Eugene Vessel VS James M. Leblanc, Director, Louisiana Department of Corrections and Terry Terrell, Warden
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL 6 FIRST CIRCUIT v1 1 NUMBER 2009 CA 1869 EUGENE VESSEL VERSUS JAMES M LEBLANC DIRECTOR LOUISIANA DEPARTMENT OF CORRECTIONS AND TERRY FERRELL WARDEN Judgment Rendered June 11 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 566 732 The Honorable Todd Hernandez Judge Presiding Eugene Vessel Winnsboro LA PlaintiffAppellant in Proper Person Eugene Vessel Jonathan R Vining Baton Rouge LA James M LeBlanc Counsel for Defendant Appellee BEFORE WHIPPLE HUGHES AND WELCH JJ WHIPPLE J Plaintiff Eugene Vessel an inmate in the custody of the Louisiana Department of Public Safety and Corrections the Department housed at Franklin Parish Detention Center challenges a judgment of the district court dismissing his petition for writ of habeas corpus seeking review of administrative remedy No ALC2007 924 with prejudice For the following reasons we vacate and remand PROCEDURAL HISTORY On August 1 2007 plaintiff filed an Administrative Remedy Procedure ARP seeking restoration of good time which he contended had been forfeited improperly on nine instances between September 2001 and January 2006 while he was housed at Allen Correctional Center Specifically plaintiff contended that these forfeitures had been imposed by Wackenhut Corrections Corporation WCC and Global Expertise Outsourcing GEO two private prison contractors in violation of LSAR 39 and Singleton v Wilkinson S 1800 5 2006 0637 La App l Cir 2959 So 2d 969 07 14 A copy of the same ARP appears in the administrative record with the date scratched through and Sept 4 written above the date Louisiana 2 Revised Statute 39 provides in part as follows 5 1800 No contract for correctional services shall authorize allow or imply a delegation of authority or responsibility to a prison contractor for any of the following 5 Granting denying or revoking sentence credits 3I Singleton v Wilkinson 20060637 La App l Cir 2959 So 2d 969 971 07 14 this court held that in accordance with LSA R 39 the Department S 1800 5 soversight and approval was required to validate the prison contractor officials decision imposing forfeiture of an inmate good time days This court further acknowledged therein that while it s may be impractical to have a Department employee present at each and every disciplinary hearing departmental oversight of such proceedings must be consistently and clearly delineated by the presence of a Department official initials on each disciplinary report that is reviewed s 2 On September 24 2007 the Department denied plaintiff request for relief s in its First Step Response noting that a DPSC Records Analyst is located on site and monitors recommendations for forfeiture of good time relating to disciplinary sanctions imposed by the Board In denying his Second Step Request on January 4 2008 the Department further noted Ms Priscilla Pitre a trained time computation analyst employed full time by the Department of Public Safety and Corrections reviews all disciplinary reports adjusting dates as good time forfeitures occur On May 6 2008 plaintiff filed a Petition for Writ of Habeas Corpus in district court seeking judicial review of his ARP The Commissioner issued a report on March 12 2009 noting that although the disciplinary board that heard the reported violations charged against plaintiff was comprised of employees of the prison contractor Priscilla Pitre the person who actually calculates good time earnings and certifies good time forfeitures is an employee of the Department The Commissioner then determined that each disciplinary report involved in s plaintiff complaint showed that the Department representative and employee s Priscilla Pitre timely signed and dated each one Finding that i case n this the record shows that Ms Pitre a Department employee initialed and dated each of the disciplinary reports within a few days of the hearings as required by Singleton the Commissioner concluded that the Department decision to deny s plaintiff relief was neither arbitrary capricious or manifestly erroneous and was in accordance with LSAR 15 S 571 4and LSAR 39 S 1800 5 4I her report the Commissioner noted that plaintiff does not dispute that he violated the Department prison regulations and that the record does not show if plaintiff filed any s timely appeals of those forfeitures in accordance with the Department rules The s Commissioner also noted that nonetheless plaintiff was challenging the forfeiture of his good time for various prison rule violations via ARP rather than by Disciplinary Board Appeal the Department appellate process available to all inmates to ensure that the Secretary makes the final decision on forfeiture of good time As the