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Duncan v. Matthews

Court of Appeals of Mississippi

July 18, 2017

WENDELL DUNCAN A/K/A WENDELL AVERY DUNCAN APPELLANT
v.
RANIECE MATTHEWS, LATRESIA STEWART, RICHARD PENNINGTON, MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND STATE OF MISSISSIPPI APPELLEES

          DATE OF JUDGMENT: 06/10/2016

         RANKIN COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III JUDGE

          ATTORNEY FOR APPELLANT: WENDELL DUNCAN (PRO SE)

          ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: JAMES M. NORRIS DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.

         EN BANC.

          GREENLEE, J.

         ¶1. Wendall Duncan appeals from the Rankin County Circuit Court's dismissal of his civil complaint. The circuit court held that service of process was not perfected within the 120 days allowed and that Duncan failed to show good cause why service was not made. Duncan's motion for a writ of mandamus, filed before 120 days had elapsed, indicated that he elected that service should be made by the sheriff. After the motion for a writ of mandamus was filed, the circuit clerk failed to deliver summonses and copies of the complaint to the sheriff for service. As it is apparent that Duncan showed good cause why service was not timely accomplished, and as such service by the sheriff was apparently the only way for Duncan to perfect service, we reverse and remand.

         FACTS AND PROCEEDINGS BELOW

         ¶2. On October 29, 2015, Duncan filed a pro se complaint in the circuit court against the appellees. In his complaint, Duncan asserted that he was incarcerated. With his complaint, Duncan submitted a summons and an application to proceed in forma pauperis. The circuit clerk subsequently issued the summons and returned it by mail to Duncan. On November 9, 2015, the circuit court found that Duncan should be allowed to proceed in forma pauperis, which the circuit clerk's office filed on the same day.

         ¶3. On January 4, 2016, the circuit clerk received correspondence from Duncan with a copy of the summons attached. In the correspondence, Duncan asked, "I would like to know have the defendants been served with the summons?" The circuit clerk replied to Duncan's inquiry with a letter dated January 11, 2016, in which the clerk informed Duncan that "[t]he summons that you sent to the [c]lerk's [o]ffice was issued and sent back to you for service. The [c]lerk's office does not serve summons[es]." The clerk's letter was addressed to "Wendell Duncan, #32726, S.M.C.I., P.O. Box 1419, Leakesville, Ms [sic] 39451."

         ¶4. On January 22, 2016, in response to the letter from the clerk's office, Duncan filed a Motion for Writ of Mandamus with the Rankin County Circuit Clerk asking the court to "order the [c]ircuit [c]lerk to issue the summonses to the sheriff, to serve the defendants." In his motion he stated that the appellees should have been served by that time and asserted that they would have been served "if the [c]ircuit [c]lerk had promptly issued process and delivered it to the sheriff." The motion was stamped by the circuit clerk's office and filed on January 22, 2016. On March 10, 2016, the circuit clerk's office received correspondence from Duncan that stated, in pertinent part, "If you are not going to give my complaint and summons to the sheriff for delivering, please inform me of what you have did [sic]." On that same day, Duncan moved for a writ of mandamus with the Mississippi Supreme Court requesting it to order the circuit court to make a ruling on his motion for a writ of mandamus with that court.

         ¶5. On March 24, 2016, the circuit clerk received further correspondence from Duncan in which he asserted the clerk was not cooperating and asked whether the clerk was going to "issue this process to the sheriff to serve the defendants." On May 2, 2016, the circuit clerk received a letter from the Clerk of the Mississippi Supreme Court seeking the circuit court's response to Duncan's motion for a writ of mandamus.

         ¶6. On May 6, 2016, the circuit court issued an order sua sponte concerning Duncan's complaint. The court found that service of a summons was not made upon the appellees within 120 days of the filing of Duncan's complaint. Further, the circuit court ordered Duncan to show within thirty days good cause why service of a summons and the complaint was not made on any of the appellees within the 120-day period. On the same day, the circuit court issued an order denying Duncan's motion for a writ of mandamus, finding that Duncan never elected to have the clerk deliver summonses to the sheriff for service.

         ¶7. On May 16, 2016, the circuit court received a copy of an order from the Mississippi Supreme Court dismissing Duncan's motion for a writ of mandamus as moot, given the circuit court's order denying ...


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