Nancy Abouelazm, Troy Albert, Barbara A. Allen, Michelle A. Allen, Kristie L. Anderson, Selina Anderson, Ericka Anthony VS Tyronne Jackson, State of Louisiana through Louisiana Department of Public Safety & Corrections, and Warden Mariana Leger (2013CA0011 Consolidated With 2013CA0012)

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NOT DESIGNATED FOR PUBLICA CION ATE 1 S OF LOUISIANt1 COURT OF APPEAL FIRST CIRCUIT 2013 CA O011 Consolidated with 2013 CA 0012 NANEY ABOUELAZM et al V ERSUS TYRONNE JACKSON STATF OP LOUISIANA THROUGH NA UISI DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS JVARDEN MARIANA LEGER AND MARIA V10RRIS JOCELYN DOUGLAS AND ALL OTHERS SIMILARLY SITUATED VERSUS TYRONNE JACKSON S OF LOUISIANA I TATE HROUGH LOUISIANA DEPAR OF PUBLIC SAI AND CORREC I TMEN ETY TIONS AND WARDEN MARIANA LEGER Judgment Rendered N 1 5 2Q13 V APPIiALED FROM HE E JUDICiAL DISTRICT COURT GHTEENTH IN AND FOR THE PARISH OF IBERVILLE STATE OF LOUISIANA DOCKET NUMBER 66 D B 532 VISION CONSOLIDATED WITH DOCKE TNUMBER 67 DIVISION C 121 HONORABLE J ROB E JUDGF NFR x jC c The petitioner name is variously spelled Naney and also Nancy We have chosen to usc s the version from the ariginal petition COUNSEL OF RECORD Donna U Grodner Charlotte M MeGehee Baton Rouge Louisiana Attorneys for I Appellees laintiffs Naney Abouelazm Troy Albert Barbara A Allen Michelle A Allen Selina Anderson Kristie I Anderson and Ericka Anthony es lan D Buddy Caldwell Attorney Cieneral and Kevin P Kleinpeter Attorneys for DefendanTslAppellants yronne Jackson State of Louisiana I through Louisiana Department of Public Safety and Corrections and Warden Tettleton Chase Mariana Leger and The Louisiana Stephen Babcock Special Asst Attorneys General Baton Rouge Louisiana Con Institute for Women Mariana Leger and The Louisiana BEFORE PETTIGREW McDONALD AND McCLENDON JJ 2 McDONALD J Defendants Appellants Louisiana Department of Public Safety and Corrections a warden and a state maintenance worker challenge a judgment in the Eighteenth Judicial District certifying a class action For the following reasons we reverse and remand On the evening of November 7 2007 a natural gas leak occurred at the Leo cell block at Louisiana Correctional Institute foi Women LCIW in Iberville Parish Repairs were initiated by an employee of LC1W I yronne Iackson who believing the repair was succe turned on the heaters and hot water heater sful However the following afternoon a smell of gas was again noticed Jackson again attempted repair and in the process a valve blew off causing a high pressure release of natural gas An employee of lberville Gas came to assist in the repair he 7 inmaYes of the Leo cell bloek were evacuated to the Capcieorn cel I block witl the exception of one intnate who suffered from asthma and was brought to the prison infirmary given inhalation therapy and released On May 20 2008 a petition for damages was filed on behalf of Nancy Abouelazm and approximately 290 other prisoners Defendants filed exceptions raising the objections of prematurity insufficiency of service of process and improper cu on October 23 2008 On November 7 2008 a hearing was nulation held on clefendants exceptions and a judgment was signed on November 24 2008 denying the exceptions of prematurity and improper cumulation The defendants sought writs and a stay of court proceedings until actio by the First Circuit Court l of Appeal was ordered On June 29 2009 a panel of this courl subsequently granted the writ in part as follows The distnct court erred in denying relator exception of improper s cumulation La S R 1184G 15 Accordingly the application is granted insofar as the district court November 24 2008 judgrnent is s reversed to the extent it denied that exception and judgment is rendered in favor of 1 Jackson and the State of Louisiana yronne 3 through the Department of Public Safety and Gorreclions granting the exception of improper cumulation Thr writ applica is denied in all ion other respects hereafter by I judgment dated July 9 2009 the district court judge ordered that all claims made by all plaintiffs other than tlie tirst nained plaintiff Naney Abouelazm be dismissed without prejudice Prioc to this action on October 29 200 plaintiffs fiiled a action petition for damages entitled Maria Morris class Jocelyn Douglas and all others similarly situated v Tyronne Jackson et aL A motion to certify class was filed on November 7 2008 This motion was not heard until February 4 2012 The plaintiffs filed a morion to consolidate tlle Abouelazm and Mon cases is which was heard by the district court on August 1 2009 The consolidation was granted and judgment was signed on August 26 2009 As noted the hearing on the certifcation of the class was on February 8 2012 Plaintiffs sought class certi on the issue of liability only fication After the hearing the court granted certification of the class for the issue of liability The defendants appeal this action asserting that the record does not contain any formation iiregarding how many of