IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00126-COA TIMMY ROBERTS A/K/A TIMMY ROBERT APPELLANT

v. MISSISSIPPI DEPARTMENT OF CORRECTIONS APPELLEE

DATE OF JUDGMENT: 12/15/2015 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: TIMMY ROBERTS (PRO SE) ATTORNEYS FOR APPELLEE: ANTHONY LOUIS SCHMIDT JR. JAMES M. NORRIS DARRELL CLAYTON BAUGHN NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: AFFIRMED THE JUDGMENT OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 05/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ. CARLTON, J., FOR THE COURT: ¶1. Tim m y Roberts was convicted of aggravated assault and sentenced to two concurrent twelve-y ear term s in the custody of the Mississippi Departm ent of Corrections (MDOC).
W h ile incarcerated, Roberts received a rule-violat i o n report (RVR) f or possessing a cell phone. A f

ter u nsuccessf

ully challenging the RVR and exhausting h is adm inistrative

rem edies through MDOC’s A dm inistrative Rem edy Program (ARP), Roberts sought review in the Hinds County Circuit C ourt, First Judicial District. The circuit cour t a f f irm ed thejudgm ent of t h e A RP. 1 Roberts now appeals the circuit court’s judgm ent and raises the

f ollowing issues: (1) MDOC v i o l a t e d h i s r i ght to due process by f ailing to hold a hearing within seven working day s of the alleged rule violation; (2) t he investigat o r f a i l e d to investigate the alleged rule violation; a nd (3) MDOC’s decision lacked e v identiary support. ¶2. Finding no error, we af f irm the circuit court’s judgm ent. FACTS ¶3. In May 2012, Roberts w as convicted of t w o counts of aggravated assault involving

a f irearm and was s entenced to two concurrent twelve-y ear t erm s in MDOC’s custody

. On
June 2, 2015, while an inm ate at W alnut G rove C orrectional Facility (W alnut Grove), 2
Roberts received an RVR f or possession of a cell phone. An i nvestigation and hearing were conducted, and on June 16, 2 015, the h e a r i n g o f f icer f ound Roberts guilty of the rule violation. ¶4. On June 1 9, 2015, Roberts f iled an appeal through M DOC’s ARP. Roberts received the MDOC’s response on June 2 3, 2015. MDOC held that Roberts “f ailed to produce any f acts t o support [ his] claim that the c ell phone f ound was n ot [ h is].” MDOC denied Roberts’s claim f

or r elief , ruling that his RVR f

or cell-phone posse s s i o n w ould not be

rem oved f

rom his record.

1 U n if o rm R u le o f C i r c u i t an d C o u n ty C o u rt P ractice 5 .0 3 states th at a n ag en cy ’s d ecisio n w ill n o t b e d istu r b ed o n ap p eal u n less t h e j u d g m e n t: (1 ) w a s u n su p p o rted b y su b stan tial ev id en ce, (2 ) w as ar b i t r a r y an d c ap ricio u s, (3 ) w as b ey o n d th e p o w er o f th e ag en cy , o r

(4 ) v io lated th e co m

p lain an t’s statu to ry

o r co n s titu t io n al rig h ts.

2 A t th e tim e R o b e rts receiv ed h is R V R an d f iled h i s m o tio n f

o r j u d icial rev iew , h e w a s in carcerated at Waln u t G ro v e in L eak e C o u n ty , M ississip p i

. W a ln u t G ro v e clo sed in S ep tem b er 2 0 1 6 , a n d R o b erts is n o w an in m ate at th e K em p e r C o u n t y C o rrectio n al F acility

. 2¶5. Unsatisf ied w ith M DOC’s response, Roberts appealed to the circuit court o n July 20,
2015. 3 By order entered Decem b e r 15, 2015, the circuit court f ound i t had j urisdiction over Roberts’s appeal and that the ARP’s decision was “supported by substantial e v i d e n c e and violate[ d] no statutory or constitutional right.” On January 26, 2 016, R oberts f iled his notice of appeal.
DISCUSSION
I. Whether Roberts filed his appeal in the proper venue. ¶6. At the tim e Roberts received his RVR and f iled his m otion f

