JAKHEL BROWN v. STATE OF LOUISIANA THROUGH THE DEPT OF PUBLIC SAFETY AND CORRECTIONS (2025)

Plaintiff, Jakhel Brown, appeals the decision of the Thirty-Third Judicial District Court granting peremptory exceptions of res judicata and no cause of action filed by Defendant, the State of Louisiana, through the Department of Public Safety and Corrections (the State), resulting in the dismissal of his suit. For the reasons explained below, we reverse the trial court's judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Brown was incarcerated at the Allen Correctional Center in Kinder, Louisiana. He was summoned to a meeting with the warden and other officers who told him they had learned that someone had been hired to murder him. After that meeting, the warden and correctional center employees decided Brown should be transferred out of the general population for his safety. Brown staged a four-day hunger strike in response to his transfer. He was then moved to another cell in the Administrative Segregation Unit. However, as Brown continued to receive death threats, he was transferred into another Administrative Segregation cell.

Later in the day of his transfer, Michael Nicholas was moved into Brown's cell. Brown alleged that “bad blood” existed between Nicholas and himself. He further alleged that Master Sargeant Bihm placed Nicholas into his cell after conducting a “pat-down” and visual search of Nicholas.

The following day, Nicholas stabbed Brown approximately eighteen times with a weapon, seriously injuring him and blinding him in one eye. Brown alleges that Bihm acted on instructions from his superiors and disregarded Brown's safety by placing Nicholas in his cell without adequately searching his person or belongings. Brown filed this suit in the Thirty-Third Judicial District Court against the State.

Brown initially filed suit in federal district court against the warden of the Allen Correctional Center, Keith Cooley, and employees of the State, Master Sergeant Bihm and Colonel Allemond, for his injuries arising out of the stabbing. Brown did not sue the State in federal court because of the State's sovereign immunity. The federal suit was dismissed, with the court granting Warden Cooley's Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Dismissal for Failure to State a Claim Upon Which Relief Can be Granted; granting Bihm's Motion to Dismiss for Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief Can Be Granted; and granting Allemond's Motion to Dismiss for Failure to Serve Pursuant to FRCP Rule (4)(m).

Because of these judgments, the State filed an exception of res judicata in this state court suit, as well as an exception of no cause of action and motion to strike. All were granted by the state trial court, resulting in the dismissal of Brown's suit in its entirety.

STANDARD OF REVIEW

In reviewing a decision on an exception res judicata, the court must determine whether the trial court's decision was legally correct. Bd. of Sup'rs of La. State Univ., Agric. & Mech. Coll. v. Dixie Brewing Co., Inc., 13-250, 13-251, 13-252 (La.App. 4 Cir. 12/14/13), 131 So.3d 130, writ denied, 14-0007 (La. 2/12/14), 132 So.3d 399. Whether a prior judgment has the effect of res judicata in later litigation is a question of law, requiring a de novo review. Riggs v. State Farm Mut. Auto. Ins. Co., 21-218 (La.App. 3 Cir. 4/6/22), 337 So.3d 950. The conclusion as to whether the two suits are sufficiently similar as to merit the application of res judicata is legal in nature, and merits de novo review. Pierrotti v. Johnson, 11-1317 (La.App. 1 Cir. 3/19/12), 91 So.3d 1056.

Regarding the granting of an exception of no cause of action, the court of appeal conducts a de novo review because the exception raises a question of law and the trial court's ruling must rely only on the allegations in the petition. Minvielle v. Iberia Par. Gov't, 19-269 (La.App. 3 Cir. 11/20/19), 317 So.3d 588.

ASSIGNMENTS OF ERROR

On appeal, Brown asserts three assignments of error:

1. The trial court erroneously granted the appellee's Preemptory [sic] Exception of Res Judicata and/or No Cause of Action.

2. The trial court failed to afford Appellant the opportunity to amend his petition.

3. Any errors patent on the face of the record.

The last assignment is a catch-all that is not addressed in the briefing. We find no errors patent, so we address only the first two.

