author: MURPHY, J.

text:
    CONTINUING TUTORSHIP OF J.R., a Mentally Retarded Person
    NO. 17-CA-235
    Court of Appeal of Louisiana, Fifth Circuit.
    January 03, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, JEFFREY A. RAINES, Jennifer C. deBlanc
    COUNSEL FOR DEFENDANT/APPELLANT, LANA L'ENFANT, Don M. Richard, Michael A. McNulty, Jr.
    Panel composed of Judges Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

In this tutorship proceeding, appellant appeals the trial court's ruling on the portion of a motion for new trial which required that she consult with a court-appointed mental health professional prior to any change in tutorship and supervised visitation. For the reasons that follow, we affirm the ruling of the district court in part, and reverse in part.

PROCEDURAL HISTORY

This matter arises in the context of a tutorship proceeding for J.R., an adult with a permanent diagnosis of Down syndrome, who will require continuing tutorship throughout his life. The parties to the action are J.R.'s divorced parents, consisting of his mother, L.L., and his father, J.R., Sr. The record shows that on April 3, 2009, J.R.'s parents were appointed as his co-tutors, and his sister, J.A.R., was appointed to be his undertutor. On November 5, 2014, J.R., Sr. filed a motion to remove L.L. as a co-tutor, citing concerns over J.R.'s developing behavioral issues and L.L.'s decision-making regarding J.R. when he was in her care. After several continuances and, following a hearing held on January 21, 2015, the trial court issued judgment on February 3, 2015, granting J.R. Sr.'s motion, making him the sole tutor, and ordered that L.L. have supervised visitation with J.R. once per week at the "discretion" of J.R., Sr. The trial court further ordered that "neither the tutorship ruling or the supervised visitation shall be changed or modified unless [L.L] seeks mental assessment/treatment with Dr. Daphne Glindmeyer."

On August 26, 2015, L.L. filed a timely motion for a new trial, which was ultimately continued without date by consent of all parties on January 6, 2016. On October 21, 2016, L.L. moved to set her motion for new trial for hearing. Following a hearing on November 16, 2016, on March 17, 2017, the trial court granted L.L.'s motion "on the limited issue of the 'supervised visitation once a week at the discretion of [J.R., Sr.],' " and a hearing date was set on April 10, 2017, "for re-argument and further evidence on that issue alone." On April 7, 2017, L.L. filed a motion for appeal, which was granted on April 10, 2017.

LAW AND ANALYSIS

In her sole assignment of error, L.L. asserts that the trial court erred in denying the motion for a new trial as it relates to the mandatory order contained in the judgment of February 3, 2015, requiring appellant to seek "mental assessment/treatment" from Dr. Daphne Glindmeyer. Specifically, L.L. argues that, "[t]he condition that appellant must seek mental assessment/treatment with Dr. Glindmeyer or she is prohibited from availing herself of attempting to modify this harsh treatment is a clear abuse of discretion."

To evaluate whether a modification of custody is in the child's best interests, the court must be guided by La. C.C. art. 134. In particular, La. C.C. art. 134(7) provides that one consideration is "[t]he mental and physical health of each party." Further, La. R.S. 9:331, provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross examination by a party.

At the hearing on January 21, 2015, following the testimony of several witnesses and the introduction of evidence, the trial court made observations on the record about L.L.'s mental state and its concern regarding the effects it had on L.L.'s tutorship of J.R.:

There's no doubt that [L.L.] loves her son, but her methods of dealing with people have left much to be desired. And while she prides herself as a good communicator, it has been evident in more than one scenario and through multiple of the witnesses here and even her own counsel throughout these proceedings, that she's threatened pretty much every person involved in this case. It's not the type of communication that is going to achieve the end which I think even [L.L.] desires. I think she's unable to see, due to her own emotions, the damage that she's caused to these relationships by that behavior. And The Court is definitely concerned with her inability to discern between her own emotions and the best interests of [J.R.].
Her emotional and financial instability has been or is a grave concern to The Court. [J.R.] is a special child and he is in need of a lot of continuity. We have heard that from multiple parties. We have heard that from the doctor involved in this case. Dr. Smith is an uninterested party and hertestimony provided insight and support for the notion that [L.L] has not been fully cooperative with [J.R.'s] caregivers.
And The Court is further moved by [J.A.R.'s] testimony, that although she knows her mother has the best interests for [J.R.], she's unable to carry them out due to her own volatile emotions. Therefore, The Court is going to grant [J.R., Sr.'s] motion and order him as the sole tutor with [J.A.R.] to remain as under tutor. [L.L.] will continue to have supervised visitation on a weekly basis with [J.R.] at [J.R., Sr.'s] discretion with a supervisor to be appointed by him.
[L.L], I have to caution you, that if the behavior that you have engaged in with [J.R.'s] other caregivers in threatening to report them to authorities over and over again, if that continues during these visitations with whoever [J.R., Sr.,] has appointed to be the supervisor-and if you use your own PCA, I am going to let that be up to you-This Court will reconsider whether or not those visitations should continue.
The Court is also ordering that no changes will be made to this tutorship or to the visitation agreement unless [L.L.] completes a mental health evaluation to be conducted by Dr. Daphne Glindmeyer, with her to bear the costs.
...
I don't believe that This Court has the appropriate jurisdiction to order her for treatment, although This Court most definitely exercises jurisdiction over [J.R.'s] well being and his care by virtue of the tutorship proceedings. I do not believe that It has the authority to order [L.L.] into any therapy. But I would urge you, [L.L.] in light of what This Court considers to be some cognitive dysfunction on your part that became evident during the trial to please seek assistance in that regard.

It is clear from the foregoing that the trial court found that the mental condition of L.L. was at issue and that good cause existed for requiring her to submit to a mental evaluation. This, as well as the fact that the instant proceeding specifically involved custody or visitation, invoked the application of La. R.S. 9:331.

The trial court's decision in child custody matters is entitled to great weight and it will not be overturned absent a clear showing of an abuse of discretion. Bergeron v. Bergeron , 492 So.2d 1193, 1196 (La. 1986). In this case, where the record supports a finding that L.L.'s behavior and mental state conflicted with L.L.'s ability to act in J.R.'s best interest, pursuant to the authority vested in the court by La. R.S. 9:331, we find no abuse in the trial court's decision to require that L.L. undergo a mental evaluation as a prerequisite to any change in custody or visitation. However, we do not find that the trial court's February 3, 2015 order provides sufficient guidance to the parties, or to Dr. Glindmeyer, as to the parameters or objectives of the evaluation in accordance with La. C.E. art. 706(A), which states:

In a civil case, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. [Emphasis added.]

While the transcript of the January 21, 2015 hearing indicates the trial court's acknowledgement that it had no authority to "order [L.L.] into any therapy," nevertheless, in its February 3, 2015 order, the trial court appears to require L.L. to undergo "treatment" with Dr. Daphne Glindmeyer prior to petitioning the court for any further modification of the tutorship ruling or a change in the visitation schedule. In her motion for new trial, L.L. contended that her continuing treatment with Lincoln D. Paine, M.D., a psychiatrist, "constitutes substantial compliance with the last substantive paragraph of the Judgment." In an Exhibit to her motion for new trial, L.L. attached correspondence from Dr. Paine, dated June 19, 2015, which stated, in summary, that L.L. was not a threat to herself or to J.R. However, no new evidence regarding L.L.'s need for continuing or current treatment with Dr. Paine, or any other provider, was introduced at the November 16, 2016 hearing. Because the record does not demonstrate or substantiate L.L.'s need for future treatment, we find that the portion of the trial court's February 3, 2017, ruling which ordered L.L. to seek "treatment" with Dr. Glindmeyer as a prerequisite to requesting a change in tutorship or modification of visitation is premature, and, accordingly, reverse on that issue.

Further, the record reflects that L.L. has been assigned pauper status by the district court. Counsel for L.L. has also indicated that he has taken L.L.'s case pro bono. While we find that the trial court did not err in its appointment of Dr. Glindmeyer for an evaluation, the cost of such an evaluation to L.L. must not be cost prohibitive. Otherwise, L.L.'s financial status could prevent her from ever seeking a change in custody or visitation. By way of this opinion, we specifically order the district court to take into account L.L.'s ability to pay for the evaluation, and to, accordingly, tailor the parameters of any future evaluation to accommodate L.L.'s economic circumstances.

DECREE

For the foregoing reasons, the trial court's appointment of Dr. Daphne Glindmeyer to conduct an evaluation of L.L. is affirmed; however, the court must comply with the requirements of La. C.E. art. 706(A) and clearly define the parameters of the evaluation with all parties. The court must also ensure that the cost of such an evaluation is not cost prohibitive to L.L. Following any evaluation, Dr. Glindmeyer shall provide the court and the parties with her findings in accord with La. R.S. 9:331. The portion of the trial court's judgment compelling L.L. to undergo treatment with Dr. Glindmeyer is reversed. We remand the matter for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, REMANDED

JOHNSON, J., DISSENTS IN PART WITH REASONS

I respectfully disagree with the majority in upholding that portion of the February 3, 2015 judgment that orders L.L. to undergo a mental health evaluation by Dr. Daphne Glindmeyer prior to any modification to the tutorship ruling or the supervised visitation. I believe the entire portion of the February 3, 2015 judgment ordering a "mental assessment/treatment with Dr. Daphne Glindmeyer" for purposes of any future modification of tutorship or visitation should be stricken from the judgment.

