Cheron v. LCS Corrections Services, Inc., No. 04-CC-0703 (La. 01/19/2005)

[1] SUPREME COURT OF LOUISIANA

[2] No. 04-CC-0703

[3]

[4] January 19, 2005

[5] PATRICK R. CHERON
v.
LCS CORRECTIONS SERVICES, INC. AND THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS AND WARDEN GARY COPES

[6] On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

[7] The opinion of the court was delivered by: Weimer, Justice

[8] For the foregoing reasons, the decision of the court of appeal denying the Department's application for writ of certiorari is affirmed.

[9] AFFIRMED.

[10] Certiorari was granted in this matter to address a split in the circuits as to whether LSA-R.S. 15:1171-1179 as amended by 2002 La. Acts, 1st Extraordinary Session, No. 89, effective April 18, 2002, (Act 89), applies retroactively to a case in which vested rights would be affected.*fn1 For reasons that follow, we affirm the ruling of the lower courts denying the exceptions of prematurity and vagueness/ambiguity urged by the Department of Public Safety and Corrections (Department). We hold that Act 89 may not be applied retroactively because to do so would divest the claimant of a vested right.

[11] FACTS AND PROCEDURAL BACKGROUND

[12] On July 20, 2001, plaintiff, Patrick R. Cheron, filed a personal injury suit against the Department for injuries he allegedly sustained during the late summer of 2000 while incarcerated at the Pine Prairie Correctional Facility.*fn2 In the petition, Cheron claims he experienced severe symptoms of fever, blurred vision, vomiting, sore throat and constant headaches, and that he contracted a potentially fatal kidney disease due to inadequate cleanliness and improper food preparation at the facility. He alleged the facility authorities, personnel, and employees ignored his repeated requests for medical attention.

[13] In response to the petition, the Department filed an exception of prematurity asserting plaintiff failed to exhaust administrative remedies required by LSA-R.S. 15:1172 and LSA-R.S. 15:1184. The Department also filed an exception of vagueness or ambiguity based on plaintiff's failure to specify the procedure number assigned to his request for an administrative remedy.

[14] Following trial of the exceptions, the district court rendered judgment denying the exceptions. The Department filed an application for writ of certiorari which the court of appeal denied. In response to the Department's writ application to this court, the matter was remanded for briefing, argument, and opinion. Cheron v. LCS Corrections Services, Inc., 03-1029 (La. 6/20/03), 847 So.2d 1246.

[15] On remand, the court of appeal concluded the trial court correctly denied the Department's exception of prematurity. Based on this court's decision in Pope v. State, 99-2559 (La. 6/29/01), 792 So.2d 713, the appellate court concluded Cheron was not required to comply with the unconstitutional Corrections Administrative Remedy Procedure (CARP) in existence prior to enactment of Act 89 and that retroactive application of Act 89 would unconstitutionally disturb Cheron's vested right. Cheron v. LCS Corrections Services, Inc., 02-1049 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094.

[16] The Department applied for writ of certiorari which this court granted. Cheron v. LCS Corrections Services, Inc., 04-0703 (La. 5/14/04), 872 So.2d 532. DISCUSSION The narrow issue before this court concerns the validity of the mandatory exhaustion requirement in LSA-R.S. 15:1184 for prisoner suits filed subsequent to this court's decision in Pope, and prior to the 2002 amendment to LSA-R.S. 15:1171, et seq., and LSA-R.S. 15:1184.

[17] The Department argues that at the time Cheron's cause of action arose, LSAR.S. 15:1184*fn3 required an inmate to exhaust administrative remedies before filing a tort suit against prison authorities in state court. The record indicates Cheron did not do so. The Department argues this court's decision in Pope did not address LSA-R.S. 15:1184,*fn4 that it only addressed the constitutionality of the deferential standard of judicial review contained in LSA-R.S. 15:1177.*fn5 The Department contends that the exhaustion requirement for prisoner tort suits contained in LSA-R.S. 15:1184 is similar to that for medical malpractice claims. Requiring a claimant in a medical malpractice action to go through the medical review panel process prior to filing suit in district court does not divest the district court of original jurisdiction. The

[18] Department argues that neither the mandatory exhaustion requirement in LSA-R.S. 15:1184 nor the state's prison grievance system was invalidated by the decision in Pope and that petitioner was required to exhaust administrative remedies prior to filing suit in district court.

[19] Additionally, the Department argues a conflict exists in the circuits. The second circuit, in Poullard v. Hanson, 36,290 (La.App. 2 Cir. 8/14/02), 823 So.2d 1130, writ denied, 02-2730 (La. 1/24/03), 836 So.2d 45, applied Act 89 retroactively.*fn6 In the instant case, the first circuit has ruled that Act 89 cannot be applied retroactively when to do so would disturb vested rights. The decision of the second circuit did not discuss the effect of retroactive application of Act 89 upon vested rights, but simply granted claimant a ninety day grace period in which to seek an administrative remedy. Thus, the Department argues this court should address the split in the circuits.

[20] Cheron asserts the court of appeal correctly held that Act 89 may not be applied retroactively to his suit as it would divest him of the right to litigate his tort claim. He argues there is no conflict between the circuits because the Poullard case involved a complaint relative to the disciplinary system as opposed to a true tort claim. Cheron maintains the Prison Litigation Reform Act (PLRA) allows the court to screen his petition prior to exhaustion of administrative remedies. LSA-R.S.

[21] 15:1188.*fn7 He argues the trial court apparently concluded his claim was a classic tort claim. Thus, following the Pope holding which declared CARP unconstitutional as it applied to tort claims, he was not required to exhaust administrative remedies. Cheron contends the appellate court correctly reviewed and analyzed the factual situation in light of this court's pronouncement in Pope. The decision protects him from the unconstitutional deprivation of vested rights.

[22] Resolution of this matter requires a determination as to whether the provisions of Act 89 amending CARP and PLRA may be applied retroactively when to do so would deprive a litigant of a vested right.

