Gary Boudreaux VS Burl Cain, Warden

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NOT DESIGNATED FOR PUBLICATION U STATE OF LOUISIANA L COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0910 GARY BOUDREAUX VERSUS BURL CAIN WARDEN Judgment Rendered February 15 2012 x Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 603 295 The Honorable William Morvant Judge Presiding xx Gary Boudreaux Angola LA Appellant Plaintiff In Proper Person William Kline Counsel for DefendanUAppellee Louisiana Department of Public Safety Baton Rouge LA and Corrections BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J WHIPPLE C J t Petitioner Gary Boudreaux an inmate in the custody of the Department of Public Safety and Corrections the DepartmenY and housed at Louisiana State Penitentiary appeals from the dismissal without prejudice and without service of his request for judicial review of Discipline Board Appeal No LSP 0124 2011 W concerning petitioner scustody change to maximum custody as a result of his conviction for violating Prison Disciplinary Rules On July 8 2011 petirioner filed a petition for judicial review in the Nineteenth Judicial District Court contending that he was denied due process rights to a t The action was initially referred to a Commissioner fJair rial for review pursuant to LSA 15 and R 15 On August S R 1178 S 1184 1188 5 2011 the Commissioner issued a screening report recommending that s petitioner appeal be dismissed for failure to state a right substantial violation and thus for failure to state a cause of action for which relief is available pursuant to LSA 15 After de novo review of the SA R 1177 9 entire recard including the Commissioner screening report and petitioner s s timely filed traversal the district court rendered judgment on September 20 2011 adopting the recommendations set forth in the Commissioner screening s report and dismissing petitioner appeal without prejudice s Petitioner then filed the instant appeal It is well settled that a change of custody status is not atypical nor a significant hardship in relation to the ardinary incidents of prison life and does not prejudice an inmate substantial rights s See Sandin v Conner 515 U S Petitioner 1was originally charged with a violation of Rule 30E and was convicted of violating Rule 30C However the violation of Rule 30C was amended to reflect a violation of Rule 30W as it is a description of the conduct and not the rule number that determines the violation Given Z our ultimate holding herein we pretermit consideration of the issue of whether and under what circumstances the results of a polygraph examination can be introduced and used in an administrative proceeding 2 472 484 ll5 S Ct 2293 2300 132 L 418 1995 Parker v 486 2301 2d Ed LeBlanc 2002 La App l Cir 2 845 So 2d 445 446 Lav 0399 03 14 Porey 97 La App l Cir 12 727 So 2d 592 writ denied 1999 2903 98 28 2720 La 3758 So 2d 812 Alford v LeBlanc 2009 La App l 00 31 0666 Cir 10 unpublished 24 So 3d 1030 table Gusman v LeBlanc 09 23 1572 2010 La App l Cir 3 unpublished 58 So 3d 1152 table 11 25 Perrvman v LeBlanc 2010 La App l Cir 3125 unpublished 58 1649 11 o 3d 1153 table Williams v Department of Public Safety and Corrections 2301 2010 La App 1 Cir 6 unpublished Since the penalty imposed 11 10 in this case does not rise to the level of a substantial rights violation modification or reversal of the disciplinary action is not warranted See LSA S 1177 R 15 9 A As noted by the Commissioner in the screening report In this case the only penalty imposed was a custody level change The Petitioner does not assert facts to support a finding that he has a constitutional right in connection with either penalty whether as a matter o discipline or otherwise Ifact the final fJ n decision shows that the Petitioner was afforded a hearing and an appeal of the ruling to the Warden and the Secretary Considering the nature of the penalry and the fact that it does not affect the length of the Petitioner sentence ar present any other drastic s departure from expected prison life in a maximum security prison the Petitioner fails to set forth a substantial right violation which would authorize this Court to intervene and reverse the Agency s decision Consequently this Court is constrained by R S 1177A 15 to dismiss this appeal because it presents no cause of action After thorough review of the recard and relevant jurisprudence we agree with the district court screening judgment for the reasons set forth in the s sscreening report