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                  SUPREME COURT OF ARKANSAS
                                         No.   CV-13-958

MORRIS B. KOONTZ                                    Opinion Delivered May   15, 2014
                                APPELLANT
                                                    PRO SE MOTION FOR EXTENSION
V.                                                  OF TIME
                                                    [JEFFERSON COUNTY CIRCUIT
                                                    COURT, NO. 35CV-13-4]
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION                            HONORABLE JODI RAINES DENNIS,
                       APPELLEE                     JUDGE

                                                    APPEAL DISMISSED; MOTION
                                                    MOOT.


                                        PER CURIAM


       In 2013, appellant Morris B. Koontz filed a pro se “Petition for Judicial Review of

Administrative Action” in the county where he was incarcerated in the Arkansas Department

of Correction (“ADC”). In the petition, appellant sought review of ADC actions and

procedures that he contended violated a number of his constitutional rights. Properly

considering the petition pursuant to Arkansas Code Annotated section 25-15-212 (Repl. 2002)

of the Administrative Procedure Act (“APA”), the circuit court dismissed the petition with

prejudice based, in part, on its finding that the petition was untimely. In a motion for

reconsideration, appellant challenged the circuit court’s dismissal of the petition as untimely.

Denying the motion for reconsideration, the trial court found that appellant failed to raise any

authority to support his claim that the delay in filing his petition should be excused. Appellant

has lodged a pro se appeal here from the order denying his motion for reconsideration.

       Now before us is appellant’s pro se motion for extension of time to file his brief-in-chief.
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Because it is clear that appellant was untimely in seeking judicial review under the APA, the

appeal is dismissed, and his motion is moot. See Lee v. Ark. Dep’t of Corr. Records Dep’t, 2012 Ark.

342 (per curiam).

       The petition arose from a major disciplinary charge filed against appellant while he was

incarcerated. Pending the investigation of the charge, appellant was transferred to the Varner

Supermax Unit and assigned to administrative segregation on June 13, 2012. The charge alleged

that, on June 9, 2012, appellant violated disciplinary rules 03-1 (out of place of assignment), 04-7

(rape or forced sexual assault with staff or person of another inmate), 05-7 (assault—any willful

attempt or threat(s) to inflict injury upon staff), 12-1 (failure to obey verbal and/or written

orders of staff), and 17-1 (any act or acts defined as felonies or misdemeanors by the State of

Arkansas). A disciplinary hearing was held on June 22, 2012, and the hearing officer found that

appellant had committed the violations. As punishment for the violations, appellant received

thirty days of punitive isolation, forfeiture of 792 days of good-time credit, and reduction to

Class IV status. Appellant appealed the decision to the unit warden, who affirmed the decision

of the hearing officer. Appellant then appealed to the disciplinary hearing administrator, who

also affirmed the finding. Finally, appellant appealed to the Director of the ADC, who affirmed

the ruling on August 31, 2012. An ADC “Administrative Segregation Review” form, dated

September 21, 2012, indicates that the Unit Classification Committee had found that appellant

was a “PREA” inmate.1 The Review form also shows that the warden approved the

       1
         In 2005, the ADC enacted a policy that was based on the federal Prison Rape
Elimination Act of 2003, which is codified as 42 U.S.C. §§ 15601–15609 (Supp. III 2000). Linell
v. Norris, 2009 Ark. 303, 320 S.W.3d 642 (per curiam). The ADC Prison Rape Elimination Act
(“PREA”) supported a zero-tolerance standard regarding incidents of rape in ADC facilities.

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determination of the Committee that appellant would remain in administrative segregation based

on his status as a sexual predator.

       In his petition for judicial review, appellant argued that, pursuant to the disciplinary

proceedings instituted against him, the ADC violated a number of his constitutional rights, as

well as its own policies, and improperly classified him as an inmate subject to the PREA. He

also claimed that the PREA is not being properly implemented by the ADC. Appellant sought

expungement of his disciplinary history, a declaration that his “disciplinaries” were invalid,

removal of his PREA status, restoration of his class and good-time credit, transfer to a

minimum-security prison, legal fees and damages, and reversal of all actions in his disciplinary

proceedings. Quoting Arkansas Code Annotated section 25-15-212(a), which addresses judicial

review of final agency actions, and the thirty-day requirement in Arkansas Code Annotated

section 25-15-212(b) for bringing a petition for judicial review, the circuit court denied the

motion. In his motion for reconsideration, appellant summarily stated that his petition was filed

within thirty days from receipt of the “disciplinary appeal form.” He then contended that his

petition should be considered timely because the order setting the initial partial filing fee granted

him sixty days to pay his partial filing fee and he paid the fee and filed his petition within sixty

days of the date that the trial judge signed the order setting the fee. Appellant seemed to further

contend that the untimeliness of the petition was justified based on his filing of related

grievances and the allegations of constitutional violations in the petition. The circuit court


