Thomas v. Leblanc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CARSON THOMAS, DOC 392537

CIVIL ACTION

VERSUS

NO. 18-496-JWD-RLB

JAMES M. LEBLANC, SECRETARY OF

THE LOUISIANA DEPARTMENT OF

PUBLIC SAFETY AND CORRECTIONS,

ET AL.

RULING AND ORDER

This matter comes before the Court on the second Rule 12(b)(6) Motion to Dismiss (Doc.

20) filed by Defendant Sheryl Ranatza. Plaintiff Carson Thomas opposes the motion. (Doc. 21.)

No reply was filed. The Court has carefully considered the law, the facts in the record, and the

arguments and submissions of the parties and is prepared to rule. For the following reasons,

Defendant’s motion is granted.

I. Relevant Factual Background

The following allegations are taken from the Complaint for Declaratory and Injunctive

Relief (“Complaint” or “Compl.”) (Doc. 1). They are assumed to be true for purposes of this

motion. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03 (5th Cir. 2014).

Plaintiff is an inmate housed at Dixon Correctional Institute. (Compl. at 1.) Plaintiff

brings this § 1983 action seeking declaratory and injunctive relief “alleging violation of Due

Process, ex post facto application of law and of a liberty interest cognizable under the United

States Constitution and created by the State of Louisiana.” (Id. ¶ 2.)

Defendants in this action are James LeBlanc, Secretary of the Louisiana Department of

Public Safety and Corrections (“DPSC”), and “The Committee on Parole of the Louisiana Board

of Pardons through the chair, Sheryl Ranatza.” (Id. ¶ 1.) Only Ranatza brings this motion.

On February 9, 1997, Plaintiff was arrested for one count of armed robbery. (Compl. ¶¶

4–5.) Plaintiff was convicted and sentenced to 50 years with credit for time served. (Id. ¶ 5.)

Plaintiff’s sentence was later amended to 30 years with credit for time served. (Id. ¶ 5.) Plaintiff

has served 21 years and is currently 46 years old. (Id. ¶ 7.)

“For most of the past 20 years,” Plaintiff’s “master prison records reflect[ed] a parole

eligibility date of 2017”. (Id. ¶ 7.) This is because of Act 790, also known as “geriatric parole,”

which “provides an offender serving 30 years or greater shall be eligible for parole upon serving

20 years of his sentence and attaining the age of 45.” (Id. ¶ 7.)

On October 12, 2016, Plaintiff “was brought before the Committee on Parole for his

initial parole hearing pursuant to Act 790.” (Compl. ¶ 8.) “Upon entering the parole hearing, Mr.

Thomas was informed – for the first time – that he is not parole eligible under Act 790 and must

serve 85% of his sentence before becoming parole eligible, pursuant to Act 1099.” (Id. ¶ 8.)

Plaintiff devotes an entire section of his Complaint to the passage and legislative history

of Act 60 of 1987 and Act 760 of 1990. (Compl. ¶¶ 9–18.) This section describes the

development of “geriatric parole” in Louisiana. (Id.)

This section then describes Act 1099 of 1995, “which changed the rate at which offenders

earned good time for crimes of violence.” (Compl. ¶ 19.) Act 1099 “specifically decreased the

rate at which prisoners earned good time for crimes of violence, requiring that for such offenses

the offender must serve 85% of his sentence before being eligible for release on good time.” (Id.)

Plaintiff then details the legislative history of this act. (Id. ¶¶ 20–21.)

Next, the Complaint describes Act 624 of 2008, which “specifically removed those

individuals convicted of armed robbery from geriatric parole eligibility.” (Id. ¶ 22.) Plaintiff

alleges that the law took effect in August of 2008 and “applied prospectively to all armed

robberies committed on or after this date.” (Id.)

Plaintiff then claims that, because he was arrested on February 9, 1997, for armed

robbery, has served 21 years of his sentence, and is 46 years old, “[h]e is therefore eligible for

geriatric parole under Act 790.” (Compl. ¶ 23.) Plaintiff further asserts:

In denying Mr. Thomas parole eligibility, the DPSC relied upon Act 1099 and

stated that Mr. Thomas must serve 85% of his sentence before becoming eligible

for parole. However, parole and good time are clearly distinct forms of statutory

release. While Mr. Thomas is ineligible for release on good time until he has served

85% of his sentence, Mr. Thomas' eligibility for geriatric parole is unaffected, as

his offense occurred prior to 2008, when the legislature clearly removed armed

robbers from geriatric parole eligibility. . . .

