Foxx v. Pennington et al

Filing 14

MEMORANDUM OPINION. Signed by District Judge Michael P. Mills on 12/14/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
CARLOS FOXX

PLAINTIFF

v.

No. 4:16CV104-MPM-RP

R. PENNINGTON, ET AL.

DEFENDANTS

MEMORANDUM OPINION
This matter comes before the court on the pro se prisoner complaint of Carlos Foxx, 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 has brought the instant case under 42 U.S.C. § 1983, which provides a federal cause of action
against “[e]very person” who under color of state authority causes the “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. For the reasons
set forth below, the instant case will be dismissed for failure to state a claim upon which relief could
be granted.
Factual Allegations
The plaintiff alleges that: (1) his parole was improperly revoked, (2) his convictions are
invalid, (3) his release date has been improperly calculated, (4) the defendants have violated the
prohibition against double jeopardy, as he has received multiple prison Rule Violation Reports
(#01633496 and #01615561) for the same behavior, and (5) the defendants violated his right to due
process during disciplinary proceedings as to those Rule Violation Reports in 2015, which led to his
placement in segregation for a period of 13 days.
Claims Challenging Foxx’s Convictions and Sentences
Are Improper in a Suit Filed Under 42 U.S.C. § 1983

In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), the Supreme
Court clarified the relationship between actions under 42 U.S.C. § 1983 and habeas corpus
proceedings. There is no requirement of “exhaustion” of habeas corpus remedies in order to proceed
on a claim under § 1983. Rather, a § 1983 damage claim that calls into question the lawfulness of
conviction or confinement, or otherwise demonstrates the invalidity of the conviction or confinement,
is not cognizable under § 1983 until such time as the plaintiff is able to
prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 114 S. Ct. at 2372 (emphasis added); see also Boyd v. Biggers, 31 F.3d 279, 283
(5th Cir. 1994). Only if the court finds that the plaintiff’s § 1983 suit, even if successful, “will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,” should the §
1983 action be allowed to proceed. See Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995).
Mr. Foxx’s claims regarding parole revocation, the validity of his convictions, and the
calculation of his release date would necessarily draw into question the validity of his convictions or
sentences. Therefore, the plaintiff must “demonstrate that his convictions or sentences have already
been invalidated,” Heck, 114 S. Ct. at 2372, in order for the § 1983 cause of action to accrue. Mr.
Foxx has made no such showing; as such, these allegations will be dismissed for failure to state a
claim upon which relief could be granted. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Double Jeopardy Clause Does Not Apply to Prison Disciplinary Proceedings
Mr. Foxx also argues that he was punished twice through the prison disciplinary process in
violation of the prohibition of placing someone twice in jeopardy for the same offense. First, as
discussed above, to the extent that Mr. Foxx intends this to be a claim for habeas corpus relief, such
relief is barred in a § 1983 action under the holding of Heck, supra. In addition, prison disciplinary
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proceedings cannot form the basis for a double jeopardy claim. The Double Jeopardy Clause,
contained in the Fifth Amendment to the Constitution, states that no person shall “be subject for
the same offense twice to be put in jeopardy of life or limb.” U.S. CONST. amend. V. This
clause protects against a second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple punishments for the same
offense. United States v. Usery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).
Prison disciplinary proceedings do not constitute criminal prosecutions. See Wolff v. McDonnell,
418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974). Because prison disciplinary
proceedings are not criminal prosecutions, they do not implicate the protections found in the
Double Jeopardy Clause. See Turner v. Johnson, 46 F.Supp.2d 655, 667-68 (S.D.Tex.1999); see
also Fogle v. Pierson, 435 F.3d 1252, 1261-62 (10th Cir.2006) (“‘[I]t is well established that
prison disciplinary sanctions' ... ‘do not implicate’ double jeopardy protections”) (quotation
omitted); United States v. Galan, 82 F.3d 639, 640 (5th Cir.1996) (“prison disciplinary
proceedings do not bar future criminal prosecutions” for purposes of the Double Jeopardy
Clause) (citations omitted). As prison disciplinary proceedings do not implicate double
jeopardy, these allegations fail to state a constitutional claim.
Due Process in the Prison Context
Mr. Foxx alleges that the defendants did not afford him due process in the handling of two
prison Rule Violation Reports. Under the ruling in Sandin v. Conner, 515 U.S. 472 (1995), the
plaintiff has not set forth a valid claim for violation of the Due Process Clause or any other
constitutional protection. Though
[s]tates may under certain circumstances create liberty interests which are protected by
the Due Process Clause, . . . 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
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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 Sandin, the discipline administered the prisoner was
confinement in isolation. The court found that this discipline fell “within the expected parameters of
the sentence imposed by a court of law,” and “did not present the type of atypical, significant
deprivation in which a State might conceivably create a liberty interest.” Id. at 2301 and 2300.
Therefore, neither the Due Process Clause itself nor State law or regulations gave rise to a liberty
interest providing the constitutional procedural protections afforded prisoners:
(1) Advanced written notice of the claimed violation;
(2) A written statement of the factfinders as to the evidence relied upon and the reasons for the
disciplinary action taken;
(3) The ability to call witnesses (which can be limited at the discretion of prison officials for
security and other reasons);
(4) The ability to present documentary evidence.
Wolff v. McDonnell, 418 U.S. 539, 563-567 (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).
In the present case, the plaintiff’s punishment was placement in isolation for 13 days. Such
punishment clearly falls “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. As such, the plaintiff’s allegations regarding violation of his
right to due process arising out of Rule Violation Reports are without merit, and they will be
dismissed for failure to state a claim upon which relief could be granted.
Conclusion
For the reasons set forth above, none of the plaintiff’s allegations state a claim for relief under
42 U.S.C. § 1983, and the instant case will be dismissed for failure to state a claim upon which relief
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could be granted, counting as a “strike” under 28 U.S.C. § 1915(g). The present dismissal constitutes
Mr. Foxx’s third “strike” under the Prison Litigation Reform Act, as he has accumulated two previous
“strikes”: Foxx v. Taylor, 3:13CV74-CWR-FKB (S.D. Miss.) (order of August 2, 2013, dismissing
case as frivolous), Foxx v. Pennington, 4:16CV102-MPM-DAS (N.D. Miss.) (order of March 30,
2017, dismissing case as frivolous).
Under 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or
proceeding under this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
As Mr. Foxx has accumulated three “strikes,” he may no longer proceed as a pauper in federal court
(including an appeal of the present case) unless he is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). A final judgment consistent with this memorandum opinion will issue
today.
SO ORDERED, this, the 14th day of December, 2017.

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

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