Thomas v. Leblanc et al
Filing
41
RULING AND ORDER granting 31 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims against Defendant Le Blanc are hereby DISMISSED WITH PREJUDICE. Signed by Judge John W. deGravelles on 05/12/2020. (KDC)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CARSON THOMAS
CIVIL ACTION NO. 18-496-JWD-RLB
VERSUS
JUDGE JOHN W. deGRAVELLES
JAMES M. LEBLANC, SECRETARY
OF THE LOUISIANA DEPARTMENT
OF PUBLIC SAFETY AND
CORRECTIONS, ET AL.
MAG. JUDGE RICHARD L.
BOURGEOIS, JR.
RULING AND ORDER
This matter comes before the Court on the Motion to Dismiss (Doc. 31) filed by Defendant
James Le Blanc (“Defendant” or “Le Blanc”). Plaintiff Carson Thomas (“Plaintiff” or “Thomas”)
opposes the motion. (Doc. 33). No reply was filed. The Court has carefully considered the law,
the facts in the record, and the arguments and submission of the parties and is prepared to rule.
For the following reasons, Defendant’s motion is granted.
I.
Background
The following allegations are taken from the Complaint for Declaratory and Injunctive
Relief (“Complaint”). (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. (Doc. 1, at 1). Plaintiff brings
this Section 1983 action seeking declaratory and injunctive relief “for [a] violation of [his] civil
rights” and alleging a “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.”
(Doc. 1, at 2).
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Defendants in this action are James Le Blanc,1 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” (“Defendant Ranatza”). (Doc. 1, at 1). Only
Defendant Le Blanc brings the instant motion.
On February 9, 1997, Plaintiff was arrested for one count of armed robbery. (Doc. 1, at 23). Plaintiff was convicted and sentenced to 50 years with credit for time served. (Doc. 1, at 3).
Plaintiff’s sentence was later amended to 30 years with credit for time served. (Id.). Plaintiff has
served 21 years and is currently 46 years old. (Id.).
“For most of the past 20 years,” Plaintiff’s “master prison records reflect[ed] a parole
eligibility date of 2017”. (Id.). This is based upon Act 790, which provides that “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.). The quoted language is referred to as the “geriatric parole”
provision.
On October 12, 2016, Plaintiff “was brought before the Committee on Parole for his initial
parole hearing pursuant to Act 790.” (Id.). “Upon entering the parole hearing, Mr. Thomas was
informed – for the first time – that he [was] not parole eligible under Act 790 and must serve 85%
of his sentence before becoming parole eligible, pursuant to Act 1099.” (Id.).
Plaintiff devotes an entire section of his Complaint to the passage and legislative history
of Act 60 of 1987 and Act 760 of 1990. (Doc. 1, at 4-7). This section of the Complaint describes
the development of “geriatric parole” in Louisiana. (Id.).
Defendant James “LeBlanc” is named in the Complaint. Defendant James “Le Blanc” brings the instant motion.
For the purposes of this Ruling, the Court will adopt the spelling of “Le Blanc” utilized by his counsel in briefing the
subject motion.
1
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The Complaint then describes Act 1099 of 1995, “which changed the rate at which
offenders earned good time for crimes of violence.” (Doc. 1, at 7). 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. (Doc. 1, at 8).
Next, the Complaint describes Act 624 of 2008, which “specifically removed those
individuals convicted of armed robbery from geriatric parole eligibility.” (Id.). 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 claims that because he was arrested for armed robbery on February 9, 1997, has
served 21 years of his sentence, and is 46 years old, “[h]e is therefore eligible for geriatric parole
under Act 790.” (Doc. 1, at 9). 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.
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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.
(Doc. 1, at 9-10) (emphasis not included).
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.” (Doc. 1, at 10). According to Plaintiff, he has
“received at least three master prison records that reflected a parole eligibility date in accordance
with Act 790.” (Id.). 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
1, 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.).
