MISSISSIPPI DEPARTMENT OF CORRECTIONS, MARSHALL FISHER, EARNEST LEE AND SONJA STANCIEL
CHARLES D. ALLEN a/k/a CHARLES DAVID ALLEN
OF JUDGMENT: 10/28/2015
COUNTY CIRCUIT COURT HON. MARGARET CAREY-MCCRAY JUDGE.
ATTORNEYS FOR APPELLANTS: ANTHONY LOUIS SCHMIDT, JR. OFFICE
OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN.
ATTORNEY FOR APPELLEE: CHARLES D. ALLEN (PRO SE).
Charles Allen, a parole-eligible inmate in the custody of the
Mississippi Department of Corrections (MDOC), filed a request
pursuant to the administrative review procedure (ARP) that
MDOC develop a case plan for him. MDOC denied the request
and, after exhausting his administrative remedies, Allen
appealed to the Circuit Court of Sunflower County. The
circuit court found that Allen was entitled to receive a case
plan under an amendment to the Probation and Parole Law. MDOC
appeals, arguing that the circuit court lacked jurisdiction
over Allen's appeal because it was untimely, and,
alternatively, that the Probation and Parole Law does not
entitle Allen to receive a case plan.
Because MDOC's argument that the circuit court lacked
jurisdiction over Allen's action is not supported by the
record, we do not consider it. We find that, based on our
recent holding in Fisher v. Drankus, 204 So.3d 1232
(Miss. 2016), the Probation and Parole Law does not entitle
Allen to a case plan. Therefore, we reverse the decision of
the circuit court and render a decision in favor of MDOC.
The record includes the first page of Allen's circuit
court appeal, which shows that Allen filed an "Appeal
from Administrative Decision" on September 16, 2015.
Also included is the first page of a supporting memorandum,
which claims that MDOC, by adopting certain regulations,
violated state statutes by denying a case plan to Allen and
other inmates. Although MDOC's designation of the
appellate record requested all papers filed in the trial
court, no other pages of Allen's appeal or memorandum
were included in the record. On November 2, 2015, MDOC filed a
motion to dismiss, arguing that Allen had neither alleged nor
shown that he had exhausted his administrative remedies, that
Allen's claim was procedurally barred, and that his
appeal was not ripe for adjudication.
On November 6, 2015, the circuit court entered an order
granting Allen's request for a case plan. The circuit
court found that Allen had sought relief through ARP, and
that, on July 21, 2015, MDOC had denied Allen's request
for relief on the ground that Mississippi Code Section
47-7-3.1 did not apply "retroactively" to prisoners
sentenced before the effective date of the amendment on July
1, 2014. After examining Mississippi Code Section 47-7-3.1,
the circuit court rejected MDOC's position, finding that,
because Section 47-7-3.1(1) provides that MDOC shall develop
a case plan for all parole-eligible inmates, the plain
language of the statute mandates that MDOC develop a case
plan for all such inmates, including Allen. Although Section
47-7-3.1(2) does say that MDOC must complete a case plan
within ninety days of an inmate's admission to MDOC
custody, the circuit court found that Section 47-7-3.1(2)
merely established a deadline for the completion of case
plans for new inmates. The circuit court ordered MDOC to
complete Allen's case plan within ninety days.
WHETHER THE CIRCUIT COURT HAD JURISDICTION OVER ALLEN'S
Mississippi Code Section 47-5-807 provides that an inmate
aggrieved by a decision of MDOC under ARP may appeal within
thirty days after the inmate receives MDOC's final
decision. Miss. Code Ann. § 47-5-807 (Rev. 2015). MDOC
contends that Allen received its final decision on July 21,
2015, but that he did not file his appeal until September 16,
2015, well past the thirty-day period. MDOC argues that
timely filing under Section 47-5-807 is jurisdictional,
Stanley v. Turner, 846 So.2d 279, 282 (Miss. Ct.
App. 2003), and that, because Allen's appeal was
untimely, the circuit court lacked jurisdiction.
Although MDOC asserts in its brief that Allen received its
final decision on July 21, 2015, it fails to cite any record
evidence that Allen received its final decision on July 21,
2015. And the record does not disclose the date that Allen
received the department's final decision. "This
Court will consider only those matters that actually appear
in the record and does not rely on mere assertions in