Macaluso v. Tiger Commissary Network et al
MEMORANDUM OPINION AND ORDER of DISMISSAL. The sales tax claim is dismissed without prejudice for lack of jurisdiction. The remainder is dismissed with prejudice as frivolous. Signed by District Judge Tom S. Lee on 7/31/17. (copy mailed to plaintiff) (RRL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DENNIS ANDREW MACALUSO, # 204352
CIVIL ACTION NO. 3:17cv249-TSL-RHW
TIGER COMMISSARY NETWORK,
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, PELICIA HALL,
HARRISON COUNTY JAIL, TROY
LEGISLATURE, and SHERIFF PETER
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the court sua sponte.
plaintiff Dennis Andrew Macaluso is incarcerated with the
Mississippi Department of Corrections (“MDOC”), and he
challenges the conditions of his confinement.
The court has
considered and liberally construed the pleadings.
As set forth
below, this case is dismissed.
Macaluso is an MDOC inmate, currently housed at the
Jefferson-Franklin Regional Correctional Facility.
housed at this prison, he was a pretrial detainee at the
Harrison County Jail.
Defendant Tiger Commissary Network is
alleged to be an Internet-based, prison canteen vendor, from
Tiger Commissary is the prison canteen vendor for
MDOC, Jefferson-Franklin Regional Correctional Facility, and the
Harrison County Jail.
Defendant Pelicia Hall is the
Commissioner of MDOC.
Defendant Troy Peterson is the Sheriff of
Defendant Sheriff Peter Walker is the
Jefferson County Sheriff, alleged to be responsible for the
Jefferson-Franklin Regional Correctional Facility.
Defendants include MDOC, the Harrison County Jail, and the
Macaluso claims that Tiger Commissary subjects him to price
gouging on canteen items and that Peterson and Walker agreed to
the prices that Tiger Commissary set.
Macaluso asserts that he
complained to Hall about it, but she did not do anything to fix
He also blames the State Legislature for not passing laws
to protect him from price gouging on canteen.
Macaluso further complains that Tiger Commissary charges
him ten percent on all deposits made to his inmate account, as
well as purchases made from Tiger Commissary.
alleges that it and the State Legislature are charging him sales
tax on Internet sales from Tiger Commissary.
Finally, Macaluso complains that the Harrison County Jail
has a policy of refusing a refund when an inmate is transferred
from the jail and he has an outstanding commissary order.
Instead, a family member must come and pick up the order, or the
inmate must do without.
When Macaluso was transferred from
Harrison County to MDOC, he had an outstanding canteen order
that his wife picked up for him.
Macaluso brings this action under 42 U.S.C. § 1983,
asserting claims for equal protection, cruel and unusual
punishment, double jeopardy, and taxation in violation of the
He seeks damages and injunctive relief,
including to stop the sales tax.
The Prison Litigation Reform Act of 1996, applies to
prisoners proceeding in forma pauperis in this court.
statute provides in pertinent part, “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.”
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.”
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.”
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
court is authorized to test the proceeding for frivolousness or
maliciousness even before service of process or before the
filing of the answer.”
The court has permitted Macaluso to
proceed in forma pauperis in this action.
His Complaint is
subject to sua sponte dismissal under § 1915.
Macaluso sues all defendants for price gouging on the use
of prison commissary.
He also accuses Tiger Commissary and the
State Legislature of assessing a sales tax in violation of the
Finally, he claims Harrison County’s no refund
policy violates due process and the Eighth Amendment.
Macaluso first complains that he is charged too much money
for the use of his inmate account and purchase of canteen items.
He is allegedly charged ten percent on all deposits and
In addition to this ten percent fee, all items
purchased from the prison commissary are said to be two to three
times more expensive than like items sold in the free-world.
This, he claims, violates Equal Protection and constitutes cruel
and unusual punishment and double jeopardy.
Macaluso has no constitutional right to the use of prison
commissary, nor that it be provided to him at any particular
See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000)
(holding 30 day loss of commissary privileges did not implicate
due process); French v. Butterworth, 614 F.2d 23, 25 (1st Cir.