Id. The Act established a mechanism whereby any inmate who had been found guilty of the
disciplinary charge of rape would be considered by the Unit Classification Committee as eligible
for assignment to segregated single-cell housing. Id.


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denied the motion for reconsideration.

       Under the APA, judicial review is generally not available to an “inmate under sentence

to the custody of the Department of Correction.” Ark. Code Ann. § 25-15-212(a). In Clinton

v. Bonds, 306 Ark. 554, 816 S.W.2d 169 (1991), however, this court held that the APA was

unconstitutional to the extent that it deprived inmates of review of constitutional questions.

Accordingly, when an inmate challenges a disciplinary proceeding and ADC officials’

implementation of ADC rules, the petitioner must raise a constitutional question sufficient to

raise a liberty interest merely to fall within the classification of claims subject to judicial review.

See Renfro v. Smith, 2013 Ark. 40 (per curiam); Munson v. Ark. Dep’t of Corr., 375 Ark. 549, 294

S.W.3d 409 (2009) (per curiam). Here, we need not determine whether appellant’s claims fit

within this exception to section 25-15-212(a). Even if the question were to be answered in the

affirmative, appellant would still be precluded from seeking judicial review of the ADC’s actions

pursuant to the APA because the petition was untimely. See Linell, 2009 Ark. 303, 320 S.W.3d

642.

       Under the APA, a petition for judicial review must be filed within thirty days after service

of the agency’s final decision upon the petitioner. Ark. Code Ann. § 25-15-212(b). This thirty-

day period begins to run when an inmate is served with a copy of the ADC’s decision. Lee,

2012 Ark. 342. When a petition is filed outside the thirty-day window, it is untimely, and a

petitioner is precluded from seeking relief under the APA. Id. The record supports the

conclusion that the petition, filed January 2, 2013, was filed more than thirty days after appellant

had been served with a copy of the ADC’s final decision. While appellant may not have been



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served with a copy of the final decision on the date that it was filed, the record reflects that he

was served with a copy no later than October 22, 2012. On that date, appellant signed the

petition for judicial review. Even if we accept October 22, 2012, as the date of service, the

petition was not filed until January 2, 2013, which is more than thirty days after October 22,

2012. Thus, appellant’s petition is subject to dismissal by this court unless appellant meets his

burden of rebutting the presumption that his petition was not timely filed. See Linell, 2009 Ark.

303, 320 S.W.3d 642.

        While appellant contended that his petition should be considered timely because he filed

it within sixty days of the date that the trial judge signed the order setting the initial partial filing

fee on November 8, 2012, this argument seems to be based on a misinterpretation of the

language in that order. In the order, the trial court denied appellant’s petition to proceed in

forma pauperis and required the tender of an initial partial filing fee of $4.00. The order

authorized and directed the circuit clerk to file appellant’s petition upon receipt of the initial

partial filing fee. The order also stated that, if the initial partial payment was not received within

sixty days from the date of the order, the clerk was authorized to destroy the pleadings. The

order did not, as claimed by appellant, allow him sixty days from the date that the order had

been signed to pay his partial filing fee. The record reflects that the circuit clerk’s office received

the initial partial filing fee of $4.00 on January 2, 2013. On that date, the order setting the initial

partial filing fee was entered, and the petition for judicial review was filed. As to appellant’s

apparent claim that the untimeliness of the petition was justified based on related grievances filed

with the ADC or allegations of constitutional violations in the petition, there is no authority to



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support this position.

       Because appellant’s petition for review was untimely, he is precluded from seeking relief

under the APA. See Lee, 2012 Ark. 342; Linell, 2009 Ark. 303, 320 S.W.3d 642. His motion for

extension of time to file his brief in this matter is accordingly moot.

       Appeal dismissed; motion moot.

       Morris B. Koontz, pro se appellant.

       No response.




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