IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CP-01226-COA

DUDLEY ROSS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/10/2018

TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DUDLEY ROSS (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DARRELL CLAYTON BAUGHN

NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES

DISPOSITION: AFFIRMED - 12/10/2019

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Dudley Ross, appearing pro se, is an inmate in the custody of the Mississippi

Department of Corrections (MDOC). He appeals the Rankin CountyCircuit Court’s denial

of his petition for an order to show cause relating to an MDOCdecision in its Administrative

Remedy Program (ARP), which denied Ross’s request for a prison transfer due to medical

reasons. Finding no error, we affirm.

STATEMENT OF FACTS

¶2. Ross is a blind inmate at the Central Mississippi Correctional Facility (CMCF). He

was most recently convicted for numerous crimes in Pike County, Mississippi, including

possession of cocaine, methamphetamine, and a firearm by a felon. He was sentenced to
serve a total of twelve years. In November 2017, Ross requested a transfer to the East

Mississippi Correctional Facility (EMCF), a private prison facility, which was denied. In

January 2018, Ross filed a Medical Service Request Form, again requesting a transfer to

EMCF in order to see a doctor due to his blindness and “psych issues.”1 He also filed a

complaint requesting transfer through MDOC’s ARP. MDOC filed First- and Second-Step

Response Forms, denying Ross’s request for a transfer. The First-Step Response Form

stated that “medical” had not approved for him to be housed at EMCF. The Second-Step

Response Form stated that the mental health providers at CMCF were treating his diagnosis

and that he did not “fit the criteria” to be housed at EMCF.

¶3. Ross filed his petition for an order to show cause. He complained that he has to walk

several hundred yards outside to get his psychiatric medications and meals. Because of his

blindness, Ross must be escorted to the dining hall, but when it rains, his escorts refuse to

do so and will not bring him a food tray. Further, Ross argued that he qualified for a

medical transfer to EMCF because he is on two psychiatric medications. The circuit court

ordered MDOC to respond to the petition. MDOC answered and moved to dismiss Ross’s

petition. The circuit court found MDOC’s decision not to transfer Ross was supported by

substantial evidence, was not arbitrary or capricious, was within MDOC’s scope or power,

and did not violate Ross’s constitutional rights. Accordingly, the circuit court affirmed

MDOC’s decision, denied Ross’s petition, and dismissed the case.

¶4. Ross appeals, raising issues of constitutional proportion for the first time on appeal,

1 Ross claims EMCF offers specialized treatment for inmates with mental health

disorders.

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including that the conditions of his confinement are cruel and unusual punishment violating

the Eighth Amendment of the United States Constitution. Specifically, he claims he has

been “publicly humiliated” in prison for his blindness; has had inadequate medical

treatment; and has had to pay for individuals to guide him instead of CMCF’s providing a

“helper” or seeing-eye dog. He also mentions prison overcrowding and “being exorted [sic]

daily.”

STANDARD OF REVIEW

¶5. “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.’” Smith v. Wesley, 157 So. 3d 860, 861 (¶5) (Miss. Ct. App. 2015) (quoting

Taylor v. Petrie, 41 So. 3d 724, 727 (¶8) (Miss. Ct. App. 2010)). “In administrative matters,

the agency, and not the reviewing court, sits as [the] finder of fact.” Pub. Emps.’ Ret. Sys.

v. Cobb, 839 So. 2d 605, 609 (¶12) (Miss. Ct. App. 2003). The reviewing court may not

substitute its judgment for that of the administrative agency, or reweigh the evidence. Pub.

Emps.’ Ret. Sys. v. Dishmon, 797 So. 2d 888, 892 (¶12) (Miss. 2001). “Substantial

evidence” is defined as “that which provides an adequate basis of fact from which the fact

in issue can be reasonably inferred.” Id. A rebuttable presumption exists that the agency’s

decision was proper, and the challenging party bears the burden of proving to the contrary. 

Ross v. Epps, 922 So. 2d 847, 849 (¶4) (Miss. Ct. App. 2006). Deference is given “to the

fact finding role of the administrative agency and the hearing officer’s findings.” Johnson

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v. Miss. Dep’t of Corr., 682 So. 2d 367, 370 (Miss. 1996).

