Kennedy v. Ark. Parole Bd. ( 2017 )

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SUPREME COURT OF ARKANSAS.
No. CV-17-72
Opinion Delivered August 3, 2017
JEREMY KENNEDY
APPELLANT
PRO SE APPEAL FROM THE
JEFFERSON COUNTY CIRCUIT
V.
COURT [NO. 35CV-16-375]
ARKANSAS PAROLE BOARD
APPELLEE HONORABLE JODI RAINES
DENNIS, JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
Appellant Jeremy Kennedy appeals from the dismissal of his pro se petition for judicial
review of an adjudication made by the Arkansas Parole Board (Board) pursuant to the
Arkansas Administrative Procedure Act (APA), codified at Arkansas Code Annotated
sections 25-15-201 to -218 (Repl. 2014). In his pro se petition for judicial review, Kennedy
alleged that in May 2016, the Board unconstitutionally denied his transfer eligibility to the
Department of Community Correction for one year in contravention of Arkansas’s parole
statutes and the Board’s own regulations as set forth in the Arkansas Parole Board Policy
Manual (Manual). However, Kennedy’s petition failed to identify the date on which he
committed the offenses for which he is currently incarcerated, and there is no other evidence
in the record in this appeal identifying the date those offenses were committed. Parole
eligibility is determined by the law in effect at the time the crime is committed. Bosnick v.
Lockhart, 283 Ark. 206, 209, 677 S.W.2d 292 (1984) (supplemental opinion on denial of
rehearing). In view of this, Kennedy’s petition failed to allege sufficient facts that would
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entitle him to review of the Board’s decision to deny transfer. We, therefore, affirm the
circuit court’s order dismissing Kennedy’s petition.
In the petition filed below, Kennedy contended that the Board’s decision was subject
to judicial review because he had been convicted of residential burglary and theft by
receiving, which are offenses that placed him within a “target group” of inmates who are
entitled to nondiscretionary parole or transfer. 1 Kennedy further alleged that the Board
denied him transfer without providing a course of action as prescribed by Arkansas Code
Annotated section 16-93-615(a)(2)(B)(ii) (Repl. 2016), 2 and by the Board’s own regulations
pursuant to its Manual.
The Board filed a motion to dismiss and contended, among other things, that
Kennedy’s petition should be dismissed because Kennedy failed to perfect service pursuant
to Rule 4(d)(8) of the Arkansas Rules of Civil Procedure (2016), and otherwise had failed
to state a claim for which relief can be granted under the provisions of the APA. Kennedy
responded to the motion to dismiss and asserted that the crimes for which he was convicted
are governed by section 16-93-615(a)(1)(A), which provides that inmates convicted of
certain felonies “shall” be transferred to the Department of Community Correction.
1
The term “target group” is defined in the Community Punishment Act codified at
Arkansas Code Annotated section 16-93-1202(10)(A)(i) (Repl. 2016), as including offenders
convicted of residential burglary and theft. Parole eligibility for this group is addressed by
section 16-93-614(3) (Repl. 2016).
2
Arkansas Code Annotated section 16-93-615 was enacted on March 20, 2011, by
Acts 2011, No. 570, § 100. The code sections that governed parole prior to the 2011 Act
were codified at Arkansas Code Annotated sections 16-93-206 (Repl. 2006), 16-93-1201–
1202 (Repl. 2006), and 16-93-1301-1302 (Repl. 2006).
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Kennedy contended that the use of this mandatory language created a constitutionally-
protected liberty interest in parole or transfer, which required the ADC to strictly follow
the statutorily mandated procedure before denying his entitlement to transfer. Kennedy
relied on this court’s holding in Whiteside v. Arkansas Parole Board, 2016 Ark. 217, 492
S.W.3d 489 (per curiam), and the United States Supreme Court’s holding in Board of Pardons
v. Allen, 482 U.S. 369 (1987), in support of this assertion.
The circuit court denied the petition, concluding that Kennedy did not comply with
the service requirements under Rule 4 of the Rules of Civil Procedure (2016), 3 had failed
to state a constitutional claim and the ADC’s determination of parole eligibility is not subject
to judicial review. On appeal, Kennedy raises the same argument that he raised below, and
adds an allegation that he was convicted in 2013.
When reviewing a circuit court’s order granting a motion to dismiss, we treat the
facts alleged in the complaint as true and view them in the light most favorable to the
plaintiff. Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). In viewing the
facts in the light most favorable to the plaintiff, the facts should be liberally construed in the
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Whether Kennedy strictly complied with the service requirements set forth in Rule
4 is of no moment with respect to a determination of the validity of Kennedy’s claim because
a petitioner/plaintiff has 120 days under Rule 4(i) of the Arkansas Rules of Civil Procedure
to perfect service of process, and the dismissal based on insufficiency of process should be
without prejudice. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 715,
120 S.W.3d 525, 533 (2003). The record demonstrates that Kennedy filed his petition on
June 23, 2016, the 120 days elapsed by October 21, 2016, and the circuit court dismissed
the petition on November 1, 2016. The dismissal on this ground should have been without
prejudice to allow Kennedy to perfect service of process and proceed with the action if he
had stated a colorable cause of action.
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plaintiff’s favor. Id. at 441, 206 S.W.3d at 840. Furthermore, our rules require fact pleading,
and a complaint must state facts, not mere conclusions, in order to entitle the pleader to
relief. Ballard Grp., Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, at 6, 436 S.W.3d 445,
449 (citing Ark. R. Civ. P. 8(a) (2013)). Our standard of review for the granting of a
motion to dismiss is whether the circuit court abused its discretion. Doe v. Weiss, 2010 Ark.
150, at 3.
Applying the above-cited standards, the circuit court did not abuse its discretion
when it concluded that Kennedy failed to state a constitutional claim that triggered
entitlement to judicial review under the APA. The administration of prisons has generally
been held to be beyond the province of the courts. Clinton v. Bonds, 306 Ark. 554, 557–
58, 816 S.W.2d 169, 171–72 (1991). However, an exception to the courts’ reticence to
entertain a prisoner’s administrative complaints occurs when the petitioner asserts an
infringement on constitutional rights. Id.
Treating the facts alleged in Kennedy’s petition as true, there is no allegation
contained in either the petition or other pleadings identifying the date he had committed
the offenses for which he is currently incarcerated, and there is no evidence in the record
establishing that date. Kennedy makes an allegation in his appellant brief that he was
convicted in 2013, but he did not present this allegation below, and the date of conviction
is irrelevant to a determination of parole eligibility. As stated above, parole eligibility is
determined by the law in effect at the time the crime was committed. Bosnick, 283 Ark. at
209, 677 S.W.2d 292. The parole-eligibility statutes were substantially amended by Act
570 of 2011, codified at sections 16-93-612 to -615, and Kennedy claims that it is these
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statutory provisions that mandate transfer and give rise to a constitutionally-protected liberty
interest. Because Kennedy did not raise sufficient allegations establishing which law applied
to his entitlement to transfer, he failed to state a claim that would trigger review of the
Board’s administrative action under our holding in Clinton, 306 Ark. at 557–58, 816 S.W.2d
at 171–72. In sum, there are no facts alleged by Kennedy demonstrating that a liberty
interest was created by the provisions of the parole-eligibility statutes in effect at the time
he committed the crimes of residential burglary and theft by receiving. Thus, Kennedy is
not entitled to judicial review of the Board’s determination, and the circuit court’s order
dismissing his petition was not an abuse of discretion.
Affirmed.
Jeremy Kennedy, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Nga Mahfouz, Sr. Ass’t Att’y Gen., for appellee.
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