Hopson v. Caskey et al

Filing 7

OPINION AND ORDER Dismissing civil action as frivolous and will be counted as a strike.. Signed by Judge Tom S. Lee on 9/21/06. (Beard, M)

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Hopson v. Caskey et al Doc. 7 Case 4:06-cv-00090-TSL-JCS Document 7 Filed 09/21/2006 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION MARK HOPSON, #72592 VERSUS CIVIL ACTION NO. PLAINTIFF 4:06cv090TSL-JCS WARDEN CASKEY, UNKNOWN GRAHAM, UNKNOWN MOORE, UNKNOWN NOEL, CHRIS EPPS, UNKNOWN BUSH, AND UNKNOWN ATWOOD OPINION AND ORDER This cause is before the court, sua sponte, for consideration of dismissal. DEFENDANTS Plaintiff Mark Hopson is an inmate at the East Mississippi Correctional Facility (EMCF), Meridian, Mississippi. 1983. He has filed this complaint pursuant to 42 U.S.C. According to page 2 of the complaint, the defendants are The other named Warden Caskey, Ms. Noel, and Christopher Epps. people are witnesses. The plaintiff seeks as relief monetary damages and that he be transferred to Central Mississippi Correctional Facility (CMCF) or a facility of his choice. Background The plaintiff states that he has been asking for a transfer from the EMCF to another facility since 2003. On March 24, 2006, the plaintiff states in his complaint that he was informed by Dr. Bass that Parchman had "turn[ed] down [the plaintiff's] transfer." CMCF. The plaintiff then requested to be transferred to He was told that he would be transferred to another facility at a later time after he had been evaluated by the treatment team. According to the allegations, there have been Dockets.Justia.com Case 4:06-cv-00090-TSL-JCS Document 7 Filed 09/21/2006 Page 2 of 4 several inmates transferred from EMCF and other inmates transferred into EMCF. Even though the plaintiff has been told that he would be transferred to another facility, he still remains at EMCF. Analysis The Prison Litigation Reform Act, 28 U.S.C. 1915(e)(2) (as amended), applies to prisoner proceedings in forma pauperis and provides that "the court shall dismiss the case at any time if the court determines that . . .(B) the action or appeal -(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." Since the plaintiff was granted in forma pauperis status, Section 1915(e)(2) applies to the instant case. The plaintiff's claim concerning being housed in a particular facility is frivolous1; therefore this complaint shall be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(i), with prejudice. It is clear that the plaintiff does not have a constitutionally protected right to be housed in a particular facility while incarcerated. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 32 L.Ed. 2d 418 (1995) (citing Meachum v. Fano, 427 A case that is found to be legally frivolous is one that seeks to assert a "right" or address a "wrong" clearly not recognized by federal law. See, e.g., Neitzke v. Williams, 490 U.S. 319 (1989). 2 1 Case 4:06-cv-00090-TSL-JCS Document 7 Filed 09/21/2006 Page 3 of 4 U.S. 215 (1976)). A constitutionally protected liberty interest will be "limited to freedom from restraint which . . . imposes atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Since the placement at a certain institution is not an "atypical and significant hardship", there has been no constitutionally protected right created. The Mississippi statute governing commitments to the Department of Corrections establishes that a person is committed to the "department, not to a particular institution or facility." (1972), as amended. MISSISSIPPI CODE ANNOTATED 47-5-110 The defendants' decision to house the plaintiff at EMCF instead of a facility of the plaintiff's choosing does not violate his constitutional rights. Conclusion It is clear that there is no constitutionally protected right to be placed in a certain facility. Therefore, the plaintiff cannot maintain this civil action and it will be dismissed as frivolous. Three-Strikes provision Since this case is dismissed pursuant to the above mentioned provision of the Prison Litigation Reform Act, it will be counted as a "strike". See 28 U.S.C. 1915(g). If the plaintiff receives "three strikes" he will be denied in forma pauperis 3 Case 4:06-cv-00090-TSL-JCS Document 7 Filed 09/21/2006 Page 4 of 4 status and required to pay the full filing fee to file a civil action or appeal. A final judgment will be entered in accordance with this opinion and order. SO ORDERED this the 21st day of September, 2006. /s/ Tom S. Lee UNITED STATES DISTRICT JUDGE 4

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