NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1327
FREDDIE R. LEWIS
VERSUS
VERNON CORRECTIONAL FACILITY, ET AL.
************
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 82,405-B HONORABLE JOHN FORD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.
REVERSED AND REMANDED.
Freddie R. Lewis Winn Correctional Center Dogwood-C2-12 Post Office Box 1260 Winnfield, LA 71483-1260 IN PROPER PERSON/APPELLANT: Freddie R. Lewis David R. Lestage Hall, Lestage & Landreneau Post Office Box 880 DeRidder, LA 70634 (337) 463-8692 COUNSEL FOR DEFENDANTS/APPELLEES: Floyd Willis Dalford McCullough Bobby Stanley Quinton Calhoun PETERS, J.
The pro se plaintiff in this matter, Freddie R. Lewis, brought suit against four
employees of the Vernon Correctional Facility (Floyd Willis, Dalford McCullough,
Bobby Stanley, and Quinton Calhoun) as well as the Secretary of the Louisiana
Department of Public Safety and Corrections (DOC),1 seeking to recover damages for
the individual defendants losing or destroying personal items belonging to him. The
trial court granted a dilatory exception of prematurity filed by the four individuals and
dismissed Mr. Lewis’ claims against them. Mr. Lewis now appeals that judgment.
For the following reasons, we reverse the grant of the exception and remand the
matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
Mr. Lewis filed his pro se action on December 21, 2009, seeking to recover the
value of items of personal property2 he claims the defendants either lost or destroyed,
as well as a $10.00 per day sanction for each day he has been deprived of the items
at issue.3 The four individual defendants responded to Mr. Lewis’ suit by filing, on
April 21, 2010, a dilatory exception of prematurity and a peremptory exception of
prescription. In their exceptions, the defendants list their version of Mr. Lewis’ stay
in the Vernon Correctional Facility as well dates related to his attempts to gain
possession of the personal property he arrived with on April 27, 2008. Additionally,
1 We list only the four individuals and the Secretary of DOC as defendants because those are the named identified defendants in Paragraph III of Mr. Lewis’s petition, captioned as “Parties to this Appeal” (although to some degree even those listed in that paragraph are incorrectly identified). However, in the prayer to his petition, Mr. Lewis seeks relief against the Vernon Correctional Facility as well. 2 In his original petition, Mr. Lewis values the personal property and other items at issue at $414.19. 3 Mr. Lewis’ initial petition contains a history of his comings and goings since being incarcerated at Vernon Correctional Facility and attempts to establish when and where the items at issue became misplaced or destroyed. Additionally, Mr. Lewis attached a number of documents to his petition which seem to reference efforts to proceed through an administrative process in pursuing his claim. while acknowledging that Mr. Lewis has submitted grievance forms and requests for
the return of his property, the defendants assert that he has never filed the complaints
or requests on the “Inmate Grievance form used by [the Vernon Parish Sheriff] and
his staff at the Vernon Parish Jail and the Vernon Correctional Facility pursuant to
the Administrative Remedy Procedure,” which was in effect at all times during Mr.
Lewis’ complaints. The defendants attached copies of two separate memoranda from
the Vernon Correctional Facility addressed to the facility’s inmate population and
having as their subject, “Policy and Procedures for Grievances and Administrative
Remedy Procedure.”4 Additionally, the defendants attached blank copies of what are
apparently the acceptable grievance forms.
The trial court held a hearing on the exceptions on May 24, 2010.5 Neither the
defendants nor Mr. Lewis presented evidence at the hearing on the exceptions.
Counsel for the defendants simply argued that Mr. Lewis had not followed the
administrative procedure, and Mr. Lewis argued that he could not have done so in any
event because he was not in the custody of the defendants when he filed suit.6 In
argument, he asserted that he made his own form and instituted the grievance process.
When the hearing was complete, the trial court simply concluded the
proceedings without rendering any opinion on the merits of the exceptions. Instead,
the trial court issued written reasons for judgment on June 24, 2010, rejecting the
exception of prescription but granting the exception of prematurity. In its reasons for
judgment, the trial court stated the following:
4 One has an effective date of “10-21-96,” and the other “06/5.” 5 After the hearing was set, but before it was held, Mr. Lewis attempted to amend his petition to claim other damages associated with the loss of his property, but consideration of these particular claims is not necessary to resolve the single issue now before us. 6 He claims to have been in Wade Correctional Center in Keithville, Louisiana.
2 It is the opinion of the Court that plaintiff should use all administrative avenues available to insure the return of personal belongings. The law is clear that before a suit is filed, all administrative procedures available to plaintiff (as an inmate of a facility in the State of Louisiana) must first be exhausted.
In the present case, the Court is of the opinion that plaintiff should proceed using the Inmate grievance procedure set out in LA.R.S. 15:117l-1179 and LA.R.S. 15:1181-1191.
The trial court signed a judgment to this effect on July 29, 2010, and Mr. Lewis
perfected this appeal.
