Dycus v. King et al
Filing
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MEMORANDUM AND OPINION dismissing complaint as legally frivolous, pursuant to U.S.C. Section 1915(e)(2)(B)(i), with prejudice. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on November 14, 2011 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
KELVIN WAYNE DYCUS, #R5167
VERSUS
PLAINTIFF
CIVIL ACTION NO. 2:11-cv-184-KS-MTP
RONALD KING, et al.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff Dycus, an inmate of the Mississippi Department of Corrections (MDOC),
currently incarcerated in the Wilkinson County Correctional Facility, filed this pro se Complaint
pursuant to 42 U.S.C. § 1983. The named defendants are Ronald King, Superintendent of South
Mississippi Correctional Institution (SMCI) and Christopher Epps, Commissioner of MDOC.
Upon liberal review of the Complaint and Response [9], the Court has reached the following
conclusions.
Plaintiff states that after a shakedown of the building he was confined in at SMCI he
received a rule violation report (RVR) for having a rope. Plaintiff claims that as a result of being
found guilty of this RVR, he lost all privileges (visitation, phone and canteen) for 60 days and
his custody classification level was “downgraded” to a more restrictive level. Resp. [9].
Plaintiff alleges that his constitutional rights and MDOC policy and procedure were violated
during the shakedown or search process, at the disciplinary hearing, and by the responses he
received to his prison grievances regarding this RVR. As relief, Plaintiff is requesting that the
RVR be “dismissed and expunged” from his prison record and reimbursement of any court costs.
Compl. [1], p.4.
I. Analysis
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (as amended), applies to
prisoner proceedings 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." The Court has permitted the Plaintiff to proceed in
forma pauperis1 in this action; thus his Complaint is subject to sua sponte dismissal pursuant to
28 U.S.C. § 1915(e)(2).
In order to have a viable claim under 42 U.S.C. § 1983 the Plaintiff must allege that he was
deprived of a right secured by the Constitution or the laws of the United States. West v. Atkins,
487 U.S. 42, 48 (1988); Resident Council of Allen Parkway Village v. United States Dep't of
Hous. & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).
Initially, the Court notes that an inmate does not have a constitutional right to receive a certain
custodial classification while incarcerated. Meacham v. Fano, 427 U.S. 215 (1976); Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir.1995). Nor does an inmate have a constitutional right to
serve a sentence in any particular institution, or to be transferred or not transferred from one
facility to another. See Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983); Tighe v. Wall, 100
F.3d 41, 42 (5th Cir.1996)(inmate does not have a constitutionally protected interest in a specific
facility or work assignment).
At best, Plaintiff is asserting that his reclassification violated his constitutional rights under
the Due Process Clause. To invoke the protections of the Due Process Clause, Plaintiff must
have a protected liberty interest at stake. A constitutionally protected liberty interest is "limited
to freedom from restraint which . . . imposes atypical and significant hardships on the inmate in
1
Plaintiff was granted permission to proceed in forma pauperis on October 3, 2011.
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relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995).
The United States Court of Appeals for the Fifth Circuit, applying Sandin has held that
“administrative segregation, without more, simply does not constitute a deprivation of a
constitutionally cognizable liberty interest.” Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir.
1996)(quoting Luken v. Scott, 71 F.3d 192, 193 (5th Cir.1995)). The protections afforded by the
Due Process Clause do not extend to "every change in the conditions of confinement" which are
adverse to a prisoner. Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir. 1997) (inmate’s 30 day
commissary and cell restrictions as punishment do not present the type of atypical, significant
deprivation in which a state might create a liberty interest); King v. Sims, No. 2:07cv136-MTP,
2009 WL 2497154, at * 5 (Aug. 14, 2009) (reclassification, reassignment and loss of canteen,
phone and visitation privileges did not constitute a violation of plaintiff's constitutional rights);
see also Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002)(citations omitted)(prisoners do
not have a constitutional right to contact visits). Furthermore, the classification of prisoners in
certain custody levels is well within the broad discretion of prison officials and should be “free
from judicial intervention.” McCord v. Maggio, 910 F.2d 1248, 1250-51 (5th Cir.1990)(citations
omitted). In sum, the Plaintiff does not have a constitutionally protected right to a certain
classification level while in prison.
To the extent the Plaintiff is asserting that MDOC policy and procedure was violated by
this RVR, resulting punishment, and responses to his grievances, this allegation, without more,
simply does not rise to a level of constitutional deprivation. Jones v. Hudnell, 210 Fed. App’x
427, 428 (5th Cir. 2006) (citing Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir 1986)) ("A
violation of prison regulations, without more, does not give rise to a federal constitutional
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violation."); see also Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005)(inmate does not
have a federally protected liberty interest in having prison grievances resolved to his
satisfaction).
II. Conclusion
As explained above, the Plaintiff’s placement in a custody level or prison facility different
from what he would choose for himself, does not amount to a constitutional deprivation.
Therefore, this case is dismissed as legally frivolous, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i),
with prejudice. See Pichardo, 73 F.3d at 613 (affirming frivolous dismissal of § 1983 suit
arising out of classification level and placement in administrative segregation).
Since this case is dismissed pursuant to the above-mentioned provision of the Prison
Litigation Reform Act, it will be counted as a “strike.”2 If the Plaintiff receives “three strikes”
he will be denied in forma pauperis status and required to pay the full filing fee to file a civil
action or appeal.
A Final Judgment will be entered in accordance with this Memorandum Opinion.
SO ORDERED this the 14th day of November, 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
2
28 U.S.C. § 1915(g) states “[i]n 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.”
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