Smithey et al v. Management Training Corporation et al
MEMORANDUM OPINION AND ORDER: For the reasons stated, this civil action is dismissed with prejudice as frivolous and for failure to state a claim pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) and (ii). This dismissal will count as a "strike" in accordance with the Prison Litigation Reform Act. Signed by District Judge Tom S. Lee on 6/26/17. (RRL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JERRY SMITHEY, #120247
CIVIL ACTION NO. 3:16-cv-409-TSL-RHW
MANAGEMENT TRAINING CORPORATION, et al.
MEMORANDUM OPINION AND ORDER
This cause is before the Court on plaintiff's response 
to the Court's second and final order  to show cause.
Plaintiff states in his response  that he had medical
problems that prevented him from contacting the Court.
finds plaintiff's response  is well taken and the Court will
consider it along with plaintiff's complaint .
Plaintiff, an inmate of the Mississippi Department of
Corrections (MDOC), filed this pro se complaint  pursuant to
42 U.S.C. § 1983.
Plaintiff was granted permission to proceed in
forma pauperis in this case.
See Order .
defendants are Management Training Corporation, Walnut Grove
Correctional Facility, Brady Sistrunk, Lepher Jenkins, and
The Court, having liberally construed plaintiff’s complaint
 and response , and in consideration of the applicable law
finds that this case will be dismissed.
Plaintiff received a prison rule violation report (RVR)
because of a phone being found in the inmates' restroom after
visitation on March 25, 2016.
Compl.  at 4.
initially asserted that as a result of being found guilty of the
RVR he received as punishment the loss of privileges and
visitation for 18 months.
See id. at 5.
states in his response  that the punishment was not enforced.
Pl.'s Resp.  at 2.
Even though he was not punished with the
loss of privileges including visitation for 18 months, plaintiff
claims that his classification was reduced to "C-custody" and the
RVR is "still in [e]ffect."
Id. at 1.
Additionally, plaintiff complains that defendant Sistrunk
threatened plaintiff's visitor, Mrs. Martin, with criminal
Compl.  at 5. In his response , plaintiff
states that Mrs. Martin was not indicted.
Pl.'s Resp.  at 1.
As relief, plaintiff is requesting the removal of the RVR
from his prison record and that all charges against Mrs. Martin
Compl.  at 4.
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).
the Court has permitted plaintiff to proceed in forma pauperis in
this action, his complaint  is subject to the case screening
procedures set forth in 28 U.S.C. § 1915 (e)(2).
In order to have a viable claim under 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 the State of
Miss., 597 F.3d 678, 686 (5th Cir. 2010).
At best, the Court
finds that plaintiff is asserting that his constitutional right
to due process was violated when he was found guilty of a RVR and
as a result, his custody classification was reduced and the RVR
has become a part of his inmate record.
To invoke the protections of the Due Process Clause,
plaintiff must have a protected liberty interest at stake.
constitutionally protected liberty interest is "limited to
freedom from restraint which . . . imposes atypical and
significant hardships on the inmate in relation to the ordinary
incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 484
Even if plaintiff lost privileges and visitation for 18
months as punishment, these "are in fact merely changes in the
conditions of his confinement and do not implicate due process
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).
The Fifth Circuit has specifically addressed the loss or
restriction of most prison privileges and determined that
protection under the Due Process Clause is not available.
Landor v. Lamartiniere, 515 F. App'x 257, 259 (5th Cir. 2013)
(finding that the loss of privileges did not implicate prisoner's
liberty interest); Lewis v. Dretke, No. 02-40956, 2002 WL
31845293, at *1 (5th Cir. 2002) (finding restrictions on
commissary, telephone, recreation, and library privileges as well
as attendance at religious services, resulting from allegedly
false disciplinary charges do not implicate due process); Berry
v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (holding inmate has
no constitutional right to visitation privileges).
Additionally, as set forth in Heck v. Humphrey, 512 U.S.
477, 487 (1994), a prisoner cannot bring a § 1983 action based on
a conviction until that conviction "has been reversed on direct
appeal, expunged by executive order, or otherwise declared
invalid in a state collateral proceeding or by the issuance of a
federal writ of habeas corpus, if a favorable judgment would
necessarily imply the invalidity of the prisoner's conviction or
the length of his confinement."
