IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-00090-COA MAC KENZ IE WILLIS APPELLANT

v. LT. WESTLEY, LT. BROOKS AND WARDEN WENDELL BANKS APPELLEES

DATE OF JUDGMENT: 12/27/2016 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MAC KENZIE W ILLIS (PRO SE) ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL C. BAUGHN NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: REVERSED AND REMANDED: 04/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Mac Kenzie W illis appeals the circuit court’s dism issal of his com plaint f or lack of jurisdiction. Because we f ind the circuit court had jurisdiction, we reverse and rem and. FACTS AND PROCEDURAL HISTORY ¶2. W i llis is an inm a te i n t h e c u s t o d y of the M ississippi Departm e nt o f Corrections (MDOC). In January 2006, W illis was convicted of one count of unlawf u l touching of a child and one count of statutory rape. He was sentenced to f if teen y ears f

o r the unlawf

ul
tou c h ing of a child and twenty y ears f or statutory rape, w i th the s entences to run concurrently , f

or a total of twenty y ears to serve in the custody of the M DOC. At all tim esrelevant to this appeal, W illis was housed at the Central M ississippi C orrectional F acility in

Rankin County

. ¶3. O n S e p t em

ber 1 2 , 2016, W illis was issued a rule violation report (RVR) f or t h e possession o f m ajor cont r a band—electronic devices or parts, s pecif i cally a c e ll p hone and battery

. A disciplinary hearing was held where the hearing of f icer, Latisha Brooks, 1 f

ound
W i llis g uilty of p o ssession of m ajo r c o n t r a b a n d. As a result, W i llis received a n eighteenm onth loss of

all privileges. ¶4. W i llis appealed the hearing of f icer’s decision through the MDOC’s adm inistrativerem edy program and claim ed a violation of due process. W e ndell Banks, a w arden with the MDOC, r eviewed the appeal and f ound that W i llis h ad received a f air a nd im partial hearing. As a result, W illis’s appeal was denied. ¶5. W i llis exhausted h is adm inistrative rem edies pursuant to Mississippi Code Annotated section 47-5-803 (Rev. 2015) and received notice o f the M D O C ’ s f i nal d ecision on Novem ber 10, 2016. On Decem ber 9, 2016, W illis f

iled a com

plaint f o r judicial review in the C ircuit Court of R ankin C o u n t y p u r s u a n t t o Mississippi Code A nnotated section 47-5-807 (Rev. 2 015). The circuit court sum m arily dism issed the com p laint f or lack of jurisdiction on Decem ber 27, 2016. W i llis now appeals and argues he was denied his c o nstitutional right to due process.

1 Willis claim s b o th L t. Westley an d L t. B ro o k s w e re em p lo y ed w ith th e M D O C as d iscip lin ary

h earin g o f

f icers. H o w ev er, th e R V R lists o n ly B ro o k s as th e h earin g o f f icer. 2ANALYSIS

¶6. The circuit court sum m arily dism issed the com plaint f or lack o f jurisdiction

. Jurisdictional issues are reviewed d e novo. M iller v. Provident Advert. & Mktg. Inc ., 155 So. 3d 181, 187 (¶15) (Miss. Ct. A pp. 2014). Additionally , “[ t]he appellate standard of review

as t o dism issal of actions on the pleadings is de novo.” Horton v. Epps , 20 S o . 3 d 2 4, 30 (¶15) (Miss. Ct. App. 2009). ¶7. The circuit c ourt did n ot explain why i t lacked jurisdiction. F urther, the circuit court d i d n ot specif

y whether it considered subject m atter jurisdiction o r personal j urisdiction.
Ins t e a d , i n s upport of i ts d i sm issal f or lack of jurisdiction, the circuit court sim ply cited Moore v. Mississippi Department of Corrections , 936 So. 2d 941 (Miss. Ct. App. 2005). ¶8. In Moore , the c ircuit court f ound it l acked jurisdiction since Moore f ailed to f ile his petition in the c ounty where h e w as detained and f ailed to f i le h is petition w ithin the statutory thirty -day period f

ollowing receipt of the MDOC’s f inal decision. Id

. at 944 (¶¶13-15). On appeal, we af

f irm ed the circuit court’s dism i ssal of Moore’s petition and f o und “that there

were am ple reasons f

o r f i nding that the [ circuit] court lacked j urisdiction

. . . .” Id

. at (¶16). ¶9. Here, unlike in Moore , the record shows W illis f i led his com

p laint f or judicial review i n t h e county where he was detained, i.e., Rankin County