In denying his second-step, the Department of Corrections informed Mr. Thomas

that pursuant to DPSC Regulation B-04-004 F(2), geriatric parole (Act 790) does

not apply to offenders with offense dates committed on or after January 1, 1997.

Clearly, DPSC has arbitrarily modified its internal regulations, as B-04-004F(2)

previously provided:

F. Notwithstanding any other law to the contrary, unless eligible for parole

at an earlier date, an offender sentenced for a term of imprisonment with or

without benefit of parole for 30 years or more shall be eligible for parole

consideration upon serving at least 20 years in actual custody and upon

reaching the age of 45. (Act No. 790 of the 1990 Regular Session). Note:

Those offenders convicted of a crime of violence on or after January 1, 1997

must also have served at least 85% of the sentence imposed.

1) The above provision does not apply to those offenders who are serving a

life sentence.

2) Pursuant to Act No. 624 of the 2008 Regular Session, the above provision

does not apply to those offenders convicted of La. R.S. 14:64 when the

offense was committed on or after August 15, 2008.

(Id (emphasis by Plaintiff).)

Plaintiff alleges on information and belief, that “there are other individuals similarly

situated to [Plaintiff], who committed an armed robbery prior to August 15, 2008, and are being

denied geriatric parole eligibility under Act 790.” (Id. ¶ 25.) According to Plaintiff, he has

“received at least three master prison records that reflected a parole eligibility date in accordance

with Act 790.” (Id. ¶ 26.) Plaintiff claims:

Because of the inscribing of the master prison record with a parole eligibility release

under Act 790, the regulation B-04-004 and the actual practice of the DPSC and

the Committee on Parole, a liberty interest has been created. The expectation of the

population of armed robbery offenders whose offense dates are between January l,

1997 and August 15, 2008, is that they will receive a fair parole hearing upon

reaching the"20/45" provisions of the geriatric parole statute.

(Id. ¶ 27.)

Plaintiff next discusses “certain agreements” made between DPSC and counsel for

Plaintiff in litigation entitled David Tell v. Richard Stalder, Number 541,059, Section 8,

Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana. (Compl. ¶¶

28–32.) Under one agreement, “the outcome of the Tell litigation would apply to all prisoners

with armed robbery convictions.” (Id. ¶ 29.) In another, “master records would reflect the Act

790 dates for armed robbery inmates.” (Id.¶ 30.) Further, the parties “agreed in the Tell litigation

that no appeal would be taken from the State District Court ruling in Tell and that Tell would go

final.” (Id. ¶ 31.) According to Plaintiff, this last agreement “further set[s] up an expectation that

the “20/45” practice would continue.” (Id. ¶ 32.)

Plaintiff then makes allegations about another settlement in Francis v. Leblanc, No. 13-

5691-JJB-RLB (M.D. La.). (Compl. ¶ 33.) Specifically, Plaintiff asserts:

At issue in this case was that the DPSC had removed parole eligibility from armed

robbers whose offenses occurred prior to January l, 1997. As part of the settlement

order, the DPSC agreed to restore Act 790 parole eligibility to those offenders

whose armed robbery offense occurred prior to January 1, 1997. . . . However, the

Francis decision pretermitted any decision concerning those offenders convicted

of armed robbery between January 1, 1997 and August 15, 2008.

(Id.)

Plaintiff claims that, for twenty years, he “believed . . . he would be eligible for parole

consideration upon attaining the age of 45 and serving 20 years of his sentence” and that he

“held this belief because the DPSC repeatedly informed him that this would be the case, and

even set his matter for hearing.” (Compl. ¶ 34.) DPSC, through its Secretary James Leblanc, “is

responsible for establishing a parole eligibility date and causing the parole eligibility date to be

placed on the offender’s master prison record.” (Id. ¶ 35.) Additionally, the Committee on

Parole “is responsible for scheduling a parole hearing for an offender.” (Id. ¶ 36.)

