Montgomery v. Mississippi Department of Corrections et al

Filing 12

ORDER OF DISMISSAL: For the reasons stated in the order, the 42 U.S.C. § 1983 and State law claims are DISMISSED WITHOUT PREJUDICE as malicious. The habeas claims are DISMISSED WITHOUT PREJUDICE as duplicative and for lack of jurisdiction. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on March 18, 2014.(SP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
STANLEY J.A. MONTGOMERY, # 63096
VERSUS

PLAINTIFF
CIVIL ACTION NO. 3:14cv79-DPJ-FKB

MISSISSIPPI DEPARTMENT OF
CORRECTIONS, HINDS COUNTY
RESTITUTION CENTER, COMMANDER
GRADY MCENTEE, and CHRISTOPHER
EPPS

DEFENDANTS

ORDER OF DISMISSAL
This pro se prisoner case is before the Court, sua sponte, for consideration of dismissal.
Plaintiff Stanley J.A. Montgomery is incarcerated with the Mississippi Department of
Corrections (“MDOC”). He filed this action challenging the conditions of his confinement, his
arrest, and the revocation of his post-release supervision. The Court has considered and liberally
construed the pleadings. As set forth below, this case is dismissed.
I.

Background
Montgomery filed this action on January 30, 2014. At the time, he was incarcerated in

the Winston-Choctaw County Regional Correctional Facility. He sues MDOC, the Hinds County
Restitution Center, Commander Grady McEntee, and MDOC Commissioner Christopher Epps
under 42 U.S.C. § 1983 and state law. Montgomery alleges that, in 2011, he was convicted of
five counts of identity theft in the Circuit Court of Winston County, Mississippi. As a result, he
was sentenced to five years. Of that time, he was to serve two weeks in the MDOC, and the
remainder was to be served on supervised release. He was also ordered to pay restitution.
In 2013, Montgomery voluntarily entered MDOC’s Restitution Center Program, in order
to satisfy his restitution obligation. He was placed in the Hinds County Restitution Center, where

McEntee was employed. While there, Montgomery complains that McEntee failed to provide
Montgomery with three meals a day or adequate water though other inmates received theirs.
This, he claims, subjected him to cruel and unusual punishment as well as a violation of his right
to equal protection. Because of this alleged mistreatment, he left the restitution center.
As a result of leaving the restitution center, Montgomery was arrested and convicted of
violating his supervised release. He challenges the arrest and revocation also, claiming that it
was not his fault that he left the restitution center, that he initially was arrested without a warrant,
that the subsequent warrant was invalid, that he was denied a revocation hearing, and that failure
to pay the restitution was not a revocable offense nor one that required pre-hearing detention.
Montgomery’s pleadings explicitly invoke 42 U.S.C. § 1983 and state law. In his
response, he adds habeas claims, asking the Court to release him and order the State court to hold
a revocation hearing.
This is not the first case in which Montgomery challenges these same conditions at the
restitution center, his arrest, and revocation. On January 15, 2014, he filed these same claims
against the same Defendants in the Northern District of Mississippi, seeking money and release.
Montgomery v. Miss. Dep’t of Corrs., No. 1:14cv8-SA-JMV (N.D. Miss.). Although the docket
sheet for that case lists only MDOC, the restitution center, and Winston County Jail as
Defendants, the Complaint lists Epps and McEntee as additional Defendants. The Northern
District has set a Spears hearing in that case for May 12. Montgomery, No. 1:14cv8-SA-JMV,
Spears Order [10] (N.D. Miss. Mar. 5, 2014).

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II.

Discussion
A.

Section 1983 and State-Law Claims

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 [28 U.S.C. § 1915, 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 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 Montgomery to proceed in forma pauperis in this
action. His Complaint is subject to sua sponte dismissal under § 1915.
The § 1983 and state-law claims are duplicate to those filed in the Northern District of
Mississippi, in cause number 1:14cv8-SA-JMV. That case, which is still pending, was filed
fifteen days before the instant case. It is “‘malicious’ for a pauper to file a lawsuit that duplicates
allegations of another pending federal lawsuit by the same plaintiff.” Pittman v. Moore, 980 F.2d
994, 995 (5th Cir. 1993). These claims are dismissed as malicious. This counts as a strike under
§ 1915(g).
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B.

Habeas Claims

Finally, to the extent that Montgomery has added habeas claims, they are also being
pursued in the previously filed action. In the alternative, the Court lacks jurisdiction over the
habeas claims as they concern a Northern District conviction and a prisoner who, at the time the
case was filed, was in custody in the Northern District. See 28 U.S.C. § 2241(d). The habeas
claims are dismissed without prejudice.
III.

Conclusion
This case is repetitive to the prior, pending filed action of Montgomery v. Mississippi

Department of Corrections, cause number 1:14cv8-SA-JMV (N.D. Miss.). The § 1983 and State
law claims are therefore dismissed as malicious. The habeas claims are dismissed as duplicative
and for lack of jurisdiction. The case is dismissed without prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons stated above,
the 42 U.S.C. § 1983 and State law claims are DISMISSED WITHOUT PREJUDICE as
malicious. This dismissal counts as a strike pursuant to 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED AND ADJUDGED that the habeas claims are
DISMISSED WITHOUT PREJUDICE as duplicative and for lack of jurisdiction. A separate
Final Judgment shall issue pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 18th day of March, 2014.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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