Cite as 2014 Ark. 233
SUPREME COURT OF ARKANSAS No. CV-13-1098
Opinion Delivered May 15, 2014
ROBERT MITCHEM APPELLANT PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S V. BRIEF, [JEFFERSON COUNTY CIRCUIT RAY HOBBS, DIRECTOR, ARKANSAS COURT, NO. 35CV-13-355] DEPARTMENT OF CORRECTION; M.D. REED, WARDEN, OUACHITA HONORABLE JODI RAINES DENNIS, RIVER CORRECTIONAL UNIT; JOHN JUDGE FELTS, CHAIRMAN, ARKANSAS PAROLE BOARD; ABRAHAM CARPENTER, VICE CHAIRMAN, APPEAL DISMISSED; MOTION ARKANSAS PAROLE BOARD; MOOT. CAROLYN ROBINSON, COMMISSIONER, ARKANSAS PAROLE BOARD; JOSEPH PEACOCK, COMMISSIONER, ARKANSAS PAROLE BOARD; JIMMY WALLACE, COMMISSIONER, ARKANSAS PAROLE BOARD; DUANE VANDIVER, COMMISSIONER, ARKANSAS PAROLE BOARD; RICHARD BROWN, JR., COMMISSIONER, ARKANSAS PAROLE BOARD APPELLEES
PER CURIAM
In 2013, appellant Robert Mitchem filed in the Jefferson County Circuit Court a pro se
petition for declaratory judgment against the Director of the Arkansas Department of Correction
(“ADC”), in whose custody appellant was held, a prison warden, and members of the parole
board, alleging that he had been wrongfully denied release from custody or transfer from the Cite as 2014 Ark. 233
ADC to the Arkansas Community Corrections (“ACC”). The petition was dismissed on the
appellees’ motion, and appellant lodged an appeal from the order in this court. Now before us
is appellant’s motion for extension of time to file his brief. As it is clear from the record that
appellant could not prevail on appeal, the appeal is dismissed. The motion is moot. This court
treats declaratory-judgment proceedings as applications for postconviction relief in those
instances where a prisoner seeks relief from the conditions of incarceration. Cridge v. Hobbs,
2014 Ark. 153 (per curiam); Gardner v. Hobbs, 2013 Ark. 439 (per curiam). An appeal from an
order that denied a petition for postconviction relief will not be allowed to proceed where it is
clear that the appellant could not prevail. Cridge, 2014 Ark. 153.
In 2004, appellant was found guilty by a jury of attempted rape and kidnapping and
sentenced to an aggregate term of 240 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006).
The Arkansas Parole Board required that appellant complete the Reduction of Sexual
Victimization Program (“RSVP”) before being eligible for parole or transfer to the less-
restrictive custody of the ACC. Appellant argued in the petition for declaratory judgment that
the circuit court should order the director of the ADC and the parole board to make him
immediately eligible for parole or transfer to the ACC on the ground that it was a violation of
his right to due process and other constitutional rights to be held in the ADC.
In reviewing the circuit court’s decision on a motion to dismiss under Arkansas Rule of
Civil Procedure 12(b)(6) (2013), we treat the facts alleged in the complaint as true and view them
in the light most favorable to the party who filed the complaint. See Ark. Tech Univ. v. Link, 341
2 Cite as 2014 Ark. 233
Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of the complaint on a motion to
dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings
are to be liberally construed. See id. However, our rules require fact pleading, and a complaint
must state facts, not mere conclusions, in order to entitle the pleader to relief. See id.
We find that appellant’s suit was barred by sovereign immunity under article 5, section
20, of the Arkansas Constitution. Because sovereign immunity is jurisdictional immunity from
suit, jurisdiction must be determined entirely from the pleadings. Bd. of Tr. v. Burcham, 2014 Ark.
61. Article 5, section 20, of the Arkansas Constitution provides that the State of Arkansas shall
never be made a defendant in any of her courts. Id. We have extended the doctrine of sovereign
immunity to include state agencies. Id.
When the pleadings show that the action is, in effect, one against the State, the circuit
court acquires no jurisdiction. Id. A suit against a state official in his or her official capacity is
not a suit against that person, but rather is a suit against that official’s office. Brown v. Ark. State
HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). In determining whether the doctrine of
sovereign immunity applies, the court must decide if a judgment for the plaintiff will operate to
control the action of the State or subject it to liability. Burcham, 2014 Ark. 61. If so, the suit is
one against the State and is barred by the doctrine of sovereign immunity, unless an exception
to sovereign immunity applies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, ___
S.W.3d ___.
This court has recognized three ways in which a claim of sovereign immunity may be
surmounted: when the State is the moving party seeking specific relief, when an act of the
3 Cite as 2014 Ark. 233
legislature has created a specific waiver of sovereign immunity, and when the state agency is
acting illegally or if a state-agency officer refuses to do a purely ministerial action required by
statute. Id. Additionally, a state agency may be enjoined if it can be shown that the pending
action of the agency is ultra vires or without the authority of the agency, or that the agency is
about to act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner. See
Burcham, 2014 Ark. 61. None of the exceptions are applicable to the instant case. Appellant’s
petition was clearly intended to control the actions of the director of the ADC and the parole
board members, and he made no showing that sovereign immunity should not apply to those
parties.
