FOGG v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS (2025)

Gary L. Fogg, an inmate in the custody of the Department of Public Safety and Corrections (DPSC), appeals a ruling of the district court denying his motion for rehearing of the denial of his motion to annul the judgment that dismissed his petition for judicial review with prejudice. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On April 5, 2023, Mr. Fogg filed a petition for judicial review of ARP No. RCC-2022-527. In his ARP, Mr. Fogg complained that his mail was being improperly opened by the legal mail room and/or legal department. Moreover, Mr. Fogg claimed there was a delay in his receipt of mail from the mailroom. DPSC ultimately found that Mr. Fogg failed to provide any evidence to substantiate his allegations. Mr. Fogg sought judicial review of DPSC's denial of his claims in the Nineteenth Judicial District Court in accordance with La. R.S. 15:1171, et seq.²

In response to Mr. Fogg's petition, the Commissioner ³ issued a rule to show cause ordering Mr. Fogg to show cause in writing within forty-five days of June 2, 2023, as to why his petition should not be dismissed for lack of subject matter jurisdiction due to his failure to timely seek judicial review of DPSC's decision within the 30-day peremptive period of La. R.S. 15:1177.⁴

On August 24, 2023, the Commissioner issued her screening report pursuant to La. R.S. 15:1178 and 15:1184-88, wherein she recommended that the district court dismiss Mr. Fogg's petition without prejudice because the petition was untimely, such that the district court had no jurisdiction to consider it. The Commissioner afforded Mr. Fogg an additional opportunity to show that his petition for judicial review was timely by presenting a receipt proving when he received the final DPSC decision, either through his or DPSC's records. The Commissioner stated that Mr. Fogg could provide such proof to the district court by traversal or a request for time to have DPSC provide such proof. Notice of the screening report was sent to Mr. Fogg on August 24, 2023.

On September 18, 2023, Mr. Fogg filed an “Objection to the Commissioner's Screening Recommendation” wherein he asked for thirty additional days to obtain proof that he timely sought judicial review.⁵ On September 20, 2023, the district court denied Mr. Fogg's request for an extension of time.

On the same date, September 20, 2023, the district court signed a judgment dismissing Mr. Fogg's suit without prejudice as untimely in accord with the Commissioner's recommendation.⁶ Notice of the judgment was issued on September 25, 2023.

On January 11, 2024, Mr. Fogg filed a “Motion To Annul [Judgment],” averring that he had recently obtained documents from the mailroom showing his petition for judicial review was timely filed. Mr. Fogg alleged that he tried to get the necessary information to respond to the Commissioner's screening recommendation, but mailroom officials allegedly withheld it from him because they were aware that he complained about the mailroom in his ARP. Mr. Fogg asserted that after his petition was dismissed, prison staff then gave him the information. Mr. Fogg attached a document to the motion to annul entitled, “RAYBURN CORRECTIONAL CENTER LEGAL MAIL RECEIPT LOG,” which bears the date of February 28, 2023, and Mr. Fogg's name, along with “ARP RCC-2022-527.” Mr. Fogg alleged the mail receipt log indicated he did not receive the DPSC's denial of his request for relief until February 28, 2023. He further alleged that he gave his petition for judicial review to a guard on the “early morning of March 30, 2023, at 1:00 [a.m.] to put in the mail box.”⁷ Mr. Fogg asserted his motion to annul was based on La. C.C.P. art. 2004,⁸ and the ill practices were the actions of the mailroom workers at the prison in withholding information pertinent to his ARP.⁹

Mr. Fogg's motion to annul included an order that a hearing be set so that DPSC could show cause as to why the motion to annul should not be granted. Above the blank for the judge's signature, the order was stamped:

DENIED

untimely

January 29 2024

The record does not contain any information as to whether or when notice of this ruling was issued, but on February 27, 2024, Mr. Fogg filed a “Motion Requesting a Rehearing and/or Reconsider Judgment,” wherein he stated that he received a copy of the district court's ruling denying his motion to annul on February 9, 2024. In Mr. Fogg's rehearing motion, he contended that his motion to annul was timely as it was filed within one year of the district court's judgment, citing La. C.C.P. art. 2004(B).¹⁰ Mr. Fogg's rehearing motion included an order that a hearing be set so that DPSC could show cause as to why the motion for rehearing should not be granted. Near the blank for the judge's signature, the order was stamped:

DENIED

March 6 2024

As with the denial of the motion to annul, there is no information in the record as to whether or when notice of the ruling was sent.

On March 19, 2024, Mr. Fogg filed a petition for appeal from the ruling issued on March 6, 2024 denying his rehearing motion. The district court granted the motion for appeal on March 22, 2024.