[23] At the time plaintiff's cause of action arose and on the date suit was filed in district court, LSA-R.S. 15:1172, contained in CARP and entitled "Effect," read as follows:

[24] A. Upon approval of the administrative remedy procedure by a federal court, as authorized and required by 42 USC 1997(C)(2), or as otherwise authorized by law, and the implementation of the procedure within the department or by the sheriff, this procedure shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action they may claim to have against the state of Louisiana, the Department of Public Safety and Corrections, or its employees, the contractor operating a private prison facility or any of its employees, shareholders, directors, or officers, or a sheriff, or his employees or deputies.

[25] B. No state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative remedy procedure unless and until the offender shall have exhausted the remedies as provided in said procedure. If the offender has failed timely to pursue administrative remedies through this procedure, any petition he files shall be dismissed. If at the time the petition is filed the administrative remedy process has not yet been completed, the court shall stay the proceedings for ninety days to allow for completion of the procedure and exhaustion of the remedies thereunder.

[26] C. Any contractor operating a private prison facility shall adhere to all provisions of this Part and the administrative remedy procedures adopted by the department in accordance with this Part.

[27] The corresponding provision in PLRA, LSA-R.S. 15:1184, entitled "Suits by prisoners," was amended by 2001 La. Acts, No. 801, effective June 26, 2001,*fn8 and provided as follows on the date petitioner's suit was filed:

[28] A. (1) For purposes of this Section, the following words have the following meanings:

[29] (a) "Administrative remedies" means written policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. Such "administrative remedies" need not be adopted or published in compliance with R.S. 15:1171.

[30] (b) "Available" means all administrative remedies adopted by governmental entities, which address claims of the kind asserted by the prisoner even if the administrative remedies do not allow the prisoner the particular kind of relief sought.

[31] (2) No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice. However, the prisoner shall be prohibited from filing any subsequent suits in forma pauperis based on the same claim or claims.

[32] (3) A court shall take judicial notice of administrative remedies adopted by a governmental entity that have been filed with the clerk of the district court in the parish where the governmental entity is domiciled.

[33] B. The court, on its own motion or on the motion of a party, shall dismiss any prisoner suit if the court is satisfied that the action is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted. If the court makes a determination to dismiss the suit based on the content, or lack thereof, of the petition, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. The court, on its own motion, may raise an exception of improper venue and transfer the suit to a court of proper venue or dismiss the suit.

[34] C. Any defendant may waive the right to reply to any civil action brought by a person confined in any prison or to any prisoner suit. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the petition or waive any affirmative defenses available to the defendant. No relief shall be granted to the plaintiff unless an answer has been filed. The court may require any defendant to answer a petition brought under this Section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.

[35] D. To the extent practicable, in any action brought with respect to prison conditions pursuant to the provisions of this Section, or any other law, by a prisoner confined in any prison, pretrial proceedings in which the prisoner's participation is required or permitted shall be conducted by telephone, video conference, or other communications technology without removing the prisoner from the facility in which he is confined. Subject to agreement by the state or local entity of government with custody over the prisoner, hearings may be conducted at the facility in which the prisoner is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference, or other telecommunications technology in any hearing held at the facility.

[36] E. No prisoner suit may assert a claim under state law for mental or emotional injury suffered while in custody without a prior showing of physical injury.

[37] Act 89, effective April 18, 2002, amended both provisions.*fn9

[38] The pertinent part of LSA-R.S. 15:1172 provides:

[39] B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.

[40] C. 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. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

[41] E. Liberative prescription for any delictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered.

[42] Under LSA-R.S. 15:1184(A)(2) "[n]o prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice."

[43] Act 89 also revised LSA-R.S. 15:1177 which addresses judicial review of administrative actions. The statute now provides in pertinent part:

[44] A. Any offender who is aggrieved by an adverse decision, excluding decisions relative to delictual actions for injury or damages by the Department ... may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court, ... .

[45] C. This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.

[46] The Department has instituted a two-step system of review to address inmates' formal grievances. If dissatisfied, the inmate pursing a tort claim may file suit in district court. Thus, original jurisdiction of tort claims following Act 89 remains with the district court.

[47] In the instant case, the court of appeal addressed retroactive application of Act 89 which amended the provisions of CARP and certain provisions of PLRA effective April 18, 2002. Because retroactive application would operate to divest Cheron of a vested right to litigate his tort claim, the court concluded the trial court properly denied the Department's exceptions.

[48] Citing Pope, the court of appeal acknowledged the CARP provisions as originally enacted encompassed "complaints and grievances" without reference to torts. A 1989 amendment to Section 1171 expressly included personal injury and medical malpractice within the types of claims encompassed by CARP and added a provision authorizing monetary damage awards. See Pope, 99-2559 at 4-5, 792 So.2d at 716; Cheron, 02-1049 at 5, 792 So.2d at 1098. Operating in conjunction with CARP, PLRA curtails baseless or nuisance suits by prisoners. In Pope the court stated, "The Legislature, of course, is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, for example, of frivolous claims, as long as the action of the administrative agency does not constitute the exercise of original jurisdiction." Pope, 99-2559 at 12, 792 So.2d at 720; Cheron, 02-1049 at 8, 872 So.2d at 1099.

[49] Citing Segura v. Frank, 93-1271, 93-1401, p. 16 (La. 1/14/94), 630 So.2d 714, 725, cert denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), the court of appeal acknowledged that if a law is changed during pendency of a suit and retroactive application is permissible, the new law applies even though it may require reversal of a trial court judgment that may have been correct under the law when rendered. Following enactment of Act 89, the court of appeal noted, several cases had been decided pursuant to the holding in Pope without reference to the act or a determination of whether the provisions should be applied retroactively.*fn10 Cheron, 02-1049 at 9-10, 872 So.2d at 1100.

[50] The court of appeal then considered whether Cheron should be required to exhaust administrative remedies prior to filing his tort claim in district court. The court found Act 89 establishes "a method of 'processing, administering, or determining rights,' and is properly classified as a procedural law. However, even procedural laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights." Lott v. Haley, 370 So.2d 521, 523 (La. 1979); Cheron, 02-1049 at 12, 872 So.2d at 1102. Although Cheron filed suit in district court before the one year tort prescriptive period, more than ninety days had lapsed between Cheron's alleged injury and the effective date of Act 89. Retroactive application of the newly created administrative remedy procedure for tort claims found in LSA-R.S. 15:1172(B)(1) (within ninety days from the date injury or damage is sustained) would require abandonment of and dismissal of Cheron's claim.