. Thus, although not specif icall y noted, we assum e the circuit court’s dism issal f or lack of jurisd i ction was based upon W i llis’s f ailure to tim ely

seek judicial review of

the MDOC’s f

inal decision. 2

2 In its j u d g m e n t o f d ism issal, th e circu it co u rt n o ted th at th e M D O C ’s d ecisio n o n th e R V R w as m ad e S ep tem b er 1 2 , 2 0 1 6 , w h ich w o u ld in d icate th at th e co m p lain t , f i l e d 3¶10. Under section 47-5-807, any of f ender a g g r i e v e d by an adverse decision m ay seek judicial review “within thirty (30) day s af ter receipt of the [ M DOC’s] f inal decision.” The record indicates W illis f

iled h is com

plaint f or judicial review i n the circuit court within thirty day s a f ter receipt o f the MDOC’s f inal decision, as required by section 47-5-807. However, it a ppears that w hen W i llis f i l e d h i s c om

plaint in the circuit court, he f ailed to attach or include any docum entation that showed when he received the MDOC’s f inal decision.
W i thout s uch docum e ntation, the circuit court was unaware that W illis h ad in f act exhausted his adm i nistrative rem e dies and tim ely sought judicial review. ¶11. In Horton v. Epps , 20 So. 3d 2 4 , 2 9 ( ¶ 1 4 ) ( M iss. Ct. App. 2009), the circuit court dism issed an inm ate’s action f o r his f ailure to seek judicial review with i n thirty day s af ter receipt of the MDOC’s f

i nal decision. Following the dism issal of his action, the inm ate f iled docum entation that showed h e had in f act tim ely f

iled his petition. I

d

. at 30 (¶14). On appeal, the MDOC a rgued that “[ t]he [ circuit] court’s f indings i n i ts

. . . [ o]rder of [ d]ism issal

were entirely reasonable based o n t h e r e c o rd bef ore the court at that tim e” since “[ a]ll the evidence bef

ore the [ circuit] court indicated that Horton did not seek judicial review within the 30-day tim e period required by law.” Id

. at (¶15). However, we f ound that a lthough the circuit court was presented with an incom plete record, we “ [ h ad] no choice but to reverse the circuit c o urt’s f

inding that th[ e] action [ was] tim e-barred f or f ailure to tim ely f

ile a notice of

D e cem b er 9 , 2 0 1 6 , w as u n tim ely

. H o w ev er, a s th e reco rd sh o w s, S ep tem b er 1 2 , 2 0 1 6 , w as th e d a t e th e R V R w as issu ed

. T h e M D O C ’s f in al d ecisio n w as n o t m ad e u n til N o v em b er 2 , 2 0 1 6 , w ith n o tice to Willis o n N o v em b er 1 0 , 2 0 1 6

. 4appeal.” Id

.

¶12. H e r e , as in Horton , it appears the c ircuit court was presented with an incom plete record. Although W illis claim s to have subm itted “a copy of the ARP and a copy of the RVR with his [ com

plaint f or] judicial review,” the record does not indicate that such docum ents

we re f iled with the circuit court. Nevertheless, the a ppellate record includes a c opy of the MDOC’s f

inal decision, which shows the date W i llis received notice of that d ecision. 3 The record shows that W illis did in f act seek judicial review within thirty day s of r eceipt of the MDOC’s f

inal decision, a s required by section 47-5-807. Thus, the circ u it court had jurisdiction over W illis’s com plaint. ¶13. W h ile the circuit court did not state why it lacked jurisdiction, it cited and r elied upon M oore in support of its dism i ssal. In Moore , insuf f iciency of p rocess or insuf f ici e n c y o f service o f process were not r easons f or the circuit court’s d ism issal f or lack o f j urisdiction.
In f act, p rocess or service, or the lack thereof , w a s not an issue at all in Moore

. Thus, the circuit c ourt’s dism issal of W illis’s com

plaint f o r lack of jurisdiction was not based on his f ailure to properly

serve the respondents. ¶14. Mississippi Code Annotated sections 47-5-801 through 47-5-807 conf er jurisdiction
to the circuit court to entertain RVR appeals f rom i nm ates once they e x haust adm inistrative

rem edies. Id. at 80 (¶6). Based on the record bef ore us, the circuit court judgm ent does not indicate whether the court determ ined it did not have s ubject m atter jurisdiction or personal