Plaintiff cites to Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174

(2005), for the proposition that a liberty interest for a parole eligibility date “may arise from an

expectation or interest created by state laws or policies.” (Id. ¶ 37.) Plaintiff claims a liberty

interest in favor of himself and “any similarly situated individual.” (Id. ¶ 38.) Specifically, the

liberty interest is that, “upon fulfilling the requirements of Act 790 (which [Plaintiff] has done),

that the parole eligible armed robbery offender will be given a hearing.” (Id. ¶ 39.) Plaintiff

maintains that this liberty interest is “protected by the [Fourteenth] Amendment . . . and cannot

be arbitrarily withdrawn.” (Id.) Plaintiff claims a violation of his Fourteenth Amendment right

“by cancelling and refusing to reschedule his parole hearing[,]” and Plaintiff further claims this

is an “ongoing violation” of his rights because “DPSC continues to misinterpret applicable law

and misconstrue the statutes to arbitrarily deny [Plaintiff] a parole hearing to which he is clearly

entitled.” (Id. ¶ 40.) Plaintiff also asserts that his substantive Due Process right was violated by

an ex post facto application of Act 624 “to remove parole eligibility from those individuals

convicted of armed robbery” like Plaintiff “who had a geriatric parole date for many years prior

to 2008 and was anticipating that hearing.” (Id. ¶ 41.)

Plaintiff seeks a declaration of his rights and order:

1. That Mr. Thomas' parole eligibility date under Act 790 be restored and

reflected on his Master Prison Record;

2. That Mr. Thomas be placed on the next available Dixon Correctional Institute

parole docket, so his case may be heard.

(Compl. ¶ 42.) Plaintiff also seeks an “injunction ordering the DPSC and the Committee

on Parole to re-set him on the parole docket for hearing.” (Id. ¶ 43.) Plaintiff claims

irreparable injury and seeks attorney’s fees. (Id. ¶¶ 44–45.) Plaintiff prays for a decree

that:

1. Parole eligibility is restored as to Mr. Thomas under Louisiana Act 790 of

1990.

2. That Carson Thomas is restored to the parole docket as promptly as possible and

thereafter heard.

3. That a preliminary and thereafter permanent injunction issue herein ordering the

DPSC to maintain a parole eligibility date for Mr. Thomas and ordering the

Louisiana Committee on Parole to hold a hearing for Mr. Thomas.

(Id. at 15.)

II. Relevant Standard

“Federal pleading rules call for a ‘short and plain statement of the claim showing that the

pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a

complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, Miss., 135 S. Ct. 346, 346–47 (2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has

explained:

The complaint (1) on its face (2) must contain enough factual matter (taken as true)

(3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant

evidence of each element of a claim. “Asking for [such] plausible grounds to infer

[the element of a claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough fact to raise a reasonable expectation that discovery

will reveal [that the elements of the claim existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).

Applying the above case law, the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to conclusions,

factual allegations remain so entitled. Once those factual allegations are identified,

drawing on the court's judicial experience and common sense, the analysis is

whether those facts, which need not be detailed or specific, allow “the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

[Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)]; Twombly,

55[0] U.S. at 556. This analysis is not substantively different from that set forth in

Lormand, supra, nor does this jurisprudence foreclose the option that discovery

must be undertaken in order to raise relevant information to support an element of

the claim. The standard, under the specific language of Fed. R. Civ. P. 8(a)(2),

remains that the defendant be given adequate notice of the claim and the grounds

upon which it is based. The standard is met by the “reasonable inference” the court

must make that, with or without discovery, the facts set forth a plausible claim for

relief under a particular theory of law provided that there is a “reasonable

expectation” that “discovery will reveal relevant evidence of each element of the

claim.” Lormand, 565 F.3d at 257; Twombly, 55[0] U.S. at 556.

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3

(W.D. La. Feb. 9, 2011) (citation omitted).

In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in

the light most favorable to the plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03

(5th Cir. 2014). The task of the Court is not to decide if the plaintiff will eventually be successful,

but to determine if a “legally cognizable claim” has been asserted. Id. at 503.

III. Discussion

A. Successive Motion to Dismiss

1. Parties’ Argument

Plaintiff contends that Defendant is procedurally barred from filing “successive” Rule

12(b)(6) motions. (Doc. 21 at 3-4.) Plaintiff states that because Defendant previously filed a

12(b)(6) motion she is barred under Federal Rule of Civil Procedure 12(g)(2) from filing an

additional motion to dismiss for failure to state a claim before she files an answer. (Doc. 21 at 3.)