[51] The appellate court also considered the remedy fashioned by the second circuit in Poullard where the offender was afforded a ninety-day time period following finality of the court's decision in which to pursue administrative remedies. The first circuit correctly chose not to follow that course reasoning that it was inappropriate for the court to jurisprudentially create a grace period where the legislature had not. Cheron, 02-1049 at 14-15, 872 So.2d 1102-1103, citing Maltby v. Gauthier, 506 So.2d 1190 (La. 1987).

[52] Although the Legislature could have done so, the enactment of R.S. 9:5628 [which statute is entitled "Actions for medical malpractice"] did not expressly provide either for a delay in the effectiveness of the statute ... or for a grace period for persons with vested claims to assert their rights. Either type of provision arguably would have indicated a legislative intent for the statute to apply to vested causes of action ....

[53] [T]he Legislature's failure to provide for either type of period can be construed as an indication that no effect on vested causes of action was intended. When the Legislature, in enacting prescriptive statutes potentially affecting existing causes of action, fails to require parties to exercise vested rights within a reasonable time, the courts should refrain from supplying this legislative lapse. [Footnotes omitted.]

[54] Maltby, 506 So.2d at 1192-1193.

[55] Although the Department appears to support a grace period within which to initiate administrative remedies as allowed by the second circuit in Poullard, the first circuit recognized that such an action was not authorized. The legislature could have provided for such a grace period. It did not. Establishment of a grace period by a court would constitute legislation by the court. Such action is prohibited by the concept of separation of powers. See La. Const. art. 2 §§ 1and 2; La. Const. art. 3 §

[56] 1.

[57] The appellate court also considered and rejected the Department's argument that LSA-R.S. 15:1184 continued to be applicable to the situation at hand. Concluding the former procedure could not be applied without consideration of the judicial review provision that Pope found unconstitutional, the appellate court found the Pope decision "implicitly" held the administrative regulations implementing this unconstitutional legislation were invalid. Cheron, 02-1049 at 16, 872 So.2d at 1103.

[58] The Department correctly argues that Pope did not consider the provision of Section 1184--indeed that section had not been enacted at the time of Pope's injury. Although we disagree with the court of appeal's use of the word "implicitly," we find the court correctly determined the provision of LSA-R.S. 15:1184 mandating exhaustion of such administrative remedies as are available was unenforceable in this factual situation given the relevant dates at issue.

[59] The appellate court found the Department failed to establish an available administrative remedy. The court of appeal held that Act 89 would have prospective application only in this case because retroactive application would deprive Cheron of a vested right. Thus, the court applied the law in effect following the Pope decision and prior to the enactment of Act 89 and found Cheron was not required to exhaust an administrative remedy prior to filing his tort action. Additionally, the court found the exception of vagueness or ambiguity was also without merit.

[60] Review of cases decided following Pope indicates there exists a debate as to how broadly or narrowly the Pope decision should be read.*fn11 In consideration of the matter before this court, we have carefully reviewed this court's prior decision in Pope and find the decision declared the entire CARP process unconstitutional as it related to tort actions. The Pope decision acknowledged the right of the legislature to establish a procedure whereby the initial submission of a tort claim could be made to an administrative agency. However, such a procedure must not divest the district court of the exercise of original jurisdiction. This court found the administrative procedure in effect at the time Cheron filed suit was unconstitutional as it applied to tort actions.

[61] While we agree that Pope did not declare the entire CARP process unconstitutional, the holding in Pope did declare the entire CARP process unconstitutional as it applied to tort matters.

[62] We find, as did the court of appeal, that the Department did not sustain its burden of establishing the existence of an available administrative remedy at the time Cheron filed suit. The court of appeal correctly concluded that LSA-R.S. 15:1171-1179 as amended by Act 89 could not be applied retroactively to a case in which the claimant would be divested of vested rights.

[63] Thus, at the time Cheron filed suit in district court alleging an action in tort, there was no administrative remedy procedure in place that applied to tort actions; he was not required to utilize an unconstitutional administrative process. The district court decision denying the Department's exceptions and the court of appeal denial of the Department's writ application were correct.

[64] Although the Department contends this issue affects hundreds of inmate suits pending when Pope was decided and all causes of action arising prior to April 18, 2002, (the effective date of the current law), the record before this court contains no evidence of the number of cases affected. Obviously, there are a finite number of cases to which this opinion will apply. As this court indicated in Pope, it is permissible for the legislature to create an administrative remedy with reference to delictual matters. Indeed, passage of Act 89 provided such a remedy. However, the remedy so established cannot be applied retroactively to deprive a party of a vested right. Further, it is inappropriate to jurisprudentially create a grace period where none is legislatively provided.

[65] CONCLUSION

[66] For the foregoing reasons, the decision of the court of appeal denying the Department's application for writ of certiorari is affirmed.

[67] AFFIRMED.


Opinion Footnotes

[68] *fn1 Certiorari was also granted in the matter entitled Sharon Dailey v. Helen Travis, in her Capacity as Assistant Warden of Louisiana Correctional Institute for Women, Johnnie Jones in her Capacity as Warden of Louisiana Correctional Institute of Women, State of Louisiana through the Department of Public Safety and Corrections, and ABC Insurance Company, 04-CC-0744, (La. 1/19/05), ___So.2d___, decided this date in a separate opinion.

[69] *fn2 Pine Prairie Correctional Facility is a private prison in Evangeline Parish operated by LCS Corrections Services, Inc. Suit against the State of Louisiana alleges negligent oversight of the operation of that facility.

[70] *fn3 At the time Cheron's cause of action arose, LSA-R.S. 15:1184(A) provided as follows:
No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.
LSA-R.S. 15:1184 was amended by 2001 La. Acts, No. 801. See footnote 8.

[71] *fn4 LSA-R.S. 15:1184 was enacted effective July 9, 1997, some three months after Pope was injured and was not at issue in the Pope decision.

[72] *fn5 LSA-R.S. 15:1177 at the time of the Pope decision provided that an aggrieved offender could, within thirty days after receipt of a decision, seek judicial review in district court.

