter jurisdiction Mr Brown appeals that judgment We affirm the district court judgment Factual and Procedural Nistory In 1979 Mr Brown was convicted of armed robbery and sentenced to fifty years imprisonment Mr Brown was released on parole supervision in 2000 under the provisions of La R 15 after he had served twenty years in S 574 2 A 4 prison and had reached the age of 45 On March 5 2008 Mr Brown was arrested for a violation of the terms of his parole Mr Brown admitted to violating his parole and waived his right to a preliminary and final revocation hearing in front of the Parole Board in return for a chance to be placed in a sixmonth work release program If Mr Brown successfully completed the sixmonth work release program he would be returned to active supervision If however Mr Brown was unable to successfully complete the program for any reason his parole would be revoked based on his waiver of a final revocation hearing Mr Brown signed the waiver on March 26 2008 and was admitted into the work release program on April 14 2008 On May 22 2008 Mr Brown was discharged from the work release program for an alleged rule violation Based on his previous waiver of a final revocation hearing his parole was revoked retroactive to March 26 2008 and he was sent back to the prison system In accordance with Mr Brown previous s waiver he was not given a hearing on the matter and was notified of the Parole s Board decision by letter dated June 5 2008 Later Mr Brown asserted that the 1 Mr Brown admitted that he had been present in a local bar 2 Mr Brown was cited for an aggravated sex offense relating to an incident where two other residents in the program were outside in a smoking area then allegedly looked up at a window and saw Mr Brown masturbating inside the residence 2 charges against him for the rule violation were dropped In response Mr Brown filed a Request for Administrative Remedy in February of 2009 with the Louisiana Department of Public Safety and Corrections Department seeking reinstatement into the work release program This request was denied by the Department on the grounds that decisions of the Parole Board are not appealable through the Administrative Remedy process Mr Brown then sought judicial review in April of 2009 claiming that he should be reinstated into the work release program and also seeking monetary damages for lost wages Mr Brown complaint written pro se listed the Department as well as the s Parole Board as defendants Noting that the Department has no authority over decisions of the Parole Board the district court dismissed Mr Brown claims s against the Department As to the Parole Board the district court allowed Mr Brown to proceed with the appeal of his parole revocation in accordance with La S 574 R 15 on the basis of his claim that he had been denied a final revocation 11 hearing The Parole Board thereafter filed a motion to dismiss the appeal of his parole revocation based upon a lack of subject matter jurisdiction Upon further investigation of Mr Brown claims the district court dismissed the suit for lack of s subject matter jurisdiction In its reasons for judgment the district court found that Mr Brown waited almost a year after notification of his parole revocation to bring his complaint This was well past the ninetyday peremptory time limit provided in La R 15 Therefore the district court found that Mr Brown petition S 574 11 s was untimely and that the district court lacked subject matter jurisdiction to hear the case Mr Brown is appealing the dismissal of his suit by the district court 3 Handwritten notations in the Department of Corrections records seem to indicate that the rule violation was dismissed after Mr Brown was discharged from the work release program 4 Mr Brown claim for monetary damages against both defendants was also dismissed as it was s not proper in an administrative appeal 3 Discussion The only issue on appeal is whether the district court lacked subject matter jurisdiction over Mr Brown suit which claims he was denied a final hearing s before his parole was revoked The Louisiana Code of Civil Procedure defines subject matter jurisdiction as the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand the amount in dispute or the value of the right asserted La C art 2 P Louisiana Revised Statutes 15 establishes the process by which decisions of 11 574 the Board of Parole may be appealed and states that No prisoner or parolee shall have a right of appeal from a decision of the board regarding release or deferment of release on parole the imposition or modification of authorized conditions of parole the termination or restoration of parole supervision or discharge from parole before the end of the parole period or the revocation or reconsideration of revocation of parole except for the denial of a revocation hearing under R 15 footnote added S 574 9 La R 15 S 574 A 11 The statute provides that the district court shall have appellate jurisdiction over pleadings alleging a violation of R 15 La S 574 9 S 574 R 15 C 11 Further the statute provides that petitions for review that allege a denial of a revocation hearing shall be subject to a peremptive period of ninety days after the date of revocation by the Board of Parole and petitions for review filed after this peremptive period shall be dismissed with prejudice La S 574 R 15 Peremption is a period of time fixed by law for the existence D 11 of a right La C art 3458 Unless timely exercised the right is extinguished upon the expiration of the peremptive period Id Additionally peremption may not be renounced interrupted or suspended La C art 3461 s Louisiana Revised Statutes 15 states in part that wlhen a parolee has been returned A 9 574 to the physical custody of the Department of Public Safety and Corrections office of corrections vices set the board shall hold a hearing to determine whether his parole should be revoked unless said hearing is expressly waived in writing by the parolee A waiver shall constitute an admission of the findings of the prerevocation proceeding and result in immediate revocation 0 In the present case Mr Brown was removed from the work release program in May of 2008 and was notified by letter dated June 5 2008 that his parole was revoked retroactively to March 26 2008 Although he did file a Request for Administrative Remedy with the Department in February of 2009 his petition for judicial review was not filed until April 15 2009 Under these facts it is clear that Mr Brown rights if any were extinguished by his failure to file a petition within s the ninety days allotted in La R 15 Even assuming arguendo that S 574 D 11 the date of Mr Brown revocation was determined to be June 5 2008 as opposed s to March 26 2008 and that the date of his petition was determined to be in February of 2009 as opposed to April 15 2009 Mr Brown still failed to bring his claim within the required ninety days Consequently his rights were extinguished and the district court lacked subject matter jurisdiction in this matter For the above reasons the judgment of the district court is affirmed Costs are assessed against Mr Brown AFFIRMED 5
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