SUBLETT (ANTONIO) VS. STANIFORD (JAMES)
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RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000812-MR
ANTONIO SUBLETT
v.
APPELLANT
APPEAL FROM ELLIOTT CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 07-CI-00153
JAMES STANIFORD, CAPTAIN;
ET AL.
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
VANMETER, JUDGE: Antonio Sublett appeals pro se from the dismissal of his
complaint seeking restoration of good time prison credit. For the reasons stated
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
herein, we dismiss the appeal for Sublett’s failure to name indispensible parties to
the appeal.
This matter has its origin in the delivery of an envelope containing a
United States postal money order addressed to Sublett at Little Sandy Correctional
Complex, under circumstances which raised the suspicions of the prison officials.2
After an investigation, Sublett was charged with and found guilty of “using mail to
obtain money, goods or services by fraud.” The prison adjustment committee3
assessed sixty days of disciplinary segregation and forfeiture of sixty days of good
time credit. Sublett appealed to the warden, who affirmed the decision. Sublett
then filed a declaration of rights action in the Elliott Circuit Court against Captain
James Staniford, the investigating officer, Sgt. Marlo M. Fannin, the chairman of
the adjustment committee, Warden Joseph Mako, and the Little Sandy Correctional
Complex (collectively “prison officials”), arguing that the adjustment committee’s
decision was based on insufficient evidence. The trial court dismissed the petition
on the prison officials’ motion.4 This appeal follows.
2
The facts were that the envelope, ostensibly from Sublett’s mother, misspelled his and her last
name; the envelope bore a postmark from Lexington although her address was in Louisville; and
the money order had been obtained in West Liberty. The latter town is approximately 75 miles
from Lexington and approximately 150 miles from Louisville.
3
Under Kentucky Corrections Policies and Procedures (KCPP) 15.6(I), the adjustment
committee is “a committee appointed by the Warden of an institution empowered to hear,
adjudicate and assess appropriate discipline for violations of rules or regulations.”
4
The prison officials’ Response and Motion to Dismiss is more appropriately considered a
motion for summary judgment in that the motion incorporated matters outside the pleadings.
Kentucky Rules of Civil Procedure (CR) 12.03.
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The caption of the notice of appeal names only “CAPT. JAMES
STANIFORD, et al.” as “Respondents.” The body of the Notice of Appeal
designates the “Appellee(s)” only as “Hon. Angela Dunham, esq, Counsel for
Capt. James Staniford, et al.”
As a prefatory matter, we note that our review of the record appears to
confirm that the deprivation of Sublett’s good time prison credits did not comport
to the minimal “some evidence” standard5 required by Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d
356 (1985); see also Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d
935 (1974) (due process requires a prison to provide procedural protections before
depriving an inmate of his or her protected liberty interest in good time credits).
That said, we are without jurisdiction to grant Sublett any relief
because he failed to name anyone, other than counsel or Capt. James Staniford, as a
party to the appeal in either the caption or the body of his notice of appeal. CR
73.03(1) requires a notice of appeal to “specify by name all appellants and all
5
The initial write up by Capt. Staniford about this incident includes his conclusion that the
“money order was received under false pretenses.” His supervisor’s review imposed the charge
of “using mail to obtain money, goods or services by fraud[,] Category 5-8.” KCPP 15.2(II)(C)
(effective Jun. 2, 2006). However, under KCPP 16.2 (effective Mar. 9, 2007), “[a]n inmate may
receive mail from any sender” except certain contraband prohibited by the policy, such as
pornography. Furthermore, under KCPP No. 15.7(A) (effective Nov. 15, 2006), “[a]n inmate
shall be allowed to receive funds in accordance with the following: 1. Funds received shall be in
the form of a: a) U.S. postal money order . . . made payable to the inmate and shall include the
inmate’s institutional number.” It thus appears that the receipt of money orders by inmates from
non-family members, in and of itself, does not violate prison policies and procedures. While the
record supports a finding that Sublett was not forthcoming about the source of the funds, he was
not charged with perjury, lying or receiving funds “under suspicious circumstances.”
