Jesse L. Mormon VS James Caldwell, Attorney General, State of Louisiana; James Leblanc, Secretary, Department of Public Safety & Corrections; Robert Tanner, Warden, Rayburn Correctional Center and Walter P. Reed, District Attorney, 22nd Judicial District Court
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0968 JESSE L MORMON f VERSUS JAMES CALDWELL ATTORNEY GENERAL STATE OF LOUISIANA JAMES LEBLANC SECRETARY LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ROBERT TANNER WARDEN RAYBURN CORRECTIONAL CENTER WALTER P REED DISTRICT ATTORNEY TWENTYSECOND JUDICIAL DISTRICT AND TASK FORCE OF ST TAMMANY PARISH Judgment Rendered December 22 2010 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge Docket No 586 913 Honorable Janice Clark Judge Presiding ewwwwwwmwwa Jesse L Mormon PlaintiffAppellant Angie LA Pro Se BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J This is an appeal from a district court summary dismissal of a s s prisoner suit for failure to state a cause of action and for having been or filed in an improper venue for post conviction relief For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Plaintiff Jesse Mormon was convicted of possession with intent to distribute marijuana in 1996 in the 22nd Judicial District Court His ten year sentence was vacated and he was resentenced as a habitual offender to twenty years in prison On January 28 2010 Mr Mormon filed the instant action in the 19th Judicial District Court based in part on the U Civil S Rights Act 42 U A C S 1981 et seq contending that the 22nd Judicial District Court criminal proceeding was illegally tainted by ineffective assistance of counsel the criminal court refusal to require disclosure of the s identity of a confidential informant the discriminatory exclusion of African Americans from the jury the failure of the criminal court to dismiss a prospective juror who was the trial judge insurance agent and the failure of s the criminal court to dismiss a prospective juror who was Caucasian and allegedly against mixed marriages when Mr Mormon who is African American was married to a Caucasian woman In his 19th Judicial District Court civil suit Mr Mormon sought to have his criminal conviction overturned release from prison for time served and damages in the amount of 7 million 4 Upon receipt by the 19th Judicial District Court of Mr Mormon s pleadings the civil suit was referred to a district court commissioner for 2 screening The commissioner recommended dismissal of the action because the claims raised by Mr Mormon applied to the conduct of the 22nd Judicial District Court criminal proceeding and were matters properly raised in an appeal or by application for post conviction relief in or courts having supervisory jurisdiction over the 22nd Judicial District Court The commissioner reasoned that any relief on the bases asserted by Mr Mormon could only be considered after the original criminal conviction was overturned and therefore recommended dismissal based on failure to state a cause of action and improper venue for post conviction relief or The district court judge agreed with the commissioner recommendation and s dismissed the action without prejudice Mr Mormon has appealed the dismissal LAW AND ANALYSIS On appeal Mr Mormon first asserts that the dismissal of his action was improper because defendantsrespondents no rebuttal was submitted by the However under the procedure dictated by the applicable law the district court was authorized to review the suit before serving the defendants Louisiana Revised Statute 15 of the Prison Litigation Reform 88 11 Act PLRA requires a court to review before service on the s defendant a petition in a civil action in which a prisoner seeks redress 1 The office of the commissioner for the 19th Judicial District Court was created by LSA R S 711 3 1 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners Rochon v Administrative Remedy Procedure 2005 0452 p 2 n La App 1 Cir 3 934 So 67 68 n writ denied 20061383 La 1 948 l 06 24 2d l 07 26 2d So 162 Z The PLRA generally applies to a ivil c action with respect to prison conditions which is defined as a civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison LSAR 15 Notwithstanding LSAR 15 provides S 1181 2 S 1191 Except as specifically prohibited by federal law the provisions of this Part shall also apply to all prisoner suits in state courts asserting claims arising under 42 U 1983 or other federal laws C S 3 from a governmental entity or officer or employee of a governmental entity to identify cognizable claims The court is authorized to dismiss the petition in whole or in part if it is frivolous is malicious fails to state a cause of action