
    Ronald HERNDON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    2017 CA 0007
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 21, 2017
    
      Ronald Herndon, Angie, Louisiana, Plaintiff-Appellant, In Proper Person
    Debra A. Rutledge, Baton Rouge, Louisiana, Attorney for Defendant-Appellee, Louisiana Department of Public, Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

1 ¡Appellant, Ronald Herndon, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (Department), housed at Rayburn Correctional Center (Rayburn Correctional) in Angie, Louisiana, appeals a judgment of the district court that dismissed his petition for judicial review without prejudice. Based on our review of the record, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On October 21, 2015, Herndon filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) seeking review of Administrative Remedy Procedure (ARP) No. RCC-2015-473. In RCC-2015-473, he claimed that he was sexually assaulted by a female offícér on July 15, 2015. During an investigation, the officer stated that she was conducting a pat down frisk of Herndon after he exited the area that medication was distributed, the “Pill Call.” She denied Herndon’s accusation that the- reason she searched him was because another inmate informed her that Herndon was selling his medication, and she denied putting her hands in his pocket, Herndon’s original allegation. On July 30, 2015, after an investigation, the ARP filed by Herndon was rejected. At the second step, Herndon’s request was again denied, finding that there was no reason to doubt the credibility of the officer, which was corroborated by a lieutenant.

After exhausting his administrative remedies, Herndon filed this petition for judicial review, asserting that he was sexually assaulted by the officer during a “shake down.” Herndon requested relief in the form of instructing the officer as to the appropriateness of her actions. The Department answered the petition, denying that the officer sexually assaulted Hern-don.

laThe 19th JDC Commissioner (Commissioner) issued a recommendation pursuant to La. R.S. 15:1177(A)(5) and (9) dismissing the petition for failure to present a substantial rights violation, and thereby failing to state a cause of action or cognizable claim for which relief could be granted. Herndon did file a traversal after receiving the Commissioner’s report. The district' court adopted the recommendation of the Commissioner after a de novo review of the record, and signed a judgment in accordance therewith on July 14, 2016. It is from this judgment that Herndon appeals.

DISCUSSION

Herndon’s petition for judicial review was filed in accordance with Corrections Administrative Remedy Procedure, La. R.S. 15:1171, et seq. Louisiana Revised Statutes 15:1177(A)(9) sets forth the appropriate standard of review- by the district court, which functions as an appellate court when reviewing the Department’s administrative decisions. Lightfoot v. Stalder, 00-1120 (La. App. 1 Cir. 6/22/01), 808 So.2d 710, 717, writ denied, 01-2295 (La. 8/30/02), 823 So.2d 957. A review is mandated to be conducted by the district court without a jury and must be confined to the record. La. R.S. 15:1177(A)(5). Specifically, the court may reverse or modify the administrative decision only if substantial rights of the appellant have been prejudiced because the administrative findings are: (1) in violation of constitutional or statutory provision's, (2) in excess of the statutory authority of the agency, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary, capricious' or characterized by an abuse of discretion, or 14(6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. La. R.S. 15:1177(A)(9); Lightfoot, 808 So.2d at 715-16.

On review of the district court’s judgment under La. R.S. 15:1177, no deference is owed by the court of appeal to the factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. McCoy v. Stalder, 99-1747 (La. App. 1 Cir. 9/22/00), 770 So.2d 447, 450-51.

At the outset, We note that Herndon originally did, not file a brief with this court. After notifying him of such, Hern-don filed a document on February 21, 2017, indicating that on November 27, 2016, he mailed a brief to this court. The only brief in possession of this court is the one filed February 21, 2017, and it does not comply with Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4. Hern-don does not specifically assign any errors and offers no argument as to the merits of his matter. However, out of an interest of justice since Herndori is a pro se -inmate, we will address- the issues he raised' in his petition for judicial review filed in the 19th JDC. See La. C.C.P. art. 2164.

Herndon requested that the officer be punished “to the fullest extent” for allegedly sexually assaulting him. Herndon originally complained that the officer requested whether he had anything in his pockets upon leaving the “Pill Call.” He claimed that she removed his shirt from his pants, had him unbuckle his belt and pants, and “checked inside [his] waist band and the inside of [his pockets].” He asserted that feeling around in his pants exceeded the officer’s authority and that other inmates received a “regular pat down.”