DISCUSSION

I. Eighth Amendment Claims

¶6. On appeal, Ross raises issues regarding cruel and unusual punishment that were not

raised below in his motion to transfer prison locations. Additionally, his two-page brief

makes no meaningful arguments beyond listing the claims, and he cites no authority in

support of those claims. However, “[u]nder the plain-error doctrine, we can recognize

obvious error which was not properly raised by the defendant on appeal, and which affects

a defendant’s ‘fundamental, substantive right.’” Smith v. State, 986 So. 2d 290, 294 (¶10)

(Miss. 2008). For the plain-error doctrine to apply and allow reversal of the trial court,

“there must have been an error that resulted in a manifest miscarriage of justice or seriously

affected the fairness, integrity[,] or public reputation of judicial proceedings.” Johnson v.

State, 155 So. 3d 733, 738 (¶8) (Miss. 2014). Plain-error review can only be used to correct

“obvious instances of injustice or misapplied law.” Smith, 986 So. 2d at 294 (¶10). Under

plain-error analysis, we must first determine “whether the trial court deviated from a known

legal rule . . . .” Starr v. State, 997 So. 2d 262, 266 (¶11) (Miss. Ct. App. 2008).

¶7. Here, a violation of the Eighth Amendment would affect Ross’s fundamental,

substantive rights and thussupport a plain-error analysis. Ross’s complaints relate to failure

to protect, inadequate medical care, and prison conditions. “[I]n order to succeed on an

Eighth Amendment claim for failure to protect, a plaintiff must show that the [prison

official] acted with deliberate indifference to the inmate’s health or safety, and mere

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negligence on the part of the official is insufficient.” Clay v. Epps, 19 So. 3d 743, 746 (¶11)

(Miss. Ct. App. 2008) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). The same

standard of “deliberate indifference” applies to claims ofinadequate medical care and prison

conditions. Id. at 747 (¶13); Bilbo v. Thigpen, 647 So. 2d 678, 685 (Miss. 1994) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Farmer addressed the showing necessary to

prove that a defendant violated the Eighth Amendment in a treatment of an inmate’s medical

needs. Farmer, 511 U.S. at 837. Two requirements must be met: (1) the medical need in

question must be objectively “serious”; and (2) the prison official must act with subjective

deliberate indifference, meaning they knew of and disregarded “an excessive risk to inmate

health or safety . . . .” Id. Deliberate indifference is an “extremely high standard.” Young

v. McCain, 760 F. App’x 251, 256 (5th Cir. 2019) (unpublished). Prison officials must have

“refused to treat the prisoner, ignored his complaints, intentionally treated him incorrectly,

or engaged in any similar conduct that would clearly evince a wanton disregard for [his]

serious medical needs.” Id. (quoting Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756

(5th Cir. 2001)).

¶8. In Tuft v. Texas, 410 F. App’x 770, 772-73 (5th Cir. 2011) (unpublished), a disabled

inmate brought a 42 U.S.C. § 1983 and Americans with Disabilities Act (ADA) claim for,

among other matters, having to wait in line and walk fifty yards for medication. The United

States Court of Appeals for the Fifth Circuit, however, held that these allegations, if proven,

would not constitute deliberate indifference for an Eighth Amendment violation. Id. at 775. 

Similarly, Ross presents no evidence that MDOC’s staff acted in deliberate indifference to

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his safety or health. The MDOC Second-Step Response Form indicates that he was

receiving appropriate medical attention for a mental condition. And while Ross claims that

MDOC failed to escort him in the rain to meals, he presents no evidence that the isolated

events, if proved, rise to the level of deliberate indifference. We find no such deviation from

a known legal rule by the trial court, and Ross’s claims are without merit.

II. MDOC’s Decision

¶9. The circuit court found MDOC’s decision to deny Ross’s transfer was supported by

substantial evidence, was not arbitrary or capricious, was within MDOC’s scope or power,

and did not violate Ross’s constitutional rights. We find no error in this determination.

