Leavitt v. Carter

Decision Date11 September 2012
Docket NumberNo. 2010–CP–01388–COA.,2010–CP–01388–COA.
Citation178 So.3d 334
Parties Scott LEAVITT, James Holiday and Gregory Applewhite, Appellants v. ShNesha CARTER, Kino Reese and Dale Caskey, Appellees.
CourtMississippi Court of Appeals

178 So.3d 334

Scott LEAVITT, James Holiday and Gregory Applewhite, Appellants
v.
ShNesha CARTER, Kino Reese and Dale Caskey, Appellees.

No. 2010–CP–01388–COA.

Court of Appeals of Mississippi.

Sept. 11, 2012.


178 So.3d 336

Gregory Applewhite, appellant, pro se.

Scott Leavitt, appellant, pro se.

James Holiday, appellant, pro se.

Lee Thaggard, Robert T. Bailey, Meridian, attorneys for appellees.

Before LEE, C.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court:

¶ 1. Scott Leavitt, Gregory Applewhite, and James Holiday (Appellants) are inmates at the East Mississippi Correctional Facility (EMCF) in Meridian, Mississippi. After another inmate, Robert Marsh, told EMCF's mental-health counselor that the Appellants were trading their canteen items for his meal trays, the counselor issued a rule violation report (RVR) for each Appellant, and they were given a disciplinary hearing. According to the Appellants, the disciplinary hearing officer found them "guilty" of the rule violation without affording them a chance to present evidence or witnesses. The Appellants subsequently filed a complaint with the Lauderdale County Circuit Court, alleging that the actions of the prison employees were malicious and violated their right to due process. The circuit judge dismissed the complaint as frivolous, and the Appellants now appeal. Finding no reversible error, we affirm the circuit court's dismissal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal originated in 2009 when Marsh complained to the prison's mental health counselor, ShNesha Carter, that the Appellants were trading their canteen items in exchange for his meal trays. Carter submitted RVRs for the Appellants, alleging that they had violated Rule B20 in the Mississippi Department of Corrections' (MDOC) handbook: "Engaging in extortion or blackmail, bribery, loan sharking, collecting or incurring debt."

¶ 3. According to the Appellants, when they were brought for a hearing on the alleged violations, EMCF's disciplinary hearing officer, Kino Reese, had already marked on their respective RVRs that they were "guilty," and he merely asked them to sign the document acknowledging their guilt. Although each Appellant claims that he filed an appeal of the decision through the MDOC's Administrative Remedy Program (ARP), only Leavitt received a response. The response, which Leavitt received on September 24, 2009, stated that there was no evidence to overturn the officer's decision.1 Leavitt filed a second and third request for review of the RVR hearing, both of which were denied. On March 8, 2010, Leavitt received a letter from the ARP administrator confirming that he had fulfilled the requirements of the ARP and was eligible to seek judicial review within thirty days.

178 So.3d 337

¶ 4. The Appellants each filed a motion to appoint counsel and a motion to proceed in forma pauperis on April 2, 2010. Then, on May 20, 2010, the Appellants filed a complaint with the Lauderdale County Circuit Court against Carter, Officer Reese, and Dale Caskey, EMCF's warden (Appellees). Although the complaint was not filed within thirty days after Leavitt completed the ARP, the circuit court entered an order to file a new case on May 20, 2010.2 Thus, the circuit court gave the Appellants leave to file their untimely complaint, which alleged that the Appellants were not afforded due process and that Officer Reese and Carter acted with malicious intent. The complaint also alleged negligence on the part of Warden Caskey. The Appellants requested declaratory relief, injunctive relief, nominal damages, compensatory damages, and punitive damages.

¶ 5. The circuit court entered an order of dismissal with prejudice on July 20, 2010, finding that the Appellants' complaint "fail[ed] to present any sound basis in fact or law," and, moreover, "would have not chance of success" under the Mississippi Tort Claims Act (MTCA). On appeal, we affirm the circuit court's dismissal as to Applewhite's and Holiday's claims, as they failed to exhaust their administrative remedies. Further, while we find merit to Leavitt's claim that immunity under the MTCA is not applicable in this case, Leavitt has failed to provide any facts that would warrant relief, and his claims have no realistic chance of success. Accordingly, we affirm the circuit court's dismissal of the complaint.