After careful consideration of the administrative record, we conclude that the record fully supports the findings and recommendations of the Commissioner, as adopted by the district court. In recommending that the appeal be dismissed, the Commissioner noted that Herndon had failed to show, that his substantial rights | Rhad been prejudiced, within the meaning of La. R.S. 15:1177(A)(9). The Commissioner concluded that because no penalty was imposed or served by Herndon, and only a pat down of an incarcerated person took place, that no substantial right, meaning a “liberty interest” or other protected due process right, was implicated. The Commissioner explained that if the punishment or discipline affects only the custody status or classification of an inmate and not the date of eventual release, (such as a loss of good-time would),- and is not a dramatic departure from expected prison life, due process merely requires the prisoner to be given the opportunity to give his version of the incident. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997), citing Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (no liberty interest is created by a change in the quality of confinement as opposed to the quantity thereof.). After our review of the record, we agree with the Commissioner.

The Due Process. Clause procedural protections are not triggered by any substantial deprivation imposed by prison authorities. Giles v. Cain, 99-1201 (La. App. 1 Cir. 6/23/00), 762 So.2d 734, 738, citing Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the-considerations underlying our penal system. Giles, 762 So.2d at 738, citing Sandin, 515 U.S. at 485, 115 S.Ct. at 2301. Discipline by prison officials in response to a wide range of misconduct falls within the expected perimeters of the sentence imposed by a court of law. No inmate has a constitutionally protected interest in an ordinary prison disciplinary proceeding unless he suffers some “atypical and substantial hardship” on the inmate in relation to the ordinary incidents of prison life. Giles, 762 So.2d at 738. The type of liberty interest requiring some measure of due process by the state would be those interests in freedom from restraint, where the- penalty'imposed unusually difficult | (¡hardships on the inmate, or a “dramatic departure from basic conditions” in relation to the ordinary instances of serving a prison sentence at hard labor. Sandin, 515 U.S. at 485, 115 S.Ct. at 2301.

Herndon has alleged no “atypical and substantial hardship” or “dramatic departure from basic conditions.” In State v. Guirlando, 509 So.2d 172, 173-74 (La. App. 1 Cir. 1987), quoting, State v. Patrick, 381 So.2d 501, 503 (La. 1980), we stated:

While we have recognized that prisoners are not totally bereft of Fourth Amendment rights by virtue of their incarceration, we have also declared these rights are diminished in nature and scope because of confinement for criminal conduct. We have expressly recognized and declared that an inmate’s expectations of privacy are considerably .less, than those of the free members of our society in general. State v. Dauzat, 364 So.2d 1000 (La. 1978); See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which upheld warrantless room searches and visual body cavity searches of inmates.

A prisoner’s exercise of constitutional rights is limited by the fact of incarceration as well as by valid penological interests such as institutional security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Infringement of an inmate’s constitutional rights is permissible if the actions of prison officials are reasonably related to a valid penological interest. O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404. Institutional security justifies a search of an inmate leaving-the “Pill Call.” A routine pat-down is understood to include a search of the groin area. See Terry v. Ohio, 392 U.S. 1, 17 n.13, 88 S.Ct. 1868, 1877 n.13, 20 L.Ed.2d 889 (1968) (describing a routine pat-down as involving “the groin and area about the testicles”).

Herndon was leaving an area of the prison which contained contraband to rejoin the general population. The Supreme Court has described the mechanism for a standard pat-down search involving precisely the acts of. which Herndon complains. See Terry, 392 U.S. at 17, n.13, 88 S.Ct. at 1877 n.13. (“[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough ^search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire. surface of the legs down to the feet.”).

Herndon has not pleaded any facts to show that the search of his person, -including the genital area, was an “atypical and substantial hardship” or-a “dramatic departure from basic conditions” of being incarcerated. Herndon’s claim that he was searched in his genital area does not involve a “liberty interest” or other protected due process right. Therefore, we agree with the Commissioner that the pat-down search of .Herndon did not rise to the level of a “substantial right” for which a right of judicial review exists,

CONCLUSION

For the above and foregoing reasons, we conclude that the district court did not abuse its discretion in. affirming the .Department’s decision to reject the claims of Ronald Herndon. Thus, the district court’s dismissal of the matter was appropriate under the circumstances. All costs of this appeal are.assessed to Appellant, Ronald Herndon.

AFFIRMED. 
      
      . The office of Commissioner of the 19th JDC was created by statute, La. R.S. 13:711, to ' hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. La. R.S. 13:713(A). The Commissioner’s written findings and recommendations aré submitted to a district court judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5); see Martinez v. Tanner, 11-0692 (La. App. 1 Cir. 11/9/11), 79 So.3d 1082, 1084 n.3, writ denied, 11-2732 (La. 7/27/12), 93 So.3d 597.
     