3.9.1 Incarcerated Persons
3.9.1 Incarcerated Persons aetrahan Thu, 06/22/2023 - 16:11Incarcerated persons are served by personal service on the warden or the warden’s designee. The warden or designee, in turn, must make personal service on the incarcerated person. Proof of service is made by filing the affidavit of the person serving the citation and pleadings on the incarcerated person into the record of the proceeding. The affidavit should indicate that the server was the warden’s designee, that personal service was made, and when service was made. La. C.C.P. art. 1235.1(D) allows for an alternative procedure when the warden fails to return the affidavit of personal service, which happens often. If the warden’s affidavit is not forthcoming, counsel should submit an affidavit to the court detailing the attempt to serve the pleadings in order to establish that service was made.1
Several days prior to the scheduled court appearance, the attorney should check with the jail/prison to ensure that the defendant/respondent is still incarcerated. Also, you should inquire about the process followed by that jail/prison to guarantee that the prisoner will be delivered to court timely for a scheduled appearance. Some local jails may only require a letter from the attorney; some may require a court order. The attorney should be prepared to submit an order for transport of the adverse party to the court for the hearing.
If a hearing is required in a case against a prisoner, some judges will require and rely on the plaintiff or mover to supply a Writ to Secure the Presence of the Defendant or Writ of Habeas Corpus Ad Testificandum for hearings. When setting court dates (Hearing Officer Conferences, rules, or trials), be mindful of the transportation expense involved (if possible, set all matters on one day after consulting with the judge’s law clerk) as some prisons can be located a meaningful distance from the court where your matter is pending.
Service on a defendant who is incarcerated in another state should comply with the same due process safeguards as required by La. C.C.P. art. 1235.1 or use the method for sheriff’s service under the other state’s law.2 Contact a local legal aid office for guidance on their state’s laws for service of prisoners. Most legal aid clients are paupers. Some sheriffs from other states will graciously honor a Louisiana pauper order. Other states will only honor a pauper order from their state courts, which, as a practical matter, can be impossible to obtain.
Domestic violence perpetrators can be slippery and inclined to dodge service. Therefore, you may want to serve such defendants while they are still in jail/prison.