Ricardo Carmouche VS Burl N. Cain, Warden, Louisiana State Prison; James Leblanc, Secretary of the Department of Public Safety & Corrections, Kevin Benjamin, Perry Stagg, Captain P. Dixon, Lieutenant Landry, Lieutenant Dupas, Master Sergeant Dunbar and Medical Director
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0192 RICARDO CARMOUCHE VERSUS BURL N CAIN WARDEN LOUISIANA STATE PRISON JAMES LEBLANC SECRETARY OF THE DEPARTMENT OF PUBLIC SAFETY CORRECTIONS KEVIN BENJAMIN P RRY STAGG CAPTAIN P DIXON LIEUTENANT LANDRY LIEUTENANT DUPAS MASTER SERGEANT DUNBAR AND MEDICAL DIRECTOR Judgment Rendered September 21 2012 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 599 807 The Honorable William A Morvant Judge Presiding Ricardo Carmouche PlaintiffAppellant Angola Louisiana pro se Terri L Cannon Counsel for DefendantAppellee James LeBlanc Secretary Louisiana State Penitentiary Angola Louisiana BEFORE CARTER C GUIDRY AND GAIDRY JJ J 4 ze z 5P 1 C 4 A C GAIDRY J This is an appeal of the judicial review by the Nineteenth Judicial District Court of a claim raised by an inmate of Louisiana State Penitentiary for inadequate medical treatment or deliberate indifference to a LSP diabetic condition For the following reasons we affirm the decision by the Nineteenth JDC to dismiss the appellant spetition without prejudice FACTS AND PROCEDURAL HISTORY The appellant Ricardo Carmouche applied for an Administrative Remedy Action ARP on or about November 3 2010 for the alleged failure of Warden Burl Cain and other staff of LSP to give him an adequate m p snack which is medically necessary to sustain Mr Carmouche when his blood sugar level drops due to his diabetic condition He originally requested monetary damages that the prison medical director issue a clear s definition of what a p snack is to be that the kitchen of LSP conform to m that definition when preparing p snacks and that qualified employees m prepare the p snacks m Mr Carmouche ARP was denied in its initial review by LSP in s December of 2010 The reasons for denial were that LSP verified with Captain P Dixon the Main Prison Kitchen Supervisor that all of Mr smeals and p snacks were prepared to his specific dietary Carmouche m needs Capt Dixon learned that Mr Carmouche sdietary needs had slightly changed and his meals were changed accordingly Seeing that Mr Carmouche had insufficient evidence to substantiate his claims his ARP was denied Mr Carmouche applied for his second step ARP on December 23 2010 with the same list of complaints and requested remedies Mr Carmouche subsequently dropped his request for monetary damages 2 That application was also denied by LSP Headquarters The reason given is that Mr Carmouche sspecific dietary needs were investigated and adjusted and no further remedy was necessary Mr Carmouche then sought judicial review with the 19 JDC filing his petition on February 28 2011 A Commissioner sreport was filed on September 13 2011 with the following recommendation t I is the recommendation of the Commissioner that this administrative appeal be dismissed without prejudice because it involves a claim for adequate medical treatment based on allegations of injury to the Petitioner medical condition and s pursuant to R 15 it is improperly filed S 1177C on the Uniform Petition for judicial review under this Court appellate jurisdiction rather than filed s as an ordinary suit in the Court of exclusive venue for such claims The 19 JDC accepted the Commissioner report and rendered s judgment on October 21 2011 according to the recommendation Mr Carmouche filed a motion for appeal on November 21 2011 which was granted on December 12 2011 ASSIGNMENT OF ERROR The trial court erred when it adopted the s Commissioner recommendation to dismiss the Petition for Judicial Review based on improper mandatory venue wrong format and as being a tort claim STANDARD OF REVIEW Louisiana Revised Statue 15 states 9 A 1177 The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings inferences conclusions or decisions are The office ofthe Commissioner of the Nineteenth Judicial District Court was created by La R 13 to hear and recommend disposition of criminal and civil proceedings S 711 arising out of the incarceration of state prisoners The Commissioner swritten findings and recommendations are submitted to a district court judge who may accept reject or modify them LA R 13 S 713 5 C N a In violation of constitutional or statutory provisions b In excess ofthe statutory authority of the agency c Made upon unlawful procedure d Affected by another error of law e Arbitrary or capricious or characterized by abuse discretion or clearly unwarranted exercise of discretion of f Manifestly erroneous in view of the reliable probative and substantial evidence on the whole record 9 A 1177 15 gives the standard of review by which the 19 JDC would review the administrative decision of LSP While being mindful of all the factors factor e appears most relevant