Payne v. ACA et al

Filing 8

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL AND DIRECTING SERVICE OF PROCESS as follows: Defendants MDOC, Haley Barbour, Rufus Burkes, Eric Holder, Don Burkhalter, Barack Obama, Federal Bureau of Investigation, Post Master for the Jackson, Miss issippi Post Office, American Bar Association, Mississippi Volunteer Lawyers, United States District Clerk for the Middle District of Louisiana, Post Master of Central Mississippi Correctional Facility (CMCF), and Mississippi Ethics Commission are he reby DISMISSED WITHOUT PREJUDICE for failure to state a claim against them; and Defendant Mississippi Department of Corrections should be and is hereby DISMISSED and Christopher Epps is SUBSTITUTED as a defendant herein. THE US DISTRICT CLERK IS DIRE CTED TO ISSUE SUMMONS TO DEFENDANTS: American Correctional Association, Christopher Epps, Ronald Reid Welch, Margaret Bingham, Ernest Lee, Captain Johnson, Lieutenant Thornton, Lieutenant Funches and Patricia G. Berry. The Clerk is directed to attach a copy of this Order and the Complaint 1 that will be served on the named Defendants. The United States Marshal shall serve the same pursuant to 28 U.S.C. § 1915(d). The Court is further directed as further set out in this Order. Signed by District Judge Carlton W. Reeves on 11/23/2011. (JS)

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

DAVID E. PAYNE, # 8755
V.
AMERICAN CORRECTIONAL
ASSOCIATION; et al.

§
§
§
§
§
§

PLAINTIFF
CAUSE NO. 3:11cv389-CWR-FKB

DEFENDANTS

MEMORANDUM OPINION AND ORDER OF PARTIAL
DISMISSAL AND DIRECTING SERVICE OF PROCESS
BEFORE THE COURT is pro se Plaintiff David E. Payne’s [1] Complaint. He
is incarcerated with the Mississippi Department of Corrections (“MDOC”). He brings
this lawsuit alleging various federal and state law claims regarding his conditions of
confinement, among other things. The Court has considered and liberally construed
the pleadings. Defendants MDOC, Haley Barbour, Rufus Burkes, Eric Holder, Don
Burkhalter, Barack Obama, Federal Bureau of Investigation, Post Master for the
Jackson, Mississippi Post Office, American Bar Association, Mississippi Volunteer
Lawyers, United States District Clerk for the Middle District of Louisiana, Post Master
of Central Mississippi Correctional Facility (“CMCF”), and Mississippi Ethics
Commission are dismissed. Process shall issue for the remaining Defendants.
FACTS AND PROCEDURAL HISTORY
Payne is currently serving a life sentence in the custody of the MDOC for
murder. He is housed at CMCF.
Payne complains that since 2010, he has been denied free indigent postage and

copies for legal mail and mail to government agencies and that the jail is not mailing
his documents. He also complains that his legal papers were confiscated from his jail
cell and placed in a storage room where rats and water are known to damage papers.
These acts, he claims, are in retaliation for pursuing his various legal claims. He
complains that certain defendants are not responding to his letters and requests for
investigations and criminal charges. He complains that he is being denied conditional
medical release to the Veterans Administration Hospital, in contravention of State law.
Finally, he complains that he is being denied medical care for certain ailments and is
being ineffectively treated for others.
DISCUSSION
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in
forma pauperis in this Court. One of the provisions reads, “the court shall dismiss the
case at any time if the court determines that . . . the action . . . –(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.” 28 U.S.C. §
1915(e)(2)(B). The statute “accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and dismiss those claims whose factual
contentions are clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). “[I]n
an action proceeding under Section 1915(d), [a federal court] may consider, sua sponte,
affirmative defenses that are apparent from the record even where they have not been
addressed or raised.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the
2

court is authorized to test the proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.” Id. The Court has permitted
Payne to proceed in forma pauperis in this action. His Complaint is subject to sua
sponte dismissal under Section 1915.
MDOC
Payne asserts Section 1983 claims against MDOC for the alleged violations
concerning his mail and the confiscation of his legal papers. He seeks declaratory and
prospective injunctive relief against this defendant.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
42 U.S.C. § 1983. The State of Mississippi is not amenable to suit under this statute,
because “a State is not a person within the meaning of § 1983.” Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 64 (1989).

