United States District Court, S.D. Mississippi, Jackson Division
DAVID E. PAYNE, Plaintiff,
ACA, ET AL., Defendants.
REPORT AND RECOMMENDATION
F. KEITH BALL, Magistrate Judge.
This cause is before the undersigned for a Report and Recommendation as to the Motion to Dismiss filed by Defendant Thornton , as well as the Motion to Dismiss for Lack of Jurisdiction filed by the United States  and the Motion to Dismiss filed by Defendant Berry . Having considered these motions, and the entire record in this matter, the undersigned recommends that all three motions be construed as motions for summary judgment and be granted. The undersigned recommends that Plaintiff's Motion to Stay  be denied.
FACTS AND HISTORY
Plaintiff David E. Payne, a state inmate incarcerated at the Central Mississippi Correctional Facility in Pearl, Mississippi, brought this action pursuant to 42 U.S.C. § 1983, alleging a myriad of constitutional violations against a multitude of defendants. . A number of defendants and claims have already been dismissed. [8, 41, 73]. As noted in the Court's previous Report and Recommendation , the essence of Plaintiff's complaint with respect to Defendant Thornton is that Defendant Thornton refused to allow Plaintiff to retain voluminous legal materials in his cell, and, instead, required that Plaintiff send them to storage to comply with prison regulations regarding the volume of paper allowed in cells.  at 7-8.
Plaintiff's claim against Defendant Berry, an employee of the United States Department of Veterans Affairs, sued in both her official and individual capacities, is that he requested from her a progress report regarding his veterans benefits, as well as the name and address of his Veterans Affairs representative, but Defendant Berry failed to respond.  at 9.
Defendant Thornton has now moved to dismiss on the same bases as the other state defendants previously dismissed-Eleventh Amendment immunity and qualified immunity. The United States has moved to dismiss on the basis that Plaintiff has not set out a legal duty and breach thereof by the United States acting through Patricia Berry in her official capacity. Patricia Berry has moved to dismiss the claims against her in her individual capacity on the bases that Plaintiff has not stated a claim and that she, in any event, is entitled to qualified immunity. Plaintiff filed a response  to Defendant Thornton's Motion, and also filed a response  to the motions filed by the United States and Patricia Berry.
A. Defendant Thornton
Plaintiff alleges that Defendant Thornton threatened to destroy his legal materials if Plaintiff did not send them to storage in compliance with prison regulations, then forced Plaintiff to put his materials in a box and send them to storage.  at 7-8. Plaintiff's claims against Defendant Thornton should be dismissed for the same reasons the claims against Defendant Funchess were dismissed. [65, 73].
As the Court noted in a prior Opinion and Order  in this case, the State of Mississippi, its governmental entities and their officials sued in their official capacities are not amenable to suit pursuant to Section 1983, Will v. Mich. Dep't of State Police, 491 U.S. 58, 64 (1989), with the exception of state officials sued for prospective relief. Accordingly, the undersigned recommends that all claims against Defendant Thornton in his official capacity, except those for prospective relief, be dismissed based on Eleventh Amendment immunity.
Plaintiff seeks prospective relief in this case, including the return of all of his legal documents to his cell. It is well-established that state court prisoners have a right of access to the courts, which encompasses a right to legal materials, but that the right is subject to reasonable regulation for security purposes. Johnson v. Avery, 393 U.S. 483, 490 (1969); Cruz v. Hauck, 515 F.2d 332 (5th Cir. 1975). Time and location restrictions have specifically been approved. See Johnson, 393 U.S. at 490.
The regulation at issue, which prohibits more than six inches of paper in a cell, has been upheld by the Fifth Circuit. Pruitt v. Sparkman, 98 Fed.Appx. 281, 282 (5th Cir. 2004). Plaintiff has not shown any injury as a result of the application of this regulation to his legal materials. The removal of papers from Plaintiff's cell did not prevent his access to the courts. As noted in the Court's previous Report and Recommendation , Plaintiff's claim that not having all his legal papers in his cell caused his habeas petition to be denied is simply not true. The incident involving Defendant Thornton took place in 2010. Plaintiff's habeas petition was denied on the basis that it should have been filed in 1998. Moreover, Plaintiff filed several documents in his habeas case from October, 2010 until April, 2011, when he designated the record for appeal of that matter. Payne v. Epps, 4:10-cv-54-DPJ-FKB.
As for claims against Defendant Thornton in his individual capacity, Plaintiff must demonstrate that Defendant Thornton personally violated a statutory or constitutional right of which a reasonable official would have been aware. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiff's claims against Thornton fail on the first prong since Thornton did not violate any protected right by insisting that Plaintiff comply with valid prison regulations.
Plaintiff cannot recover against Defendant Thornton without showing that a federally protected right has been violated. Plaintiff has failed to make any such showing, and his ...