Hicks v. Caskey et al
MEMORANDUM OPINION AND ORDER. Signed by District Judge Henry T. Wingate on 8/25/2011 (SM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
AUBREY "DOC" HICKS, #13714
CIVIL ACTION NO.
WARDEN DALE CASKEY,
LT. KINO REESE,
N. (NOVAN) WALKER-NAYLOR
and LEE CARMICHAEL
MEMORANDUM OPINION AND ORDER
This cause is before the Court, sua sponte, for consideration
Department of Corrections (MDOC), currently incarcerated in the
East Mississippi Correctional Institution, Meridian, Mississippi,
filed this complaint pursuant to 42 U.S.C. § 1983.
Defendants are Warden Dale Caskey, Lt. Kino Reese, N. (Novan)
Walker-Naylor and Lee Carmichael.
The Plaintiff seeks as relief
that the Rules Violation Report which is the subject of the instant
civil action be expunged from his inmate record, that he be granted
monetary damages and injunctive relief.
Plaintiff states that he was issued a "bogus and fabricated
(RVR) Rule Violation Report by Ofc. M. Nolan Walker-Naylor."
Compl.  at p. 3.
As a result of receiving the RVR, Plaintiff
Plaintiff asserts that his constitutional right of due process was
violated during this disciplinary proceeding.
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (as
amended), applies to prisoners proceeding in forma pauperis and
that "the court shall dismiss the case at any time if the
court determines that . . .(B) the action or appeal --
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 Plaintiff was granted in
forma pauperis status, Section 1915(e)(2) applies to the instant
In order to state a cognizable complaint pursuant to 42 U.S.C.
§ 1983, Plaintiff must allege that the Defendants deprived him of
a right secured to the plaintiff by the Constitution or the laws of
the United States.
See Baker v. McCollan, 443 U.S. 137, 140, 99 S.
Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979).
It is clear that
Plaintiff does not have a constitutional right to receive a certain
custodial classification while incarcerated.
Meacham v. Fano, 427
U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976);
Neals v. Norwood,
59 F.3d 530, 533 (5th Cir.1995)(a prison inmate does not have a
protectable liberty interest in his custodial classification). The
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).
classification of prisoners in certain custody levels is well
within the broad discretion of prison officials and should be “free
from judicial intervention.”
McCord v. Maggio, 910 F.2d 1248,
1250-51 (5th Cir.1990)(citations omitted).
To invoke the protections of the Due Process Clause, the
Plaintiff must have a protected liberty interest at stake.
constitutionally protected liberty interest is "limited to freedom
hardships on the inmate in relation to the ordinary incidents of
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct.
32 L.Ed. 2d 418 (1995).
The classification of Plaintiff in
a certain level of custody is not an "atypical and significant
hardship" of prison life.
The United States Court of Appeals for
the Fifth Circuit applying Sandin has held that "administrative
segregation, without more, simply does not constitute a deprivation
of a constitutionally cognizable liberty interest."
Kinker, 73 F.3d 612, 613 (5th Cir. 1996)(quoting Luken v. Scott, 71
F.3d 192, 193 (5th Cir.1995).
The protections afforded by the Due
Process Clause do not extend to “every change in the conditions of
confinement” which are adverse to a prisoner.
Madison v. Parker,
104 F.3d 765, 767-68 (5th Cir. 1997) (holding that an inmate’s 30day commissary and cell restrictions as punishment do not present
the type of atypical, significant deprivation in which a state
might create a liberty interest); see also Zamora v. Thaler, 407
Fed. Appx. 802 (5th Cir. Jan. 5, 2011)(finding that due process
concerns are not implicated when a prisoner receives as punishment
Plaintiff has failed to state a viable constitutional cause of
For the reasons set forth in this Memorandum Opinion and Order,
the Court finds that Plaintiff's complaint should be dismissed with
prejudice as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
A Final Judgment in accordance with this Memorandum Opinion and
Order will be entered on this date.
Since this case will be dismissed pursuant to 28 U.S.C.
Plaintiff receives “three strikes” he will be denied in forma
pauperis status and will be required to pay the full filing fee to
file a civil action or appeal.
SO ORDERED this the day of August, 2011.
s/ HENRY T. WINGATE
UNITED STATES DISTRICT JUDGE
Memorandum Opinion and Order
Civil action no. 4:11-cv-84-HTW-LRA
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