[73] *fn6 In Poullard the trial court concluded the Pope decision did not make the entirety of CARP unconstitutional and had no effect on the Prison Litigation Reform Act (PLRA). Thus, the court ruled that Poullard was obligated to proceed with administrative remedies available to him before he could file suit in district court. The second circuit concluded the pertinent changes incorporated in Act 89 were both curative and procedural and could be applied both retroactively and prospectively. The court of appeal affirmed the trial court ruling and granted Poullard ninety days from the date of the opinion to initiate administrative remedies for his delictual action. (We note the incident at the core of Poullard's claim occurred following the decision in Pope and prior to passage of Act 89.)

[74] *fn7 LSA-R.S. 15:1188 provides:
A. The court shall review, before docketing if feasible or, in any event, before service on the defendants, a petition in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. On review, the court shall identify cognizable claims or dismiss the petition, or any portion of the petition, if the petition is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted.
B. A court shall not authorize or permit service of a prisoner suit until compliance with both of the following:
(1) The screening required in Subsection A of this Section has been completed.
(2) The provisions of R.S. 15:1186(A)(1) and (2) have been satisfied, if the plaintiff is proceeding in forma pauperis.
C. The clerk shall not have a prisoner suit served until specifically ordered to do so by the court as provided in Subsection B of this Section, and then the suit shall be served only upon those defendants specifically ordered by the court to be served.

[75] *fn8 2001 La. Acts, No. 801, § 1 rewrote and expanded subsection A and, in subsection B, added the third sentence authorizing a court to raise an exception of improper venue on its own motion. Prior to the 2001 amendment, subsection A provided:
A. No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted.

[76] *fn9 Following revision, the statutes provide as follows:
LSA-R.S. 15:1172. Administrative remedies; applicability; initiation
A. Upon adoption of the administrative remedy procedure, in accordance with the Administrative Procedure Act, and the implementation of the procedure within the department or by the sheriff, this procedure shall constitute the administrative remedies available to offenders for the purpose of preserving any cause of action they may claim to have against the state of Louisiana, the Department of Public Safety and Corrections, or its employees, the contractor operating a private prison facility or any of its employees, shareholders, directors, or officers, or a sheriff, or his employees or deputies. Any administrative remedy procedure in effect on January 1, 2001, including the procedure published in LAC 22:I.325, is deemed to be in compliance with the provisions of this Section.
B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.
(2) The department is authorized to establish deadlines for an offender to initiate administrative remedies for any nondelictual claims.
(3) The department is authorized to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:I.325.
C. 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. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.
D. Any contractor operating a private prison facility shall adhere to all provisions of this Part and the administrative remedy procedures adopted by the department in accordance with this Part.
E. Liberative prescription for any delictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered.
LSA-R.S. 1184. Suits by prisoners
A. (1) For purposes of this Section, the following words have the following meanings:
(a) "Administrative remedies" means written policies adopted by governmental entities responsible for the operation of prisons which establish an internal procedure for receiving, addressing, and resolving claims by prisoners with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison. Such "administrative remedies" need not be adopted or published in compliance with R.S. 15:1171.
(b) "Available" means all administrative remedies adopted by governmental entities, which address claims of the kind asserted by the prisoner even if the administrative remedies do not allow the prisoner the particular kind of relief sought.
(2) No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice.
(3) A court shall take judicial notice of administrative remedies adopted by a governmental entity that have been filed with the clerk of the district court in the parish where the governmental entity is domiciled.
B. The court, on its own motion or on the motion of a party, shall dismiss any prisoner suit if the court is satisfied that the action is frivolous, is malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted. If the court makes a determination to dismiss the suit based on the content, or lack thereof, of the petition, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. The court, on its own motion, may raise an exception of improper venue and transfer the suit to a court of proper venue or dismiss the suit.
C. Any defendant may waive the right to reply to any civil action brought by a person confined in any prison or to any prisoner suit. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the petition or waive any affirmative defenses available to the defendant. No relief shall be granted to the plaintiff unless an answer has been filed. The court may require any defendant to answer a petition brought under this Section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.
D. To the extent practicable, in any action brought with respect to prison conditions pursuant to the provisions of this Section, or any other law, by a prisoner confined in any prison, pretrial proceedings in which the prisoner's participation is required or permitted shall be conducted by telephone, video conference, or other communications technology without removing the prisoner from the facility in which he is confined. The courts may rule on exceptions and motions, without holding a contradictory hearing, after providing the parties an opportunity to file supporting and opposing memoranda. Subject to agreement by the state or local entity of government with custody over the prisoner, hearings may be conducted at the facility in which the prisoner is confined. To the extent practicable, the court shall allow counsel to participate by telephone, video conference, or other telecommunications technology in any hearing held at the facility.
E. No prisoner suit may assert a claim under state law for mental or emotional injury suffered while in custody without a prior showing of physical injury.
F. The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper.
G. The actions of more than one prisoner may not be cumulated and a prisoner suit filed or prosecuted pro se may not assert a class action. If a suit names more than one plaintiff or asserts a pro se class action, the actions of any plaintiff, other than the first named plaintiff, shall be dismissed without prejudice. As to the claims dismissed pursuant to this Subsection, the filing of the suit shall not be considered an interruption of prescription for purposes of Civil Code Article 3463.

[77] *fn10 See Spooner v. East Baton Rouge Parish Sheriff Department, 01-2663 (La.App. 1 Cir. 11/8/02), 835 So.2d 709; Creppel v. Dixon Correctional Institute, 01-2068 (La.App. 1 Cir. 6/12/02), 822 So.2d 760, writ denied, 02-2289 (La. 11/15/02) 829 So.2d 432; Florida v. Louisiana Department of Public Safety and Corrections, 01-1145 (La.App. 1 Cir. 6/21/02), 822 So.2d 712.

[78] *fn11 See, Spooner v. East Baton Rouge Parish Sheriff Dept., 01-2663 (La.App. 1 Cir. 11/8/02), 835 So.2d 709; Poullard v. Hanson, 36,290 (La.App. 2 Cir. 8/14/02), 823 So.2d 1130; Creppel v. Dixon Correctional Institute, 01-2068 (La.App 1 Cir. 6/21/02) as clarified on rehearing (7/30/02), 822 So.2d 760, writ denied, 02-2289 (La. 11/15/02), 829 So.2d 432; Florida v. Louisiana Dept. of Public Safety and Corrections, 01-1145 (La.App. 1 Cir. 6/21/02), 822 So.2d 712; Ferrington v. Louisiana Department of Corrections, 315 F.3d 529 (5th Cir. 2002).