This holding likewise applies to “any

governmental entities that are considered ‘arms of the State’ for Eleventh Amendment
purposes.” Id. at 70. MDOC is considered an arm of the State of Mississippi. Miss.
Code Ann. § 47-5-1; Scott v. Miss. Dep’t of Corrs., No. 2:05cv2159-KS-JMR, 2006 U.S.
Dist. LEXIS 43683 at *2 (S.D. Miss. June 12, 2006). Therefore, Payne fails to state a
claim against MDOC upon which relief may be granted. MDOC is dismissed.
Notably, Payne seeks prospective injunctive relief. “Of course a state official in
3

his or her official capacity, when sued for injunctive relief, would be a person under §
1983 because ‘official-capacity actions for prospective relief are not treated as actions
against the State.’” Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham, 473 U.S.
159, 167 n.14 (1985)). “To ensure the enforcement of federal law, however, the
Eleventh Amendment permits suits for prospective injunctive relief against state
officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431,
437 (2004). Therefore, the Court will allow Payne to substitute MDOC Commissioner
Christopher Epps in MDOC’s place as a defendant in this case.
GOVERNOR BARBOUR
Payne alleges that Defendant Governor Barbour is “aiding and abetting
domestic terrorism” because he refuses to (1) grant Payne clemency or (2) remedy the
denial of access to equal rights to have a copy of his criminal appellate and parole
board records without cost. (Compl. at 2). Further, he complains Barbour (3) is not
granting Payne a medical release “equal to that of other U.S. Army Veterans.” Id. at
16. He wants Barbour to order, under the Mississippi Public Records Act, that the
Mississippi Department of Archives and History should give Payne a free copy of his
criminal appellate record, the State Parole Board should give him a free copy of his
parole file, and his criminal trial counsel should give Payne a copy of the discovery
from his criminal file. Finally, he wants a personal interview with Governor Barbour.
I.

CLEMENCY
As for Barbour’s alleged refusal to grant clemency, an “inmate has ‘no

constitutional or inherent right’ to commutation of his sentence.” Ohio Adult Parole
4

Auth. v. Woodard, 523 U.S. 272, 280 (1998) (quoting Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464 (1981)). Therefore, the failure to grant clemency alone
is not a constitutional deprivation.
II.

EQUAL PROTECTION
Payne complains Barbour denied Payne “equal rights” to his 1995 criminal

appellate record and Parole Board discovery, because Barbour did not allow Payne to
have them free of charge. “Neither prisoners nor indigents constitute a suspect class.”
Carson v. Johnson, 12 F.3d 818, 821-22 (5th Cir. 1997).
Payne also charges Barbour with a denial of rights “equal to that of other U.S.
Army veterans,” because he will not grant Payne permission to be released from prison
to the Veterans Administration Hospital. Thus, he again complains Barbour is
discriminating on account of Payne’s status as a prisoner. Because this is not a suspect
classification, he fails to state a claim for a violation of equal protection.
III.

DENIAL OF RECORDS
Payne also complains that Barbour is not providing the appellate record and

parole board discovery free of charge, in violation of the Mississippi Public Records Act.
The Act provides that “public records must be available for inspection by any
person unless otherwise provided by this act. Furthermore, providing access to public
records is a duty of each public body and automation of public records must not erode
the right of access to those records.” Miss. Code Ann. § 25-61-1. Any “person shall
have the right to inspect, copy or mechanically reproduce or obtain a reproduction of
any public record of a public body in accordance with reasonable written procedures
5

adopted by the public body concerning the cost . . . of access. . . .” Miss. Code Ann. § 2561-5(1)(a).
Payne requested a copy of his criminal appellate record from the Mississippi
Department of Archives and History. According to the Complaint, the Department
responded by notifying him of the copying charges for the material. Payne does not
complain that the cost is unreasonable. He only alleges that he has a right to free
copies under the statute. As is plain from the statutory text, he has no such right.
As for the Parole Board’s records, the Court will assume, without deciding that
they are public records. But see Miss. Code Ann. §25-61-12(2)(a) and (3). Payne
complains again that he has a right, to be provided “free of charge discovery of each
and every document which the parole board has in its master files on Payne’s case and
is being examined for parole eligibility.” (Compl. at 16). The statute does not provide
that public records may be copied for free. Therefore, Payne fails to state a claim under
the Mississippi Public Records Act.
IV.

