Smith v. Jones et al (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS that this cause be dismissed as frivolous within the meaning of 28 USC 1915(e)(2)(B)(ii); Objections to R&R due by 5/15/2006. Signed by Judge Vanzetta P. McPherson on 5/2/06. (djy, )

Smith v. Jones et al (INMATE1)

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Case 3:06-cv-00385-WKW-VPM

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A ST E R N DIVISION J O E Y LYNN SMITH, Plaintiff, ) ) ) ) ) C IV IL ACTION NO. 3:06-CV-385-WKW ) ) ) )

v.
J A Y JONES, et al., Defendants.

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE
T h e plaintiff, JOEY LYNN SMITH ["Smith"], has filed a civil action pursuant to 42 U .S .C . § 1983, contesting his continued confinement in the Lee County Jail, and requesting (1 ) a transfer to a state prison facility "to complete SAP [Substance Abuse Program]", and ( 2 ) repair of the jail's sprinklers. T h e plaintiff has not stated a cause of action against the defendants; thus, the claims p rese n ted in this case lack an arguable basis and are therefore due to be dismissed before s e rv ic e upon application of 28 U.S.C. §1915(e)(2)(B)(ii). Neitzke v. Williams, 490 U.S. 319 (19 8 9 ).

I.
A.

DISCUSSION

T ra n sfe r to State Prison Facility S m ith alleges that he was sentenced over 30 days ago, and that his continued

c o n fin e m e n t in the Lee County Jail compromises or prevents his enrollment in a substance ab u se program which was ordered by the sentencing judge. Essentially, he asks this court to order his transfer to a state prison facility for the aforementioned reason.

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U n d e r well-settled law, a convicted prisoner has no constitutionally protected right to confinement in a particular prison nor is any such right created by state law. See M e a c h u m v. Fano, 427 U.S. 215, 224 (1976);see also Montanye v. Haymes, 427 U.S. 236 (1 9 7 6 ); Francis v. Fox, 838 F.2d 1147 (11th Cir. 1988). In determining whether the plaintiff h a s a state created liberty interest, this court should make inquiry "into laws, regulations and p r a c tic e s of the State of Alabama . . . " Whitehorn v. Harrelson, 758 F.2d 1416, 1425 (11th C ir. 1985). State regulations create a cognizable liberty interest when they "repeated[ly] use . . . explicitly mandatory language in connection with requiring specific substantive predicates." H e w itt v. Helms, 459 U.S. 460, 472 (1983). Upon review of the applicable state regulations, th e court discerns that these regulations do not create a liberty interest in confinement at a p a rtic u la r institution within the states prison system. Thus, it is clear that the defendant has n o t deprived the plaintiff of any right, privilege or immunity secured by the Constitution or la w s of the United States nor has he infringed on any interest created by state law. "The decision where to house inmates is at the core of prison administrators' e x p e rtis e ." McKune v. Lile, 536 U.S. 24, 28 (2002), citing Meachum v. Fano, 427 U.S. 215, 2 2 5 (1976). In the absence of a constitutional deprivation inherent in Smith's current

c o n fin e m e n t, this court will not interfere.

B.

T h e Sprinklers S m ith alleges that the "cell fire sprinklers are broken, and painted over". As his basis

f o r that contention, he does not allege that, in response to a previous fire or other stimulus, the sprinklers failed to operate properly. Nor does he contend that he - or anyone else 2