which we attach herein as Exhibit A and Commissioner adopt as our own Accordingly we affirm the judgment of the district court in accordance with Uniform Rules Courts of Appeal Rule 24 5 A 16 3 and 6 All costs of this appeal are assessed against petitioner Gary Boudreaux AFFIRMED 4 Exhibit A GARY BOUDREAUX NUMBER 603 SECTION 23 295 C Q 20 VS 19rH JUDICIAI DISTRICT COURT PARISH OF EAST BATON ROUGE LOUISIANA DEPARTM PUBLIC SAFETY CORRECTIONS ET AL STATE OF LOUISIANA S COMMISSIONER SCREENING REPORT The Petitioner an inmate in the custody of the Department of Public Safety and Corrections filed this suit for review of a prison disciplinary decision in DBA LSP W iz4 2oii seeking review in accordance with R i5 et seq Pursuant to R i5and R S 1i i S 11y8 S i5ii84 this Court is required to screen all prisoners suits as soon as practicable to 88 determine ifthe Peritioner states a cause of action or cognizable claim and whether the petition is frivolous malicious or seeks monetary damages from an immune defendant This screening report is issued on the petition and attachments alone based on a finding that there is no substantial right violation involved in this complaint This report is issued for the Court sde novo consideration and adjudication ofthis claim for relief ANALYSIS OF THE FACTS AND LAW The scope of this Court review is limited by R i5 9 which states in s S uT7 5 A pertinent part as follows 5 The review shall be conducted by the Court without a jury and shall be confined to the record The review shall be limited to the issues presented in the petirion for review and the administrative remedy request filed at the agency level 9 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 a In violation of consritutional or statutory provisions b In excess of the statutory authority ofthe Agency c Made upon unlawfiil procedure e Affected by other error of law d Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion or f Manifestly erroneous in view of the reliable probative and substantial evidence on the whole record Emphasis added According to the final appeal decision in LSP2oii attached to the petition the i24 Petitioner was found guilty of violating Rule 3oEof the Prison Disciplinary Rules The s Secretary final decision shows that after a hearing he was found guilty and penalized with a IIIIIIIIIIINIIIIII IIaIIIUIIIIaIIIIIIUIhII IIII EBR937462 19ih JUDICIAL DISTRICT COU custody change to maximutn security He was allowed to appeal to tTie Warden and Secretary who both denied any relief It is unknown if the Petitioner custody status has remained the s same or has since been changed again but that is irrelevant to the authority of this Court to intervene in this particular disciplinary decision The penalty of a custody change to maximum is authorized under the DepartmenYs Rules and Procedures found in Louisiana Administrative Code 22 et seq for l5tle i 34i reference Under the jurisprudence the penalty does not present a substantial right violation The Petitioner has no statutory or constitutional right to a particular housing or custody status Absent factual allegations supporting a substantial right violarion the Petitioner fails to state a cause of action because he does not meet the threshold requirement that would permit this court to intervene in the authority of the prison administration to enforce discipline and security at the prison In Louisiana prison officials are accorded wide latitude in the administration of prison affairs Only in extreme cases will courts interfere with the administration of prison regulations or disciplinary procedures 4 DETERMINATION OF A SUBSTANTIAL RIGHT VIOLATION As stated hereinabove in Subsection 9 of RS i5 this Court may intervene and A u reverse and modify the decision of the Agency in this matter only if substanrial rights of the or Petitioner have been prejudiced In this case because of the ordinary penalty imposed no substantial right has in fact been violated and therefore this Court has no authority to overturn the DeparhnenYs decision in this case For purposes of a Disciplinary Board Appeal following the Supreme Court decision in s Sandin v Conner infra the jurisprudence holds that a substantial right would be limited to one in which the Petitioner has aor due process interests liberty The due process clause does not protect every change in conditions of confinement which has a substantial adverse effect upon a prisoner 6 As long as the condition or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constiturion