Lloyd Richard Versus Willy J. Martin, Jr - Sheriff ( 2023 )

LLOYD RICHARD NO. 22-CA-214
VERSUS FIFTH CIRCUIT
WILLY J. MARTIN, JR - SHERIFF, ET AL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 38,46, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING
February 01, 2023
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED
RAC
JGG
JJM
PLAINTIFF/APPELLANT,
LLOYD RICHARD
In Proper Person
COUNSEL FOR DEFENDANT/APPELLEE,
DARRYL VANNOY
Jeffrey M. Landry
Jacqueline B. Wilson
Rachel P. Dunaway
CHAISSON, J.
Lloyd Richard, a prisoner representing himself pro se, appeals a December
16, 2020 Order of the trial court that denied his Motion to Dismiss or Set Aside a
July 31, 2020 Ex Parte Order dismissing his lawsuit pursuant to La. R.S. 15:1186.
For the following reasons, we affirm the ruling of the trial court.
BACKGROUND
Mr. Richard’s original claims arise from a 2008 traffic accident involving a
sheriff’s vehicle in which Mr. Richard was riding. At the trial of his initial petition
on May 12, 2015, the trial court found that Mr. Richard failed to meet his burden
of proof on the matter of causation, and, as a result, dismissed his claims with
prejudice. This Court affirmed the judgment of the trial court on appeal. Richard
v. Hawthrone, 15-559 (La. App. 5 Cir. 5/12/16), 192 So.3d 273, 274. While Mr.
Richard was incarcerated, he filed a Petition for Damages on March 27, 2017,
wherein he alleged, inter alia, that the judges and attorneys involved in his initial
case conspired against him to practice fraud upon the court and engage in the
spoliation of evidence, as well as intentional infliction of emotional distress. In his
petition, Mr. Richard prayed for $2,000,000 in compensatory damages and
$500,000 in punitive damages, and further included a Motion to Proceed in forma
pauperis.
Mr. Richard’s in forma pauperis motion was granted by Order of the trial
court on October 12, 2017, and the proceedings were stayed in accordance with the
provisions of La. R.S. 15:1186. Thereafter, Mr. Richard sought to have the stay
lifted pursuant to the exceptions in La. R.S. 15:1186(B)(2); however, the trial
court, on February 6, 2018, denied his motion finding specifically that none of the
exceptions in the statute were applicable. Mr. Richard timely filed a Notice of
Intent to seek supervisory review of this ruling, and was granted an extension of
time to file his writ application. This Court nevertheless declined to consider his
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writ application because it was filed more than one year after the ruling at issue
and more than nine months after the extended return date.
On July 27, 2020, one of the defendants, Warden Darryl Vannoy, filed an Ex
Parte Motion to Dismiss Mr. Richard’s lawsuit for abandonment pursuant to La.
R.S. 15:1186. Mr. Richard was served with a copy of this motion via U.S. Postal
Service first class mail. The memorandum in support of the motion included an
affidavit from an employee at the Parish of St. James Clerk of Court’s Office, who
attested that Mr. Richard had not paid any court costs towards his outstanding
balance, and that the costs and fees had not been paid within three years from when
they were incurred with the filing of his lawsuit on March 27, 2017.
The trial court granted Mr. Vannoy’s motion and ordered Mr. Richard’s
petition dismissed without prejudice on July 31, 2020. Notice of this Order was
sent to Mr. Richard on August 2, 2020. Mr. Richard filed an objection to the Order
of Dismissal, which the trial court denied on December 16, 2020. Following a
Motion to Correct the Trial Court Record, which the trial court granted on
February 24, 2022, this appeal was lodged.
DISCUSSION
On appeal, Mr. Richard raises the following assignments of error:
1. Whether panel reviewing pro se filing indulgently. Did they
intentional misrepresent there [sic] finding.
2. Whether the panel and trial judge false information and perjury
testimony; which they used to render decision.
3. Whether intentionally concealing, altering, removing, destroying,
intentionally misrepresentation [sic] constitute spoliation under La.
C.C. Article 2315[,] [ w ]hich judgment should be annulled La.
C.C.P. Article 2004. A final judgment obtained by fraud or ill
practice[.]
