IN THE SUPREME COURT OF MISSISSIPPI CASE NO CP APPEAL FROM THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI CASE NO.

Transcription

1 E-Filed Document Aug :49: CP Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI CASE NO CP BRENT RYAN PLAINTIFF/APPELLANT v. LOWNDES COUNTY ADULT DETENTION CENTER, ET AL. DEFENDANTS/APPELLEES APPEAL FROM THE CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI CASE NO CV1 H BRIEF OF APPELLEES MARY MCKAY LASKER, MSB # DANIEL J. GRIFFITH, MSB #8366 CHRISTOPHER N. BAILEY, MSB # JACKS GRIFFITH LUCIANO, P.A. P. O. BOX 1209 CLEVELAND, MISSISSIPPI PHONE: (662) FACSIMILE: (662) ATTORNEYS FOR APPELLEES L O W N D E S C O U N T Y A D U L T DETENTION CENTER, SHERIFF MIKE ARLEDGE, CHIEF DEPUTY MARK MILEY, CAPTAIN RICK JONES, CAPTAIN RYAN RICKERT, LT. BARRY S T A N F O R D, S G T. E R I C GIRANDERSON, SGT. SUAMEKA CUNNINGHAM, OFFICER MONICA TATE, OFFICER DAVID TATE, R-3 C A N D Y D A V I S, R - 2 KAREN S T A N F O R D, A N Y U N N A M E D I N D I V I D U A L S O R T H E I R SUCCESSORS IN OFFICE IN THEIR OFFICIAL CAPACITY

2 IN THE SUPREME COURT OF MISSISSIPPI BRENT RYAN PLAINTIFF/APPELLANT v. LOWNDES COUNTY ADULT DETENTION CENTER, ET AL. DEFENDANTS/APPELLEES CASE NO CP CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record hereby certifies that the persons listed below are either parties to this appeal or have an interest in the outcome of this lawsuit. These representations are made in order that the Justices of this Court may evaluate possible recusal or disqualification. 1. Brent Ryan, Appellant 2. Lowndes County Adult Detention Center, Appellee 3. Sheriff Mike Arledge, Appellee 4. Chief Deputy Mark Miley, Appellee 5. Captain Rick Jones, Appellee 6. Captain Ryan Rickert, Appellee 7. Lt. Barry Stanford, Appellee 8. Sgt. Eric Giranderson, Appellee 9. Sgt. Suameka Cunningham, Appellee 10. Officer Monica Tate, Appellee 11. Officer David Tate, Appellee -ii-

3 12. R-3 Candy Davis, Appellee 13. R-2 Karen Stanford, Appellee 14. Mary McKay Lasker, Attorney for Appellees 15. Daniel J. Griffith, Attorney for Appellees 16. Honorable Lee J. Howard, Trial Judge I hereby certify that to the best of my knowledge and belief, these are the only persons having an interest in the outcome of this appeal. th RESPECTFULLY SUBMITTED, this the 18 day of August, /s/ Christopher N. Bailey Christopher N. Bailey, MS Bar No Attorney for Appellees OF COUNSEL: JACKS GRIFFITH LUCIANO, P.A. P. O. Box 1209 Cleveland, MS Telephone: (662) Facsimile: (662) iii-

4 STATEMENT REGARDING ORAL ARGUMENT The lower court appropriately ruled on a question of settled law. Oral argument is not necessary for disposition of this appeal. -iv-

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ii-iii STATEMENT REGARDING ORAL ARGUMENT iv TABLE OF AUTHORITIES vi I. STATEMENT OF THE CASE Statement of the Facts II. SUMMARY OF THE ARGUMENT III. ARGUMENT Standard of Review Law and Argument I. The Trial Court properly dismissed Mr. Ryan s Petition because Mr. Ryan failed to have process issued and likewise failed to diligently serve process on the Defendants/Appellants and therefore was not diligent in attempting to serve process II. III. None of the issues raised in Mr. Ryan s brief were decided by the trial court and therefore are not ripe for appellate review The United States District Court for the Northern District of Mississippi has priority jurisdiction over this case as Mr. Ryan has filed and served process on each of the Defendants in that case asserting the same claims asserted here IV. CONCLUSION CERTIFICATE OF SERVICE v-