In addition to appellant’s cause of action being barred by sovereign immunity, appellant
failed to state a basis for declaratory judgment under Arkansas Code Annotated sections 16-111-
101 to -111 (Repl. 2006). We have held that a criminal defendant may not use a declaratory-
judgment action or a suit for an extraordinary writ for the purpose of challenging a criminal
conviction, sentence, or parole eligibility. Manning v. Norris, 2011 Ark. 439 (per curiam); see also
Johnson v. State, 340 Ark. 413, 12 S.W.3d 203 (2000). There is no constitutional right or
entitlement to parole that would invoke due-process protection. Cridge, 2014 Ark. 153; see also
Michalek v. Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1987). The determination of parole
eligibility is solely within the province of the ADC, as fixed by statute. Cridge, 2014 Ark. 153;
Aquilar v. Lester, 2011 Ark. 329 (per curiam); Thompson v. State, 2009 Ark. 235 (per curiam)
(holding that, because determining parole eligibility is the prerogative of the ADC, the trial court
would not have had authority to place conditions as to parole eligibility on the sentence
4 Cite as 2014 Ark. 233
announced); see also Abdullah v. Lockhart, 302 Ark. 506, 790 S.W.2d 440 (1990); Fain v.
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Cite as 2014 Ark. 233
SUPREME COURT OF ARKANSAS No. CV-13-1098
Opinion Delivered May 15, 2014
ROBERT MITCHEM APPELLANT PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT’S V. BRIEF, [JEFFERSON COUNTY CIRCUIT RAY HOBBS, DIRECTOR, ARKANSAS COURT, NO. 35CV-13-355] DEPARTMENT OF CORRECTION; M.D. REED, WARDEN, OUACHITA HONORABLE JODI RAINES DENNIS, RIVER CORRECTIONAL UNIT; JOHN JUDGE FELTS, CHAIRMAN, ARKANSAS PAROLE BOARD; ABRAHAM CARPENTER, VICE CHAIRMAN, APPEAL DISMISSED; MOTION ARKANSAS PAROLE BOARD; MOOT. CAROLYN ROBINSON, COMMISSIONER, ARKANSAS PAROLE BOARD; JOSEPH PEACOCK, COMMISSIONER, ARKANSAS PAROLE BOARD; JIMMY WALLACE, COMMISSIONER, ARKANSAS PAROLE BOARD; DUANE VANDIVER, COMMISSIONER, ARKANSAS PAROLE BOARD; RICHARD BROWN, JR., COMMISSIONER, ARKANSAS PAROLE BOARD APPELLEES
PER CURIAM
In 2013, appellant Robert Mitchem filed in the Jefferson County Circuit Court a pro se
petition for declaratory judgment against the Director of the Arkansas Department of Correction
(“ADC”), in whose custody appellant was held, a prison warden, and members of the parole
board, alleging that he had been wrongfully denied release from custody or transfer from the Cite as 2014 Ark. 233
ADC to the Arkansas Community Corrections (“ACC”). The petition was dismissed on the
appellees’ motion, and appellant lodged an appeal from the order in this court. Now before us
is appellant’s motion for extension of time to file his brief. As it is clear from the record that
appellant could not prevail on appeal, the appeal is dismissed. The motion is moot. This court
treats declaratory-judgment proceedings as applications for postconviction relief in those
instances where a prisoner seeks relief from the conditions of incarceration. Cridge v. Hobbs,
2014 Ark. 153 (per curiam); Gardner v. Hobbs, 2013 Ark. 439 (per curiam). An appeal from an
order that denied a petition for postconviction relief will not be allowed to proceed where it is
clear that the appellant could not prevail. Cridge, 2014 Ark. 153.
In 2004, appellant was found guilty by a jury of attempted rape and kidnapping and
sentenced to an aggregate term of 240 months’ imprisonment. The Arkansas Court of Appeals
affirmed. Mitchem v. State, 96 Ark. App. 78, 238 S.W.3d 623 (2006).
The Arkansas Parole Board required that appellant complete the Reduction of Sexual
Victimization Program (“RSVP”) before being eligible for parole or transfer to the less-
restrictive custody of the ACC. Appellant argued in the petition for declaratory judgment that
the circuit court should order the director of the ADC and the parole board to make him
immediately eligible for parole or transfer to the ACC on the ground that it was a violation of
his right to due process and other constitutional rights to be held in the ADC.
In reviewing the circuit court’s decision on a motion to dismiss under Arkansas Rule of
Civil Procedure 12(b)(6) (2013), we treat the facts alleged in the complaint as true and view them
in the light most favorable to the party who filed the complaint. See Ark. Tech Univ. v. Link, 341
2 Cite as 2014 Ark. 233
Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of the complaint on a motion to
dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings
are to be liberally construed. See id. However, our rules require fact pleading, and a complaint
must state facts, not mere conclusions, in order to entitle the pleader to relief. See id.