I. Whether the Appellants have exhausted their administrative remedies.

¶ 6. There is no dispute that, to the extent that the Appellants seek a vacation of the RVRs, their complaint constitutes an appeal from an administrative decision by an agency. "We will not disturb the decision of an administrative agency, such as the MDOC, unless the decision is ‘unsupported by substantial evidence, arbitrary or capricious, beyond the agency's scope or powers, or violative of the constitutional or statutory rights of the aggrieved party.’ " Taylor v. Petrie, 41 So.3d 724, 727 (¶ 8) (Miss.Ct.App.2010) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001) ).

¶ 7. It is well settled that "[a]n inmate must exhaust all of his internal remedies with the MDOC before seeking judicial review of any complaint." Id. at 727–28 (¶ 12) (citing Edwards, 796 So.2d at 996 (¶¶ 22–23) ). If the offender is aggrieved by the agency's final decision after the administrative process is complete, he may seek judicial review of the decision within thirty days of receipt. Miss.Code Ann. § 47–5–807 (Rev.2011).

¶ 8. The Appellees assert that Applewhite and Holiday failed to exhaust their administrative remedies, and we agree. Applewhite and Holiday claim in their respective "affidavits" that although they filed a grievance through the ARP at the end of August 2009, they never received an answer. While the MDOC's grievance procedures entitle a prisoner who receives no response to "automatically advance to the next grievance level," there is nothing in the record to show that either inmate completed the ARP and exhausted his administrative remedies. Thus, this Court is without jurisdiction to consider these claims. See McKenzie v. State, 66 So.3d 1274, 1275 (¶ 2) (Miss.Ct.App.2011).

¶ 9. Leavitt filed a grievance through the ARP and received his first-step response

178 So.3d 338

on September 24, 2009. He received his second response on October 8, 2009. Leavitt submitted a third request for relief and received his third-step response form on February 22, 2010. A certificate stating that Leavitt had fulfilled the requirements of the ARP was signed and received by him on March 8, 2010. Although Leavitt's third-step response was not received until February 22, 2010, the MDOC's Administrative Review Board granted permission for Leavitt to pursue judicial review.

¶ 10. Leavitt filed a motion to appoint counsel and motion to proceed in forma pauperis on April 2, 2010. As already noted, the complaint was not filed until May 20, 2010, which typically would require the complaint to be dismissed as untimely. However, the circuit court gave Leavitt leave to file the complaint. Accordingly, we find that Leavitt exhausted his administrative remedies and was eligible to seek judicial review of his claim. Any remaining issues addressed by this Court will solely concern Leavitt's claims.

II. Whether the circuit court erred in dismissing the complaint as frivolous.

¶ 11. "Our trial courts possess an inherent authority to dismiss frivolous complaints, sua sponte, even prior to service of process on the defendants." Duncan v. Johnson, 14 So.3d 760, 762 (¶ 4) (Miss.Ct.App.2009). We review such action by the court for abuse of discretion, considering "(1) whether the complaint has a realistic chance of success; (2) whether it presented an arguably sound basis in fact and law; and (3) whether the complainant could prove any set of facts that would warrant relief." Id. at 763 (¶ 5) (citing Dock v. State, 802 So.2d 1051, 1056 (¶ 11) (Miss.2001) ).

¶ 12. Leavitt alleges that the circuit court erred by dismissing the complaint without performing a judicial review. In Edwards, 796 So.2d at 998 (¶ 36), the supreme court stated: "The right to judicial review of final decisions of the classification committee is conferred by statute." However, the circuit judge in Edwards dismissed for lack of jurisdiction. As we have already observed, the circuit court had jurisdiction to consider Leavitt's appeal of his RVR. This Court has held: "Circuit courts may dismiss actions without a hearing when it is clear from the record that the prisoner is not entitled to any relief." Clay v. Epps, 19 So.3d 743, 746 (¶ 8) (Miss.Ct.App.2008). While the court's order of dismissal does not make any specific findings—merely stating the complaint is without a "sound basis in law"—it did not dismiss for lack of jurisdiction. Therefore, we find nothing to indicate that the circuit court did not consider the Appellants' complaint and conduct an appropriate judicial review.

A. Dismissal under the MTCA

¶ 13. In its order of dismissal, the circuit court alternatively reasoned that the Appellants' complaint would not be successful because the Appellees had immunity from...

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    • August 5, 2019
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