OPINION
An exception of prematurity brought under La.Code Civ.P. art. 926(A)(1)
raises the issue of whether the plaintiff has fulfilled a prerequisite condition prior to
filing his suit such that the question is presented as to whether the plaintiff’s cause
of action yet exists. Mosley v. La. Dep’t of Public Safety & Corr., 07-1501 (La.App.
3 Cir. 4/2/08), 980 So.2d 836. The party raising the exception of prematurity has the
burden of proving that an administrative remedy is available. Ngo v. Estes, 04-186
(La.App. 3 Cir. 9/29/04), 882 So.2d 1262. Only after a defendant establishes that an
administrative remedy exists does the burden shift to the plaintiff to establish that he
or she exhausted the available administrative remedies or that the available
administrative remedies are irreparably inadequate. Id.
Louisiana Code of Civil Procedure Article 930 provides, in pertinent part: “[o]n
the trial of the dilatory exception, evidence may be introduced to support or
controvert any of the objections pleaded, when the grounds thereof do not appear
from the petition.” Here, the grounds for the exception of prematurity do not appear
on the face of the petition, and the defendants introduced no evidence in support of
3 their exception.7 “Arguments and pleadings are not evidence.” In re Melancon, 05-
1702, p. 7 (La. 7/10/06), 935 So.2d 661, 666.
In Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d
277, writ denied, 05-862 (La. 6/3/05), 903 So.2d 458, this court was faced with a
similar evidentiary situation. As is the case now before us, the principal documents
required to bring the pertinent issue to the attention of the trial court were attached
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1327
FREDDIE R. LEWIS
VERSUS
VERNON CORRECTIONAL FACILITY, ET AL.
************
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 82,405-B HONORABLE JOHN FORD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.
REVERSED AND REMANDED.
Freddie R. Lewis Winn Correctional Center Dogwood-C2-12 Post Office Box 1260 Winnfield, LA 71483-1260 IN PROPER PERSON/APPELLANT: Freddie R. Lewis David R. Lestage Hall, Lestage & Landreneau Post Office Box 880 DeRidder, LA 70634 (337) 463-8692 COUNSEL FOR DEFENDANTS/APPELLEES: Floyd Willis Dalford McCullough Bobby Stanley Quinton Calhoun PETERS, J.
The pro se plaintiff in this matter, Freddie R. Lewis, brought suit against four
employees of the Vernon Correctional Facility (Floyd Willis, Dalford McCullough,
Bobby Stanley, and Quinton Calhoun) as well as the Secretary of the Louisiana
Department of Public Safety and Corrections (DOC),1 seeking to recover damages for
the individual defendants losing or destroying personal items belonging to him. The
trial court granted a dilatory exception of prematurity filed by the four individuals and
dismissed Mr. Lewis’ claims against them. Mr. Lewis now appeals that judgment.
For the following reasons, we reverse the grant of the exception and remand the
matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
Mr. Lewis filed his pro se action on December 21, 2009, seeking to recover the
value of items of personal property2 he claims the defendants either lost or destroyed,
as well as a $10.00 per day sanction for each day he has been deprived of the items
at issue.3 The four individual defendants responded to Mr. Lewis’ suit by filing, on
April 21, 2010, a dilatory exception of prematurity and a peremptory exception of
prescription. In their exceptions, the defendants list their version of Mr. Lewis’ stay
in the Vernon Correctional Facility as well dates related to his attempts to gain
possession of the personal property he arrived with on April 27, 2008. Additionally,
1 We list only the four individuals and the Secretary of DOC as defendants because those are the named identified defendants in Paragraph III of Mr. Lewis’s petition, captioned as “Parties to this Appeal” (although to some degree even those listed in that paragraph are incorrectly identified). However, in the prayer to his petition, Mr. Lewis seeks relief against the Vernon Correctional Facility as well. 2 In his original petition, Mr. Lewis values the personal property and other items at issue at $414.19. 3 Mr. Lewis’ initial petition contains a history of his comings and goings since being incarcerated at Vernon Correctional Facility and attempts to establish when and where the items at issue became misplaced or destroyed. Additionally, Mr. Lewis attached a number of documents to his petition which seem to reference efforts to proceed through an administrative process in pursuing his claim. while acknowledging that Mr. Lewis has submitted grievance forms and requests for
the return of his property, the defendants assert that he has never filed the complaints
or requests on the “Inmate Grievance form used by [the Vernon Parish Sheriff] and
his staff at the Vernon Parish Jail and the Vernon Correctional Facility pursuant to
the Administrative Remedy Procedure,” which was in effect at all times during Mr.
Lewis’ complaints. The defendants attached copies of two separate memoranda from
the Vernon Correctional Facility addressed to the facility’s inmate population and
having as their subject, “Policy and Procedures for Grievances and Administrative
Remedy Procedure.”4 Additionally, the defendants attached blank copies of what are
apparently the acceptable grievance forms.
The trial court held a hearing on the exceptions on May 24, 2010.5 Neither the
defendants nor Mr. Lewis presented evidence at the hearing on the exceptions.