I agree that the trial court has the authority under La. R.S. 9:331 to order a mental health evaluation, but only upon good cause shown at the time custody or visitation is at issue before the court. Here, had the trial judge ordered a mental health evaluation prior to rendering the February 2015 judgment that changed tutorship and ordered supervised visitation, she would have been within the authority of La. R.S. 9:331, as I believe good cause was shown at the January 21, 2105 hearing for such an evaluation to be ordered. However, the trial judge rendered a judgment on tutorship and visitation without any mental health evaluation.

I believe the standing order of a future mental health evaluation in the event any party seeks a subsequent change to the judgment is impermissible. La. R.S. 9:331 requires a showing of good cause prior to the order for a mental health evaluation. Logically, the "good cause" must exist at the time the court considers the custody or visitation issue. In this case, while the trial court would have the authority to order an evaluation if and when a party seeks modification of tutorship or visitation, such authority would be based only upon a showing of "good cause" for an evaluation at that time and could not rely on a showing of good cause that was made at the January 2015 hearing.

Additionally, I do not find the cases cited in footnote three of the opinion support the majority's conclusion that the trial court did not abuse its decision to require L.L. undergo a mental health evaluation as a prerequisite to any future, but not yet requested, change in custody or visitation. The cited cases simply affirm the ability of the trial court to order a mental health evaluation in connection with custody or visitation. In fact, in the cited case of Ferrand v. Ferrand , 16-7 (La. App. 5 Cir. 8/31/16); 221 So.3d 909, writ denied , 16-1903 (La. 12/16/16); 211 So.3d 1164, this court recognized the authority of the trial court to order a mental health evaluation and found the trial court should have ordered such an evaluation prior to ruling on custody. As such, we vacated the custody judgment and ordered the trial court to order a mental health evaluation prior to ruling. Here, no one is challenging the February 2015 change in tutorship or the ordered supervised visitation-the sole issue is the mandate of a future condition for a subsequent change that has not yet been petitioned for.

Accordingly, I would strike the entire portion of the February 3, 2015 judgment ordering that "neither the tutorship ruling or [sic] the supervised visitation shall be changed or modified unless [L.L.] seeks mental assessment/treatment with Dr. Daphne Glindmeyer."

WINDHORST, J., CONCURS WITH REASONS

I agree with the majority opinion, and concur to respectfully emphasize that while the dissent is well-reasoned, a strict reading of La. R.S. 9:331 does not necessarily require that the determination of whether good cause exists for an evaluation be made after the filing of a subsequent motion. The trial court has already heard evidence affecting custody and visitation in this case, from which it could have reasonably concluded that good cause for an evaluation exists, and that an evaluation would be in the best interest of the child prior to any change. Based on the particular facts presented by this case, and the evidence known to the trial court, I believe that the trial court's requirement of an evaluation prior to a change of custody or visitation is within the authority of La. R.S. 9:331.

Furthermore, the trial court has not refused to set or hear any possible future motions by appellant. The transcript shows that the trial judge, after stating her reasons for concerns, stated simply that no change in tutorship or in visitation will be made without an evaluation. I believe this was within the trial court's authority after the previous evidentiary hearing.

      While J.R. is an adult, we will still refer to the parties by their first names and surname initials to ensure J.R.'s privacy, as provided for in Rule 5-2 of the Uniform Rules-Courts of Appeal.

      We note that the new trial hearing was held on November 2, 2017, after which the trial court amended that portion of the February 3, 2015 judgment relating to visitation at the discretion of J.R., Sr. This amendment has no effect on the matter at issue in the instant appeal.

      At the outset, we agree with L.L.'s unopposed assertion that even though this is a tutorship proceeding for an adult, the law on visitation and custody is applicable. Thus, the standard to apply is what is in J.R.'s best interest. Further, J.R., Sr.'s motion for removal of L.L. as a co-tutor, which was referenced in the trial court's February 3, 2015 order, invoked a finding under La. C.C.P. art. 4234 that "such removal would be in the best interests of the minor."

      See , Ferrand v. Ferrand , 16-7 (La. App. 5 Cir. 08/31/16), 221 So.3d 909, writ denied , 16-1903 (La. 12/16/16), 211 So.3d 1164 ; Bonnette v. Bonnette , 15-0239 (La. App. 4 Cir. 2/17/16), 185 So.3d 321, writ denied , 16-0663 (La. 5/20/16), 191 So.3d 1072 ; Barker v. Barker , 14-0775 (La. App. 1 Cir. 11/07/14), 167 So.3d 703.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Brian Ray PEDIGO v. Kristopher ROBERTSON, Rent-A-Center, Inc. and Rent-A-Center East, Inc.
    NO. 2016-CA-00572-SCT
    Supreme Court of Mississippi.
    October 26, 2017 As Modified on Denial of Rehearing February 15, 2018
    ATTORNEYS FOR APPELLANT: GREG E. BEARD, THOMAS H. COMER, JR.
    ATTORNEY FOR APPELLEES: CHRISTOPHER DANIEL MEYER
    BEFORE WALLER, C.J., KITCHENS AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This appeal stems from Brian Ray Pedigo's suit against Rent-A-Center, Inc., for actual and punitive damages, alleging claims of malicious prosecution, false imprisonment, and intentional infliction of emotional distress. After a preliminary review of the matter, the Prentiss County Circuit Court found in favor of Rent-A-Center, ruling that the parties entered a valid and enforceable arbitration agreement which covered Pedigo's claims. Such a ruling was in error. Though broad, the arbitration agreement did not contemplate Pedigo having to arbitrate his claim that Rent-A-Center maliciously swore out a criminal affidavit, causing his wrongful incarceration. Accordingly, we reverse the previous ruling and remand the case to the circuit court for further action consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 26, 2012, Brian Ray Pedigo visited Rent-A-Center, Inc.'s (RAC) Booneville, Mississippi, location. While in the store, Pedigo decided to make the rental-purchase of a back-lit, LED television and entered a Rental Purchase Agreement (RPA) for the lease. Under the RPA, Pedigo agreed to make specified payments over the course of twenty-three months, in an effort to own the television after all payments were remitted. Incorporated within the RPA was RAC's standard Consumer Arbitration Agreement (CAA). The CAA outlined those claims covered and those not covered in a dispute between the parties, and the process the parties would engage in should a dispute arise. Pedigo initialed and signed both documents, agreeing to the terms within.

¶ 3. By February 2013, Pedigo had failed to fulfill his payment obligations under the RPA and was more than twenty days past-due under the agreement. Finding the contract had been breached, RAC manager Kristopher Robertson sought to recover the television from Pedigo. Through his attempts at recovery, Robertson discovered that the television was pawned shortly after it was leased. RAC contacted the pawn shop, and its owner confirmed that the television was pawned at his store in November 2012, for $100.

¶ 4. After discovering Pedigo had pawned the television, Robertson filed a complaint with the Booneville police in April 2013. Robertson detailed that Pedigo had leased the television, pawned it roughly one month later, and still owed the store more than $1,300 under the RPA. Based on this information, an arrest warrant for the theft of rental property was issued for Pedigo on May 1, 2013. He was indicted on October 22, 2013, for defrauding RAC, and was arrested and incarcerated on December 11, 2013. On June 9, 2014, the State retired the October 2013 felony charge, ending the prosecution of the criminal matter.

¶ 5. Following his release, Pedigo filed this civil action claiming that RAC filed a false report with the police which resulted in his incarceration-an act that he claims amounted to malicious prosecution. RAC responded to Pedigo's complaint with a motion to compel arbitration and stay the proceedings. Referencing the RPA and the CAA, RAC argued that Pedigo's claims are covered by the broad provisions of the arbitration agreement and the matter should be stayed for arbitration on the claims. On March 24, 2016, the circuit court judge ruled on the motion and found that the CAA met all elements required by courts of this state and the Federal Arbitration Act (FAA), making the CAA enforceable under the circumstances in this matter. He then compelled the parties to move forward with arbitration and stayed the proceedings pending that outcome.

¶ 6. Aggrieved, Pedigo filed this appeal, presenting two issues for review. Because our ruling on the question of whether Pedigo's malicious prosecution claim is within the scope of the CAA settles the matter before us, we address only the first issue on appeal.