Cheron v. LCS Corrections Service, Inc., No. 2002 CW 1049 R2 (La.App. Cir.1 02/23/2004)

[1] STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

[2] 2002 CW 1049 R2

[3]

[4] February 23, 2004

[5] PATRICK R. CHERON
v.
LCS CORRECTIONS SERVICES, INC. AND THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS AND WARDEN GARY COPES

[6] ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT (NUMBER 486,044 "H"), PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE J. MICHAEL MCDONALD, JUDGE

[7] Ferdinand J. Kleppner Metairie, Louisiana Counsel for Plaintiff/Respondent Patrick R. Cheron

[8] Christopher A. Edwards Lafayette, Louisiana Counsel for Defendant Lcs Corrections Services, Inc

[9] Annette R. Seng Baton Rouge, Louisiana And Wendell Woods Baton Rouge, Louisiana Counsel for Defendant/Relator State of Louisiana, Department of Public Safety and Corrections

[10] Before: Kuhn, Guidry, And Pettigrew, JJ.

[11] The opinion of the court was delivered by: Kuhn, Judge.

[12] Disposition: WRIT DENIED.

[13] This writ application filed by defendant-relator, the State of Louisiana, through the Department of Public Safety and Corrections ("the Department"), is before us on remand from the Louisiana Supreme Court. In determining whether the trial court properly denied the Department's exceptions, we address whether pertinent provisions of the Louisiana Corrections Administrative Remedy Procedure ("CARP"), as amended by Acts 2002, 1st Extraordinary Session, No. 89 ("Act 89"), are retroactive. Because we find that retroactive application of Act 89 would operate to divest respondent, Patrick R. Cheron, of a vested right, i.e., the right to litigate his tort claim, we conclude the trial court properly denied the Department's exceptions, and we deny the Department's writ application.

[14] I. FACTUAL AND PROCEDURAL HISTORY

[15] On July 20, 2001, Cheron filed a personal injury suit against the Department for injuries he allegedly sustained during the late summer of 2000, during his incarceration at the Pine Prairie Correctional Facility ("the Facility").*fn1 Cheron alleges that while incarcerated, he experienced severe symptoms of fever, blurred vision, vomiting, sore throat, and constant headaches. He contends that he contracted a potentially fatal kidney disease known as "F.S.G.S," which was allegedly caused by inadequate cleanliness and improper food preparation utilized by the Facility. He maintains that Facility authorities, personnel, and employees ignored his repeated requests for medical attention. He asserts that if they had timely responded to his requests for medical attention, his illness could have been arrested or cured. He claims that the Department's negligence has caused severe physical pain and emotional damage and has substantially reduced his life expectancy.

[16] Responding to the petition, the Department filed a dilatory exception raising the objection of prematurity, asserting that Cheron failed to exhaust administrative remedies as required by Louisiana Revised Statutes 15:1172 and 15:1184. The Department also later filed another dilatory exception, which raised the objection of vagueness or ambiguity, urging that the petition failed to specify the applicable procedure number assigned to Cheron's request for an administrative remedy. After trial of the exceptions, the trial court signed a judgment denying both exceptions on April 15, 2002.

[17] Thereafter, the Department filed a writ application. On March 10, 2003, this court addressed the merits of the application and denied the writ. The Department then filed a writ application with the supreme court that was granted.*fn2 The supreme court later remanded the matter to this court for "briefing, argument and opinion." Cheron v. LCS Corrections Services, Inc., 2003-1029 (La. 6/20/03), 847 So.2d 1246.

[18] In its brief, the Department urges that the district court erred in finding that Pope v. State, 1999-2559 (La. 6/29/01), 792 So.2d 713, eliminated the mandatory-exhaustion requirement of Louisiana Revised Statutes 15:1184. The Department posits that even under the language of the Pope decision, an inmate must continue to exhaust administrative remedies pursuant to Louisiana Revised Statutes 15:1184 prior to filing a tort suit against prison authorities. The basis for the Department's claim is that Pope did not address a challenge to Louisiana Revised Statutes 15:1184 and did not declare it unconstitutional as applied to inmate tort claims. In making these arguments, the Department does not address the applicability of Act 89, recent legislation addressing a variety of matters pertinent to prisoner litigation. The Department merely states that Cheron's cause of action arose prior to its April 18, 2002 effective date.

[19] II. ANALYSIS

[20] The provisions of CARP, Louisiana Revised Statutes 15:1171-1179, were enacted in 1985 in response to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997-1997j (1980), which provided standards for the voluntary development and implementation by states of a system for resolution of disputes and grievances raised by prisoners. Pope v. State, 1999-2559, p. 4, 792 So.2d at 715. Pursuant to the provisions of CARP, the Department adopted an administrative remedy procedure for receiving, hearing, and disposing of any and all complaints and grievances by offenders against the state, the department, or its employees that arise while an offender is within the custody or under the supervision of the department. La. R.S. 15:1171(B). As originally enacted, no state court could entertain an offender's grievance or complaint that fell under the purview of the administrative remedy procedure unless and until the offender had exhausted the remedies provided by the procedure. La. R.S. 15:1172(B). The purpose of requiring exhaustion of administrative remedies is to reduce the quantity and improve the quality of prisoner suits. See Porter v. Nussle, 534 U.S. 516, 524-525 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (addressing the federal Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e ("FPLRA")). Also, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Another benefit is that the internal review process may filter out frivolous claims. Porter v. Nussle, 534 U.S. at 525, 122 S.Ct. at 988. Operating in conjunction with CARP, the Louisiana Prison Litigation Reform Act ("LPLRA") curtails baseless or nuisance suits by prisoners.*fn3

[21] As originally enacted, Section 1171 of the CARP provisions encompassed "complaints and grievances" without any reference to tort actions. Pope v. State, 1999-2559, pp. 4-5, 792 So.2d at 716. However, in 1989, the Legislature amended Section 1171 to expressly include personal injury and medical malpractice within the type of claims encompassed by CARP and to add a provision authorizing monetary damage awards. Pope v. State, 1999-2559, p. 5, 792 So.2d at 716. The procedures authorized by Louisiana Revised Statutes R.S. 15:1171(B) and 15:1172(A) constituted the administrative remedies available to offenders for the purpose of preserving any cause of action claimed against the state, the department, or its employees. Prior to its amendment by Act 89, Section 1172(B) further provided in pertinent part:

[22] No state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative remedy procedure unless and until the offender shall have exhausted the remedies as provided in said procedure. If the offender has failed timely to pursue administrative remedies through this procedure, any petition he files shall be dismissed.