Specifically, Plaintiff argues this is not allowed because the “defenses urged in this successive

Rule 12 motion were available to Defendant at the time of its initial filing.” (Id.) Defendant does

not respond to this argument.

2. Relevant Law

Rule 12(g)(2) of the Federal Rules of Civil Procedure states, “Except as provided in Rule

12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under

this rule raising a defense or objection that was available to the party but omitted from its earlier

motion.” Rule 12(h)(2) provides: “Failure to state a claim under which relief can be granted, to

join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in

any pleading allowed or ordered under Rule 7(a); (B) by motion under Rule 12(c); or (C) at

trial.”

“[D]istrict courts have struggled with the question of whether a party may raise a

previously available argument in a successive motion to dismiss for failure to state a claim under

Rule 12(b)(6) before first filing a responsive pleading.” Albers v. Board of County Com’rs of

Jefferson Cnty, Co., 771 F.3d 697, 702 (10th Cir. 2014). Some district courts follow a “technical

approach” and strictly construe the rule’s requirements to not allow new arguments in successive

motions to dismiss on the same operative complaint. See Albers, 771 F.3d at 702 n.9 (collecting

cases); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1392 n.6 (3d. 2019) (collecting cases). Other district courts have followed a “permissive

approach” and have accepted subsequent motions on discretionary grounds. See F.T.C. v.

Innovative Marketing, Inc., 654 F. Supp. 2d 378, 383 (D. Md. 2009) (collecting cases).

Courts that have followed the “technical approach” reason that it avoids cumulative

pretrial motions. See Satkar Hospitality Inc. v. Cook County Bd. of Review, No. 10-C-6682, 2011

WL 21822106 (N.D. Ill. Jun. 2, 2016) (“[D]efendants’ filing of successive motions to dismiss

frustrates Rule 12’s aims of simplifying and expending the adjudication of pre-trial motions.”).

Additionally, when Rule 12(g) was amended in 1966 to require filling all pre-trial motions

together it was done to avoid “piecemeal consideration of a case.” Fed. R. Civ. P. 12(g)

(advisory committee’s note to 1966 amendment.). This Court has previously taken the “technical

approach”:

Although Rule 12(h)(2) preserves Rule 12(b)(6) in certain instances, this case is not

one of those instances. The second Motion to Dismiss is not in response to any

pleading allowed or ordered under Rule 7(a); rather, it is in response to the Court's

Ruling and Order granting in part and denying in part [Defendant]'s first motion to

dismiss. Additionally, the second Motion to Dismiss is not raised by a Rule 12(c)

motion for judgment on the pleadings, and it is not being raised at trial. See Fed. R.

Civ. P. 12(h)(2). Therefore, [Defendant] is not permitted to make another Rule

12(b)(6) motion raising his defenses or objections because they were readily

available to him, but omitted from his first motion. For this reason, the second

motion is denied.

Colbert v. City of Baton Rouge/Parish of East Baton Rouge, No. 17-28, 2018 WL 3430689

(M.D. La. Jul. 16, 2018).

Courts that follow the “permissive approach” argue that their approach would prevent

undue delay. See In re Opus East, L.L.C., 480 B.R. 561, 570 (Bankr.D.Del. 2012) (“[A] hyper-

technical interpretation of the rules resulting in disallowance of the Defendants’ [successive]

12(b)(6) motion…would almost assuredly add time and delay because the Defendants will most

likely raise the arguments later.”). “Such a permissive reading has been justified as comporting

with the general spirt of the rules as promoting the interest of efficiency.” Innovative Marketing,

654 F. Supp. 2d at 383-84; See Fed. R. Civ. P. 1 (stating the Rules “should be construed and

administered to secure the just, speedy, and inexpensive determination of every actions and

proceeding.”); see also 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1392 (3d ed. 2004) (“Since the basic purpose of Rule 12(h)(2) probably is to

preserve the defenses, rather than to delimit the precise timing of their assertion, this [more

permissive] approach seems sound and within the spirit, if not the letter, of the provision.”).