STANDARD OF REVIEW

¶ 7. "A trial court's grant or denial of a motion to compel arbitration is a question of law; therefore, we apply a de novo standard of review on appeal." Smith ex rel. Smith v. Captain D's, LLC , 963 So.2d 1116, 1119 (Miss. 2007) (citing Howard v. Estate of Harper , 947 So.2d 854, 856 (Miss. 2006) ).

LEGAL ANALYSIS AND APPLICATION

¶ 8. This Court exercises a strong presumption in favor of arbitration and liberally construes those agreements in an effort to encourage the settlement of disputes. IP Timberlands Operating Co., Ltd. v. Denmiss Corp. , 726 So.2d 96, 104 (Miss. 1998) (citing Hutto v. Jordan , 204 Miss. 30, 36 So.2d 809, 812 (1948) ). We interpret arbitration agreements "so as to encourage the settlement of disputes and the prevention of litigation, and every reasonable presumption will be indulged in favor of the validity of arbitration agreements." IP Timberlands , 726 So.2d at 104. Such arbitration agreements must be valid, and the disputed claims must be within the substantive scope of that agreement. Smith , 963 So.2d at 1120.

¶ 9. To determine the validity of an arbitration agreement under the Federal Arbitration Act, this Court has adopted the customary, two-pronged inquiry. See East Ford, Inc. v. Taylor , 826 So.2d 709, 713 (Miss. 2002). The first prong considers two factors: (1) whether a valid arbitration agreement exists, and (2) whether the parties' dispute is within the scope of the valid arbitration agreement. Smith , 963 So.2d at 1119. The second prong-promulgated by the U.S. Supreme Court-asks "whether legal constraints external to the parties' agreement foreclosed arbitration of those claims." East Ford , 826 So.2d at 713 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ). Because the parties do not dispute the validity of the agreement in question, nor do they argue that legal constraints, external to their agreement, foreclose the possibility of arbitration, we quickly move to analyze the second factor of the inquiry's first prong.

¶ 10. In the present appeal, Pedigo alleges that his claim of malicious prosecution is outside the scope of those claims discussed in the arbitration agreement. He insists that the CAA did not contemplate the filing of criminal charges, situating RAC's efforts to arrest and incarcerate him outside the terms of the CAA. Because the criminal complaint and its resultant events were unrelated to the arbitration agreement, Pedigo argues the matter was properly pleaded before the circuit court.

¶ 11. The CAA provides two sections detailing "what claims are covered" and "what claims are not covered." Those provisions state:

(B) What Claims Are Covered : "Claim" shall be interpreted as broadly as the law allows and means any dispute or controversy between you and RAC, its officers, directors, employees, or agents, its parent company, subsidiary, affiliate entities, and assigns of any of them, based on any legal theory, including, but not limited to allegations based on negligence, breach of contract, tort, fraud, misrepresentation, trespass, the common law, or any statute, regulation or ordinance.
(C) What Claims Are Not Covered : Either Party shall have the right to file a lawsuit in a court of competent jurisdiction only if the lawsuit or Claim is strictly limited to requests for individual non-class injunctive relief and/or individual non-class declaratory relief to determine the right of possession of any property, and/or a Claim that requests/seeks monetary relief/damages not to exceed $5,000 including attorney's fees. Any Claim seeking monetary relief/damages including any counterclaims, greater than $5,000.00 including attorney's fees shall only be resolved by arbitration pursuant to this Agreement.

Pedigo argues that through the RPA-which prohibits the sale, mortgage, pawn, pledge, encumbrance, hocking, or disposal of the leased property-RAC contemplated a pawn scenario and provided relief for such a dispute in the arbitration agreement. However, the agreement fails to contemplate that a lessor/signatory might pawn collateral and subsequently be indicted and jailed based upon an affidavit from an RAC representative.

¶ 12. We note that "[a]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Rogers-Dabbs Chevrolet-Hummer, Inc. v. Blakeney , 950 So.2d 170, 176 (Miss. 2007) (quoting EquiFirst Corp. v. Jackson , 920 So.2d 458, 461 (Miss. 2006) ). Thus, as with any other contract, the parties' intentions control. Mitsubishi Motors Corp. , 473 U.S. at 626, 105 S.Ct. at 3354.

¶ 13. Applying this general rule, we look to the mutual intentions of the parties. Id. (citing Kight v. Sheppard Bldg. Supply Inc. , 537 So.2d 1355, 1358 (Miss. 1989) ). Here, the arbitration language used is "broad" and "capable of expansive reach," requiring only "that the dispute 'touch' matters covered by [the contract]." MS Credit Center, Inc. v. Horton , 926 So.2d 167, 176 (Miss. 2006). Therefore, the claims that "touch matters" covered by the CAA need only reflect the parties' intentions and "relate to" or "connect with" the facts alleged in Pedigo's complaint. As a result, we " 'focus on factual allegations in the complaint rather than the legal causes of action asserted. If the allegations underlying those claims 'touch matters' covered by the parties' ... agreements, then those claims must be arbitrated, whatever the legal labels attached to them.' " Wolgin v. Experian Info. Sols., Inc. , 101 So.3d 1160, 1166 (Miss. 2012) (quoting Scruggs v. Wyatt , 60 So.3d 758, 766 (Miss. 2011) ).

¶ 14. This Court recently applied these rules to matters, in similar form, when we addressed the arbitration agreements in Doe v. Hallmark Partners, LP , 227 So.3d 1052 (Miss. 2017), and Smith , 963 So.2d 1116. In Smith , we held that the plaintiff's rape-based tort claims were "unquestionably" beyond the scope of the arbitration agreement. Smith , 963 So.2d at 1121. Therein, we found the arbitration agreement was broad, but it specified that all "claims, disputes, or controversies arising out of or relating to ... employment" would be resolved through arbitration. Id. at 1120. As a result, we found the rape-based tort claims were unrelated to employment and were outside the scope arbitration. Id. at 1121.

¶ 15. Likewise, in Doe , we reviewed whether a lessee's premises-liability claim, stemming from a physical and sexual assault on the apartment-complex premises, was within the scope of the arbitration clause associated with the parties' lease agreement. Doe , 227 So.3d at 1054. There, the owners, managers, and individual staff of Hallmark Gardens Apartments sought to enforce the arbitration provision of Jane Doe's lease after she filed suit against the property. After a thorough analysis, we determined that "the parties simply did not contemplate arbitrating Jane's assault- and rape-based lawsuit predicated upon a tort theory of common-law negligence, unrelated to the rights and obligations of the lease." Id. at 1056. Finding that Doe's claims did not arise under or relate to her "occupancy and leasing of the [apartment]," we held that the dispute was outside the agreement's scope, and Doe was free to pursue her claims against Hallmark through litigation. Id. at 1060.

¶ 16. Like our rulings in Doe and Smith , today we find that the claims in question are beyond the scope of the parties' arbitration agreement. Here, the agreement did not contemplate the possibility that RAC would file a criminal complaint against a signatory/lessor, causing him to suffer the pains of a criminal indictment, subsequent imprisonment, and eventual release without prosecution. The CAA provisions are sufficiently broad, and the agreement shows the intent and mutual agreement by the parties to arbitrate all civil matters related to the lease of the television; though, notably absent from the CAA is the parties' agreement to arbitrate civil matters related to a potential criminal indictment. We reiterate that "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Blakeney , 950 So.2d at 176. Therefore, we cannot require Pedigo to arbitrate civil claims related to the criminal complaint.

CONCLUSION

¶ 17. Pedigo's suit is based on RAC's allegedly malicious swearing out of a criminal complaint-an action not contemplated by the CAA. As a result, RAC has not shown that the parties agreed to arbitrate this dispute and has failed to satisfy the first prong of the test outlined in East Ford . For that reason, we reverse the circuit court's decision to stay proceedings for arbitration and remand the matter for proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Pedigo's second issue asked the Court to find that RAC waived its right to arbitration when it invoked the judicial process through its criminal complaint, detrimentally prejudicing him and properly situating the suit before the circuit court. Because we find Pedigo's suit to be outside the scope of the arbitration agreement, we need not address whether RAC waived its right to arbitration.

