Day v. Minor

                                     Cite as 

                SUPREME COURT OF ARKANSAS
                                         No.   CV-15-75

RICHARD D. DAY, JR.                                Opinion Delivered June   4, 2015
                                APPELLANT
                                                   APPELLEES’ MOTION TO DISMISS
V.                                                 APPEAL AND APPELLANT’S PRO SE
                                                   MOTION FOR EXTENSION OF TIME
                                                   TO FILE BRIEF
JUSTINE MINOR, HEARING OFFICER,                    [PULASKI COUNTY CIRCUIT COURT,
ARKANSAS DEPARTMENT OF                             NO. 60CV-14-3879]
CORRECTION; DANNY BURL,
WARDEN, EAST ARKANSAS                              HONORABLE TIMOTHY DAVIS FOX,
REGIONAL UNIT; RAYMOND                             JUDGE
NAYLOR, HEARING
ADMINISTRATOR, ARKANSAS                            APPEAL DISMISSED; APPELLANT’S
DEPARTMENT OF CORRECTION; RAY                      MOTION FOR EXTENSION OF TIME
HOBBS, DIRECTOR, ARKANSAS                          MOOT.
DEPARTMENT OF CORRECTION
                     APPELLEES


                                         PER CURIAM


       On October 8, 2014, appellant Richard D. Day, Jr., filed in the Pulaski County Circuit

Court a petition for judicial review of an administrative decision pursuant to Arkansas Code

Annotated section 25-15-212 (Repl. 2002) of the Administrative Procedure Act (APA). In the

petition, Day sought review of a disciplinary action brought against him by appellees Justine

Minor, Hearing Officer, Arkansas Department of Correction; Danny Burl, Warden, East

Arkansas Regional Unit; Raymond Naylor, Hearing Administrator, Arkansas Department of

Correction; and Ray Hobbs, Director, Arkansas Department of Correction (collectively, the

ADC). Specifically, Day asserted in the petition, and the attached exhibits indicate, that a

disciplinary action was adjudicated against Day on April 16, 2014, and ultimately affirmed by the
                                       Cite as 

ADC on August 14, 2014. The circuit court affirmed the ADC’s administrative decision, and

Day timely lodged an appeal from the order in this court. Now before us are the ADC’s motion

to dismiss the appeal and Day’s pro se motion for extension of time to file the appellant’s brief-

in-chief. Because it is clear that appellant was untimely in seeking judicial review under the APA,

we grant the motion to dismiss, and Day’s motion for extension of time is moot.

       Under the APA, judicial review is generally not available to an “inmate under sentence

to the custody of the Department of Correction.” 

(a). In Clinton

v. Bonds, 

, 

 (1991), however, this court held that the APA was

unconstitutional to the extent that it deprived inmates of review of constitutional questions.

Accordingly, when an inmate challenges a disciplinary proceeding and ADC officials’

implementation of ADC rules, the petitioner must raise a constitutional question sufficient to

raise a liberty interest to fall within the classification of claims subject to judicial review. Munson

v. Ark. Dep’t of Corr., 

, 

 (2009) (per curiam). In the instant case,

however, we need not determine whether Day’s claims fit within this exception to section 25-15-

212(a). Even if the question were to be answered in the affirmative, Day would still be

precluded from seeking judicial review of the ADC’s actions pursuant to the APA because the

petition was untimely.

       Under the APA, a petition for judicial review must be filed within thirty days after service

of the agency’s final decision upon the petitioner. 

(b). This thirty-

day period begins to run when an inmate is served with a copy of the ADC’s decision. Lee v.

Ark. Dep’t of Corr. Records Dep’t, 

 (per curiam). When a petition is filed outside the



                                                  2
                                       Cite as 

thirty-day window, it is untimely, and a petitioner is precluded from seeking relief under the

APA. 

 The record before us supports the conclusion that the petition in the instant case was

filed more than thirty days after Day had been served with a copy of the ADC’s final decision.

In a notarized affidavit attached to his petition to proceed in the circuit court as an indigent, Day

stated that he received notice of the ADC’s August 14, 2014 decision on August 21, 2014. Thus,

the petition, filed October 8, 2014, was not timely because it was not filed within thirty days of

August 21, the date that Day alleged he was served with a copy of the decision.1

        Because Day failed to timely file his petition in accordance with the time limitations of

the APA, he is precluded from seeking relief under the statute.

       Appeal dismissed; appellant’s motion for extension of time moot.




       1
        While Day stated in the affidavit that he thought it would be prudent to mail the petition
prior to September 14, this court has not adopted the prison mailbox rule wherein an item is
considered filed when it is placed in the prison mail room. McDaniel v. Hobbs, 

 (per
curiam); see also Hamel v. State, 

, 

 (1999). An item tendered to a court
is considered filed on the date it is received by the clerk, not on the date it may have been placed
in the mail. McDaniel, 

.

                                                 3