SUBJECT MATTER JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Harris v. Louisiana Department of Public Safety and Corrections, 2019-1657 (La. App. 1 Cir. 8/3/20), 310 So.3d 211, 214. An appellant's failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Price v. City of Ponchatoula Police Department, 2012-0727 (La. App. 1 Cir. 12/21/12), 111 So.3d 1053, 1055. When an appellant fails to file a devolutive appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment. Price, 111 So.3d at 1055.

Pursuant to La. C.C.P. art. 2087(A), a devolutive appeal may be taken within sixty days of: (1) The expiration of the delay for applying for a new trial, if no application has been filed timely; or (2) the date of the mailing of notice of the court's refusal to grant a timely application for a new trial. Louisiana Code of Civil Procedure article 1974 provides the delay for applying for a new trial shall be seven days, exclusive of legal holidays, with the delay commencing to run on the day after the clerk has mailed the notice of judgment as required by La. C.C. P. art. 1913.¹¹ Once the seven-day period for filing a motion for new trial has passed with no motion for new trial filed, the appellate delays begin to run. Nelson v. Teachers’ Retirement System of Louisiana, 2010-1190 (La. App. 1 Cir. 2/11/11), 57 So.3d 587, 589-90. Moreover, the untimely filing of a motion for new trial does not interrupt the delay for timely taking an appeal even if the district court does not recognize the motion as untimely. Nelson, 57 So.3d at 590.

After the appeal in this case was lodged, this court issued a rule to show cause as to the timeliness of the appeal of the judgment dismissing the petition for judicial review, which was signed on September 20, 2023, with notice of the judgment issued on September 25, 2023. The rule to show cause was referred to the panel hearing the merits of the appeal.¹² In response to the rule to show cause order, Mr. Fogg does not dispute that an appeal of the September 20, 2023 judgment is untimely, but he directs this court's attention to the March 6, 2024 judgment, which he contends was timely appealed. Because he assigns as error the district court's judgment dismissing his petition of judicial review, we will review whether the appeal of the September 20, 2023 judgment is timely.

In this case, the delay for filing a motion for new trial began on September 26, 2023, and ended on October 4, 2023. See La. C.C.P. art. 1974. Therefore, the delay for filing a motion for appeal began on October 5, 2023, and ended on December 4, 2023. See La. C.C.P. art. 2087. Mr. Fogg failed to timely file a motion for appeal of the September 20, 2023 judgment, and any appeal as to that judgment is untimely. Mr. Fogg's failure to timely file a devolutive appeal of the September 20, 2023 judgment is a jurisdictional defect, and this court has no jurisdictional power and authority to reverse, revise, or modify that judgment after the time for filing a devolutive appeal has elapsed.

We must also consider this court's subject matter jurisdiction as to the ruling denying Mr. Fogg's motion for rehearing as to the denial of his motion to annul because his motion for appeal refers to the March 6, 2024 denial of his motion for rehearing, not the September 20, 2023 judgment. See McCoy v. Stalder, 1999-1747 (La. App. 1 Cir. 9/22/00), 770 So.2d 447, 451. We note that in Mr. Fogg's appellate brief, he assigns error to the dismissal of his petition for judicial review as untimely (the September 20, 2023 judgment), the denial of his motion to annul that judgment (the January 29, 2024 ruling), and the denial of the motion for rehearing or reconsideration of that ruling (the March 6, 2024 ruling).

This court's appellate jurisdiction extends to final judgments and to interlocutory judgments when expressly allowed by law. See La. C.C.P. art. 2083(A) and (C). Final judgments are those that determine the merits in whole or in part. See La. C.C.P. art. 1841. Pursuant to La. C.C.P. art. 1911(A), “every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge.”

This court lacks jurisdiction to review the January 29, 2024 ruling purporting to deny the motion to annul, and it also lacks jurisdiction to review the March 6, 2024 denial of the motion for rehearing as to the motion to annul. Those rulings do not contain the district court judge's name, nor are they signed by the judge.¹³ Moreover, the rulings do not meet the requirements of La. C.C.P. art. 1918(A) that they be identified as such by appropriate language. Thus, no appeal can be taken from these rulings and the delays for appeal do not commence to run until the rulings are properly issued. See Interest of P.-M., D., 2018-1115 (La. App. 1 Cir. 11/5/18), 2018 WL 5784903, *2 (unpublished); Martin v. American Benefit Life Insurance Co., 274 So.2d 442, 444 (La. App. 1 Cir. 1973). To the extent that the motion for appeal is premature, any defect arising from a premature motion for appeal is cured once a final judgment has been signed. See Overmier v. Traylor, 475 So.2d 1094, 1094-95 (La. 1985) (per curiam); Green v. Patient Compensation Fund Oversight Board, 2021-1310 (La. App. 1 Cir. 7/5/22), 344 So.3d 161, 165 n.5. Accordingly, we conclude that the rulings before us are not final, appealable judgments, and thus, this appeal must be dismissed.

