IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00672-SCT

LYNWOOD McGHEE

v.

RAYMOND ROBERTS, SUPERINTENDENT OF

MISSISSIPPI DEPARTMENT OF CORRECTIONS,

AND JOAN ROSS, DIRECTOR OF MISSISSIPPI

DEPARTMENT OF CORRECTIONS DISCIPLINARY

DEPARTMENT

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 06/05/96

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL

BY: JANE LANIER MAPP

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 11/20/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/11/97

BEFORE DAN LEE, C.J., PITTMAN AND MILLS, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

Lynwood McGhee is an inmate legally incarcerated within the Mississippi Department of Corrections

("MDOC"). On April 25, 1996, McGee filed a Petition for Order to Show Cause in the Circuit Court

of Sunflower County against Raymond Roberts, then Superintendent of the Mississippi State

Penitentiary at Parchman, Mississippi, and Joan Ross, Director of the MDOC Disciplinary

Department, claiming his constitutional right to due process was violated when he had a rules

violation report ("RVR") heard by a disciplinary committee more than ten working days after the
issuance of the RVR. MDOC policies and procedures indicate that a hearing will be held by the

Disciplinary Department within ten working days after receiving an RVR, unless extenuating

circumstances cause a delay. The Honorable Gray Evans dismissed McGhee's petition, finding that

sufficient extenuating circumstances existed to support the delay of McGhee's RVR hearing. The

lower court treated McGhee's Petition for Order to Show Cause as a post-conviction relief motion.

Furthermore, the lower court found McGhee to be an indigent and allowed him to appeal to this

Court in forma pauperis.

STATEMENT OF THE FACTS

On November 14, 1995, while legally incarcerated within MDOC and housed at the Central

Mississippi Correctional Facility (hereinafter "CMCF"), Lynwood McGhee was found in possession

of marijuana and was given an RVR. The marijuana found on McGhee was sent to the Mississippi

Crime Laboratory for testing. The crime laboratory results were not received by the disciplinary

chairperson at the CMCF until December 27, 1995. However, McGhee had been transferred to the

Mississippi State Penitentiary at Parchman. Subsequently, McGhee's RVR and test results from the

crime laboratory on the marijuana were forwarded to Parchman where they were received on January

8, 1996. McGhee's RVR hearing was then heard on January 18, 1996, eight working days after the

RVR was received by the Disciplinary Department at Parchman and approximately two months after

the RVR was issued. McGhee was found guilty on the RVR and his custody classification was

reduced to C-custody (close confinement).

STATEMENT OF THE ISSUE

I. WHETHER THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

DUE PROCESS WHEN THE HEARING ON HIS RULES VIOLATION REPORT WAS

NOT HEARD WITHIN TEN (10) WORKING DAYS.

ANALYSIS

In the case sub judice, this Court finds that no constitutional rights have been violated and that

inmates should not be allowed to appeal to this Court in forma pauperis on matters such as this.

McGhee "does not argue the guilty [sic] or the punishment imposed by the Disciplinary Committee."

McGhee asserts that his only real argument is that he was denied due process by not having his

hearing within ten days, as stated in the MDOC's policy. This argument is completely without merit

and the case sub judice is affirmed for the following reasons.

The State cites Sandin v. Conner for the position that McGhee has not stated a claim which

implicates the due process clause or any other constitutional protection. Quoting Sandin, the State

asserts that:

States may under certain circumstances create liberty interests which are protected by the Due

Process Clause. But these interests will be generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner as to give rise to protection by

the Due Process Clause of its own force nonetheless imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2300 (1995) (citations omitted); Manley v.

Fordice, 945 F.Supp. 132, 138 (S.D. Miss. 1996). The State's argument that there was no due

process violation in the case sub judice when McGhee's disciplinary hearing was not held within ten

days of the issuance of the RVR is persuasive. The State also argues that "[McGhee's] classification

fell within the parameters of the sentence imposed by a court of law and did not present the type of

atypical, significant deprivation in which a state might conceivably create a liberty interest."

Furthermore, this Court is of the opinion that due to extenuating circumstances, a delay in McGhee's

hearing was to be expected.

This Court has previously held that "there is no liberty interest in an inmate's classification status" and

that "[c]lassification is an administrative decision and no constitutional right . . . was violated . . . ."

Carson v. Hargett, 689 So. 2d 753,755 (Miss. 1996). Therefore, this Court cannot find error in the

fact that McGhee's classification was reduced to C-classification after he was found guilty on his

RVR.

Finally, the lower court treated McGhee's Petition for Order to Show Cause as a post-conviction

relief motion and, subsequently, allowed McGhee to appeal to this Court in forma pauperis. This

decision by the lower court was in error. This Court held in Moreno v. State, 637 So. 2d 200 (Miss.

1994), that an inmate has no right to appeal in forma pauperis in any other than a criminal case or for

an action for post-conviction relief pursuant to Miss. Code Ann. § 99-39-1, et seq. Moreno v. State,

637 So. 2d at 202. Similar to this Court's opinion in Irving v. Director of Classification: Ann Lee,

et al., supra, an inmate's complaint regarding an RVR is not a criminal matter and does not meet the

dictates of the post-conviction relief statute, particularly Miss. Code Ann. § 99-39-5(1). Therefore,

McGhee and other inmates filing similar actions should not be allowed to appeal to this Court in

forma pauperis.

CONCLUSION

McGhee does not dispute his guilt or the punishment he received from the Disciplinary Committee

for his RVR. His only contention is that he was denied due process for not having his hearing within

ten days of the issuance of his RVR. In accordance with MDOC Rules, there is no liberty interest in

an inmate having a RVR hearing within ten days of the issuance of the RVR, especially where

extenuating circumstances, such as those here, exist. The decision of the lower court is affirmed as to

its dismissal of McGhee's petition; however, the Court notes that the lower court was in error in

allowing McGhee to proceed to this Court in forma pauperis.

AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., McRAE, ROBERTS, SMITH AND MILLS,

JJ., CONCUR. BANKS, J., CONCURS IN RESULT ONLY.