Furthermore, if the purpose of the charged offense is to ensure that prison officials are aware of,
and not misled as to, the source of all funds received by an inmate, then certainly a procedure
could be drafted and instituted to set forth more clearly such a purpose.
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appellees” and specifically notes that “et al.” is not a “proper designation of
parties[.]” While pro se litigants are sometimes held to less stringent standards than
lawyers in drafting formal pleadings, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972), Kentucky courts still require pro se litigants to follow
the Kentucky Rules of Civil Procedure.
The failure to name an indispensable party in the notice of appeal is
more complex than a simple adding of the names; this is considered a defect in
jurisdiction resulting in the appellate court’s inability to proceed. See City of
Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). “It is well-established
that failure to name an indispensable party in the notice of appeal results in
dismissal of the appeal.” Slone v. Casey, 194 S.W.3d 336, 337 (Ky.App. 2006)
(citing City of Devondale, 795 S.W.2d 954; CR 19.02). The fact that the Kentucky
Department of Justice, which defended this appeal, has not raised this issue is not
relevant, as an appellate court may not acquire jurisdiction through waiver. Wilson
v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).
For purposes of appeal, a necessary party is one who would be a
necessary party for further proceedings in the circuit court if the judgment were
reversed. Land v. Salem Bank, 279 Ky. 449, 453, 130 S.W.2d 818, 821 (1939);
Murphy v. O’Reiley, 78 Ky. 263, 264 (1880); Hammond v. Dep’t for Human Res.,
652 S.W.2d 91 (Ky.App. 1983). Here, Staniford was merely the investigating
officer. This matter became final as to any other possible parties, such as the
warden and the chairman of the adjustment committee, when the trial court order
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was not appealed as to them. On any remand to the Elliott Circuit Court, we would
be unable to direct the trial court to take any action involving parties who were not
a part of this appeal. Our search has revealed many cases involving pro se
prisoners, and petitions for declaration of rights involving the forfeiture of good
time prison credits. The respondents have included the Department of Corrections,
e.g., McMillen v. Kentucky Dept. of Corrections, 233 S.W.3d 203 (Ky.App. 2007)
(the warden was also named a party appellee); the commissioner of the Department
of Corrections, e.g., Smith v. Rees, 2004-CA-002524-MR, 2006 WL 358265
(Ky.App., Feb. 17, 2006) (John D. Rees was the commissioner);6 wardens, e.g.,
Smith v. O'Dea, 939 S.W.2d 353 (Ky.App. 1997); and even the head of a prison
adjustment committee, see Mask v. Jones, No. 2006-CA-001225-MR (Ky.App.
Nov. 21, 2007) (Sgt. Eric Jones, as the chairman of the adjustment committee
which found Mask guilty, was represented by the Justice and Public Safety
Cabinet). The naming of such persons or entities as parties is proper because each
has some ostensible authority over the process of reviewing the possible forfeiture
of prison good time credits, and has the ability to take corrective action in the event
the appeal is successful. The same cannot be said of the investigating officer,
Capt. Staniford, 7 who lacks any designated authority to provide any of the
6
In Rees, we noted as a potential problem with Smith’s appeal the fact that he failed to name any
of eighteen respondents, other than Rees, as appellees, in the notice of appeal. Since Rees was
the commissioner of the Department of Corrections who had denied Smith’s grievance over the
loss of good time credits, the court assumed that the other eighteen individuals were not
indispensible parties. Rees, slip op. at 3-4.
7
Arguably, under KCPP 15.6, the proper party to any declaration of rights action is the warden
and/or the Department of Corrections, since the warden is the final arbiter at the institutional
level. KCPP 15.6(II)(F)(7). As that question is not before us, we do not decide it.
-5-
requested relief. In this case, the warden and the chairman of the adjustment
committee were parties to Sublett’s declaration of rights action, but were not
named as appellees in the notice of appeal.
ORDER
This appeal is hereby dismissed for failure to name indispensible
parties to the appeal. The Elliott Circuit Court’s order is affirmed.
ALL CONCUR.
ENTERED: November 7, 2008
/s/ Laurance B. VanMeter
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Antonio Sublett, Pro se
Sandy Hook, Kentucky
Angela T. Dunham
Frankfort, Kentucky
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