OF JUDGMENT: 11/29/2016
ATTORNEY FOR APPELLANT: BRENT RYAN (PRO SE)
ATTORNEYS FOR APPELLEES: DANIEL JUDSON GRIFFITH MARY MCKAY
IRVING, P.J., BARNES AND WILSON, JJ.
Brent Ryan appeals the dismissal, without prejudice, of his
"Petition for Judicial Review on Administrative
Remedies" by the Lowndes County Circuit Court for
failure to execute service of process within 120 days.
Finding no error, we affirm.
On August 15, 2014, Ryan was arrested and indicted on one
count of felony fleeing and one count of aggravated domestic
assault. At trial, Ryan was convicted and sentenced as a
habitual offender to serve twenty-five years in the custody
of the Mississippi Department of Corrections. Apparently,
Ryan was incarcerated in the Lowndes County Adult Detention
Center (LCADC). On January 27, 2016, Ryan, acting pro se,
filed his "Petition for Judicial Review on
Administrative Remedies, " in which he alleged that the
LCADC "[did] not have an established procedure for
collateral review of grievances in accordance with state
statutes § 47-5-801 through § 47-5-807." Ryan
maintains that his constitutional rights to due process,
equal protection, and his right to counsel were violated
while he was detained at the LCADC. On November 30, 2016, the
Circuit Court of Lowndes County dismissed Ryan's petition
without prejudice on the basis that he had failed to execute
service of process within 120 days from the filing of his
complaint. Ryan now appeals.
"Service of process is simply the physical means by
which personal jurisdiction is asserted." Tucker v.
Williams, 7 So.3d 961, 964 (¶9) (Miss. Ct. App.
2009). "Without proper service of process or the entry
of an appearance, a trial court does not have jurisdiction
over the person." Id.
Rule 4(h) of the Mississippi Rules of Civil Procedure
provides: If a service of the summons and complaint is not
made upon a defendant within 120 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was
not made within that period, the action shall be dismissed as
to that defendant without prejudice upon the court's own
initiative with notice to such party or upon motion. M.R.C.P.
4(h) (emphasis added). "The plaintiff bears the burden
to demonstrate good cause for a failure to serve process in a
timely manner." Copiah Cty. Sch. Dist. v.
Buckner, 61 So.3d 162, 166 (¶14) (Miss. 2011).
"To establish 'good cause' the plaintiff must
demonstrate at least as much as would be required to show
excusable neglect, 'as to which simple inadvertence or
mistake of counsel or ignorance of the rules usually does not
"A trial court's finding of fact on the existence of
good cause for the delay in service of process has been
deemed a discretionary ruling and entitled to deferential
review." Collins v. Westbrook, 184
So.3d 922, 929 (¶16) (Miss. 2016) (internal quotation
mark omitted). "When reviewing fact-based findings, [an
appellate court] examines whether the trial court abused its
discretion and whether there was substantial evidence
supporting the determination." Id. (internal
quotation mark omitted).
First, we note that Ryan has failed to present any argument
demonstrating why the trial court erred in dismissing his
lawsuit for failing to effect service on the appellees. His
only argument is that "he did indeed notify all
interested parties of the petition, gave a true and correct
copy of such, and wrote letters requesting an answer."
However, such acts do not comply with Rule 4 of the
Mississippi Rules of Civil Procedure. The docket does not
reflect that Ryan ever properly served process, or that he
even attempted to do so. Ryan attached as an exhibit to his
appellate brief a letter from the attorneys representing the
"Board of Supervisors, " informing Ryan that the
board was never served with process on any lawsuit filed by