Commissioner recognized the issue of whether plaintiff timely appealed any or all of these forfeitures cannot be determined since the instant matter was not asserted as a Disciplinary Board Appeal but as an ARP challenging the forfeitures in toto 3 Adopting the Commissioner sReport and the reasons set forth therein the district court rendered judgment on April 14 2009 affirming the Department s decision and dismissing plaintiffs appeal with prejudice at plaintiff costs s Plaintiff then filed the instant appeal DISCUSSION On appeal plaintiff contends that the district court erred in dismissing his petition for habeas corpus and judicial review and in ultimately affirming the rejection of his complaint Specifically plaintiff contends that private prison contractors have no authority to impose or recommend forfeiture of good time to the Department and that such a forfeiture of good time based on such recommendation could not be used as a sanction in a disciplinary hearing at Allen Correctional Center We disagree Louisiana Revised Statute 15 provides that a d A 4 571 etertnination shall be made by the secretary on a monthly basis as to whether good time has been earned by inmates in the department custody Louisiana Revised Statute s D 4 571 15 provides that t department shall adopt rules to govern the he in accordance with the Administrative imposition ofthe forfeiture ofgood time Procedure Act As set forth above the duty to grant deny or revoke sentence credits good time shall not be delegated to a prison contractor LSAR S 5 1800 39 In Singleton this court recognized that it is understandable that for practical purposes a Department employee may not be present at each and every disciplinary hearing Singleton 2006 0637 959 So 2d at 971 Thus this court held that the Department statutory duty is satisfied as long as a Department s employee provides necessary oversight and review over each disciplinary matter Singleton v Wilkinson 959 So 2d at 971 Accordingly we agree with the Although 5 plaintiff does not set forth specific assignments of error in his brief on appeal we elect to address the two main arguments urged in his brief 11 sconclusion that the system in place complies with the law and Commissioner authorizes Department employees to make the necessary sentence re calculations when good time is earned or forfeited in accordance with statutory law and the or sDisciplinary Rules and Procedures Thus we find no merit to this Department portion ofplaintiffs argument on appeal However with reference to plaintiff s complaint that the Department failed to timely provide the necessary oversight and approval over sanctions imposed in a June 8 2002 disciplinary report iforfeiture of 30 days of good time credit e we find merit The record reflects that this report was not reviewed and approved by the designated Department employee Priscilla Pitre until February 17 2009 or approximately seven years later and only after the proceedings below commenced Thus to the extent that the Commissioner found that each of plaintiffs disciplinary reports were timely signed and dated within a few days of the hearings we find the Commissioner erred Because it is clear from the record that the requisite oversight and approval necessary to validate the prison contractor decision imposing forfeiture of s plaintiffs good time as a result of his June 8 2002 disciplinary offenses was not timely provided by the Department we must remand this matter to the Department to order the restoration of plaintiffs good time credit forfeited in violation of LSA R 39 Accordingly we vacate the April 14 2009 S 1800 5 judgment ofthe district court and remand this matter to the Department for further proceedings pursuant to LSAR 15 See Singleton v Wilkinson S 1177 8 A 2006 0637 959 So 2d at 971 In 6 conducting our review we note that the Department did not object to plaintiffs use of ARP to review disciplinary forfeitures which seemingly could and should have been reviewed through the procedures governing such appeals Instead the Department specifically acquiesced in the expansion and supplementation of the administrative record to include the pertinent disciplinary violations report C Walker v Louisiana Department of So 3d also decided this date Corrections 20090057 La App 1 Cir 6 51 10 11 5 CONCLUSION After thorough review of the record and relevant jurisprudence the April 14 2009 judgment of the district court is vacated and this matter is remanded to the Department for further proceedings consistent with the views expressed herein All costs associated with this appeal in the amount of 1 are 10 038 assessed to the appellees James M LeBlanc Director Louisiana Department of Corrections and Terry Ferrell Warden VACATED AND REMANDED in
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