      "Courts often characterize arbitration language as either broad or narrow. Broad arbitration language governs disputes 'related to' or 'connected with' a contract, and narrow arbitration language requires arbitration of disputes that directly 'arise out of' a contract." MS Credit Center, Inc. v. Horton , 926 So.2d 167, 175-76 (Miss. 2006) (citing Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd. , 139 F.3d 1061, 1067 (5th Cir.1998) ).


text:
    Constance FITZMAURICE v. Charles VANDEVORT;
    Constance Fitzmaurice v. Charles Vandevort
    2015-CT-01798-COA 2016-CT-00504-COA
    Supreme Court of Mississippi.
    Filed: December 4, 2017 Closed: March 8, 2018
    Certiorari - Denied.


text:
    Jermaine CRUMP v. STATE of Mississippi
    2015-CT-01828-COA
    Supreme Court of Mississippi.
    Filed: December 1, 2017 Closed: March 1, 2018
    Certiorari - Denied.


text:
    Joel JONES v. STATE of Mississippi
    2014-CT-01356-COA
    Supreme Court of Mississippi.
    Filed: January 23, 2018 Closed: March 29, 2018
    Certiorari - Denied.


text:
    Jerrard T. COOK v. STATE of Mississippi
    2016-CT-00687-COA
    Supreme Court of Mississippi.
    Filed: December 19, 2017 Closed: March 22, 2018
    Certiorari - Denied.


text:
    Russell GAILLARD v. REA BROTHERS' AUCTIONS, INC.
    2016-CT-00464-COA
    Supreme Court of Mississippi.
    Filed: December 12, 2017 Closed: March 8, 2018
    Certiorari - Denied.


text:
    Khavaris HILL v. HINDS COUNTY, Mississippi
    2016-CT-00249-COA
    Supreme Court of Mississippi.
    Filed: January 10, 2018 Closed: March 8, 2018
    Certiorari - Denied.


text:
    John GALE v. STATE of Mississippi
    2016-CT-00735-COA
    Supreme Court of Mississippi.
    Filed: January 26, 2018 Closed: March 29, 2018
    Certiorari - Denied.


text:
    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY v. Stacy SMITH
    2016-CT-00112-SCT
    Supreme Court of Mississippi.
    Filed: January 2, 2018 Closed: March 22, 2018
    Certiorari - Granted.


text:
    William MACK, Jr. v. STATE of Mississippi
    2016-CT-00035-COA
    Supreme Court of Mississippi.
    Filed: November 28, 2017 Closed: March 1, 2018
    Certiorari - Denied.


text:
    Latrai SPRAGGINS v. STATE of Mississippi
    2016-CT-00357-COA
    Supreme Court of Mississippi.
    Filed: January 4, 2018 Closed: March 1, 2018
    Certiorari - Denied.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Curtis C. EVANS a/k/a Curtis Chrishaun Evans a/k/a Curtis Evans, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00442-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEY FOR APPELLANT: CURTIS C. EVANS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Curtis Chrishaun Evans, appearing pro se, appeals the Harrison County Circuit Court's dismissal of his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2001, Evans was indicted on one count of armed robbery and one count of burglary by a Harrison County grand jury. Evans pleaded guilty to the charges in 2002. On the armed-robbery count, he was sentenced to sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with eight years suspended and eight years to serve, followed by three years of postrelease supervision (PRS). On the burglary count, he was sentenced to seven years to run concurrently with count one.

¶ 3. In April 2010, Evans was arrested for robbery and indecent exposure while on PRS. After a revocation hearing, Evans's PRS was revoked, and he was sentenced to serve his original sentence in the custody of the MDOC.

¶ 4. In 2013, Evans filed his first PCR motion and alleged the following:

[that] the trial court illegally revoked his PRS; that he was denied assistance of counsel at the revocation hearing; that the evidence against him was not disclosed at the hearing; that he was not given the opportunity to present witnesses and documentary evidence; and that he was not advised of his right to confront and cross-examine adverse witnesses.

Evans v. State , 188 So.3d 1256, 1259 (¶ 8) (Miss. Ct. App. 2016).

¶ 5. In November 2016, Evans filed his second PCR motion, which was denied in February 2017. Evans filed his notice of appeal in March 2017. Evans now asserts that (1) he received an illegal sentence; (2) the circuit court did not advise him that he was waiving certain constitutional rights by pleading guilty; (3) he was denied effective assistance of counsel; and (4) the sentencing order discussing the terms of probation was void, because it did not contain his signature or the signature of a field officer.

STANDARD OF REVIEW

¶ 6. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Creppel v. State , 199 So.3d 715, 718 (¶ 8) (Miss. Ct. App. 2016).

DISCUSSION

¶ 7. The circuit court held that Evans's PCR motion was time-barred, successive, and without merit. We agree.

¶ 8. "A PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction." Kennedy v. State , 179 So.3d 82, 83 (¶ 6) (Miss. Ct. App. 2015) ; see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Evans filed his second PCR motion on November 22, 2016, approximately fourteen years and three months after he pleaded guilty in 2002. Therefore, we find his PCR motion is time-barred.

¶ 9. Additionally, Evans's PCR motion is successive-writ barred. "[A] trial court's denial of a PCR motion is a final judgment and bars a second or successive motion unless an exception applies." Kennedy , 179 So.3d at 83 (¶ 6) ; see also Miss. Code Ann. § 99-39-23(6) (Rev. 2015). In the order dismissing Evans's second PCR motion, the circuit court found that "Evans failed to provide any legitimate reason that the successive-writ bar should not apply." We find that the circuit court properly dismissed Evans's successive PCR motion.

¶ 10. However, Evans asserts that his second PCR motion is exempt from the procedural bar, because he received an illegal sentence; because he waived his constitutional rights; because he received ineffective assistance of counsel; and because his sentencing order lacked his signature. "[I]n Mississippi, ... only four types of 'fundamental rights' have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims." Kennedy , 179 So.3d at 83-84 (¶ 8) (quoting Boyd v. State , 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014) ). However, we have previously held that "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Stokes v. State , 199 So.3d 745, 749 (¶ 10) (Miss. Ct. App. 2016). Evans merely asserts certain constitutional-rights violations without having sufficient evidence to support them. Nevertheless, we will briefly discuss each of his claims before this Court.

I. Illegal Sentence

¶ 11. Evans asserts that he received an illegal sentence and maintains that he is eligible for earned parole. However, Evans failed to raise this assertion in his first and second PCR motions. We have previously held that "[a] defendant who fails to raise an issue in his PCR motion before the trial court may not raise that issue for the first time on appeal." Barker v. State , 203 So.3d 653, 655-56 (¶ 9) (Miss. Ct. App. 2016) (citation omitted).

¶ 12. Notwithstanding the procedural bar, this Court has held that "an illegal sentence is one that does not conform to the applicable penalty statute." Id. at 656 (¶ 12) (quotation marks omitted). Evans pleaded guilty to armed robbery and was sentenced to sixteen years in the custody of MDOC, with eight years suspended and eight years to serve, followed by three years of PRS. The sentencing order also reflected that Evans pleaded guilty to burglary and was sentenced to seven years in the custody of the MDOC, to run concurrently with the armed-robbery sentence.

¶ 13. Mississippi Code Annotated section 97-3-79 (Rev. 2014) states:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

¶ 14. Accordingly, we find that Evans's sentence, falling within the statutory guidelines, was legally imposed. Therefore, this argument lacks merit.

II. Waiver of Constitutional Rights

¶ 15. Evans asserts that he was not advised that his guilty plea waived his right to a trial by jury, the right to confront witnesses, and the protection against self-incrimination. Again, "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Stokes , 199 So.3d at 749 (¶ 10). Evans confirmed that he signed a document waiving his right to a preliminary probation-revocation hearing. See Evans , 188 So.3d at 1259 (¶ 5). Therefore, we find that this assertion lacks merit.

III. Ineffective Assistance of Counsel

¶ 16. Evans asserts that his counsel's representation was ineffective, because his counsel failed to inform Evans that he would be waiving certain rights by pleading guilty. We disagree with this assertion.

¶ 17. In order to prevail on a claim of ineffective assistance of counsel, Evans must demonstrate two things: "(1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that but for counsel's errors, there is a 'reasonable probability' that the outcome of the proceeding would have been different." Avery v. State , 179 So.3d 1182, 1188 (¶ 13) (Miss. Ct. App. 2015) (citing Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶ 18. Evans's claim is not supported by affidavits or any evidence other than his own assertion that he received ineffective assistance of counsel. "[A] defendant must plead claims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own." Id. at 1188-89 (¶ 13). As a result, "when [the defendant] fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail." Id. Therefore, we find Evans's claim fails.

IV. Evans's Signature

¶ 19. Finally, Evans maintains that his constitutional right to notice was violated because the sentencing and probation order did not contain his signature or the signature of a field officer. However, Evans raises this issue for the first time before this Court. Again, "[a] defendant who fails to raise an issue in his PCR motion before the trial court may not raise that issue for the first time on appeal." Barker , 203 So.3d at 655-56 (¶ 9).

¶ 20. Notwithstanding the procedural bar, this Court addressed a similar issue in Campbell v. State , 993 So.2d 413 (Miss. Ct. App. 2008). In Campbell , "the record show[ed the petitioner] did not sign the order explaining the exact conditions of his suspended sentence." Id. at 417 (¶ 13). However, the Court found that a simple oversight, such as the petitioner's omitted signature, did not equate to an illegal revocation of a sentence. Id. Accordingly, we find no error in the suspension of Evans's PRS and imposition of his original sentence. Therefore, this issue is without merit.

¶ 21. Accordingly, we find no error in the circuit court's dismissal of Evans's PCR motion.