or judicial review, he was incarcerated at W alnut G rove in Leake County

. However, R oberts f iled his appeal in Hinds County

. M DOC asserts that Roberts f i l e d h i s appeal in an im

proper venue and that the circuit court theref

ore lacked jurisdiction over his a ppeal. J u risdiction constitutes a question of l aw, a nd this C ourt reviews questions of law d e novo. S iggers v. Epps , 962 S o. 2d 78, 80 (¶4) (Miss. Ct. App. 2007). ¶7. M i s s i s s i p p i C o d e A n n otated section 47-5-807 (Rev. 2015) provides tha t “ [ a ] n y of f ender who is aggrieved by a n adverse decision rendered pursuant t o a n y adm inistrative[ -]review procedure

. . . m ay , within thirty ( 30) day s af ter receipt of the
agency ’s f

inal decision, seek judicial review of the d ecision.” In Putnam v. E pps , 63 So. 3d 547, 551 (¶8) (Miss. 2 0 11), the Mississippi S u p r e me Court recognized that “[ t]he statutes

3 T h e circu it co u rt’s o r d er ref lects th at its “in tern al sy stem sh o w s th e clerk d id f ile so m eth in g f

ro m R o b e rts o n Ju ly

2 0 , 2 0 1 5 [ ,] in h i s crim i n al f ile. Ju ly 2 0 w o u ld h av e b een w i t h i n th irty d ay s o f receip t o f h i s seco n d resp o n se (Ju n e 2 3 , 2 0 1 5 ) an d th u s t im ely .” O n A u g u st 1 8 , 2 0 1 5 , R o b e rts sen t th e circu it co u r t a letter in q u irin g a

b o u t th e statu s o f h is Ju ly ap p eal. 3governing the adm inistrative-review p rocedure do not contain a venue p r o vision.” (Citing

Miss. Code Ann. §§ 47-5-801, -807 (Rev. 2004)). The Putnam court e xplained that “[ v]enue in civil cases i s governed by Mississippi Code [ Annotated s]ection 11-11-3 [ (Rev. 2014)],” and the s u p r em e court thus clarif ied that “[ s]ection 11-11-3 applies to claim s brought pursuant to [ s]ection 47-5-807 of the [ ARP] statutes.” Putnam , 63 So. 3d at 551 (¶9). 4 ¶8. W i th respe c t t o t h e r u l es on venue i n civil a ctions, the suprem e c o urt provided the
f ollowing guidance in F

light L ine Inc. v. T

a nksley , 6 08 So. 2 d 1149, 1155-56 (Miss. 1992):
In venue disputes courts b egin with the well-pleaded allegations of the com plaint. These, of cou r s e , m ay b e s upplem ented—and contested—by af f idavits or other e vidence in cognizable f orm . W h a t is im

portant i s t hat venue needs to be s ettled early on. This policy prem is e undergirds our rule that a defendant w aives a ny objection t o v e n u e u nless he asserts it early on. If v enue is proper when and wh e r e suit is f i led, it m ay not b e ousted by later events. Of right, the plaintif

f s elects a m ong the perm issibl e venues, and his choice m ust be s u s t a i n e d unless in the end there i s no credible evidence s u p p o r t i n g the f

actual basis f

or the c l aim of venue. Put otherwise, t he c our t at trial m ust give the plaintif

f the benef

it of the reasonable doubt, and we do so on appeal as well. Still, we r egard v enue a right as valuable to the def enda n t a s t o the plaintif

f

. If in the end venue is im proper, the court m

ust honor [ a] tim ely objection and t ransf er to the correct venue, and, if it d oes not do so, we m

u st reverse. (Em phasis added) (internal citations om itted). ¶9. In apply ing section 11- 1 1

