Durwin L. Abbott VS James LeBlanc Secretary of The Department of Public Safety & Corrections, Warden Steve C. Radar & Warden Carson
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCt1IT N0 2012 CA 1477 DURWIN L ABBOTT VERSUS JAMES LEBLANC SECRETARY OF THE DEPARTMENT OF PUBLIC SAFEfY I CORRECTIONS WARDEN STEVE C RADAR udgment rendered MqR 2 5 2013 I Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 594 372 Honorable Janice Clark Judge DURWIN L ABBOIT IN PROPER PERSON LA JACKSON APPELLANT PLAINTIFF JONATHAN R VINING ATTORNEY FOR BATON ROUGE LA APPELLEE DEFENDANT JAMES M LEBLANC BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW Petitioner Durwin L Abbott an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC appeals a judgment affirming s DPSC final agency decision rendered under Disciplinary Board Appeal No DCI 92 2010 and dismissing the claims alleged in his petition for judicial review For the following reasons we affirm DISCUSSION On March 8 2010 Abbott was found guilty of violating Disciplinary Rule 1 contraband when he failed a drug screen for THC marijuana resulting in a sentence of custody change from medium to maximum working cellblock forfeiture of 90 days good time 6 months of drug testing and restitution in the amount of 63 to cover the costs 00 of the drug testing In his disciplinary board appeal Abbott argued that his urine sample was required to be sent to an outside lab according to DPSC regulations and because it s was not his rights were violated Abbott also alleged that certain medications he was taking could cause a false test result Abbott appeals were unsuccessful DPSC positive s determined that Abbott was provided with a full hearing and was afforded due process in both the hearing and the sentencing phases of the proceeding and that the sanctions imposed were appropriate Having exhausted his administrative remedies Abbott filed a petition for judicial review in the Nineteenth Judicial District Court The matter was then referred to a commissioner for review pursuant to La R 15 The commissioner noted that S 1188 s DPSC regulation for drug testing requires two in tests if the first one is positive house Both must be administered by different officers which they were in this case The commissioner further recognized that petitioner failed to provide sufficient authority for his claim that an outside lab test is constitutionally required or even required by regulation 1 The offices of commissioner of the 19th Judicial District Court were created by La R 13 to hear and S 711 recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners La R 13 The district judge may accept reject or modify in whole or in part the findings or S 713 A recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions La R 13 S 713 5 C 2 and failed to present evidence showing the testing procedures used were invalid or unreliable The commissioner concluded UPSC ecision to rely on the test results was s neither arbitrary nor capricious ad was not in i petitioner rights iolation of s commissioner recommended that RPSC deciswon be affirmed s The Abbott timely filed a traversal of that recommendation reiteratiny his arguments to the court On April 4 2012 a judgment was signed affirming DPSC decision and dismissing Abbott petition s s for judicial review with prejudice This appeal followed After a thorough review of the record in consideration of Abbott arguments on s appeal and applying the relevant law and jurisprudence we find no error of law or abuse of discretion by the district court in adopting as its own the commissioner s report We therefore affirm the April 4 2012 judgment of the district court and find that the district court reasons for judgme as set forth in the commissioner s t s recommendation adequately explain the decision All costs associated with this appeal are assessed against petitioner Durwin L Abbott AFFIRMED 3
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