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Jobe v. State, Mississippi Department of Corrections

Court of Appeals of Mississippi

July 30, 2019

DENNIS JOBE A/K/A DENNIS JAMES JOBE JR. A/K/A DENNIS JOBE JR. A/K/A DENNIS J. JOBE JR. A/K/A DENNIS JAMES JOBE APPELLANT
v.
STATE OF MISSISSIPPI, MISSISSIPPI DEPARTMENT OF CORRECTIONS AND EARNEST LEE APPELLEES

          DATE OF JUDGMENT: 03/16/2018

          SUNFLOWER COUNTY CIRCUIT COURT, HON. MARGARET CAREY-McCRAY JUDGE.

          ATTORNEY FOR APPELLANT: DENNIS JOBE (PRO SE).

          ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN.

         EN BANC.

          McDONALD, J.

         ¶1. Dennis Jobe (Jobe) appeals two circuit court orders concerning his complaints of facility conditions and deprivation of medical treatment by the Mississippi Department of Corrections (MDOC). The Mississippi Supreme Court has held that these orders are final and appealable and that Jobe's appeal to this Court was timely filed. After reviewing the circuit court opinions, we affirm them but also remand for further action given the circumstances.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Jobe is incarcerated at the Mississippi State Penitentiary where he is serving a nine- year sentence for possession of marijuana with intent to distribute and a concurrent twenty-year sentence for aggravated assault.

         ¶3. Jobe served in the military until 1990. As a veteran, he was entitled to and received treatment at the Veterans Administration Medical Center prior to his incarceration. He alleges that he contracted Hepatitis-C there. Jobe contends that the Veterans Administration will not treat him because they do not treat inmates.

         1. Requests for Medical Treatment with Harvoni

         ¶4. After Jobe's conviction and incarceration, Harvoni, a new treatment for Hepatitis-C, became available in 2014. When he learned about Harvoni, Jobe began requesting the treatment. Jobe made an initial request to MDOC's medical contractor, Health Assurance, on May 13, 2015. It responded that it did not have the authority to make that decision and it would refer the request to MDOC.

         ¶5. After hearing nothing about the "referral," Jobe sent his first request to MDOC for Harvoni on October 6, 2015. From the forms in the record, it appears that MDOC had thirty days to reply; Jobe received his response from MDOC eighty-six days later on December 27, 2015. In that response, MDOC replied: "Harvoni is not yet on our Pharmacy formulary. It is however being evaluated by executive officials. If and when its use is approved at this facility, we will begin arranging to evaluate eligible patients."

         ¶6. Jobe appealed this decision on January 26, 2016. He explained that the response was late due to the holidays and because the ILAP/Legal personnel did not come to pick up the mail. MDOC's response was quick this time. On January 29, it sent Jobe a letter denying his appeal as untimely.

         ¶7. Nearly eight months later, Jobe made a second request for Harvoni in an August 8, 2016 Administrative Review Process (ARP) filing. It should be noted that MDOC had not denied Jobe the treatment previously; it merely said the Harvoni treatment was under evaluation. Thus, Jobe initiated his request again. MDOC responded on August 15, 2016, saying that it had received Jobe's request but because he had made a previous request on the matter which was closed, he could not make the request again. MDOC specifically said: "Therefore, since this matter has already been accepted and closed, this particular request is being returned to you and will not be processed."

         ¶8. Whether an appeal of this decision or a further request, Jobe submitted another request on September 28, 2016. On October 3, 2016, Jobe received MDOC's response which said the same thing as the August 15 response, namely, that MDOC would not process any further requests on this matter.

         2. Judicial Review

         ¶9. Within the thirty-day deadline, on October 28, 2016, Jobe began his appeal to the Circuit Court of Sunflower County. He filed a motion in Sunflower Circuit Court for an extension of time within which to prepare his motion for judicial review. He certified that he had mailed a copy of this motion to MDOC's attorneys. He then completed his motion for judicial review, and it is undisputed that he dropped it in the prison mailbox on November 2, 2016. The clerk received it and filed it on November 9, 2016.

         ¶10. Thereafter, on November 22, 2016, MDOC filed a motion to quash the summons based on lack of personal jurisdiction over MDOC because of improper service of process (i.e., Jobe had failed to have the Attorney General served with process). MDOC also filed a motion to dismiss on the same grounds. It also argued that the case was frivolous; that the statute of limitations had expired; and that MDOC was immune from suit based on Mississippi Code Annotated section 11-46-9 (Rev. 2012). MDOC also filed an answer to Jobe's petition.

         ¶11. On November 25, 2016, Jobe responded to MDOC's answer in the circuit court. In the "Relief" request, Jobe raised for the first time that he had been deprived of outside exercise. Thereafter, on March 14, 2017, Jobe filed a "Declaration in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction" in which he sought relief on the same Harvoni treatment issue but also raised for the first time MDOC's failure to provide him with an MRI for a back problem and being subjected to group punishment.[1]

         ¶12. On March 16, 2018, the Sunflower County Circuit Court issued two orders. The court denied the Motion for Temporary Restraining Order concerning medical treatment for Jobe's back problem, denial of exercise time, and subjection to group punishment because Jobe had failed to exhaust his internal remedies on these issues. Because of this failure to exhaust, the circuit court found it had no jurisdiction and denied the motion. In that same order, the court found Jobe had exhausted his administrative remedy on the Harvoni ...


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