- 3 to a prisoner’s appeal of an MDOC decision o r policy ,

4 S ectio n 1 1 -1 1 -3 (1 )(a)(i) p ro v id es: C i v il actio n s o f w h i ch th e circu it co u r t h as o rig in al j u risd i c t i o n sh all b e co m m en ced in th e co u n ty w h ere th e d e f e n d an t resid es, o r, if a c o r p o r atio n , in th e co u n ty o f i ts p r i n c i p al p lace o f b u sin ess, o r in th e co u n t y w h ere a su b stan tial alleg ed act o r o m issio n o c cu rred o r w h ere a su b s tan tial ev en t th at cau sed th e in

j u ry o ccu rred

. 4this Court has repeatedly held t hat such a p p e a l s “ m u s t be m a de in the circuit court of the county where the p r isoner resides.” Hearron v. Miss. Dep’t of Corr ., 166 So. 3 d 53, 55-56 (¶8) (Miss. C t. App. 2015). As stated, the record shows that Roberts was housed at W alnut
Grove in Leake County

at the tim e the RVR occurred and at the tim e he f iled his appeal to circuit c o urt. MDOC theref ore argues t hat Roberts s hould have f iled his appeal t o the Leake County Circuit Court rather than the Hinds County Circuit Court. The record ref lects, though, that Roberts chose to f ile his civil acti o n in Hinds County a lthough he could have
f iled the appeal i n Leake County

. Pursuant to Mississippi Rule o f Civil P rocedure 12(b)(3),
MDOC c o uld have a sserted im proper venue as a n af

f irm ative def

ense i n it s a n swer to Roberts’s appeal, or M D OC could have f i led a m otion to transf

e r venue. However, MDOC f ailed to pursue either action, and a s a resu l t , M D O C waived both i ts objection and af f irm ative def

ense as to im

proper venue. See M.R.C.P. 12(h)(1). ¶10. In Fluker v. State , 200 So. 3d 1148, 1148 (¶1) (Miss. Ct. App. 2016), the def endant
f iled a “Petition f

or W rit of Habeas Corpus o r f or Order to Show C a

use and Motion f

or Evidentiary Hearing” in the circuit court and nam e d the State Parole Board as the respondent. This C ourt viewed the d e f endant’s petition as a regular civil action against the parole board rather than a m otion f

or postconviction r e l i e f

. Id. at 1149 (¶3). I n discussing the issue of venue in Fluker , we stated: The dissent s eem s to suggest that venue i n such a c ase is a j urisdictional issue tha t we m

u st address sua sponte. However, other than in certain special classes of local actions, venue is not jurisdictional, and the f

act that a case is f iled in an i m

proper venue does n ot of itself af f ect t he right o f the court to h ear and d eterm ine the case on the me r i t s . The Mississippi R ules of Civil Procedure m ake this clear. Rule 1 2(h)(1) provides that venue is an af f i rm ative

5def

ense that is w aived if it is not tim ely asserted by m o tion o r a n s w e r . A nd Rule 82(d) provides t hat[ ,] when an action is f iled lay ing venue in the wrong county , the action shall not be dism issed, but t he court, on t im ely m o tion, shall transf er th e a c t i o n t o the court in which it m ight properly have been f iled. Thus, even if we were t o raise the issue of v e n u e s u a s p onte, w e c ould not af f irm the dismissal of F l u k e r’s petition on that g round. Again, im proper venue is a reason to transf e r a case, not to dism iss it. Fluker , 200 So. 3d at 1149 (¶3) (internal citations, quotations, and f ootnotes om itted). ¶11. As Mississippi caselaw establishes, “a trial court will not b e put in error o n appeal f or

a m atter not presented to it f or decision.” H

arrington v. Office of Miss. Sec’y of State , 129 So. 3d 153, 169 (¶40) (Miss. 2013) (citation om itted). In the present case, neither Roberts

nor M DOC raised im

proper venue as an objection, af f irm ative def

ense, or issue bef

ore the circuit court. W e theref

ore f ind the issue is waived.
II. Whether M DOC v iolated R oberts’ s r i ght to due p rocess by not conducting a hearing w ithin seven w orking day s of t he r ule violation. ¶12. In his f

irst a ssignm ent of e r r o r , R o b e r t s a rgues M DOC violated his right to due
process by f

ailin g t o h o l d a hearing until ten working day s af ter the alleged violation occurred. Roberts asserts that h e received the RVR on June 2, 2 015, but that a hearing was
not held until June 16, 2 0 15. According to Roberts’s argum ent, MDOC’s discip linary procedures r equire a hearing t o b e held within seven w orking d ay s of the rule v iolation.
Because his hearing was not conducted until ten working day s af ter he received t he R VR, Roberts c l aim s that MDOC violated his right to d ue process. H e f

urther contends that, in violation of its disciplinary procedures and his due-process rights, MDOC f ailed to provide a written explanation regarding the delay in his hearing.

