United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OF PARTIAL
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter is before the Court sua sponte. Pro se Plaintiff
Everett Stogner is incarcerated with the Mississippi
Department of Corrections, and he brings this action pursuant
to 42 U.S.C. § 1983, alleging excessive force and a
deprivation of due process. For the reasons set forth below,
Stogner's due process claims will be dismissed, as will
all of his claims against Defendants Lucy Martin and Andrew
is currently housed at the South Mississippi Correctional
Institution. Compl.  at 2. Defendants Captain Anthony
Beasley, Lucy Martin, and Warden Andrew Mills are employed at
the prison. Id. at 2-3. Beasley is a correctional
officer, and Martin is a disciplinary hearing officer.
Id. at 2. Stogner claims that on March 14, 2018 he
was being treated for a violent seizure in the medical unit.
Id. at 6-7. During this episode, Captain Beasley
allegedly hit Stogner in the face, threw him to the floor,
and kicked him. Id. at 7.
alleges that Beasley then issued him two false Rule Violation
Reports (“RVRs”) in order to give an apparent
justification for the use of force. Id. One charged
Stogner with refusing to obey a staff order and the other
charged him with assault on Beasley. Pl.'s Resp. Ex.
[16-1] at 1-2. Martin found Stogner guilty of both RVRs, even
though there was allegedly no evidence to support them.
Id.; Compl.  at 7-8. As a result, Stogner was
punished with a loss of all privileges for a month on the
first RVR and a loss of canteen and visitation privileges for
eighteen months on the second. Pl.'s Resp. Ex. [16-1] at
1-2. Stogner also contends that he was placed in segregation
from about March 17, 2018, through approximately April 14,
2018. Pl.'s Resp.  at 2; Compl.  at 7. Warden
Mills affirmed the RVRs on administrative appeal.
Id. at 8.
initiated this civil action on August 3, 2018, invoking 42
U.S.C. § 1983 and asserting an excessive force claim
against Captain Beasley, and a deprivation of due process
claim against all Defendants. Stogner asks the Court for a
declaratory judgment, compensatory and punitive damages, and
Prison Litigation Reform Act of 1996 (“PLRA”), 28
U.S.C. § 1915, applies to prisoners proceeding in
forma pauperis in this Court. The PLRA provides in part
that “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). This framework “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) (quotation omitted).
action proceeding under § 1915, courts may
“evaluate the merit of the claim sua sponte.”
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. So long as the inmate “has already pleaded
his ‘best case'” and his “insufficient
factual allegations [cannot] be remedied by more specific
pleading, ” the Court may dismiss the action sua
sponte. Brewster v. Dretke, 587 F.3d 764, 767-68
(5th Cir. 2009) (quoting Eason v. Thaler, 14 F.3d 8,
9 (5th Cir.1994)). Because the Court has permitted Stogner to
proceed in forma pauperis, this case is subject to
the provisions allowing for sua sponte dismissal under §
other things, Stogner claims Defendants violated his due
process rights by convicting him of two false RVRs in the
absence of any evidence. To maintain a procedural due process
claim, Stogner must show that the RVRs either: (1) affected
or “will inevitably affect the duration of his
sentence;” or (2) imposed an “atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484, 487 (1995). Stogner does not
allege that the RVRs affected or will inevitably affect the
duration of his sentence. Rather, Stogner complains that he
was deprived of all privileges for one month and of canteen
and visitation for eighteen months, and was placed in
segregation for four weeks pending the disciplinary hearing.
Neither the segregation, without more, nor the deprivation of
privileges in this case constitutes an atypical or
significant hardship. Watkins v. Lnu, 547 Fed.Appx.
409, 410 (5th Cir. Apr. 23, 2013) (holding three month loss
of commissary, visitation, and telephone privileges did not
implicate a liberty interest); Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997) (holding 30 day loss of
commissary plus 30 day segregation did not implicate due
process); Hernandez v. Velasquez, 522 F.3d 556,
562-63 (5th Cir. 2008) (holding classification which resulted
in one year confined to a shared cell, with leave only for
showers, medical appointments, and family visits was not an
atypical or significant hardship).
the Supreme Court has held that prison visitation is not an
independent right protected by the Due Process Clause.
Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454,
461 (1989) (rejected on other grounds by Sandin, 515
U.S. at 482). The Fifth Circuit Court of Appeals likewise
holds prisoners do not have a liberty interest in visitation.
E.g., Watkins, 547 Fed.Appx. at 410. Of
course, extreme variations of otherwise “typical”
punishments may create a liberty interest, for example,
segregation in and of itself is not atypical but, when
coupled with extreme conditions or length, can implicate a
liberty interest in its avoidance. Wilkinson v.
Austin, 545 U.S. 209, 223-24 (2005) (finding liberty
interest in avoiding indefinite placement in a supermax
facility where, among other things, “almost all human
contact is prohibited”); Wilkerson v. Goodwin,
774 F.3d 845, 848-49 (5th Cir. 2014) (39 years in solitary
confinement). Plaintiff complains that his sanction lasted
for eighteen months. In contrast to Wilkinson,
however, Plaintiff does not claim to have been cut off from
almost all means of human contact or to have suffered a
visitation ban for an indefinite period of time. Plaintiff
was subjected to a limited, eighteen month ban on visitation,
which was not accompanied by simultaneous segregation.
Nothing about the punishments in the instant case rise to the
level of atypical or extraordinary hardships, and
Plaintiff's due process claims should therefore be
dismissed as frivolous. Martin v. Scott, 156 F.3d
578, 580 (5th Cir. 1998).
IS, THEREFORE, ORDERED AND ADJUDGED that
Plaintiff's due process claims are DISMISSED WITH
PREJUDICE as frivolous. Accordingly, Defendants Lucy
Martin and Andrew Mills are also dismissed from the case. The
excessive force claim against Defendant Anthony Beasley shall