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COLDMAN v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, 2013 CA 1313. (2014)

Court: Court of Appeals of Louisiana Number: inlaco20140321233 Visitors: 6
Filed: Mar. 21, 2014
Latest Update: Mar. 21, 2014
Summary: NOT DESIGNATED FOR PUBLICATION CRAIN, J. Floyd Coldman, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (the Department), appeals a judgment of the district court dismissing his petition for judicial review for failure to timely seek judicial review. We affirm. Section 325 of Title 22, Part I of the Louisiana Administrative Code (LAC), outlines the rules and procedures to be followed in formally addressing inmate complaints in adult institutions in Louisi
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NOT DESIGNATED FOR PUBLICATION

CRAIN, J.

Floyd Coldman, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (the Department), appeals a judgment of the district court dismissing his petition for judicial review for failure to timely seek judicial review. We affirm.

Section 325 of Title 22, Part I of the Louisiana Administrative Code (LAC), outlines the rules and procedures to be followed in formally addressing inmate complaints in adult institutions in Louisiana. As of April 20, 2002, the LAC requires inmates to use the procedure set forth therein, the two-step Administrative Remedy Procedure (ARP), before they can proceed with a suit in federal or state court. LAC 22:I:325(A) (2002); Dickens v. Louisiana Correctional Institute for Women, 11-0176 (La. App. 1 Cir. 9/14/11), 77 So.3d 70, 74.

Louisiana Revised Statute 15:1177A provides that an offender aggrieved by an adverse agency decision may seek judicial review "within thirty days after receipt of the decision." The thirty-day period provided by Section 1177A is peremptive. Scott v. Travis, 09-1648 (La. App. 1 Cir. 5/7/10), 2010WL1838807, p.3; Carter v. Lynn, 93-1583 (La. App. 1 Cir. 5/20/94), 637 So.2d 690, 691. Peremption is a period of time fixed by law for the existence of a right. La. Civ. Code art. 3458. A peremptive period may not be renounced, interrupted, or suspended. La. Civ. Code art. 3461. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. Civ. Code art. 3458. Thus, if an offender fails to seek judicial review in the district court within thirty days after receiving the adverse agency decision, his right to relief ceases to exist, and the reviewing court lacks jurisdiction. See Scott, 2010WL1838807 at p.3; Carter, 637 So. 2d at 691; Tatum v. Lynn, 93-1559 (La. App. 1 Cir. 5/20/94), 637 So.2d 796, 797.

The record contains a document signed by Coldman in which he acknowledges receiving the Department's second-step response denying the relief he requested under the ARP on October 24, 2011.1 This suit, docketed as number 610,796, was instituted when Coldman filed a petition for judicial review in the district court in February 2012.2 Thus, the record supports the district court's determination that this suit, filed outside the thirty-day peremptive period provided by Section 1177A, is untimely and the district court lacked jurisdiction to consider the perempted claims.

Coldman argues that review of the timeliness of suit number 610,796 is complicated by a prior suit docketed as number 592,333, which was premised on the same underlying complaint. The record of suit number 592,333 is not a part of the appellate record before us. However, Coldman explained to the Commissioner assigned to this suit (number 610,796) and explains in his brief that he filed the petition for judicial review that was docketed as number 592,333 because the Department failed to timely consider his request for second-step review. Coldman maintains that he was entitled to judicial review when he filed suit number 592,333, pursuant to Section 325 of Title 22, Part I of the LAC, which provides that expiration of the Department's 90-day response time limits entitles offenders to move on to the next step in the review process. However, Coldman explains that the Commissioner assigned to that case ordered him to amend the petition for review in suit number 592,333, to seek mandamus relief compelling the Department to respond to his second-step request. He further explains that after several months of inactivity, he filed a motion to proceed with the petition for review and to withdraw the request for mandamus, but that motion was disregarded.

According to Coldman, the Commissioner assigned to suit number 592,333 recommended that the Department consider the merits of Coldman's second-step request, and based on that recommendation, the Department issued the second-step response that Coldman acknowledged receiving on October 24, 2011. He contends that he filed a motion to stay that proceeding, but received no response. Then, after the Department's second-step response had been issued, a judgment was signed ordering the Department to consider and rule on Coldman's second-step request within fifteen days, and dismissing suit number 592,333. Coldman states that he received the judgment in suit number 592,333 on December 15, 2011.

Coldman argues that the Department's second-step response was "premature" because it was issued prior to rendition of judgment in suit number 592,333. However, when the Department did not issue a new second-step response after that judgment was rendered, Coldman filed a new petition for judicial review, which instituted the suit from which this appeal arises (number 610,796). Coldman contends that the Department has benefitted by the district court's judgment dismissing, rather than staying, his petition for judicial review in suit number 592,333, and also by having its "premature" second step response accepted.

Coldman directs our attention to jurisprudence holding that inmates are entitled to judicial review when the Department has blatantly failed to follow its own procedural rules, thereby blurring departmental deadlines to the extent that the administrative remedies are no longer applicable. See Sims v. Wackenhut Health Services, Inc., 97-1147 (La. App. 1 Cir. 2/20/98), 708 So.2d 1140, 1142-43, writ denied, 98-0747 (La. 5/1/98), 718 So.2d 417. However, pursuant to Louisiana Code of Civil Procedure article 2164, this court must render its judgment upon the record on appeal. Although Coldman requested that the district court take judicial notice of suit number 592,333, it did not do so and that suit record is not a part of the record on appeal presently before us. As an appellate court, we have no jurisdiction to review evidence that is not contained in the record on appeal, and we cannot receive new evidence. Neimann v. Crosby Development Co., L.L.C., 11-1337 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044. Additionally, this court is precluded from taking judicial notice of a suit record from another court. Pinegar v. Harris, 06-2489 (La. App. 1 Cir. 5/4/07), 961 So.2d 1246, 1249.

The record before us contains no evidence regarding the Department's alleged manipulation of procedural rules.3 Rather, the record reflects that Coldman received the Department's second-step response on October 24, 2011 and did not seek judicial review of that decision until February 2012, outside the thirty-day peremptive period provided by Section 1177A. Therefore, we find no error in the judgment of the district court dismissing Coldman's petition for judicial review.

For the foregoing reasons, the district court's May 8, 2013 judgment is affirmed. This memorandum opinion is issued in compliance with Uniform Rules — Courts of Appeal Rule 2-16.1B. Costs of this appeal are assessed to Floyd Coldman.

AFFIRMED.

FootNotes


1. Coldman's underlying complaint is that in July 2009, his prison job was changed without reason to one with lower incentive wages, and that he was not afforded the opportunity to challenge the loss of incentive wages.
2. The "mailbox rule" applies in cases involving pro se inmates seeking judicial review, and a document is considered "filed" when it is delivered to prison officials for forwarding to the district court. See Tatum, 637 So. 2d at 799. In this case, Coldman did not sign his petition for judicial review until February 7, 2012. It was thereafter forwarded to the district court and file stamped by the clerk of court's office on February 24, 2012.
3. Coldman also has represented that a judgment was rendered in suit number 592,333, which dismissed that suit. Again, that alleged judgment is not a part of this record, nor is it reviewable in this appeal. Thus, even if this court had before it the record of suit number 592,333, and agreed with Coldman's arguments, we would be unable to alter that judgment.
Source:  Leagle

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