[23] Pursuant to Section 1177A (before its amendment by Act 89), an offender who was aggrieved by a decision in favor of the Department in an administrative remedy procedure was entitled to seek judicial review in the Nineteenth Judicial District Court within thirty days of receipt of the decision. The review was confined to the record made during the administrative remedy proceeding, although the court could order that additional evidence be taken. Section 1177(A)(5). The review was further limited to "the issues presented in the petition for review and the administrative remedy request filed at the agency level." Id. Section 1177 further provided that the court may reverse or modify the decision only for the limited reasons enumerated in the statute, including arbitrary or capricious behavior, abuse of discretion and manifest error. Section 1177(A)(8).

[24] In Pope v. State, our supreme court addressed whether CARP (prior to its amendment by Act 89), violated La. Const. art. V, § 16(A), which vests the district courts with original jurisdiction over "all civil and criminal matters." Michael W. Pope, a former inmate, brought a personal injury action against the Department in district court, alleging he was seriously injured while incarcerated. Pope, who had not first presented his claim to the warden via CARP, claimed the procedure was unconstitutional as applied to his personal injury action because it divested the district courts of original jurisdiction over a tort action. After the tort action was dismissed with prejudice by the court of appeal, the supreme court granted certiorari to consider Pope's claim.

[25] Recognizing tort actions as being clearly civil matters, the court found that the CARP legislation violated the Constitution by allowing the Department to exercise original jurisdiction in tort actions and was "an invalid attempt to alter the original jurisdiction of the district courts by legislative act." Pope v. State, 1999-2559, p. 11, 792 So.2d at 719. Although the court broadly held that the statutory provisions of CARP were unconstitutional "to the extent that the statutes are applied to tort actions," the court explained that the existence of the administrative remedy procedure was not by itself prohibited by the constitution:

[26] [T]he problem with La. Rev. Stat. 15:1171-1179 is not that the statutes completely eliminate the district courts . . . from taking part in any manner in a certain category of civil cases . . . or that the statutes add an . administrative remedy procedure as a prerequisite to the district court's exercise of original jurisdiction (as in medical malpractice actions); the problem is that the statutes divest the district courts of the original jurisdiction granted by the Constitution in all civil matters and vest original jurisdiction in certain tort actions in the [Department] officials who administer the administrative remedy procedure.

[27] Pope v. State, 1999-2559, pp. 8-9 , 792 So.2d at 718 (Emphasis added).

[28] Thus, the court explained that CARP's unconstitutionality resulted from the manner in which the district court was limited to performing a deferential judicial review of the administrative decision rather than independently deciding the tort action. The Pope court concluded, "[T]he Legislature cannot by legislative act, divest the district courts of the original jurisdiction fixed by the Constitution in those civil matters, such as tort actions, in which the Constitution does not otherwise provide for original jurisdiction in other tribunals." Pope v. State, 1999-2559, p. 12, 792 So.2d at 720 (Footnote omitted). Nevertheless, the Pope court acknowledged that the legislature could enact procedures requiring administrative review of inmates' tort claims. The court stated, "The Legislature, of course, is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, for example, of frivolous claims, as long as the action of the administrative agency does not constitute the exercise of original jurisdiction." Id.

[29] Pursuant to Act 89, effective April 18, 2002, the legislature promptly amended Louisiana Revised Statutes 15:1172 and 15:1177 to cure the constitutionality problems identified in the Pope decision. As amended, Louisiana Revised Statutes 15:1172 now provides in pertinent part:

[30] B. (1) An offender shall initiate his administrative remedies for a delictual action for injury or damages within ninety days from the day the injury or damage is sustained.*fn4

[31] C. 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. If at the time the petition is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.

[32] E. Liberative prescription for any delictual action for injury or damages arising out of the claims asserted by a prisoner in any complaint or grievance in the administrative remedy procedure shall be suspended upon the filing of such complaint or grievance and shall continue to be suspended until the final agency decision is delivered.

[33] Act 89 also revised Louisiana Revised Statutes 15:1177 (addressing judicial review of administrative actions), which now provides, in pertinent part:

[34] A. Any offender who is aggrieved by an adverse decision, excluding decisions relative to delictual actions for injury or damages, by the [Department] . . . may, within thirty days after receipt of the decisions, seek judicial review of the decision ..

[35] C. This Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions... .

[36] (Emphasis added.)*fn5

[37] Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies even though it requires reversal of a trial court judgment that may have been correct under the law in effect when it was rendered. Segura v. Frank, 93-1271, 93-1401, p. 16 (La. 1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994).

[38] Since Act 89 was enacted, this court has applied the Pope holding that an inmate was entitled to have a district court adjudicate his tort claim under its original jurisdiction without first exhausting administrative remedies available under CARP, without referencing Act 89 or determining whether it had retroactive effect. See Creppel v. Dixon Correctional Institute, 2001-2068 (La. App. 1st Cir. 6/21/02), 822 So.2d 760, writ denied, 2002-2289 (La. 11/15/02), 829 So.2d 432; Florida v. La. Dep't of Public Safety and Corrections, 2001-1145 (La. App. 1st Cir. 6/21/02), 822 So.2d 712. Additionally, in Spooner v. East Baton Rouge Parish Sheriff Dep't, 2001-2663, pp. 6-7 (La. App. 1st Cir. 11/8/02), 835 So.2d 709, 712-713, this court reversed the dismissal of an inmate's tort suit based on failure to exhaust administrative remedies without addressing whether the provisions of Act 89 (particularly the amended provisions of Louisiana Revised Statutes 15:1172B requiring an offender to initiate his administrative remedies for a delictual action within 90 days) should be applied retroactively. Because the provisions of Act 89 would require Cheron and other offenders to exhaust available administrative remedies prior to litigating a tort claim in district court, we must determine whether the Act has retroactive effect and can be applied to Cheron's suit, although his claim arose prior to the effective date of Act 89.

