IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CP-00919-COA
DEMARIO WALKER APPELLANT
v.
MISSISSIPPI STATE PAROLE BOARD, MDOC APPELLEES RECORDS DEPARTMENT, MDOC SENTENCE COMPUTATION UNIT SUPERVISOR, AND THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
DATE OF JUDGMENT: 06/20/2023 TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE) ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: KIMBERLY PINE TURNER WILLIAM R. COLLINS NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 01/07/2025 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Demario Walker appeals the Hinds County Circuit Court’s dismissal of his petition
for judicial review of a decision by the Mississippi Department of Corrections (MDOC). The
circuit court entered an order dismissing Walker’s petition after finding Walker had not
exhausted his available administrative remedies before seeking judicial relief.
¶2. Upon review, we find no error in the dismissal of Walker’s petition. We therefore
affirm the circuit court’s order. FACTS
¶3. Demario Walker is currently imprisoned in Rankin County in the custody of the
Mississippi Department of Corrections (MDOC) serving sentences for convictions in
Jefferson Davis, Rankin, Greene, and Lamar Counties. See Walker v. State, No.
2023-CP-00787-COA, 2024 WL 4272691, at *1 (¶1) (Miss. Ct. App. Sept. 24, 2024). On
April 11, 2023, Walker filed a petition in the Hinds County Circuit Court seeking judicial
review of the MDOC’s Administrative Remedy Program (ARP) decision. In his petition,
Walker alleged that the MDOC failed to accurately calculate his trusty earned time under
Mississippi Code Annotated section 47-5-138.1 (Rev. 2015). Walker requested that the
circuit court order the MDOC to recalculate Walker’s inmate timesheet.
¶4. On June 20, 2023, the circuit court entered an order dismissing Walker’s petition for
judicial review because Walker “failed to attach an ARP decision for the [c]ourt to review”
and “failed to exhaust administrative remedies.” Walker now appeals from the circuit court’s
order dismissing his petition.1
STANDARD OF REVIEW
¶5. “The question of the exhaustion of administrative remedies is a jurisdictional question,
as is the personal jurisdiction issue in this case.” Robinson v. Miss. Dep’t of Corr., 359 So.
1 Walker asserts that he received the circuit court’s order of dismissal on June 27, 2023, and the record appears to confirm Walker’s timeline. The docket reflects that Walker filed his notice of appeal from the circuit court’s decision on July 14, 2023. He then filed a motion for reconsideration on July 21, 2023. Once Walker perfected his appeal of the June 20, 2023 order, the circuit court had no jurisdiction to enter an order modifying, amending, or reconsidering that judgment. See Corp. Mgmt. Inc. v. Greene County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). Our review of the docket confirms that the trial court did not rule on Walker’s motion for reconsideration.
2 3d 237, 239 (¶9) (Miss. Ct. App. 2023) (internal quotation marks and citation omitted).
“Jurisdictional matters are a question of law, and the standard of review is de novo.” Id.
(quoting Clark v. Middlebrooks, 328 So. 3d 1272, 1273 (¶2) (Miss. Ct. App. 2021)).
DISCUSSION
I. Dismissal of Petition for Judicial Review
¶6. Walker argues that the circuit court erred in dismissing his petition for judicial
review.2 In his petition, Walker claimed that the MDOC miscalculated his trusty earned time
and incorrectly computed his inmate timesheet. He also alleged that MDOC “has refused to
answer all letters, informal and formal grievances, and requests” regarding the calculation
of his sentence. However, the record shows that Walker failed to attach any documentation
evidencing that he even initiated—much less fully exhausted—the steps for administrative
remedy through the MDOC before filing his petition for judicial review.3
¶7. In his appellate brief, Walker admits that he did not submit to the circuit court any
documentation regarding the exhaustion of his administrative remedies. Our caselaw is clear
2 In addition to renewing his claim that the MDOC miscalculated his trusty earned time, Walker asserts new claims for the first time on appeal. We find that Walker’s claims raised for the first time on appeal are procedurally barred and not properly before this Court for appellate review. See Smith v. State, 385 So. 3d 879, 883 (¶10) (Miss. Ct. App. 2024) (“Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs.”). We therefore limit our review to the circuit court’s June 20, 2023 dismissal of Walker’s petition for judicial review. 3 While the record before us contains ARP documents related to a prior grievance Walker filed regarding the denial of gender confirmation surgery, these ARP documents are unrelated to Walker’s present claim regarding the computation of his inmate timesheet and calculation of his trusty earned time.
