Louis Stemley v. Wayne Descant

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-662

LOUIS STEMLEY

VERSUS

WAYNE DESCANT, ET AL.

********** APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2000-0985 A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE **********

GLENN B. GREMILLION JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Glenn B. Gremillion, and Elizabeth A. Pickett, Judge.

JUDGMENT VACATED; REMANDED.

James Earl Calhoun Asst. Attorney General Laurel I. McDonald Asst. Attorney General P. O. Box 1710 Alexandria, LA 71308-1710 (318) 487-5944 Counsel for Defendants/Appellees Michael Coco Wayne Descant J. Firmin Jason Paul Lillie Littleton Tom Perkins Kristie Grayson Dr. Quyen Tran Connie Lemoine Capt. Blaine Villmarette Major Anthony Corner Major Billy Tigner Major Donald Ducote Aaron Gaspard Cindy Soileau

Louis Stemley P.C.C. - ND, 2D P. O. Box 1056 DeQunicy, LA 70633 In Proper Person: Louis Stemley GREMILLION, Judge.

This matter is before us for review of the trial court’s judgment granting

an ex parte order in favor of the State of Louisiana,1 granting its Peremptory

Exception of Failure to Timely Seek Judicial Review. In so holding, the trial court

dismissed the suit filed by the plaintiff, Louis Stemley. Stemley is an inmate with the

Department of Public Safety and Corrections (DPSC), who was housed at the

Avoyelles Correctional Center at the time he initiated his complaint through the

Administrative Remedy Procedure.

Pursuant to the Louisiana Administrative Code Part I, § 325(G)(4), an

inmate, unsatisfied with the third step review of his complaint by the Secretary of the

DPSC, may seek judicial review of that decision within thirty days after receipt and

signing of the secretary’s decision. See La.R.S. 15:1177. The State’s peremptory

exception was based on the fact that Stemley failed to seek judicial review of a ruling

by the Disciplinary Board of the DPSC denying his appeal, Number HDQ-9942,

AVC-99-0465. The State argued that Stemley received notice of this denial on June

13, 2000, as evidenced by the Avoyelles Correctional Center mail callout sheet.

However, the record does not contain evidence of the Disciplinary Board’s ruling or

date of signing of such ruling. Thus, we find that the trial court erred in granting the

State’s peremptory exception since it is not apparent from the face of the record that

Stemley failed to seek timely review of his complaint. This matter is remanded to the

trial court for further proceedings. The costs of this appeal are assessed against the

1 The State is representing the named defendants in this matter: Wayne Descant, Jason Paul, Tom Perkins, Dr. Quyen Tran, Connie Lemoine, Major Anthony Corner, Major Billy Tigner, Major Donald Ducote, Cindy Soileau, Aaron Gaspard, Michael Coco, Lillie Littleton, Capt. Blaine Villmarette, Kristie Grayson, J. Firmin.

1 State of Louisiana, Department of Public Safety and Corrections, in the amount of

$400.

Stemley has also filed a motion on appeal to supplement the record.

Based on our finding, this motion has been rendered moot and will not be considered.