LAW AND ANALYSIS

The Trial Court Erred in granting the Exception of Res Judicata

The burden of proof in a peremptory exception of res judicata rests with the party filing the exception. Johnson v. Natchitoches Cmty. Improvement Found., Inc., 21-595 (La.App. 3 Cir. 3/30/22), 350 So.3d 557. If any doubt exists regarding the application of res judicata, the objection must be overruled. Landry v. Town of Livingston Police Dept., 10-673 (La.App. 1 Cir. 12/22/10), 54 So.3d 772.

The party filing the peremptory exception of res judicata bears the burden of proving its elements by a preponderance of the evidence. SCS Enterprises, Inc. v. St. Pierre, 15-116 (La.App. 5 Cir. 9/23/15), 176 So.3d 663. Further, “[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Also, “[d]ocuments attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Id. Furthermore, “[a]ppellate courts are courts of record, and may not review evidence that is not in the appellate record or receive new evidence.” Id.

In this case, the State merely attached the federal district court judgments and rulings to its memorandum. The court minutes, transcript of the hearing, and record in general lack proof of these items being introduced into evidence. Also, the federal court petition is not in the record. Review of the petition is essential to see if the facts adjudicated by the federal court were the same as those alleged in state court. Because the State failed to introduce any evidence, it could not carry its burden, and the trial court erred in granting its exception of res judicata.

The first circuit court of appeal came to the same conclusion under similar circumstances. In Jefferson, 341 So.3d 603, the court reversed and remanded the trial court's grant of an exception of res judicata because the mover merely attached elements of the prior suit record, including the petition for damages, to the memorandum in support of the exception and did not move to introduce the attachments into evidence at the hearing on the exception. The first circuit emphasized in Jefferson that when “a party raises an objection of res judicata, the court must examine not only the pleadings but, also, the entire record in the first suit to determine whether the second suit is in fact barred by res judicata.” Id. at 607. Relevant to the issues in this case, the Court held:

The record contains no competent evidence showing that the present matter has been previously adjudicated. Without any evidence, the defendants could not meet their burden of proof on the objection. Accordingly, the trial court judgment sustaining the defendants’ objection of res judicata must be reversed.

Id.

The fourth circuit came to a similar conclusion in White v. Cox Operating, LLC, 16-901 (La.App. 4 Cir. 4/5/17), 229 So.3d 534. It cited the same principles when faced with a record lacking properly introduced evidence. Additionally, “there is no provision in our law for [the] court to take judicial notice of the suit records in another court.” La. Business College v. Crump, 474 So.2d 1366 (La.App. 2 Cir. 1985).

The State has suggested that the trial court could to take judicial notice of the federal court proceedings. But we find nothing in the record that the trial judge took such notice.

The State also suggests that the parties treated the documents as introduced since they were referenced at the hearing. This, the State argues, amounted to a judicial confession as to their existence and authenticity. The law in Louisiana generally does not permit the taking of judicial notice of proceedings in other courts. Instead, such suit records must be properly introduced into evidence. This circuit has found that the pleadings, orders, and minute entries filed in federal proceedings were not susceptible of judicial notice by the court of appeal. Finnie v. LeBlanc, 03-1013 (La.App. 3 Cir. 3/10/04), 875 So.2d 71. There, the particular issue was not identical to the issue in this case, but it was whether the judicial notice provisions in our law permit a case in federal court to be subject to such judicial notice. We stated:

LIC implores us to supplement this appeal record to include “all pleadings, orders, and minute entries filed in the Chapter 7 bankruptcy proceedings” ․ on the docket of the United States Bankruptcy Court for the Western District of Louisiana. We decline to do so. These items are not in the record of the trial court proceedings. Appellate courts are not authorized to accept evidence. Further, the proposed submissions are insusceptible of judicial notice under La.Code Evid. arts. 201–202.

Finnie, 875 So.2d at 79. (emphasis added).

