Cite as 2017 Ark. 234

No. CV-17-72

JEREMY KENNEDY

 APPELLANT

V.

ARKANSAS PAROLE BOARD

APPELLEE

Opinion Delivered August 3, 2017

PRO SE APPEAL FROM THE 

JEFFERSON COUNTY CIRCUIT 

COURT [NO. 35CV-16-375] 

HONORABLE JODI RAINES 

DENNIS, JUDGE

AFFIRMED. 

KAREN R. BAKER, Associate Justice

Appellant Jeremy Kennedy appeals from the dismissal of his pro se petition for judicial 

review of an adjudication made by the Arkansas Parole Board (Board) pursuant to the 

Arkansas Administrative Procedure Act (APA), codified at Arkansas Code Annotated 

sections 25-15-201 to -218 (Repl. 2014). In his pro se petition for judicial review, Kennedy 

alleged that in May 2016, the Board unconstitutionally denied his transfer eligibility to the 

Department of Community Correction for one year in contravention of Arkansas’s parole 

statutes and the Board’s own regulations as set forth in the Arkansas Parole Board Policy 

Manual (Manual). However, Kennedy’s petition failed to identify the date on which he 

committed the offenses for which he is currently incarcerated, and there is no other evidence 

in the record in this appeal identifying the date those offenses were committed. Parole 

eligibility is determined by the law in effect at the time the crime is committed. Bosnick v. 

Lockhart, 283 Ark. 206, 209, 677 S.W.2d 292 (1984) (supplemental opinion on denial of 

rehearing). In view of this, Kennedy’s petition failed to allege sufficient facts that would 

SUPREME COURT OF ARKANSAS.
Cite as 2017 Ark. 234

2 

entitle him to review of the Board’s decision to deny transfer. We, therefore, affirm the 

circuit court’s order dismissing Kennedy’s petition. 

In the petition filed below, Kennedy contended that the Board’s decision was subject 

to judicial review because he had been convicted of residential burglary and theft by 

receiving, which are offenses that placed him within a “target group” of inmates who are 

entitled to nondiscretionary parole or transfer.

1

 Kennedy further alleged that the Board 

denied him transfer without providing a course of action as prescribed by Arkansas Code 

Annotated section 16-93-615(a)(2)(B)(ii) (Repl. 2016), 2 and by the Board’s own regulations 

pursuant to its Manual. 

The Board filed a motion to dismiss and contended, among other things, that 

Kennedy’s petition should be dismissed because Kennedy failed to perfect service pursuant 

to Rule 4(d)(8) of the Arkansas Rules of Civil Procedure (2016), and otherwise had failed 

to state a claim for which relief can be granted under the provisions of the APA. Kennedy 

responded to the motion to dismiss and asserted that the crimes for which he was convicted 

are governed by section 16-93-615(a)(1)(A), which provides that inmates convicted of 

certain felonies “shall” be transferred to the Department of Community Correction. 

 

1

The term “target group” is defined in the Community Punishment Act codified at 

Arkansas Code Annotated section 16-93-1202(10)(A)(i) (Repl. 2016), as including offenders 

convicted of residential burglary and theft. Parole eligibility for this group is addressed by 

section 16-93-614(3) (Repl. 2016). 

2

Arkansas Code Annotated section 16-93-615 was enacted on March 20, 2011, by 

Acts 2011, No. 570, § 100. The code sections that governed parole prior to the 2011 Act 

were codified at Arkansas Code Annotated sections 16-93-206 (Repl. 2006), 16-93-1201–

1202 (Repl. 2006), and 16-93-1301-1302 (Repl. 2006). 
Cite as 2017 Ark. 234

3 

Kennedy contended that the use of this mandatory language created a constitutionallyprotected liberty interest in parole or transfer, which required the ADC to strictly follow 

the statutorily mandated procedure before denying his entitlement to transfer. Kennedy 

relied on this court’s holding in Whiteside v. Arkansas Parole Board, 2016 Ark. 217, 492 

S.W.3d 489 (per curiam), and the United States Supreme Court’s holding in Board of Pardons 

v. Allen, 482 U.S. 369 (1987), in support of this assertion. 