The Seventh Circuit has held “Rule 12(h)(2) specifically excepts failure-to-state-a-claim

defenses from the Rule 12(g) consolidation requirement.” Ennenga v. Starns, 667 F.3d 766, 773

(7th Cir. 2012). However, the Tenth Circuit has labeled the Ennenga decision as “problematic”

because the Seventh Circuit’s “reasoning fails to address the language from Rule 12(h)(2) that

arguably limits a party to presenting those arguments in a pleading, a motion for judgment on the

pleading, or at trial.” Albers, 771 F.3d at 703.

3. Analysis

Accordingly, this Court finds the “permissive approach” to be more persuasive and will

allow Defendant’s Motion to Dismiss to proceed. Although it is not clear whether the text of the

Rules contemplate successive Rule 12(b)(6) motions, the spirit of the law allows it in this case.

Denying this motion would add undue delay, as Defendant could attach the same motion to her

answer. See Fed. R. Civ. P. 12(h)(2) (allowing a motion for failure to state a claim upon which

relief can be granted to be raised in an answer pursuant to Rule 7(a).).

Nevertheless, the Court notes that while it is allowing successive motions to dismiss in

this case, successive motions will not always be permitted in every case. If the Court finds that a

defendant is submitting the successive motions for the purpose of delay or to frustrate the Court,

the motion would be denied and sanctions could be imposed. See Fed. R. Civ. P. 11(b)(1).

B. Due Process Clause

1. Summary of Ruling

Preliminarily, this Court notes that Plaintiff’s ex post facto claim has been mislabeled. It

appears from the pleading that Plaintiff and Defendant agree the 1997 version of La. R.S. §

15:574.4 applies temporally, but the parties disagree over which substantive subsection of the

1997 version of §15:574.4 will determine whether Plaintiff is eligible for parole. Accordingly,

this Court will examine Plaintiff’s Due Process claim in two steps. First, this Court will examine

whether Louisiana law creates a right to parole consideration. Second, this Court will examine §

15:574.4 to determine whether Plaintiff has served enough time to secure his right to parole

consideration. For the foregoing reasons, this Court finds that Louisiana law does create a right

to parole consideration, but Plaintiff has not served the requisite amount of time to be considered

for parole.

2. Right to Parole Consideration

a. Parties’ Arguments

Defendant argues that Plaintiff has failed to state a claim for which relief can be granted

under the Fourteenth Amendment because he has no constitutionally protected liberty interest.

(Doc. 20-1 at 3.) Because neither federal nor Louisiana law create a liberty interest in parole that

is protected by the Due Process Clause, Defendant contends that Plaintiff is not entitled to

challenge the parole procedures at issue. (Id. at 4.)

Plaintiff disputes Defendant’s characterization of law. Specifically, Plaintiff argues that

although he does not have a liberty interest in being released on parole, he does have a liberty

interest in having a parole hearing. (Doc. 21 at 4.) Therefore, the Parole Committee’s refusal to

have a parole hearing, not an unfavorable outcome at a parole hearing, is the basis of Plaintiff’s

Due Process claim. (Id.) Plaintiff contends that “Defendants used a good time statute to alter Mr.

Thomas’s parole eligibility date,” and therefore, by using the wrong statute, Defendant deprived

Plaintiff of his interest in a parole hearing. (Id. at 5.) Finally, Plaintiff states that a similar

deprivation of due process is occurring throughout Louisiana to any person similarly situated to

Plaintiff. (Id. at 6.)

b. Relevant Law

State prisoners are entitled to protection under the Due Process Clause only when an

official action infringes upon a constitutionally protected liberty interest. See Sandin v. Conner,

515 U.S. 472, 115 S. Ct. 2293 (1995). “A liberty interest may arise from the Constitution itself,

by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an expectation or

interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct.

2384, 2393 (2005). State convicts, however, do not have a federally guaranteed constitutional

right to conditional release before the expiration of their valid sentences. See Greenholtz v.

Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100 (1979) (holding

that a state statute which “provides no more than a mere hope a benefit will be obtained…is not

protected by due process.”). Additionally, the Fifth Circuit has previously held that “the

Louisiana parole release statues do not give rise to a constitutionally protected liberty interest in

parole release, and thus, that prisoners are not entitled to challenge the procedures employed

during their parole hearing under the Due Process Clause.” Stevenson v. Louisiana Bd. of Parole,

265 F.3d 1060 (5th Cir. 2001) (per curiam).

Although Louisiana law does not create a general right to early release, the Louisiana

Supreme Court has held that consideration for parole implicates a statutory right that is separate

from release. See Bosworth v. Whitley, 627 So. 2d 629 (La. 1993)1. The Louisiana Supreme

Court stated:

[I]t is apparent that the Louisiana parole statutes do not create an expectancy of

release or liberty interest in general, or for those with life terms in particular.

