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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 3 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 19th day of January, 2005 , are as follows:

BY WEIMER, J. : 2004-CC-0703 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 (Parish of E. Baton Rouge) For the foregoing reasons, the decision of the court of appeal denying the Department's application for writ of certiorari is affirmed. AFFIRMED.

1/19/05 SUPREME

COURT OF LOUISIANA

No. 04-CC-0703 PATRICK R. CHERON VERSUS LCS CORRECTIONS SERVICES, INC. AND THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS AND WARDEN GARY COPES
On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

WEIMER, Justice 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.1 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. FACTS AND PROCEDURAL BACKGROUND 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

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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.

2000 while incarcerated at the Pine Prairie Correctional Facility.2 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. 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. 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. 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

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. 2

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right. Cheron v. LCS Corrections Services, Inc., 02-1049 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094. 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. The Department argues that at the time Cheron's cause of action arose, LSAR.S. 15:11843 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. 15:1184,4 that it only addressed the constitutionality of the deferential standard of judicial review contained in LSA-R.S. 15:1177.5 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

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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.

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. 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. 3
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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. 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.6 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. 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.

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.) 4

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15:1188.7 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. 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. 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: 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

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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. 5

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. 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. 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. 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, 2001,8 and provided as follows on the date petitioner's suit was filed: 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.

2001 La. Acts, No. 801,

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