On June 21, 2010, the Fifth Circuit Court of Appeals held that emergency conditions at a Louisiana prison following Hurricane Katrina helped excuse the failure of a warden to release a prisoner for three months after the deadline for filing an indictment against him had passed.

About two weeks after Hurricane Katrina flooded New Orleans in late August 2005, James Allen Terry, Jr. was arrested for looting and possession of a controlled dangerous substance while in possession of a weapon in Orleans Parish, Louisiana. He was taken to the Elayn Hunt Correctional Center (EHCC). An Orleans Parish judge arraigned him and set a $200,000 bond three days later.

Ordinarily, an indictment must be filed within 60 days after arrest for a felony offense. Due to the chaotic situation in southern Louisiana, however, the state’s Supreme Court extended the filing deadline to January 6, 2006. The deadline passed without Terry being indicted. He wrote letters to EHCC Warden Cornel H. Hubert asking why he had not been released, what the addresses were for various Louisiana politicians, and why the law library hadn’t responded to his request for habeas corpus forms and inmate counsel.

Hubert had an assistant warden investigate Terry’s inmate counsel complaint and he was seen by inmate counsel the next day. The warden also told Terry that Orleans Parish officials had authority over his release and he could not release him without a court order. Terry was released less than a month after he saw inmate counsel, pursuant to an Orleans Parish court order. He had been incarcerated for 7 months – including 3 months after the indictment deadline had passed.

Terry filed a civil rights action pursuant to 42 U.S.C. § 1983 in federal court, alleging that Warden Hubert violated his due process rights and his right of access to the courts by denying him access to a law library, to inmate counsel for his first three months of incarceration, to competent inmate counsel, and to basic information about who to contact to secure his release. Hubert filed a motion for summary judgment on the basis of qualified immunity, which was denied. He then appealed.

The Fifth Circuit held that Terry’s letters to the warden indicated he had the ability to file a legally sufficient claim challenging his confinement. He had access to writing and mailing materials, plus contact information. He knew that Orleans Parish controlled his release, that he had been held beyond the extended statutory deadline, and that he needed to petition for a writ of habeas corpus. Terry’s inability to obtain a habeas corpus form from the law library was “immaterial because ‘a court may liberally construe a pro se petitioner’s pleading and treat it as a habeas corpus petition.’”

It would have been different had Terry filed a petition for a writ of habeas corpus and the petition been dismissed “for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.”
Therefore, Terry’s claims related to denial of court access and inadequate inmate counsel failed.

Terry’s due process claim also failed. Warden Hubert knew Terry had been charged, arraigned and had a bail hearing. He had no way of knowing that Terry’s detention was unlawful absent an order from the detaining authority. The Fifth Circuit also took judicial notice of the damage and disruption caused by Hurricane Katrina, deeming the storm’s aftermath a unique circumstance that helped excuse Hubert from liability. Thus, the appellate court found he was entitled to qualified immunity.

The denial of summary judgment was reversed and the case remanded to the district court for entry of judgment in the warden’s favor. See: Terry v. Hubert, 609 F.3d 757 (5th Cir. 2010).

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