CONCLUSION

For the reasons stated above, we dismiss this appeal. All costs of this appeal are assessed against Gary L. Fogg.

APPEAL DISMISSED.

FOOTNOTES

2.   Following the filing of his petition for judicial review, Mr. Fogg filed a “Motion for Discovery of Evidence,” wherein he sought an order for the discovery of evidence in his case.

3.   The office of the Commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner's written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5). Englade v. Louisiana Department of Corrections, 2021-0132 (La. App. 1 Cir. 12/30/21), 340 So.3d 952, 957, writ denied, 2022-00209 (La. 4/12/22), 336 So.3d 82.

4.   Louisiana Revised Statutes 15:1177(A) provides, in pertinent part, “Any offender who is aggrieved by an adverse decision ․ may, within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court․” (Emphasis added.) See also La. R.S. 15:1177(A)(1)(a). In order for the jurisdiction of the reviewing court to attach, the petition for judicial review must be timely filed. Haynes v. Louisiana Department of Public Safety and Corrections, 2021-0892 (La. App. 1 Cir. 2/25/22), 341 So.3d 590, 591. Moreover, this thirty-day period is peremptive, rather than prescriptive, and may not be interrupted or suspended. Haynes, 341 So.3d at 591.In this xmatter, DPSC's denial of Mr. Fogg's claims was signed on February 22, 2023, but Mr. Fogg's petition for judicial review was not received by the district court until April 5, 2023. The rule to show cause noted that the delivery of the petition to prison authorities for forwarding to the district court constituted the filing of the petition, citing Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). The rule to show cause further stated that the date Mr. Fogg signed an acknowledgement of his receipt of the final agency decision was unclear based on the attachments he submitted.

5.   Mr. Fogg attached several exhibits to his objection. Mr. Fogg attached non-file-stamped copies of everything he previously filed in the suit record, such as his petition for judicial review and the unsigned in forma pauperis order. Mr. Fogg also attached another copy of the document pertaining to his ARP bearing a handwritten notation that was not included on the copy of the document originally filed with the petition for judicial review. The handwritten notation stated, “Rec'd by G. Fogg 2/28/2023 801 pm.” Lastly, Mr. Fogg attached several letters apparently sent to prison officials about his issues with mail, several offender funds withdrawal request forms for postage, a copy of an envelope marked “RETURN TO SENDER,” his notice of and the screening report, and the notice of filing of his petition for judicial review.

6.   On October 9, 2023, Mr. Fogg filed a letter to the Clerk of Court for the Nineteenth Judicial District Court wherein he stated that he had ten days to respond to the receipt of notice apparently of the Commissioner's screening report, which he alleged he received on August 28, 2023. He attached a copy of his offender funds withdrawal form for postage dated September 6, 2023, apparently to show his response to the Commissioner's screening report, wherein he sought an extension of time to provide proof was timely.

7.   The petition for judicial review was signed and notarized on March 30, 2023.

8.   Louisiana Code of Civil Procedure article 2004(A) provides, “A final judgment obtained by fraud or ill practices may be annulled.”

9.   He also complained that the Commissioner could have issued an order directing prison officials to produce proof, but did not.

10.   Louisiana Code of Civil Procedure article 2004(B) states, “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

11.   Louisiana Code of Civil Procedure article 1913 provides:A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exception, answer, or other pleading, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.C. Except when service is required under Paragraph B of this Article, notice of the signing of a default judgment shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

12.   Mr. Fogg's appeal was previously dismissed as abandoned because his brief was not filed by the date set forth in the notice of abandonment. However, on September 18, 2024, Mr. Fogg timely filed a motion for rehearing, urging that his appeal should be reinstated. See La. C.C.P. art. 2166(A)(“Within fourteen days of the transmission of the notice of the judgment of the court of appeal, a party may apply to the court of appeal for a rehearing.”). On November 4, 2024, this court granted the rehearing application and reinstated the appeal because it appeared that Mr. Fogg delivered his appellant's brief to prison authorities before the deadline expired. See Tatum v. Lynn, 93-1559 (La. App. 1 Cir. 5/20/94), 637 So.2d 796, 799 (this court applied the federal “mailbox” rule and held that an inmate's pleadings are deemed filed at the time they are delivered to prison authorities for forwarding to the court).

13.   Mr. Fogg complains in his appellant brief that the rulings on the denial of the motion to annul and the denial of the motion for rehearing were not signed by a judge.

STROMBERG, J.