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Robinson v. Shaw

United States District Court, S.D. Mississippi, Western Division

March 9, 2017



          Michael T. Parker United States Magistrate Judge

         BEFORE THE COURT is the pro se and in forma pauperis (“IFP”) Complaint [1] of Plaintiff Scooter Lynn Robinson, filed pursuant to 42 U.S.C. § 1983. Following the Spears[1]hearing in this case, the Court finds that: (1) Plaintiff's claims against Shanquita Rowan and Alonzo Harvey regarding due process violations stemming from a Rules Violation Report (“RVR”) hearing should be dismissed; (2) Plaintiff's claim that Delvettia Davis was deliberately indifferent to him as food made him sick should be dismissed; and (3) Plaintiff's claims regarding the alleged lack of response to his grievances, lack of investigation of his complaints, and having grievances decided against him should be dismissed.


         As Plaintiff's claims are brought under 42 U.S.C. § 1983, the Court has subject matter jurisdiction based on a federal question pursuant to 28 U.S.C. § 1331. Plaintiff was incarcerated at the Wilkinson County Correctional Facility (“WCCF”) during the alleged events, and is currently incarcerated at South Mississippi Correctional Institution (“SMCI”). A Spears hearing was held in this case on February 23, 2017, at which Plaintiff's claims were clarified and amended.[2]


         The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2), 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 Plaintiff was granted in forma pauperis status, Section 1915(e)(2) applies to the instant case.

         In considering whether a plaintiff has stated a claim on which relief may be granted, the “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” Martin K . Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         A plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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).” Id. at 555 (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.” Iqbal, 556 U.S. at 678. “This standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary claims or elements.” In re S. Scrap Material Co., 541 F.3d 584, 587 (5th Cir. 2008) (quoting Twombly, 550 U.S. at 556).

         Due Process Claim

         Plaintiff claims he was issued three RVRs on May 1, 2015, as a result of a physical interaction with Officer Julius Anderson. Plaintiff alleges that the hearing on the RVRs was untimely under MDOC policy because it did not occur within seven days.

         Plaintiff alleges he was found guilty of all three violations. He states that Disciplinary Officers Shanquita Rowan and Alonzo Harvey reviewed a video of the incident, but nonetheless, should have found him not guilty. He claims that as a result of being found guilty, Shanquita Rowan recommended he be reclassified. Plaintiff also claims he lost phone privileges for 30 days and lost commissary and visitation for 18 months. Plaintiff claims that Shanquita Rowan and Alonzo Harvey finding him guilty and ordering the loss of commissary and visitation for that length of time constitutes retaliation and violation of MDOC policy. When asked to clarify the retaliation claim, Plaintiff was unable to provide specifics.[3]

         At best, Plaintiff is asserting that his constitutional rights were violated under the Due Process Clause during the disciplinary (RVR) proceeding. 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). Plaintiff's purported reduction in custody level and loss of visitation and commissary are not “atypical and significant hardships” of prison life. Furthermore, 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) (inmate's temporary loss of commissary and cell restrictions as punishment do not present the type of atypical, significant deprivation in which a state might create a liberty interest); Charriez v. Sec'y, Florida Dep't of Corr., 596 F.App'x 890, 894 (11th Cir. 2015)(Plaintiff did not have “state-created liberty interest in unfettered visitation such that a one-year suspension of his visitation privileges would impose ‘atypical and significant hardship' in relation to ordinary prison life.” “Withdrawal of visitation privileges for a designated period of time as a means of effecting prison discipline did ‘not present a dramatic departure from the basic conditions' of confinement within [Plaintiff's] sentence.”)

         Moreover, Plaintiff's custody review and placement in a “security threat group” does not rise to the level of constitutional deprivation. It is clear that the Plaintiff does not have a constitutional right to receive a certain custodial classification while incarcerated. Meacham v. Fano, 427 U.S. 215 (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 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 (5thCir.1990) (citations omitted).

         Further, Plaintiff's complaint that MDOC policy and procedure was violated simply does not rise to a level of constitutional deprivation. Jones v. Hudnell, 210 F.App'x 427, 428 (5th Cir.2006) (citing Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir1986)) (“A violation of prison regulations, without more, does not give rise to a federal constitutional violation.”) “[A] prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91, 94 ...

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