Blankenship v. Byrd et al
Filing
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MEMORANDUM OPINION. This case is dismissed as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii), with prejudice, which will be counted as a strike. 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. Signed by Honorable David C. Bramlette, III on June 10, 2013. (lda)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JONATHAN DALE BLANKENSHIP, #115012
VERSUS
PLAINTIFF
CAUSE NO. 5:12-cv-162-DCB-MTP
WARDEN R. BYRD, OFFICER UNKNOWN CHAMBERS,
and WARDEN UNKNOWN VINES
DEFENDANTS
MEMORANDUM OPINION
This cause is before the Court, sua sponte, for consideration of dismissal. Plaintiff
Blankenship, an inmate of the Mississippi Department of Corrections (MDOC), filed this pro se
Complaint pursuant to 42 U.S.C. § 1983, on December 7, 2012. Plaintiff’s request to proceed in
forma pauperis was granted on May 10, 2013. The named Defendants are Warden R. Byrd,
Officer Unknown Chambers and Warden Unknown Vines. Upon liberal review of the
Complaint and Response [14], the Court has reached the following conclusions.
In August of 2012, Plaintiff was incarcerated in the Wilkinson County Correctional
Facility, when he was found guilty of a prison rule violation report (RVR) for smuggling
contraband. As a result of this guilty finding, Plaintiff was placed in administrative segregation
for twenty days and he lost his visitation, canteen, and telephone privileges for sixty days.
Resp. [14] at 2. Plaintiff also states that this guilty finding prevented him from obtaining “Bcustody,” or a less restrictive classification level. Id. Plaintiff’s appeal of the RVR and
resulting punishment was denied.1
Plaintiff complains that the RVR and accompanying disciplinary process violated his
1
Plaintiff has attached a copy of Warden Byrd’s response denying his appeal (via the MDOC
administrative remedy program) of the RVR and resulting punishment. See Doc. [1-3].
constitutional rights and MDOC policy and procedure. Specifically, Plaintiff claims that he is
factually innocent of the charges, that the RVR contained administrative errors, and that his
disciplinary hearing was not held within the time limit specified by MDOC policy. Plaintiff
further complains that Warden Byrd denied his appeal within the administrative remedy program
without “a proper investigation.” Compl. [1] at 4. As relief, Plaintiff is seeking monetary
damages and the removal of the RVR from his prison records.
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.” Since the Court has permitted Plaintiff to proceed
in forma pauperis in this action, his Complaint is subject to sua sponte dismissal under 28 U.S.C.
§ 1915(e)(2).
In order to have a viable claim under 42 U.S.C. § 1983, a plaintiff “must allege facts
showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege
or immunity secured by the United States Constitution or the laws of the United States.” Bryant
v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010)(citation omitted). Initially, the
Court notes that an inmate does not have a constitutional right to receive a certain custodial
classification while incarcerated. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir.1995); see also
Parker v. Currie, 359 F. App’x 488, 490 (5th Cir. 2010)(holding an inmate’s “mere
disagreement with a [custodial] classification is insufficient to establish a constitutional
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violation”). Furthermore, the 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).
At best, Plaintiff is asserting that his constitutional rights were violated under the Due
Process Clause when he was placed in segregation and his visitation, canteen, and telephone
privileges were restricted. However, 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). 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 incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995).
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.” Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir.
1996)(quoting Luken v. Scott, 71 F.3d 192, 193 (5th Cir.1995)). The denial of prison privileges
or the classification of Plaintiff in a certain custody level is not an “atypical and significant
hardship” of prison life. See Wilkerson v. Stalder, 329 F.3d 431, 435-36 (5th Cir. 2003) (noting
that “this circuit has continued to hold post-Sandin that an inmate has no protectable liberty
interest in his classification” and remanding case to determine if lock-down status for thirty years
was “atypical” under Sandin); Lewis v. Dretke, 54 F. App’x 795 (5th Cir. 2002)(finding
restrictions on commissary and telephone privileges resulting from allegedly false disciplinary
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charges does not implicate due process); Berry v. Brady, 192 F.3d 504, 508 (5th Cir.
1999)(holding inmate has no constitutional right to visitation privileges). In sum, Plaintiff does
not have a constitutionally protected right to a certain classification level or any privileges
associated with a certain custody level while in prison.
Likewise, an inmate does not have a federally protected liberty interest in having a prison
grievance investigated or resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371, 373-74
(5th Cir. 2005); Staples v. Keffer, 419 F. App’x 461, 463 (5th Cir. 2011)(finding prisoner “does
not have a constitutional right to a grievance procedure at all” therefore claims that appeals
within the prison system were “arbitrarily and capriciously denied” are not cognizable). As
such, Plaintiff’s claims related to how his grievance or appeal of this guilty finding was handled
within the prison administrative remedy program are not cognizable.
Finally, Plaintiff is not entitled to relief under § 1983 based on his claim that MDOC
policy and procedure was violated by this RVR and resulting disciplinary process. These
allegations, without more, simply do not rise to a level of constitutional deprivation. See Guiden
v. Wilson, 244 F. App’x 980, 981 (5th Cir. 2009) (citing Hernandez v. Estelle, 788 F.2d 1154,
1158 (5th Cir 1986)) (“A violation of a prison rule by itself is insufficient to set forth a claim of a
constitutional violation.”).
II. Conclusion
As explained above, Plaintiff’s placement in a certain custody level and the denial of
prison privileges does not amount to a constitutional deprivation. Nor does an unfavorable
response to a prison grievance or a failure to follow prison policy amount to a constitutional
deprivation. Therefore, this case is dismissed as frivolous and for failure to state a claim,
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pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii), with prejudice. See Berry, 192 F.3d at 508
(finding inmate’s § 1983 claim based on denial of visitation privileges properly dismissed as
both frivolous and for failure to state a claim); Morris v. Cross, 476 F. App’x 783, 785 (5th Cir.
2012)(finding inmate’s claim that he was denied adequate investigation into his grievance was
properly dismissed as frivolous).
Since this case is dismissed pursuant to the above-mentioned provisions of the Prison
Litigation Reform Act, it will be counted as a “strike.”2 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 in accordance with this Memorandum Opinion will be entered.
SO ORDERED AND ADJUDGED, this the 10th
day of June, 2013.
s/David Bramlette
UNITED STATES DISTRICT JUDGE
2
28 U.S.C. § 1915(g) states “[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of serious physical
injury.”
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