Townsend v. Smith et al
Filing
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MEMORANDUM OPINION dismissing this matter with prejudice as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and will count as a strike pursuant to 28 U.S.C. § 1915(g). A final judgment will be entered. Signed by District Judge Carlton W. Reeves on 3/30/2012 (JS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
BRIAN KYLE TOWNSEND, #163455
VERSUS
PLAINTIFF
CIVIL ACTION NO. 4:12-cv-2-CWR-FKB
DELORIS SMITH, ET AL.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff Townsend, an inmate of the Mississippi Department of Corrections (MDOC),
currently incarcerated in the East Mississippi Correctional Facility, Meridian, Mississippi, filed
this pro se Complaint [1] pursuant to 42 U.S.C. § 1983. The named defendants are Deloris
Smith, Correctional Supervisor for Area II; Brenda Cox; and E.L. Sparkman.
By order [9] entered on March 1, 2012, Plaintiff was directed to provide additional
information concerning his claims. Plaintiff complied by filing a Response [11] on March 23,
2012. After liberal review of Plaintiff’s Complaint [1] and Response [11], the Court has reached
the following conclusions.
In his Complaint [1], Plaintiff states that on or about June 23, 2011, he received a Rules
Violation Report (RVR) for “making threatening or intimidating statement.” Compl. [1], at p.4.
Later, on July 26, 2011, Plaintiff was found guilty of said RVR and received as punishment the
loss of telephone privileges for 15 days and was placed in administrative segregation. Resp.
[11], at p.1. Plaintiff argues that he did not violate said rule. Compl. [1], at p.4. Additionally,
Plaintiff complains that the policies and procedures of the Mississippi Department of Corrections
(MDOC) were violated because the “delivering employee Officer Smith did not hear nor see this
incident occur.” Id. Plaintiff states that the RVR was based “on the word of another inmate.”
Id. Thus, Plaintiff contends that he was denied a fair disciplinary hearing. Id. Plaintiff also
claims that Defendants Sparkman and Cox “contribute[d] to the denial of due process when they
improperly made decisions to deny my ARP [Administrative Remedies Program] appeal.” Id.
I. 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.” The Court has permitted the Plaintiff to proceed in
forma pauperis1 in this action; therefore his Complaint is subject to sua sponte dismissal
pursuant to 28 U.S.C. § 1915(e)(2).
In order to have a viable claim under 42 U.S.C. § 1983, Plaintiff must allege that he was
deprived of a right secured by the Constitution or the laws of the United States. West v. Atkins,
487 U.S. 42, 48 (1988); Resident Council of Allen Parkway Village v. United States Dep’t of
Hous. & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.), cert. denied, 510 U.S. 820 (1993).
According to Plaintiff’s allegations, this Court finds that he is asserting that his constitutional
rights under the Due Process Clause have been violated as a result of being served with the RVR
charging him with “making threatening or intimidating statements; ” being found guilty of said
RVR; and having his ARP appeal challenging said RVR denied. Compl. [1] at p.1.
To invoke the protections of the Due Process Clause, Plaintiff must have a protected liberty
interest at stake. A constitutionally protected liberty interest is “limited to freedom from restraint
which . . . imposes atypical and significant hardships on the inmate in relation to the ordinary
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Plaintiff was granted permission to proceed in forma pauperis by Order [10] entered on March 1, 2012.
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incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (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. See Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir. 1997)
(holding that an inmate’s 30 day commissary and cell restrictions as punishment do not present
the type of atypical, significant deprivation in which a state might create a liberty interest);
Moore v. Sawyer, 2010 WL 6004375, at *1 (E.D. Tex. Jul. 26, 2010)(determining that loss of
phone and visitation privileges did not rise to a level of a constitutional deprivation); King v.
Sims, 2009 WL 2497154, at *5 (S.D. Miss. Aug. 14, 2009) (finding that reclassification,
reassignment and loss of canteen, phone and visitation privileges did not constitute a violation of
plaintiff's constitutional rights); see also Sharp v. Anderson, 2000 WL 960568, at *1 (5th Cir.
2000)(concluding inmate’s claim that he was kept in administrative segregation for 112 days
after he was found not guilty of a disciplinary charge did not implicate the protections of the due
process clause). Therefore, Plaintiff simply did not suffer an atypical and significant hardship in
relation to the ordinary incidents of prison life by losing his prison telephone privileges for 15
days and being placed in administrative segregation. Thus, he has not suffered a constitutional
deprivation that is cognizable under 42 U.S.C. § 1983. See Braxton v. Gusman, 2011 WL
802622, at *4-5 (E.D. La. Feb. 7, 2011).
As for Plaintiff's claim concerning the disciplinary hearing, this Court finds that “Federal
Courts do not review a disciplinary hearing officer’s factual findings de novo, instead the courts
will only consider whether the decision is supported by ‘some facts’ or by ‘a modicum of
evidence.’” See Hill v. Director, TDCJ-CID, 2001 WL 2600613, at *3 (E.D. Tex. May 12, 2011)
(citing Superintendent v. Hill, 472 U.S. 445,454-55 (1985); Hudson v. Johnson, 242 F.3d 534,
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537 (5th Cir. 2001)). “In reviewing prison administrative actions, the Court must uphold
administrative decisions unless they are arbitrary and capricious.” Braxton v. Gusman, 2011 WL
802622, at *4-5 (citing Stewart v. Thigpen, 730 F.2d 1002, 1005 (5th Cir. 1984)). The decision
at the Plaintiff’s disciplinary hearing was supported by the staff’s statement and observation. See
Resp. [11-1] at p.2. Therefore, there were “some facts” to base the finding of guilty at the
disciplinary hearing. See Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir. 2001)(finding that
"[i]nformation provided in a written incident report standing alone can satisfy the 'some evidence'
standard"). With that in mind, this Court finds that Plaintiff cannot maintain this claim.
Finally, Plaintiff “does not have a federally protected liberty interest in having . . .
grievances resolved to his satisfaction. As he relies on a legally nonexistent interest, any alleged
due process violation arising from the alleged failure to investigate his grievances is indisputably
meritless.” Braxton v. Gusman, 2011 WL 802622, at *4-5, (quoting Geiger v. Jowers, 404 F.3d
371, 374-75 (5th Cir. 2005)(citations omitted). Moreover, "[t]he Fifth Circuit has indicated that
allegations that a prison official has failed adequately to follow particular prison rules,
regulations or procedures, such as an ARP, cannot support a Section 1983 claim, without an
independent constitutional violation." Id., (citing Eason v. Thaler, 73 F.3d 1322, 1325-26 (5th
Cir. 1996)). As discussed above, the claims of the instant civil action does not rise to a level of
constitutional deprivation of Plaintiff's rights under the Due Process Clause and, therefore,
Plaintiff cannot maintain this claim.
II. Conclusion
As stated above, Plaintiff's allegations do not implicate due process concerns. Therefore,
the instant civil action will be dismissed with prejudice as legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), see Sharp v. Anderson, 2000 WL 960568, at *1 (5th Cir. 2000)(determining
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that the dismissal by the District Court of a § 1983 suit regarding a disciplinary violation as
frivolous was proper and also dismissing the appeal as frivolous), and will count as a strike
pursuant to 28 U.S.C. § 1915(g).
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 Plaintiff
receives “three strikes,” he will be denied in forma pauperis 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 Memorandum Opinion.
SO ORDERED this the 30th day of March, 2012.
s/Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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