to Mr Carmouche sclaims However the court dismissed his claim based on improper venue This issue raised in Mr Carmouche ssole assignment of error is not a factual dispute but rather a legal one We must therefore decide in this appeal whether or not legal error has been committed See Starks v American Bank Nat Assn 2004 1219 p 2 3 La App 3 Cir 5 901 So 1243 05 4 2d 1245 The de novo standard of review is applicable in a case involving the granting of an exception of improper venue Cyprien v Board of Sup rsof University ofLouisiana System 20051247 p 5 La App 4 Cir 1 10 07 950 So 41 44 While we recognize no exception for improper venue was 2d filed by either party the same standard of review would apply when the court dismisses a case for improper venue on its own motion DISCUSSION The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose Peterson v Hanson 2003 1448 p 4 La App 1 Cir 9 897 So 32 34 citing La 15 If Mr 04 17 2d SF R 1184 P C LaArt 121 states When an action is brought in a court of improper venue the court may dismiss the action or in the interest of justice transfer it to a court of proper venue 4 See McLean v Majestic Mortuary Services Inc 2012 WL 1867614 p 6 La App 5 Cir 5 12 22 3d So saction is delictual in nature the proper venue for the action Carmouche would be in the parish of West Feliciana the 20 JDC where LSP is located and where the alleged damage occurred to Mr Carmouche Mr Carmouche seems to rely upon La 15 for filing his SA R 1177 claim in the parish of East Baton Rouge but the use of the statute in relation to tort actions has been ruled unconstitutional as it divests district courts of their original jurisdiction over tort actions See Pope v State 992559 p 6 La 6 792 So 713 716 717 This problem of constitutionality is 01 29 2d rectified by La 15 which states S 184 R 1 F F The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose In Louisiana legal responsibility in tort claims is determined under a duty risk analysis which requires the plaintiff to prove four distinct elements 1 duty 2 breach 3 cause in fact and 4 actual damages Becnel v Grodner 2007 1041 p 3 La App 4 Cir 4 982 So 891 08 2 2d 894 In Mr Carmouche ARP he recites a duty owed to him by LSP s namely that they provide him a proper p snack according to his personal m dietary needs He then recites a breach of that duty when LSP refused to provide him a proper p snack Mr Carmouche alleges in his ARP that m this refusal by LSP to give him the proper p causes him to become m hypoglycemic where he allegedly suffers insulin shock along with mental and physical incapacity throughout the night On the face of his complaint without commenting on the veracity of the allegations Mr Carmouche pleads all four elements of a delictual claim S A R 1177 La 15 states in pertinent part A Any offender who is aggrieved by an adverse decision excluding decisions relative to delictual actions for injury or damages by the Department of Public Safety and Corrections or a contractor operating a private prison facility rendered pursuant to any administrative remedy procedures under this Part may within thirty days after receipt of the decision seek judicial review of the decision only in the Nineteenth Judicial District Court or if the offender is in the physical custody of the sheriff in the district court having jurisdiction in the parish in which the sheriff is located 5 This court has previously ruled that despite what a plaintiff may call his claim in his petition it is the form of the unambiguously pleaded allegations that determine the true nature of the claim In Gallant Investments Ltd v Illinois Central Railroad Company 2008 1404 La App 1 Cir 2 7 So 12 the plaintiff claimed that a removal of spur 09 13 3d tracks caused unjust enrichment to the defendant and sued for equity However upon an examination of the allegations in the pleadings this court decided that the plaintiff had actually made a claim of conversion an action in tort The plaintiff was therefore not entitled to the equitable remedy afforded by a successful claim of unjust enrichment See Gallant at 18 19 In the instant case Mr Carmouche has applied for an administrative remedy provided under La 15 S R 1177 The statute can provide an appropriate remedy for any adverse decision made by the Department of Corrections or one of its contractors except for decisions relating to delictual actions Prisoner tort actions are governed by La 15 S 184 R1 F CONCLUSION By seeking judicial review from the 19 JDC Mr Carmouche has sought relief in the wrong venue The trial court rightly ruled to dismiss Mr spetition but without prejudice so that Mr Carmouche can file Carmouche his tort claim in the proper parish DECREE The Judgment of the 19 JDC in this matter dismissing the spetition for judicial review without prejudice is affirmed Costs appellant of this appeal are assessed to the appellant Ricardo Carmouche AFFIRMED 2
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