the affected prisoners complied with the administrative procedures set forth in La R 15 et seq the Cot7 S 1171 ections Administrative Remedy Procedure CARP Defendants note that in order to preserve any poten torl claim an ininate ial musl firsl initiate and exhaust the two administrative procedure established hy step CARP If a fails to pursue his claim administratively or exhaust his risoner administrative remedies he is deemed to have abandoned his claim and any subsequent lawsuit must be dismissed with prejudice I R 15 a S 1172 C Plaintiffs claim that these exact same issues were considered in a writ directed to this couctin February 2009 appealing class certiGcation and by the action responding to it on June 29 2009 wl is noled above We do not agree ich 4 with plaintiffs assessment 1 district court had cienied defendants exceptions he raising the objections of impro cumulation and prematurity to exhaust er failure administrative procedures by judgmeut signed November 24 2008 from which defendants sought supervisory review by wi The judgment was reversed and the it cumulation granted In all other respects thc writ was cxceptioi of denied See Mire v EatelCorp Inc 2002 2002 La App 1 Cir 1705 0737 improper was 03 9 5 849 So 608 writ denied 2003 ILa g55 So2d 317 2d 90 10 03 3 The plaintiffs allegedly numbering over 300 may be significantly reduced by Ihe deletion of all inmates who have not exhausted their administrative remedy Plaintiffs counsel submitted two CDs showing plaintiffs initiation of CARP While this CD evidence includes CARP claims by Naney Abouelazm and Joycelyn Douglas there was no evidence presented of a CARP claim by Maria Morris The number of those inmates who submitted claims as evidenced on the two CDs was significantly less than one hundred Louisiana Revised Statutes B 1171 15 requires an offender within the custody of the Department of Public Safety and Corrections to exhaust administrative remedies before filing suit on any cause of action See Dickens v Louisiana Correctional InsYitute for Women 201 I 0176 La A 1 Cir 9 77 So 70 74 Worachek v Stalder 2010 p 11 14 3d 75 0059 La App 1 Cir 6 l 1 10 unpublished writ denied 2010 La 8 67 1663 11 19 3d So 1242 The plaintiffs argue that CARP is inapplicable in tort or appellees delictual claims They could not be more wrong They cite Pope v State 99 2559 La 6 792 So 713 and other cases that support this position O1 29 2d fiowever these other cases were all decided prior to 2002 when the legislature amended La R 15 S 1177 Cand 15 in response to the decision in Pope B 1172 The pertinent language involves the review of prisoner claims after they have been denied in the CARP procedure n tort claims following the 2002 amendment the district court does not act as a court of review limited to a review of the CARP 5 record but as a court oC original jurisdiction However this does not relieve the prisoner of filing an adininistrative claim CARP first See Jackson v State 201 1 La App 1 Cir 3 9 So 391 396 vrit granted 2012 1716 12 23 3d 0912 La 6 90 So 1069 remanded to trial court to determine availability of 12 22 3d administrative remedy We also note that none ofthe cases cited apply to class actions Neither party has questioned or explained if a class action procedure is applied differently in a prisoner suit in which the filing of a CARP is a prerequisite to the filing of suit F3efore we decide how or if the issue we are considering har with a class action iY will be necessary for us to determine that the plaintiffs were pt operly certified as a class A class action is a nontraditional procedure that permits a representative to sue on behalf of and stand in judgn for a class of similarly situated persons ent with typical claims when the question is one of common interest to persons so numerous as to make it im to bring them all before the court Ford v racticable Murphy Oil 2913 A S U Inc 96 La 9 7Q3 97 2d So 542 544 Class certitication is purely procedural it is not necessary at this stage for tlie plaintiffs to prove the facts of the underlying cause of action T issue is whether the class he action is procedurally preferable When reviewing the dish court ruling ict s regarding class certification we do not consider whether plaintifPs claitns state a cause of action or have substantive merit Oliver v Orleans Parish School Bd 0489 2009 La App 4 Cir I 1 25 So 3d R9 96 writs denied 2009 09 12 2708 2009 La 328 So 1012 1013 2721 10 5 3d The class action certification procedure is govecned by Louisiana Code of Civil Procedure articles 591 597 The prerequisites for maintaining a elass action are found in La C art 591 and have generally been summariaed as P lerosity nu commonality typicality the adequacy of the representative parties to 6 protect lhe interests of the class and an objectively definable class ln addition to these tive elements the court must also consider the predomivance of common issues and the superiority of the class action procedura Oliver 25 So at 196 3d The general rule that if an error