The circuit court denied the petition, concluding that Kennedy did not comply with

the service requirements under Rule 4 of the Rules of Civil Procedure (2016),

3 had failed 

to state a constitutional claim and the ADC’s determination of parole eligibility is not subject 

to judicial review. On appeal, Kennedy raises the same argument that he raised below, and 

adds an allegation that he was convicted in 2013. 

When reviewing a circuit court’s order granting a motion to dismiss, we treat the 

facts alleged in the complaint as true and view them in the light most favorable to the 

plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In viewing the 

facts in the light most favorable to the plaintiff, the facts should be liberally construed in the 

 

3

Whether Kennedy strictly complied with the service requirements set forth in Rule 

4 is of no moment with respect to a determination of the validity of Kennedy’s claim because 

a petitioner/plaintiff has 120 days under Rule 4(i) of the Arkansas Rules of Civil Procedure 

to perfect service of process, and the dismissal based on insufficiency of process should be 

without prejudice. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 715, 

120 S.W.3d 525, 533 (2003). The record demonstrates that Kennedy filed his petition on 

June 23, 2016, the 120 days elapsed by October 21, 2016, and the circuit court dismissed 

the petition on November 1, 2016. The dismissal on this ground should have been without 

prejudice to allow Kennedy to perfect service of process and proceed with the action if he 

had stated a colorable cause of action. 
Cite as 2017 Ark. 234

4 

plaintiff’s favor. Id. at 441, 206 S.W.3d at 840. Furthermore, our rules require fact pleading, 

and a complaint must state facts, not mere conclusions, in order to entitle the pleader to 

relief. Ballard Grp., Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, at 6, 436 S.W.3d 445, 

449 (citing Ark. R. Civ. P. 8(a) (2013)). Our standard of review for the granting of a 

motion to dismiss is whether the circuit court abused its discretion. Doe v. Weiss, 2010 Ark. 

150, at 3. 

Applying the above-cited standards, the circuit court did not abuse its discretion 

when it concluded that Kennedy failed to state a constitutional claim that triggered

entitlement to judicial review under the APA. The administration of prisons has generally 

been held to be beyond the province of the courts. Clinton v. Bonds, 306 Ark. 554, 557–

58, 816 S.W.2d 169, 171–72 (1991). However, an exception to the courts’ reticence to 

entertain a prisoner’s administrative complaints occurs when the petitioner asserts an 

infringement on constitutional rights. Id. 

Treating the facts alleged in Kennedy’s petition as true, there is no allegation 

contained in either the petition or other pleadings identifying the date he had committed 

the offenses for which he is currently incarcerated, and there is no evidence in the record 

establishing that date. Kennedy makes an allegation in his appellant brief that he was 

convicted in 2013, but he did not present this allegation below, and the date of conviction 

is irrelevant to a determination of parole eligibility. As stated above, parole eligibility is 

determined by the law in effect at the time the crime was committed. Bosnick, 283 Ark. at

209, 677 S.W.2d 292. The parole-eligibility statutes were substantially amended by Act 

570 of 2011, codified at sections 16-93-612 to -615, and Kennedy claims that it is these 
Cite as 2017 Ark. 234

5 

statutory provisions that mandate transfer and give rise to a constitutionally-protected liberty 

interest. Because Kennedy did not raise sufficient allegations establishing which law applied 

to his entitlement to transfer, he failed to state a claim that would trigger review of the 

Board’s administrative action under our holding in Clinton, 306 Ark. at 557–58, 816 S.W.2d 

at 171–72. In sum, there are no facts alleged by Kennedy demonstrating that a liberty 

interest was created by the provisions of the parole-eligibility statutes in effect at the time 

he committed the crimes of residential burglary and theft by receiving. Thus, Kennedy is 

not entitled to judicial review of the Board’s determination, and the circuit court’s order 

dismissing his petition was not an abuse of discretion. 

Affirmed. 

Jeremy Kennedy, pro se appellant. 

Leslie Rutledge, Att’y Gen., by: Nga Mahfouz, Sr. Ass’t Att’y Gen., for appellee.