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. (Doc. 1, at 11). Under one
agreement, “the outcome of the Tell litigation would apply to all prisoners with armed robbery
convictions.” (Id.). In another, “master records would reflect the Act 790 dates for armed robbery
inmates.” (Id.). 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.). According to
Plaintiff, this last agreement “further set[s] up an expectation that the ‘20/45’ practice would
continue.” (Id.).
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Plaintiff then makes allegations concerning a separate settlement in Francis v. Leblanc.2
(Doc. 1, at 11-12). 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 1, 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.” (Doc. 1, at 12). DPSC, through its Secretary James Le Blanc, “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.). Additionally, the Committee on Parole “is responsible for
scheduling a parole hearing for an offender.” (Id.).
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.” (Doc. 1, at 12-13). Plaintiff claims a
liberty interest in favor of himself and “any similarly situated individual.” (Doc. 1, at 13).
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.).
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
2
Francis v. Leblanc, No. 13-691-JJB-RLB (M.D. La. 2013).
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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.). 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.” (Doc. 1, at 13-14).
Plaintiff seeks a declaration of his rights and an 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.
(Doc. 1, at 14). Plaintiff also seeks an “injunction ordering the DPSC and the Committee on Parole
to re-set him on the parole docket for hearing.” (Id.). Plaintiff claims irreparable injury and seeks
attorney’s fees. (Doc. 1, at 14-15). 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.
(Doc. 1, 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
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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
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(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
Defendant moves to dismiss Plaintiff’s Complaint, arguing that Plaintiff has never been
eligible for parole. (Doc. 31-1, at 3). Defendant’s motion raises the same issue raised by the
motion to dismiss previously filed by Defendant Ranatza. (Doc. 20). In Defendant Ranatza’s
motion, she, too, argued that Plaintiff was never eligible for parole under the “geriatric parole”
provision. (Doc. 20-1, at 5). Defendant Ranatza, relying upon legislative history, concluded that
Plaintiff must serve at least 85% of his sentence before being eligible for parole. (Doc. 20-1, at
8). This Court agreed with Defendant Ranatza and granted her motion. (Doc. 34).3 The same
analysis applied by the Court in ruling upon Defendant Ranatza’s motion applies here, and
Defendant Le Blanc’s motion to dismiss is granted for the following reasons.
A.
Parties’ Arguments
Defendant Le Blanc acknowledges Act 60 from 1987, the “geriatric parole” provision, but
argues that Act 1099 of 1995 amended 15:574.4 (B) (Doc. 31-1, at 3) to read as follows:
No person shall be eligible for parole consideration who has been convicted of
armed robbery and denied parole eligibility under the provision of R.S. 14:64 ….
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.
Act 1099 became effective on January 1, 1997. (Id.). Defendant argues that because Plaintiff
committed armed robbery on February 9, 1997, which was 39 days after the effective date of Act
1099, he is not eligible for parole pursuant to the terms of 15:574.4(B) in effect at the time of the
3
The Court notes that Plaintiff filed his opposition to the instant motion on October 9, 2019, and the Court ruled on
Defendant Ranatza’s motion on October 31, 2019. Therefore, the parties to the instant motion did not have the benefit
of this Court’s ruling at the time of briefing.
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armed robbery. (Id.). See, Doc. 21-1, at 4, citing Billard v. Kling, 2011 WL 497175 (La.App. 1
Cir. 2011); Billard v. Prince, 591 F. App’x 280 (5th Cir. 2015); La. Atty. Gen. Op. No. 08-0120.
Finally, Defendant argues that a “clerical error does not give cause to DOC to ignore the will of
the legislature.” (Id.).
In opposition, Plaintiff first argues that the first sentence of 15:574.4(B), as quoted above,
has always existed in the statute. It was not added or amended by Act 1099. Therefore, Plaintiff
argues, the amendment provided by Act 1099 should not alter how the statute was applied. The
geriatric parole provision should apply, as it always has, and Plaintiff should be “docketed for
parole hearing”. Plaintiff relies upon the settlement reached in Francis v. Leblanc, 13-691-JJBRLB (M.D. La. 2/3/14), where it was agreed that “individuals serving sentences for armed
robberies committed prior to January 1, 1997 are routinely docketed for parole hearings pursuant
to Act 790.” (Doc. 33, at 3-4). Plaintiff does not address the fact that he committed armed robbery
after January 1, 1997.