3 that “[a]n inmate must challenge MDOC’s calculation of credit for time served by obtaining
a final ARP decision and then seeking judicial review . . . [.]” Easterling v. State, 283 So.
3d 1198, 1200 (¶4) (Miss. Ct. App. 2019) (emphasis added). Mississippi Code Annotated
section 47-5-803(2) (Rev. 2015) also provides that “[n]o state court shall entertain an
offender’s grievance or complaint which falls under the purview of the administrative review
procedure unless and until such offender shall have exhausted the remedies as provided in
such procedure.” Miss. Code Ann. § 47-5-803(2); accord Carroll v. State, 371 So. 3d 196,
198 (¶5) (Miss. Ct. App. 2023).
¶8. Here, the circuit court dismissed Walker’s petition after finding that he “failed to
attach an ARP decision for the Court to review” and “failed to exhaust administrative
remedies.” Because the record confirms that Walker “sought judicial review of his claims
prior to exhausting available administrative relief through MDOC’s ARP, the circuit court
correctly [dismissed] his [petition].” Carroll, 371 So. 3d at 199 (¶7).
¶9. As a final matter, we acknowledge that the MDOC and Mississippi Parole Board
raised additional claims of error in their appellate briefs. However, because we are affirming
the circuit court’s dismissal of Walker’s petition for judicial review, we will briefly address
only the Parole Board’s claim that the circuit court lacked personal jurisdiction over it due
to Walker’s failure to serve the Parole Board with the petition for judicial review.
¶10. Although “[s]ervice of process is not required when a prisoner files a petition for
review of an ARP decision in circuit court[,] . . . [Walker] was required to provide notice of
his intent to seek judicial review under Uniform Civil Rule of Circuit and County Court
4 5.04.” Hesler v. Alcorn Cnty. Corr. Facility, 315 So. 3d 1040, 1041 (¶6) (Miss. 2021)
(citation omitted). Rule 5.04 states that a “party desiring to appeal a decision from a lower
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CP-00919-COA
DEMARIO WALKER APPELLANT
v.
MISSISSIPPI STATE PAROLE BOARD, MDOC APPELLEES RECORDS DEPARTMENT, MDOC SENTENCE COMPUTATION UNIT SUPERVISOR, AND THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
DATE OF JUDGMENT: 06/20/2023 TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE) ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: KIMBERLY PINE TURNER WILLIAM R. COLLINS NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 01/07/2025 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Demario Walker appeals the Hinds County Circuit Court’s dismissal of his petition
for judicial review of a decision by the Mississippi Department of Corrections (MDOC). The
circuit court entered an order dismissing Walker’s petition after finding Walker had not
exhausted his available administrative remedies before seeking judicial relief.
¶2. Upon review, we find no error in the dismissal of Walker’s petition. We therefore
affirm the circuit court’s order. FACTS
¶3. Demario Walker is currently imprisoned in Rankin County in the custody of the
Mississippi Department of Corrections (MDOC) serving sentences for convictions in
Jefferson Davis, Rankin, Greene, and Lamar Counties. See Walker v. State, No.
2023-CP-00787-COA, 2024 WL 4272691, at *1 (¶1) (Miss. Ct. App. Sept. 24, 2024). On
April 11, 2023, Walker filed a petition in the Hinds County Circuit Court seeking judicial
review of the MDOC’s Administrative Remedy Program (ARP) decision. In his petition,
Walker alleged that the MDOC failed to accurately calculate his trusty earned time under
Mississippi Code Annotated section 47-5-138.1 (Rev. 2015). Walker requested that the
circuit court order the MDOC to recalculate Walker’s inmate timesheet.
¶4. On June 20, 2023, the circuit court entered an order dismissing Walker’s petition for
judicial review because Walker “failed to attach an ARP decision for the [c]ourt to review”
and “failed to exhaust administrative remedies.” Walker now appeals from the circuit court’s
order dismissing his petition.1
STANDARD OF REVIEW
¶5. “The question of the exhaustion of administrative remedies is a jurisdictional question,
as is the personal jurisdiction issue in this case.” Robinson v. Miss. Dep’t of Corr., 359 So.
1 Walker asserts that he received the circuit court’s order of dismissal on June 27, 2023, and the record appears to confirm Walker’s timeline. The docket reflects that Walker filed his notice of appeal from the circuit court’s decision on July 14, 2023. He then filed a motion for reconsideration on July 21, 2023. Once Walker perfected his appeal of the June 20, 2023 order, the circuit court had no jurisdiction to enter an order modifying, amending, or reconsidering that judgment. See Corp. Mgmt. Inc. v. Greene County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). Our review of the docket confirms that the trial court did not rule on Walker’s motion for reconsideration.
2 3d 237, 239 (¶9) (Miss. Ct. App. 2023) (internal quotation marks and citation omitted).
“Jurisdictional matters are a question of law, and the standard of review is de novo.” Id.
(quoting Clark v. Middlebrooks, 328 So. 3d 1272, 1273 (¶2) (Miss. Ct. App. 2021)).
DISCUSSION
I. Dismissal of Petition for Judicial Review
¶6. Walker argues that the circuit court erred in dismissing his petition for judicial
review.2 In his petition, Walker claimed that the MDOC miscalculated his trusty earned time
and incorrectly computed his inmate timesheet. He also alleged that MDOC “has refused to
answer all letters, informal and formal grievances, and requests” regarding the calculation
of his sentence. However, the record shows that Walker failed to attach any documentation
evidencing that he even initiated—much less fully exhausted—the steps for administrative
remedy through the MDOC before filing his petition for judicial review.3
¶7. In his appellate brief, Walker admits that he did not submit to the circuit court any
documentation regarding the exhaustion of his administrative remedies. Our caselaw is clear
2 In addition to renewing his claim that the MDOC miscalculated his trusty earned time, Walker asserts new claims for the first time on appeal. We find that Walker’s claims raised for the first time on appeal are procedurally barred and not properly before this Court for appellate review. See Smith v. State, 385 So. 3d 879, 883 (¶10) (Miss. Ct. App. 2024) (“Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs.”). We therefore limit our review to the circuit court’s June 20, 2023 dismissal of Walker’s petition for judicial review. 3 While the record before us contains ARP documents related to a prior grievance Walker filed regarding the denial of gender confirmation surgery, these ARP documents are unrelated to Walker’s present claim regarding the computation of his inmate timesheet and calculation of his trusty earned time.
3 that “[a]n inmate must challenge MDOC’s calculation of credit for time served by obtaining
a final ARP decision and then seeking judicial review . . . [.]” Easterling v. State, 283 So.
3d 1198, 1200 (¶4) (Miss. Ct. App. 2019) (emphasis added). Mississippi Code Annotated
section 47-5-803(2) (Rev. 2015) also provides that “[n]o state court shall entertain an
offender’s grievance or complaint which falls under the purview of the administrative review
procedure unless and until such offender shall have exhausted the remedies as provided in
such procedure.” Miss. Code Ann. § 47-5-803(2); accord Carroll v. State, 371 So. 3d 196,
198 (¶5) (Miss. Ct. App. 2023).
¶8. Here, the circuit court dismissed Walker’s petition after finding that he “failed to
attach an ARP decision for the Court to review” and “failed to exhaust administrative
remedies.” Because the record confirms that Walker “sought judicial review of his claims
prior to exhausting available administrative relief through MDOC’s ARP, the circuit court
correctly [dismissed] his [petition].” Carroll, 371 So. 3d at 199 (¶7).
¶9. As a final matter, we acknowledge that the MDOC and Mississippi Parole Board
raised additional claims of error in their appellate briefs. However, because we are affirming
the circuit court’s dismissal of Walker’s petition for judicial review, we will briefly address
only the Parole Board’s claim that the circuit court lacked personal jurisdiction over it due
to Walker’s failure to serve the Parole Board with the petition for judicial review.
¶10. Although “[s]ervice of process is not required when a prisoner files a petition for
review of an ARP decision in circuit court[,] . . . [Walker] was required to provide notice of
his intent to seek judicial review under Uniform Civil Rule of Circuit and County Court
4 5.04.” Hesler v. Alcorn Cnty. Corr. Facility, 315 So. 3d 1040, 1041 (¶6) (Miss. 2021)
(citation omitted). Rule 5.04 states that a “party desiring to appeal a decision from a lower
court must file a written notice of appeal with the circuit court clerk,” and “[a] copy of that
notice must be provided to all parties or their attorneys of record and the lower court or lower
authority whose order or judgment is being appealed.” UCRCCC 5.04. “A petition for
judicial review filed pursuant to section 47-5-807, as in this case, must comply with
UCRCCC 5.04 for the circuit court to have personal jurisdiction over [a named party].”
