Ivy v. Evans et al
Filing
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MEMORANDUM AND OPINION: Therefore, this case is dismissed with prejudice as frivolous and for failure to state a claim as set out herein. Final Judgment in accordance with this Memorandum Opinion will be entered. Signed by District Judge Henry T. Wingate on 4/30/2014 (cwl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JIMMY IVY, #80666
PLAINTIFF
VERSUS
CAUSE NO. 3:14-CV-177-HTW-LRA
TYEASHA EVANS, CHRISTOPHER EPPS,
AND WARDEN UNKNOWN OVALLE
DEFENDANTS
MEMORANDUM OPINION
This cause is before the Court, sua sponte, for consideration of dismissal. Pro se Plaintiff
Jimmy Ivy is incarcerated with the Mississippi Department of Corrections (MDOC), and he
brings this Complaint pursuant to Title 42 U.S.C. § 1983. The named Defendants are Tyeasha
Evans, Contract Monitor for MDOC; Christopher Epps, Commissioner of MDOC; and Unknown
Ovalle, Warden at East Mississippi Correctional Facility (EMCF). The Court has considered
and liberally construed the pleadings. As set forth below, this case is dismissed.
I. Background
Ivy claims that on October 12, 2013, his visitor at EMCF, Ms. Stewart, was subjected to
harassment and unnecessary searches at the direction of Warden Ovalle. Ivy complains that he
was denied visitation with Ms. Stewart that day because she listed herself as his sister on her
application when she is actually a friend. Ivy states that this discrepancy was later straightened
out and he was allowed to visit with Ms. Stewart on November 9, 2013. Thereafter, prison
officials determined that Ms. Stewart would be “banned” from visitation with Ivy until
November 25, 2099, for falsifying documents. See ARP Response [doc. 1-2]. Ivy complains
that the loss of his visitation privileges with Ms. Stewart violates his constitutional rights and the
decision making process itself was a violation of MDOC policy and procedure. As relief, Ivy
seeks reinstatement of his visitation privileges with Ms. Stewart and monetary damages.
II. Discussion
The in forma pauperis statute mandates dismissal “at any time” if the Court determines an
action “fails to state a claim on which relief may be granted” or “is frivolous or malicious.” See
28 U.S.C. § 1915 (e)(2)(B). The Fifth Circuit deems a complaint to be frivolous “if it lacks an
arguable basis in law or fact or if there is no realistic chance of ultimate success.” Henthorn v.
Swinson, 955 F.2d 351, 352 (5th Cir. 1992). Since the Court has permitted Ivy to proceed in
forma pauperis in this action, his Complaint is subject to sua sponte dismissal under § 1915
(e)(2).
In order to have a viable claim under Title 42 U.S.C. § 1983, a plaintiff “must allege facts
showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege
or immunity secured by the United States Constitution or the laws of the United States.” Bryant
v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010)(citation omitted). Ivy claims his
constitutional rights were violated when his visitation privileges with Ms. Stewart were
discontinued. The Fifth Circuit has repeatedly held that a prisoner does not have an absolute
right to visitation and visitation privileges are subject to the discretion of prison officials. See
Samford v. Dretke, 562 F.3d 674, 682 (5th Cir. 2009)(holding the removal of prisoner’s sons
from the approved visitors list did not violate his constitutional rights); Berry v. Brady, 192 F.3d
504, 508 (5th Cir. 1999)(“Berry has no constitutional right to visitation privileges.”); Davis v.
Carlson, 837 F.2d 1318, 1319 (5th Cir. 1988)(holding prisoners do not have a constitutional
right to contact visits); Thorne v. Jones, 765 F.2d 1270, 1273 (5th Cir. 1985)(holding prisoner
had no absolute right to visits from his parents); Lynott v. Henderson, 610 F.2d 340, 342 (5th
Cir. 1980)(holding that “convicted prisoners have no absolute constitutional right to visitation”);
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McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975)(“Visitation privileges are a matter
subject to the discretion of prison officials.”). Prison officials have determined that Ivy may not
have visits from Ms. Stewart. This decision does not amount to the deprivation of a
constitutional right, therefore, Ivy is not entitled to relief from this Court.
Likewise, to the extent Ivy asserts claims regarding the treatment of Ms. Stewart at the
prison on October 12, 2013, he is not entitled to relief. Constitutional rights are personal in
nature and Ivy cannot assert claims on behalf of Ms. Stewart. Coon v. Ledbetter, 780 F. 2d
1158, 1160 (5th Cir. 1986).
Furthermore, Ivy is not entitled to relief under § 1983 based on his claim that MDOC
policy and procedure was violated by the restriction of his visitation with Ms. Stewart and by the
lack of a favorable response to his grievances. These allegations, without more, simply do not
rise to a level of constitutional deprivation. Jones v. Hudnell, 210 F. 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 violation.”); see also
Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005)(holding inmate does not have a federally
protected liberty interest in having prison grievances resolved to his satisfaction).
III. Conclusion
As explained above, Ivy’s loss of visitation privileges with Ms. Stewart does not amount to
a constitutional deprivation. Therefore, this case is dismissed with prejudice as frivolous and for
failure to state a claim, pursuant to Title 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii). See Berry, 192
F.3d at 508 (finding district court properly dismissed inmate’s § 1983 claim based on denial of
visitation as both frivolous and for failure to state a claim).
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Since this case is dismissed pursuant to the above-mentioned provision of the Prison
Litigation Reform Act, it will be counted as a “strike.”1 If Ivy 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 in accordance with this Memorandum Opinion will be entered.
SO ORDERED AND ADJUDGED, this the 30th day of April, 2014.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
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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.”
Memorandum Opinion
civil action no. 3:14-cv-177-HTW-LRA
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