Charles Kenneth Wallace VS Louisiana Department of Public Safety & Corrections
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2017 CA 0287 CHARLES KENNETH WALLACE, SR. VERSUS LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS Judgment rendered: SEP 2 8 2017 On Appeal from the Nineteenth Judicial District Court In and for the Parish ofEast Baton Rouge State of Louisiana No. C643187, Sec. 24 The Honorable R. Michael Caldwell, Judge Presiding Charles Kenneth Wallace, Sr. Plaintiff/Appellant David Wade Correctional Center In Proper Person Homer, LA Susan Wall Griffin Attorney for Defendant/Appellee Baton Rouge, LA Louisiana Department of Public Safety & Corrections BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ. HOLDRIDGE, J. Charles Kenneth Wallace, Sr., a prisoner in the custody of the Louisiana Department of Public Safety and Corrections ( DPSC), appeals the trial court's dismissal of his 42 U.S.C. ยง 1983 claim as frivolous and for failure to state a claim upon which relief can be granted pursuant to La. R.S. 15:1184. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY On May 12, 2015, Wallace, who was housed at the David Wade Correctional Center, initiated the two-step administrative remedy procedure ( ARP) arguing that the no-smoking policy at the Correctional Center violated his rights of equal protection, freedom of religion, free speech, and freedom of association. On June 23, 2015, Wallace's ARP claim was denied on the grounds that " as an incarcerated offender, [ Wallace was] subject to the rules, regulations, policies, and procedures of the Louisiana Department of Corrections ... [ s ]moking is not a right nor is it a liberty of interest." After exhausting his administrative remedies, Wallace filed a petition for judicial review with the trial court in accordance with La. R.S. 15:1177, requesting that the trial court stop " any and all no-smoking rules, regulations, policies, statutes[,] etc., relative as applied to [ Wallace]." The record was reviewed by the 1 Commissioner, who issued a report concluding that Wallace failed to state a cause of action or cognizable claim pursuant to La. R.S. 15:1184 because he failed to raise a " substantial right" violation. Therefore, the Commissioner recommended that Wallace's appeal be dismissed without prejudice for failure to state a claim. 1 The office of the Commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. Stalder, 2003-2549 (La. App. 1 Cir. 10/29/04), 897 So.2d 112, 113 n.1. 2 Hakim-El-Mumit v. After a de novo review of the record, the trial court signed a judgment on October 20, 2016, dismissing the matter without prejudice. appeals. From this judgment, Wallace 2 We find the Commissioner' s report, which we adopt herein and attach as Appendix A" provides a correct analysis of the applicable law regarding Wallace's claim. Accordingly, after a thorough de nova review of the record, we conclude that the trial court properly dismissed Wallace's petition for judicial review. We issue this summary opinion in accordance with the Uniform Rules- Courts of Appeal, Rule 2-16.2(A)(2), ( 5), ( 6), and ( 10). The judgment of the trial court is hereby affirmed. Charles Kenneth Wallace, Sr. is to pay all costs of this appeal. AFFIRMED. Appendix A" CHARLES KENNETH WALLACE DOC # 093248 vs. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS NUMBER C643, 187 SECTION: 24 19rH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA COMMISSIONER' S REPORT The Petitioner, an inmate in the custody of the Department of Public Safety and Corrections filed this suit, appealing the secretary's denial of Administrative Remedy #DWCC-2015-444. Pursuant to law, this Report is issued for the Court's 2 We note that Wallace did not comply with Uniform Rules-Courts of Appeal, Rule 2-12.4., which requires that an appellant properly designate assignments of error in their brief. Despite the improper form of Wallace's brief, we will consider the merits of his appeal. 3 de novo consideration and adjudication, recommending the dismissal of the Petitioner' s claim for failure to raise a substantial right violation. ANALYSIS OF THE FACTS AND LAW The scope of this Court's review is limited by [ La.] R.S. 15:1177(A)(5) & 9), which states, in 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 petition 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 constitutional or statutory provisions; b. In excess ofthe statutory authority ofthe Agency; c. Made upon unlawful procedure; d. Affected by other error of law; e. 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 by Commissioner). NO CAUSE OF ACTION OR COGNIZABLE CLAIM BECAUSE NO SUBSTANTIAL RIGHT In this case, the Petitioner originally complained to the prison administration that the smoking ban, imposed on all inmates is a violation of constitutional rights. He asks this Court to reverse the Secretary' s decision and deem the no smoking implementation unconstitutional, require the department to give him access to tobacco smoking materials, and that he be provided approximately 4,632 cartons of various brands of cigarettes, and for compensation via punitive damages. 4 For reasons hereinafter set forth, the final decision must be affirmed because the Petitioner fails to state a cause of action or cognizable claim for any relief because he fails to set forth a " substantial right violation," a prerequisite to this Court's authority to overturn or modify any agency decision herein, and alternatively because the secretary's denial is neither arbitrary nor manifestly erroneous, but is in accord with the promulgated regulations of the Department. DETERMINATION OF SUBSTANTIAL RIGHT VIOLATION: As stated hereinabove, with regard to the appeal, pursuant to the restriction in subsection nine of [La.] R.S. 15:1177 ( A), this Court may only intervene or reverse and/or modify the Department's decision in this matter if a substantial right of the Petitioner has been prejudiced. The jurisprudence clearly shows that a substantial right is analogous to a due process right, in that it is limited to one in which the Petitioner has a " liberty interest", i. a right to or a right to be free e. from. 3 The due process clause does not protect against every change and conditions of confinement which has a substantial adverse effect upon a prisoner~" Sandin v. Conner, [ 515 U.S. 472,] 115 S.Ct., 2293, 2297 [ sic] [ 1995], citing Meachum v. Fano, 427 U.S. 215] 96 S.Ct. 253[ 2] [ 49 L.Ed.2d 451 ( 1976).] As long as the condition or degree of confinement to which the prison[ er] is subjected is within the sentence imposed upon him and is not otherwise violative ofthe Constitution, the due process clause does [ not] in itself subject an inmate's treatment by prison[ er] authorities to judicial oversight.["] Haymes, [ 427 U.S. 236,] Montanye v. 96 S.Ct[.] [ 2543, 2547] [ sic] [ 49 L.Ed.2d 466 (1976).] Whether any procedural protections are due depends on the extent to which an individual will be ['] condemned to suffer, grievous loss'." Morrissey v. Brewer, [ 408 U.S. 471, 481,] 92 S.Ct. [ sic] 2593 [ 2600, 33 L.Ed.2d 484] ( 1972)[.] 3 See Sandin v. Conner, 115 S.Ct. 2293 ( 1995)[.] 5 Consequently, this appeal should be dismissed for reasons hereinabove stated. COMMISSIONER' S RECOMMENDATION Therefore, after a careful consideration of the Petition and all attachments thereto and finding that the Petitioner fails to present a substantial right violation, and thus fails to state a cause of action or cognizable claim for which relief can be granted, it is the recommendation of this Commissioner that this appeal be dismissed at the Plaintiffs cost in a~cordance with [La.] R.S. 15:1178 and that the claim for damages not be as part of the appeal, or alternatively dismissed without prejudice for failure to state a claim pursuant to [ La.] R.S. 15:1184. Respectfully recommended this 261h day of September, 2016, at Baton Rouge, Louisiana. QUINTILLIS K. LAWRENCE /s/ COMMISSIONER, SECTION B NINETEENTH JUDICIAL DISTRICT COURT 6
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