Plaintiff’s second argument is that the purpose of Act 1099 was to reduce the rate “at which
violent offender earned good time, without any impact on the same individual’s eligibility for
geriatric parole”. Further, Plaintiff contends that there is no evidence that the intention was to
“remove geriatric parole consideration from individuals convicted of crimes of violence”. (Doc.
33, at 5).
Third, Plaintiff relies upon Act 624 from 2008, the purpose of which was to remove
geriatric parole consideration for individuals convicted of armed robbery. If geriatric parole
consideration for individuals convicted of armed robbery already did not apply post Act 1099,
Plaintiff argues that Act 624 would not have been necessary. (Doc. 33, at 6-7).
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Plaintiff also challenges the applicability and persuasiveness of the caselaw cited by
Defendant, (Doc. 33, at 7-9), and criticizes Defendant’s motion for failing to address Tell v.
Stadler, (Doc. 33, at 9-10). Essentially, Plaintiff contends that La. Rev. Stat. 15:574(A)(3) that
provides for “geriatric parole” applies, and Plaintiff is eligible for parole in accordance with the
terms of that section of the statute. Defendant contends that La. Rev. Stat. 15:574(B) that provides
for “good time parole” applies, and Plaintiff will not be eligible for parole until Plaintiff has served
85% of his imposed sentence. The main issue before the Court is which section of La. Rev. Stat.
15:574 governs.
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
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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 sections of La. Rev. Stat. 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) (italics 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.
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La. R.S. 15:574.4(B) (1995) (italics added; amended 2008). Each section of the statute provides
that “notwithstanding any other provisions of law to the contrary”, that section should apply. This
recurrent phrase creates a conflict in determining which section should control. To resolve this
conflict, the Court turns to principles of statutory construction provided by Louisiana law.
Plaintiff’s argument that the minutes from House Bill 146 evidence that the purpose of Act
1099 was only to reduce the rate at which violent offenders earned good time without “any impact
on the same individual’s eligibility for geriatric parole” is not persuasive. (Doc. 33, at 5). The
words of La. Rev. Stat. 15:574.4 do not contain the phrase “good time”. If Act 1099 from 1995
was meant to affect only “good time parole”, as suggested by Plaintiff, the Legislature could have
made that purpose clear in the language of the statute. See La. R.S. 24:177(B)(1) (“The text of the
law is the best evidence of legislative intent.”). It did not do so.
The Court is equally unpersuaded by Plaintiff’s argument that La. Rev. Stat. 15:574.4 did
not apply to persons convicted of armed robbery in 1997 because Act 624 of 2008 amended the
law to specifically so provide. (Doc. 33, at 6-7). 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 that
enacted Act 1099 and not the intent of a future legislature that subsequently altered the statute.
Since the two sections of La. Rev. Stat. 15:574.4 that are in conflict (Section (A)(3) and
Section (B)) begin with “[n]otwithstanding any other law to the contrary,” the Court finds that the
statutory provision enacted at the later date should govern. To hold otherwise would render that
provision without meaning. See Moss, 925 So.2d at 1196. The legislature could not have intended
to disregard a provision of law that had not yet been enacted. This also conforms with statutory
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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 from 1995 was
passed subsequent to the statutory provision’s governing “geriatric parole” section, it must govern
“[n]otwithstanding any other provisions of the law to the contrary”. Accordingly, Plaintiff must
serve 85% of his imposed sentence pursuant to Section 15:574.4(B) before he will be eligible for
parole.
IV.
Conclusion
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doc. 31) by Defendant James Le Blanc is
GRANTED, and Plaintiff’s claims against Defendant Le Blanc are hereby DISMISSED WITH
PREJUDICE.
Signed in Baton Rouge, Louisiana, on May 12, 2020.
S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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