Hodder v. Lee et al

Filing 7

MEMORANDUM OPINION AND ORDER re 6 Final Judgment. Signed by Glen H. Davidson on 11/25/13. (jtm)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

GREENVILLE DIVISION

PLAINTIFF

JIM ELTON HODDER,

CIVIL ACTION NO.: 4:13cv232-GHD-JMV

v.

DEFENDANTS

ERNEST LEE, et al.,

MEMORANDUM OPINION AND ORDER

This matter comes before the Court, sua sponte, for consideration of dismissal. Plaintiff
Jim Elton Hodder, a Mississippi inmate housed at the Mississippi State Penitentiary, has filed a
civil rights suit pursuant to 42 U.S.C. § 1983 against Mississippi Department of Corrections
("MDOC") Superintendent Ernest Lee, Warden Faye Noel, Lieutenant Carolyn Willis, and
Lieutenant Carolyn Walker. Having fully considered Plaintiffs allegations and the applicable
law, the Court finds that the instant complaint should be dismissed for the foHowing reasons.
Screening Standards

Because Plaintiff has been permitted to proceed in forma pauperis in this action, his
complaint is subject to sua sponte dismissal under the Prison Litigation Reform Act ("PLRA").
See 28 § U.S.c. 1915(e)(2); see also 28 U.S.C. § 1915A (subjecting prisoner complaint to
preliminary screening regardless of in forma pauperis status). Pursuant to the PLRA, the Court
is obligated to evaluate the complaint and dismiss it if it is "frivolous or malicious," if it "fails to
state a claim upon which relief may be granted," or if it "seeks monetary relief against a
defendant who is immune from such relief." § 1915(e)(2). A claim is frivolous if it "lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A

complaint fails to state a claim upon which relief may be granted if relief could not be granted to
the plaintiff "under any set of facts that could be proven consistent with the allegations" in the
complaint. Bradley v. Puckett, 157 F .3d 1022, 1025 (5 th Cir. 1998) (citation omitted); see also

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (holding that complaint fails to state a
claim only where it does not plead "enough facts to state a claim to relief that is plausible on its
face").

Discussion
Plaintiff's grievances in this lawsuit revolve around a Rule Violation Report ("RVR")
issued against him on July 19, 2013, for possession of major contraband. He maintains that
Defendants failed to follow institutional policy and procedure in issuing the RVR and in holding
a disciplinary hearing to resolve the RVR. First, he argues that the RVR was prepared in cursive
handwriting, which is contrary to MDOC policy that requires the RVR to be printed. Second, he
maintains that he was not brought to his disciplinary hearing until July 30, 2013, even though
MDOC policy requires disciplinary hearings to be held with seven working days of the alleged
violation.
Based on these alleged infirmities, Plaintiff asks the Court to remove the RVR from his
file, order an investigation into and a restructuring of the disciplinary department, and award him
costs and fees in this action. Accepting Plaintiff's allegations as true, the Court nonetheless
determines that the instant complaint must be dismissed, as it fails to raise a constitutional claim.
In order to state a claim under § 1983, Plaintiff must allege that he was deprived of a right
under the Constitution or the laws of the United States by a person acting under the color of state
law. West v. Atkins, 487 U.S. 42,48 (1988). Giving Plaintiff's claim liberal construction, it

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appears he is asserting that he was denied due process by Defendants' failure to follow
institutional policy and procedure. However, to invoke the protections of the Due Process
Clause, a protected liberty interest must be at issue. A prisoner's constitutionally protected
liberty interest is "limited to freedom from restraint which ... imposes atypical and significant
hardships on the inmate in relation to the ordinary incidents in prison life." Sandin v. Conner,
515 U.S. 472, 484 (1995). MDOC's failure to follow institutional policy and procedure in
drafting an RVR does not implicate constitutional due process concerns. See Myers v.
Klevenhagen, 97 F.3d 91, 94 (5 th Cir. 1996) (holding that "a prison official's failure to follow the

prison's own policies, procedures or regulations does not constitute a violation of due process, if
constitutional minima are nevertheless met"); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5 th Cir.
1986) ("A violation of prison regulations, without more, does not give rise to a federal
constitutional violation."). Similarly, the requirement that disciplinary hearings be held within
seven days is a prison regulation and is not enforceable in a § 1983 suit. See, e.g., Harris v.
Dretke, No. 2:04cv00008, 2006 WL 1007609 (N.D. Tex. April 18, 2006). Accordingly, Plaintiff

has failed to demonstrate that Defendants' actions violated his constitutional rights, and his
complaint must be dismissed. See Hoye v. Nelson, 4:07cv44-M-B, 2007 WL 1321964 at *1
(N.D. Miss. May 3, 2007) (citation omitted).
Conclusion

Plaintiff s allegations fail to assert a cognizable constitutional violation, and this action is
DISMISSED WITH PREJUDICE for his failure to state a claim upon which relief may be

granted. 28 U.S.C. § 1915(e)(2)(B)(ii). This dismissal counts as a "strike" under 28 U.S.C. §
1915(g). Plaintiff is cautioned that once he accumulates three strikes, he may not proceed in
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forma pauperis in any civil action or appeal filed while incarcerated unless he is under imminent

danger of serious physical injury. 28 U.S.c. § 1915(g). A final judgment in accordance with this
opinion will be entered today.
SO ORDERED this

(f)..

"'r-

theJ~day of November, 2013.

~£f/SJ~

SENIOR U.S. DISTRICT JUDGE

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