Mitchem v. Hobbs , 2014 Ark. 233 ( 2014 )


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  •                                     Cite as 
    2014 Ark. 233
    SUPREME COURT OF ARKANSAS
    No.   CV-13-1098
    Opinion Delivered May   15, 2014
    ROBERT MITCHEM
    APPELLANT          PRO SE MOTION FOR EXTENSION
    OF TIME TO FILE APPELLANT’S
    V.                                                BRIEF,
    [JEFFERSON COUNTY CIRCUIT
    RAY HOBBS, DIRECTOR, ARKANSAS                     COURT, NO. 35CV-13-355]
    DEPARTMENT OF CORRECTION;
    M.D. REED, WARDEN, OUACHITA                       HONORABLE JODI RAINES DENNIS,
    RIVER CORRECTIONAL UNIT; JOHN                     JUDGE
    FELTS, CHAIRMAN, ARKANSAS
    PAROLE BOARD; ABRAHAM
    CARPENTER, VICE CHAIRMAN,                         APPEAL DISMISSED; MOTION
    ARKANSAS PAROLE BOARD;                            MOOT.
    CAROLYN ROBINSON,
    COMMISSIONER, ARKANSAS PAROLE
    BOARD; JOSEPH PEACOCK,
    COMMISSIONER, ARKANSAS PAROLE
    BOARD; JIMMY WALLACE,
    COMMISSIONER, ARKANSAS PAROLE
    BOARD; DUANE VANDIVER,
    COMMISSIONER, ARKANSAS PAROLE
    BOARD; RICHARD BROWN, JR.,
    COMMISSIONER, ARKANSAS PAROLE
    BOARD
    APPELLEES
    PER CURIAM
    In 2013, appellant Robert Mitchem filed in the Jefferson County Circuit Court a pro se
    petition for declaratory judgment against the Director of the Arkansas Department of Correction
    (“ADC”), in whose custody appellant was held, a prison warden, and members of the parole
    board, alleging that he had been wrongfully denied release from custody or transfer from the
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    2014 Ark. 233
    ADC to the Arkansas Community Corrections (“ACC”). The petition was dismissed on the
    appellees’ motion, and appellant lodged an appeal from the order in this court. Now before us
    is appellant’s motion for extension of time to file his brief. As it is clear from the record that
    appellant could not prevail on appeal, the appeal is dismissed. The motion is moot. This court
    treats declaratory-judgment proceedings as applications for postconviction relief in those
    instances where a prisoner seeks relief from the conditions of incarceration. Cridge v. Hobbs,
    
    2014 Ark. 153
    (per curiam); Gardner v. Hobbs, 
    2013 Ark. 439
    (per curiam). An appeal from an
    order that denied a petition for postconviction relief will not be allowed to proceed where it is
    clear that the appellant could not prevail. Cridge, 
    2014 Ark. 153
    .
    In 2004, appellant was found guilty by a jury of attempted rape and kidnapping and
    sentenced to an aggregate term of 240 months’ imprisonment. The Arkansas Court of Appeals
    affirmed. Mitchem v. State, 
    96 Ark. App. 78
    , 
    238 S.W.3d 623
    (2006).
    The Arkansas Parole Board required that appellant complete the Reduction of Sexual
    Victimization Program (“RSVP”) before being eligible for parole or transfer to the less-
    restrictive custody of the ACC. Appellant argued in the petition for declaratory judgment that
    the circuit court should order the director of the ADC and the parole board to make him
    immediately eligible for parole or transfer to the ACC on the ground that it was a violation of
    his right to due process and other constitutional rights to be held in the ADC.
    In reviewing the circuit court’s decision on a motion to dismiss under Arkansas Rule of
    Civil Procedure 12(b)(6) (2013), we treat the facts alleged in the complaint as true and view them
    in the light most favorable to the party who filed the complaint. See Ark. Tech Univ. v. Link, 341
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    Ark. 495, 
    17 S.W.3d 809
    (2000). In testing the sufficiency of the complaint on a motion to
    dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings
    are to be liberally construed. See 
    id. However, our
    rules require fact pleading, and a complaint
    must state facts, not mere conclusions, in order to entitle the pleader to relief. See 
    id. We find
    that appellant’s suit was barred by sovereign immunity under article 5, section
    20, of the Arkansas Constitution. Because sovereign immunity is jurisdictional immunity from
    suit, jurisdiction must be determined entirely from the pleadings. Bd. of Tr. v. Burcham, 
    2014 Ark. 61
    . Article 5, section 20, of the Arkansas Constitution provides that the State of Arkansas shall
    never be made a defendant in any of her courts. 
