Shields v. Ky. State Parole Bd.

Full title: RODNEY L. SHIELDS APPELLANT v. KENTUCKY STATE PAROLE BOARD APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Apr 5, 2013

NO. 2011-CA-002232-MR (Ky. Ct. App. Apr. 5, 2013)

Opinion

NO. 2011-CA-002232-MR

04-05-2013

RODNEY L. SHIELDS APPELLANT v. KENTUCKY STATE PAROLE BOARD APPELLEE

BRIEFS FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: John C. Cummings Frankfort, Kentucky

DIXON

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 89-CR-001325

OPINION

REVERSING AND

REMANDING

BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. DIXON, JUDGE: Rodney L. Shields appeals an order of the Jefferson Circuit Court dismissing his petition for a writ of mandamus against the Kentucky State Parole Board ("Board"). After careful review, we find that dismissal was improper; accordingly, we reverse and remand this matter for further proceedings in the trial court.

On September 13, 2011, Shields filed a pro se petition for a writ of mandamus against the Board in Jefferson Circuit Court. Shields alleged that his due process rights were infringed during parole revocation proceedings, resulting in the revocation of his parole and a twenty-four month deferment of future eligibility. Along with his petition, Shields filed a motion to proceed in forma pauperis pursuant to Kentucky Revised Statutes (KRS) 453.190. On both documents, Shields indicated the pleadings were styled as a civil action. Unfortunately, Shields's pleadings were assigned the criminal case number associated with his underlying conviction, 89-CR-001325. On October 20, 2011, the circuit court sua sponte dismissed Shields's petition, stating in relevant part:

Petitioner has filed this petition under the original criminal indictment number, 89CR1325, styled 'Commonwealth v. Rodney Shields.' The relief he is now seeking is civil in nature, and is more properly filed as a civil rights action against the Parole Board. This Court lacks jurisdiction to entertain the petition.

Shields thereafter filed a pro se motion for reconsideration. Shields explained that he had filed his petition as a civil action and that he suspected that the "CR" designation was due to a clerical error. The court summarily denied the motion to reconsider, and this appeal followed.

"[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). Accordingly, only minimum due process requirements are applicable to revocation proceedings. Id. at 489, 92 S. Ct. at 2604. If due process requirements are not met, an aggrieved parolee may challenge the Board's action by filing a petition for a writ of mandamus in circuit court. Shepherd v. Wingo, 471 S.W.2d 718, 719 (Ky. 1971).

It is well-settled that our jurisprudence strongly disfavors sua sponte dismissal under Kentucky Rules of Civil Procedure (CR) 12.02. Doster v. Kentucky Parole Bd., 308 S.W.3d 231, 232 (Ky. App. 2010). In Gall v. Scroggy, 725 S.W.2d 867 (Ky. App. 1987), this Court explained that, if a trial court is inclined to dismiss sua sponte, the court must, at minimum,

(1) allow service of the complaint upon the defendant; (2) notify all parties of its intent to dismiss the complaint; (3) give the plaintiff a chance to either amend his complaint or respond to the reasons stated by the . . . court in its notice of intended sua sponte dismissal; (4) give the defendant a chance to respond or file an answer or motions; and (5) if the claim is dismissed, state its reasons for the dismissal.

Id. at 869. In Doster, supra, this Court applied the Gall requirements and succinctly concluded:

In the present case, the trial court sua sponte dismissed Doster's complaint, without a motion for dismissal or summary judgment by any party, and without providing notice of its intent to dismiss and affording the parties an opportunity to respond. Irrespective of the merits of Doster's due process claim relating to his resident record
card, as to which we express no opinion, we find that the court improperly sua sponte dismissed his complaint without following the minimal due process procedures set forth in Gall.

Id. at 233-34.

Here, as in Doster, it was improper for the court to sua sponte dismiss Shields's petition without following the requirements enunciated in Gall. Shields clearly filed his petition as a civil action against the Board, accompanied by a properly supported motion to proceed in forma pauperis; however, the court failed to acknowledge that the filing error designating the petition as a criminal case was not attributable to Shields. It is well-settled that the civil rules "should be applied to provide for a just determination on the merits, rather than to use a technicality to work a forfeiture." West v. Goldstein, 830 S.W.2d 379, 384 (Ky. 1992). We conclude the trial court erred by sua sponte dismissing Shields's civil action against the Board; consequently, we reverse and remand this matter to the Jefferson Circuit Court for further proceedings consistent with this opinion.

ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: John C. Cummings
Frankfort, Kentucky