¶10. In contrast to Ross’s brief, the State’s fifty-page brief cites over one-hundred fifty

cases and statutes to bolster its argument to affirm the trial court’s dismissal.2 The State’s

substantial-evidence argument is the most pertinent, and we find it unnecessary to address

the State’s other arguments except Ross’s status to proceed in forma pauperis (IFP). The

State cites two cases where MDOC’s decision was affirmed, and we find them instructive.

In Clay, 19 So. 3d at 744-45 (¶¶2, 4), inmate Louis Clay filed a complaint with MDOC’s

2 The State’s numerous arguments include: lack of service of process upon MDOC

under Mississippi Rule of Civil Procedure 4(d)(5); no right to an in forma pauperis appeal

in a civil case; the internal MDOC statute of limitations had run on Ross’s case; Ross did

not name MDOC as a party in the action; Ross’s claim is frivolous because there is no liberty

interest in the ARP grievance process; there is no private cause of action in the ARP process;

inmates do not have a right to medical preferences or transfer due to medical reasons; circuit

courts do not have the authority to order the transfer of inmates; there is no liberty interest

in a particular inmate housing assignment or classification; MDOC provided adequate food

and medical services to Ross; and inmates are prohibited from raising an ADA claim and

such a claim is without merit here; and finally that MDOC’s decision was supported by

substantial evidence.

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ARP after an assault by another inmate, seeking a transfer and damages, because he alleged

the prison staff did not protect him or provide adequate medical care after the assault. This

Court affirmed MDOC’s decision to deny a transfer because Clay was moved to a different

building from the one in which his attacker was housed, and Clay provided no proof of

deliberate indifference to his medical needs. Id. at 746-47 (¶¶11-13). In Wright v. King, 158

So. 3d 1176, 1178 (¶10) (Miss. Ct. App. 2014), this Court upheld MDOC’s decision to

move an inmate to a special building after contraband, a cell phone, was discovered on his

person.

¶11. Ross has failed to provide any evidence that MDOC’s decision was not supported by

substantial evidence, was arbitrary and capricious, was beyond the agency’s scope or 

powers, or violated his constitutional or statutory rights. Therefore, the judgment of the

circuit court is affirmed.

III. In Forma Pauperis Status

¶12. The State claims that the circuit court should not have granted Ross’s motion for

leave to proceed IFP on appeal because the petition was a civil action, citing Nelson v. Bank

of Mississippi, 498 So. 2d 365, 366 (Miss. 1986) (holding that an indigent civil litigant does

not have a right to proceed IFP on appeal), and a 1988 opinion by the Mississippi Attorney

General’s Office, stating that it was “aware of no authority” empowering a board of

supervisors “to appropriate money to pay the costs of civil appeals prosecuted by private

citizens, notwithstanding said citizens may be indigent.” Miss. Att’y Gen. Op., 1988 WL

249981, Harper, at *1 (March 21, 1988). Subsequently, in Johnson v. State, 623 So. 2d

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265, 266-67 (Miss. 1993), the Mississippi Supreme Court provided an exception to Nelson,

holding that while an indigent civil litigant may not proceed IFP in an appeal, this rule does

not applyto appeals brought under the UniformPost-ConvictionCollateralRelief Act. Postconviction collateral actions, while technically civil in nature, deal with criminal matters. 

Id. (citing Miss. Code Ann. §§ 99-39-7, -25(1) (Rev. 2015)).

¶13. Mississippi Code Annotated section 47-5-76 (Rev. 2015) governs the payment of

costs by MDOC for an inmate’s filing of a civil action. After an in-depth examination of

section 47-5-76 and its legislative history, specifically its most recent amendments in 1998

and 2005, we conclude that an inmate may be granted IFP status on appeal under the statute. 

In 1989, the Legislature enacted section 47-5-76, providing that if an inmate is a plaintiff

in a civil action and has filed a pauper’s affidavit, MDOC “shall pay, out of any funds

available for such purpose” all court costs assessed against the inmate. Miss. Code Ann. §

47-5-76 (Supp. 1989). The statute was amended in 1993, restricting the payment of costs

to those civil actions filed against a department employee and pertained to a condition of

confinement:

If an inmate plaintiff files a pauper’s affidavit in a civil action and the

defendant is an employee of the department and the civil action pertainsto the

inmate’s condition of confinement, the department shall pay, out of any funds

available for such purpose, all costs of court assessed against such inmate in

such civil action.