6 TABLE OF AUTHORITIES CASES PAGE Fulgham v. Jackson, No IA SCT, 2017 WL , at *2 (Miss., June 22, 2017) , 5 Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (Miss. 2002) Lexington Ins. Co. v. Buckley, 925 So. 2d 859, 865 (Miss. Ct. App. 2005) Long v. Memorial Hospital at Gulfport, 969 So. 2d 35, 40 (Miss. 2007) Montgomery v. SmithKline Beecham Corp., 910 So. 2d 541, 545 (Miss. 2005) , 6 Myers v. Mississippi Farm Bureau Mut. Ins. Co., 749 So. 2d 1173, 1174 (Miss. Ct. App. 1999) Ory v. Ory, 936 So. 2d 405, 410 (Miss. Ct. App. 2006) RAS Family P ship, LP v. Onnam Biloxi, LLC, 986 So. 2d 926 (Miss ) Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 804 So. 2d 1000, 1006 (Miss. 2001) th Spears v. McCotter, 766 F.2d 179 (5 Cir. 1985) Tucker v. Williams, 7 So. 3d 961, 964 (Miss. Ct. App. 2009) STATUTES Mississippi Rules of Civil Procedure 4(h) , 5, 6, 7, 9 Mississippi Rules of Civil Procedure 4(a)(1) Miss. Const. Art. 6, 146 (1890) Miss. Const. Art. 6, 156 (1890) vi-

7 I. Statement of the Case Mr. Ryan appeals the dismissal without prejudice of his Petition for Judicial Review on Administrative Remedies by the Lowndes County Circuit Court for failure to obtain process within 120 days under M.R.C.P. 4(h). Mr. Ryan is incarcerated at the Lowndes County Adult Detention Center serving a twenty-five year sentence. Mr. Ryan filed his Petition with the Lowndes County Circuit Court on January 27, (R. 3) However, Mr. Ryan has never requested for process to be issued for any of the Defendants, and, likewise, has never attempted to serve process on any of the Defendants. (R. 1) Despite never having requested that process be issued for any of the Defendants and never attempting to serve process on any of the Defendants, Mr. Ryan petitioned the Mississippi Supreme Court for a Writ of Mandamus on October 31, 2016, to require the trial court to enter an order. (R. 1) On November 29, 2017, a total of 307 days after Mr. Ryan filed his Petition, the trial court entered its Order Dismissing Action for Lack of Process finding that process has not been obtained within 120 days from the filing. (R. 77) A review of the trial court s docket entries and the record on appeal shows that Mr. Ryan never attempted to have any process issued, much less served, on any of the Defendants named in the action. (R. 1) As such, the trial court properly dismissed Mr. Ryan s Petition without prejudice. Mr. Ryan filed his Notice of Appeal with the Clerk of the Mississippi Supreme Court and Court of Appeals on December 30, 2016, and with the Circuit Court of Lowndes County on January 3, 2017, appealing the M.R.C.P. 4(h) dismissal of his Petition. (R. 78) On March 3, 2017, the trial court entered its Order Allowing Plaintiff s Motion to Appeal as Pauper finding that, while no right to appeal in forma pauperis -1-

8 exists in a civil suit, Mr. Ryan would be allowed to appeal the dismissal as a pauper because Mr. Ryan is incarcerated and indigent. (R ) Statement of the Facts Mr. Ryan is an inmate housed at the Lowndes County Adult Detention Center in Lowndes County, Mississippi. (R. 4) On January 27, 2016, Mr. Ryan filed his Petition for Judicial Review on [sic] Administrative Remedies alleging various due process and equal rights claims under the Eighth and Fourteenth Amendments to the United States Constitution, unspecified provisions of the Mississippi Constitution, and various statutes. (R. 3-13) Mr. Ryan alleges in his Petition that Lowndes County Adult Detention Center does not have an established procedure for review of inmate grievances. (R. 4) After filing his Petition, Mr. Ryan filed a Motion to Proceed In Forma Pauperis at the trial court level and a Motion for Appointment of Counsel, both on February 29, (R ) Mr. Ryan also filed three letters to the Circuit Clerk of Lowndes County and Circuit Judge Lee Howard. The first letter, filed on February 29, 2016, and accompanied by both of Mr. Ryan s motions, explains he will be filing the exhibits to his Petition at a later date and requests that he be appointed counsel to bring his action. (R ) The second letter, filed on April 25, 2016, requests a copy of the docket sheet, asks whether any orders have been entered in this case, and asks what Mr. Ryan can do to expidite [sic] this process. (R. 71) Finally, Mr. Ryan wrote Circuit Judge Lee Howard asking that Judge Howard rule on both of his motions and on the underlying Petition or that he would file a Petition for Mandamus. (R ) Notably absent, however, from any of the pleadings or letters, or from the Circuit Clerk s docket of the case, is -2-