¶ 22. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      "The trial court held a revocation hearing on July 6, 2010." Evans v. State , 188 So.3d 1256, 1259 (¶ 5) (Miss. Ct. App. 2016). "The transcript from the revocation hearing reflects that Evans admitted that he possessed awareness of his August 2010 charge for robbery and indecent exposure." Id. "Evans also admitted that he owed $220 in supervision fees and that he had never made a payment towards his balance of $1,322.50 with the trial court." Id. "Evans confirmed that he did sign the document waiving his right to a preliminary probation-revocation hearing." Id.


text:
    Dezjon DANIELS v. STATE of Mississippi
    2016-CT-00501-COA
    Supreme Court of Mississippi.
    Filed: January 16, 2018 Closed: March 22, 2018
    Certiorari - Denied.


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Douglas BIBBS a/k/a Douglas B. Bibbs, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01872-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEY FOR APPELLANT: DOUGLAS BIBBS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Douglas Bibbs appeals the dismissal of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 21, 2013, Bibbs pled guilty to armed robbery and was subsequently sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of post-release supervision.

¶ 3. On October 28, 2015, Bibbs filed a PCCR motion, which was summarily dismissed by the trial court. Bibbs now appeals and argues he received ineffective assistance of counsel from his attorney.

STANDARD OF REVIEW

¶ 4. We will not disturb a circuit court's dismissal of a PCCR motion unless the factual findings are clearly erroneous. Kennedy v. State , 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 5. Bibbs asserts his counsel was ineffective for failing to adequately advise him of a lesser charge of simple robbery, for failing to investigate his mental history, and for failing to bring Bibbs's mental status to the attention of the court. To prove ineffective assistance of counsel, Bibbs must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, Bibbs "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 6. Bibbs must prove that his attorney's performance was deficient and that the deficiency was prejudicial. Hill v. State , 60 So.3d 824, 826-27 (¶ 5) (Miss. Ct. App. 2011) (citation omitted). He must "allege facts of ineffective assistance with 'specificity and detail.' " Berryhill v. State , 197 So.3d 938, 941 (¶ 10) (Miss. Ct. App. 2016) (citation omitted). A petitioner's bare assertions are insufficient. Id.

¶ 7. "Where a defendant voluntarily pleads guilty to an offense, he waives all non-jurisdictional rights incident to trial[.]" Hill, 60 So.3d at 827 (¶ 6). "This 'waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.' " Id. (citation omitted). Bibbs voluntarily signed and accepted the terms of a guilty-plea deal. Bibbs now claims that, had he been properly informed of the lesser charge of simple battery, "maybe" the actual plea deal or its negotiation would have gone differently.

¶ 8. The plea deal, which was read and signed by Bibbs and his attorney, advised that if he pled guilty, he could be sentenced to a minimum of three years and a maximum of "almost life." The deal further advised that "the sentence is up to the [c]ourt; that the [c]ourt is not required to carry out any understanding made by [Bibbs] and his attorney with the [d]istrict [a]ttorney; and further, that the [c]ourt is not required to follow the recommendation of the [d]istrict [a]ttorney, if any."

¶ 9. During the plea hearing, the following exchange occurred:

[COURT]: Are you under the influence of any alcohol or drugs this morning?
[BIBBS]: No, sir.
[COURT]: Have you had any physical or emotional problem that would prevent you from participating in this hearing or understanding what we're doing?
[BIBBS]: No, sir.
[COURT]: It's your decision to enter into this petition based on your own free will?
[BIBBS]: Yes, sir.
....
[COURT]: Can you read and write?
[BIBBS]: Yes, sir.
[COURT]: Can you acknowledge that-do you acknowledge that you've read this petition and went over it with [your attorney]?
[BIBBS]: Yes, sir.
[COURT]: Do you have any questions about it?
[BIBBS]: No, sir.
....
[COURT]: Do you have a lot of confidence in [your attorney]?
[BIBBS]: Yes, sir.
[COURT]: Do you believe he knows what he is doing?
[BIBBS]: Yes, sir.
[COURT]: Have you told him everything he needs to know to represent you?
[BIBBS]: Yes, sir.
....
[COURT]: Do you understand, Mr. Bibbs, that if you plead guilty that this court may sentence you to the minimum of three years but to the maximum of most of your natural life?
[BIBBS]: Yes, sir.
[COURT]: Has anybody put any pressure on you now to come up and change your plea and admit you're guilty?
[BIBBS]: No, sir.
[COURT]: Anybody promised you anything like a certain amount of years sentence?
[BIBBS]: No, sir.
[COURT]: You understand that I may sentence you anywhere in that range?
[BIBBS]: Yes, sir.
[COURT]: Do you have any questions?
[BIBBS]: No, sir.

¶ 10. The record shows that the voluntariness of the plea is not in dispute. Bibbs was advised and understood the nature of the charge against him, and what his options and consequences were as far as signing the petition or going to trial. A voluntary guilty plea waives a claim of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. Hill, 60 So.3d at 827 (¶ 6). Bibbs does not adequately raise any issue regarding the voluntariness of his guilty plea. Accordingly, there is no merit to this issue.

¶ 11. In direct contradiction to Bibbs's current claims, Bibbs's signed plea deal states that his lawyer "counseled and advised [him] on the nature of each charge [and] on any and all lesser-included charges[.]" He later confirmed this statement to the trial judge. Further, Bibbs does not explain how the inclusion of a simple battery charge is relevant to the present case, nor does he offer any specific facts or evidence as to how he may be eligible for the lesser charge of simple battery. Therefore, Bibbs failed to illustrate that the lesser charge not being included was prejudicial in any way.

¶ 12. Additionally, Bibbs claims his counsel was ineffective by not investigating his mental history, and for failing to bring Bibbs's mental status to the attention of the court. However, the record indicates no sign of incompetency, nor does Bibbs offer any additional evidence or affidavits to support his claim. " '[T]he trial court may dismiss a motion for post-conviction relief if the petitioner fails to submit affidavits in support of his allegations' of ineffective assistance; the petitioner's bare assertions are insufficient." Berryhill , 197 So.3d at 941 (¶ 10) (quoting Mayhan v. State , 26 So.3d 1072, 1076 (¶ 10) (Miss. Ct. App. 2009) ). His statements from his plea hearing concerning his physical and emotional fitness, as well as his acknowledgments to the judge of the choice he was making, are in direct contrast with his present claim of mental instability. Bibbs's broad assertions of ineffective assistance of counsel are insufficient to support his claims.

CONCLUSION

¶ 13. Bibbs has failed to show that his counsel's performance was deficient, and that the alleged deficiency prejudiced his defense. Bibbs has failed to show that, but for counsel's errors, the result of the proceeding would have been different. Accordingly, Bibbs's claim of ineffective assistance of counsel fails. We affirm the circuit court's dismissal of Bibbs's PCCR motion.

¶ 14. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


text:
    STATE of Mississippi, Appellant v. Roy STAFFORD a/k/a Roy "Bud" Stafford, Appellee
    NO. 2016-CA-01331-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEY FOR APPELLANT: ANTHONY L. SCHMIDT JR.
    ATTORNEY FOR APPELLEE: ROY STAFFORD (PRO SE)
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. The Mississippi Department of Corrections (MDOC) appeals the judgment of the circuit court, which found that the MDOC violated an inmate's due-process rights when it failed to give timely notice of a disciplinary hearing. Upon review, we find the MDOC's actions were not arbitrary or capricious and did not violate the inmate's constitutional or statutory due-process rights. We therefore reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roy Stafford is an inmate in the custody of the MDOC. In 1988, Stafford was convicted of murder and aggravated assault and sentenced to life and ten years, respectively. He is currently housed at Parchman.

¶ 3. On September 23, 2015, rule violation report (RVR) No. 01293491 was issued against Stafford. The RVR alleged that Stafford made a threatening statement to another inmate. On September 28, 2015, Stafford received notice that a disciplinary hearing would be held September 29, 2015. However, due to "case overload," Stafford's disciplinary hearing was not held until November 21, 2015. No further notice of the hearing was provided to Stafford.

¶ 4. At the disciplinary hearing, Stafford admitted the allegation and rule violation and was found guilty by the hearing officer. Stafford received a thirty-day loss of visitation, phone, and canteen privileges.

¶ 5. Stafford appealed the hearing officer's decision through the MDOC's administrative-remedy program. Stafford claimed a violation of due process as a result of the MDOC's failure to provide him at least twenty-four hours' notice of the November disciplinary hearing. The MDOC found Stafford received proper notice and denied his appeal.

¶ 6. Stafford subsequently filed a petition for judicial review in the Circuit Court of Sunflower County pursuant to Mississippi Code Annotated section 47-5-807 (Rev. 2015). In his petition, Stafford claimed the MDOC violated its disciplinary procedures by failing to provide him timely notice of the hearing, and thereby denied him due process. Stafford asked the circuit court to: (1) order the MDOC to expunge the RVR from his record, (2) issue a declaratory judgment finding certain MDOC officials individually liable because they acted outside of their job descriptions, (3) order the MDOC to pay all filing fees and court costs, and (4) order the MDOC not to retaliate against him.

