NOT DESIGNATED FOR PUBLICATION

KUHN, J.

Plaintiff-appellant, Ricky Carthan, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a district court judgment that affirmed DPSC's decision and dismissed his petition for a writ of mandamus and declaratory relief. Finding that Carthan has failed to exhaust administrative remedies, we vacate the district court's judgment affirming the decision of DPSC and dismiss his appeal.

In 1998, after a Beauregard Parish jury convicted Carthan on various felony charges, he was ultimately sentenced to life imprisonment as a fourth-felony offender as defined in La. R.S. 15:529.1. The legislature subsequently passed La. Acts 403 of the 2001 Regular Session and La. Acts 45 of the 2002 First Extraordinary Session, which collectively reduced sentences for certain specifically enumerated crimes (the ameliorative penalty provisions) and created the Risk Review Panel. See La. R.S. 15:308C and La. R.S. 15:574.22, prior to August 1, 2012.

On September 17, 2012, Carthan filed this petition seeking a writ of mandamus and declaratory relief, naming as defendants, DPSC, its secretary James Leblanc, and the State of Louisiana (collectively DPSC). The petition asserted that the repeal of La. R.S. 15:308C and La. R.S. 15:574.22 terminated the Risk Review Panel and, therefore, made reduction of Carthan's sentence mandatory. He expressly asked the district court for a writ of mandamus directed to DPSC ordering it to comply with the ameliorative penalty provisions and to issue a "rap sheet" reflecting the applicability of the more lenient penalty provisions to him.

DPSC filed exceptions of failure to exhaust administrative remedies and failure to state a claim for which relief may be granted. On March 12, 2013, Commissioner Quintillis K. Lawrence heard the exceptions. On November 20, 2013, the commissioner made his recommendation concluding that the petition failed to state a cause of action, warranting dismissal of Carthan's petition.1 On December 16, 2013, the district court signed a judgment that "affirmed" DPSC's decision and dismissed the suit. This appeal by Carthan followed.

As in any case before this court, the first issue to be considered is whether the case is properly before the court and whether there is a basis for jurisdiction. We have a duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Swanson v. Dep't of Pub. Safety and Corrs., 2001-1066 (La. App. 1st Cir. 6/21/02), 837 So.2d 634, 636.

According to the allegations of Carthan's petition, he claims entitlement to amelioration of his sentence, i.e., he challenges DPSC's application of the sentence imposed against him without granting the ameliorative effects of the subsequently enacted legislation. As such, his complaint is one which falls within the ambit of the Corrections Administrative Remedy Procedure (CARP). See La. R.S. 15:1171 (providing to DPSC a method of receiving, hearing, and disposing of any and all complaints and grievances by adult or juvenile offenders against the State, DPSC, or any of its employees). See also L.A.C. 22:I.325 (defining a grievance as a written complaint by an offender on the offender's own behalf regarding, among other things, a policy applicable within an institution).

As noted, the district court signed a judgment that expressly "affirmed" DPSC's decision. But our review of the record fails to show that Carthan complied with the ARP. See La. R.S. 15:1171 and 1172; L.A.C. 22:I.325. The record shows an "input screen" dated January 22, 2008, indicating a rejection of a step-one complaint because it was unsigned, which was issued in conformity with DPSC's policy of rejecting an inmate's request for another inmate's remedy. A document entitled "THIS IS A REQUEST FOR ADMINISTRATIVE REMEDY PROCEDURE," dated January 22, 2008 and stamped "RECEIVED" on January 29, 2008 by the Legal Programs Department, was directed to the warden. But the unsigned document was stamped "REJECTED" on February 12, 2008, ostensibly for again failing to have been signed. Lastly, the record contains an acknowledgement by Carthan, dated February 13, 2008, stating that he had received form ARP-1 regarding request for remedy number LSP-2008-0288. There is no other evidence of an attempt by Carthan to have his complaint reviewed by DPSC.

According to La. R.S. 15:1172C, if an offender fails to timely initiate or pursue his administrative remedies within the deadlines established in Subsection B of this Section, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. Section B states that DPSC is authorized to establish deadlines for an offender to initiate administrative remedies for any nondelictual claims, which includes this one asserted by Carthan.

Although not the basis of the commissioner's recommendation for dismissal, DPSC filed an exception, urging that Carthan's claim should be dismissed since he failed to exhaust administrative remedies. But in support of that basis for dismissal, DPSC offered nothing to establish the deadline for assertion of this nondelictual claim. We have reviewed L.A.C. 22:I.325 and have found only that Section G requires "a request to the warden shall be made in writing within a 90-day period after an incident has occurred," in order for an offender to "ensure their right to use the formal [grievance] procedure."

In this case, where Carthan complains about DPSC's policy of continuing to apply the sentence imposed against him without granting the ameliorative effects of subsequently enacted legislation, it appears to us to the extent that the 90-day period is applicable to his nondelictual claim, Carthan's complaint is one that continues daily such that the "incident" triggering the 90-day period in which to make a request to the warden starts over daily. Thus, absent authority that DPSC established a shorter deadline for the assertion of nondelictual claims as permitted under La. R.S. 15:1172B, dismissal of Carthan's petition is without prejudice, which entitles him to assert a grievance of this nondilectual claim using the ARP.

DECREE

Because Carthan failed to exhaust administrative remedies, on our own motion we conclude that we lack subject matter jurisdiction. Accordingly, the district court's judgment is vacated and Carthan's appeal is dismissed.2 Appeal costs in the amount of $888.00 are assessed against defendants-appellees, the Department of Public Safety and Corrections, its secretary James Leblanc, and the State of Louisiana.

JUDGMENT VACATED; APPEAL DISMISSED.