Clark v. Middlebrooks

328 So.3d 1272

Terrence CLARK a/k/a Terrance Clark a/k/a Pooh-poo, Appellant

v.Warden Scott MIDDLEBROOKS, Appellee

NO. 2020-CP-00136-COA

Court of Appeals of Mississippi.

October 19, 2021

ATTORNEY FOR APPELLANT: TERRENCE CLARK (PRO SE)

ATTORNEY FOR APPELLEE: NO APPEARANCE

BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.

FACTS AND PROCEDURAL HISTORY

EMFINGER, J., FOR THE COURT:

¶1. On November 15, 2019, Terrence Clark filed a "Motion for Judicial Review" in the Circuit Court of Wilkinson County, Mississippi. In this petition Clark states that he is currently an inmate in the custody of the Mississippi Department of Corrections (MDOC) at the Wilkinson County Correctional Facility (WCCF). Clark further states he received a rule violation report (RVR), which alleged that on or about July 26, 2019, his urine sample tested positive for THC. A disciplinary hearing was conducted on August 8, 2019, and Clark was found guilty of the violation. Clark appealed the decision of the disciplinary hearing officer. The appeal was heard, and Clark was denied relief. The first-step response form denying relief was signed by Warden Scott Middlebrooks on September 16, 2019, and Clark acknowledged receipt of the decision on September 19, 2019. This form advised Clark that he was eligible to seek judicial review within thirty days of his receipt of the first-step response form, and he proceeded to do so. On December 6, 2019, the circuit court entered an order finding that it lacked jurisdiction to consider Clark's petition because it was not timely filed pursuant to Mississippi Code Annotated section 47-5-807 (Rev. 2015) and that even on its merits, MDOC's decision should be affirmed because Clark had provided insufficient proof to overturn the decision. Aggrieved by the denial of relief, Clark appeals.

STANDARD OF REVIEW

¶2. Jurisdictional matters are a question of law, and the standard of review is de novo. Rudd v. State , 303 So. 3d 841, 843 (¶13) (Miss. Ct. App. 2020).

ANALYSIS

¶3. The circuit court determined that it lacked jurisdiction to consider this matter due to Clark's failure to timely file his petition for judicial review pursuant to Mississippi Code Annotated section 47-5-807. The petition was not stamped "filed" until November 15, 2019, more than thirty days after Clark's receipt of the first-step response form. The circuit court further noted in the order that Clark's initial mailing was timely, but the circuit clerk did not accept it for filing because Clark failed to include the filing fee. On November 15, 2019, after receiving the necessary filing fee, Clark's petition was stamped "filed" by the circuit clerk. The operative wording in section 47-5-807 is that an aggrieved inmate must "seek judicial review" within thirty days. This Court has found that an attempt to "seek judicial review" is sufficient to withstand a challenge to timeliness. Maze v. Miss. Dep't of Corr. , 854 So. 2d 1090, 1093 (¶9) (Miss. Ct. App. 2003). The issue in Maze is analogous to the issue here. Maze sent his complaint to the clerk in a timely manner, but the circuit clerk returned it to him because he failed to include the civil cover sheet. Id . at 1091 (¶2). By the time Maze completed the form and returned it, along with the complaint for judicial review, to the circuit clerk, the thirty-day window had passed. Id . The circuit court dismissed Maze's complaint as untimely. Id . at (¶3). This Court reversed, finding that the fact pattern in Maze "clearly evinces that Maze did ‘seek judicial review’ within thirty days." Id . at 1093 (¶9). Likewise, we find that Clark did "seek judicial review" within thirty days as required by the statute.

¶4. However, while not addressed by the circuit court, Clark's certificate of service attached to his petition includes notice to only the circuit clerk and the district attorney. Likewise, Clark's certificate of service attached to his notice of appeal lists only the clerk of the circuit court. Rule 5.04 of the Uniform Civil Rules of Circuit and County Court Practice provides that a "party desiring to appeal a decision from a lower court must file a written notice of appeal with the circuit court clerk," and "[a] copy of that notice must be provided to all parties or their attorneys of record and the lower court or lower authority whose order or judgment is being appealed." In a recent decision, the supreme court found that a petitioner's failure to provide MDOC with notice of his petition for judicial review resulted in the circuit court lacking jurisdiction over the appeal. Smith v. State , 293 So. 3d 238, 242-43 (¶22) (Miss. 2020). As in Smith , neither MDOC nor the attorney general had notice of Clark's intent to seek judicial review of MDOC's decision and also did not have notice of Clark's intent to appeal the decision of the circuit court.¹