9 any request to have process issued for any of the defendants/appellants, or any issuance of process to any of the defendants/appellants. As stated in Mr. Ryan s brief, he currently has pending an action filed in the United States District Court for the Northern District of Mississippi in Cause No. 1:16-cv That action was filed on August 31, 2016 against the same parties herein alleging the same facts and causes of action, and process has been duly issued and served against the Defendants after a hearing th conducted in that Court pursuant to Spears v. McCotter, 766 F.2d 179 (5 Cir. 1985). On October 31, 2016, Mr. Ryan filed a Petition for Writ of Mandamus with the Mississippi Supreme Court requesting that the Mississippi Supreme Court enter an order compelling Circuit Judge Howard to decide the case, despite the fact that no process was ever issued for the Defendants/Appellants in the state court action. (R. 1) On November 29, 2016, the Circuit Court of Lowndes County entered its Order Dismissing Action for Lack of Process, finding that process has not been obtained within 120 days from filing of the complaint. (R. 77) From this order, Mr. Ryan prosecutes this appeal. II. Summary of the Argument The Mississippi Rules of Civil Procedure provide that a Plaintiff must serve process on a defendant within 120 days after the filing of the complaint. If this mandate is not met, the claims against the defendant will be dismissed without prejudice absent a showing of good cause. However, good cause can never be demonstrated where a plaintiff has not been diligent in attempting to serve process. Mr. Ryan has never attempted to serve any process on the Defendants/Appellants because he has never attempted to have process issued. As such, the Circuit Court of Lowndes County properly found that process had not been obtained within the -3-

10 120 days from the filing of the complaint and dismissed Mr. Ryan s petition 307 days after it was filed. On appeal, Mr. Ryan attempts to argue the merits of his case rather than address the sole issue presented to this Court: whether dismissal of Mr. Ryan s Petition for lack of service of process was proper. However, there has never been a hearing or trial on the merits of Mr. Ryan s Petition, and likewise, the trial court has not ruled upon the merits of Mr. Ryan s claims. Therefore, the claims addressed by Mr. Ryan in his brief are not ripe for appellate review precisely because there is no ruling on the merits of the trial court to review. Finally, Mr. Ryan admittedly filed an action based on the same allegations contained in his state court Petition in the United States District Court for the Northern District of Mississippi and has properly served the Defendants in that case. As such, Mr. Ryan not only has an alternate tribunal in which to try his claim, priority jurisdiction dictates that the United States District Court for the Northern District of Mississippi is the proper court because it was the first court to acquire jurisdiction over the controversy at issue. III. Argument Standard of Review 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. Fulgham v. Jackson, No IA SCT, 2017 WL , at *2 (Miss. June 22, 2017). Therefore, appellate review is limited to determining only whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Id. -4-

11 Law and Argument I. The Trial Court properly dismissed Mr. Ryan s Petition because Mr. Ryan failed to have process issued and likewise failed to diligently serve process on the Defendants/Appellants and therefore was not diligent in attempting to serve process. For 307 days, Mr. Ryan failed to attempt to have issued, much less attempt to serve, process in this case. As such, the trial court properly, though implicitly, found that Mr. Ryan had not been diligent in attempting service of process, and would be unable to demonstrate good cause for failure to serve process. Service of process is simply the physical means by which a court acquires personal jurisdiction, and depends upon the presences of reasonable notice to the defendant that an action has been brought. Tucker v. Williams, 7 So. 3d 961, 964 (Miss. Ct. App. 2009); Lexington Ins. Co. v. Buckley, 925 So. 2d 859, 865 (Miss. Ct. App. 2005). It is well settled that a plaintiff must serve process upon the defendant(s) within 120 days of the filing of the complaint or petition. M.R.C.P 4(h); Fulgham, 2017 WL , at *2. If the plaintiff fails to meet this deadline established by M.R.C.P. 4(h), the complaint will be dismissed absent a showing of good cause. Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (Miss. 2002). However, [g]ood cause can never be demonstrated where the plaintiff has not been diligent in attempting to serve process. Montgomery v. SmithKline Beecham Corp., 910 So. 2d 541, 545 (Miss. 2005). 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. -5-