3 T h e d o cu m en tatio n w as su b m itted b y b o th Willis an d th e M D O C

. 5jurisdiction. W e have concluded that the circuit court’s j udgm ent ruled that it did not have

subject m atter jurisdiction, and this decision was in error. The circuit court does in f act have subject m atter jurisdiction, and the circuit court’ s c o n s i d e r a t i o n o f p e r s o n a l j u r i sdiction issues

m ay be considered f

urther on rem and. ¶15. Because W illis exhausted his adm inistrative r em edies and sought judicial review wi t h i n thirty day s of receipt of the M DOC’s f inal decision, the circuit court had subject

m atter jurisdiction o ver W illis’s com plaint pursuant to s ections 47-5-803 and 47-5-807. See Siggers v. Epps , 9 62 So. 2d 78, 80-81 (¶7) (Miss. Ct. App. 2007) (“Siggers exhausted his adm inistrative rem edies and then sought j udicial review within thirty day s of the MDOC’s f inal d e c i sion[ ;] [ t]heref

ore, the circuit court had jurisdiction over Siggers’s com plaint pursuant to sections 47-5-803 and 47-5-807.”). Although the circuit court was p r e s e nted with a n incom

plete record due to W illis’s f ailure t o f i le certain docum entation, such f ailure does not preclude reversal of the circuit court’s dism issal of the action. Horton , 2 0 So. 3d
at 30 (¶15). Accordingly , we reverse and rem and this case to the circuit court f o r f urther review. ¶16. REVERSED AND REMANDED. LEE, C.J., BARNES, FAIR, WILSON, G REENLEE A ND TINDELL, JJ., CONCUR. IRVIN G , P . J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND WESTBROOKS, JJ. IRVING, P.J., DISSENTING: ¶17. The m ajority f

i nds that the circuit court erred i n dism issing W illis’s com p laint against

6two em

ploy ees of the Mississippi Departm e nt o f Corrections (MDOC) and W arden W endell Banks f o r lack o f jurisdiction. I disagree; theref o re, I d issent. I would af

f irm the j udgm ent of the circuit court. ¶18. In arriving at its decision, the m ajority m akes certain f actual assum

ptions because the circuit court’s order dism issing W illis’s com plaint does not set f

orth a f actual basis f

or the court’s conclusion that it lacked jurisdiction. Therein lies the rub. A caref ul e xam ination of the docket m akes clear that W illis never served h is c om plaint upon the Attorney General of the State of Mississippi (attorney general) as he was required to do, since his c om plaint was against em

ploy ees of

MDOC f or actions taken in their of f icial capacity

. ¶19. In his com

plaint, W illis lists Lieutenants W estley and Brooks as disciplinary hearing of f icers with the MDOC Central Mississippi Correctional F a c i l i t y (CMCF) in Pearl, Mississippi. He lists Banks as the W arden of the CMCF. ¶20. Rule 4(d)(5) of

the Mississippi Rules of

Civil Procedure provides in pertinent part: The sum mons and com

plaint shall be served t ogether. Service by sherif f or process server shall be m ade as f ollows: (5) Upon the State of Mississippi or any one of its departm ents, of f icers or institutions, by delivering a copy of the sum m ons and com plaint to the Attorney

General of

the State of M ississippi. ¶21. The certif

icate of service attached to W illis’s com plaint indicates that he served the

com plaint by United States m ail, postage prepaid, on the f ollowing: Becky Boy d, Circuit Clerk W arden W endell Banks Post Of f ice Box 1599 CMCF, Post Of f ice Box 88550 Brandon, MS 39043 Pearl, MS 39208
7District Court Clerk Fif th Circuit Appeal Court Clerk 501 East Court St., Suite 2500 600 S. Maestri Place Jackson, MS 39205 New Orleans, LA 70130-3408. ¶22. I f ind that the r ecord, as discussed above, supplies an adequate f actual basis such that this Court can say with conf idence that W illis f

ailed to obtain process on the respondents in the circuit court, thereby robbing that court of in p ersonam ju r i s d i c tion of the d ef endants. Since the c i r c uit court did not acquire in personam jurisdiction of the def endants because
W i llis f a iled to serve process on them , this Court’s jurisdiction s uf f e rs f rom the s am e def

ect. Theref ore, I would af

f irm the dism issal of

W illis’s com

plaint f or that specif

ic reason. ¶23. Appellate c ourts “are not restricted to [ a circuit] court’s rationale or its reasons f or the result it reached. On appeal, [ an a ppellate court] will af

f irm a decision of the circuit court where the right result is reached even though [ the a p pellate c ourt] m ay dis a g ree with the reason f or that result. Stewart v. W alls , 534 So. 2d 1033, 1035 (Miss. 1988). ¶24. In M

cClurg v
. State , 870 So. 2d 681 (¶2) ( Miss. Ct. App. 2 004), McClurg, an inm ate in MDOC’s custody , f

iled a com

plaint against the State of Mississippi, a rguing that he was required to serve m ore tim e than s im ilarly situated inm ates bef o re being e l igible f

o r parole.
W e f ound that McClurg “should never have been allowed t o proceed on appeal

. . . and that the original suit should have been dism i ssed f or f ailure to p roperly nam e a nd serve the actual parties in interest, nam ely the Parole Bo a r d a n d D e partm ent of Corrections.” (Em phasis added). Id. at 682 (¶6). ¶25. On Decem

ber 9, 2016, W illis f

iled a com plaint f or j udicial review in the Circuit Court
8of Rankin County pursuant to M i s s i s sippi Code Annotated section 47-5-807 (Rev. 2015).