DENIAL OF MEDICAL RELEASE
Finally, Payne complains that Barbour will not conditionally release him to the

Veterans Hospital for medical treatment. “There is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration of a valid
sentence.” Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 7 (1979). Therefore, this
failure, by itself, does not state a Section 1983 claim.
Furthermore, Payne fails to state a claim against Barbour under State law. The
statute on which he relies, Mississippi Code Annotated Section 47-7-4, provides that
6

conditional medical release from prison may be granted by the MDOC Commissioner
and medical director. It is undisputed that Barbour is neither.
Because Payne fails to state a claim, against Barbour, upon which relief may be
granted, he is dismissed without prejudice. This dismissal counts as a strike under 28
U.S.C. 1915(g).
BURKES
The sole allegation against Burkes is that he committed “hate crimes.” (Compl.
at 5). No further explanation is found. Attached to the Complaint is evidence that he
denied Payne’s first step Administrative Remedy Program grievance regarding the
storage of his legal files.
Payne “does not have a federally protected interest in having th[is] grievance[]
resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). The
denial of his grievance, without more, does not state a constitutional violation.
Therefore, Burkes is likewise dismissed for Payne’s failure to state a claim against this
Defendant.
HOLDER AND BURKHALTER
Payne alleges that he wrote to Defendants Holder, United States Attorney
General, and Burkhalter, Assistant United States Attorney General, asking them to
criminally prosecute certain people. Payne complains that Holder and Burkhalter will
not prosecute them and seeks an injunction requiring these Defendants to do so.
A prosecutor enjoys “the same absolute immunity under § 1983 that the
prosecutor enjoys at common law.” Imbler v. Pachtman, 424 U.S. 409, 427 (1976). This
7

immunity extends to deciding whether or not to criminally prosecute. Hartman v.
Moore, 547 U.S. 250, 261-62 (2006); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990).
Because Holder and Burkhalter are absolutely immune from any failure to initiate
criminal prosecutions, these Defendants are dismissed.
Payne likewise complains about Burkhalter’s failure to place Payne in the
criminal witness protection program. Because there was no criminal prosecution, he
cannot, as a matter of law, show he was entitled to be placed in the witness protection
program.
PRESIDENT OBAMA
Payne wrote to Defendant President Obama “furnishing him evidence of the
hostage situation,” but he has not responded. (Compl. at 13). Payne seeks to have the
President enjoined to direct Holder to investigate and criminally prosecute certain
people.
To the extent Payne is suing President Obama for clemency, this claim fails for
the same reason it failed against Governor Barbour. To the extent Payne seeks to
require Holder and the President to institute criminal indictments, this claim is
likewise barred by absolute prosecutorial immunity. This defendant is dismissed.
FBI, POST MASTER –JACKSON , MISSISSIPPI, ABA, MISSISSIPPI VOLUNTEER LAWYERS,
UNITED STATES DISTRICT CLERK FOR THE MIDDLE DISTRICT OF LOUISIANA
Payne alleges that he wrote to Defendant Post Master at the Post Office in
Jackson, Mississippi requesting to be interviewed by Defendant FBI concerning
Payne’s complaints about his prison mail. He also alleges he sent a letter to Defendant

8

ABA requesting certain information. He claims he wrote to Defendant Mississippi
Volunteer Lawyers requesting legal representation. Finally, he claims to have written
to Defendant Clerk of the United States District Court for the Middle District of
Louisiana requesting a copy of an opinion. He asserts none of them responded because
these letters were never sent by prison authorities.
Payne alleges no act or omissions whatsoever from these Defendants. They are
dismissed for failure to state a claim upon which relief can be granted.
POST MASTER –CMCF
Payne asserts claims against “John Does” mail room “staff” members for
interference with his mail. Id. at 5, 10. He does not allege any act or omission of the
jail’s post master. Therefore, the claim is based purely on the post master’s role as
employer or supervisor. “There is no vicarious or respondeat superior liability of
supervisors under section 1983.” Rios v. City of Del Rio, 444 F.3d 417, 425 (5th Cir.
2006). The supervisor must either be personally involved in the violation or otherwise
have caused the violation. Id. Therefore, Payne fails to state a claim against the
CMCF Post Master under Section 1983.
MISSISSIPPI ETHICS COMMISSION
Payne alleges he wrote to Defendant Mississippi Ethics Commission asking for
certain information.

Specifically, he wanted to know whether or not discovery,

appellate briefs and opinions in his criminal case were his property and whether the
Commission was made up of attorneys.