the due process clause does not in itself subject an inmate treatment by prison authorities s to judicial oversight 1 See the final decision attached to the petirion dated 3 ii io Id the final decision attached to the petition 3 See R 15 above also Sandin u Conner iig S 2293 1995 Lay u Porey 2 Sozd gg2 S ii 9 A Ct in Cir i998 4 Watts u Phelps 3 So2d i3i 1n Cir i995 See also Sanchez u Hunt 3z9 So2d 691 i976 i32o La Victorian v Stalder T7o So2d 39z iCir 2000 Lay u Rachel 76i So2d y23 is 2000 Major Cir 8 See Sandin u Contter ii5 S 2293 i995 Ct 6 Sandin v Connor iig S z293 1995 at 229 citing Meachum v Fano 96 S 2532 Ct Ct Montanye u Haymes 96 S 2 1976 at p z543 see also Hewiti u Helms io3 S 864 1983 Ct 543 Ct s 19th JUDICIAL DISTRICT COURT 2 Whether any procedural protections are due aepends on the eartent to wt an individual will be condemned to ich grievous suffer loss e In the case of Sandin v Conner the Supreme Court sought to clarify the proper analysis to determine liberty interests and due process rights of a prisoner in a disciplinary proceeding The Court specifically discussed the circumstances under which a prisoner wouId be enritIed to the protection of the due process clause in facing prison disciplinary charges The Sandin court held that no inmate has a consritutionally protected liberty interest in an ordinary disciplinary hearing ureless he suffers some atypical substantial hardship as a loss ofgood time or the such inuoluntary administration of psychotropic drugs lThe Courts stated that the type of Tiberty interest requiring some measure of due process by the State includes those interests in freedom fram restraint thaE impose unusually dfficuIt hardships on the inmate or a depariure dramatic fram basic conditions ire relation to the ordinary incidence of Iife prison Specifically even confinement to disciplinary segregation was held not to present the type of atypical significant deprivation which a state might conceivably create a liberty interest in l Consequently a custody change does not implicate the constitution or rise to the level of atypical punishment Ifthe punishment does not effect the date of eventual release such as a loss of good time would and is not a departure from expected maximum prison life due dramatic security process merely requires the prisoner to be given the opportunity to give his version of the incident12 He need not be allowed to present evidence cross examine witnesses etc In this case the Petitioner was appazently given a hearing together with the right to appeal to the Warden and to the Secretary Therefore his due process rights were more than satisfied Following the lead of the Supreme Court in Wolff v McDonneil 94 S 2963 i974 and Sandin Ct u Connor supra the First Circuit Court of Appeal has held confirmed that a custody change does not implicate the constitution or a substantial right After a thorough review of the record we find no error in the analysis or conclusions of the district court As recognized by the commissioner in her screening report in order for the district court to reverse or modi ythe decision of the DPSC Taylor had to first 8 Morrissey u Brewer 408 U 4 92 S 2593 1972 at p 2600 Si Ct 9 The Court stated that the mechanical liberry interest analysis suggested by Hewitt v Helms supra and following cases had confused the criteria to determine a liberty interest and resulted in encouraging inmates to comb the regulations for mandatory language while discouraging prison officials from publishing uniform rules and regulations for fear of crearing a liberly interest in their procedures See Sandin u Conner supra lo previous State case law based upon Federal jurisprudence had held that prisoners may have a protected liberty interest in not being confined to extended lockdown based upon mandatory language in a prison regularion or rule See Wallace u Tler 52y So2d io6i La Cir i988 citing McCrae v lst App Hankins 2o F2d 863 5th Cir i983 However the Supreme Court noted in Sandin that the prior due process analysis using the mandatory language criteria was improper and unworkable since Hewitt and the Court sought to set out a bright line for future decisions regarding Disciplinary Board appeals I6id Sandin atp a3os Sandin u Conner supra 3 Sandin u Conner supra 3 19th JUDICIAL DISTRICT COURT show how his substantial rights were prejudiced by the decision See Ia RS 9 A ii i5The imposition of 28 days cell confinement and a custody change from medium to maacimum is not unusual