Miss. Code Ann. § 47-5-76 (Rev. 1993).

¶14. In Moreno v. State, 637 So. 2d 200, 201 (Miss. 1994), an inmate challenged whether

IFP status under section 47-5-76 could extend to an inmate’s filing of an appeal. The

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Mississippi Supreme Court concluded that the statute “unambiguous[ly] . . . allows an

inmate plaintiff only to proceed [IFP] at the trial level, if all of the statutory requirements are

met, but not at the appellate level.” Id. at 202 (emphasis added).

¶15. In 1996, the Legislature added subsection (2) to section 47-5-76 to address repeated

frivolous filings by an inmate.3In 1998, subsection (1) was amended to include—for the

first time—language referencing an inmate’s filing an appeal. See Miss. Code Ann. § 47-5-

76(1) (Rev. 2004) (stating the department shall not pay court costs if the inmate had on three

or more occasions “brought an action or appeal that was dismissed on the grounds that it

was frivolous, malicious, or failed to state a claim upon which relief could be granted.”

(emphasis added)). The most recent version of section 47-5-76 is from the 2005

amendment, which provides:

(1) Except as provided in subsection (2) of this section, if an inmate plaintiff

files a pauper’s affidavit in a civil action and the defendant is an employee of

the department and the civil action pertains to the inmate’s condition of

confinement, the department shall pay, out of any funds available for such

purpose, all costs of court assessed against the inmate in the civil action.

However, the department shall not pay the costs of court if the inmate has on

three (3) or more prior occasions, while incarcerated, brought an action or

appeal that was dismissed on the grounds that it was frivolous, malicious, or

failed to state a claim upon which relief could be granted.

An inmate shall not bring a civil action or appeal a judgment in a civil action

or proceeding in forma pauperis if the prisoner has, on three (3) or more prior

occasions, while incarcerated or detained in any facility, brought an action or

appeal in a court that was dismissed on the grounds that it was frivolous,

3 Shortly after the 1996 amendment, the supreme court reiterated in Carson v.

Hargett, 689 So. 2d 753, 755 (Miss. 1996), that section 47-5-76 is only applicable at the trial

level, not the appellate level. Because the action in Carson involved a writ of habeas

corpus, however, the supreme court rejected the State’s argument that the inmate should pay

the costs of the action. Carson, 689 So. 2d at 755.

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malicious, or failed to state a claim upon which relief may be granted, unless

the prisoner is under imminent danger of serious physical injury.

(2) An inmate who proceeds in forma pauperis in a civil action shall pay

twenty percent (20%) per month of the funds in his or her inmate

account to the Department of Corrections until all filing fees and costs of

his or her litigation are paid to the department. The department may

withdraw such funds automatically from the account of any inmate

permitted a civil filing as a pauper. If an inmate is allowed an appeal in

forma pauperis of a civil action, the inmate shall reimburse all costs and

fees to the department by automatic withdrawal each month in the

amount of twenty percent (20%) of his or her funds until all state funds

are reimbursed.

Miss. Code Ann. § 47-5-76 (Rev. 2015) (emphasis added) (2005 additions in bold). We find

that this language referencing appeals in the 1998 and 2005 amendments allows a trial court

to grant an inmate IFP status on appeal. Here, section 47-5-76(2) applies. Accordingly,

Ross may appeal his civil case as an IFP litigant, and the trial court did not err in granting

such status.

¶16. We find it appropriate to assess costs of this appeal to the appellant, even though he

has IFP status, because MDOC is entitled to withdraw funds from Ross’s inmate account

until all fees and costs of his appeal are repaid. Because the Rankin County Board of

Supervisors paid for Ross’s filing fee on appeal, MDOC would presumably reimburse the

board for the cost of the appeal.

¶17. AFFIRMED.

CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS,

TINDELL, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. 

McDONALD, J.,CONCURSINRESULT ONLY WITHOUT SEPARATE WRITTEN

OPINION.

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