Donald Ray Magee v. Louisiana Department of Public Safety & Corrections ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0891
DONALD RAY MAGEE
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS
DATE OF JUDGMENT.•
MAR 0 3 2022
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 705878, SECTION 27, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TRUDY M. WHITE, JUDGE
Donald Magee, Jr. Plaintiff A
- ppellant
Angie, Louisiana Donald Ray Magee, Jr., Pro Se
Jonathan R. Vining Counsel for Defendant -Appellee
Baton Rouge, Louisiana Louisiana Department of Public Safety
Corrections
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED.
Chutz, J.
Petitioner, Donald Ray Magee, Jr., an inmate in the custody of the Louisiana
Department of Public Safety and Corrections ( DPSC), appeals a district court
judgment dismissing, with prejudice, his petition for judicial review of a disciplinary
action. We affirm.
FACTS AND PROCEDURAL HISTORY
On December 24, 2020, Magee was issued a disciplinary report for violating
Rule No. 1 ( contraband). Following a hearing, the disciplinary board found Magee
guilty and sentenced him to two weeks loss of yard and recreation privileges.
Magee' s administrative appeals to the Warden and to the Secretary of DPSC were
each rejected. Magee then filed a petition for judicial review in the Nineteenth
Judicial District Court, seeking review of the disciplinary action.
Pursuant to La. R.S. 15: 1178 and 15: 1188, a Nineteenth Judicial District Court
commissioner reviewed the petition to determine whether it stated a cause of action
or cognizable claim for relief. After considering the record, the commissioner
concluded the district court lacked authority to review Magee' s claims because his
petition failed to state a substantial rights violation. Accordingly, the commissioner
recommended the disciplinary action be affirmed and petitioner' s appeal be
dismissed, with prejudice. Following a de novo review, the district court signed a
judgment on July 22, 2021, in accordance with the commissioner' s recommendation
affirming DPSC' s disciplinary action and dismissing Magee' s petition for judicial
review. Magee now appeals.
DISCUSSION
In his pro se brief, Magee alleges he did not receive a copy of the
commissioner' s report until ten days after it was mailed, making it too late for him
to traverse the commissioner' s findings during the ten- day period permitted by La.
R.S. 13: 713( C)( 3). Initially, we note that appellate courts are courts of record and
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may not review evidence not contained in the record or receive new evidence. La.
C. C. P. art. 2164; Denoux v. Vessel Management Services, Inc., 07- 2143 ( La.
5/ 21/ 08), 983 So. 2d 84, 88. The record in this case contains no evidence supporting
Magee' s allegation. Further, on appeal, Magee failed to set forth any basis on which
he could have traversed the commissioner' s finding that his petition for judicial
review failed to set forth a substantial rights violation.
Pursuant to La. R.S. 15: 1177( A)(9), a reviewing court may reverse or modify
an agency decision " only if substantial rights of the appellant have been
prejudiced," because the administrative decisions or findings are: ( 1) in violation
of constitutional or statutory provisions; ( 2) in excess of the agency' s statutory
authority; ( 3) made upon unlawful procedure; ( 4) affected by other error of law; ( 5)
arbitrary or capricious or characterized by an abuse of discretion; or (6) manifestly
erroneous in view of the reliable, probative, and substantial evidence on the whole
record. ( Emphasis added.) Lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system. Discipline by prison officials in
response to a wide range of misconduct falls within the expected parameters of the
sentence imposed by a court of law. Sandin v. Conner, 515 U.S. 472, 485, 115 S.
Ct. 2293, 2301, 132 L.Ed.2d 418 ( 1995). Thus, in order for an inmate' s petition to
state a cognizable claim for judicial review of a disciplinary matter, it must allege
facts demonstrating the agency' s decision prejudiced his " substantial rights." See
Lewis v. Louisiana Department ofPublic Safety & Corrections, 19- 0018 ( La. App.
1st Cir. 9/ 27/ 19), 2019 WL 4729511, * 1; Giles v. Cain, 99- 1201 ( La. App. 1st Cir.
6/ 23/ 00), 762 So. 2d 734, 738.
The disciplinary proceedings against Magee resulted in the loss of yard and
recreation privileges for two weeks. It is well- settled that a loss of yard/ recreation
privileges does not constitute an atypical or significant hardship in relation to the
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ordinary incidents of prison life and does not prejudice an inmate' s substantial rights.
Wilson v Leblanc, 19- 1358 ( La. App. 1st Cir. 5/ 11/ 20), 303 So. 3d 678, 680, writ
denied, 20- 01451 ( La. 3/ 23/ 21), 312 So. 3d 1107; Louisiana
see Dorsey v.
Department of Public Safety, 18- 0416 ( La. App. 1st Cir. 9/ 24/ 18), 259 So. 3d
369, 371.
As previously indicated, courts may intervene and reverse or modify
DPSC' s decision in a disciplinary case only where the petitioner' s substantial rights
have been prejudiced. Simmons v. Louisiana Department of Public Safety &
Corrections, 17- 0961 ( La. App. 1st Cir. 2/ 20/ 18), 2018 WL 946946, at * 1, writ
denied, 18- 0488 ( La. 3/ 25/ 19). 267 So. 3d 598. Because Magee' s loss of
yard/ recreation privileges does not affect his substantial rights, his petition for
judicial review failed to state a cognizable claim. The district court did not err in
dismissing the petition with prejudice on this basis. See La. R.S. 15: 1177( A)(9); La.
R.S. 15: 1178; La. R.S. 15: 1188( A); Dorsey, 259 So.3d at 371.
CONCLUSION
For these reasons, the district court judgment dismissing Magee' s petition for
judicial review and affirming DPSC' s disciplinary action is affirmed. All costs of
this appeal are assessed to petitioner, Donald Ray Magee.
AFFIRMED.