Banks v. Turner et al

Filing 14

Memorandum Opinion and Order Dismissing Plaintiff's Complaint re 1 Complaint. This dismissal will count as a "strike" in accordance with the Prison Litigation Reform Act. Signed by Chief District Judge Louis Guirola, Jr. on 6/2/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TRAVIS BANKS, #L2394
v.

PLAINTIFF
CAUSE NO. 1:17-cv-87-LG-RHW

MARSHAL TURNER, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
DISMISSING PLAINTIFF’S COMPLAINT
This matter is before the Court, sua sponte, for consideration of dismissal.
Plaintiff Travis Banks, an inmate of the Mississippi Department of Corrections,
brings this pro se Complaint seeking monetary damages and injunctive relief.
Banks is proceeding in forma pauperis. See Order [6]. The named Defendants are:
Marshal Turner, Warden at South Mississippi Correctional Institution (“SMCI”);
Jane Doe #1, Disciplinary Hearing Officer at SMCI; and Jane Doe #2, Disciplinary
Hearing Officer at SMCI. The Court, having liberally construed the Complaint [1]
and Response [13] in consideration with the applicable law, finds that this case
should be dismissed.
I.

Plaintiff’s Claims
In August of 2016, Banks was found guilty of a prison rule violation report

(“RVR”) for possession of an electronic device. Banks states that his punishment for
this disciplinary conviction is an 18-month restriction on his prison privileges,
including canteen, visits and phone use. Thes appeal of this RVR and resulting
punishment was denied.

Banks asserts several complaints regarding the disciplinary process, which
he claims violates MDOC policy and his constitutional rights. Specifically, Banks
complains that at his disciplinary hearing he was not allowed to call witnesses or
make a statement and the hearing was not recorded. Banks complains that despite
these due process violations, he was found guilty of the RVR and his appeal of the
disciplinary action was denied by Warden Turner. As relief, Banks is seeking an
order reversing the disciplinary findings, vacating the restrictions on his privileges,
and awarding him monetary damages.
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
Banks is proceeding in forma pauperis, his Complaint is subject to the case-screening
procedures set forth in 28 U.S.C. § 1915 (e)(2).
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). Initially, the Court notes that discipline of inmates

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by prison officials is Awithin the expected perimeters of the sentence imposed by a
court of law.@ Sandin v. Conner, 515 U.S. 472, 485 (1995).
Banks is asserting that his constitutional right to due process was violated
when he lost prison privileges and when he was denied relief in the prison grievance
system. To invoke the protections of the Due Process Clause, Banks must have a
protected liberty interest at stake. In the prison context, a constitutionally
protected liberty interest is Alimited to freedom from restraint which . . . imposes
atypical and significant hardships on the inmate in relation to the ordinary
incidents of prison life.@ Sandin, 515 U.S. at 484.
Thes loss of prison privileges as punishment Aare in fact merely changes in
the conditions of his confinement and do not implicate due process concerns.@
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). The Fifth Circuit has
specifically addressed the loss or restriction of most prison privileges and
determined that protection under the Due Process Clause is not available. See
Lewis v. Dretke, No. 02-40956, 2002 WL 31845293, at *1 (5th Cir. 2002) (finding
restrictions on commissary, telephone, recreation, and library privileges as well as
attendance at religious services, resulting from allegedly false disciplinary charges
does not implicate due process); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999)
(holding inmate has no constitutional right to visitation privileges); Bulger v.
United States, 65 F.3d 48, 50 (5th Cir.1995) (finding inmate=s loss of prison job did
not implicate a liberty interest even though the inmate lost the ability to
automatically accrue good-time credits). Since Banks does not have a

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constitutionally protected right to certain privileges while in prison, his due process
claim fails.
Furthermore, the Court finds that to the extent Banks is claiming that
MDOC policy and procedure was violated during his disciplinary process, he is not
entitled to relief under ' 1983. These allegations, without more, simply do not rise
to a level of constitutional deprivation. See Guiden v. Wilson, 244 F. App=x 980, 981
(5th Cir. 2009) (AA violation of a prison rule by itself is insufficient to set forth a
claim of a constitutional violation.@) (citing Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir 1986)).
In addition, the Court finds that Banks 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,
claims that appeals within the prison grievance system are Aarbitrarily and
capriciously denied@ are not cognizable. Staples v. Keffer, 419 F. App=x 461, 463 (5th
Cir. 2011) (finding Aa prisoner does not have a constitutional right to a grievance
procedure at all@). The claims related to how his grievance or appeal of his
disciplinary action was handled by Warden Turner is frivolous. Id.; 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 and for failure to state a claim.

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See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
IT IS, THEREFORE, ORDERED AND ADJUDGED that this civil action is
DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i)-(ii).
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 2nd day of June, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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