He maintains the Commission never

responded; “therefore this Defendant under color of state law has violatted [sic] Payne’s
9

rights to access to information. . . .” (Compl. at 10). Payne cites, once again, the
Mississippi Public Records Act.
As discussed previously, the Public Records Act only requires Mississippi’s
public bodies to provide access to their public records.
“Public records” shall mean all books, records, papers, accounts, letters,
maps, photographs, films, cards, tapes, recordings or reproductions
thereof, and any other documentary materials . . . having been used,
being in use, or prepared, possessed or retained for use in the conduct .
. . of any business . . . of any public body, or required to be maintained by
any public body.
Miss. Code Ann. § 25-61-3(b). Payne sought no documentary materials from the
Commission. Rather, he sought legal advice and whether or not attorneys sit on the
Commission. It is dismissed for failure to state a claim upon which relief could be
granted against this Defendant.
REMAINING DEFENDANTS
At this early stage of the proceedings, the Court will allow Payne to proceed with
his claims for relief against American Correctional Association (“ACA”), Epps, Ronald
Reid Welch, Margaret Bingham, Ernest Lee, Captain Johnson, Lieutenant Thornton,
Lieutenant Funches, and Patrician Berry. This decision does not reflect any opinion
of the Court as to the merits of these claims. Process shall issue for the Defendants
ACA, Epps, Welch, Bingham, Lee, Johnson, Thornton, Funches, and Berry.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, Defendant Mississippi Department of Corrections should be and is hereby
DISMISSED and Christopher Epps is substituted as a defendant herein.

10

IT IS FURTHER ORDERED AND ADJUDGED that Defendants Haley
Barbour, Rufus Burkes, Eric Holder, Don Burkhalter, Barack Obama, Federal Bureau
of Investigation, Post Master of the Jackson, Mississippi Post Office, American Bar
Association, Mississippi Volunteer Lawyers, Clerk of the United States District Court
for the Middle District of Louisiana, Post Master of the Central Mississippi
Correctional Facility Mail Room, and Mississippi Ethics Commission and should be
and are hereby DISMISSED WITHOUT PREJUDICE for failure to state a claim
against them. These dismissals count as one strike under 28 U.S.C. 1915(g).
IT IS FURTHER ORDERED AND ADJUDGED that pro se Plaintiff David
E. Payne, within twenty days of the date of this Order, shall provide this Court with
the civil action number of every civil action or appeal which Plaintiff has had dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted. He shall also provide the names of the court and Defendant(s) in each
civil action identified.
IT IS FURTHER ORDERED AND ADJUDGED that the United States
District Clerk is directed to issue summons to Defendants:
American Correctional Association
206 North Washington Street
Suite 200
Alexandria, Virginia 22314
Christopher Epps
723 North President Street
Jackson, Mississippi 39202

11

Ronald Reid Welch
c/o Ronald Reid Welch, P.A.
1823 St. Mary Street
Jackson, Mississippi 39202
Margaret Bingham
c/o Central Mississippi Correctional Facility
3794 Highway 468
Pearl, Mississippi 39208
Ernest Lee
c/o Central Mississippi Correctional Facility
3794 Highway 468
Pearl, Mississippi 39208
Captain Johnson
Watch Commander CMCF-U-3
c/o Central Mississippi Correctional Facility
3794 Highway 468
Pearl, Mississippi 39208
Lieutenant Thornton
c/o Central Mississippi Correctional Facility
3794 Highway 468
Pearl, Mississippi 39208
Lieutenant Funches
Lieutenant Unit Manager, CMCF-U-3
3794 Highway 468
Pearl, Mississippi 39208
Patricia G. Berry
1600 East Woodrow Wilson Avenue
Jackson, Mississippi 39216
The Clerk is directed to attach a copy of this Order and the Complaint [1] that will be
served on the named Defendants. The United States Marshal shall serve the same
pursuant to 28 U.S.C. § 1915(d).

12

IT IS FURTHER ORDERED AND ADJUDGED that a summons will not be
issued for the John Doe Defendants at this time. Once Plaintiff has determined the
proper names and addresses of the John Doe Defendants, he must file a motion with
the Court requesting that process be ordered to issue for these Defendants. This
motion must contain the proper names of the John Doe Defendants, addresses for the
properly named John Doe Defendants and an explanation how the John Doe
Defendants violated Plaintiff’s constitutional rights.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants shall file
their answers or other responsive pleadings in this cause in accordance with the
Federal Rules of Civil Procedure and the Local Rules of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that subpoenas shall not be
issued except by order of the Court. The Clerk of Court shall not issue subpoenas upon
request of the pro se litigant, but shall instead forward the request to the undersigned
for review. Plaintiff shall submit any requests for the issuance of subpoenas to the
undersigned’s office for review.
It is Plaintiff’s responsibility to prosecute this case. Failure to advise
the Court of a change of address or failure to comply with any Order of the
Court will be deemed as a purposeful delay and contumacious act by Plaintiff
and may result in the dismissal of this case.
This the 23rd day of November, 2011.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

13