Counsel for the defendants simply argued that Mr. Lewis had not followed the
administrative procedure, and Mr. Lewis argued that he could not have done so in any
event because he was not in the custody of the defendants when he filed suit.6 In
argument, he asserted that he made his own form and instituted the grievance process.
When the hearing was complete, the trial court simply concluded the
proceedings without rendering any opinion on the merits of the exceptions. Instead,
the trial court issued written reasons for judgment on June 24, 2010, rejecting the
exception of prescription but granting the exception of prematurity. In its reasons for
judgment, the trial court stated the following:
4 One has an effective date of “10-21-96,” and the other “06/5.” 5 After the hearing was set, but before it was held, Mr. Lewis attempted to amend his petition to claim other damages associated with the loss of his property, but consideration of these particular claims is not necessary to resolve the single issue now before us. 6 He claims to have been in Wade Correctional Center in Keithville, Louisiana.
2 It is the opinion of the Court that plaintiff should use all administrative avenues available to insure the return of personal belongings. The law is clear that before a suit is filed, all administrative procedures available to plaintiff (as an inmate of a facility in the State of Louisiana) must first be exhausted.
In the present case, the Court is of the opinion that plaintiff should proceed using the Inmate grievance procedure set out in LA.R.S. 15:117l-1179 and LA.R.S. 15:1181-1191.
The trial court signed a judgment to this effect on July 29, 2010, and Mr. Lewis
perfected this appeal.
OPINION
An exception of prematurity brought under La.Code Civ.P. art. 926(A)(1)
raises the issue of whether the plaintiff has fulfilled a prerequisite condition prior to
filing his suit such that the question is presented as to whether the plaintiff’s cause
of action yet exists. Mosley v. La. Dep’t of Public Safety & Corr., 07-1501 (La.App.
3 Cir. 4/2/08), 980 So.2d 836. The party raising the exception of prematurity has the
burden of proving that an administrative remedy is available. Ngo v. Estes, 04-186
(La.App. 3 Cir. 9/29/04), 882 So.2d 1262. Only after a defendant establishes that an
administrative remedy exists does the burden shift to the plaintiff to establish that he
or she exhausted the available administrative remedies or that the available
administrative remedies are irreparably inadequate. Id.
Louisiana Code of Civil Procedure Article 930 provides, in pertinent part: “[o]n
the trial of the dilatory exception, evidence may be introduced to support or
controvert any of the objections pleaded, when the grounds thereof do not appear
from the petition.” Here, the grounds for the exception of prematurity do not appear
on the face of the petition, and the defendants introduced no evidence in support of
3 their exception.7 “Arguments and pleadings are not evidence.” In re Melancon, 05-
1702, p. 7 (La. 7/10/06), 935 So.2d 661, 666.
In Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d
277, writ denied, 05-862 (La. 6/3/05), 903 So.2d 458, this court was faced with a
similar evidentiary situation. As is the case now before us, the principal documents
required to bring the pertinent issue to the attention of the trial court were attached
to filed pre-hearing memoranda, but were not offered as evidence at the trial court
hearing. While noting that there is a difference between a document being a part of
the record and a document being introduced into evidence, we found that because the
parties had “treated the documents as if they were introduced,” their use constituted
“a judicial confession of the existence of the documents as evidence.” Id. at 280.
However, unlike the litigants in Abshire, the litigants in the matter now before us did
not even reference the attached documents, much less introduce them.8 Additionally,
because Mr. Lewis is a pro se litigant, we will not treat his failure to object to the
incompleteness of the evidence as a judicial admission of the particular terms of an
administrative procedure.9 See Succession of Bijeaux v. Broyles, 06-1172 (La.App.
3 Cir. 2/7/07), 951 So.2d 490.
We find that the defendants failed to meet their burden of proof on their
exception and that the trial court erred in granting the exception of prematurity.
7 While the defendants attached copies of documents purporting to explain the facility’s grievance procedure to their memorandum filed in support of their exceptions, they did not introduce those into evidence. 8 The trial court asked Mr. Lewis if he had any documents to introduce, and Mr. Lewis referred to some that he might wish to introduce, but that he did not have with him. In any event, the trial court refused to allow the record to remain open for a later filing. 9 The defendant seemed to acknowledge the existence of an administrative procedure at Vernon Correction Facility, and acknowledged that he used his own form in instituting a complaint against the facility, but nothing before the trial court suggested that use of his own form was a violation of the procedure.
4 DISPOSITION
For the foregoing reasons, we reverse the judgment of the trial court granting
the exception of prematurity filed by the defendants, Floyd Willis, Dalford
McCullough, Bobby Stanley, and Quinton Calhoun. We remand the matter to the
trial court for further proceedings. Additionally, we assess all costs of this appeal to
the defendants, Floyd Willis, Dalford McCullough, Bobby Stanley, and Quinton
Calhoun.10
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.
10 In assessing the costs of this appeal to the four individual defendants, we note that neither the Secretary of the Louisiana Department of Corrections nor the Vernon Correction Facility have made appearances in this litigation to date.