seeks monetary relief from a defendant who is immune from such relief or fails to state a claim upon which relief can be granted LSA S 1188 R 15 In addition LSAR 15 provides A S 1184 B The court on its own motion or on the motion of a party shall dismiss any prisoner suit if the court is satisfied that the action is frivolous is malicious fails to state a cause of action seeks monetary relief from a defendant who is immune from such relief or fails to state a claim upon which relief can be granted If the court makes a determination to dismiss the suit based on the content or lack thereof of the petition the court may dismiss the underlying claim without exhaustion of administrative remedies first requiring the The court on its own motion may raise an exception of improper venue and transfer the suit to a court of proper venue or dismiss the suit In the instant case in recommending dismissal of Mr Mormon suit s the district court commissioner gave the following reasons After review it is clear that the Petitioner is presently serving the 20 year sentence and this suit for damages is predicated on his successfully overturning his conviction and sentence which he apparently seeks to have this Court order In other words in this suit the Petitioner is actually contesting the validity of his original conviction and seeking to have that overturned based on what appears to be ineffective assistance of counsel and discrimination in the prosecution and selection of the jury by the District Attorney This Court has no jurisdiction over this claim because according to the petition the Petitioner was not convicted in East Baton Rouge parish but in the 22nd Judicial District Court P Cr in Covington Louisiana Art 924 of the C mandates all post conviction complaints contesting the validity of a conviction be filed in the parish of conviction Further any action for wrongful conviction must first be predicated on the s Louisiana Revised Statute IS 1188 provides in pertinent part A The court shall review before docketing if feasible or in any event before service on the defendants a petition in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity On review the court shall identify cognizable claims or dismiss the petition or any portion of the petition if the petition is frivolous is malicious fails to state a cause of action seeks monetary relief from a defendant who is immune from such relief or fails to state a claim upon which relief can be granted 4 reversal of the conviction by the proper court which is not the 19th Judicial District Court in this instance This Court does not sit as the appellate court of decisions and actions by other district courts of this state Nor does it have original jurisdiction over delictual or civil rights actions that allegedly arose in another Parish The Petitioner remedy s is either by direct appeal writs or post conviction relief all required to be filed in the courts having jurisdiction in or over the 22nd Judicial District This Court simply has no jurisdiction to overturn the Petitioner outofparish conviction s or to make any findings with regard to the monetary claims made herein Footnote omitted We agree The Supreme Court made it clear in Heck v Humphrey 512 U 477 114 S 2364 129 L 383 1994 that the S Ct 2d Ed principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to the 42 U A C S 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement and such a complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated Heck v Humphrey 512 U at S 48687 114 S at 2372 See also ElMumit v Fogg 542 So 149 150 Ct 2d 51 La App 1 Cir 1989 Mr Mormon further asserts on appeal that the district court ruling s was in error because 1 the filing was never a postconviction and 2 the court had no jurisdiction over the motion but yet they ruled on it As to the latter we find no merit in the assertion it is the duty of a court to examine subject matter jurisdiction sua sponte even when the issue is not raised by the litigants McGehee v CityParish of East Baton Rouge 20001058 p 3 La App 1 Cir 9 809 So 258 260 In this case 01 12 2d the district court did not rule on the merits of Mr Mormon motion s 5 rather it ruled that under the governing laws the 19th Judicial District Court was not authorized to hear the claims asserted by the plaintiff Mr Mormon remaining contention i that the filing was never a s e postconviction is likewise without merit It is wellsettled in the jurisprudence of this state that a pleading is governed by its substance rather than its caption pleadings should be construed for what they really are not for what they are erroneously designated Belser v St Paul Fire Marine Insurance Company 542 