[39] Louisiana Civil Code Article 6 entitled, "Retroactivity of laws," provides, "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary." Although Louisiana Revised Statutes 1:2 does not distinguish between substantive, procedural and interpretative laws in its directive that "[n]o section of the Revised Statutes is retroactive unless it is expressly so stated," this statute has been limited to apply only to substantive legislation. Bourgeois v. A.P. Green Industries, Inc., 2000-1528, p. 6 n.6 (La. 4/3/01), 783 So.2d 1251, 1257 n.6.

[40] Article 6 requires a two-fold inquiry. First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature expressed its intent, our inquiry is ended. If not, we must classify the enactment as substantive, procedural or interpretive. Morial v. Smith & Wesson Corp., 2000-1132, p. 9 (La. 4/3/01), 785 So.2d 1, 10, cert denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001).

[41] Because the legislature made no clear expression regarding its intent concerning the retroactive or prospective application of Act 89, we must classify the law as substantive, procedural, or interpretive.*fn6 Substantive laws are laws that impose new duties, obligations, or responsibilities upon parties, or laws that establish new rules, rights, and duties or change existing ones. Interpretative laws are those that clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Jacobs v. City of Bunkie, 1998-2510, p. 8 (La. 5/18/99), 737 So.2d 14, 20. Procedural, remedial, or curative statutes relate to the form of the proceeding or operation of the laws. King v. State ex rel. Louisiana Dept. of Public Safety and Corrections, 1998-2910, p. 4 (La. App. 1st Cir. 2/18/00), 754 So.2d 1119, 1122. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Jacobs v. City of Bunkie, 1998-2510, p. 8, 737 So.2d at 20. Remedial statutes include those that are designed to correct an existing law. See Blacks Law Dictionary 1296 (7th ed. 1999). "The legislature may cure by subsequent act an irregularity of nonobservance of requirements which it originally might have dispensed with, provided that vested rights have not intervened." Barnett v. State Mineral Board, 193 La. 1055, 1068, 192 So. 701, 705 (1939), (citing Sanger v. Bridgeport, 124 Conn. 183, 198 A. 746 (1938)).

[42] Act 89 has rectified the unconstitutionality of the previous CARP procedure by providing that an offender's tort suit is subject to the district court's original jurisdiction. As such, the district court determines the action de novo rather than being limited by the standard of review set forth in Louisiana Revised Statutes 15:1177. Both prior to and after the enactment of Act 89, Louisiana Revised Statutes 15:1184A provided, "No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted."*fn7 Considering the provisions of Act 89 in conjunction with Section 1184A(2), we find that Act 89 establishes a method of "processing, administering, or determining rights," and is properly classified as a procedural law. However, even procedural laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb vested rights. Lott v. Haley, 370 So.2d 521, 523 (La. 1979).

[43] "Once a party's cause of action accrues, it becomes a vested property right that may not constitutionally be divested." Austin v. Abney Mills, Inc., 2001-1598, p.11 (La. 9/4/02), 824 So.2d 1137, 1145 (quoting Walls v. American Optical Corporation, 1998-0455, p.8 (La. 9/8/99), 740 So.2d 1262, 1269). Thus, "statutes enacted after the acquisition of such a vested property right . . . cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application would contravene the due process guaranties." Cole v. Celotex, 599 So.2d 1058, 1063 (La. 1992) (quoting Faucheaux v. Alton Ochsner Med. Found. Hosp. & Clinic, 470 So.2d 878, 879 (La. 1985). See also Martinez v. State of California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (holding that a state tort claim is a species of property protected by the due process clause). Under Louisiana law, a cause of action accrues when a party has the right to sue. Falgout v. Dealers Truck Equipment Co., 1998-3150, p. 12 (La. 10/19/99), 748 So.2d 399, 407.

[44] As amended by Act 89, Louisiana Revised Statutes 15:1172B requires an offender to initiate administrative remedies for a delictual action for injury or damages within ninety days from the date the injury or damage was sustained. If he fails to timely initiate or pursue his administrative remedies, his claim is abandoned, and any subsequent suit asserting such a claim shall be dismissed with prejudice. La. R.S. 15:1172C. Upon the effective date of Act 89, more than ninety days had lapsed since Cheron had allegedly sustained his injury. During that period of time, Cheron did not initiate any administrative remedy procedures. Thus, retroactive application of Section 1172B and C would result in the abandonment of and the dismissal of Cheron's claim. As such, Act 89 affects Cheron's vested substantive rights.

[45] In Poullard v. Hanson, 36,290, p. 9 (La. App. 2d Cir. 8/14/02), 823 So.2d 1130, 1135, writ denied, 2002-2730 (La. 1/24/03), 836 So.2d 45, the second circuit applied Act 89 retroactively without addressing the concept of vested rights. The Poullard court merely afforded the offender a 90-day time period within which to pursue his administrative remedies. We have also considered this approach of supplying a 90-day time period within which Cheron would have the opportunity to comply with the amended provisions of La. R. S 15:1172. We have determined, however, that where the legislature has failed to prescribe a time period for application of the statute to those with existing causes of action, the judiciary has no basis for supplying such a time period. See Maltby v. Gauthier, 506 So.2d 1190, 1193 (La. 1987) (wherein the court instructed, "[w]hen the Legislature, in enacting prescriptive statutes potentially affecting existing causes of action, fails to require parties to exercise vested rights within a reasonable time, the courts should refrain from supplying this legislative lapse.")

