United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER OF DISMISSAL
LEE UNITED STATES DISTRICT JUDGE.
matter is before the court sua sponte. Pro se plaintiff
Dennis Andrew Macaluso is incarcerated with the Mississippi
Department of Corrections (“MDOC”), and he
challenges the conditions of his confinement. The court has
considered and liberally construed the pleadings. As set
forth below, this case is dismissed.
is an MDOC inmate, currently housed at the Jefferson-Franklin
Regional Correctional Facility. Before being housed at this
prison, he was a pretrial detainee at the Harrison County
Jail. Defendant Tiger Commissary Network is alleged to be an
Internet-based, prison canteen vendor, from Arkansas. Tiger
Commissary is the prison canteen vendor for MDOC,
Jefferson-Franklin Regional Correctional Facility, and the
Harrison County Jail. Defendant Pelicia Hall is the
Commissioner of MDOC. Defendant Troy Peterson is the Sheriff
of Harrison County. Defendant Sheriff Peter Walker is the
Jefferson County Sheriff, alleged to be responsible for the
Jefferson-Franklin Regional Correctional Facility. Other
Defendants include MDOC, the Harrison County Jail, and the
claims that Tiger Commissary subjects him to price gouging on
canteen items and that Peterson and Walker agreed to the
prices that Tiger Commissary set. Macaluso asserts that he
complained to Hall about it, but she did not do anything to
fix it. He also blames the State Legislature for not passing
laws to protect him from price gouging on canteen.
further complains that Tiger Commissary charges him ten
percent on all deposits made to his inmate account, as well
as purchases made from Tiger Commissary. He further alleges
that it and the State Legislature are charging him sales tax
on Internet sales from Tiger Commissary.
Macaluso complains that the Harrison County Jail has a policy
of refusing a refund when an inmate is transferred from the
jail and he has an outstanding commissary order. Instead, a
family member must come and pick up the order, or the inmate
must do without. When Macaluso was transferred from Harrison
County to MDOC, he had an outstanding canteen order that his
wife picked up for him.
brings this action under 42 U.S.C. § 1983, asserting
claims for equal protection, cruel and unusual punishment,
double jeopardy, and taxation in violation of the Commerce
Clause. He seeks damages and injunctive relief, including to
stop the sales tax.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this court. The
statute provides in pertinent part, “the court shall
dismiss the 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). The
statute “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“[I]n an action proceeding under [28 U.S.C. §
1915, a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised.” Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The court has permitted Macaluso to proceed
in forma pauperis in this action. His Complaint is
subject to sua sponte dismissal under § 1915.
sues all defendants for price gouging on the use of prison
commissary. He also accuses Tiger Commissary and the State
Legislature of assessing a sales tax in violation of the
Commerce Clause. Finally, he claims Harrison County's no
refund policy violates due process and the Eighth Amendment.
first complains that he is charged too much money for the use
of his inmate account and purchase of canteen items. He is
allegedly charged ten percent on all deposits and purchases.
In addition to this ten percent fee, all items purchased from
the prison commissary are said to be two to three times more
expensive than like items sold in the free-world. This, he
claims, violates Equal Protection and constitutes cruel and
unusual punishment and double jeopardy.
has no constitutional right to the use of prison commissary,
nor that it be provided to him at any particular price.
See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir.
2000) (holding 30 day loss of commissary privileges did not
implicate due process); French v. Butterworth, 614
F.2d 23, 25 (1st Cir. 1980); Billizone v. Jefferson Par.
Corr. Ctr., 14-2594, 2015 U.S. Dist. LEXIS 26615 at
*12-13 (E.D. La. Feb. 9, 2015); Kennith v. Mancuso,
12-2510, 2013 U.S. Dist. LEXIS 123266 at *5 (W.D. La. Aug. 1,
2013); Armstrong v. Broadus, 1:08cv225-HSO-JMR, 2009
U.S. Dist. LEXIS 125942, at *24-25 (S.D.Miss. Apr. 23, 2009);
Hardin v. Johnson, 1:08cv36, 2008 U.S. Dist. LEXIS
26843 at *9-10 (N.D. Miss. Apr. 1, 2008); Reed v. Dallas
Cty. Sheriff's ...