Herron v. Outlaw et al

Filing 7

MEMORANDUM OPINION re 6 Judgment. Signed by Michael P. Mills on 5/22/13. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BOBBY HERRON

PLAINTIFF

v.

No. 3:13CV99-M-V

WARDEN TIMOTHY OUTLAW, ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Bobby Herron,
who challenges the conditions of his confinement under 42 U.S.C. § 1983. For the purposes of
the Prison Litigation Reform Act, the court notes that the plaintiff was incarcerated when he filed
this suit. The plaintiff claims that he was found guilty of several rule violations and punished by
loss of 135 days of privileges, a recommendation for custody review, and a reduction in custody
status. For the reasons set forth below, the instant case shall be dismissed for failure to state a
claim upon which relief could be granted.
Factual Allegations
On October 31, 2012, Bobby Herron received three citations for violation of prison rules:
(1) inciting a riot, (2) refusing to obey an order by staff, and (3) disrespectful, vulgar, obscene, or
threatening language. At a November 8, 2012, disciplinary hearing the hearing officer told
Herron that he had been ordered to find Herron guilty, no matter what the evidence revealed.
Herron was found guilty of all three infractions based upon the staff report of the incident, but he
was not allowed to call any witnesses. The officer providing the report was not actually present
during the time of the infractions. As a result of these findings, Herron lost 135 days of
privileges, had his custody reviewed, was reduced to “C” custody, and was moved to another
facility. He seeks a transfer to the Marshall County Correctional Facility, money damages, and

expungement of the rule violation reports from his institutional record.
Sandin
The punishment Herron faced simply does not rise to the level sufficient to warrant due
process protection under the Constitution. In view of the Supreme Court’s decision in Sandin v.
Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the plaintiff has failed to set
forth a claim which implicates the Due Process Clause or any other constitutional protection. As
the Court noted, “States may under certain circumstances create liberty interests which are
protected by the Due Process Clause [, but] these interests will be generally limited to freedom
from restraint which, while not exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id.
115 S. Ct. at 2300 (citations omitted). In the Sandin case, the discipline administered the
prisoner was confinement in isolation. Because this discipline fell “within the expected
parameters of the sentence imposed by a court of law,” id. at 2301, and “did not present the type
of atypical, significant deprivation in which a State might conceivably create a liberty interest,”
id., the Court held that neither the Due Process Clause itself nor State law or regulations afforded
a protected liberty interest that would entitle the prisoner to the procedural protections set forth
by the Court in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935 (1974). See also Malchi v.
Thaler, 211 F.3d 953, 958 (5th Cir. 2000) (holding prisoner’s thirty-day loss of commissary
privileges and cell restriction due to disciplinary action failed to give rise to due process claim).
The application of Sandin under these facts – the intentional removal of any meaningful
opportunity to be heard – is harsh. Herron was told that he would be found guilty of the rule
infraction – no matter what. The penalties exacted, however, do not rise to a level sufficient to

trigger Due Process protections under the holding in Sandin, supra. Loss of privileges, reduction
in custody status, and transfer to another facility are “within the expected parameters of the
sentence imposed by a court of law,” and do not constitute an “atypical and significant hardship .
. . in relation to the normal incidents of prison life.” Sandin, 115 S.Ct. at 2300-2301. As such,
even though it appears that the deprivation of a fair hearing was intentional, the instant case must
be dismissed for failure to state a claim upon which relief could be granted. A final judgment
consistent with this memorandum opinion will issue today.
SO ORDERED, this the 22nd day of May, 2013.

/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI