James Harrison v. Jesse R. Jenkins ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0948-MR
JAMES HARRISON AND JUSTIN
COTHERN APPELLANTS
APPEAL FROM LYON CIRCUIT COURT
v. HONORABLE C. A. WOODALL, III, JUDGE
ACTION NO. 18-CI-00094
JESSE R. JENKINS; ALAN D. LONG;
BRAD ADAMES; BRITTANY
FRALIEX; CARL MCLEVAIN; DAN
SMITH; DIONNE B. HARDIN;
GEORGE A. HENSON; HARLAN R.
MARTIN; HARRY VENSION; JAMES
B. HARRIS; JAMES C. SMITH;
JAMES ERWIN; JAMES M. DUNN;
JANE DOE(S); JESSE COOMBS;
JESSICA MILLER; JILL
ROBERTSON; JOHN D. GIBBS;
JOHN DOE(S); KATHY A.
LITTERAL; LEAH R. ARTISE; LT.
JAMES BEAVERS; MARSHALL
PEEK; PATRICIA ALLEN; R.
O’DELL; RANDY WHITE; SGT.
BRENDAN INGLISH; STEVEN R.
BIRDSONG; WHITLEY JONES; AND
WILLIAM SIMPSON APPELLEES
OPINION
AND ORDER DISMISSING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
COMBS, JUDGE: The Appellants, Justin Cothern and James Harrison, are
inmates in the custody of the Kentucky Department of Corrections. Pro se, they
filed a civil complaint in Lyon Circuit Court alleging multiple violations of their
“constitutional, statutory, and regulatory” rights. The defendants (Appellees
herein) in that lawsuit filed a motion to dismiss, explaining that the action
challenged two separate, unrelated disciplinary proceedings -- one against Cothern,
the other against Harrison.
On June 17, 2020, the Lyon Circuit Court entered an order of
dismissal. The circuit court reviewed the record and determined that some
evidence supported the disciplinary findings in each case and that the defendants
had complied with the due process requirements in the disciplinary context. With
respect to the other various claims, the court concluded that the allegations in the
complaint failed to state a claim for which relief could be granted.
The notice of appeal filed in this case states that “the Plaintiff Justin
Cother [sic], and the Plaintiff James Harrison are disignated [sic] as the Appellants
on appeal[.]” However, only James Harrison signed the notice of appeal.
Typewritten under the signature line are Harrison’s name, identification number,
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and an address at Green River Correctional Complex, followed by “PRO SE –
PLAINTIFFS.” (Emphasis original.) The certificate of service on the notice of
appeal is also signed only by James Harrison.
The Appellants’ brief, which is captioned “PRO SE BRIEF FOR
APPELLANTS” (emphasis original), is signed only by Justin Cothern.
The Commonwealth submits that the appeal should be dismissed and
explains that although Mr. Harrison and Mr. Cothern may each prosecute his claim
on his own behalf, neither may represent the other. The effect of the notice of
appeal -- which bears only Mr. Harrison’s signature -- is that only Mr. Harrison has
appealed. Thus, Mr. Cothern is not a party to this appeal. The Commonwealth
also notes that “Mr. Harrison has not properly filed a brief in the appeal because
Mr. Cothern cannot sign on his behalf. Mr. Harrison has not perfected his appeal[1]
because he has not properly filed a brief.” We agree on all issues raised.
1
Kentucky Rule of Civil Procedure (CR) 76.02(1) provides:
To perfect an appeal from the circuit court the appellant shall:
(a)(i) cause the clerk’s notice required by CR 75.07(6) to be
transmitted to the clerk of the appellate court or (ii) if the appeal is
taken of a case recorded pursuant to CR 98(1), cause the clerk’s
notice required by paragraph CR 98(3)(c) to be transmitted to the
clerk of the appellate court; and (b) file with the clerk of the
appellate court the brief required by Rule 76.12.
(Emphasis added.)
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In Baldwin v. Mollette, 527 S.W.3d 830, 835 (Ky. App. 2017), this
Court explained as follows:
In Kentucky, one may represent himself or herself pro se
but that ability is limited to one’s self. As stated in
Taylor v. Barlow, 378 S.W.3d 322, 326 (Ky. App. 2012),
“an individual may file and practice his own lawsuit in
any court within the Commonwealth. . . .” Our Supreme
Court clarifies the role of a pro se litigant by explaining
if people represent themselves, they are bound by the
same rules and procedures as a licensed lawyer. Id. But
the Supreme Court notes that only persons who are
admitted to the bar may practice law and represent
others. The sole exception is the person acting in his
own behalf.
(Emphasis original.) “The rules governing the practice of law in this
Commonwealth clearly provide that pleadings, motions, and other papers,
including motions for discretionary review, are to be signed by the party or his
attorney of record.” Brey v. Commonwealth, 917 S.W.2d 558, 558 (Ky. 1996)
(emphasis original). CR 11 requires that “[a] party who is not represented by an
attorney shall sign his pleading, motion, or other paper and state his address.” CR
76.12(6) requires that “[e]very brief shall bear on the front cover a signed
statement, in accordance with Rule 5.03, by the attorney or party that service has
been made as required by this Rule[.]”
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In the case before us, only Mr. Harrison appealed but he failed to file
an appellant’s brief on his own behalf.2 Mr. Cothern is not -- and never has been --
a proper party to this appeal. Accordingly, we exercise our discretion and dismiss
this appeal. CR 76.12(8)(b) (“If the appellant’s brief has not been filed within the
time allowed, the appeal may be dismissed.”).
ALL CONCUR.
Entered: August 20, 2021 __________________________
COURT OF APPEALS JUDGE
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Justin Cothern, pro se Edward A, Baylous, II
Central City, Kentucky Frankfort, Kentucky
James Harrison, pro se
Central City, Kentucky
2
We note that Harrison’s signature (only) appears on the “Reply Brief for Pro Se Appellants.”
However, “[t]he reply brief is not a device for raising new issues which are essential to the
success of the appeal.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979).
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