    Id. We have
    extended the doctrine of sovereign
    immunity to include state agencies. 
    Id. When the
    pleadings show that the action is, in effect, one against the State, the circuit
    court acquires no jurisdiction. 
    Id. A suit
    against a state official in his or her official capacity is
    not a suit against that person, but rather is a suit against that official’s office. Brown v. Ark. State
    HVACR Lic. Bd., 
    336 Ark. 34
    , 
    984 S.W.2d 402
    (1999). In determining whether the doctrine of
    sovereign immunity applies, the court must decide if a judgment for the plaintiff will operate to
    control the action of the State or subject it to liability. Burcham, 
    2014 Ark. 61
    . If so, the suit is
    one against the State and is barred by the doctrine of sovereign immunity, unless an exception
    to sovereign immunity applies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 
    2013 Ark. 36
    , ___
    S.W.3d ___.
    This court has recognized three ways in which a claim of sovereign immunity may be
    surmounted: when the State is the moving party seeking specific relief, when an act of the
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    legislature has created a specific waiver of sovereign immunity, and when the state agency is
    acting illegally or if a state-agency officer refuses to do a purely ministerial action required by
    statute. 
    Id. Additionally, a
    state agency may be enjoined if it can be shown that the pending
    action of the agency is ultra vires or without the authority of the agency, or that the agency is
    about to act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner. See
    Burcham, 
    2014 Ark. 61
    . None of the exceptions are applicable to the instant case. Appellant’s
    petition was clearly intended to control the actions of the director of the ADC and the parole
    board members, and he made no showing that sovereign immunity should not apply to those
    parties.
    In addition to appellant’s cause of action being barred by sovereign immunity, appellant
    failed to state a basis for declaratory judgment under Arkansas Code Annotated sections 16-111-
    101 to -111 (Repl. 2006). We have held that a criminal defendant may not use a declaratory-
    judgment action or a suit for an extraordinary writ for the purpose of challenging a criminal
    conviction, sentence, or parole eligibility. Manning v. Norris, 
    2011 Ark. 439
    (per curiam); see also
    Johnson v. State, 
    340 Ark. 413
    , 
    12 S.W.3d 203
    (2000). There is no constitutional right or
    entitlement to parole that would invoke due-process protection. Cridge, 
    2014 Ark. 153
    ; see also
    Michalek v. Lockhart, 
    292 Ark. 301
    , 
    730 S.W.2d 210
    (1987). The determination of parole
    eligibility is solely within the province of the ADC, as fixed by statute. Cridge, 
    2014 Ark. 153
    ;
    Aquilar v. Lester, 
    2011 Ark. 329
    (per curiam); Thompson v. State, 
    2009 Ark. 235
    (per curiam)
    (holding that, because determining parole eligibility is the prerogative of the ADC, the trial court
    would not have had authority to place conditions as to parole eligibility on the sentence
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    announced); see also Abdullah v. Lockhart, 
    302 Ark. 506
    , 
    790 S.W.2d 440
    (1990); Fain v. State, 
    286 Ark. 35
    , 
    688 S.W.2d 940
    (1985).
    Appellant’s petition also failed to satisfy the prerequisites for a declaratory-judgment
    action. 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. See
    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 plaintiff's favor.
    Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order
    to entitle the pleader to relief.” 
    Id. at 441,
    206 S.W.3d at 840 (citations omitted). 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
    . There was no abuse of discretion in the instant matter.
    The purpose of the declaratory-judgment statutory scheme is to settle and to afford
    relief from uncertainty and insecurity with respect to rights, status, and other legal relations.
    McCutchen v. City of Ft. Smith, 
    2012 Ark. 452
    , ___ S.W.3d ___. This court has held that there are
    four requisite conditions before declaratory relief may be granted: (1) there must exist a
    justiciable controversy; (2) the controversy must be between persons whose interests are adverse;
    (3) the party seeking relief must have a legal interest in the controversy; (4) the issue involved
    in the controversy must be ripe for judicial determination. Ark. Dep’t of Human Servs. v. Ross-
    Lawhon, 
    290 Ark. 578
    , 
    721 S.W.2d 658
    (1986). Here, appellant had no justiciable claim against
    the Director of the ADC or the parole board. The legal rights as between appellant and the
    ADC have already been established in that appellant was an inmate subject to the rules and
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    regulations promulgated by the ADC. See McKinnon v. Norris, 
    366 Ark. 404
    , 
    231 S.W.3d 725
    (2006).
    Appeal dismissed; motion moot.
    Robert Mitchem, pro se appellant.
    No response.
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