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02/24/98 ANDREW CLARY v. ANN LEE

ANDREW CLARY, APPELLANT
v.
ANN LEE, CHARLES WINTERS, AND MIKE BLOUNT, APPELLEES



DATE OF JUDGMENT: 04/23/96 TRIAL JUDGE: HON. GRAY EVANS COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

Before: McMILLIN, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Diaz, J., For The Court:

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: DISMISSAL OF COMPLAINTS CONCERNING LOSS OF PRISON JOB

Disposition `REMANDED - 02/09/981024/9809

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Andrew Clary assigns error to the lower court's dismissal of his complaints of racial discrimination which he allegedly encountered while seeking a job within the prison system. Finding that the lower court failed to adequately consider whether or not Clary had exhausted the full administrative review procedure for the racial aspects of his claim, we remand this case for further proceedings in accordance with this opinion.

FACTS

On August 1, 1992, Andrew Clary, an inmate incarcerated within the Mississippi Department of Corrections (MDOC), filed a complaint in the Circuit Court of Sunflower County alleging racially discriminatory job placement practices within the prison system. After receiving a job with the Parchman Fire Department, Clary voluntarily dismissed his complaint. The circuit court subsequently entered an order to that effect. On June 20, 1995, almost three years after Clary filed his initial complaint, the MDOC issued a Rule Violation Report (RVR), citing Clary with "willfully using equipment which is not authorized." As a result, Clary lost his job with the fire department. Clary then filed a motion for leave to re-open his initial lawsuit. The circuit court denied Clary's motion as an impermissible appeal from a decision of the superintendent in a RVR decision. On August 10, 1995, Clary filed a request for administrative remedy, again alleging racial discrimination within the MDOC. The legal claims adjudicator subsequently returned Clary's request, citing the circuit court Judge's denial of Clary's motion to re-open his original lawsuit. On March 22, 1996, Clary filed a second complaint in circuit court alleging racial discrimination within the MDOC. On April 23, 1996, the circuit court Judge signed an order once again dismissing Clary's original lawsuit and also dismissing his second complaint as repetitive. It is from this order of dismissal that Clary appeals to this Court.

Discussion

Mississippi Code Annotated § 47-5-807 (Rev. 1993) provides for judicial review of an adverse decision rendered pursuant to any MDOC administrative review procedure. However, "o state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure." Miss. Code Ann. § 47-5-803(2) (Rev. 1993).

In his August 10, 1995 grievance, Clary alleged that the MDOC had discriminated against him because of his race. Clary pointed to alleged incidents of discrimination which had occurred after the settlement of his original lawsuit. Nevertheless, the legal claims adjudicator refused to even consider the grievance, basing his refusal on the circuit court's unwillingness to permit Clary to re-open his original lawsuit. Having had his grievance summarily rejected by the grievance officer, it would therefore appear that Clary had exhausted his administrative remedies and could, at that point, file suit. Therefore, we must remand this case for a determination as to whether Clary has, in fact, exhausted the full administrative ...


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