United States District Court, Southern District of Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE
The parties appeared and participated in an omnibus or Spears hearing on January 27, 2015. Plaintiff Merlin Dancey Hill appeared pro se, Defendants Marcell Walker, J. Buscher, D. Smith, and Management & Training Corporation [“MTC”] were represented by Steven J. Griffin; Defendant Ollie Little was represented by Robert Pedersen; and Defendant Christopher Epps was represented by Tommy Goodwin. Prior to the hearing, on July 31, 2014, Defendant Little filed a Motion to Dismiss Complaint , and argument regarding that motion was heard. After consideration of the motion, the supporting pleadings, Hill’s sworn testimony, the record, and the applicable law, the Court finds that Plaintiff has failed to state a constitutional claim upon which relief may be granted as to any Defendant, and his Complaint must be dismissed under 28 U.S.C. § 1915. Furthermore, the motion of Defendant Little is well-taken and shall be granted.
I. Plaintiff’s Claims
Jurisdiction of this case is based upon 42 U.S.C. § 1983. On or about June 2, 1998, Plaintiff was convicted of a felony and sentenced to a term of life in prison. He was placed in the custody of the Mississippi Department of Corrections [MDOC] at that time and was housed in the East Mississippi Correctional Facility [EMCF] in 2011. MTC managed the EMCF in 2011. Plaintiff is a veteran of the United States Air Force, having served from October 16, 1979, until he left the service upon honorable discharge on or about September 1, 1993.
Plaintiff claims that he is disabled due to headaches, hearing problems, insomnia, alcohol abuse, and paranoid schizoaffective disorder. Claiming that these medical problems were related to his military service, he filed an application for disability benefits with the Veteran’s Administration [VA] on July 14, 2011. On June 18, 2013, he received a letter from the Department of Veteran’s Affairs stating that they were attempting to schedule medical examinations to substantiate his claims of service-related disabilities, and notifying him that his failure to attend these examinations could result in the denial of benefits. Plaintiff testified that he contacted Ms. Brown, a mental health counselor working at EMCF, to discuss being transported for the required medical exams. She explained to him that it was MTC’s policy to refer all contact with the VA to the unit case manager, Defendant Michael Walker. Plaintiff suggested that the VA be allowed to come to EMCF to perform his examination, but the Warden refused to allow this. Other Mississippi prisons, such as the facility at Walnut Grove, do allow the VA to come on the premises for this purpose, according to Plaintiff. He contends that the past policy at EMCF was to regularly allow transportation of prisoners to the VA for both treatment and examinations. When MTC took over, and Defendant Little became medical director, this policy was changed by him to deny such transportation.
According to Plaintiff, Defendant Walker failed to have him transported to Jackson for the medical examination. He received a letter from the VA on June 26, 2013, informing him that his application was denied because the VA was informed by EMCF that Plaintiff could not be transported by EMCF. His appointments were cancelled on June 18, 2014, because of EMCF’s communication. According to Plaintiff, he lost his appeal with the VA, and he is permanently denied from reapplying for these benefits.
Plaintiff claims that he lost veteran’s benefits for him and for his family due to these Defendants’ actions. He contends that these Defendants "denied or chilled" his "First Amendment Rights to petition the government for redress of grievances." Complaint, p. 4. He also claims that Defendant Little violated MDOC policy 25-11-E, which requires the medical department to schedule on-site and off-site appointments. Plaintiff also charges that these Defendants violated Miss. Code Ann. § 47-3-3, as well as his First, Fifth, Eighth and Fourteenth Amendment Rights.
Plaintiff exhausted his administrative remedies in this case. His First Step Response was given by Defendant Major Smith, dated November 30, 2013 [31-1, p. 13]. Major Smith responded to his ARP by stating that the transport of offenders to another facility has to be done per court order and approved by MDOC authorities. According to Major Smith, staff would not have cancelled his appointment or refused to have taken Plaintiff if an Order had been obtained. The Second Step response was given by Defendant Warden Buscher, and he reiterated the response from the First Step that transport must be done per court order and approved by MDOC authorities. Further, he advised that Plaintiff's records "do not show that EMCF/MTC has received any orders to transport you to Jackson VA Medical facility for a preapproved appointment. MDOC only makes the decision to allow you to attend the VA requests, not EMCF/MTC Officials." [31-1, p. 15].
II. Standard of Review
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. See Wright & Miller, Federal Practice and Procedure: Civil 3d § 1356 (2004). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain enough factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, ’” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Plaintiff was granted in forma pauperis status by this Court by Order entered April 24, 2014 . A court must “dismiss [an IFP] case at any time if the court determines that .. . the action . . . (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.” 28 U.S.C. § 1915(e)(2)(B). Under the IFP statute, “[a] claim may be dismissed for failure to state a claim upon which relief can be granted if, assuming all well-pleaded facts are true, the plaintiff has not stated enough facts to state a claim to relief that is plausible on its face.” Jones v. McDuffie, 539 F. App’x 435, 435 (5th Cir. 2013) (per curiam) (internal quotation marks omitted).
To properly state a claim, “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
A pro se prisoner is entitled to develop his complaint factually before a proper frivolousness determination can be made. See Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). The purpose of a Spears hearing is to "bring into focus the factual and legal bases of prisoners' claims." Id. at 9 (quoting Spears, 766 F.2d at 181). The omnibus or Spears hearing was conducted for this purpose, in part, and Plaintiff was allowed to fully explain in his own words the factual ...