¶ 7. By order entered July 29, 2016, the circuit court found Stafford's requests for a declaratory judgment and payment of court costs and fees were meritless and noted that prison officials by law cannot retaliate against or harass prisoners for exercising their constitutional rights.

¶ 8. With regard to Stafford's due-process claim, the circuit court found:

that MDOC violated Petitioner Stafford's statutory due[-]process rights by failing to adhere to its policies and procedures when it held the disciplinary hearing approximately two (2) months after it was scheduled without giving [Stafford] [twenty-four] hours['] notice of [the] hearing. As such, [MDOC's] decision in RVR 01293491 [wa]s arbitrary and capricious.

The circuit court reversed the MDOC's decision and ordered that RVR No. 01293491 be expunged from Stafford's prison record.

¶ 9. The MDOC now appeals and argues its decision was supported by substantial evidence in the record; was not arbitrary or capricious, or beyond the agency's powers; and did not violate Stafford's constitutional rights.

STANDARD OF REVIEW

¶ 10. "In reviewing the decision of a circuit court concerning an agency action, this Court applies the same standard of review that court is bound to follow." Pub. Emps.' Ret. Sys. v. Allen , 834 So.2d 50, 53 (¶ 10) (Miss. Ct. App. 2002). An agency's conclusions should not be disturbed unless the agency's order: "(1) is not supported by substantial evidence; (2) is arbitrary and capricious; (3) is beyond the scope or power granted to the agency; or (4) violates one's constitutional rights." Id. "Neither this Court nor the circuit court may substitute its own judgment for that of the agency [that] rendered the decision nor reweigh the facts of the case." Id.

¶ 11. In the present case, Stafford did not file a brief in response to the MDOC's appeal, as required by Mississippi Rule of Appellate Procedure 31(b).

[F]ailure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error. Automatic reversal is not required where the appellee fails to file a brief. However, the appellant's argument should at least create enough doubt in the judiciousness of the [circuit] court's judgment that this Court cannot say with confidence that the case should be affirmed.

Rogillio v. Rogillio , 101 So.3d 150, 153 (¶ 12) (Miss. 2012) (internal citations and quotation marks omitted).

ANALYSIS

¶ 12. In his petition for judicial review, Stafford alleged a violation of his constitutional due-process rights as a result of the MDOC's failure to provide timely notice of his disciplinary hearing. Additionally, the circuit court found that Stafford's statutory due-process rights had been violated due to the MDOC's failure to follow its administrative procedures. We address both the constitutional and the statutory due-process claims.

I. Constitutional Due Process

¶ 13. "A due[-]process violation occurs where a party is not allowed a full and complete hearing before being deprived of life, liberty [,] or property." Leavitt v. Carter , 178 So.3d 334, 339 (¶ 17) (Miss. Ct. App. 2012) (citation omitted). Thus, for either a procedural or substantive due-process claim, the initial requirement "is proving that the plaintiff has been deprived by the government of a liberty or property interest; otherwise, 'no right to due process can accrue.' " Id. (quoting Suddith v. Univ. of S. Miss. , 977 So.2d 1158, 1170 (¶ 19) (Miss. Ct. App. 2007) ).

¶ 14. Although states may "create liberty interests [that] are protected by the Due Process Clause," these interests:

will be generally limited to freedom from restraint[,] which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at 340 (¶ 19) (quoting Sandin v. Conner , 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) ).

¶ 15. "Generally, a disciplinary or administrative sanction [by prison officials] will not be considered to be an 'atypical and significant hardship' ... unless it is determined to be 'onerous.' " Id. at (¶ 20) (citation omitted). It is within the discretion of the prison officials "to determine whether and when to provide prisoners with privileges [that] amount to more than reasonably adequate food, clothing, shelter, sanitation, medical care, and personal safety." Id. at 340-41 (¶ 21).

¶ 16. Here, as a result of the rule violation, Stafford lost phone, visitation, and canteen privileges for thirty days. Such losses do not represent "the type of deprivation [that] could reasonably be viewed as imposing an atypical and significant hardship on an inmate." Id. at 341 (¶ 22). This Court has held that the "temporary restriction of phone, visitation, and canteen privileges [is] not sufficient to trigger any constitutional due [-]process concerns." Id. "Absent the infringement of a significant constitutional right, there can be no deprivation of constitutional due process." Edwards v. Booker , 796 So.2d 991, 995 (¶ 19) (Miss. 2001). Accordingly, Stafford's constitutional due-process claim fails.

II. Statutory Due Process

¶ 17. Mississippi Code Annotated sections 47-5-801 to -807 (Rev. 2015) "authorize[ ] MDOC to adopt its administrative[-]review procedures and create [ ] a statutory scheme of due process." Edwards , 796 So.2d at 995 (¶ 19). Pursuant to the MDOC's disciplinary procedures, inmates are to be notified of the time and place of the disciplinary hearing at least twenty-four hours in advance of the hearing. In Edwards , the Mississippi Supreme Court held that "[i]f the [MDOC] refuses to follow its own administrative[-]review procedures, then its decision is by definition arbitrary and capricious." Id. at 994-95 (¶ 13).

¶ 18. Here, the circuit court relied on Edwards and found that since the MDOC failed to follow its own procedures and give Stafford at least twenty-four hours' notice of the November disciplinary hearing, its decision was arbitrary and capricious. However, we find Edwards distinguishable from the present case.

¶ 19. In Edwards , Edwards was removed from house arrest and placed in general population after he was found guilty of a rule violation at a disciplinary hearing. Id. at 993 (¶ 7). Edwards had retained counsel "specifically for the purpose of representing him at the [disciplinary] hearing." Id. at 995 (¶ 14). However, the MDOC denied counsel's request to be present at the disciplinary hearing and to present witnesses and other evidence in Edwards's defense. Id. at 993 (¶ 7). Edwards subsequently requested judicial review. Id. at (¶ 8). The circuit court found it lacked jurisdiction since there was no violation of due process, and therefore dismissed the action. Id. Edwards appealed to the Mississippi Supreme Court. Id.

¶ 20. On appeal, the court noted that the MDOC disciplinary procedures specifically allowed inmates to call witnesses and present documentary evidence in their defense. Id. at 994 (¶ 12). The court recognized that while Edwards did not have a constitutional right to state-appointed counsel at the disciplinary hearing, "where one takes the initiative and goes to the expense of hiring an attorney to speak for him, the attorney should be allowed to represent his client." Id. at 995 (¶¶ 14, 17). The court concluded that the MDOC's refusal to allow Edwards's counsel to participate in the hearing and to allow Edwards to present witnesses and evidence in his defense was arbitrary and capricious. Id. at (¶¶ 13, 17). As a result, the court reversed and remanded the case to the circuit court for a factual determination of whether Edwards violated the terms of his house arrest. Id. at 998 (¶ 36).

¶ 21. Here, unlike in Edwards , Stafford did not request or retain counsel, nor did he request that witnesses or evidence be presented at his disciplinary hearing. Moreover, Stafford admitted that he made the threatening statement to the inmate. As a result, unlike in Edwards , "remanding to the circuit court for further review would serve no purpose and would be judicially inefficient," since Stafford's claim "has no 'realistic chance of success.' " Leavitt , 178 So.3d at 343 (¶ 30).

¶ 22. In Smith v. Wesley , 157 So.3d 860, 862 (¶ 9) (Miss. Ct. App. 2015), Smith received a thirty-day loss of privileges as a result of his rule violation. On appeal, Smith claimed he was not afforded a disciplinary hearing. Id. at 861 (¶ 6). This Court noted that Smith had not presented any evidence to refute the MDOC's findings regarding the rule violation, but instead "summarily claim[ed] he was denied an investigation and hearing." Id. We affirmed the circuit court's dismissal of Smith's complaint and held that "[a]lthough Smith argue[d] his due-process rights were violated, ... not all administrative disciplinary actions are subject to a due-process analysis." Id. at 862 (¶¶ 9, 10).

¶ 23. Like Smith , Stafford has not presented any evidence to refute the MDOC's finding that he made a threatening statement to another inmate. Instead, he summarily claimed he was denied timely notice of the disciplinary hearing. However, Stafford did not request the presence of witnesses or ask to present evidence prior to his disciplinary hearing. Moreover, Stafford was present at the hearing, acknowledged the allegations set forth in the RVR, and admitted the rule violation. Consequently, we find Stafford's statutory due-process rights were not violated.

CONCLUSION

¶ 24. Upon review, we find the MDOC's decision was supported by substantial evidence in the record; was not arbitrary or capricious, or beyond the agency's scope or power; and did not violate Stafford's constitutional rights. Accordingly, we reverse the judgment of the circuit court and render judgment in favor of the MDOC. The decision of the MDOC should be reinstated and RVR No. 01293491 should be filed in Stafford's prison record.

¶ 25. REVERSED AND RENDERED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Specifically, the RVR alleged Stafford stated, "I will stab you [,] clown."

