Johnson v. Epps et al

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court adopts the Report and Recommendation 39 in its entirety as the opinion of the Court. Defendants' Motion for Summary Judgment 34 is granted. Signed by Chief District Judge Daniel P. Jordan, III on 3/23/2020 (VM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CLEVELAND E. JOHNSON
V.

PLAINTIFF
CIVIL ACTION NO. 3:17-CV-856-DPJ-FKB

CHRISTOPER EPPS AND
SHANNON WARNOCK

DEFENDANTS

ORDER
Pro se prisoner Plaintiff Cleveland E. Johnson asserts equal-protection, due-process, and
personal-injury claims against former Commissioner of the Mississippi Department of
Corrections Christopher Epps and former Chairman of the Mississippi Parole Board Shannon
Warnock in this § 1983 case. Defendants moved for summary judgment [34], and United States
Magistrate Judge F. Keith Ball recommended [39] dismissal with prejudice of the constitutional
claims and dismissal without prejudice of the personal-injury claim. Johnson, a state prisoner
currently serving his prison sentence in the custody of the United States Bureau of Prisons,
timely filed an objection [44] to Judge Ball’s Report and Recommendation.
In his objection, Johnson does not address Judge Ball’s recommendation that the
personal-injury claim be dismissed without prejudice for failure to state a claim. The Court
therefore adopts that portion of the R&R as unopposed.
Johnson’s objection does discuss his constitutional claims, which state: “[t]he unlawful
withholding of a Parole Hearing and the improper computation of no parole eligibility violates
[his] rights . . . under the Fifth and Fourteenth Amendments of the United States Constitution.”
Compl. [1] ¶ 18. Specifically, Johnson says Mississippi law required that the state first consider

his eligibility for parole in 2013, and he appears to claim that he has yet to receive a parole
hearing.1 He asserts violations of his rights under the Due Process and Equal Protection Clauses.
Judge Ball correctly noted that, because “[p]arole . . . is discretionary in Mississippi,
[Mississippi] prisoners . . . have no liberty interest in parole.” Wansley v. Miss. Dep’t of Corr.,
769 F.3d 309, 312 (5th Cir. 2014). And because Johnson has no liberty interest in obtaining
parole, “he cannot complain of the constitutionality of procedural devices attendant to parole
decisions.” Id. at 312–13. “Whether or not [Johnson] is entitled to a parole hearing as a matter
of Mississippi law, the discretionary nature of the state’s parole system ends the federal due
process inquiry.” Id. at 313. Nothing in Johnson’s objection changes the application of Wansley
to Johnson’s federal-due-process claim.
As for Johnson’s equal-protection claim, Johnson neither identifies a protected class of
which he is a member nor alleges that he has been treated differently than others who are
similarly situated. See Gibson v. Tex. Dep’t of Ins. Div. of Workers’ Comp., 700 F.3d 227, 238
(5th Cir. 2012). That failure is fatal to his claim.
For the foregoing reasons, the Court adopts the Report and Recommendation [39] in its
entirety as the opinion of the Court. Defendants’ Motion for Summary Judgment [34] is granted.
The constitutional claims are dismissed with prejudice, and the personal-injury claim is
dismissed without prejudice. A separate judgment will be entered in accordance with Federal
Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 23rd day of March, 2020.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

1

Defendants submitted evidence indicating that Johnson has had several parole hearings.
2