Opinion
NO. 2015-CA-001120-MR
02-10-2017
JACK ELLIOTT APPELLANT v. MARCUS CHRISTISON APPELLEE
BRIEFS FOR APPELLANT: Jack Elliott, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Linda M. Keeton Department of Corrections Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 15-CI-02107 OPINION
DISMISSING
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BEFORE: J. LAMBERT, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jack Elliott, pro se, appeals from the Fayette Circuit Court's order dismissing his petition for declaration of rights regarding a prison disciplinary action. We dismiss Elliott's appeal for failure to name an indispensable party.
On December 18, 2014, Elliott was found guilty by Blackburn Correctional Facility adjustment committee chairman Duncan Kendall of violating Kentucky Corrections policies and procedures by smuggling contraband into the prison, possessing dangerous contraband, creating a health hazard and violating a condition of his outside work detail. These charges stemmed from Sergeant Marcus Christison's report that he found four "keister packs" of tobacco hidden under Elliott's washcloth as confirmed by Lieutenant Kevin Carter.
Elliott filed an adjustment appeal. Warden Steve Haney dismissed the charge of creating a health hazard, but upheld the other convictions, resulting in a total good-time loss of 300 days.
Elliott filed a petition for declaration of rights against Christison, Carter and Kendall (the prison employees), seeking the expungement of the disciplinary reports and restoration of his good-time credit. The prison employees filed a response and motion to dismiss, arguing Elliott received due process and there was sufficient evidence to support his guilt. The Fayette Circuit Court granted their motion and dismissed Elliott's petition.
Elliott's notice of appeal did not name these parties in the body of the notice. It only named "Christison et. al." in the caption.
Because either the Department of Corrections or the warden of a correctional facility is an indispensable party, both before the circuit court and on appeal, and neither were named either in the petition or in the notice of appeal, we dismiss.
Kentucky Rules of Civil Procedure (CR) 19.02 provides: "A person who is subject to service of process, either personal or constructive, shall be joined as a party in the action if (a) in his absence complete relief cannot be accorded among those already parties[.]" Complete relief cannot be granted to Elliott, either before the circuit court or on appeal without the joinder of the entities which can restore his good-time credit or expunge his prison record. "The only entities with the authority to restore good-time credit or expunge [an inmate's] prison record are the Department of Corrections and [the warden]." Watkins v. Fannin, 278 S.W.3d 637, 642 (Ky.App. 2009). "The roles of the prison employee who reports the incident, the supervisor who reviews the report, the supervisor who investigates the report, and the adjustment officer who completes the report, are merely preliminary to the wardens' exercise of final authority delegated to him by the Secretary." Id.
Elliott's petition named a prison guard who reported the incident, another who was a witness and the adjustment committee chairman as parties. In Elliott's notice of appeal, his only named appellee was the prison guard that reported the incident. None of these persons have any authority to restore Elliott's good-time credit. Therefore, Elliott's petition and appeal lack an indispensable party, either the Department of Corrections or Warden Haney.
Accordingly, we dismiss Elliott's appeal of the Fayette Circuit Court's order dismissing his petition for declaration of rights for failure to name an indispensable party.
ALL CONCUR. BRIEFS FOR APPELLANT: Jack Elliott, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Linda M. Keeton
Department of Corrections
Office of Legal Services
Frankfort, Kentucky