William Pogue VS Burl Cain, Warden, Louisiana State Penitentiary, Ms. Menser, Ms. Strickland, Records Analyst; Trish Foster and James Leblanc, Secretary, Department of Corrections
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1523 WILLIE POGUE SOTER F 199791 VERSUS D ANALYST MS MENSER MS STRICKLAND MS TRISH DEPT OF CORRECTION WARDEN BURL CAIN ET AL Judgment Rendered March 25 2011 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 573 400 Honorable R Michael Caldwell Judge EWWWWWW3 Willie Pogue Angola LA In Proper Person Plaintiff Appellant Terri L Cannon Attorney for Angola LA Defendants Appellees Louisiana Department of Public Safety and Corrections et al BEFORE CARTER C GAIDRY AND WELCH JJ J WELCH J Willie Pogue an inmate in the custody of the Louisiana Department of Public Safety and Corrections the Department confined to the Louisiana State Penitentiary in Angola Louisiana appeals a judgment of the district court that dismissed his petition for judicial review without prejudice for failure to exhaust his administrative remedies and that denied his request to amend his petition to raise a claim for monetary damages We affirm Willie Pogue was convicted of a crime and sentenced to twentyfive years in the custody of the Department He was thereafter adjudicated a habitual offender and sentenced to sixty years in the custody of the Department The minutes of the sentencing court reflect that Willie Pogue original sentence was vacated when the s habitual offender sentence was imposed As a habitual offender Willie Pogue is not eligible to earn good time Willie Pogue contends however that in the sentencing transcript his original sentence was not vacated therefore his original sentence is in effect See State v Fisher 628 So 1136 1 n La App 1 Cir 1993 writs denied 2d 138 l 940226 940321 La 5 637 So 474 and 476 holding that when there is 94 20 2d a conflict between the minutes and the sentencing transcript on an issue relative to sentencing the transcript controls and State v Jackson 95423 p 6 La App 5th Cir 11 665 So 467 469 holding that if a sentencing court fails to 95 15 2d vacate the original sentence at the time of the sentencing of a defendant as a habitual offender the original sentence remains in effect and the subsequent sentence as a habitual offender is null and void Therefore Willie Pogue sought to have the Department recognize his eligibility for good time under his original sentence A complete sentencing transcript is not contained in the record before us There is however one unidentified page of what appears to be part of the sentencing transcript but appears to be only the end of the sentencing court statements s 0 The records office refused to correct his master prison record and allow him to earn good time Willie Pogue then filed on December 12 2008 this petition for judicial review of an unidentified request for administrative remedy However at the time Willie Pogue filed the petition for judicial review ARP he had not filed an ARP with the Department with regard to this issue Rather it appears that he filed the ARP on January 25 2010 almost a year and a half later while this proceeding was pending On May 25 2010 the commissioner assigned to the matter issued a recommendation that the petition be dismissed without prejudice The commissioner noted that the petition raised a time computation issue concerning good time credits which must administrative remedy procedure first CARP be raised through the corrections La R 1 et seq and that S 5 1171 claims by inmates who have not exhausted the available administrative remedies on claims falling within the scope of CARP must be dismissed without prejudice Since Willie Pogue had failed to exhaust his administrative remedies with regard to this claim prior to filing suit the commissioner recommended that the suit be dismissed without prejudice Additionally the commissioner noted that Willie Pogue requested that he be allowed to amend his petition to raise a claim for monetary damages The commissioner noted that allowing the amendment would create a jurisdictional conflict as a request for judicial review is heard on the appellate jurisdiction of the district court while a claim for damages is heard on its original jurisdiction Noting that La R 15 does not allow actions for damages to be raised in a S 1177 C request for judicial review but rather must be filed separately as a civil action in the parish where the prisoner was housed when the cause of action arose La R S F 184 1 15 the commissioner recommended that the request to amend the petition be denied 3 After considering the entire record of the proceedings on June 16 2010 the district court adopted the commissioner recommendation and rendered judgment s denying Willie Pogue request to amend his petition for judicial review to raise a s claim for monetary damages and dismissing the petition without prejudice for failing to exhaust administrative remedies After a thorough review of the record of these proceedings we find no error in the judgment of the district court and affirm the district court judgment in compliance with Uniform Rules s Courts of Appeal Rule 2 16 4 and S A 2 All costs of this appeal are assessed to the plaintiffappellant Willie Pogue AFFIRMED Ll
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