4. Whether Defendants representative practice [sic] a fraud upon the
court.
5. Whether Defendants, there [sic] representative, assistant attorney
general, trial judge, panel [sic] to deliberate misuse of the judicial
22-CA-214 2
process designed to defeat plaintiff claim, willfully and unlawfully
prepare, presented, filed, signed, a legal pleading containing false
representation.
An appellate court will not consider issues that were not raised with or
addressed by the trial court. Quality Paint Hardware & Marine Supply Inc. v.
Crescent Coating & Servs., Inc., 13-129 (La. App. 5 Cir. 8/27/13), 123 So.3d 780,
785. In addition, Uniform Rules, Courts of Appeal, Rule 1-3 states:
The scope of review in all cases within the appellate and supervisory
jurisdiction of the Courts of Appeal shall be as provided by LSA-
Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts
of Appeal will review only issues which were submitted to the trial
court and which are contained in specifications or assignments of
error, unless the interest of justice clearly requires otherwise.
Mr. Richard’s assignments of error, which all appear to raise issues that he
has with the resolution of his initial lawsuit, contain arguments that were not
considered by the trial court when ruling on the Motion to Dismiss Mr. Richard’s
lawsuit or his objection to the Order of Dismissal. Accordingly, we decline to
consider the merits of these assignments of error.1 The only issue properly before
this Court in this appeal is whether the trial court erred in granting Mr. Vannoy’s
Ex Parte Motion to Dismiss Mr. Richard’s current lawsuit as abandoned.
La. R.S. 15:1186(B)(2)(c), which specifically deals with dismissal of a
prisoner’s in forma pauperis lawsuit as abandoned for failure to pay incurred costs
and fees, provides:
If the prisoner does not pay the full court costs or fees within three
years from when they are incurred, the suit shall be abandoned and
dismissed without prejudice. This provision shall be operative
without formal order, but, on the court’s own motion or upon ex parte
motion of any party, the clerk or other interested person by affidavit
which provides that the full court costs and fees have not been paid
within three years from when they were incurred, the trial court shall
enter a formal order of dismissal as of the date of its abandonment.
The order shall be served on the plaintiff pursuant to Code of Civil
1
Furthermore, we observe that, to the extent plaintiff raises arguments already considered by this Court,
consideration of such would be precluded under the law of the case doctrine. Under the law of the case
doctrine, an appellate court will not reconsider its own rulings of law in the same case. Boudoin v.
Ochsner Clinic Found. (In re Med. Review Panel Proceedings), 17-488 (La. App. 5 Cir. 3/14/18), 241
So.3d 1226. It is applied to parties who have had the identical issue presented and decided previously by
the appellate court in an earlier appellate proceeding in the same case. Id.22-CA-214 3
Procedure Article 1313 or 1314, and the plaintiff shall have thirty
days from date of service to move to set aside the dismissal.
However, the trial court may direct that a contradictory hearing be
held prior to dismissal.
The evidence in the record before us indicates that the requirements of this
statute have been satisfied. In particular, the affidavit from the employee of the St.
James Parish Clerk of Court’s Office attests that Mr. Richard has not paid the full
court costs and fees within three years from when they were incurred, beginning on
March 27, 2017. Furthermore, the record contains the certificates indicating that
Mr. Richard was served with a copy of the Order of Dismissal by mail in
accordance with La. C.C.P. art. 1313. Mr. Richard has offered no evidence to
contradict or dispute this evidence contained in the record. Accordingly, we find
no error in the trial court’s Order of Dismissal or in the denial of Mr. Richard’s
Motion to Set Aside the Order of Dismissal.
AFFIRMED
22-CA-214 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-214
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
JACQUELINE B. WILSON (APPELLEE)
MAILED
LLOYD RICHARD #125784 (APPELLANT) HONORABLE JEFFREY M. LANDRY RACHEL P. DUNAWAY (APPELLEE)
DIXON CORRECTIONAL INSTITUTE (APPELLEE) ATTORNEYS AT LAW
P. O BOX 788 ATTORNEYS GENERAL POST OFFICE BOX 94005
JACKSON, LA 70748 LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE, LA 70804
POST OFFICE BOX 94005
BATON ROUGE, LA 70804