12 In Montgomery, the Mississippi Supreme Court observed that [o]rdinarily under Rule 4(h), where the 120 days has expired, a court must notify the plaintiff that, because of the failure to serve process, the case is subject to dismissal. The plaintiff must then appear and attempt to show good cause why process was not served within the 120-day period for service. However, the Court went on to reiterate that good cause can never exist or be demonstrated where the plaintiff has not been diligent in attempting to serve process. This case, however, falls outside of the ordinary rule. The trial court was correct in implicitly finding that no good cause existed for the failure of Mr. Ryan to serve process. A simple review of the trial court s docket in this case shows that Mr. Ryan never attempted to have process issued for any of the Defendants and therefore never attempted to have process served upon the Defendants. While the clerk of the Court is required to issue a summons for each of the defendants upon the filing of the complaint, the Plaintiff must make a written election to have the summons delivered to the plaintiff, the sheriff of the county in which the defendant resides or is found, or to make service by publication. M.R.C.P. 4(a)(1). Here, Mr. Ryan made no such written request, and completely failed to attempt service upon the Defendants. The judicial gloss applied by Long v. Memorial Hospital at Gulfport, 969 So. 2d 35, 40 (Miss. 2007) is not contradictory to the rule announced in Montgomery that good cause can never be demonstrated where the plaintiff has not been diligent in attempting to serve process. There, the Mississippi Supreme Court stated that precedent indicates that the reasons offered to demonstrate diligence in light of the failure to serve will be, and should be, reviewed even where the plaintiff's attempts at service are negligible or nonexistent. Long, 969 So. 2d at 40. Here, Mr. Ryan has not stated any reason why service of process was not accomplished within the time -6-

13 allowed by Rule 4(h). Be that as it may, the trial court properly considered the facts surrounding the filing of Mr. Ryan s action and the time which had elapsed between the filing of the Complaint by simply reviewing the Court s docket for the case. Indeed, the trial court s order dismissing this case states [a]fter being advised that process has not been obtained in the above styled and numbered action within 120 days from the filing of the complaint the Court hereby dismisses the above action without prejudice. As such, the trial court concluded that Mr. Ryan filed his Petition, and never attempted to have process issued to any of the defendants. Therefore, the Court found that good cause was lacking simply because no process had ever been issued and therefore there was absolutely no effort, much less diligence on the part of Mr. Ryan, to properly bring the defendants into court. With 307 days having elapsed from the filing of the complaint, no process having ever been issued at the request of the Plaintiff, and no defendant properly before the trial court, the trial court concluded that the lack of any effort for Mr. Ryan to bring his case before the Court warranted dismissal by the Court. II. None of the issues raised in Mr. Ryan s brief were decided by the trial court and therefore are not ripe for appellate review. On appeal, Mr. Ryan attempts to argue the merits of his case rather than address the sole issue presented to this Court: whether dismissal of Mr. Ryan s Petition for lack of service of process was proper. The Mississippi Constitution and long established precedent hold the Mississippi Supreme Court and Mississippi Court of Appeals are courts of appeal and [have] no original jurisdiction. [They] can only try questions that have been tried and passed upon by the court from which the appeal is taken. MISS. CONST. Art. 6, 146 (1890) (stating that [t]he Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall -7-

14 exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law ); Ory v. Ory, 936 So. 2d 405, 410 (Miss. Ct. App. 2006). A corollary to this rule is that the appellate courts of this state may not consider matters which do not appear in the record and review must be confined to what actually does appear in the record. Myers v. Mississippi Farm Bureau Mut. Ins. Co., 749 So. 2d 1173, 1174 (Miss. Ct. App. 1999). Mr. Ryan s argument asks this Court to assume original jurisdiction of his Petition. However, because the appellate courts of this state lack original jurisdiction to hear this matter, it cannot pass upon the merits of Mr. Ryan s petition. That task is specifically delegated by the Mississippi Constitution to the trial court. MISS. CONST., art (1890) (stating that [t]he circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court ). III. The United States District Court for the Northern District of Mississippi has priority jurisdiction over this case as Mr. Ryan has filed and served process on each of the Defendants in that case asserting the same claims asserted here. Finally, Mr. Ryan admittedly has asserted the same claims here and in the circuit court below as he asserts in the United States District Court for the Northern District of Mississippi, and has obtained process over the present Defendants/Appellants in that action. As such, the United States District Court for the Northern District of Mississippi has priority jurisdiction over the same claims Mr. Ryan has asserted here and in the trial court below. While Mr. Ryan filed the present action in the lower court on January 29, 2016, he never served process on any of the Defendants. On September 31, 2016, Mr. Ryan filed the exact same Petition with the United States District Court for the Northern District of Mississippi naming the exact same defendants as named here. -8-

