Holmes v. Shelly et al
Filing
30
MEMORANDUM OPINION re 29 Final Judgment. Signed by District Judge Sharion Aycock on 4/14/14. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MICHAEL HOLMES
PLAINTIFF
v.
No. 4:12CV56-SA-JMV
BEVERLY SHELLY
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Michael Holmes, 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
defendants have filed a motion for summary judgment. The Holmes has not responded to the motion,
and the deadline for response has expired. For the reasons set forth below, the motion by the
defendants for summary judgment will be granted and the case dismissed.
Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c). “The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden.” Beck v. Texas State Bd. of Dental Examiners, 204 F.3d 629, 633 (5th Cir. 2000) (citing
Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied, 484 U.S. 1066 (1988)). After a proper
motion for summary judgment is made, the burden shifts to the non-movant to set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Beck, 204 F.3d at 633; Allen v. Rapides Parish School
Bd., 204 F.3d 619, 621 (5th Cir. 2000); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458
(5th Cir. 1998). Substantive law determines what is material. Anderson, 477 U.S. at 249. “Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not
be counted.” Id., at 248. If the non-movant sets forth specific facts in support of allegations essential
to his claim, a genuine issue is presented. Celotex, 477 U.S. at 327. “Where the record, taken as a
whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538
(1986); Federal Savings and Loan, Inc. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are
reviewed drawing all reasonable inferences in favor of the non-moving party. Allen, 204 F.3d at 621;
PYCA Industries, Inc. v. Harrison County Waste Water Management Dist., 177 F.3d 351, 161 (5th Cir.
1999); Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). However,
this is so only when there is “an actual controversy, that is, when both parties have submitted evidence
of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); see Edwards v.
Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). In the absence of proof, the court does not
“assume that the nonmoving party could or would prove the necessary facts.” Little, 37 F.3d at 1075
(emphasis omitted).
Allegations
Michael D. Holmes would like to marry former Mississippi Department of Corrections
(“MDOC”) employee Virna Veal, but MDOC will not permit her to visit him because she is not a
member of his immediate family. Though Holmes has entered into a romantic relationship with Ms.
Veal, he does not know whether Veal will agree to marry him. He submitted a request for permission
to get married, but it was denied. Veal has not worked for the Mississippi Department of Corrections
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since 2010. Holmes knew Veal before he was incarcerated at a time when she quit her job to care for
a sick child. They started talking again during Veal’s employment with MDOC. After Veal’s
departure in 2010, Holmes sent her gifts and money. Veal’s request to visit Holmes was initially
approved, but Beverly Shelley turned her away as a visitor on May 13, 2012, without explanation, and
before she was permitted to leave, she was searched by dogs with the K9 Unit and interviewed by
Corrections Investigative Division. Prison policy prohibits fraternization between current and former
MDOC employees, including prison visits with an inmate. MDOC has now completely barred Veal
from visiting Holmes.
Though Holmes believes that defendant Beverly Shelly stopped the visit for personal reasons,
he testified at the Spears hearing that he does not know what those reasons might be. He believes that
defendants Shelly, Robinson, and Flagg worked together to reduce him for three months from “B”
custody status to AC@ custody in retaliation for his challenge regarding the visitation. Again, however,
Holmes has only his personal belief that his reduction in custody arose out of retaliation, and he
concedes that he accrued several Rule Violation Reports prior to his custody downgrade. His
suspicions arose solely because his reduction in custody occurred three days after he filed his
grievance regarding the denial of Veal’s visitation.
No Evidence of Retaliation
Prison officials may not retaliate against prisoners for exercising their constitutional rights.
Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). On the other hand, courts must view such claims
with skepticism to keep from getting bogged down in every act of discipline prison officials impose.
Id. The elements of a claim under a retaliation theory are the plaintiff’s invocation of “a specific
constitutional right,” the defendant’s intent to retaliate against the plaintiff for his or her exercise of
that right, a retaliatory adverse act, and causation, i.e., “but for the retaliatory motive the complained
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of incident . . . would not have occurred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995)
(citations omitted ), cert. denied, 516 U.S. 1084, 116 S. Ct. 800, 133 L. Ed. 2d 747 (1996). A
prisoner seeking to establish a retaliation claim must also show that the prison official's conduct was
sufficiently adverse so that it would be capable of deterring a person of ordinary firmness from
exercising his constitutional rights in the future. Winding v. Grimes, 4:08CV99-FKB, 2010 WL
706515 at 3 (S.D. Miss. Feb. 22, 2010); citing Morris v. Powell, 449 F.3d 682, 684–85 (5th Cir.2006)
at 685. A single incident involving a minor sanction is insufficient to prove retaliation. Davis v.
Kelly, 2:10CV271-KS-MTP (citing Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999),
2:10CV271-KS-MTP, 2012 WL 3544865 Id.). Similarly, inconsequential (de minimis) acts by prison
officials do not give rise to an actionable retaliation claim. See Morris at 685.
In this case, Holmes must prove that he engaged in constitutionally protected activity (seeking
redress for grievances), faced significant adverse consequences (denial of visitation and temporary
reduction in custody status), and that such action was taken “in an effort to chill [his] access to the
courts or to punish [him]for having brought suit.” Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th
Cir.), cert. denied, 513 U.S. 926, 115 S. Ct. 312, 130 L. Ed. 2d 275 (1994); see also Serio v. Members
of Louisiana State Board of Pardons, 821 F.2d 1112, 1114 (5th Cir.1987). The showing in such cases
must be more than the prisoner’s “personal belief that he is the victim of retaliation.” Woods v.
Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Holmes’ claim fails because, as he conceded at the Spears hearing, he has only suspicion that the
defendants acted out of retaliation. He knows of no reason why any of the defendants might harbor a
personal grudge against him or Ms. Veal. As such, Holmes’ claim of retaliation must be dismissed.
Denial of Visitation
Holmes’ allegations regarding denial of Veal’s requests to visit him must also be dismissed.
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A prison policy or practice will not be found unconstitutional as long as it is reasonably related to a
legitimate penological objective of the facility, Hay v. Waldron, 834 F.2d 481, 487-87 (5th Cir. 1987).
In this case, the rule prohibiting fraternization between current and former staff serves the legitimate
penological interest of maintaining the safe and secure operation of the institution. Prison staff
develop detailed knowledge regarding prison security procedures, a fact putting them in the best
position for smuggling contraband or illicit communications into and out of the facility. For this
reason, the restriction on visitation is permitted under the law, and this claim will be dismissed.
The Right to Marry
In his prayer for relief, Holmes states, “I am requesting my visitation with Ms. Veal to be
reinstated and married if she wants to marry me.” (emphasis added). Prisoners have the right to
marry, though the right can be limited to some degree due to the nature of incarceration. Turner v.
Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), Keeney v. Heath, 57 F.3d 579, 68 Fair
Empl. Prac. Cas. (BNA) 80, 10 I.E.R. Cas. (BNA) 1185 (7th Cir. 1995). As Holmes concedes in his
complaint, however, he and Veal have not decided whether they wish to marry. As such, the issue is
not ripe for judicial review, and the claim will be dismissed without prejudice.
Conclusion
In sum, the plaintiff’s claims regarding retaliation and denial of visitation will be dismissed
with prejudice for failure to state a claim upon which relief could be granted. In addition, the
plaintiff’s claim regarding denial of the right to marry will be dismissed without prejudice because it is
not ripe for review. The motion by the defendants for summary judgment will be granted, and the
case will be dismissed.
SO ORDERED, this, the 14th day of April, 2014.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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