Robinson, 359 So. 3d at 239 (¶11); see also Smith v. State, 293 So. 3d 238, 241-43 (¶¶17-22)
(Miss. 2020); Clark, 328 So. 3d at 1273-74 (¶¶4-7).
¶11. In his petition for judicial review, Walker named the following parties: the Parole
Board, the MDOC Records Department, and the MDOC Sentence Computation Unit
Supervisor. The record shows that Walker provided notice of his intent to seek judicial
review in the circuit court and the Civil Litigation Division of the Mississippi Attorney
General’s Office. In his letter to the circuit court, Walker asked the court to require the
MDOC to respond to his petition for judicial review. The record does not contain any
certificate of service regarding the petition for judicial review.
¶12. When determining whether a prisoner had provided sufficient notice of his intent to
seek judicial review of an ARP decision, the Mississippi Supreme Court has held that
appellate courts “will take into account when a prisoner is proceeding pro se and grant some
degree of leniency.” Hesler, 315 So. 3d at 1042 (¶11). In this case, we find that by
providing notice of his intent to seek judicial review to the Attorney General’s Office, which
5 represents the Parole Board in such matters, Walker made “a good-faith effort” to provide
notice to the Parole Board pursuant to Rule 5.04. Id.; see also Smith, 293 So. 3d at 242-43
(¶¶21-22). Walker’s “good-faith effort” of providing notice to the Parole Board was
sufficient in this case to confer to the circuit court personal jurisdiction over the Parole
Board.
II. Walker’s In Forma Pauperis (IFP) Status
¶13. Mississippi Code Annotated section 47-5-76 (Rev. 2015) governs the payment of
costs by the MDOC for an inmate’s filing of a civil action. Subsection (1) of the statute
states, in pertinent part, as follows:
An inmate shall not bring a civil action or appeal a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
Miss. Code Ann. § 47-5-76(1) (emphasis added).
¶14. As this Court has previously recognized, Walker long ago accumulated far more than
three strikes under this statute. Walker v. Bailey, 270 So. 3d 195, 199 (¶¶8-9) (Miss. Ct. App.
2018); see also, e.g., Walker v. Miss. Parole Bd., 333 F. App’x 843, 845 (5th Cir. 2009)
(dismissing Walker’s appeal pursuant to the federal three-strikes rule and barring him from
proceeding IFP in civil actions or appeals); Walker v. Turner, No. 4:18-CV-48-GHD-DAS,
2019 WL 1460888, at *1 (N.D. Miss. Apr. 2, 2019) (dismissing Walker’s complaint as
“vexatious,” “detailing Mr. Walker’s extensive history of frivolous, meritless, vexatious
litigation,” and requiring Walker to submit documentary evidence in support of any
6 complaint alleging an exception to the federal three-strikes rule), appeal dismissed, No.
19-60281, 2019 WL 5454748 (5th Cir. June 12, 2019) (failure to timely pay docketing fee);
Walker v. Hunt, No. 1:19-CV-246-LG-RPM, 2022 WL 16921823, at *4 (S.D. Miss. Nov. 14,
2022) (prohibiting Walker from filing any additional complaints without first obtaining leave
to do so and “find[ing] that this sanction is justified by the sheer volume of abusive,
recreational, fraudulent, or frivolous litigation that [Walker] has produced over his almost
two decades of incarceration”).
¶15. Nonetheless, the circuit court in this case granted Walker leave to appeal IFP, and we
allowed the appeal to proceed. In the future, neither the circuit court nor this Court should
allow Walker to proceed IFP unless he first shows that he is actually “under imminent danger
of serious physical injury.” Miss. Code Ann. § 47-5-76(1).
CONCLUSION
¶16. Because Walker failed to first seek relief through MDOC’s ARP prior to seeking
judicial review, we affirm the circuit court’s order of dismissal.4
¶17. AFFIRMED.
BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. ST. PÉ, J., NOT PARTICIPATING.
4 “In affirming the circuit court’s order, we note that nothing in our decision prohibits [Walker] from pursuing any administrative remedy or right to judicial review that remains available to him.’” Carroll, 371 So. 3d at 199 (¶7). “We [further] note that a petition for judicial review of a final ARP decision generally should be filed in the county in which the inmate is housed, not the county of his conviction.” Easterling, 283 So. 3d at 1200 n.2.