Clarke v. Stalder, 154 F.3d 186,
189 (internal quotations omitted) (quoting Heck, 512 U.S. at 48687).
The Heck doctrine also applies to a prisoner's § 1983 claim
for the removal or expungement of a disciplinary conviction.
Johnson v. Livingston, 360 F. App'x 531, 532 (5th Cir. 2010)
(holding that when a prisoner "challenge[s] the validity of his
disciplinary convictions in his § 1983 complaint and [is seeking]
expungement, his claims [are] barred by Heck") (citing Edwards v.
Balisok, 520 U.S.C. 641, 648-49 (1997)).
Because the rule set forth in Heck applies to plaintiff’s
claims, he must demonstrate that his disciplinary conviction has
been invalidated as a prerequisite for this case to proceed under
Plaintiff does not allege that his disciplinary action
has been invalidated.1
As such, the Court finds that plaintiff's
§ 1983 claims seeking expungement of his disciplinary conviction
is not cognizable at this time.
See e.g., Evans v. Baker, 442 F.
App'x 108, 110 (5th Cir. 2011) (finding dismissal under Heck and
Edwards of inmate's § 1983 complaint seeking expungement of
Plaintiff was ordered to specifically state if the
complained of RVR has been invalidated by any of the means set
forth in Heck. See Order . Plaintiff responded by stating
that the RVR is still Ain [e]ffect.@ See Resp.  at 2.
adverse disciplinary proceedings to be proper even after inmate
withdrew his claim to have good-time credits restored).
Furthermore, the Court finds that an inmate does not have a
constitutional right to receive a certain custodial
classification while incarcerated.
Olim v. Wakinekona, 461 U.S.
238, 249-50 (1983); Meacham v. Fano, 427 U.S. 215 (1976); Neals
v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
that his classification has been reduced fails to assert a
constitutional violation and as such, this claim is frivolous.
See Walker v. Buentello, 149 F. App'x 286, 287 (5th Cir. 2005)
(finding that "[t]he district court did not err in dismissing"
plaintiff's claim relating to his classification as frivolous).
Likewise, the Court finds that plaintiff does not have a
federally protected liberty interest in having a prison grievance
investigated or resolved to his satisfaction.
Geiger v. Jowers,
404 F.3d 371, 373-74 (5th Cir. 2005); see also Mahogany v.
Miller, 252 F. App'x 593, 595 (5th Cir. 2007) (holding inmate
does not have protected liberty interest in filing grievances).
Therefore, plaintiff's claims related to how his grievance was
handled are frivolous.
Morris v. Cross, 476 F. App'x 783, 785
(5th Cir. 2012); Staples v. Keffer, 419 F. App'x 461, 463 (5th
Cir. 2011) (finding prisoner "does not have a constitutional
right to a grievance procedure at all" and therefore, claims that
appeals within the prison system were "arbitrarily and
capriciously denied" are not cognizable).
Finally, the constitutional rights of a person are personal
in nature and, therefore, plaintiff cannot maintain this
complaint on behalf of another person.
780 F. 2d 1158, 1160 (5th Cir. 1986).
See Coon v. Ledbetter,
With that in mind, the
Court finds that plaintiff does not have standing to assert a
§ 1983 action on behalf of Mrs. Martin for the alleged unlawful
action of defendants toward Mrs.
Compl.  at 4; Pl.'s
Resp.  at 1.
The Court has considered the pleadings and applicable law.
For the reasons stated, this civil action is dismissed with
prejudice as frivolous and for failure to state a claim pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).2
This dismissal will
The United States Court of Appeals for the Fifth Circuit has
held that plaintiff's claims that are Heck-barred should be
"dismissed with prejudice to their being asserted again until the
Heck conditions are met." Johnson v. McElveen, 101 F.3d 423, 424
(5th Cir. 1996). Claims that are barred by Heck are legally
frivolous. See Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir.
1996); see also Johnson, 101 F.3d at 424 (holding "[u]nder Heck,
Johnson cannot state a claim" until his conviction is
count as a "strike" in accordance with the Prison Litigation
See 28 U.S.C. § 1915(g).
A Final Judgment in accordance with this Memorandum Opinion
and Order will be entered.
SO ORDERED AND ADJUDGED, this the 26th day of June, 2017.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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