15 The doctrine of priority jurisdiction holds that [w]here two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit. RAS Family P ship, LP v. Onnam Biloxi, LLC, 986 So. 2d 926 (Miss ) (quoting Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 804 So. 2d 1000, 1006 (Miss. 2001)); ). To determine which court first acquired jurisdiction over the case, the Court looks at the date the initial pleading was filed, provided process issues in due course. Id. Here, while the state court action presently before the court was filed prior to the federal court action, no process was issued to the Defendants, much less served. The U.S. District Court, however, acquired jurisdiction over the Defendants in this action prior to the Lowndes County Circuit Court, which has never acquired jurisdiction over the Defendants. As such, under the doctrine of priority jurisdiction, the United States District Court for the Northern District of Mississippi acquired jurisdiction over the whole controversy asserted here to the exclusion or abatement of the state court action. IV. Conclusion The Circuit Court for Lowndes County properly found that Mr. Ryan s Petition should be dismissed under Rule 4(h) of the Mississippi Rules of Civil Procedure because Mr. Ryan had not served, or attempted to serve, process on any of the Defendants he named in this action. In fact, Mr. Ryan entirely failed to have process issued for any of the Defendants/Appellants in this matter. After 307 day of this case sitting on the trial court s docket, with no process having been issued for any of the Defendants/Appellants, the trial court dismissed Mr. Ryan s Petition for -9-

16 failure to serve. Mr. Ryan then asked this Court to assume original jurisdiction of his Petition. However, this Court lacks jurisdiction to sit as finder of fact in this matter and pass upon the merits of Mr. Ryan s Petition. Finally, as Mr. Ryan admits in his brief before this Court, he has filed an action in United States District Court for the Northern District of Mississippi on the same set of facts and asserting the same claims against the same Defendants before that tribunal, and has acquired jurisdiction over that matter. As such, that Court has assumed priority jurisdiction since the Circuit Court of Lowndes County has never obtained jurisdiction over the Defendants/Appellants. The trial court s decision to dismiss this action should be affirmed. th RESPECTFULLY SUBMITTED this the 18 day of August, LOWNDES COUNTY ADULT DETENTION CENTER, SHERIFF MIKE ARLEDGE, CHIEF DEPUTY MARK MILEY, CAPTAIN RICK JONES, CAPTAIN RYAN RICKERT, LT. B A R R Y S T A N F O R D, S G T. E R I C G I R A N D E R S O N, S G T. S U A M E K A CUNNINGHAM, OFFICER MONICA TATE, OFFICER DAVID TATE, R-3 CANDY DAVIS, R-2 KAREN STANFORD, ANY UNNAMED INDIVIDUALS OR THEIR SUCCESSORS IN OFFICE IN THEIR OFFICIAL CAPACITY By: /s/ Christopher N. Bailey Christopher N. Bailey, MS Bar No Of Counsel: JACKS GRIFFITH LUCIANO, P.A. P. O. Box 1209 Cleveland, MS Phone No Fax No cbailey@jlpalaw.com -10-

17 CERTIFICATE OF SERVICE I, Christopher N. Bailey, Attorney for Defendants/Appellees, do hereby certify that I have this date filed a true and correct copy of the foregoing Brief of Appellees with the electronic filing system of the Court, which served counsel opposite and have served a copy by United States mail with postage prepaid to the following: Brent Ryan Inmate No South Mississippi Correctional Institute P. O. Box 1419 Leakesville, MS Pro Se Plaintiff Hon. Lee J. Howard Circuit Court Judge P.O. Box 1679 Starkville, MS th DATED this 18 day of August, By: /s/ Christopher N. Bailey Christopher N. Bailey -11-