is to be made it should be in favor of and not against the maintenance of the class actiou does not obviatc the i that the courts einploy a rigorous analysis and take a close look at a case to determine if in fact the statutory requireinents have been satisfied bePore accepting it as a class action Doe v Southern Gyms LLC 2012 20 2012 1566 21580 1572 La 3i19 1 12 So 822 832 13 3d 833 To satisfy the numerosity requirement for class certification plaintiffs must establish that the members of the class ai so ntiimerous that joinder of those e members would be impracticable No set number of putative plaintiffs has been established in order to fulfiill the numerosity requirement for a class action Oliver 25 So at 198 n addition to the numbers of pulative class members numerosity 3d is based on considerations of judicial economy in avoiding a multiplicity of lawsuits 6nancial resources of class members and the size of individual claims Id We agree with the appellants that a detei7nination of the number of claimants who have fifed a CARP is imperative in satisfying thc numerosity requirement hat 7 deterrninarion was not done here A showing of commonality of questions of lati and fact among the ctass is the second prerequisite in certifying the class The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members Display South Ine v Graphics House Sports PromoYion Inc 2007 La App I Cir 6 992 So 0925 08 2d 510 518 writ not considered 2008 La 10 993 So 2d 1274 1562 08 7 he 1 thied prerequisite in certifying the class is typicality The element of typicality requires that the daims of the class representative be a cross section of or typical of the claims of the class members Oliver 25 So at 199 3d The test for detenr the exisYence of adequate representation in a class ining action consists ofthree elements 1 the claims of the class representatives cannot be antagonistic or conflict with those of other class tnembers 2 the class representative must have a sufficient interest in the outcome to ensure vigorous advocacy and 3 counsel must be competent experienced qualified and generally able t conduct the litigation vigorously Boyd v Allied Signal Ine o 1843 1841 1842 1843 2003 2003 2003 2003 La App 1 Cir 12 898 04 30 2d So 450 465 writ denied 2005 La 4 897 So 606 0191 05 1 2d The dctermination of whether a class action meets the require imposed ments by law involves a rigorous analysis Itrial court must evaluate quantify and weigh the relevant factors to determine to what extent the cla5s action would in each i promote or detract from the goals of effectuating substantive law stance judicial eand individual fairness McCastle v Rollins Environmental ciency Services of Louisiana nc 456 So 612 618 La 1984 Brooks v Union 2d Pacific R Co 2008 La 5 13 So 546 554 In so doing the trial 2035 09 22 3d court must actively inquire into every aspect of the case and should not hesitate to requir showings beyond the pleadings Id Our review of the transcript of the class certification hearing does not reveal rigorous a analysis by tlie trial court Although plaintiffs counsel contends that evidence o cach factor was introduced or offered into evidence we have no f evidence that the district court analyzed the tive requisite factor Arguably the issue of numerosity was the only one briefly addressed by the courl stating though s n it a lol of people do you have any seiious injuries here Defendants counsel responded the injuries and damages are nausea headaches 8 ess dizzii o which the court r ailyway if we are going to handle esponded But it it needs to be handled as a class in this n to get rid of all of it Basically atter that was the extent of the district court analysis There was no analysis of or s even reference to commonality typicality or adequate representation Plaintiffs maintain that the only issue before this court is numerosity the tirst of the live prerequisites for maintaining a class action However the Louisiana Constitution gives us supervisory jurisdiction over cases that arise withiil our district La Const art 5 10 Furthermore we may notice errors sua rte o cf tn any event we find the district court handling of the numerosity issue s insufficient to satisfy its duty We are also inindful that the burden of proof in the certification of a class is on the person bringing the action which in this case are the plaintiffs We find that the plaintiffs failed to meet their burden of proof he l motion to supE the record tiled by plaintiffs is denied as moot lemenL e Tl record we reviewed established that the certitication could not be maintained even with thc supplement After reviewing the record evideuce and jurisprudence we find that the class certitication hearing was noY legally or factually sufficient to establish a class We revet the district court decision and rea for further proceedings in se s and accorclance with this opinion Costs of this appeal plainti ffs appellees VERSED RI AND REMANDED 9 are assessed against

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