Rayborn v. Graham et al
Memorandum Opinion and Order dismissing complaint as frivolous pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) with prejudice. A separate final judgment shall be entered. This dismissal shall be counted as a "strike." Signed by District Judge Keith Starrett on September 28, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JERRY LAVON RAYBORN, #77251
CIVIL ACTION NO. 2:12-cv-55-KS-MTP
AMBER GRAHAM, JOHNNIE DENMARK,
CHRISTOPHER EPPS, HELEN SMITH, and
MEMORANDUM OPINION AND ORDER
This cause comes before this Court, sua sponte, for dismissal. Plaintiff, an inmate at the South
Mississippi Correctional Institution (SMCI), Leakesville, Mississippi, files this complaint pursuant
to 42 U.S.C. § 1983. The Defendants are Amber Graham, Johnnie Denmark, Christopher Epps,
Helen Smith, and Ron King. Compl. . Plaintiff seeks as relief that “this (10) year barrier [is]
removed” so that he can work and attend vocational programs and that he is transferred to Stone
County Correctional Facility. Id. at p.4.
Plaintiff states in his complaint  that on or about October 2011 he “verbally requested to
be considered for employment.” The request was denied by Defendant Graham because
Plaintiff has more than ten years to serve on his sentence. Compl.  at p. 4. Plaintiff complains
that offenders who have less than ten years to serve are allowed to work and to participate in
vocational programs. Id. Because work and participation in vocational programs is based on an
offender’s time to serve his sentence, Plaintiff asserts that his right to equal protection is being
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." Since Plaintiff was granted in forma pauperis
status, Section 1915(e)(2) applies to the instant case. As discussed below, Plaintiff's § 1983
action fails to assert a right that is recognized by federal law.1
In order to state an equal protection claim, Plaintiff is required to “allege that (1) he was
treated differently than similarly situated individuals and (2) the unequal treatment stemmed
from a discriminatory intent.” Hymel v. Champagne, 2007 WL 1030207, *2 n.2(E.D. La. Mar.
28, 2007)(citing Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001)). In the instant civil action,
Plaintiff argues that his rights under the Equal Protection Clause have been violated because he,
along with other inmates who have more than 10 years to serve on their sentences, is not eligible
to work or participate in vocational programs. Plaintiff does not allege he is treated differently
from other offenders with more than 10 years to serve on their sentences. Moreover, there is no
allegation that the refusal to assign Plaintiff to work or a vocational program was the result of a
“discriminatory intent.” As such, Plaintiff’s allegation simply does not rise to a level of
constitutional deprivation. See Thompson v. Patteson, 985 F.2d 202, 207 (5th Cir. 1993) (absent
allegations of improper motive, mere claim of inconsistent outcomes in particular, individual
instances furnishes no basis for relief). Consequently, Plaintiff has failed to state a cognizable
equal protection claim.
Furthermore, it is well settled that there is no federal constitutional right to participate in
an educational or rehabilitative program. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) .
A case that is found to be legally frivolous is one that seeks to assert a “right” or address
a “wrong” clearly not recognized by federal law. See, e.g., Neitzke v. Williams, 490 U.S. 319 (1989).
Additionally, there is no constitutional requirement that the state provide basic educational or
vocational training to prisoners. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988). Finally,
Plaintiff does not have a constitutional right to work while incarcerated. See Jackson v. Cain,
864 F.2d 1235, 1247 (5th Cir. 1989).
As discussed above, Plaintiff’s equal protection and due process rights to work or attend
vocational programs have not been violated under the allegations of the instant civil action.
Plaintiff, therefore, cannot maintain the instant civil action and this complaint is dismissed as
frivolous pursuant to 28 U.S.C. §1915(e)(2)(B)(i) with prejudice.
Since this case is dismissed pursuant to the above-mentioned provision of the Prison
Litigation Reform Act, it will be counted as a “strike”. See 28 U.S.C. § 1915(g). If 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 and Order.
SO ORDERED this the 28th day of September, 2012.
UNITED STATES DISTRICT JUDGE
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