      See MDOC Standard Operating Procedure Number 18-01-01, Disciplinary Procedures, Timeliness of Disciplinary Hearing at lines 412-413.

      The record specifically notes that Stafford did not request any witnesses and stated he would "present [his] defense at the hearing."


text:
    Amos Henry EDWARDS a/k/a Amos Edwards, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00282-COA
    Court of Appeals of Mississippi.
    February 20, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Amos Henry Edwards was convicted of sexual battery and sentenced to twenty-five years, with five years suspended, leaving twenty years to serve in the custody of the Mississippi Department of Corrections, followed by five years of supervised probation. Edwards was ordered to register as a sex offender and to pay all court costs and fees. Following the denial of his post-trial motion, Edwards appeals.

¶ 2. The only issue Edwards has raised is that he received in effective assistance of counsel. Edwards's ineffective-assistance-of-counsel claim is more appropriate for a post-conviction proceeding; therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2016, Edwards was eighteen years old. He lived in an apartment with his father, his father's girlfriend, Pamela, and Pamela's seven-year-old grandson, Trey. Trey testified that, on April 22, 2016, he went into Edwards's bedroom and asked Edwards to play. Edwards was on the bed taking pictures of himself with his cell phone. Edwards told Trey, "first [you've] got to do this and then we can play, the middle spot." In other words, Edwards told Trey to "suck on that, the middle spot." Edwards then took off his clothes, grabbed Trey's head, and put Trey's head under the covers. Trey testified that Edwards's penis went inside his mouth for "a short time," until Pamela walked into the room.

¶ 4. Pamela testified that she went into Edwards's bedroom and saw Edwards in the bed with one hand in the air holding a cell phone and the other hand under the covers holding Trey's head down around Edwards's private area. Pamela called Trey's mother and the police.

¶ 5. Morton police officer Willie Anderson responded to the call. Pamela testified that as Anderson was escorting Edwards out of the apartment, Edwards said, "I'm sorry for what I did. I don't know what happened.... I'm sorry." Anderson confirmed that Edwards said he was sorry for what he did and that he knew better.

¶ 6. On April 27, 2016, Investigator Marcus McDougle interviewed Edwards. Edwards signed a waiver-of-rights form that stated he understood his rights and wished to speak with McDougle. At the time of the interview, Edwards had been in custody for five days without an initial appearance or a bond. Edwards then provided the following written statement:

On Friday night, [m]e and Trey was in my room on [Y]outube looking up music video[s]. I don't know what I was thinking, but I really didn't mean it. I wasn't in my right mind. I know I shouldn't [have] done [that]. But it only happen[ed] one time. I'm sorry for doing that. That's the honest truth. I'm sorry to say this but he put his mouth on me (on my thing), only one time. He d [id] it once th[e]n I told him to stop and he did. That's all of it. I promise.

Shortly after the interview, Edwards appeared before a judge for an initial appearance and was granted a bond.

¶ 7. Edwards moved to suppress the written statement. At the suppression hearing, McDougle testified that he and Edwards were present for the statement. According to McDougle, Edwards appeared to understand his rights, did not appear to be under the influence of drugs or alcohol, did not advise of any learning disability, and never requested an attorney or asked to stop the interview. McDougle also testified that he did not make any threats or promises of a reward or leniency, and denied telling Edwards that he would be better off if he gave a statement. McDougle acknowledged that Edwards had been in custody for five days and had not been given an initial appearance or a bond. McDougle explained that he was working a murder case and was unable to interview Edwards immediately after the incident. McDougle denied using the hope of bond in exchange for Edwards's statement. Instead, McDougle advised Edwards that "this was his time to say his piece, say what he had to say, and that he was-that the judge would be talking to him shortly."

¶ 8. After McDougle testified, Edwards's trial counsel did not call Edwards to testify. Instead, Edwards's counsel argued that because Edwards had been in custody for five days without a bond, he "felt the need to make a statement at that point just to perhaps get out of custody." The circuit court disagreed and found that Edwards's statement was voluntary, and overruled the motion to suppress. The circuit court ruled:

It's the testimony of Investigator McDougle that what's been marked for ID as Exhibit 1 was a sheet that he went over individually, the Miranda rights.
At the juncture concerning [his] right to remain silent, he indicated that it was the defendant, Edwards, [who] affixed his initials to the yes blank; that he understood his right to remain silent. He also explained that as he went through each number, he made these inquiries, and that at each juncture Edwards indicated he understood. The form reflects that on whether he understood he had the right to speak to an attorney, also he indicated yes and affixed his initials. And then finally if any threats or promises have been made to you, that he indicated no and affixed his initials. And then finally in the last question, "Do you wish to talk to me now," and he affixed his initials in the yes blank. [McDougle also testified] that there were no promises, threats, violence rendered toward[ ] him; that there were no promises of reward or any inducements offered to him. His explanation was that the defendant, Edwards, seemed eager to speak with him, to make a statement, to volunteer information.
In short, what I have heard is that Mr. Edwards was properly advised of his rights and that he elected to make a voluntary statement. As to the issue as to whether he understood, the testimony is that the statement actually is in his handwriting and that at the incidences where there is some language that's been crossed out, it was Edwards [who] affixed his initials in those spots also. So I believe we have here a voluntary, willing, intelligent statement, so the objection is overruled.

¶ 9. At trial, the waiver of rights and the written statement were admitted into evidence and presented to the jury. McDougle testified about his interview with Edwards and explained the five-day delay between Edwards's arrest and his written statement. Although McDougle acknowledged that he "made indications that the judge was there," McDougle denied telling Edwards that he would be given an initial appearance or a bond if he provided a statement.

¶ 10. Edwards testified in his own defense at trial. Edwards testified that on the night in question, he was on his cell phone, listening to music, and texting his girlfriend. Trey came in and said that Pamela told him that he could sleep in Edwards's room. Edwards testified that Trey was "acting kind of funny." Then Edwards testified that Trey crawled up from the end of the bed, "started going kind of in [his] area, like [his] middle part area," and touched him on the thigh. At that point, Edwards threw both his phone and Trey against the wall. Shortly thereafter, Pamela walked into the room.

¶ 11. Edwards denied taking off his clothes. He also denied touching Trey or putting his penis in Trey's mouth. Edwards acknowledged that he was escorted out of the apartment by the police, but he denied making any statement that he was sorry for what had happened.

¶ 12. Edwards was then asked why he wrote the statement. Edwards said that he "felt like [he] was forced to write it." Edwards testified that McDougle advised him of what Pamela and Trey had alleged and told him that he "might as well just write ... what they said about all of that and everything w[ould] be good and that he w[ould] try and help [him]." Edwards claimed that he felt that he would stay in jail longer if he did not admit to the allegations. However, Edwards asserted that was simply how he felt and he did not make such a statement.

¶ 13. In addition, Edwards claimed that McDougle told him what to say and write in the statement. Edwards testified that "most of this is what he told me to write.... I just put it in my words, not his." With regard to the last sentence of his written statement, "[t]hat's all of it, I promise," Edwards testified as follows:

Q. Did you write that or did he?
A. I wrote everything he said, so I basically told him I promise I wrote what he said.
Q. You promise you wrote what he said?
A. Yeah. That's everything he told me basically to say.
Q. Oh, so that's what you were promising to?
A. Yeah.
Q. Not to the actual-
A. No.
Q. -truth of your statement?
A. Not on my-but I did-I did sign it, though. Because he told me to sign it, so, you know ....

¶ 14. Following his conviction, Edwards's motion for a new trial was denied. Edwards timely filed an appeal.

ANALYSIS

¶ 15. Edwards claims his trial counsel failed to competently challenge the voluntariness and admissibility of his written statement to McDougle. Edwards admits the State established a prima facie case of voluntariness through McDougle's testimony. However, Edwards argues his counsel "fail[ed] to investigate and present evidence at the suppression hearing to rebut the State's prima facie case that [his] written confession was voluntary." Specifically, Edwards argues that his attorney was deficient for failing to call him as a witness during the suppression hearing. Edwards claims that if his trial counsel had called him to testify at the suppression hearing, he would have testified to the following: (1) his written statement was taken during a period of unreasonable delay, (2) he suffers from autism and attended special-education classes in school, and (3) his statement was coerced by offers of inducement and hopes of reward.

¶ 16. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citation omitted). An ineffective-assistance-of-counsel claim can be addressed on direct appeal when "[ (1) ] the record affirmatively shows ineffectiveness of constitutional dimensions, or [ (2) ] the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. Ct. App. 2016).