So 163 165 66 La App 1 Cir 1989 2d also Union Service See Maintenance Co v Powell 393 So 94 96 La 2d 1980 State ex rel Lay v Cain 961247 p 3 La App 1 Cir 2 97 14 691 So 135 137 stating In all fairness to the trial court we realize that 2d analyzing pro se pleadings is sometimes as easy as catching a greased snake with your bare hands We are also aware that a pleading nature is s determined by its substance and not its caption Draten v Winn Dixie of Louisiana Inc 94 0767 La App 1 Cir 3 652 So 675 676 95 2d Bryant v Middlebrooks 486 So 188 190 La App 1 Cir 1986 2d To initiate this litigation Mr Mormon filed a document entitled Motion for Supervisory Negligence which enumerated acts of racial discrimination that were allegedly committed during the 22nd Judicial District Court criminal proceeding resulting in his conviction and 4 Although not assigned as error or addressed in his appellate brief we note that Mr Mormon made two additional claims in the district court 1 that LSAR 15 provides a basis for S 572 8 jurisdiction in the district court and 2 that he is entitled to the appointment of counsel to represent him with respect to his claims Neither of these contentions has merit Louisiana Revised Statute 15 provides a cause of action for compensation for a person convicted of a 8 572 crime who has served at least part of his sentence but who is proven to be factually innocent of the crime and whose conviction has been reversed or vacated Therefore Mr Mormon is not entitled to bring suit based on this statute since his conviction has not been reversed or vacated and he has not proven that he is factually innocent With respect to Mr Mormon s claim for appointment of counsel there is no Constitutional requirement that states provide an indigent prisoner counsel to pursue post conviction remedies See Pennsylvania v Finley 481 S U 551 107 S 1990 95 L 539 1987 United States v MacCollom 426 U 317 Ct 2d Ed S 96 S 2086 48 L 666 1976 Ross v Moffitt 417 U 600 94 S 2437 41 L Ct 2d Ed S Ct 2d Ed 341 1974 incarceration Mr Mormon alleged that he had suffered personal injuries as a result of these actions and asked the court to award him 7 million in 4 compensatory and exemplary damages included Authorities cited in his motion Title VII 1981 Discrimination Law the 6th Amendment the 14th Amendment and the Civil Rights Act Mr Mormon also filed a document entitled Motion in Support of Certificate of Appealability in which he outlined additional assertions of impropriety connected with his criminal conviction and concluded with the following statement Petitioner prays this Honorable Court will rule according to the law on constitutional violations grant Petitioner motion vacated sic s and set aside conviction and release Petitioner with credit for time served said Thus Mr Mormon by means of the pleadings filed in this suit has asked the district court to compensate him for a violation of his civil rights reverse his criminal conviction and release him from prison Regardless of what Mr Mormon has denominated the pleadings in which this relief was sought the court must evaluate his right to pursue the relief request visavis the court jurisdiction and the applicable laws As to s Mr Mormon claim for damages as pointed out hereinabove he is only s entitled to sue for damages after his conviction has been reversed In order to have a criminal conviction reversed a person convicted of a crime may in state court either appeal the conviction in accordance with LSAC art P Cr 911 et seq apply for a writ of habeas corpus as set forth in LSAC P Cr art 351 et seq or apply for post conviction relief pursuant to LSA P Cr C art 924 et seq An appeal or an application for post conviction relief must be filed in the judicial district court where the conviction was 5 An application for post conviction relief means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside LSAC art 924 P Cr Fi obtained See LSAC arts 914 and 925 An application for a writ of P Cr habeas corpus must be instituted in the parish where the person is incarcerated See LSAC art 352 Mr Mormon was not convicted nor P Cr is he incarcerated in East Baton Rouge Parish therefore the 19th Judicial District Court having jurisdiction only over East Baton Rouge Parish is not an appropriate court for Mr Mormon to have his conviction overturned Accordingly we conclude the district court did not err in dismissing Mr Mormon suit s CONCLUSION For the reasons assigned herein the judgment of the district court dismissing the suit of Jesse L Mormon is affirmed All costs of this appeal are to be borne by the plaintiffappellant Jesse L Mormon AFFIRMED 0
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