Once a com

plaint has been f

iled in the circuit court, our r ules of c ivil p rocedure require that the com plaint and a sum m ons be served on the d ef endant and that the def

enda n t serve his

answer within thirty day s af ter the service of the sum m ons and com plaint. M.R.C.P. 4, 12. ¶26. I note that the clerk’s papers do not show that a sum m ons was ever requested or issued f or service upon any one—not u pon W arden Banks, who was the only state-agency def endant listed in W illis’s certif

icate of s ervice, nor upon the attorney general. I am m indf ul that Rule 4(h) gives a plaintif

f 120 day s to s erve the c o m plaint and sum m ons on a d ef endant and that

a dism issal prior to 120 d a y s would be prem a t ure. H ere, the dism issal o ccurred eighteen day s

a f t e r the com

plaint was f

iled. However, in light of the f act that no s um m ons was e v e r requested, it seem s reasonable to m e t o conclude that W illis, f or w hatever reason, had no intention of serving the attorney general. ¶27. The State raised the jurisdictional argum ent i n its brief , and W illis f

iled a rebuttal brief but did not address the i ssue in his rebuttal b rief af ter b eing a lerted by the S tate that process had not been ob t a i n e d o n the attorney general. The State, citing Mansour v. Charmax
I n d u stries, Inc ., 6 80 So. 2d 852, 853 (Miss. 1996), points out that “ [ i ]f the court d o e s n o t have service of process or an appearance of an individual, then that court l acks jurisdiction.”
I agree. W hile section 47-5-807 gives the circuit court subject m atter jurisdiction, it does not conf er in personam jurisdiction over a def endant nam e d in a comp l aint and against whom relief is sought. That has to be acquired by service of

process pursuant to Rule 4.

9¶28. W h ile I do not necessarily disagree with the m a jority that the circuit court m ay have erroneously concluded that it did n ot have subject m a t ter jurisdiction, that is not the point of this dissent. The point i s that the circuit court d id not have in personam jurisdiction over the def endants, and the State has n ot waived jurisdiction, a s the f irst issue that the State asserts in its brief is that this Court should dism i ss f or lack of jurisdiction. I n any event, m ore than 120 day s have now passed since W illis f iled his com

p laint without having it served on the State; theref

ore, no action c an be taken on that com plaint unless W illis can show good cause why no service was m ade within the 120 day s. ¶29. I cannot im agine how W illis can show good c a use in light o f the f

act that he did not list the attorney general in his certif icate of s ervice. H ad he done so, it would a t least have indicated that h e was aware that the attorney general had to be served and that W illis m ight have had plans of serving him at s om e point. A d ditionally , as stated and b ased on a perusal of the clerk’s papers, W illis never requested that a sum m ons be issued. So the m ajority ’s decision to reverse a n d r em and to the circuit court f or f urther review is tantam ount to

m andating the circuit court to h ear a case e v e n t h ough it lacks jurisdiction over the d e f e n dants. On the other hand, if it is the view of the m ajority that on rem and th e c i r c u i t
court is perm itted to determ ine i f it has in personam jurisdiction of the def endants and dism iss the c o mp l a i n t i f it d eterm ines that it does not, then the m ajority ought to say so. Otherwise, there is a good c hance that the circuit court m ay interpret the m ajority opinion as

m andating a review of W illis’s appeal on the m erits.

1 0¶30. The record clearly shows that the circuit c ourt did not acquire in personam jurisdiction

over the appellees. The m ajority ignores the signif icance of t h i s f

a c t and reverses and

rem ands, presum ably f

or the purpose of the circuit court h earing W illis’s a p p e a l on the

m erits. As stated, we, as an a ppellate c ourt, m ay af

f irm a decision of the circuit court where the right res u l t i s r e a c hed even though we m ay disagree with the reason, as determ ined by the trial court, f

or that result. I w ould a f

f irm the judgm ent of dism issal. W hile the dism issal

m ay have been prem a ture, n othing in the record suggests that W illis was attem p ting to obtain service at the tim e of the d ism issal or that he w a s even a ware of h is need to serve the attorney general. And m ore im

portantly , when the def

iciency in p rocess was pointed out to W illis by the State, he did nothing. ¶31. For the reasons presented, I dissent. CARLTON AND WESTBROOKS, JJ., JOIN THIS OPINION.

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