Louisiana Cases February 21, 2020: Ducksworth v. La. Dep't of Pub. Safety & Corr.

Case Description

Akando Ducksworth #714207, Dixon Correctional Institute, Jackson, Louisiana, Plaintiff/Appellant In Proper Person

Jonathan R. Vining, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Louisiana Department of Public Safety and Corrections

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

McClendon, J.

Akando Ducksworth, an inmate incarcerated by the Louisiana Department of Public Safety and Corrections (the Department), appeals a district court judgment that dismissed his petition for judicial review. We affirm.

On May 25, 2017, Mr. Ducksworth filed an administrative remedy procedure (ARP) with the Department requesting his release based on medical parole. See LSA-R.S. 15:1171, et seq. After the denial of his ARP, Mr. Ducksworth filed a petition for judicial review on May 3, 2018. See LSA-R.S. 15:1177. In his petition, Mr. Ducksworth alleged that he has a rare medical condition that prevents him from speaking. He asserted that he began speech therapy lessons at University Medical Center (UMC) in New Orleans in April 2017, but

[298 So.3d 758]

that after eight months, his vocal quality declined "to the level of only a faint whisper." Mr. Ducksworth further alleged that in December 2017, UMC cancelled his therapy "because he showed no improvement in his condition" and that since the cancellation, he has "been on a steady decline." Mr. Ducksworth contended that on a visit to UMC in March 2018, he asked the doctors to renew his therapy sessions, "but was informed that no future sessions would be scheduled because the prognosis for his recovery was poor." He asserted that he met the criteria for medical parole and requested that he be granted an application for medical parole.

The Department filed an answer denying Mr. Ducksworth's claims and specifically stating that medical parole is discretionary and not mandatory as framed by Mr. Ducksworth. The Department also attached the administrative record. Thereafter, in response to the court's order, the Department supplemented the record with DOC Regulation HC-06B, regarding medical parole. Following a status conference, the commissioner issued a recommendation that Mr. Ducksworth's appeal be dismissed with prejudice and at his costs for failure to state a cause of action for which relief could be granted. After considering the commissioner's report and Mr. Ducksworth's traversal thereof, the district court adopted the commissioner's recommendation and dismissed Mr. Ducksworth's judicial review of his ARP, with prejudice. Mr. Ducksworth now appeals, contending that that his condition has "significantly deteriorated since his sentencing," qualifying him for medical parole eligibility.

Louisiana Revised Statutes 15:574.20A provides, in pertinent part, that "any person sentenced to the custody of the Department of Public Safety and Corrections may, upon referral by the department, be considered for medical parole or medical treatment furlough by the committee on parole." The Department's Health Care Policy No. HC-06B, regarding medical parole, provides the following relevant definitions, in part:

A. Medical Parole: A specific type of parole for offenders who, because of a medical condition, are determined by the Department to be a permanently disabled offender....

B. Permanently Disabled Offender: For the purpose of this policy, any offender who is unable to engage in substantial gainful activity by reason of any medically determinable physical impairment which can be expected ... to be permanently irreversible ....

Health Care Policy No. HC-06B, Paragraph 5A and B. The Department's health

[298 So.3d 759]

care policy also provides that any permanently disabled offender may be considered for medical parole. However, it also provides that "[g]enerally, medical parole consideration shall not be given to an offender when the offender's medical condition was present at the time of sentencing, unless the overall condition has significantly deteriorated since that time." Health Care Policy No. HC-06B, Paragraph 6B.

A review of the record shows that Mr. Ducksworth suffers from recurrent respiratory papilioma (RRP) of the larynx. RRP is a benign tumor that grows on the vocal cords repeatedly causing increasing difficulty with speech and that can eventually obstruct the airway. The treatment for this condition is repeated surgical resections. Although patients with RRP require multiple surgeries, RRP recurs on an irregular timeline, and, therefore, it is not possible to predict how often surgery is required. The record further indicates that Mr. Ducksworth's last surgery was performed on August 3, 2016.

In its report, the commissioner noted that an offender's release on medical parole is not mandatory or an entitlement and that it is the Department's responsibility to identify offenders who may be eligible for medical parole. The commissioner found that although Mr. Ducksworth initiated the screening process himself by filing his ARP grievance, the process does not specifically prohibit him from doing so. The commissioner pointed out, as stated in the first step response, that Mr. Ducksworth was evaluated by a health care practitioner who determined that Mr. Duckswrth was not a candidate for medical parole. Although Mr. Ducksworth maintained that the Department failed to consider that his condition had gotten worse since his sentencing, the commissioner nevertheless determined that Mr. Ducksworth failed to present any medical evidence proving that his condition had significantly deteriorated to a state of permanent irreversibilty such that the Department abused its discretion in not considering him for medical parole. The commissioner found that based on the medical evidence in the record, Mr. Duckworth's condition is recurrent but not permanently irreversible. Therefore, the commissioner concluded that Mr. Ducksworth failed to state a cause of action that would permit the district court to intervene in the authority of the prison administration to implement its health care policies.

Under LSA-R.S. 15:1177 A(9), the Department's decision on an ARP may be reversed or modified by the district court "only if substantial rights of the appellant have been prejudiced" because of the administrative decision. On review of the

[298 So.3d 760]

district court's judgment in a suit for judicial review under LSA-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. Williams v. Louisiana Department of Public Safety and Corrections, 18-0268 (La.App. 1 Cir. 9/21/18), 257 So.3d 690, 692-93.

Based on our thorough review of the record, we find that the district court did not err in concluding that Mr. Duckworth's substantial rights were not prejudiced. Therefore, we find no error by the district court in its dismissal of Mr. Ducksworth's suit with prejudice. Accordingly, the judgment of the district court is affirmed. All costs of the appeal are assessed against the appellant, Akando Ducksworth.

WRIT APPLICATION DENIED; JUDGMENT AFFIRMED.