Inmates meeting standards contained in the law do have a statutory right to parole

consideration, but the Parole Board has full discretion when passing on applications

for early release.

Id. at 633; see also Damone v. Whitley, 96-0635 (La. App. 1 Cir. 5/9/97); 694 So. 2d 1205, 1207

(“Prisoners meeting the statutory requirements have a right to parole consideration, but the

parole board has full discretion when passing on applications for early release.”). However, “the

right to be considered for parole is a substantial one, it is not bestowed on a prisoner until

statutory requirements are met.” Damone, 694 So. 2d at 1207 (citing State ex rel. Woodward v.

Bd. of Parole, 155 La. 699, 99 So. 534, 536 (1924)).

c. Analysis

The Louisiana Supreme Court recognized that “[i]nmates meeting standards contained in

the law do have a statutory right to parole consideration[.]” Bosworth, 627 So. 2d at 633. The

right to consideration is separate from the right to be released on parole. Defendant only argued

that prisoners have no right to parole release or challenging parole procedures in a hearing, and

therefore, this Court finds Defendant’s argument unpersuasive. However, deprivation of this

statutory right to consideration would constitute a due process violation if, as will be discussed

1 The Court finds this case is the controlling law, although neither Plaintiff nor Defendant cited it in briefing.

below, Plaintiff can show that he has met all of the statutory requirements to be considered for

parole. See Damone, 694 So. 2d at 1207. Therefore, if Plaintiff has met the requirements under

La. R.S. 15:574.4, Defendant must consider Plaintiff for parole, but Defendant is under no

obligation to grant release because prisoners have no right to early release.

This Court stresses that this holding is a narrow one. Louisiana parole law does not create

a constitutionally protected liberty interest in parole release. See Stevenson, 265 F.3d 1060.

Additionally, Louisiana parole does not allow prisoners to challenge the procedures employed

during a hearing under the Due Process Clause. Id. However, a prisoner does have a statutory

right in simply being considered for parole if he has met the requirements set forth in Louisiana

law.

3. Statutory Construction

a. Parties’ Arguments

Defendant argues that Plaintiff was never eligible under the “geriatric parole” provision

of La. R.S. § 15:574.4 because he has not served eighty-five percent of his sentence. (Doc. 20-1

at 5.) In support, Defendant traces the legislative history of § 15:574.4. Defendant contends that

Act 191 of 1968 was when “geriatric parole” was introduced to Louisiana, and it provided parole

eligibility for persons who were sentence to thirty or more years, who had served at least twenty

years, and had attained the age of sixty. (Id. at 6.) Next, Defendant states that in 1990, the

legislature reduced the age requirement from sixty to forty. (Id. at 6-7.) Of particular note,

Defendant argues, is Act 1099 of 1995. Defendant contends that this act requires that individuals

convicted of armed robbery after January 1, 1997, must serve at least eighty-five percent of their

sentence before they would be eligible for any type of parole. (Id. at 7.) Therefore, Defendant

argues since Plaintiff was arrested on February 9, 1997, he must serve at least eighty-five percent

of his sentence before being eligible for parole. (Id. at 8.)

In opposition, Plaintiff also traces the legislative history of La. R.S. § 15:574.4. Plaintiff,

citing a law review article, argues that “[t]here is no doubt that the legislature intended Act 60 [of

1987], and its progeny to apply to individual convicted of armed robbery.” (Doc. 21 at 7-8.)

Plaintiff argues that the law review article as well as two cases show that DPSC has historically

granted parole to individuals convicted of armed robbery before January 1, 1997. (Id. at 8.)

