Held v. Adam et al

Filing 10

MEMORANDUM AND OPINION AND ORDER: Ordered that this civil action is dismissed with prejudice as frivolous; and that this dismissal will count as a strike in accordance with the Prison Litigation Reform Act. Signed by District Judge Louis Guirola, Jr. on 12/6/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

EDWARD FRANK HELD, IV
v.

PLAINTIFF
CAUSE NO. 1:17-cv-52-LG-RHW

SHERIFF RICKY ADAM,
WARDEN BRANDON ZERINGUE,
and CHIEF DAVID ALLEN

DEFENDANTS

MEMORANDUM OPINION AND ORDER
DISMISSING PLAINTIFF’S COMPLAINT
This matter is before the Court, sua sponte, for consideration of dismissal.
Plaintiff Edward Frank Held, IV, an inmate of the Mississippi Department of
Corrections,1 brings this pro se Complaint seeking monetary damages and
injunctive relief. Held is proceeding in forma pauperis. See Order [5]. The named
Defendants are Ricky Adam, Sheriff of Hancock County, Mississippi; Brandon
Zeringue, Warden of Hancock County Detention Center; and David Allen, Chief of
Police for the City of Waveland Police Department. The Court, having liberally
construed Held’s Complaint and Response [7] in consideration with the applicable
law, finds that this case should be dismissed.

At the time of filing this action, Held was incarcerated at the Hancock County Detention Center.
Held was subsequently moved to the Central Mississippi Correctional Facility and in his latest
Notice of Change of Address [9], Held states that he is residing at a halfway house in Jackson,
Mississippi.
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I.

Facts and Procedural History
On October 28, 2015, when Held was an inmate of the Hancock County

Detention Center, he was informed by family members that his home located in the
City of Waveland was burglarized and his vehicle was stolen. Held claims that in
November of 2015, his brother met a City of Waveland Police Officer at the
residence and informed the Officer of the burglary. Held claims the Officer stated
that “it would be taken care of” and left the residence. Compl. [1] at 5 (CM/ECF
pagination); Resp. [7] at 3.
Held claims that he made oral requests to detention officers and completed
grievance forms at the detention center requesting that a police report be filed
regarding the burglary and stolen vehicle. Held claims that his requests either
went unanswered or he was informed that inmates were not allowed to file police
reports.
However, Held also states that in July of 2016, he met with Warden Zeringue
about his desire to file a police report and Warden Zeringue set up a meeting
between Held and a Hancock County Investigator. Held states that he met with
Hancock County Investigator Allison, within two days of his meeting with Warden
Zeringue, and that during this meeting, Allison called the Waveland Police
Department and spoke to an Investigator. It appears Held left the meeting under
the impression that a Waveland Investigator would be coming to the detention
center to speak with him. Held states that Allison instructed that Held be brought

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back to Allison’s office, if “Waveland did not show up . . . to take my report.” Compl.
[1] at 7 (CM/ECF pagination).
Held complains that a Waveland Police Officer did not show up to take his
report nor was he taken back to Allison’s office. Held also states that “Waveland
P.D. Investigators have been contacted via email by Hancock County Safety
Complex Administrator Renee Lick numerous times with no response.” Resp. [7] at
3.
In response to the Court’s Order [6] directing Held to state how each
Defendant violated his constitutional rights, Held essentially restates the facts of
his original Complaint and provides some additional factual information. See Resp.
[7]. As relief, Held states that he “would like to be reimbursed for all loss” which he
estimates to be about $45,000.00, and he would “like to put an end to Hancock
County’s poetic justice.” Compl. [1] at 4.
II.

Analysis
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (as amended), applies to

prisoners proceeding in forma pauperis, and provides that “the court shall dismiss
the case at any time if the court determines that . . . (B) the action or appeal – (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.”
Since Held is proceeding in forma pauperis, his Complaint is subject to the casescreening procedures set forth in 28 U.S.C. § 1915 (e)(2).

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In order to have a viable claim under 42 U.S.C. § 1983, a plaintiff Amust
allege facts showing that a person, acting under color of state law, deprived the
plaintiff of a right, privilege or immunity secured by the United States Constitution
or the laws of the United States.@ Bryant v. Military Dep=t of the State of Miss., 597
F.3d 678, 686 (5th Cir. 2010). Section 1983 is not a source of substantive rights; it
merely provides an avenue to assert rights already in existence. Albright v. Oliver,
510 U.S. 266, 271 (1994). “The first step in any such claim is to identify the specific
constitutional right allegedly infringed.” Id. (citations omitted).
Held is claiming that alleged inadequacies with the Waveland Police
Department’s response to the burglary of his home and theft of his vehicle violated
his constitutional rights. The Court notes that a “victim of a crime has no
constitutionally protected interest in the prosecution or pursuit of a perpetrator”
and the “police’s decision to pursue a criminal investigation is a discretionary one.”
Payne v. Jefferson Parish Sherriff’s Dep’t., No. 14-225, 2014 WL 1154482, *2 (E.D.
La. 2014) (citations omitted). It is well-settled that a private citizen does “not have
a constitutional right to compel a criminal prosecution.” Lewis v. Jindal, 368 F.
App’x 613, 614 (5th Cir. 2010) (citations omitted). Therefore, the “decision to file or
not file criminal charges” does not give rise to § 1983 liability. Oliver v. Collins, 904
F.2d 278, 281 (5th Cir. 1990). Held is not entitled to relief under § 1983 for the
alleged inadequate responses to his request to file a police report or press charges
for the burglary of his home and theft of his vehicle.

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Held also claims his constitutional rights were violated when his jail
grievances were ignored, denied, or not responded to in a timely manner. Although
Held complains about the handling of his grievances, it is apparent from his
pleadings that Warden Zeringue, Investigator Allison, and Administrator Lick,
attempted to assist Held with this issue. Held admits that numerous efforts were
made on his behalf to contact the Waveland Police Department about this issue. In
any event, Held does not have a federally protected liberty interest in having a
prison grievance investigated or resolved to his satisfaction. Geiger v. Jowers, 404
F.3d 371, 373-74 (5th Cir. 2005). Therefore, Held did not suffer a constitutional
violation when his grievances were ignored, denied, or delayed. Id.; Mahogany v.
Miller, 252 F. App’x 593, 595 (5th Cir. 2007) (finding jail’s refusal to process
inmate’s grievances did not violate his constitutional rights). Held’s claims related
to how his grievances were handled at the Hancock County Detention Center are
frivolous. Morris v. Cross, 476 F. App=x 783, 785 (5th Cir. 2012) (finding inmate=s
claims regarding grievance process were properly dismissed as frivolous).
III. Conclusion
The Court has considered the pleadings and applicable law. For the reasons
stated, this civil action will be dismissed as frivolous. See id.; Lewis v. Jindal, 368
F. App’x 613, 614-15 (5th Cir. 2010) (affirming frivolous dismissal of § 1983 action
seeking pursuit of criminal charges).

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IT IS, THEREFORE, ORDERED AND ADJUDGED that this civil action
is DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C. § 1915 (e)
(2) (B) (i).
IT IS, FURTHER, ORDERED AND ADJUDGED that this dismissal will
count as a “strike” in accordance with the Prison Litigation Reform Act. See 28
U.S.C. § 1915 (g).
SO ORDERED AND ADJUDGED this the 6th day of December, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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