¶5. The dissent relies upon Hesler v. Alcorn County Correctional Facility , 315 So. 3d 1040 (Miss. 2021), to argue that Clark made a "good faith effort" to provide notice of his appeal to MDOC. The dissent contends that the facts in this case more closely resemble Hesler than Smith . We disagree. In fact, the supreme court distinguished Hesler from Smith :

This case can be distinguished. Here, the certificate of service listed both the circuit clerk and the Alcorn County Correctional Facility. Therefore, the record shows that Hesler mailed a copy of his motion for judicial review to the defendant in this case, the Alcorn County Correctional Facility. Although Hesler did not notice the MDOC or the attorney general, this Court will take into account when a prisoner is proceeding pro se and grant some degree of leniency.

Id . at 1042 (¶11). Clark did not notice MDOC or any of its facilities. This is not a criminal case, and MDOC is not represented by the district attorney. Clark noticed only the circuit clerk and the district attorney, and pursuant to Smith , that is insufficient.

¶6. The dissent also raises a due process violation for the failure to give Clark notice of a deficiency pursuant to Mississippi Rule of Appellate Procedure 2(a) prior to dismissing the petition for judicial review. However, we would note that neither Smith nor Hesler mentioned the requirement that a deficiency notice must be sent before dismissal. Smith clearly stands for the proposition that notice of the appeal to the parties and their attorneys is a jurisdictional requirement, not a procedural requirement. Thus, Mississippi Rule of Appellate Procedure 2(a) is not applicable. See Gibson v. Bell , 312 So. 3d 318, 322 (¶14) (Miss. 2020).

CONCLUSION

¶7. "[A]n appellate court may affirm a trial court if the correct result is reached, even if the trial court reached the result for a different reason." Davis v. City of Jackson , 240 So. 3d 381, 384 (¶13) (Miss. 2018). Since the circuit court's dismissal of Clark's petition was the correct result, we affirm the circuit court's order dismissing Clark's petition for lack of jurisdiction.

¶8. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, LAWRENCE AND SMITH, JJ., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J.; McDONALD, J., JOINS IN PART. McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY McDONALD, J.

WESTBROOKS, J., SPECIALLY CONCURRING:

¶9. I generally agree with Judge McCarty's position in his dissent, but the majority is correct in its disposition based on the specific facts in this case. The Mississippi Supreme Court's recent decision in Hesler , on which the dissent relies, allowed some leniency to an incarcerated pro se litigant who mailed a copy of his motion to the Alcorn County Correctional Facility instead of providing the required notice to MDOC of his intent to seek judicial review. Hesler v. Alcorn Cnty. Corr. Facility , 315 So. 3d 1040, 1041-42 (¶¶6, 11) (Miss. 2021). In Hesler , our Supreme Court held that a good-faith effort to provide the required notice of his intent to seek judicial review would suffice for a pro se inmate. Id . at 1042 (¶13). This upends a long line of cases from our Supreme Court that have held tightly to the precept that "[w]hile pro se litigants are afforded some leniency, they ‘must be held to substantially the same standards of litigation conduct as members of the bar.’ " Sumrell v. State , 972 So. 2d 572, 574 (¶6) (Miss. 2008) (quoting Perry v. Andy , 858 So. 2d 143, 146 (¶13) (Miss. 2003) ).

¶10. Given this change in direction, perhaps now is the time to assess the evolution of a good-faith effort, particularly as it relates to service of process by incarcerated individuals to effectuate the commencement of an action against MDOC. The circumstances presented make it time to consider whether it is a good-faith effort to give notice if an incarcerated individual names MDOC in the letter to the circuit clerk, or if MDOC is included on the certificate of service. Perhaps it is enough to constitute a good-faith effort if an inmate acknowledges in the record he is suing MDOC. Our Supreme Court could look to the approach adopted by states such as Pennsylvania, where the Supreme Court of Pennsylvania chose a more flexible standard for good faith for pro se plaintiffs. The Pennsylvania Supreme Court has held that a plaintiff satisfies the plaintiff's obligation to make a good-faith effort to give notice of the action when "the defendant has actual notice of the commencement of litigation and is not otherwise prejudiced ," even if the plaintiff fails to comply strictly with rules of civil procedure and local practice. McCreesh v. City of Philadelphia , 585 Pa. 211, 888 A.2d 664, 666 (2005) (emphasis added), distinguished by Fraisar v. Gillis , 892 A.2d 74, 78 (Pa. Commw. Ct. 2006) (citing McCreesh but noting that McCreesh does not apply when "no attempt at service was made," as there is no personal jurisdiction) (emphasis added)).

¶11. Notably, the Supreme...