Further, Plaintiff contends that Act 1099 of 1995 was never intended to affect geriatric parole,

but instead, the Act was only meant to be applied to the rate at which inmates earned good time

credit for certain crimes. (Id.) In support, Plaintiff cites to minutes from the legislature. (Id. at 8-

9.) Therefore, Plaintiff asserts that based on the historic practice of granting parole to individuals

convicted of armed robbery and the legislative intent of Act 1099, Plaintiff should be considered

for geriatric parole. Finally, Plaintiff argues that Act 624 of 2008 which specifically added that

geriatric parole shall not apply to a person convicted of armed robbery is further evidence

geriatric parole was available to persons convicted before 2008. (Id. at 9.)

b. Relevant Law

In Louisiana, “[t]he sources of law are legislation and custom.” La. Civ. Code art. 1.

Further, “[l]egislation is a solemn expression of legislative will.” La. Civ. Code art. 2.

The Louisiana Legislature has provided certain principles of statutory construction which

the Court must follow. See La. Civ. Code arts. 9–13. Specifically, in interpreting a Civil Code

article or statute, if the wording of a law is clear and unambiguous and does not lead to absurd

consequences, the letter of the law should not be disregarded. La. Civ. Code art. 9; see also La.

R.S. § 1:4. Conversely, “[w]hen the language is susceptible of different meanings, it must be

interpreted as having a meaning that best conforms to the purpose of the law.” La. Civ. Code art.

10. Additionally, “[l]aws on the same subject matter must be interpreted in reference to each

other.” La. Civ. Code art. 13.

Additionally, the Louisiana Supreme Court has also articulated principles of statutory

construction:

[I]t is presumed that every word, sentence, or provision in a law was intended to

serve some useful purpose, that some effect is to be given to each such provision,

and that no unnecessary words or provisions were employed. As a result, courts are

bound, if possible, to give effect to all parts of a statute and to construe no sentence,

clause or word as meaningless and surplusage if a construction giving force to, and

preserving, all words can legitimately be found. Finally, it is presumed that the

legislature acts with full knowledge of well-settled principles of statutory

construction.

Moss v. State, 05-1963 (La. 4/4/06), 925 So. 2d 1185, 1196 (internal quotations omitted).

However, when the meaning of the law cannot be ascertained through examination of the

text, the Court must determine the legislature’s intent. “The legislature is presumed to have

enacted an article or statute in light of the preceding law involving the same subject matter…,

and where the new article or statute is worded differently from the preceding law, the legislature

is presumed to have intended to change the law.” La. R.S. § 24:177.

c. Analysis

Here, this Court finds that two provisions of La. R.S. § 15:574.4, as they existed in 1997,

are in conflict. The first provision concerning “geriatric parole” provides:

Notwithstanding the provisions of Paragraph (A)(1) or any other law to the

contrary, unless eligible for parole at an earlier date, a person committed to the

Department of Public Safety and Corrections for a term or terms of imprisonment

with or without benefit of parole for thirty years or more shall be eligible for parole

consideration upon serving at least twenty years of the term or terms of

imprisonment in actual custody and upon reaching the age of forty-five. This

provision shall not apply to a person serving a life sentence unless the sentence has

been commuted to a fixed term of years.

La. R.S. § 15:574.4(A)(3) (1990) (emphasis added; amended 2008). The second provision

limiting parole for persons convicted of a crime of violence provides:

No person shall be eligible for parole consideration who has been convicted of

armed robbery and denied parole eligibility under the provisions of R.S. 14:64. No

prisoner serving a life sentence shall be eligible for parole consideration until his

life sentence has been commuted to a fixed term of years. No prisoner may be

paroled while there is pending against him any indictment or information for any

crime suspected of having been committed by him while a prisoner.

Notwithstanding any other provisions of law to the contrary, a person convicted of

a crime of violence and not otherwise ineligible for parole shall serve at least

eighty-five percent of the sentence imposed, before being eligible for parole. The

victim or victim's family shall be notified whenever the offender is to be released.

La. R.S. § 15:574.4(B) (1995) (emphasis added; amended 2008)2. Both laws provide

“notwithstanding any other provisions of law to the contrary” that they should apply. This

creates a conflict in determining what the operative law of § 15:574.4 should be. Therefore, to

remedy this conflict, the Court will have to use principles of statutory construction articulated by

the Louisiana legislature to determine if Plaintiff has fulfilled his statutory requirements to be

considered for parole. Accordingly, the Court will address parties’ arguments in turn and then

apply the rules of statutory construction.