or a significant hardship in relation to the ordinary incidents of prison life and did not prejudice Taylor substantial rights Thus s modification oc reversal of the disciplinary action by the DPSC was not warranted under the law See Parker u Leblanc o2 fLa Ann ist Cir 2 8a So 2d nas nq o o ia m u Poreu q pp a La Ap ist Cir 12 727 SO 2d 592 oz God writ 2qo 48 28 denied sub nom Lau u First Circuit Court ofA no La fi 58 So zd peal 2 20 oo a 812 After a thorough review ofthe record we find no error in the analysis or conclusions of the district court As recognized by the commissioner in the screening report in order for the district court to reverse or modify the decision of the DPSC Alford had to first show how his substantial rights were prejudiced by the decision See La R i5The S ii 9 A disciplinary sentence of a loss of 24 weeks incentive wages and a custody change to maximum elockdown is not unusual or a significant hardship in relationto the ctended ordinary incidents of prison life and did not prejudice Alford substantial rights Thus s modification or reversal of the disciplinary action by the DPSC was not warranted under the law See Parker u Lebianc oz n 2 ist Cir 2 8aq So 2d a4 9v Anu o Ia l o i4 g46 Giles a Cain 99 p 6 f7La ist Cir 6 6z So zd a ao 1201 Apn 00l 2 We therefore affirm the screening judgment ofthe district court and issue this summary disposition in accordance with Uniform Rules ofAnueal Rule z Courts 2F and fbl Costs of this appeal are assessed to the appellant Lawrence 16sfA Alfords In addition the Fifth Circuit noted in the case of Madison u Parker io4 F3rd 65 5th Cir i99 that no liberty right is created by a change in the quality of confinement as opposed to the quantity thereof In the case of Clark u Rayborn the Sixth Circuit in applying the Sandin holding found that an inmate had no constitutionally protected liberiyinterest in an ordinary disciplinary hearing absent an atypical significant penalty and therefore had no right to complain It is dfficult to see that any other deprivation in the prison context short ofthose that clearly impinge on the duration ofconfireement will henceforth qualifyfor constitutionaI liberty status 16 Even assuming the lockdowns were punitive they do not present a dramatic departure from he basic conditions of his sentence SUMMARY In this case the only penalty nnposed was a custody level change The Petitioner does not assert facts to support a finding that he has a constitutional right in connection with either penalty whether as a matter or discipline or otherwise IN fact the final decision shows that the Petirioner was afforded a hearing and an appeal of the ruling to the Warden and the Secretary Considering the nature of the penalty and the fact that it does not affect the length of the Petitioner sentence s or present any other drastic departure from expected prison life in a maadmum security prison the See Taylor u Stalder iCir 2006 unpublished and attached hereto for reference S Alford u Lebianc WL 3465245 1PP i Cir unpublished and attached hereto 2oo9 i Orellana u Kyie 6g F3rd z9 3 5 i995 Ricks v Boswell i4q F3d ii9i CA io i99 Kansas 37 19th JUDICIAL DISTRICT COURT 4 Petitioner fails to set forth a substantial right violation which would authorize this Court to inteivene and reverse the Agency decision Consequendy this Court is constrained by R si S 77A ii 15 dismiss this appeal because it presents no cause of action SCREENING RECOMMENDATION After a careful review of the petition and attachments for the reasons stated hereinabove it is the recommendation of this Commissioner that the Petitioner appeal be dismissed without s service on the Deparhnent at AppellanYs cost in accordance with R i5 i5 S ii78 1184 and 88 9 11T7A 15 for failure to raise a substantial righY violation and thus to state a cause of action for which relief is available I note that Burl Cain a listed defendant must be dismissed by judgment from this suit as RS makes the only proper defendant in a disciplinaryboazd appeal b i 7A 7 11 15 or ARP the Department of Corrections Respectfully recommended this 5 day of August 2oii in Baton Rouge Louisiana RAC P GAN COMMISSIO SECTION A NINETEENTH JUDICIAL DISTRICT COURT AYAC IFr1H4TONTHiSC R CRDE EPIT CPJ Ii 1 a Cf ipp f rri c c Y Mr i o 4T 3 1pILED S i ED TO u r h OF i L0 F COURT DY CLERK COMMISSIOi1ER CT SEC A r pA ppi Ai ID 1GNED THIS Z0 fn 1 P f t I rr7 i J e See R is u77 A S 9 3 19th JUDICIAL DISTRICT COURT 5

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