We find that appellant’s suit was barred by sovereign immunity under article 5, section
20, of the Arkansas Constitution. Because sovereign immunity is jurisdictional immunity from
suit, jurisdiction must be determined entirely from the pleadings. Bd. of Tr. v. Burcham, 2014 Ark.
61. Article 5, section 20, of the Arkansas Constitution provides that the State of Arkansas shall
never be made a defendant in any of her courts. Id. We have extended the doctrine of sovereign
immunity to include state agencies. Id.
When the pleadings show that the action is, in effect, one against the State, the circuit
court acquires no jurisdiction. Id. A suit against a state official in his or her official capacity is
not a suit against that person, but rather is a suit against that official’s office. Brown v. Ark. State
HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). In determining whether the doctrine of
sovereign immunity applies, the court must decide if a judgment for the plaintiff will operate to
control the action of the State or subject it to liability. Burcham, 2014 Ark. 61. If so, the suit is
one against the State and is barred by the doctrine of sovereign immunity, unless an exception
to sovereign immunity applies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, ___
S.W.3d ___.
This court has recognized three ways in which a claim of sovereign immunity may be
surmounted: when the State is the moving party seeking specific relief, when an act of the
3 Cite as 2014 Ark. 233
legislature has created a specific waiver of sovereign immunity, and when the state agency is
acting illegally or if a state-agency officer refuses to do a purely ministerial action required by
statute. Id. Additionally, a state agency may be enjoined if it can be shown that the pending
action of the agency is ultra vires or without the authority of the agency, or that the agency is
about to act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner. See
Burcham, 2014 Ark. 61. None of the exceptions are applicable to the instant case. Appellant’s
petition was clearly intended to control the actions of the director of the ADC and the parole
board members, and he made no showing that sovereign immunity should not apply to those
parties.
In addition to appellant’s cause of action being barred by sovereign immunity, appellant
failed to state a basis for declaratory judgment under Arkansas Code Annotated sections 16-111-
101 to -111 (Repl. 2006). We have held that a criminal defendant may not use a declaratory-
judgment action or a suit for an extraordinary writ for the purpose of challenging a criminal
conviction, sentence, or parole eligibility. Manning v. Norris, 2011 Ark. 439 (per curiam); see also
Johnson v. State, 340 Ark. 413, 12 S.W.3d 203 (2000). There is no constitutional right or
entitlement to parole that would invoke due-process protection. Cridge, 2014 Ark. 153; see also
Michalek v. Lockhart, 292 Ark. 301, 730 S.W.2d 210 (1987). The determination of parole
eligibility is solely within the province of the ADC, as fixed by statute. Cridge, 2014 Ark. 153;
Aquilar v. Lester, 2011 Ark. 329 (per curiam); Thompson v. State, 2009 Ark. 235 (per curiam)
(holding that, because determining parole eligibility is the prerogative of the ADC, the trial court
would not have had authority to place conditions as to parole eligibility on the sentence
4 Cite as 2014 Ark. 233
announced); see also Abdullah v. Lockhart, 302 Ark. 506, 790 S.W.2d 440 (1990); Fain v. State, 286
Ark. 35, 688 S.W.2d 940 (1985).
Appellant’s petition also failed to satisfy the prerequisites for a declaratory-judgment
action. When reviewing a circuit court’s order granting a motion to dismiss, we treat the facts
alleged in the complaint as true and view them in the light most favorable to the plaintiff. See
Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005). “In viewing the facts in the light
most favorable to the plaintiff, the facts should be liberally construed in the plaintiff's favor.
Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order
to entitle the pleader to relief.” Id. at 441, 206 S.W.3d at 840 (citations omitted). Our standard
of review for the granting of a motion to dismiss is whether the circuit court abused its
discretion. Doe v. Weiss, 2010 Ark. 150. There was no abuse of discretion in the instant matter.
The purpose of the declaratory-judgment statutory scheme is to settle and to afford
relief from uncertainty and insecurity with respect to rights, status, and other legal relations.
McCutchen v. City of Ft. Smith, 2012 Ark. 452, ___ S.W.3d ___. This court has held that there are
four requisite conditions before declaratory relief may be granted: (1) there must exist a
justiciable controversy; (2) the controversy must be between persons whose interests are adverse;
(3) the party seeking relief must have a legal interest in the controversy; (4) the issue involved
in the controversy must be ripe for judicial determination. Ark. Dep’t of Human Servs. v. Ross-
Lawhon, 290 Ark. 578, 721 S.W.2d 658 (1986). Here, appellant had no justiciable claim against
the Director of the ADC or the parole board. The legal rights as between appellant and the
ADC have already been established in that appellant was an inmate subject to the rules and
5 Cite as 2014 Ark. 233
regulations promulgated by the ADC. See McKinnon v. Norris, 366 Ark. 404, 231 S.W.3d 725
(2006).
Appeal dismissed; motion moot.
Robert Mitchem, pro se appellant.
No response.