6¶13. Despite R oberts’s a ssertions on appeal, the r e c o r d bef ore this Court contradicts his claim s of a due-process violation. MDOC’s disciplinary procedures state t hat a h e a r i ng of f icer wi l l c onduct a d isciplinary hearing within seven working day s af ter a violation occurs. If m o re than seve n w o r k i n g day s elapse, a written e xplanation m ust be p rovided. Furtherm o re, the disciplinary procedures explain that “[ e]s t a b lished tim e f ram es and procedural requirem ents listed i n this standard operating procedure are advisory g uidelines and do not constitute a due[ -]process right to the of f ender. The Agency ’s f

ailure to abide by the tim e f ram es and p rocedural requirem ents w i ll not be a basis f or dism issal of the RVR.” ¶14. In the present case, the record ref lects that ten working day s indeed passed between Roberts’s alleged r

u le v i olation and the hearin g o n the m atter. However, as i ndicated by
MDOC’s disciplinary procedures, the provided tim e f ram es were a dvisory only

. Furtherm o re, Roberts’s R VR indicated that the hearing was not held within s even working day s be c a u s e the “unit [ was] on lockdown.” T hus, based upon a review of the record, including MDOC’s disciplinary procedures and Robe r t s ’ s R V R, we f ind no m erit to Roberts’s claim s of a due-process violation.
III. Whether the investigator failed to investigate the rule violation.
IV. Whether MDOC’s decision lacked evidentiary support. ¶15. W e next a ddress R oberts’s rem ai n i n g t w o i s s u e s t o g e t h e r . I n s o d o i n g , we acknowledge his argum ent that, in f urther violation of his due-process rights a nd MDOC’s
p r o c e d u r e s , the i nvestigator f ailed to investigate his a l leged r ule violation. As a related
argum ent, Roberts c ontends that no evidence supported t he h earing of f i cer’s f inding that he

7com m itted the r u le violation. W e again f ind, however, that the record clearly ref utes Roberts’s claim s. ¶16. Wh e n r e v iewing an a ppeal f rom an adm inistrative agency , “ the standard of revi e w applied by this Court is identical t o that of the circuit court.” Siggers , 962 So. 2d at 80 (¶4). Unless the decision of the adm inistrative agency “was unsupported by s ubstantial e vidence,

. . . a rbitrary or capricious,

. . . b e y o n d t h e a g ency ’s s cope or p owers[ ,] o r violated the constitutional or statutory rights of the aggrieved party ,” t his Court will not d i s t u rb that
agency ’s decision. Id .; see a l so URCCC 5.03. “Th e r e i s a rebuttable p resum ption which
f avors the agency ’s d ecision[ ,] and the chall e n ging party has t he burden of proving the contrary .” Ross v. Epps , 922 So. 2d 847, 849 (¶4) (Miss. Ct. App. 2006). ¶17. Despite Roberts’s allegations, the RVR indicates that an investigation began within twenty

- f our hours of the discovery of Roberts’s rule violation. The record f urther includes

a statem ent f

rom I nvestigator B rady Sistrunk, who discovered the r ule violation. According to Investigator Sistrunk’s ty ped statem ent, he f

ound a cell phone in Roberts’s cell during a search. Investigator Sistrunk stated that Roberts ref u sed to get out of his bed when ordered and that Roberts tried t o push a n object between his bed and the wall bef o re r ising f

rom his bed. Af ter securing Roberts, Investigator Sistrunk stated that he recovered the item , which turned out to be a deodorant container. Inside t he deodorant c ontainer, I nvestigator Sistrunk discovered a cell phone. ¶18. Thus, based upon a review of the record, we f i nd that substantial e vidence supported the hearing of

f icer’s determ inati o n t hat Roberts com m itted a rule violation. W e theref ore

8f

ind no m e rit to Roberts’s claim s on appeal. ¶19. THE JUDGMENT OF THE HIND S C O U N T Y C I R C U I T C O U RT, FIRST JUDICIAL DISTRICT, I S AFFIRMED. A LL COSTS O F T HIS A PPEAL ARE ASSESSED TO HINDS COUNTY. LEE, C.J., I RVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

9