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h as been injured or damaged as a result of the alleged disrepair. A plaintiff must assert legally cognizable injury in fact, whether real or threatened, b e fo re federal courts have jurisdiction. Schlesinger v. Reservists Committee to Stop the W a r , 418 U.S. 208, 218-19 (1974). Standing involves two aspects. The first is the minimum "ca se or controversy" requirement of Article III. That requirement mandates that the plaintiff h im s e lf or herself suffer actual or threatened injury, resulting from the action challenged, th a t is likely to be redressable in a judicial action. Warth v. Seldin, 422 U.S. 490, 499 (1 9 7 5 ). Indeed, the Supreme Court has held that Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute. See, e. g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212 (1972) (WHITE, J., concurring); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6 (1968)." Linda R. S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973). But such statutes do not purport to bestow the right to sue in the absence of any indication that invasion of the statutory right has occurred or is likely to occur. Title 42 U. S. C. § 1 9 8 3 , in particular, provides for liability to the "party injured" in an action at law, suit in equity, or other proper proceeding for re d re ss . Perforce, the constitutional requirement of an actual c a s e or controversy remains. O'Shea v. Littleton, 414 U.S. 488, 495 (U.S. 1974). In the instant case, there are several reasons why Smith's complaint about the s p rin k le rs arguably does not create a case or controversy. 1. F irs t, Smith complains - at most - about "cell fire sprinklers" in his cell. He d id not identify any other sprinklers that were allegedly "broken", nor did he c o n te n d that the sprinkler system was in disrepair. His allegation that the sp rin k ler s in his cell are broken does not arise from their failure to operate d u rin g a fire. Rather, he relies upon his physical observation alone to conclude 3

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th a t they "will not activate if need[ed] in [the] event of a fire". 2. S e c o n d , at the very least, in order for Smith to be injured because of an im p a ire d sprinkler, (a) there would have to be a fire in the jail or in his cell, (b) h e would have to be in his cell, and (c) the operation of the sprinkler would h a v e to be the sole or chief means of detection of the fire by jail officials. 3. T h ird , by his own admission, Smith's transfer to a state prison facility is p ro b a b ly imminent, leaving behind the sprinklers, impaired or not. " [T ]h e question becomes whether any perceived threat to [Smith] is sufficiently real and im m e d iate to show an existing controversy simply because [he] anticipate[s that jail officials a re ] violating" the law or committing constitutional infractions. O'Shea v. Littleton, 414 U .S . 488, 496-498 (U.S. 1974). However, contemplating, as Smith would have the court do, th a t there will be a fire, that Smith will be housed at the jail at the time, that he will be in h a rm 's way, and that the operation of the sprinklers will somehow be the guarantor of his s a fe ty and well-being "takes us into the area of speculation and conjecture." Id. The alleged singular impairment described by Smith is far to general and the e v e n tu a lity leading to injury far too speculative to rise to the level of a constitutional v io la tio n . As the Court found in Golden v. Zwickler, 394 U.S. 103, 109-110 (1969), there m u s t be "sufficient immediacy and reality" to Smith's allegations of future injury to invoke th e court's jurisdiction. Abstract injury is not enough. It must be alleged that the p la in tiff "has sustained or is immediately in danger of sustaining s o m e direct injury" as the result of the challenged statute or o ffic ia l conduct. Massachusetts v. Mellon, 262 U.S. 447, 488 (1 9 2 3 ). The injury or threat of injury must be both "real and im m e d i a te ," not "conjectural" or "hypothetical." Golden v. Z w ic k le r, 394 U.S. 103, 109-110 (1969); Maryland Casualty Co. 4

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v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89-91 (1947). O 'S h e a v. Littleton, at 494.

II. CONCLUSION
A c c o r d in g ly , it is the RECOMMENDATION of the Magistrate Judge that this cause b e dismissed as frivolous within the meaning of 28 U.S.C. §1915(e)(2)(B)(ii). It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e fo re 15 May 2006. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be c o n sid e re d . Failure to file written objections to the Magistrate Judge's proposed findings and re c o m m e n d a tio n s shall bar a party from a de novo determination by the District Court of is s u e s covered in the Recommendation and shall bar the party from attacking on appeal fa c tu a l findings accepted or adopted by the District Court except upon grounds of plain error o r manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11 th Cir. 1981, en banc). D o n e this 2nd day of May, 2006.

/s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE

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