¶ 17. Here, a review of the record does not affirmatively show ineffectiveness of constitutional dimensions. Additionally, although Edwards stipulates that the record is adequate, the State does not. Moreover, Edwards's ineffective-assistance-of-counsel claim is based on facts not fully apparent from the record. Accordingly, we are unable to adequately and properly address the claim on direct appeal. See Dartez , 177 So.3d at 423 (¶ 18) (We may address an ineffectiveness claim on direct appeal "if the presented issues are based on facts fully apparent from the record."). As a result, we affirm the circuit court's judgment while preserving Edwards's right to pursue his claim through an application for the Mississippi Supreme Court's leave to file a petition for post-conviction collateral relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

¶ 18. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      For privacy purposes, we use a fictitious name for the victim.


author: BARNES, J., FOR THE COURT:

text:
    Henry HINTON Jr., a/k/a Henry Hinton, Appellant v. Brian LADNER, Warden, Appellee
    NO. 2016-CP-01494-COA
    Court of Appeals of Mississippi.
    February 20, 2018
    ATTORNEY FOR APPELLANT: HENRY HINTON JR. (PRO SE)
    ATTORNEY FOR APPELLEE: ANTHONY LOUIS SCHMIDT JR.
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Henry Hinton is an inmate in the custody of the Mississippi Department of Corrections (MDOC), confined at the Mississippi State Penitentiary (MSP). Hinton was found guilty of two rule violations for verbally engaging in bribery with a correction officer and pursuing a relationship with that correction officer. As punishment, Hinton lost privileges for one month. Hinton appealed the decision with MDOC's administrative-remedy program (ARP). Warden Brian Ladner affirmed Hinton's rule violations. Hinton then appealed to the Rankin County Circuit Court, which affirmed MDOC's decision. Hinton now appeals, and finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2015, Hinton was convicted in Pike County of three counts of possession of a controlled substance with the intent to distribute and one count of attempting to obtain a controlled substance. He was sentenced to serve three five-year terms and one three-year term, with the sentences running concurrently, in the custody of the MDOC.

¶ 3. While an inmate at the Central Mississippi Correctional Facility, Hinton was issued two separate rule-violation reports (RVR) on February 27, 2016. In RVR No. 01553562, he was accused of verbally bribing a correction officer to obtain a slice of pizza from her. The officer stated that Hinton put a note in a box asking her to put any leftover pizza she had in the trash, and he "would be happy to dispose of it." He asked her to flash his cell lights, and he would come get the pizza. At his hearing, Hinton admitted that he put the note in the box, but he claimed he did not ask for or give her anything. In RVR No. 01553563, Hinton was accused of pursuing a relationship with the same correction officer.

¶ 4. At a disciplinary hearing, Hinton was found guilty of both rule violations and lost all privileges for one month. Hinton claimed that as an added punishment he was placed in a much more restrictive area the following day-a claim MDOC denies. In March 2016, Hinton filed grievances for both RVRs with MDOC's ARP, claiming the statements in the note were taken out of context.

¶ 5. In April 2016, Hinton received and acknowledged MDOC's decision. Hinton appealed MDOC's ARP decision to the Rankin County Circuit Court. MDOC responded to Hinton's appeal, stating there was substantial evidence to support the RVRs.

¶ 6. In June 2016, Hinton amended his complaint, claiming his due-process right to notice was violated because he could not read his copies of the RVRs before his hearing. The MDOC filed an answer to his amended complaint denying Hinton's assertions. The MDOC denied that Hinton was transferred to a more restrictive holding area due to the RVRs, that he was punished in retaliation for "getting in [the captain's ] business," that he was given illegible copies of the RVRs, or that his note was taken out of context. In October 2016, the circuit court affirmed MDOC's decision. Hinton timely appealed.

STANDARD OF REVIEW

¶ 7. This Court will not disturb the decision of an administrative agency, such as the MDOC, unless the decision was "unsupported by substantial evidence, arbitrary or capricious, beyond the agency's scope or powers, or violative of the constitutional or statutory rights of the aggrieved party." Taylor v. Petrie , 41 So.3d 724, 727 (¶ 8) (Miss. Ct. App. 2010) (quoting Edwards v. Booker , 796 So.2d 991, 994 (¶ 10) (Miss. 2001) ). "There is a rebuttable presumption which favors the agency's decision and the challenging party has the burden of proving the contrary." Ross v. Epps , 922 So.2d 847, 849 (¶ 4) (Miss. Ct. App. 2006) (citing State Bd. of Pub. Accountancy v. Gray , 674 So.2d 1251, 1253 (Miss. 1996) ).

ANALYSIS

I. MDOC's Decision

¶ 8. Hinton argues there was not substantial evidence to support MDOC's decision that he violated MDOC rules against bribery and pursuing a relationship. We review MDOC's decision under the substantial-evidence standard. Smith v. Wesley , 157 So.3d 860, 861 (¶ 8) (Miss. Ct. App. 2015). "Substantial evidence is not an especially large quantum.... [It] may be less than a preponderance, but must be more than a scintilla, and must ... make any conclusion based on that evidence a reasonable one." Miss. Dep't of Transp. v. Rutland , 965 So.2d 696, 703 (¶ 12) (Miss. 2007) (quoting Miss. Dep't of Corr. v. Smith , 883 So.2d 124, 129 (¶ 15) (Miss. Ct. App. 2004) ). "Deference is afforded 'to the fact-finding role of the administrative agency and the hearing officer's findings.' " Smith , 157 So.3d at 862 (¶ 8) (quoting Johnson v. Miss. Dep't of Corr. , 682 So.2d 367, 370 (Miss. 1996) ).

¶ 9. We find that Hinton failed to prove MDOC's decision was not supported by substantial evidence. Hinton claims his note was taken out of context, and he did not bribe anyone for anything, but merely offered to dispose of the pizza in the trash.

He also denies attempting to pursue a relationship with the female officer, arguing that the note was written to apply to anyone.

¶ 10. We are not persuaded by these arguments. Hinton admitted to writing the note to the female officer in the tower, which is inappropriate communication. A copy of the note was admitted into evidence, in which Hinton was offering something of value-to take out the officer's trash for her to obtain the pizza. He admitted in the hearing that his motive was to sneak back and retrieve the pizza from the trash. These actions also establish an inappropriate relationship with an officer that compromises the security of MDOC's facility. Accordingly, MDOC's decision was supported by substantial evidence.

II. Constitutional Issues

¶ 11. Hinton raises several constitutional issues, such as due process and free speech. First, Hinton argues his due-process right to notice was violated because his copies of the RVRs were illegible. Thus, he states he did not know the charges against him at the hearing. Additionally, Hinton argues his due-process right to be heard was violated because he was not allowed to make statements in his own defense during the hearing.

¶ 12. Although Hinton argues his due-process rights were violated in numerous ways, as he also notes, not all administrative disciplinary actions are subject to due-process analysis. It is well established that punishment of temporary loss of privileges is not generally considered a constitutionally protected liberty interest. Mixon v. Enlers , 90 So.3d 635, 637 (¶ 6) (Miss. Ct. App. 2012) (citing Madison v. Parker , 104 F.3d 765, 768 (5th Cir. 1997) ). Accordingly, Hinton has no liberty interest that could give rise to a legitimate due-process claim.

¶ 13. To circumvent this bar, Hinton contends that his prison transfer immediately after his disciplinary hearing was part of his punishment for his RVRs, which violated his due-process rights. MDOC denies this allegation, and Hinton provides no proof in support. Additionally, Hinton's due-process arguments are without merit. Even though the copies of Hinton's two RVRs in the record are of poor quality, Hinton complained of it over a month after the disciplinary hearing and receipt of MDOC's decision against him-not when the RVRs were first issued. Further, Hinton did not request any evidence be introduced at the hearing to refute the RVRs or request any witnesses. Therefore, we cannot say that Hinton was denied due process, as he was provided and attended a fair and impartial disciplinary hearing where he was made aware of the nature of the charges against him.

¶ 14. Finally, Hinton claims prison officials retaliated against him for exercising his First Amendment right to free speech in prison by writing the note. He argues the note did not violate any specific MDOC rules or policies and was not directed at anyone in particular.

¶ 15. Again, we are not persuaded by this argument. There was substantial evidence to support MDOC's decision upholding Hinton's RVRs, which cite specific MDOC rule violations. Additionally, Hinton admitted to writing the note, even if he refuted any violative intent.

¶ 16. Accordingly, we affirm the circuit court's judgment affirming MDOC's decision.

¶ 17. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The note's complete text stated:
      Secrets to increase your karma! *Help the needie.* MDOC policy allows you to bring food into the facility. Policy also allows you to dispose any unwanted portion you fail to consume. You may be known as slim although you appear to eat well. Therefore any unwanted portion you don't wish to consume, simply drop it in the box. I will be happy to dispose of it via the trash for you. No harm. No foul. Quote of the Day-An older man has learn, and has the ability to keep his mouth shut.

      Hinton claims Captain Mitchell, the disciplinary officer, orchestrated his transfer.

      On April 20, 2016, Hinton wrote a letter to MDOC's ARP claims adjudicator requesting another copy of the RVRs because Hinton could not read the copies he was provided at the hearing. In May 2016, the MDOC responded that copies are not provided for prisoners.