[46] Thus, since we have determined that the retroactive application of Act 89 would operate to disturb vested rights in this case, we conclude Act 89 has prospective application only with respect to this case. Accordingly, we address the merits of the exceptions under the applicable law prior to the enactment of Act 89.*fn8

[47] An exception raising the objection of prematurity pursuant to La. C.C.P. art. 926A(1) raises the issue of whether the judicial cause of action has not yet come into existence because some prerequisite condition has not been fulfilled. Ginn v. Woman's Hosp. Foundation, Inc., 1999-1691, p. 3 (La. App. 1st Cir. 9/22/00), 770 So.2d 428, 430-431, writ denied, 2000-3397 (La. 2/2/01), 784 So.2d 647. The objection contemplates that the plaintiff has filed his action prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for one aggrieved of a decision to seek administrative relief before resorting to judicial action. Girouard v. State Through Dep't of Educ., 96-1076, p. 4 (La. App. 1st Cir. 5/9/97), 694 So.2d 1153, 1155. Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before he is entitled to judicial review. Id., 1996-1076 at p. 5, 694 So.2d at 1155.

[48] The party that raises the objection of prematurity has the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 1999-2241, p. 6 (La. App. 1st Cir. 3/7/01), 798 So.2d 143, 147, writ denied, 2001-0818 (La. 1/4/02), 805 So.2d 1188. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate. Ginn v. Woman's Hosp. Foundation, Inc., 1999-1691, p. 3, 770 So.2d at 431.

[49] The Department urges that Louisiana Revised Statutes 15:1184 required Cheron to exhaust administrative remedies before filing his tort suit in state court, and that the district court' erred in finding that Pope eliminated this mandatory exhaustion requirement. Section 1184A(2) provides in pertinent part, "No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted." (Emphasis added.) Although the Pope decision did not specifically address Section 1184, the Pope decision held that CARP's statutory provisions as applied to offenders' tort actions violates our state constitution. As such, we find that the Pope court implicitly held that the administrative regulations that implemented this unconstitutional legislation are invalid. See Dailey v. Travis, 2002-2051 (La. App. 1st Cir. __/__ /____), __ So.2d __ (rendered this date, wherein we concluded that the former regulatory procedure cannot be applied without encountering the judicial review provision that the Pope court found to be unconstitutional). Because the Department has not established available administrative remedies other than those established pursuant to CARP, the Department has not sustained its burden of establishing an available administrative remedy. The trial court did not err in denying the Department's exception raising the objection of prematurity.

[50] Additionally, we find no merit in the Department's exception raising the objection of vagueness or ambiguity. In support of this exception, the Department urges only that the petition failed to specify the applicable procedure number assigned to Cheron's request for an administrative remedy. Since we conclude that Cheron was not required to exhaust any administrative remedies prior to filing his tort action, we find no basis for sustaining this exception.

[51] III. CONCLUSION

[52] Retroactive application of Act 89 to Cheron's tort action would unconstitutionally disturb his vested rights. Based on the Pope decision, Cheron is not required to comply with the unconstitutional CARP procedure that existed prior to Act 89. Thus, we find that his tort action was not filed prematurely. Additionally, Cheron's petition was not vague or ambiguous because it did not provide an administrative procedure number. Accordingly, we find that the trial court properly denied the Department's exceptions.

[53] WRIT DENIED.


Opinion Footnotes

[54] *fn1 Cheron also named Warden Gary Copes and LCS Corrections Services, Inc. as defendants

[55] *fn2 Prior to addressing the merits of the writ application, this court had denied the application on July 1, 2002, because it appeared to be untimely. Thereafter, the Department filed a writ application with the supreme court that was granted. The Supreme Court remanded the matter to this court "to rule on the merits of the application." Cheron v. LCS Corrections Services, Inc., 2002-2146 (La. 11/8/02), 828 So.2d 1117.

[56] *fn3 The LPLRA, enacted in 1997, requires a district court to dismiss any prisoner suit that is frivolous, malicious, fails to state a cause of action, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief can be granted. La. R.S. 15:1184B. Further, Louisiana .Revised Statutes 15:1184A(2) provides "No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted." "Prisoner suit" is defined as "any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison . . .. La. R.S. 15:1181. (Emphasis added.) A broad interpretation of this statutory language is supported by the analysis set forth in Porter v. Nussle, 534 U.S. at 524-525, 122 S.Ct. at 988 (addressing the FPRLA, which is parallel to the LPLRA). Cheron's tort action seeks recovery of damages for injuries that allegedly resulted from the effects of actions by government officials, and is subject to the provisions of the LPLRA.

[57] *fn4 Pursuant to Louisiana Revised Statutes 15:1172B(2) and (3), the department is authorized to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:I.325. Pursuant thereto, the Department has promulgated an administrative remedy procedure that utilizes a two-step system of review to address inmates' formal grievances in lieu of the three-step system that was previously used. LAC 22:I.325G. If an inmate is not satisfied with the Second Step response, he may file suit in district court. LAC 22:I.325G(2)(b). Upon filing that suit, the inmate must furnish the administrative remedy procedure number on the court forms. The provisions of LAC 22:I.325 apply to administrative procedure requests filed on or after its effective date, April 20, 2002. Also effective September 20, 2002, the Department revised the adult administrative remedy procedure to provide that the offender has 90 days from the date of an alleged event within which to initiate his administrative remedy.

[58] *fn5 Act 89 additionally added subsection F to Louisiana Revised Statutes 15:1184, which provides: The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner is assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper.

[59] *fn6 Louisiana Revised Statutes 15:1172B(2) and (3) authorizes the Department to establish deadlines for the procedures and processes contained in the administrative remedy procedure provided in LAC 22:I.325. It can be argued that the legislature intended prospective application since they apparently envisioned that new regulations would have to be implemented to rectify the problems outlined in Pope. However, because the Department previously had authority to promulgate regulations to implement administrative remedy procedures prior to the enactment of Act 89, and since it is not clear what the legislature contemplated regarding existing causes of action, we consider the appropriate classification of Act 89.

[60] *fn7 Following amendment by Acts 2001, No. 801, § 1, this mandate appears in Louisiana Revised Statutes 15:1184A(2). During the time period between the Pope decision and Act 89's enactment, the Pope decision made clear that the then-existing administrative remedy procedure violated our state constitution.

[61] *fn8 Neither party challenges that the Pope decision is to be given retroactive effect. Generally, unless a decision specifies otherwise, it is to be given prospective and retroactive effect. Succession of Clivens, 426 So.2d 585, 594 (La. 1982).