Walters v. Fisher et al
MEMORANDUM OPINION AND ORDER OF DISMISSAL: that this case should be, and is hereby dismissed with prejudice. A separate final judgment shall issue. Signed by District Judge Carlton W. Reeves on 10/13/2016 (cwl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CHRISTOPHER W. WALTERS, # 85066
CIVIL ACTION NO. 3:16cv577-CWR-FKB
COMMISSIONER MARSHALL FISHER,
GIA MCLOUD, ALISHA BOX, JUDGE
DAL WILLIAMS, ANTHONY J. BUCKLY,
DENNIS BISNETTE, BRAD THOMPSON,
and JEWORSKI MALLETT
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court sua sponte. Pro se Petitioner Christopher W. Walters is
incarcerated with the Mississippi Department of Corrections (“MDOC”), and he challenges his
convictions, sentences, and parole eligibility date, under 42 U.S.C. § 1983. The Court has
considered and liberally construed the pleadings. For the reasons set forth below, the Court finds
that this case should be dismissed.
Walters alleges that he was originally convicted in Lauderdale County for possession of
precursors with intent to manufacture methamphetamine. He was paroled on this charge, but when
he picked up two new charges in Jones County, he was sent back to MDOC to serve the remaining
fourteen years and 364 days on his first conviction.
Walters claims that he was likewise convicted and sentenced separately in Jones County on
the two new charges possession of methamphetamine with intent to distribute and grand larceny.
He was represented by attorney Brad Thompson, a Defendant in this action. Defendant Judge Dal
Williams presided over this criminal matter, and it was prosecuted by Defendant Anthony J. Buckly,
District Attorney, and Assistant District Attorney Dennis Bisnette. On the advice of his attorney,
Walters pled guilty to both counts. For possession, he was sentenced to twenty years, with ten to
serve, followed by five years on probation. For grand larceny he was sentenced to 5 years,
concurrent to Count 1. He claims, however, that he was sentenced to five more years than offered
in the plea deal and five years over the statutory maximum allowed for possession. He sues the
Judge, the prosecutors, and his defense counsel for the allegedly wrongful convictions and sentences.
Once back at MDOC, Walters claims it misapplied the sentences. Specifically, he complains
that MDOC is running his ten year sentence consecutively to the Lauderdale County sentence and
is running the five year sentence concurrently with the Lauderdale County sentence, for a total
duration of 24 years, 364 days. He believes that MDOC should run all sentences concurrently, which
would result in an earlier release date, and that he has already satisfied his original sentence from
Besides the release date, Walters claims that MDOC has denied him due process and inflicted
cruel and unusual punishment because MDOC has also allegedly miscalculated his parole eligibility
date. MDOC has given him a parole eligibility date in 2018, but Walters maintains that he is actually
past his true parole eligibility date. He accuses Defendant Commissioner Marshall Fisher, Alisha
Box, Jeworski Mallett, and the Inmate Legal Assistance Program director Gia McLoud of affirming
the allegedly incorrect sentence and parole eligibility calculations.
The Prison Litigation Reform Act of 1996 (“PLRA”) applies to prisoners proceeding in
forma pauperis in this Court. The PLRA provides in part that “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). This framework “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) (quotation omitted).
“[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. Because the Court has permitted Walters to proceed in forma pauperis,
the Complaint is subject to the provisions allowing for sua sponte dismissal under § 1915.
Walters challenges his convictions, sentences, and parole eligibility date, under § 1983. He
seeks damages and earlier parole consideration.
CONVICTIONS AND SENTENCES
First, Walters claims that his guilty pleas to possession of methamphetamine and grand
larceny were involuntary, that his sentences as imposed are excessive, and that his sentences, even
as imposed, are being miscalculated by MDOC. A civil action that challenges the fact or duration
of a conviction or sentence “is barred (absent prior invalidation) . . . if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005). In such a case, a plaintiff “must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a . . . tribunal authorized
to make such a determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Where success on the claim “will not
necessarily imply the invalidity of confinement or shorten its duration,” then the action may proceed.
Wilkinson, 544 U.S. at 82. Heck applies to a challenge over the computation or calculation of a
sentence. McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995).
Walters complains that his guilty pleas were unknowing and in violation of his right to
effective assistance of counsel, that his sentences exceed both the statutory maximum and his plea
agreement, and that MDOC is keeping him in prison longer than even these allegedly illegal
sentences mandate. Success on any one of these claims would necessarily invalidate his state court
convictions and sentences. The claims may only proceed if he proves the convictions, sentences, or
sentence calculations have already been invalidated. He admits that they still stand.
Because the Jones County convictions and sentences and MDOC’s sentence calculations
have not yet been invalidated, Walters is precluded by Heck from challenging them in this civil
action. This case is dismissed with prejudice for failure to state a claim, until such time as he
successfully has them invalidated, via appeal, post conviction relief, habeas, or otherwise. Johnson
v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). This dismissal counts as a strike under § 1915(g).
Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
PAROLE ELIGIBILITY DATE
Next, Walters contends he is being denied due process and suffering cruel and unusual
punishment because he is not being given timely parole consideration. In Mississippi, whether to
grant parole is a discretionary decision; therefore Mississippi prisoners have no liberty interest in
parole. Wansley v. Miss. Dep’t of Corrs., 769 F.3d 309, 312 (5th Cir. 2014). Walters does not ask
for parole but instead asks for the opportunity to be considered for parole earlier than 2018.
Nevertheless, “an expectation of receiving process is not, without more, a liberty interest protected
by the Due Process Clause.” Id. Walters merely asserts that he has an expectation of receiving
earlier parole consideration than he is being given. Without more, this is simply not a liberty interest
protected by the Due Process Clause. This claim is dismissed as frivolous.
As for the Eighth Amendment claim, the Fifth Circuit Court of Appeals has held that the
“disappointment” and “psychological distress which . . . prisoners suffer from [a parole board’s]
arbitrary and capricious denials of parole” does not equate to cruel and unusual punishment. Cook
v. Whiteside, 505 F.2d 32, 34 (5th Cir. 1974). Walters’s claim of a mere delay in parole
consideration can fare no better. The delay is likewise “a disappointment rather than a punishment
of cruel and unusual proportions.” Miller v. Owens, No. A-10-CA070, 2011 U.S. Dist. LEXIS
69754 at *23 (W.D. Tex. June 29, 2011). This claim is dismissed with prejudice for failure to state
a claim. Cook, 505 F.2d at 34.
IT IS THEREFORE ORDERED AND ADJUDGED that this case should be, and is
hereby DISMISSED WITH PREJUDICE. The claims challenging the convictions, sentences, and
sentence calculations are dismissed for failure to state a claim, until such time as pro se Plaintiff
Christopher W. Walters successfully has them invalidated, via appeal, post conviction relief, habeas,
or otherwise. The remainder is dismissed as frivolous and for failure to state a claim. This dismissal
counts as a strike under 28 U.S.C. § 1915(g). A separate final judgment shall issue pursuant to
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 13th day of October, 2016.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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