Additionally, other circuits have said there is no provision in Louisiana law for taking judicial notice of proceedings in other courts. See Sternberg v. Smith, 385 So.2d 469 (La.App. 1 Cir. 1980); Mattox v. Am. Indem. Co., 259 So.2d 79 (La.App. 4 Cir. 1972); State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036. Of particular relevance here was the court's finding in Sternberg, where the first circuit stated:

There is in the record a copy of an “Order Staying Garnishment Proceedings Against Bankrupt.” ․ However, the order is not marked as filed, is not a properly certified copy or an original, and there is no showing that any service was ever made on any of the parties named therein. The order was not admitted into evidence, but the trial judge remarked that, since it was in the record, he would take judicial notice of it.

Sternberg, 385 So. 2d at 470. (emphasis added). The trial court erred by taking judicial notice of the order. Id. Consequently, neither we nor the trial court can take judicial notice of the federal court proceedings.

Next, a general discussion of the federal court proceedings at the hearing on the exception does not amount to the Brown's tacit judicial confession regarding the existence and substance of those proceedings. Louisiana Civil Code Article 1853 (emphasis added) states: “A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against a party who made it.” As cited from Denoux above, the Louisiana Supreme Court has made it clear that evidence must be introduced to be considered and simply attaching it to the memorandum is not enough, thereby leaving no room for “tacit” judicial confessions on the part of the opposing party. Denoux, 983 So.2d 84. A tacit judicial confession exception to this holding would amount to an exception that swallows the rule.

In Denoux, the plaintiffs had the burden of proof on an exception of prescription. To meet their burden, the plaintiffs merely attached deposition testimony to their memorandum. The defendants did not appear to object. The Court stated:

Plaintiffs have admitted that they did not introduce the depositions into evidence, but argue that all parties and the court of appeal treated the depositions as if they had be introduced. Thus, Plaintiffs suggest that defendants have essentially waived this argument.

Denoux, 983 So.2d at 87-88.

Despite the plaintiffs’ argument that any objections to the depositions, which were only attached to the memorandum and never formally introduced were waved, the supreme court found:

None of the depositions relied on by the Plaintiffs were properly before the trial court at the time of the hearing, nor were they properly part of the record on appeal. Thus, based on the content of the record before us, we must conclude that Plaintiffs failed to meet their burden of proof in this matter. As this Court noted in Cichirillo, “[f]ailure to adequately prepare the record by neglecting to offer matters into evidence can alter the outcome of a case, especially in an exception of prescription where the burden of proof may shift between the parties.”

Denoux, 983 So.2d at 89. Likewise, the State's failure to adequately prepare the record by neglecting to offer the federal court suit record into evidence, particularly where it had the burden of proof on the peremptory exception, has resulted in its failure to meet its burden.

The Trial Court erred in granting the Exception of No Cause of Action

For purposes of an exception of no cause of action, the allegations of the plaintiff's petition must be taken as true. Tooke & Reynolds v. Bastrop Ice & Storage Co., 172 La. 781, 135 So. 239 (La.1931). If there are multiple theories of recovery that arise out of the operative facts of a single occurrence, a judgment on an exception of no cause of action should not be partially granted to dismiss a theory of recovery. State, by and through Caldwell v. Astra Zeneca AP, 16-1073 (La.App. 1 Cir. 4/11/18), 249 So.3d 38, writs denied, 18-766, 18-758, (La. 9/21/18), 252 So.3d 899, 904. The Louisiana Code of Civil Procedure states, “Every pleading shall be so construed as to do substantial justice.” La.Code Civ.P. art. 865. Additionally, the Code emphasizes, “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” La.Code Civ.P. art. 5051.

Brown alleged that the State was responsible for the operation and supervision of the facility that imprisoned him. He further alleged that he was deprived of his rights and privileges under the Louisiana Constitution as well the United States Constitution; that the State was aware that a “hit” had been placed on him; that MSgt. Bihm acted with callous disregard for his safety when he failed to adequately search the new cellmate who caused Brown's injuries; and that Defendants’ agents and/or employees were negligent in failing to properly search and screen the new cellmate, especially considering this person's propensity for violence. These failures resulted in his injury, according to Brown.

