Coleman v. Platt et al

Filing 56

ORDER ADOPTING 52 REPORT AND RECOMMENDATIONS for 34 Motion for Summary Judgment filed by David Petrie, Debra Platt, Byron Breland, Ron King. Plaintiff's Complaint is dismissed with prejudice, and his Motion to Compel 51 is denied as moot. A separate Judgment will be entered herein. Signed by District Judge Keith Starrett on 3/12/13 (scp)

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

STANLEY KELVIN COLEMAN
VS.

CIVIL ACTION NO. 2:11cv233-KS-MTP

DEBRA PLATT, ET AL
ORDER ADOPTING REPORT AND RECOMMENDATIONS
DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition of Stanley Kelvin Coleman, filed pursuant to
28 U.S.C. 1983 [1], Defendants’ Motion for Summary Judgment [34], the Report and
Recommendation of the Magistrate Judge [52] and Objections thereto filed by Petitioner Stanley
Coleman, and the Court considering same does hereby find as follows, to-wit:
I. FACTUAL BACKGROUND
Plaintiff Stanley K. Coleman, proceeding pro se and in forma pauperis, filed his complaint
pursuant to 42 U.S.C. § 1983 on or about November 21, 2011. In his complaint and amended
complaint, and as clarified by his testimony at the Spears1 hearing, Plaintiff alleges claims
against Byron Breland for cruel and unusual punishment and retaliation, and claims against
Debra Platt, David Petrie, and Ron King for due process violations. See Omnibus Order [25].
Plaintiff’s claims occurred while he was a post-conviction inmate at the South Mississippi
Correctional Institution (“SMCI”), where he is currently incarcerated. Plaintiff asks that the
Rule Violation Reports (RVRs) referenced herein be expunged from his record and seeks
compensatory, nominal, and punitive damages.

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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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Defendants filed their Motion for Summary Judgment [34] on August 15, 2012. Plaintiff
filed his Response [47] to the motion on November 1, 2012.2
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v.
Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III
Judge as to those issues to which an objection is made.”) Such review means that this Court will
examine the entire record and will make an independent assessment of the law. The Court is not
required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous,
conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421
(5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments
contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER’S OBJECTIONS AND ANALYSIS
Petitioner files a 24 page Objection, together with an affidavit stating his objections to
the Report and Recommendations of the Magistrate Judge. The complaint of the Petitioner is
that he was denied lunch one day and the reason given by the correctional officer was that he
was late and dragging around and the door was closed before Petitioner could get to the door for

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In his Response [47], Plaintiff seeks a continuance of this matter and seeks leave to
conduct additional discovery. For the reasons addressed elsewhere in this Report and
Recommendation, Plaintiff’s requests should be denied.
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lunch. There is no allegation that the Defendant, Corrections Officer Breland, did this to
Petitioner any other time. The other portion of the complaint deals with the alleged
improprieties in the filing of an RVR by Officer Breeland and the hearing and disposition of the
complaint by Hearing Officer Platt and Warden Ron King.
Officer Breland is charged with cruel and unusual punishment and retaliation. And while
Petitioner goes through a great deal of case law and addresses some interesting issues, he does
not address the issue of missing lunch one time and the way that it is an Eighth Amendment
violation. Magistrate Parker cites case law that is directly on point with Petitioner’s complaints.
Evans v. Sims, 2:11cv63-KS-MTP, 2011 WL 1885639, at *2 (S.D. Miss. May 18, 2011) quoting
Taylor v. Kaylo, No. 00-31077, 2001 WL 498686 at *2 (5th Cir. Apr. 12, 2001). Also see Palmer
v Johnson, 193 F.3d 346, 352 (5th Cir. 1999). The denial of one meal is simply not a
constitutional violation and even if it was an intentional act on the part of Corrections Office
Breland, it is not a constitutional violation.
The retaliation claim alleging that Office Breland retaliated against Petitioner because
Petitioner filed a complaint against him regarding the lunch issue. The only proof is Breland’s
affidavit and Petitioner’s counter-affidavit wherein Officer Breland states that Petitioner was
yelling threats at him when the gate was closed to the dining hall. The Hearing Officer looked at
the proof and found that Petitioner failed to allege anything more than a personal belief that
Breland issued the RVR in retaliation and, therefore, Breland is entitled to a judgment as a
matter of law.
Due Process Violations
As Judge Parker stated, “Liberty interests protected by the Due Process Clause ‘will be

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generally limited to freedom from restraint which ... imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.’ Sandin v. Conner, 515 U.S. 472,
483-84 (1995). Plaintiff has failed to allege a restraint which imposed an atypical and significant
hardship in relation to the ordinary incidents of prison life. The record reflects that Plaintiff was
denied certain privileges for approximately two months. Plaintiff no right to facility privileges.
See Nathan v. Hancock, 477 Fed. App’x 197, No. 11-60811, 2012 WL 178573 at *1 (5th Cir.
May 17, 2012).” Petitioner fails to allege and prove an Eighth Amendment violation or a due
process violation.
IV. CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the objections. For the reasons
set forth above, this Court concludes that Coleman’s objections lack merit and should be
overruled. The Court further concludes that the Report and Recommendation is an accurate
statement of the facts and the correct analysis of the law in all regards. Therefore, the Court
accepts, approves and adopts the Magistrate Judges’s factual findings and legal conclusions
contained in the Report and Recommendation. Accordingly, it is ordered that the United States
Magistrate Judge Michael T. Parker’s Report and Recommendation is accepted pursuant to 28
U.S.C. § 636(b)(1) and that Defendant’s Motion for Summary Judgment [34] is granted and
Coleman’s complaint is dismissed with prejudice. Further, Plaintiff’s Motion to Compel [51]
is denied as moot.
SO ORDERED this, the 12th day of March, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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