1980); Billizone v. Jefferson Par. Corr. Ctr., 14-2594, 2015
U.S. Dist. LEXIS 26615 at *12-13 (E.D. La. Feb. 9, 2015);
Kennith v. Mancuso, 12-2510, 2013 U.S. Dist. LEXIS 123266 at *5
(W.D. La. Aug. 1, 2013);
Armstrong v. Broadus, 1:08cv225-HSO-
JMR, 2009 U.S. Dist. LEXIS 125942, at *24-25 (S.D. Miss. Apr.
23, 2009); Hardin v. Johnson, 1:08cv36, 2008 U.S. Dist. LEXIS
26843 at *9-10 (N.D. Miss. Apr. 1, 2008); Reed v. Dallas Cty.
Sheriff’s Dep’t, 3:03cv2166, 2004 U.S. Dist. LEXIS 22474 at *16
(N.D. Tex. Sept. 28, 2004).
The claims concerning the ten
percent fees and cost of canteen items are frivolous and will be
dismissed with prejudice.
Next, Macaluso sues Tiger Commissary and the State
Legislature, complaining that he is being charged sales tax on
his purchases from Tiger Commissary, an alleged Internet-based
company from Arkansas.
He claims this is unconstitutional under
“the Amazon case.”
(Resp. at 2).
He thus appears to argue that
the sales tax violates the dormant Commerce Clause.
The dormant Commerce Clause “prohibits discrimination
against . . . and bars state regulations that unduly burden
298, 312 (1992).
Quill Corp. v. North Dakota, 504 U.S.
For example, the Commerce Clause prevents a
State from requiring that a vendor collect sales tax, when that
vendor has no physical presence in the State.
Id. at 311.
Furthermore, a customer who ultimately pays the sales tax on his
purchase has standing to raise the Commerce Clause issue.
Motors Corp. v. Tracy, 519 U.S. 278, 286 (1997).
Nevertheless, the Tax Injunction Act provides that the
“district courts shall not enjoin, suspend or restrain the
assessment, levy, or collection of any tax under State law where
a plain, speedy and efficient remedy may be had in the courts of
28 U.S.C. § 1341.
Mississippi has such a remedy.
Home Builders Ass’n v. City of Madison, 143 F.3d 1006, 1012 (5th
This statute’s jurisdictional bar also applies to
suits for tax refunds and for damages.
Moss v. Georgia, 655
F.2d 668, 669 (5th Cir. 1981) (damages); United Gas Pipe Line
Co. v. Whitman, 595 F.2d 323, 324 (5th Cir. 1979) (refund).
Principles of comity likewise bar taxpayers from asserting
§ 1983 actions for damages “against the validity of state tax
systems in federal courts.”
Fair Assessment in Real Estate
Ass’n v. McNary, 454 U.S. 100, 116 (1981).
“Such taxpayers must
seek protection of their federal rights by state remedies,
provided of course, that those remedies are plain, adequate, and
complete, and may ultimately seek review of the state decisions”
in the United States Supreme Court.
Because Macaluso challenges the collection of a Mississippi
sales tax and that State provides a plain, speedy, and efficient
remedy to address his claim, this court lacks jurisdiction over
the sales tax claim.
It is dismissed without prejudice.
NO REFUND POLICY
Finally, Macaluso challenges Harrison County’s alleged no
refund policy, under Due Process and the Eighth Amendment.
complains that a transferred inmate gets no refund for
outstanding canteen orders and must do without the order
altogether, unless his family member picks it up.
admits that he was not harmed by this policy, as he did receive
his particular commissary order.
This claim is frivolous.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, this case is dismissed.
The sales tax claim is
dismissed without prejudice for lack of jurisdiction.
remainder is dismissed with prejudice as frivolous.
final judgment shall issue pursuant to Federal Rule of Civil
SO ORDERED AND ADJUDGED, this the 31st day of July, 2017.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
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