The generous provisions in Louisiana law do not require a claimant to allege every detail surrounding the transaction or occurrence giving rise to the cause of action. Consequently, as these allegations must be taken as true for purposes of the exception. Construing them to do substantial justice, Brown has generally alleged a cause of action. If the trial court felt particular details were missing from the petition which kept it from stating a cause of action, the appropriate remedy was to allow Brown to amend his petition.

The jurisprudence states that if a plaintiff can remove the grounds of a defendant's peremptory exception of cause of action, he should be allowed to amend the petition. Robinson v. Moises, 14-1027 (La.App. 4 Cir. 6/10/15), 171 So.3d 1108. An exception of no cause of action based on an insufficiency of allegations in the petition is essentially an exception of vagueness. In those circumstances, Brown should be allowed to amend his petition rather than face dismissal of the suit. United Carbon Co. v. Miss. River Fuel Corp., 230 La. 559, 89 So.2d 122 (La.1956).

Lastly, at the trial court level, but not in its appellate brief, the State alleged that Brown had no cause of action because of the immunity provisions protecting certain state entities and their employees from liability found in La.R.S. 9:2798.1. We address this argument as there are some instances in the jurisprudence that have found certain immunity provisions prevent the formation of a cause of action.

This circuit, as well as the Louisiana Supreme Court, has generally held that immunity provisions are considered affirmative defenses. Mouton v. Hebert's Superette, Inc., 10-787 (La.App. 3 Cir. 12/8/10), 53 So.3d 561; Brown v. Adair, 02-2028 (La. 4/9/03), 846 So.2d 687; Walls v. Am. Optical Corp., 98-455 (La. 9/8/99), 740 So.2d 1262; Other circuits have referred to the immunity provision implicated in this case, La.R.S. 9:2798.1, as an affirmative defense. Populis v. State Dep't of Transp. and Dev., 16-657, 16-658, 16-655, 16-656 (La.App. 5 Cir. 5/31/17), 222 So.3d 975, writ denied, 17-1106 (La. 10/16/17), 228 So.3d 753; and White v. City of New Orleans, 00-2683 (La.App. 4 Cir. 1/9/01), 806 So.2d 675.

This court addressed whether an affirmative defense of immunity can form the basis of an exception of no cause of action in Mouton v. Hebert's Superette, Inc., 10-787 (La.App. 3 Cir. 12/8/10), 53 So.3d 561. There, we found that “[t]he jurisprudence of this state has long held that an affirmative defense may not form the basis of a peremptory exception when the asserted defense goes to the merits of the case.” Id. at 565. Importantly, we found that instead, “as an affirmative defense, the issue should be referred to the merits, and a motion for summary judgment is, therefore, the proper procedure for addressing it prior to trial. [citation omitted]” Id.

Mouton discusses some instances where an immunity[,] provision goes beyond a mere shield of liability but structurally affects the creation of a cause of action. In those instances, an exception of no cause of action may be an appropriate procedural vehicle. Louisiana Revised Statutes 9:2798.1, however, is akin to the other immunity provisions for which an exception of no cause of action is inappropriate, because it “can only function to exempt the defendants from liability if they are able to prove additional facts to satisfy the requirements for immunity,” such as demonstrating the act or omission arose out of policymaking or discretionary acts. Mouton, 53 So.3d at 565.

Additionally, the statute itself clarifies that “[t]he legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty.” La.R.S. 9:2798.1. Sovereign immunity could potentially prevent the creation of a cause of action under the reasoning found in Mouton, but the legislature was explicit that La.R.S. 9:2798.1 does not create sovereign immunity.

Considering the above, we find that the trial court erred in granting the State's exception of no cause of action. Rather, summary judgment would be the appropriate procedural method for addressing defenses of immunity or lack of evidence to support the general allegations of negligence. Consequently, we reverse the trial court's decision and remand the matter to the lower court.

DECREE

The judgment of the trial court granting the exceptions of res judicata and no cause of action is reversed and vacated, and we remand to the trial court for further proceedings consistent with this opinion. Costs of the appeal are assessed against the State in the amount of $1,096.28.

REVERSED AND REMANDED.

DAVIS, Judge.