The Court finds Plaintiff’s argument that “[t]he minutes from House Bill 146 clearly

show that the purpose of this bill was to affect good time only” is unpersuasive. Putting aside the

issue of whether the intent of two legislators from one chamber of the legislature can determine

legislative intent, the words of § 15:574.4 do not contain the phrase “good time.” Therefore, if

Act 1099 of 1995 was to affect only good time, the language of the statute would have indicated

it. See La. R.S. § 24:177.B.(1) (“The text of the law is the best evidence of legislative intent.”).

2 The Court notes that although La. R.S. § 15:574.4.(B) provides “No person shall be eligible for parole

consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S.

14:64,” the provision which provides “Notwithstanding any other provisions of law to contrary” is what is at issue.

Additionally, the Court finds that Plaintiff’s contention that § 15:574.4 did not apply

persons convicted of armed robbery in 1997 because Act 624 of 2008 amended the law to

specifically provide for that is also unpersuasive. Louisiana Revised Statute § 24:177 provides

that a court may look to “the circumstances under which [the legislation] was enacted” to

“determine legislative intent.” Thus, this Court is only concerned with the intent of the 1995

legislature which enacted Act 1099, not the intent of a future legislature which would

subsequently alter the statute.

Since the two provisions of § 15:574.4 in conflict begin with “[n]otwithstanding any

other law to the contrary,” the Court finds that the law enacted later should govern because to

hold otherwise would render that provision without meaning. See Moss, 925 So. 2d at 1196.

Indeed, the legislature could not have intended to disregard a provision of law that had not yet

been enacted. Additionally, this conforms with statutory interpretation principles set out by the

Louisiana legislature. See. La. R.S. § 24:177.C. (“The legislature is presumed to have enacted an

article or statute in light of the preceding law involving the same subject matter.”). Accordingly,

this Court finds that because Act 1099 of 1995 was passed subsequent to the provision’s

governing “geriatric parole,” that law must govern “[n]otwithstanding any other provisions of the

law to the contrary.” Plaintiff must serve 85% of his time pursuant to La. R.S. § 15:574.4.B.

before he will have a statutory right to parole consideration.

IV. Leave to Amend

Federal Rules of Civil Procedure 15(a) “requires the trial court to grant leave to amend

freely,” further “the language of this rule evinces a bias in favor of granting leave to amend.”

Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir. 2005) (internal citations omitted).

However, “leave to amend is in no way automatic, but the district court must possess a

‘substantial reason’ to deny a party's request for leave to amend.” Marucci Sports, L.L.C. v. Nat'l

Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (citing Jones, 427 F.3d at 994). The

Fifth Circuit further described the district courts' discretion on a motion to amend as follows:

The district court is entrusted with the discretion to grant or deny a motion to amend

and may consider a variety of factors including “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failures to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party ..., and

futility of the amendment.” Jones, 427 F.3d at 994. (citation omitted). “In light of

the presumption in favor of allowing pleading amendments, courts of appeals

routinely hold that a district court's failure to provide an adequate explanation to

support its denial of leave to amend justifies reversal.” Mayeaux v. La. Health Serv.

& Indent. Co., 376 F.3d 420, 426 (5th Cir. 2004) (citation omitted). However, when

the justification for the denial is “readily apparent,” a failure to explain “is

unfortunate but not fatal to affirmance if the record reflects ample and obvious

grounds for denying leave to amend.” (citation and internal quotation marks

omitted).

Id. 751 F.3d at 378.

In addition, the Fifth Circuit has made clear that “denying a motion to amend is not an

abuse of discretion if allowing an amendment would be futile.” Id. (citing Boggs v. Miss., 331

F.3d 499, 508 (5th Cir. 2003)). An amendment would be deemed futile “if it would fail to

survive a Rule 12(b)(6) motion.” Id.

Here, the Court finds that any amendment would be futile. As discussed above, the

shortcomings in Plaintiff’s complaint stem from statutory interpretation. Thus, there is no avenue

in which Plaintiff can prevail under governing law. For this reason, the Court will deny Plaintiff

leave to amend and dismiss his claims with prejudice.

V. Conclusion

Accordingly,

IT IS ORDERED that the Rule 12(b)(6) Motion to Dismiss (Doc. 20) by filed by

Defendant Shery Ranatza is GRANTED, and Plaintiff’s claims against Defendant are hereby

DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on October 30, 2019.

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA