Opinion
NO. 2014-CA-000843-MR
03-11-2016
DANIEL MELSON APPELLANT v. LADONNA H. THOMPSON, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEF FOR APPELLANT: Daniel Melson, pro se Eastern Kentucky Correctional Complex West Liberty, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham Department of Corrections Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 13-CI-01424 OPINION AND ORDER
DISMISSING APPEAL BEFORE: ACREE, CHIEF JUDGE, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Daniel Melson appeals from an order of the Franklin Circuit Court dismissing his petition for a writ of mandamus against LaDonna H. Thompson in her capacity as Commissioner of the Kentucky Department of Corrections (the Department). The Department argues that his appeal should be dismissed as moot because the facts forming the basis for his petition no longer exist. We agree and dismiss the appeal.
Since 1987, Melson has been serving extended sentences totaling 321 years for multiple felony convictions. In 1992, the Department transferred Melson to a facility operated by the New Mexico Corrections Department pursuant to the Interstate Corrections Compact. KRS 196.610. In 2013, Melson filed a petition for a writ of mandamus asserting that he had been denied access to Kentucky legal resource materials and access to the Kentucky Department of Corrections grievance process while housed in the New Mexico prison system. As a result, he alleges that he has been denied meaningful access to the Kentucky courts to challenge his convictions and the circumstances of his incarceration. In response, the Department argued that Melson's petition for a writ was untimely, that he failed to exhaust his administrative remedies in New Mexico, and that he failed to state any grounds for relief by way of mandamus. The circuit court agreed and dismissed his petition. This appeal followed.
Around the same time, Melson also filed a petition for a writ of mandamus in the Lyon Circuit Court challenging the validity of that transfer. The circuit court dismissed the petition as untimely, and this Court affirmed that dismissal on appeal. Melson v. White, No. 2014-CA-000338-MR, 2015 WL 510249 (Ky. App. 2015).
A writ of mandamus is an extraordinary remedy that is granted conservatively and only in exceptional situations. Fletcher v. Graham, 192 S.W.3d 350, 356 (Ky. 2006). Accordingly, a writ of this nature is granted for only two purposes: (1) when the lower court is acting beyond its jurisdiction, or (2) when the lower court is acting or is about to act erroneously, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. Id., citing Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005). We review the grant or denial of a writ of mandamus for abuse of discretion, while questions of law are reviewed de novo. Id. citing Newell, 158 S.W.3d at 154.
As an initial matter, the Department moves to dismiss the appeal as moot. According to the Department's records, Melson was transferred from New Mexico to a Kentucky institution on February 26, 2015. The Department also avers that this transfer is permanent. Consequently, the Department argues that Melson's petition for a writ of mandamus is now moot.
The transfer occurred while this appeal was pending and after Melson filed his Appellant's brief. Prior to filing an Appellee's brief, the Department filed its motion to dismiss the appeal as moot. However, the motion panel passed the issue to this panel for consideration on the merits. --------
We agree. The relief which Melson seeks is wholly prospective in nature. Since Melson has been returned to Kentucky, he presumably now has access to Kentucky legal resource materials and to the Kentucky inmate grievance system. At the very least, it is clear that there has been a change in circumstance which vitiates the basis for the action. Commonwealth v. Hughes, 873 S.W.2d 828, 830 (Ky. 1994).
We recognize that a technically moot case may nonetheless be adjudicated on its merits where the nature of the controversy is such that "the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and ... there is a reasonable expectation that the same complaining party would be subject to the same action again." Bolton v. Irvin, 373 S.W.3d 432, 434 (Ky. 2012), quoting Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). However, Melton does not assert that his issue is "capable of repetition but evading review." Philpot, 837 S.W.2d at 493. In the absence of an actual and current matter in controversy, we agree with the Department that Melson's appeal must be dismissed as moot.
ALL CONCUR. ENTERED: March 11, 2016
/s/ Irv Maze
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Daniel Melson, pro se
Eastern Kentucky Correctional
Complex
West Liberty, Kentucky BRIEF FOR APPELLEE: Angela T. Dunham
Department of Corrections
Office of Legal Services
Frankfort, Kentucky